INUWA v. JABRI (2022)

INUWA v. JABRI

(2022)LCN/16873(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, February 04, 2022

CA/KN/22/2020

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

ALH. AMINU HASSAN INUWA APPELANT(S)

And

MR. MAHER SAFWAN JABRI RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE PRINCIPLE OF NON-SUIT

I think this is the type of case that the principle of non-suit should be invoked, to cure the obvious blunders highlighted in the handling of the case by the learned trial Court.
In the case of Okorie Vs Okorie (2016) LPELR–41503 (CA), this Court stated when a non-suit is applicable:
“I think this is the type of suit that an order of non-suit would have been appropriate, as it appeared it was not possible to hear the suit on the claims before the Court and come to a just determination, whatever the evidence. In the recent decision of this Court in the case of Eze A.I. Oguzie & Ors Vs Chijioke Oguzie: CA/OW/92/2014, delivered on 21/10/16, (page 32), we held: “A Court can only make an order of non-suit where the party (particularly the plaintiff) failed to or is unable to prove his case due to blunders and it will be unjustifiable to dismiss the case, in its entirety, or where there was failure by the trial Judge to make proper and specific findings and an appellate Court cannot correct the error, based on the printed evidence; or where, on the evidence before the Court neither party will be entitled to judgment. The essence of order of non-suit is to ensure that a party is not foreclosed from coming back to Court to seek appropriate remedy, in the event of such blunders stated above. It is only meant to terminate the suit temporarily or prematurely, where it is obvious that interest of justice so demands. See that case of Olusola & Ors vs TrustHouse Properties Ltd & Anor (2010) LPELR-4769 (CA); Awote Vs Owodunni (No.2) (1987) NWLR (Pt.57) 366; Onwuka Vs Ononuju & Ors (2009) LPELR-2721 (SC); (2009) 11 NWLR (Pt.1151) 174.”
See also Ugbodume & Ors Vs Abiegbe & Ors (1991) LPELR–3316 (SC), where it was held:
“A non-suit is not a favour to either side. It is not meant to rob a party of a technical success but it is based on the foundation of justice itself, that the door of temple of justice should not be shut against a party who has not totally failed to prove his case. Sometime, the fault is that of the trial Judge who has misdirected himself in law. The overall essence is to see that justice is done and that opportunity be given for another trial”
In the case of Oguzie & Ors Vs Oguzie (2016), this Court said:
“The essence of order of non-suit is to ensure that a party is not foreclosed from coming back to Court to seek appropriate remedy, in the event of such blunders stated above. It is only meant to terminate the suit, temporarily or prematurely, where it is obvious that interest of justice so demands. See the case of Olusola & Ors Vs Trusthouse Properties Ltd & Anor (2010) LPELR-4769 (CA); Awote vs Owodunni (No.2) (1987) NWLR (Pt.57) 366 Onwuka vs Ononuju & Ors (2009) LPELR 2721 (SC); (2009)11 NWLR (Pt.1151)174.” PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the decision of Kano State High Court in Suit No. K/206/2017, delivered on 7th November, 2017 by Hon. Justice R.A. Sadik, wherein the learned trial Court upheld the preliminary objection, filed by the Defendant, in part, and dismissed the first relief sought by Plaintiff, and called on the defendant to open his defence on the other Reliefs. The Defendant, being aggrieved, filed this interlocutory appeal on 10/4/2019, as per the Notice of Appeal on pages 259 to 262 of the Records of Appeal.

The claims at the lower Court was for:
(1) “An Order enforcing the memorandum of understanding dated 19/03/14 entered between the Plaintiff, for himself and on behalf of (DAR EL FIKR SAL) and the defendant (acting for himself and on behalf of the heirs and family of late Hassan Inuwa).
(2) An Order specifically invoking and allowing the Plaintiff, by virtue of paragraph 2 at page 2 under the heading (it is hereby agreed and declared as follows) to sell out any or all of the properties described in the said memorandum of understanding dated 19th March, 2014 to the satisfaction of the said debt and surrender the remaining proceeds and/or the unsold part of the properties to the defendants.
(3) An Order… to pays (sic) general damages to the Plaintiff, for untold hardship, mental and psychological and mental torture.
(4) 10% Court interest rate, from the date of the Judgment, until the judgment sum is totally liquidated.
(5) Cost of filing this action.” (See Pages 4 and 10 of the Records of Appeal).

The Defendant (Appellant) had filed a defence and the case proceeded to hearing. After the Plaintiff had closed his case and it was adjourned for defence, the Defendant, instead of the defence, brought a Notice of Preliminary Objection, challenging the jurisdiction of the trial Court to hear the Suit. (See pages 90–91 of the Records of Appeal).

After hearing the preliminary objection and considering the addresses of Counsel the trial Court held, as follows:
“Having perusal (sic) the affidavit and counter-affidavit, filed by the parties and also reading thoroughly the above reviewed submission and legal arguments of the Counsel, I am satisfied that the 1st reliefs (sic) being sought by the Plaintiff/Respondent herein had been taken care of by the judgment or ruling of the Sharia Court Unguwa Uku, Kano in Suit No. CV/210/2014 against the defendant herein.
As for the other reliefs, particularly, reliefs No. 2, this Hon. Court has the requisite jurisdiction to entertain the claim of the Plaintiff/Respondent herein. Hence, the Defendant/Applicant is to open his defence thereto in this matter. Consequently, the 1st relief being sought by the Plaintiff herein, is hereby dismissed. The preliminary objection filed by the Defendant/Applicants succeeds, in part.” (See page 257 of the Records)

That is the decision the Appellant (as Defendant) appealed against. He filed Appellant’s brief on 19/3/2021 and distilled a lone Issue for the determination of the appeal, from the 3 grounds of the Appeal.

The Respondent filed his brief on 12/7/2021, which was deemed duly filed on 20/10/2021. He too distilled a lone Issue for the determination of the appeal.

Appellant’s Issue was:
“Whether the trial Court was right when it dismissed the Plaintiff/Respondent 1st relief and held that it has the requisite jurisdiction in respect of relief No. 2 to entertain the Plaintiff/Respondent claim being auxiliary claims.”

The Respondent’s Issue was:
“Whether the trial Court was wrong when it held that it has the requisite jurisdiction to entertain the Respondent’s Claim considering the Respondent’s entire Claim before it.”

Appellant had filed a Reply Brief on 2/11/2021.
Arguing the Issue, Appellant’s Counsel, A.T. Shehu Esq, who settled the Brief, submitted that the trial Court erred by holding, as it did, on page 257 of the Records; he said that the 1st Relief, which the trial Court found to have been taken care of by the judgment of the Sharia Court in Suit No. CV/210/2014, and consequently dismissed same, was the principal relief claimed by Respondent (as seen on page 10 of the Records). Thus, the 2nd relief which was ancillary to the 1st relief, and tied to the main claim of the Respondent, cannot stand. He said that having dismissed the Relief 1 (main claim) on the ground of lack of jurisdiction, the ancillary or consequential relief(s) (other reliefs), therefore became, automatically incompetent and liable to be struck out. He relied on decided authorities, including CPC Vs INEC & Ors (2012) ALL FWLR (Pt.617) 605 at 651; Awoniyi Vs Registered Trustees of Amorc (2000) 10 NWLR (Pt.676) 522 at 544; Admiral M. Nyako Vs Adamawa State House of Assembly & Ors (2016) LPELR–41822 SC; (2017) 6 NWLR (Pt.1562) 347.

Counsel said that it is trite law, that, if while resolving the main or principal or primary claim(s) an ancillary, accessory or secondary claim/relief(s) is/are interwoven and interfaced with them and a Court has no jurisdiction to hear the primary claim/relief(s), then it is totally denied of jurisdiction to try the entire suit, the tributary claim/relief(s) inclusive, by that accidental relationship, as it were. He said that this law traces its pedigree to the latin maxaim – “accessonum non-ducit, sed sequitur suum principale” – that which is incidental does not lead, but follows. He said this principle was observed in the popular case of Tukur Vs Govt. of Gongola State (1989) 4 NWLR (Pt.117) 517 at 564–565; Abdulhamid Vs Akar (2006) 13 NWLR (Pt.996) 127; Gafar Vs Govt of Kwara State (2007) 4 NWLR (Pt.1024) 375; UNICAL Vs Ugochukwu (2007) 17 NWLR (Pt.1063) 225; NRC Vs Nwanze (2008) 4 NWLR (Pt.1076) 92; WAEC Vs Akinkunmi (2008) 9 NWLR (Pt.1091) 151; WAEC Vs Adeyanju (2008) NWLR 9Pt.1092) 270.

Thus, Counsel said the trial Court should have struck out the ancillary reliefs, having declined jurisdiction to entertain the principal relief. He argued that the trial Court was approbating and reprobating, by holding that it lacked jurisdiction to entertain the 1st relief of the Plaintiff, and dismissing same, only to ask the defendant to defend the other (ancillary) relief(s). He relied on Ngere Vs Okuruket XIV (2017) ALL FWLR (Pt.882) 1302. He added that the decision was, therefore, perverse, and supplied the particulars of a perverse decision as per the case of – Okoh Vs N.A. (2018) 6 NWLR (Pt.1614) 176 at 186.
He urged us to allow the appeal.

Responding, Counsel for Respondent, Dr. Rilwanu Umar Esq, said that the trial Court was right to hold that it had jurisdiction to determine the other reliefs, claimed by Respondent. He argued that the 1st relief by the Respondent had to do with issue of estoppels per rem judicatum, same having been determined by the Sharia Court. He relied on the case of Mekwunye Vs Imoukhede (2021) ALL FWLR (Pt.1080) 1029 to say that “Parties are presumed to have intended what is contained in a document to which they have subscribed to.”

Counsel reproduced and asserted that the parties had agreed to the Sharia Court case, which the preliminary objection exhumed; he said that the trial Court was right to hold that the issue relating to relief 1 had been determined. He said that by filing this appeal, Appellant was trying to frustrate the case of Respondent at the lower Court, by resort to undue technicalities. He argued that estoppel did not prevent or preclude the Respondent from filing this action against the Appellant, to seek the Court to construe the terms of the agreement and give effect to the true intention of the parties, going by the Supreme Court decision in the case of Mekwuye Vs Imoukhede (2021) ALL FLWR (Pt.1080). He further said that, looking at the entire statement of claim and the reliefs sought, it was quite clear that both reliefs (1 and 2) were separate reliefs; that the consent judgment obtained, regarding reconciliation on modality of the payment of debt of the Appellant’s deceased father’s debt, at Sharia Court, was only for that Sharia Court to take cognizance of the memorandum of understanding, and nothing more; he said that looking at the said document, one can see that it was only after 3 years that Respondent can take any action, if the Appellant failed to act, to comply with the agreement; that the jurisdiction of the High Court remained in the matter.

In his Reply Brief, Appellant said the Respondent was confusing the issue of estoppel with the position (submission) of Appellant in the appeal, being lack of jurisdiction of the trial Court to entertain the remaining case (2nd and other reliefs), having dismissed the principal claim/relief, which the trial Court said had been taken care of by the decision of the Sharia Court. Moreover, Counsel for Appellant said the Respondent did not file a cross-appeal and so cannot canvass the issue of estoppel. He relied on Anyanwu Vs Ogunewe (2014) ALL NWLR (Pt.738) 1022.

RESOLUTION OF ISSUE
I think the main Issue to be resolved in this appeal is whether the trial Court, having dismissed the Relief one sought by Respondent, which was the principal claim upon which the other relief(s) derived expression, the trial Court can proceed to determine the other reliefs, particularly, relief 2, which sought:
“An Order… specifically invoking and allowing the Plaintiff by virtue of paragraph 2 at page 2 under the heading (it is hereby agreed and declared as follows) to sell out any or all the properties described in the said memorandum of understanding dated 19th March, 2014 to the satisfaction of the said debt and surrender back the remaining proceeds and or the unsold part of the properties to the Defendants.”

The Memorandum of Understanding referred in the relief – particularly paragraph 2 page 2 thereof – happened to be the same process pleaded in the relief 1, which an order of the trial Court was sought to enforce – i.e. “enforcing the memorandum of understanding dated 19/03/14 entered between the Plaintiff for himself and on behalf of DAR-ELFI KR SAL) and the Defendant (acting for himself and on behalf of the heirs and family of late Hassan Inuwa).”

The trial Court had dismissed the relief 1 (rightly or wrongly) because, according to it, that relief had been taken care of by the judgment or ruling of the Sharia Court Unguwa Uku, Kano in Suit No. CV/210/2014 against the defendant herein.”

At the trial Court, while arguing the preliminary objection, the Issue by Appellant was:
“Whether owing to the earlier consent judgment in Suit No. CV/210/2014 held on the 19th March, 2014 by Unguwa Uku Sharia Court in favour of the Plaintiff/Respondent subsisting, could we say that the Plaintiff/Respondent was not estopped (sic) by virtue of estoppel per rem judicatum from instituting this subsequent Suit i.e. Suit No. K/206/2017 against the same Defendant/Applicant on the same subject matter.” Page 238 of the Records of Appeal.

The consent judgment referred to at the Sharia Court, was published on pages 221 to 228 of the Records of Appeal, as Exhibit R.M.4A, wherein the Sharia Court confirmed the reconciliation by the parties.

The Respondent had submitted, at the trial Court, that what transpired at the Sharia Court was totally different from the reliefs sought by Respondent in this case; that at the Sharia Court, the parties had agreed that a Memorandum of Understanding be entered between them to the effect that the Plaintiff will have late Alhaji Hassan Inuwa estate document for three years, depending on when the Defendant would pay back the debt of their late father, failure of which the Plaintiff can go ahead to sell the properties and pay back the balance out of the proceed of sale of the properties to the defendant. Counsel for Respondent said that the issues regarding landed property or any order thereto, was not within the jurisdiction of Sharia Court, likewise interpretation and its enforcement, which can only be made by the High Court. See pages 247–248 of the Records of Appeal.

The learned trial Court, surprisingly, did not review and evaluate the legal Issues, raised by the Counsel on both sides, but swiftly rushed a conclusion by the terse ruling earlier referred to in this judgment, to wit:
“Having perusal (sic) the affidavit and counter-affidavit filed by the parties and also reading thoroughly the above reviewed submission and legal arguments of the Counsel, I am satisfied that the 1st reliefs (sic) being sought by the Plaintiff/Respondent herein had been taken care of by the judgment or ruling of the Sharia Court Unguwa Uku, Kano in Suit No. CV/210/2014 against the defendant herein.”

If the learned trial Court had stopped at the 1st 2 paragraphs of its ruling, the situation would have been ameliorated, in my view. But by proceeding to dismiss the said first relief, consequently, the Court appears to have removed the fulcrum upon which to consider the other reliefs (particular the relief 2), as the same was predicated on the 1st Relief. See the case of Tukur Vs Govt of Gongola State (1989) 4 NWLR (Pt.117) 517, on the effect/fate of ancillary reliefs, where principal relief fails.

It should also be observed that by taking and entertaining the preliminary objection at the stage of defence of the suit by Appellant, it showed lack of tact, as the same had the effect of compromising the merit of the case, that is, possibility of determination of the suit as a whole. The issue of estoppel per rem judicatum should be expected to prevail in favour of the Respondent, who, in my opinion, is the rightful person to plead and rely on it, in the circumstances of this case. But by dismissing relief 1, I cannot see any basis for continuing with the suit, to call evidence from the defence.

Sadly, the Respondent did not file any cross-appeal, to found the arguments he, erroneously, canvassed in the Respondent’s brief!

But can the Appellant take the benefit of the blunders instigated by him and committed by the learned trial Court? I think not.

I think this is the type of case that the principle of non-suit should be invoked, to cure the obvious blunders highlighted in the handling of the case by the learned trial Court.
In the case of Okorie Vs Okorie (2016) LPELR–41503 (CA), this Court stated when a non-suit is applicable:
“I think this is the type of suit that an order of non-suit would have been appropriate, as it appeared it was not possible to hear the suit on the claims before the Court and come to a just determination, whatever the evidence. In the recent decision of this Court in the case of Eze A.I. Oguzie & Ors Vs Chijioke Oguzie: CA/OW/92/2014, delivered on 21/10/16, (page 32), we held: “A Court can only make an order of non-suit where the party (particularly the plaintiff) failed to or is unable to prove his case due to blunders and it will be unjustifiable to dismiss the case, in its entirety, or where there was failure by the trial Judge to make proper and specific findings and an appellate Court cannot correct the error, based on the printed evidence; or where, on the evidence before the Court neither party will be entitled to judgment. The essence of order of non-suit is to ensure that a party is not foreclosed from coming back to Court to seek appropriate remedy, in the event of such blunders stated above. It is only meant to terminate the suit temporarily or prematurely, where it is obvious that interest of justice so demands. See that case of Olusola & Ors vs TrustHouse Properties Ltd & Anor (2010) LPELR-4769 (CA); Awote Vs Owodunni (No.2) (1987) NWLR (Pt.57) 366; Onwuka Vs Ononuju & Ors (2009) LPELR-2721 (SC); (2009) 11 NWLR (Pt.1151) 174.”
See also Ugbodume & Ors Vs Abiegbe & Ors (1991) LPELR–3316 (SC), where it was held:
“A non-suit is not a favour to either side. It is not meant to rob a party of a technical success but it is based on the foundation of justice itself, that the door of temple of justice should not be shut against a party who has not totally failed to prove his case. Sometime, the fault is that of the trial Judge who has misdirected himself in law. The overall essence is to see that justice is done and that opportunity be given for another trial”
In the case of Oguzie & Ors Vs Oguzie (2016), this Court said:
“The essence of order of non-suit is to ensure that a party is not foreclosed from coming back to Court to seek appropriate remedy, in the event of such blunders stated above. It is only meant to terminate the suit, temporarily or prematurely, where it is obvious that interest of justice so demands. See the case of Olusola & Ors Vs Trusthouse Properties Ltd & Anor (2010) LPELR-4769 (CA); Awote vs Owodunni (No.2) (1987) NWLR (Pt.57) 366 Onwuka vs Ononuju & Ors (2009) LPELR 2721 (SC); (2009)11 NWLR (Pt.1151)174.”

Thus, while resolving this Issue for Appellant, I hold that the ruling by the trial Court be set aside and a non-suit be entered and the suit at the trial Court, struck out. Parties to bear their respective costs.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother ITA G. MBABA, JCA, and I am in complete agreement with the reasoning and conclusion reached therein that the appeal is meritorious. I too allow the appeal and abide by all other consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I have read before now in draft, the lead judgment delivered by my learned brother, ITA G. MBABA, JCA. I am in agreement with the reasoning and conclusion reached by him and adopt same as mine.
I abide by the consequential orders made therein.