LAYYA & ORS v. ARGUNGU LOCAL GOVT COUNCIL & ANOR (2020)

LAYYA & ORS v. ARGUNGU LOCAL GOVT COUNCIL & ANOR

(2020)LCN/14725(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, November 19, 2020

CA/S/134/2019

RATIO

TRESPASS: WHETHER LIMITATION OF TIME STIPULATIONS APPLY TO CASES OF CONTINUING TRESPASS

limitation of time stipulations do not apply to cases of continuing trespass. See COMMISSIONER FOR HEALTH, NASARAWA & ORS. V. Dr. M. K. DADET (2009) LPELR – 8907, NIGERIAN BOTTLING CO. PLC. V. Chief ATIM (2013) LPELR – 22848 and ADEJUMO V. OLAWAIYE (2014) 12 NWLR (PT. 1421) 252. PER GUMEL, J.C.A.

APPEAL: BINDINGNESS OF RECORDS OF PROCEEDINGS ON APPELLATE COURTS

In AUDU V. FED. REP. OF NIG. (2013) LPELR – 19897 (SC) 7 – 8 E – D, the Supreme Court held that:-
“The law is trite that an appellate Court cannot go outside the records of appeal in search of evidence favourable to any of the parties. Like pleadings which bind parties at the High Court, the Court of Appeal and the Supreme Court as appellate Courts, are clearly bound by the records of proceedings or appeal, bind the parties and the Court until the contrary is proved. This is because there is a strong presumption of the genuineness of the record which is rebuttable…. The Court is not only bound by the records of appeal but is also bound to examine the state of the record on the conflicting claims of the parties.”
In re – echoing a similar position in UNITY BANK PLC V. OLATUNJI (2013) LPELR – 20305 (CA). This Court remarked at page 27 thus:-
“…it is elementary that appeals are heard and decided on the basis of the records of appeal compiled and transmitted by the parties from the lower Court to the appellate Court. The records of appeal are binding on the Court, the parties and their counsel. An appellate Court has no jurisdiction to go outside the record of appeal to draw conclusions which are not supported by the records.” PER GUMEL, J.C.A.

PROCEEDING: EFFECT OF FAILURE TO SERVE HEARING NOTICE FOR PROCEEDINGS

The failure to serve hearing notice for the proceedings of 10th April, 2019 was a violation of the fundamental human rights of the Appellants to fair hearing, a procedural safeguard and constitutional imperative provided under Section 36 (1).
The failure to serve hearing notice in the circumstance of the instant appeal is more than an irregularity, it was far worse than that. It is beyond any doubt or speculation that the failure of the lower Court to serve hearing notice on the Appellants or their counsel for the proceedings of 10th April, 2019 goes to the root of our conception of the proper procedure in the trial of matters before our Courts. It deprived the lower Court of jurisdiction to conduct the proceedings of 10th April, 2019 and anything connected with therewith. The adjournment to 30th April, 2019 for judgment and the judgment delivered were done in gross violation of the right to fair hearing. The Appellants are entitled to have the proceedings set aside ex debito justitiqe. See SKENCONSULT (NIG.) LTD & ANOR V. UKEY (1981) LPLER – 3072 (SC). Also, in NICHOLAS MADUEKE V. MICHEAL MADUEKE (2011) LPELR 4532, this Court held that service of fresh hearing notice where required is an elementary procedure that should not be taken for granted or glossed over because of the unpalatable consequence of declaring the whole proceedings a nullity. See also FOLORUNSHO V. SHALOUB (1994) 3 NWLR (PT. 333) 413 at 430. PER GUMEL, J.C.A.

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

1. MALLAM LAYYA 2. ALH. DAN MANU 3 UMARU BARJI 4. SALISU JIBO 5. ALH. MUH’D BASHEER APPELANT(S)

And

1. ARGUNGU LOCAL GOVERNMENT COUNCIL 2. ARGUNGU EMIRATE COUNCIL RESPONDENT(S)

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kebbi State High Court delivered on the 30th day of April, 2019 in Suit No KB/HC/4CV/2017.

In a writ of summons and statement of claim dated and filed on 15th December, 2017, the Respondents herein, as the Claimants’, sought for the following declaratory and injunctive reliefs against the Appellants as the Defendants. They are:-
“1. A declaration that the 5th Defendant, though the District Head of Gulma, has no powers whatsoever to give out the land in dispute as a gift to the 4th Defendant without the prior consent and approval of the 1st and 2nd Claimants, particularly the 1st Claimant.
2. A declaration that from the nature of the land in dispute, the 1st Claimants is the rightful authority to give out the land in dispute either as gift or allocation to either the 4th Defendant or to any person of its own choice upon application/request to that effect.
3. A declaration that the Defendant did not acquire title over the land in dispute by any means.
4. A declaration that the Defendants’ entry upon the land in

dispute and remaining thereon without the prior consent and approval of the 1st and 2nd Claimants’ constitutes an act of trespass.
5. An order of this Honourable Court declaring the purported sales agreement between the 1st, 2nd, 3rd and 4th Defendants is of no effect and thus, null and void for the defect in the 4th Defendants’ root of title.
6. An order of this Honourable Court directing the Defendants to pay the sum of Five Million Naira (N5,000,000.00) to the Claimants as general damages.
7. An order of perpetual injunction restraining the Defendants either by themselves, their privies, assign, workmen, agents or howsoever called or any other person (s) claiming title through them, from further entry, cultivating or in any way dealing with the land in dispute.
8. An order of perpetual injunction restraining the 5th Defendant either by himself, his privies, assigns, agents or howsoever called from giving out any land or farmland, to any person (s) either as gift or allocation unless otherwise the land or farmland personally belongs to him (the 5th Defendant).”

In a 29 paragraph statement of defence dated 10th

April, 2018, the Defendants/Appellants denied the claim of the Plaintiffs/Respondents. The Defendants/Appellants also counter claimed and sought for the following reliefs thus:-
“a. A Declaration that by a sale transaction dated 6th February, 2017, the counterclaims are the owners of that piece of land located at Tafkin Shamuwa Sawwa District Argungu Local Government area of Kebbi State and are entitled to full ownership of same to the exclusion of all persons or authority including the 1st and 2nd defendants and any other persons claiming through them.
b. A declaration that the Claimant are the owners of that piece of land located at Tafkin Shamuwa Sawwa District Argungu Local Government area of Kebbi State.
c. An order of Court directing the 1st and 2nd defendants, their agents, servants, privies and any other person or persons claiming through them the ownership of piece of land located at Tafkin Shamuwa Sawwa District Argungu Local Government area of Kebbi State to vacate the premises of same.
d. A declaration that the acts of the 1st and 2nd defendants or any other person or person to claiming through them of further staying in

the piece of land located at Tafkin Shamuwa Sawwa District Argungu Local Government area of Kebbi State despite repeated demands by the claimants to vacate same is an act of trespass.
e. An order of perpetual injunction retraining the defendants, their agents, servant, privies and any other person or persons connected to them from further trespass unto the land in dispute being the property of the claimants.
f. N1,000,000.00 (One Million Naira) general damages.
g. An order of this Honourable Court directing the defendants to pay the cost of filing this action.”

To further join issues in the action, the Plaintiffs/Respondents filed an 11 paragraph reply to the statement of defence. Issues having been duly joined, the matter proceeded to trial during which 6 witnesses testified to prove the claim of the plaintiffs while the Defendants/Appellants relied on the oral evidence of 3 witnesses. A witness each testified for the Counterclaim and against it. A number of documents were also frontloaded with the pleadings of the respective parties and same were also tendered and admitted in evidence at the trial. At the end of the evidence of the

parties, the learned trial judge ordered for written addresses to be filed and exchanged by the parties. Each party was given 7 days to file and serve its written addresses. No written addresses were filed and served as ordered by the learned judge of the lower Court.

In its judgment, the lower Court found in favour of the Plaintiffs/Respondents and proceeded to grant their principal reliefs in terms. Also, as part of its judgment, the lower Court saw no merit in the counterclaim and dismissed it accordingly.

The Defendants/Appellants were dissatisfied with the judgment and appealed to this Court in a notice of appeal dated 11th June, 2019 but filed on 14th June, 2019. It contains 3 grounds of appeal. In an application dated 13th January, 2020 but filed on 14th January, 2020, the Appellants/Applicants were granted leave by this Court to file 6 additional grounds of appeal as well as leave to amend the original notice of appeal to incorporate the additional grounds of appeal etc. This appeal therefore is predicated on the amended notice of appeal filed on 14th January, 2020 but deemed properly filed and served on 10th June, 2020. It contains 9 grounds

of appeal with very copious particulars.

To argue the appeal, learned counsel to the Appellants Mr. Ibrahim Abdullahi filed a brief of argument on 6th July, 2020. The Respondents’ brief was filed on 4th August, 2020 by learned counsel Mr. Fingilla.

From the 9 grounds of appeal. Learned counsel Mr. Abdullahi formulated the following 7 issues for determination in this appeal. They are:-
“(i). Was Suit No. KB/AR/HC/4CV/2017 Statute Barred? (Decoded from ground 3 of the amended grounds of appeal).
(ii). Were the proceedings of 10th of April 2019 before the Court below not a nullity for want of the service of the prerequisite hearing notices on the Appellants? (Decoded from ground 5 of the grounds of appeal).
(iii). Was the Court below correct in law when it failed and or neglected to issue a pre – trial conference Report after the conduct of a pre – trial conference? (Decoded from ground 6 of the amended grounds of appeal)
(iv). Did the Court below properly evaluate both the oral and documentary evidence before entering judgment in favour of the Respondents? (Decoded from grounds 2 & 7 of the grounds of appeal)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(v). Was Suit No. KB/AR/HC/4CV/2017 res judicata in the face of Suit No. KB/HC/FHR/3/2017 decided on the 27th of November, 2017 in relation to the disputed land before this Honourable court? (Decoded from ground 8 of the amended grounds of appeal).
(vi). Did the Court below breached the Appellants Constitutional Right of address as enshrined under Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999? (Decoded from ground 4 of the grounds of appeal)
(vii). Is the decision of the court below correct law? (Decoded from grounds 1 & 9 of the amended grounds of appeal)”

Learned counsel to the Respondents in paragraph 3.1 at page 4 of the Respondents’ brief of argument adopted 7 issues for determination formulated on behalf of the Appellants.

At the hearing of the appeal before us on 28th September, 2020, respective learned counsel adopted and relied on their filed and exchanged briefs of argument. While learned counsel to the Appellants urged on to us to allow the appeal and set aside the judgment of the trial Court, learned counsel to the Respondents urged on the Court to dismiss the appeal and affirm the

judgment of the trial Court.

Before embarking on the determination of the issues in this appeal, I believe it is important to bear in mind and put on record some of the underlying facts that gave rise to it. According to the Plaintiffs/Respondents, the land in dispute is a rural land under their jurisdiction and control for ages and because it was located on a hilly terrain, it was not being cultivated and remained vacant. It was against this scenario that the 1st to 3rd Defendants/Appellants were said to have encroached on the said land and grazing their animals thereon. Because of the alleged encroachment and trespass, the owners of the neighbouring farmlands complained to the 2nd Respondent about the activities of the 1st to 3rd Defendants which also threatened the age long peaceful farming activities on the surrounding farmlands. The 2nd Respondent reported the matter to the 1st Appellant. Being the statutory owner of all non – urban lands within its jurisdiction, the 1st Respondent joined with the 2nd Respondent to commence and prosecute this action to enforce their traditional and statutory ownership and control of the land in dispute.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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However, according to the Defendants/Appellants, the land in dispute was sold to the 1st to 3rd Defendants/Appellants by the 4th Defendant/Appellant who also claimed to have been given the land as a gift by the 5th Defendant/Appellant in 1991. Further to this, the plaintiffs/Respondents tried to adduce evidence upon their pleadings that the 5th Defendant/Appellant had no power or control to give the land in dispute to the 4th Appellant as a gift because the land was not under his traditional authority and even if it was he had no power to make a gift of it without the consent or approval of the 2nd Plaintiff/Respondent.

The 1st issue for determination is whether suit No. KB/HC/4CV/2017 was statute barred. In arguing this issue, learned counsel to the Appellants began by referring to paragraph 5 of the statement of claim of the Plaintiffs/Respondents to explain that the 5th Appellant was an agent of a disclosed principal for the purpose of the facts and circumstances herein. After setting out the full text of paragraph 5 of the statement of claim, learned counsel pointed out that it amounted to an admission against interest. He proceeded to refer to the

decisions of this Court in DOHERTY & ANOR V. SUNMONU & ORS (2018) LPELR – 46725 (CA) 21 B – D, ONIGBINDE V. S. B. OLATUNJI GLOBAL (NIG) LTD (2015) LPELR – 25943 (CA) 19 B – C and ALI V. UBA PLC (2014) LPELR – 22635 (CA) 33 D – G on the meaning and effect of an admission against interest. According to learned counsel paragraph 5 of the statement of claim was more than a mere averment because PW1 – PW6 each gave evidence on it. Further to this, learned counsel pointed out that whatever the 5th Appellant, as an agent of the Respondents, did as far as the land in dispute is concerned, most especially as it relates to acts done by him in 1991, must be deemed to be the acts of the Respondents and it is too late for them to deny the power and authority of the 5th Appellant to do so in that behalf.

While referring to the decision of the Court in Suit No. KB/HC/FHR/3/2017, the 4th Appellant had been held to be in undisturbed possession of the land in dispute since 1991 and that it was only in 2017 that the Respondents started interfering with the peaceful enjoyment of the land. He referred to and quoted from the

judgment in Suit No. KB/HC/FHR/3/2017, more particularly at page 5 lines 9 – 15 thereof. According to learned counsel, this judgment was tendered and admitted in evidence and marked as Exhibit D7 at the trial herein.

In maintaining the position that the 5th Appellant was an agent of a disclosed principal, learned counsel on behalf of the Appellants referred to other decided cases to explain the common law principle of Qui facit per alium facit per se a sum facere indepur (he who does an act through another is deemed in law to do it himself). And while referring to the evidence of PW1 and PW2 during cross examination, learned counsel added that the Respondents are ad idem that the gift of the land to the 4th Appellant by the 5th Appellant in 1991 was done with their consent and approval because he was doing so as an agent of a disclosed principal. Moving to the next level, learned counsel opined that from 1991 to 2017 is a period of 26 years. While simply referring to the Limitation Law CAP 80 Laws of Kebbi State (not any particular Section of it), learned counsel argued that the failure of the Respondents to institute any action for a period of 10

years to recover the land in dispute makes this action statute – barred. Learned counsel further maintained that this suit having been filed outside the 10 year period stipulated by law is devoid of any active and enforceable cause of action.

At pages 7 to 9 paragraphs 4.15 to 4.21, learned counsel cited and relied on a number of decided cases on whether an action is caught by limitation of time stipulations or provisions as well as the yardstick and parameters for determining so. Learned counsel quoted very extensively from the decision of the Supreme Court in ARAKA V. EJEAGWU (2000) 12 SC (PT. 1) per Iguh, JSC at 36 – 37 G – E and this Court in DONBRAYE & ANOR V. PREYOR & ORS (2014) 22286 (CA) at 47 – 48 F – F where the position of the law was reiterated and amplified that when an action is caught by limitation law such an action is said to be statute barred. He urged on the Court to so find and hold with respect to the facts and circumstances in this appeal.

In his response, learned counsel to the Respondents started by emphatically denying that this action was statute barred. Thereafter, learned counsel

referred and quoted very extensively from the judgment of the Supreme Court inCIL RISK & ASSET MGT. LTD. V. EKITI STATE GOVT. & ORS. (2020) LPELR – 49565 (SC) and also the decision of this Court in EHINMOSAN V. NNPC & ANOR (2019) LPELR – 46948 (CA) in both of which the established of the law that in determining whether an action statute barred or not the only relevant processes of the Court to be read and considered are the writ of summons and statement of claim. Also according to learned counsel, based and upon the decision in CIL RISK & ASSET MGT. LTD (supra), it is only when a Plaintiff becomes aware of the wrong committed by the Defendant can it be said that a cause of action has arisen. Learned counsel further argued that the Respondents’ action was not statute barred because a cursory look at the statement of claim will show that there was no where it was averred that the cause of action arose in 1991. According to learned counsel the only year preponderantly mentioned in the statement of claim is 2017 and no other. He vindicated this position by referring and setting out the full words of paragraphs 13, 14, 15, 16, 17

and 19 of the statement of claim. From these parts of the pleadings, learned counsel argued that there is nowhere the Respondents state or indicated that they were aware of any purported gift of land to the 4th Appellant by the 5th Appellant in 1991. Also as part of his arguments, learned counsel maintained that the Respondents did not know anything more on the well known status of the land in dispute being vacant land, until 2017 when the 1st to 3rd Defendants/Applicants were sighted on it and an alarm was instantly raised by the neighbours and the matter promptly reported to the Respondents.

In an explanation of what he believed to be the law, learned counsel on behalf of the Respondents remarked that the accrual of date of a cause of action for purpose of limitation of time is the crystallisation of the circumstances that warrant a claimant to file an action against a defendant. While referring to paragraphs 9 to 19 of the statement of claim as set out at pages 4 to 6 of the record of appeal, learned counsel explained that from the time the Respondents became aware of the presence or encroachment on the land in dispute by the 1st – 3rd

Defendants/Appellants to the time this action was filed was not even up to one year. Much better than what counsel to the Appellants did, learned counsel to the Respondents copied and reproduced the provisions of Section 3 of the Kebbi State Limitation Law CAP 80 Laws of Kebbi State 1996, providing that no action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or, if it accrued to some other persons through whom he claims, to that person.

Sequel to the above foundation, learned counsel opined that the fact that the Respondents had admitted the 5th Appellant being their employee and a District Head, does not mean that they have admitted knowing the purported gift he made to the 4th Appellant. He added that even the purported sale was not known to the Respondents until when the 1st to 3rd Appellants relocated to the land in dispute with their herd of cattle. Against this, learned counsel maintained that all the arguments, submissions and decided cases on admission against interest made and relied upon by the counsel to the Appellants are inapplicable and of no

moment. While also referring to the oral testimony of the 5th Appellant as DW3 at the trial, and more particularly as recorded and set out at pages 121 – 122 of the record of appeal, learned counsel submitted that the 5th Appellant did whatever he did on his own accord and never pretended at any time to be doing so as an agent of the Respondents. It was abundantly clear to all that the 5th Appellant was acting under the guise of being the real and undisputed owner of the land in dispute, thereby completely denying the Respondents or let alone being their agent and therefore cannot now turn around and claim to be the agent of a disclosed principal, as is now being urged on this Court by his counsel. He relied on the case of SAIDU HUDU V. F. R. N. (2015) LPELR – 40898 (CA) where this Court disapproved a party who approbates and reprobates by blowing hot and cold in the same breath.

After referring and citing a number of decided cases, learned counsel to the Respondents suggested that learned counsel to the Appellants had totally changed the character and scope of their case at the trial Court to an entirely different one before this Court.

Against this perception of the case of the Appellants, learned counsel to the Respondents pointed out that the law is that an Appellant is only entitled to contest the judgment of a trial Court only on the issues properly raised before the lower Court and pronounced upon by it. He added that a party is not allowed to maintain on appeal a different case from that pursued at the trial Court. He urged on the Court to so hold and resolve this issue against the Appellants.

While referring to the decisions in the cases of GTB PLC. V. FADCO IND. LTD (2005) ALL FWLR (PT. 297) 973, NNONYE V. ANYICHIE (2005) 2 NWLR (PT. 910) 623, NDIC V. CBN (2002) 7 NWLR (PT. 272) and ARJAY LTD V. AIRLINE MGT. SUPPORT LTD (2003) 3 SCNJ 148 in paragraph 1.1 at page 1 of the reply brief, learned counsel to the Appellants, pointed out and explained that whether an action is statute barred or otherwise can also be determined on the evidence received by a trial Court, especially where it is not vivid from the writ of summons and the statement of claim when the real cause of action arose. He re – emphasised that it was from paragraph 5 of the statement of claim and the

evidence adduced on it that the agency of the 5th Appellant and the disclosed principalship of the Respondents became manifest and inferable.

RESOLUTION OF ISSUE ONE
In resolving this issue, it is important to underscore the fact that the principal cause of action in this matter, apart from seeking for a declaration of title to the land in dispute, also involves a claim for damages for trespass to the same land. It is also important to point out that the issue of limitation of time and its effect and consequence on the case of the Respondents was not pleaded in the statement of defence and therefore no evidence was given on it. There was also no invitation at all to the lower Court to determine it as a pure issue of law and jurisdiction and/or competence for the lower Court to entertain the matter as constituted. It is therefore correct when learned counsel to the Respondents pointed out that the Appellants are surreptitiously trying to set up another case before this Court in total derogation and negation of the case they tried to make out at the lower Court. This is clearly against the law and practice in Appellate adjudication and litigation.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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This issue was said to have been formulated out of ground three in the original notice of appeal. Even as a matter of law and a ground raising the question of jurisdiction, it appears quite strange for learned counsel to attempt to do so, it is indeed improper. It is beyond any doubt or per adventure that the issue of limitation of time, or the action of the Plaintiffs/Respondents being statute barred is a fresh issue in this appeal and to that extent it cannot be raised in this appeal without the leave of this Court. No such leave was sought and obtained in the instant appeal. The six additional grounds of appeal for which leave was sought and granted on 10th June, 2020, and now contained as grounds 4 to 9 in the amended notice of appeal, have nothing to do with ground 3 in the original grounds of appeal.
Added to the foregoing, as part of the judgment of the lower Court in this appeal, and as specifically contained in lines 13 to 18 at page 138 of the record of appeal, the lower Court left no one in doubt that upon the pleadings and the evidence before it, it was only determining two issues. None of the two issues set out therein has anything to do

with limitation of time. It therefore appears that ground 3 of the grounds of appeal is a fresh issue. It was raised without leave and therefore incompetent. The issue raised and formulated out of it as issue one in this appeal remains incompetent too.

In the unlikely event that ground three of the grounds of appeal and issue one for determination, were found to be competent, limitation of time stipulations do not apply to cases of continuing trespass. See COMMISSIONER FOR HEALTH, NASARAWA & ORS. V. Dr. M. K. DADET (2009) LPELR – 8907, NIGERIAN BOTTLING CO. PLC. V. Chief ATIM (2013) LPELR – 22848 and ADEJUMO V. OLAWAIYE (2014) 12 NWLR (PT. 1421) 252. With respect to the facts and circumstances, it was generously pleaded that the Defendants/Appellants encroached on the land in dispute after a purported sale of it to them by the 4th Appellant. They erected structures, moved their herds of cattle on to same and had since remained there. Added to these pleaded facts, evidence was adduced to prove them at the trial.
Against the foregoing, I am fully satisfied that the time limitation of 10 years under the Kebbi State Limitation Law (supra)

does not apply to the facts and circumstances in the instant appeal. Issue one is therefore resolved against the Appellants.

Issue two for determination is whether the proceedings of the lower Court on 10th April, 2019 were not a nullity for failure of the Court to issue and serve hearing notice on the parties thereto. In arguing this issue on behalf of the Appellants, learned counsel referred to lines 6 – 9 at page 132 of the record of appeal where the lower Court ordered counsel to the parties to file and exchange written addresses. According to learned counsel there was nothing indicating that the matter was adjourned to any particular date for the adoption of the filed and exchanged written addresses.

After referring and quoting the record of proceedings of the lower Court as set out in lines 10 – 16 at page 133, learned counsel pointed out and remarked that there is nothing on record showing that the lower Court adjourned to or sat on 2nd April, 2019 to justify any purported sitting on 10th April, 2019. Also, according to learned counsel, there is no record of service of hearing notice to the parties for the proceedings of 10th

April, 2019. He therefore maintained that there was nothing to show that the Appellants and their counsel were aware of the proceedings of 10th April, 2019.

Against this background, learned counsel pointed out and submitted that the service of hearing notice on parties to an action for any proceedings of the Court is sine qua non to the exercise of jurisdiction. Learned counsel then remarked that the Appellants were denied the opportunity of being heard in the determination of the case against them. Learned counsel added that the position of the law is that failure to effect service of hearing notice where it is required renders the subsequent proceedings and judgment a nullity. He relied and quoted very extensively from the decisions of this Court in OKON V. ADIGWE & ORS (2011) LPELR – 4528 (CA) and NWAMAGHINNA V. IWELA (2018) LPELR – 45168 (CA). With respect to the facts in the instant appeal, learned counsel argued that the failure of the lower Court to order the issuance and service of hearing notice on the Appellants for the proceedings of 10th April, 2019 is a fundamental flaw which vitiates the proceedings because it was a denial of

the Appellants’ constitutionally guaranteed right to fair hearing as enshrined under Section 36 (1) thereof. He further relied and quoted very extensively again from the case of NNOKWA MICRO FINANCE BANK LTD V. A. A. C. B. MICRO FINANCE BANK LTD (2014) LPELR – 22698 (CA). He then submitted that the lower Court seriously erred when it failed to order the issuance and service of hearing notice on the parties for the proceedings of 10th April, 2019. He urged on the Court to so hold and resolve this issue in favour of the Appellants.

In his response, learned counsel on behalf of the Respondents began by explaining that the Appellants have no reason to complain of non – service of hearing notice on them for the business of the Court on 10th April, 2019. He further explained that the proceedings of the lower Court on 11th March, 2019 took place in the presence of counsel to the parties. According to learned counsel to the Respondents , it was not on 11th March, 2019 that the order for filing of written addresses was made, rather it was no 19th March, 2019. He referred to pages 129 to 130 of the record of appeal to justify his explanations that

the 11th March, 2019 indicated on page 132 was a mistake by the Registry of the lower Court during the compilation of the records.

In his further attempt to justify what was done by the lower Court in the circumstance, learned counsel opined that looking at the proceedings of 10th April, 2019, it was clear that the lower Court indicated that both counsel failed to comply with the earlier order for the filling of written addresses. Learned counsel maintained that since the proceedings of 19th March, 2019 had counsel in attendance, there was no need for any hearing notice for the subsequent proceedings of the Court. He referred to the decisions in JONASON TRIANGLES LTD V. CHARLES & PARTNERS LTD (2002) 15 NWLR (PT. 789) 176 at 192 D – F, ADEYEMI V. LAM & BAKER (NIG) LTD (2000) 7 NWLR (PT. 663) 33 at 50 A – B, ACHUZIA V. OGBOMAH (2004) ALL FWLR (PT. 227) 508 and ONADEKO V. UBN PLC (2005) 4 NWLR (PT. 916) 440 at 467 E – G to support and find justification for what was adopted by the lower Court in the instant action. In conclusion, learned counsel submitted that learned counsel to the Appellants failed to cite any relevant decided

cases to show why it was necessary and compelling for the lower Court to serve hearing notice in the circumstance. He urged on the Court to so hold and resolve this issue against the Appellants.

In paragraph 1.3 at page 2 of the reply brief learned counsel, as a foundation to his latter arguments, pointed out that the lower Court did not hold any proceedings with respect to the matter in this appeal on 2nd April, 2019 and the record of appeal totally vindicates this fact. According to learned counsel to the extent there was no challenge to the correctness or accuracy of the record by counsel to the Respondents, it remains correct and unchallenged. Learned counsel wondered how the lower Court come to sit on 10th April, 2019 when it never sat on 2nd April, 2019, when it purported to have done so. Further to this, learned counsel remarked that the position of the law is that where a Court, for any reasons failed to sit in the open Court on any adjourned date, it must issue out hearing notices to the parties against the next adjourned date and failure to do so is a breach of the right to fair hearing. He relied on the case of OKOROAFOR MBADINUJU V. CHUKWUYERE EZUKA (1994) 8 NWLR (PT. 364) 535

and urged on the Court to so hold and discountenance all the arguments and submissions of the Respondents that maintained otherwise.

RESOLUTION OF ISSUE TWO
In determining this issue, the best starting point are the proceedings of the lower court on the relevant dates the events on which gave rise to this issue. In the respective arguments of learned counsel, the proceedings of 11th March, 2019, 2nd April, 2019, if any and the 10th April, 2019 have been under focus and made to be at the heart and foundation of the question for determination by this Court.

Against this background, the proceedings of the lower Court from pages 129 to 133 of the record of appeal are hereby reproduced in full. Just like any document before a Court they are evidential and must therefore be allowed for speak for themselves:-
“See on Exhibit D1 there is no witnesses. The only signature on Exhibit D1 was that of district of head of gulma. The gift was official. The duties of a district head scribe. I do not know. It is the work of the district head but, he can assign it to somebody to do it.
RE-EXAMINATION: Nil.

NURA BELLO:- That is our counter-claim. We close our case.
FINGILLAHI:- I apply for a short adjournment to put my house in order. I suggest 19th March, 2019.
NURA BELLO: NO Objection.
COURT:- The case is adjourned to 19th March, 2019 for defence of counter-claim.
SIGNEDHON. JUSTICE IBRAHIM.A. KANGIWA JUDGE
11/3/2019”
“19TH MARCH, 2019.SUIT NO: KB/AR/HC/4CV/2017

BETWEEN:
ARGUNGU LOCAL GOVERNMENT & 10R…CLAIMANTS.
AND
MALAM LAYYA & 5 ORS: … DEFENDANTS.
A. A .FINGILLAH: For Claimant/Respondents.
NURA BELLO with IFEOLUWA ADENIYI: – FOR THE DEFENDANTS/COUNTER-CLAIMANTS.
FINGILLAH:- The case is adjourned for defence to counter-claim. We intend to call one witness.
CCDWI:-Tukur B. Dalijan Male, affirmed.
My name is Tukur B. Dalijan. I live at Dalijan. I am a Civil Servant working with Argungu Local Government. I am Director Agriculture on the 13th day of 2019, I made a statement on Oath statement identified my Signature. I want the Court to use my

statement as my evidence in Court. I will maintain my evidence as in the main case. In paragraphs 17, 18, 19, 20. I refer to document the document and they are before this Court. I refer to Exhibit 2.
See Exhibit 1 and 1A Letter of recognition.
Exhibit 2: security report.
Exhibit 3: list of Security.
That is for witness.
That the defence for counter-claim.
CROSS – EXAMINATION:
I am not the land officer of Argungu local Government. As at 26th October, 1991.
I was not a staff of Argungu Local Government, I am not aware of what happened on the 26th October, 1991.
I know the 5th defendant as at 26th October, 1991. I was at Gwandu I was then an Agric. Officer. I was not around when Exhibit D was made. In paragraph 5, I am still exhibit D was property. Exhibit D, when it was made there was not computer. There was two report for as at the time the letter and the stamp was not in Existence. Exhibit is not from Argungu local Government but it came from representative of Argungu Local Government. I see Exhibit 1. There was copied to Argungu local government. That I do not do anything about Argungu Emirate. Exhibit I is from

Argungu Emirate. Argungu because he made a statement Exhibit d is from district Gulma. Exhibit 2 was made 26 years after Exhibit D1. I doubt Exhibit 2.
The I see Exhibit 3 was made 26 years after Exhibit ‘D’.
The issue of gift was not discussed because the committee did not know the Exhibit 3 the Exhibit was not renewed.
RE-EXAMINATION:- Nil.
FINGILLA:- We hereby close our defence for the counter-claim. We urge the Court to struck out witness deposition of the DW1 was filed on 14/01/2019.
COURT:- The witness deposition on Oath of CCDW1 dated 14th January, 2019. I hereby struck out.
COURT:- The case is adjourned to the 2nd April, 2019 for adoption of written addresses. The Claimant/Counter claimant has seven days to file their written address while the defendant count claim has seven days to file his address after service.
SIGNED
HON. JUSTICE IBRAHIM. A. KANGIWA JUDGE
(11/3/19).”
10TH APRIL, 2019
SUIT NO: KB/AR/HC/4CV/2017
BETWEEN:
ARGUNGU LOCAL GOVERNMENT & 1 OR:…CLAIMANTS
AND
MALAM LAVVA & 5ORS:…DEFENDANTS.

COURT-clerk :- Neither the counsel for the Claimant nor the defendant counsel in Court. The 1st defendant has filed written address yesterday.
The defendants counsel has not filed his written address.
COURT: – The Court adjourned to this the 2nd April, 2014 for adoption of written address of the parties. Neither the Claimants Counsel nor the defendants counsel complied with the Court’s Order. This case has been going since 2017, the case suffered unnecessary adjournment as a result of parties of counsels, in view, this case is to be adjourned to the 30th of April, 2019 for Judgment.
SIGNED
HON. JUSTICE IBRAHIM. A KANGIWA
JUDGE
10/4/2019.”

as appellate Courts, are clearly bound by the records of proceedings or appeal, bind the parties and the Court until the contrary is proved. This is because there is a strong presumption of the genuineness of the record which is rebuttable…. The Court is not only bound by the records of appeal but is also bound to examine the state of the record on the conflicting claims of the parties.”
In re – echoing a similar position in UNITY BANK PLC V. OLATUNJI (2013) LPELR – 20305 (CA). This Court remarked at page 27 thus:-
“…it is elementary that appeals are heard and decided on the basis of the records of appeal compiled and transmitted by the parties from the lower Court to the appellate Court. The records of appeal are binding on the Court, the parties and their counsel. An appellate Court has no jurisdiction to go outside the record of appeal to draw conclusions which are not supported by the records.”

I have carefully read and considered the above reproduced pages of the record of appeal. From what transpired at the Court below during the end of the proceedings of the court held on 11th March, 2019,

learned counsel to the Defendants/Counterclaimants/Appellants closed their case and thereafter learned counsel to the Plaintiffs/Respondents sought for a short adjournment to put his house in order. He suggested 19th March, 2019. Upon there being no objection from the counsel to the Defendants/Appellants, the lower Court acceded to the request and adjourned to 19th March, 2019 for “defence of Counterclaim”. This much was recorded and captured at page 129 of the record of appeal.

The proceedings of 19th March, 2019 are recorded and captured at pages 130 to 132 of the record of appeal. During the proceedings of that day, the lower Court first and foremost adjourned to 2nd April, 2019 for adoption of written addresses before it actually made the order for filing of written addresses. From the printed record and upon a simple reading of it, it is not very clear whether the written addresses ordered to be filed and exchanged were in respect of the counterclaim or the entire action, constituted by the main suit of the Plaintiffs/Respondents and the counterclaim of the Defendants/Appellants. The order of the lower Court leaves one in doubt as to its

real intent. The proceedings of 11th March, 2019 ended at page 132 of the record of appeal. There is no indication from page 133 of the record of appeal that any proceedings of the lower Court were held on 2nd April, 2019 as it adjourned on 11th March, 2019.

At page 133, the lower Court sat on 10th April, 2019. The Court clerk told the Court that there were no parties or counsel in Court. It was also placed on record as information that “The 1st Defendant has filed written address yesterday”. It was further recorded that:-
“The defendants (sic) counsel has not filed his written address.”

Against this background and contrary to clear information at its disposal and contained on record that; ”1st defendant has filed written address yesterday”, the Court still went ahead to record that:-
“Neither the claimants (sic) counsel nor the defendants (sic) counsel complied with the Court’s order.”

Against its belief that case had lasted too long in its docket and had suffered “unnecessary adjournment (sic) as a result of parties (sic) of counsel (sic) – – – “, it adjourned to 30th April, 2019 for judgment.

A careful reading of the record of appeal at page 103 shows that trial in this matter actually commenced on 8th May, 2018 and closed on 11th March, 2019. While delays should not be tolerated in the trial of matters, I do not see any reasonableness in the claim of the lower Court that there was any undue or inordinate delay in the trial of the action in the instant appeal. Rather, respective learned counsel to the parties ought to be commended, or even celebrated for having shown sufficient diligence and enthusiasm in the trial of the action in which nearly ten witnesses adopted their witness statements on oaths, cross – examination and re – examined.

The enthusiasm and speed which the lower wanted to conclude the determination of this action, in my humble view, is totally, misplaced and unnecessary. If it was indeed correct that respective learned counsel had in the past overindulged themselves when they got the lower Court to adjourn the matter unnecessarily, it was not the fault of either counsel that proceedings fail to take place on 2nd April, 2019. There are no recorded reasons why the Court did not sit on 2nd

April, 2019, even if it was as a result of shenanigans of lawyers, one is left to guess. There was also no indication on record if, after failing to sit on 2nd April, 2019, as it promised counsel and parties in open court on 11th March, 2019, hearing notices were ordered to be served for the proceedings of 10th April, 2019 and why it had to be so. It is also a matter for speculation why the Court turned a blind eye to the already filed written address of the 1st defendant on 9th April, 2019, whatever that may appear to be in the circumstance. Though it was seemingly filed out of time without the leave of the Court, should it not have been formerly struck out before the Court adjourned to 30th April, 2019 for judgment? Without any doubt the proceedings of the 10th April, 2019 were held in gross violation of the constitutionally guaranteed right of the parties to fair hearing.

It is highly futile for counsel to the Respondents to argue that the failure of the Court to sit on 2nd April, 2019 was a clerical error. There is absolutely much more to it than clerical error. As pointed out earlier in this judgment, the record of appeal as compiled and transmitted

is binding on the parties and the Court. If there was anything wrong in the record, it was for a concerned party and/or counsel to challenge its accuracy for necessary corrections. Therefore, the facts as they now stand well established are that the lower Court did not sit on 2nd April, 2019 as it adjourned to on 11th March, 2019. Also, the sitting and proceedings of the 10th April were held without a requisite hearing notice to the parties or counsel. A hearing notice ought to have been ordered and served for the proceedings of 10th April, 2019. The failure to serve hearing notice for the proceedings of 10th April, 2019 was a violation of the fundamental human rights of the Appellants to fair hearing, a procedural safeguard and constitutional imperative provided under Section 36 (1).
The failure to serve hearing notice in the circumstance of the instant appeal is more than an irregularity, it was far worse than that. It is beyond any doubt or speculation that the failure of the lower Court to serve hearing notice on the Appellants or their counsel for the proceedings of 10th April, 2019 goes to the root of our conception of the proper procedure in the

trial of matters before our Courts. It deprived the lower Court of jurisdiction to conduct the proceedings of 10th April, 2019 and anything connected with therewith. The adjournment to 30th April, 2019 for judgment and the judgment delivered were done in gross violation of the right to fair hearing. The Appellants are entitled to have the proceedings set aside ex debito justitiqe. See SKENCONSULT (NIG.) LTD & ANOR V. UKEY (1981) LPLER – 3072 (SC). Also, in NICHOLAS MADUEKE V. MICHEAL MADUEKE (2011) LPELR 4532, this Court held that service of fresh hearing notice where required is an elementary procedure that should not be taken for granted or glossed over because of the unpalatable consequence of declaring the whole proceedings a nullity. See also FOLORUNSHO V. SHALOUB (1994) 3 NWLR (PT. 333) 413 at 430.

Against all the foregoing, the question in issue two for determination must be answered and is hereby answered in the affirmative, issue two is therefore resolved in favour of the Appellants and against the Respondents. In consequence of resolving this issue in favour of the Appellants, the judgment delivered on 30th April, 2019 was delivered without

jurisdiction and therefore liable to being set aside. It is accordingly set aside. Appeal is allowed. The judgment of the Kebbi State High Court in Suit No. KB/HC/4CV/2017 delivered on 30th April, 2019 is set aside.

Having set aside the judgment of the lower Court in the instant appeal, the remaining issues for determination in the appeal have become academic. This matter is remitted to the Honourable, the Chief Judge of Kebbi State for assignment to another Judge of the Kebbi State High Court, other than I. A. Kangiwa, J, for re – trial.

FREDERICK OZIAKPONO OHO, J.C.A.: I had a preview of the draft of the Judgment just delivered by my Learned Brother, ALI A. B. GUMEL – JCA. I am in agreement with his reasoning and conclusion in allowing the appeal as meritorious and I abide by all the consequential orders made thereto.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother ALI A. B. GUMEL JCA. I am in complete agreement that the appeal is meritorious. Having resolved that the judgment delivered on 30th April, 2019 was delivered without jurisdiction, same is liable to be

set aside. I also allow the appeal and I abide by the consequential order in the lead judgment, in particular the remittance of the case to the Honourable Chief Judge of Kebbi State High Court for assignment to another judge of Kebbi State High Court, other than I. A. Kangiwa, for a trial de novo.

Appearances:

Mr. Ibrahim Abdullahi For Appellant(s)

Mr. A. A. Fingilla For Respondent(s)