HAJJA FALMATA KULWA v. BUKAT TORBE & ORS.
(2012)LCN/5514(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2012
CA/J/147/2002
JUSTICE
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
Text
HAJJA FALMATA KULWA Appellant(s)
AND
1. BUKAT TORBE
2. HAJJA YA KAKA
3. MALLAM GREMA
4. MALLAM ALHAJI
5. BABA YUSUFA Respondent(s)
RATIO
WHETHER OR NOT THE COURT CAN DETERMINE ISSUES NOT PLACED BEFORE IT
That it is a fundamental principle of law that when an issue is not placed before a Court of law, it has no business whatsoever to deal with it. That if it however deals with it the resultant effect is a striking out for want of jurisdiction to so act. The following authorities were cited for purpose of buttressing the argument. Abbas v. Solomon (2001) 7 SCNJ Page 546 at 564: Achikpo v. Nduko (2001) 7 SCNJ page 585 at 617 and Agbeje v. Ajibola (2002) 1 SCNJ Page 64 at 74. PER OGUNBIYI, J.C.A.
CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): The Appellant before this Court was the Plaintiff at the trial Area Court Gamboru. Her claim against the Respondents bordered on an allegation that one Hajja Falmata Kulwa Kura (now late) gifted her (Hajja Falmata Kulwa Hana the Appellant herein) 2 rooms and a parlor in her house at Ngileruma Street of Limanti Ward, Maiduguri. That the Appellant now being a partner to the house in dispute challenged the sale of the other three rooms to Mallam Alhaji the 4th Respondent herein without her consent and permission as she had the first right of Pre-emption. The Plaintiff’s/Appellant’s claim succeeded before the trial Court and judgment was entered in her favour (pages 22-23 of the record of appeal). The Defendants who are now Respondents herein were aggrieved partly against the decision of the said trial Court on the confirmation on the aspect relating the gift. Hence they appealed to the Upper Area Court 1 (U.A.C) as evidenced at page 24 fines 11 – 22 of the record of appeal. The Appellant alleged that the appellate lower Upper Area Court l while confirming the issue of gift raised before it nevertheless went on o frolic of its own to touch on the issue of pre-emption which, per that argued on behalf of the Appellant, was never at all a ground of appeal before it. That the said Upper Area Court set aside the issue of pre-emption of pages 25 and 26 of the record of appeal. The Plaintiff/Appellant therein being dissatisfied with the said decision lodged an appeal against the refusal of the right of Preemption before the High Court under its appellate jurisdiction. Pages 27 – 33 of the record of appeal are in evidence.
The High Court in its judgment delivered on the 26th April, 2002 and borne out of pages 34 – 40 of the record of appeal confirmed the judgment of the Upper Area Court 1, Maiduguri on both the issues of gift and Preemption (shufa’ah)
Against the said judgment, the Appellant, after obtaining the leave of the Court below, of the 3rd June, 2002 filed 3 grounds of appeal to this Court. The said grounds of appeal without their particulars are reproduced hereunder as follows:
Ground 1
The Hon. Judges of the High Court erred in law when they held the appellants’ grounds of appeal before the Upper Area 1 to be an omnibus ground and he cannot be said to have acted outside his jurisdiction.
Particulars of error (a) – (b) supplied.
Ground 2
The Hon. Judges of the High Court erred in law when they held thus, “you cannot fault this decision. This decision cannot be said to be Perverse. Far from it. The upper Area Court judge made a subtle distinction between joint owner and a neighbour. The former has a right of pre-emption the latter has not. This decision tallies with the decision of the Supreme Court in Alkamawa v Bello (supra).
Particulars of error (a) supplied.
Ground 3
The Hon. Judges of the High Court erred in law when they held thus, “we were urged to note that the decision of the upper Area Court judge attracted a person who is not a party to the appeal but in our view that was inevitable. The issue was mainly between the heirs who were the vendors if at all, and the appellant who claimed that the right of Pre-emption that is vested in her as according to her she is a joint owner to the property with the heirs. The question which has to be resolved is whether she is a joint owner. The trial Area Court judge said she is but the upper Area Court judge said she is not. The purchaser so to say was caught up by cross fire. He was not intended. The real intention is whether Falmafa Kulwa Gana the done has a right of pre-emption. In our view she has no such as right as she is not a joint owner rather she is a neighbour and neighbours have no right of pre-emption.”
Particulars of error (a) and (b) supplied.
The record of appeal in question was forwarded to this Court on the 1st February, 2002 and hence the entering of the appeal in this Court. In compliance with the rules of Court, the Appellant’s brief of argument dated 20th July, 2002 was duly filed on the 23rd July, 2002. In view of the order made by this Court on the 5th March, 2009 pursuant to an application filed 18th June, 2007 it presupposes that the Respondents did not deem it fit to file any Respondents’ brief in defence of the appeal. An order in other words was granted the Appellant leave to argue the appeal in this matter on the Appellant’s brief of argument alone and in the absence of any brief of argument filed on behalf of the Respondents.
On the 18th April, 2012 the date the appeal came up for hearing, one Mr. Z. Hamza represented the Appellant while the Respondents despite service of the hearing notice did not however deem it necessary to either appeal in Court nor were they represented by any counsel. The said learned Appellant’s counsel therefore adopted and relied on the brief filed and on the totality of the appeal urged that same be allowed. In other words that both the judgments of the Borno State High Court as well as that by the upper Area Court should be set aside while that by the trial ares Court Gamboru is to be affirmed and upheld.
From the three grounds of appeal reproduced (supra), three issues were formulated on behalf of the Appellant as follows:
(a) Whether the Appellant’s ground of Appeal before U.A.C. I was an omnibus ground and whether the judge of the said court acted without jurisdiction.
(b) Whether the matter in issue is highly distinguishable the decision in the Supreme Court case of Alkanawa v. Bello and therefore can be faulted.
(c) Whether the 4th Respondent herein was a very necessary party before Upper Area Court I and which omission was very fatal to the decision arrived at on the question of pre-emption by the said Court and whether the aforesaid omission ousts the jurisdiction of same.
For the purpose of the appeal the counsel appeared to have taken all the three issues together.
Submitting in the 1st place therefore, the learned Appellant’s counsel on the principle governing omnibus ground cited a number of authorities and argued that the ground postulates the lack of/or want of evidence to support the conclusion arrived at by the trial Judge. In other words, that on omnibus ground can only stand where there is no evidence to support a finding made by the trial Court. That contrary to what happened in Sparkling Breweries v. Union Bank (2001) 7 SCNJ page 32 at 339 – 340 wherein there was no evidence to support the finding made by the trial Court, in the instant case, that there was a set of evidence given by credible witnesses, part of decision of which was confirmed by the Lower Upper Area Court 1, Maiduguri.
Submitting further on the foregoing, counsel opined that the lower appellate upper Area Court 1 had no jurisdiction to go into the issue of preemption as some was neither before it nor being on omnibus ground. That it is a fundamental principle of law that when an issue is not placed before a Court of law, it has no business whatsoever to deal with it. That if it however deals with it the resultant effect is a striking out for want of jurisdiction to so act. The following authorities were cited for purpose of buttressing the argument. Abbas v. Solomon (2001) 7 SCNJ Page 546 at 564: Achikpo v. Nduko (2001) 7 SCNJ page 585 at 617 and Agbeje v. Ajibola (2002) 1 SCNJ Page 64 at 74.
On the question relating joint ownership, the learned counsel argued that the Plaintiff/Appellant had been a joint owner with the late Hajja Falmata Kura, her namesake, and is still a joint owner with the deceased’s heirs herein. i. e. the 1st, 2nd, 3rd and 5th Respondents. That the Plaintiff/Appellant is therefore a partner in a jointly owned property gifted to her by her namesake and therefore has the first right of pre-emption as rightly held by the trial Court.
That for principle of pre-emption (shufa’ah) to apply, the property in dispute should be jointly owned, undivided, without fixed boundaries and separate roads. That this position is on off fours with the matter in issue. That contrary to the aforesaid, the Appellant in the matter between Alkamawa v. Bello was a next door neighbour and not a partner in the ownership of the property in dispute and hence did not have a right of preemption as rightly held by the Supreme Court.
In support and to substantiate the distinguishing features of the case of hand with that of the apex Court (supra), the learned counsel cited a number of decided authorities where right of pre-emption existed and having satisfied the principle as restated by the Appellant’s counsel earlier in his submission (supra).
That the 4th Defendant / Respondent before the trial Court was a very necessary party who bought the remaining portion of the Estate of late Hajja Falmata Kulwa Kuro, and which property was in dispute before the trial court in question. That the said 4th Defendant/Respondent ought to have been a party before the lower appellate upper Area Court l which touched the issue of pre-emption which affects him. That a Court has no jurisdiction to decide the fate of a person or a matter concerning him when such Person is not made a party to the action. Reliance was made on the authority of the case of Babatola v. Alaworoko (2001) 6 SCNJ page 146 at 159. That the said 4th Defendant/Respondent with regards to the principle of Pre-emption (shufa’ah) herein is the stronger from whom the Plaintiff/Appellant should redeem the unmovable property at hand as a co-owner thereto and therefore a very necessary party therein, That the proceedings which was therefore conducted without jurisdiction ought to be regarded as null and void abinitio.
On the totality the counsel urged that the appeal be allowed, while the decisions reached by the appellate lower High Court of Borno State, Maiduguri and that of the lower Upper Area Court 1 also of Borno State Maiduguri on the issue of pre-emption should be set aside. In the place thereof that an order should be made affirming the decision of the trial Gamboru Area Court alongside the decision of the aforesaid lower appellate Courts on the issue of the gift in question.
For the determination of this appeal, I subscribe to the line of submission adopted by the learned Appellant’s counsel wherein all the three issues raised were taken together with some closely related and therefore grossly and clearly interwoven.
The two fundamental questions which arose in the case of hand right from the trial Area Court through to the Upper Area Court 1 and eventually at the High Court Borno State are:
1stly Whether the deceased Hajja Falmata Kulwa Kura made a valid gift of a portion of her house to the plaintiff/appellant when the donor was healthy and fit.
2ndly Whether the donee as the plaintiff/appellant has the right of Pre-emption regarding the other portion of the house, the title which is vested in the heirs of Hajja Falmata Kulwa Kura when the heirs decided to sell the remaining portion, on the basis that she is a joint partner.
On the question of the 1st issue raised, the successive Courts from the trial Area court, to the Upper Area Court 1 and right through of the High Court Borno State on appeal affirmed the gift made as valid and binding and which some is not held out as on issue of contention. The question of controversy before the High Court on Appeal and which is also of hand is the issue regarding the right of pre-emption. While the Area Court judge in his resolution decided and affirmed the question of pre-emption in favour of the Plaintiff/appellant, the Upper Area Court 1 held the contrary and adjudged the Appellant as a neighbour who did not therefore hove the right.
On a further appeal against that decision, their Lordships of the High Court while affirming the judgment of the Upper Area 1 said thus at page 39 of the record:
“His reasons for not so affirming the decision of the Area Court Judge regarding the right of Pre-emption i.e. shufa’ah are as follows as contained in the judgment delivered by the Upper Area Court Judge on 15th August, 2001.
“But on the issue that part of the house which is inherited by the heirs should be sold to the respondent (sic) Hajja Falmata Kulwa Gana by way of shufa’ah (pre-emption) I am saying the judge of the lower court has erred here.
The most important issue to be observed here is that Hajja Falmata Kulwa Gana is not among the heirs who have the ownership of the house…It is by getting the two rooms she became a neighbour to the heirs who inherited the remaining rooms of the house. And there is no shufa’ah (pre-emption) between neighbours. ”
You cannot fault this decision. This decision cannot be said to be perverse. Far from it. The Upper Area court judge made a subtle distinction between joint owners and a neghbour. The former has a right of pre-emption the latter has not.”
The grouse of the Appellant is of alleging that the High Court at its appellate level erred in affirming the said decision arrived at by the Upper Area Court 1.
For the determination whether or not the Appellant was right in finding fault with the lower Court’s deduction, it is important that salient recapitulation be made of the facts before the court. In other words, it is not in dispute that the property in question is different and distinct from the property which was gifted to the Appellant. It is also a fact from the record that the Appellant at hand did not advance any evidence at the trial Area Court and shown on the record that the Appellant was one of the heirs to the deceased Hajja Falmata Kulwa Kura. It is therefore important that distinction be made between the concept of neighbour and joint ownership. While joint ownership gives the right of pre-emption, being a neighbour per se does not. The appellant had not been held out to be a joint partner to the three rooms belonging to the heirs of the donor of the gift made to the Appellant.
It is also significant to emphasize that the title is vested in the heirs and not jointly with the Appellant, who is a donee to a neighbouring property. Joint partnership therefore presupposes a common right to decide and commandeer the control in the property which the Plaintiff/Appellant did not prove to have in the case of hand. The right vested in the Appellant begins and ends in the property she had and which was donated to her as a gift. This right is so absolute and exists to the exclusion of off others in the same way the heirs also have over the three rooms Property inherited to the exclusion of all others inclusive of the Plaintiff/Appellant. The Appellant as rightly arrived at and concluded by the Upper Area Court in its judgment is a neighbour and not an heir; as a consequence did not therefore qualify to a right of pre-emption.
It is also pertinent to re-iterate that the evidence before the trial Area Court confirmed the gift made in respect of the two rooms donated to the Plaintiff/Appellant. The question of joint ownership was not a matter which was proved by evidence. The submission made by the Appellant’s counsel that the Plaintiff/Appellant is a partner in a jointly owned property gifted to her is a gross misconception and a bundle of confusion on the concept of joint ownership and the principle of pre-emption. The case in question as rightly held by the appellate High Court affirmatively tallies with the decision of the apex Court in the case of Alkamawa v. Bello (1998) 8 NWLR (Pt.561) page 173 where in the Appellant was also a next door neighbour and not a partner in the ownership of the Property in dispute and did not therefore have the right of pre-emption. The case of hand is on all fours with the Supreme Court’s decision (supra) and cannot and the Appellant as grossly misinterpreted by the counsel. The several authorities cited by the learned counsel and seeking to draw distinction between the case at hand with that decided by the apex Court (supra) is a clear misinterpretation and application of the principle of pre-emption (shufa’ah) to the use of properties which are jointly owned, undivided, without fixed boundaries and separate roods.
It is pertinent to emphasize and restate that there is nowhere revealing on the record of appeal that the Appellant in addition to the two rooms gifted to her also was a party to a share in the three rooms by reason of her being one of the heirs who should ordinarily be entitled to a portion as a joint heir/owner. The appellant in the absence of such proof must, I hold, have been asking for far too much in wanting to perpetuate herself, not only in respect of the portion which was apportioned and gifted to her, but also to overtake even that area upon which she has no right of ownership or authority. The Respondents as legitimate heirs were therefore certainly right in exercising their power and discretion to sell as they did.
The next point for consideration relates to whether or not the Upper Area Court I acted without jurisdiction when it considered the concept and principle of pre-emption as it applied to the case of fraud. In other words counsel submitted the absence of jurisdiction by the Appellate Upper Area Court I when it considered the issue of pre-emption which counsel argued was neither before it nor being an omnibus ground of appeal.
Also and at page 39 of the record of appeal the appellate High Court held and said:
“It was argued that the issue of pre-emption was not raised as a ground of appeal rather the upper Area Court judge went on a frolic of his own and delved info the issue of pre-emption and handed down a judgment affecting a person who was never made a party to the appeal. It is not in dispute that the trial Area Court judge took a decision on two issues including the issue of pre-emption and this decision aggrieved the heirs to the deceased donor and hence lodged an appeal. Although there is no elaborate and separate ground of appeal on the issue of pre-emption, they already stated as their ground of appeal that they are not satisfied with the decision of the trial Area Court judge. This ground can rightly be regarded as an omnibus ground challenging the decision of the trial Area Court judge in respect of the gift and pre-emption. We are of the view that the Upper Area Court judge cannot be faulted when he entertained this ground as a valid ground of appeal and delved into the issue of not only the gift but also the right of preemption”.
For purpose of recapitulation, the trial Area Court judge in his judgment at pages 14 – 23 of the record of appeal decided on two issues to wit question of gift of the subject matter and whether the plaintiff before him had the right of pre-emption. Judgment was accordingly entered in favour of the Plaintiff.
At the Upper Area Court on appeal against the decision while the issue of gift was affirmed, the Court however reversed the Area Court’s decision on the concept of pre-emption and joint ownership of the property in question which was affirmed by the appellate High Court. The grouse and complaint by the Appellant before us questions the jurisdiction of the Upper Area Court in deciding on the issue relating right of pre-emption when such was not mode a ground of appeal before that Court.
For purpose of clarity and proper understanding, I would reproduce the ground of appeal lodged by the Appellant before the Upper Area Court 1 at page 24 of the record of appeal at lines 13 – 14:
“Our ground of appeal is, we are not satisfied with the decision of Gamboru Area court judge.”
The decision of the Gomboru Area Court Judge as stated earlier above in summary was to give judgment to the Plaintiff in terms of her claim. In other words and at page 22 the trial Area Court held thus and said at lines 36 – 39.
“That the plaintiff being a partner in a jointly owned property has right to pre-emption (shufa’ah) to repurchase the house in dispute from the 4th defendant on the same price compulsorily under the relevant and applicable Islamic Law ….”
It was the foregoing decision that was appealed against of the Upper Area Court 1 which held thus at page 25 of the record in its judgment at lines 39 – 43 also page 26 tines 1 – 3 said:
“…In my view the gift of the two rooms made by the deceased to her name-sake is right and it is in accordance with the Islamic law, just the same as was confirmed by the lower court because the plaintiff proved the gift through witnesses. But on the issue that, part of the house which is inherited by the heirs should be sold to the respondent Hajja Falmata Gana by way of shufa’ah (pre-emption) I am saying the judge of the lower Court has erred here.”
Deducing from the historical development of this case and as clearly restated (supra), I hold the firm view that the appellate high Court rightly affirmed the judgment of Upper Area Court 1 wherein it held that the omnibus ground covered the issue of pre-emption and wherein the judgment inevitably also affected a person who is not a party to the appeal.
In other words, whether or not the issue of right of pre-emption was specifically made a ground of appeal is a matter which is pre-empted and well integrated within the reasons behind the grievance lodged by the Appellant to the Upper Area court against the judgment of the trial Area Court Gamboru. The question of the right of pre-emption predicated on joint ownership had been earlier resolved in the course of this judgment. Some as rightly held out by the lower High Court has easily been sub-sumed into the omnibus ground of appeal. In the absence of the issue of pre-emption, there would certainly have been no reason for appeal from the Upper Area Court 1 to the High Court and subsequently now before us. Contrary to the submission advanced by the learned Appellant’s counsel, the concept relating right of pre-emption was rightly placed before the Upper Area Court 1 and it indeed had business to deal therewith as it had jurisdiction to do so. All the authorities cited by the Appellant’s counsel on the absence of jurisdiction on the part of the Upper Area Court 1, relevant they could have been in appropriate and applicable situations, ore not however relevant in favour of the appeal herein. The heavy weather submitted by the Appellant’s counsel con conclusively beheld out as a saying “much ado about nothing and which does not give any cause for consideration. “The conclusion arrived of by the Upper Area Court and which some was affirmed by the appellate high Court contrary to the submission by the learned Appellant’s counsel was not without jurisdiction. The judgment I hold would not have been complete without resolving on the question of pre-emption. In the result, I therefore also endorse the conclusion arrived of by the appellate High Court Borno State wherein it affirmed the judgment of the Upper Area Court 1 which as rightly held cannot be faulted. All the issues formulated on behalf of the Appellant are resolved against her and the appeal is devoid of any merit. The appeal is hereby dismissed and the judgment of the appellate High Court Borno State which endorsed that of the Upper Area Court 1 Maiduguri is hereby affirmed. I make a further order that each party is to bear the costs of the appeal.
Appeal is dismissed with no order made as to costs.
HANNATU SANKEY, J.C.A.: I have read, before now, the lead Judgment of my learned brother, Ogunbiyi, J.C.A. and I agree with the reasoning given by him in dismissing the Appeal.
For these same reasons, which I hereby adopt, I also hereby dismiss the Appeal and affirm the decision of the lower Court and the Court below. I endorse the order as to costs.
HON. JUSTICE PHILOMENA MBUA EKPE, J.C.A.: I have been opportuned to read in advance the well articulated lead judgment in this appeal delivered by my learned brother, Clara Bata Ogunbiyi J.C.A. and I agree completely with both his reasoning and conclusions.
I also endorse the conclusion arrived at by the appellate High Court, Borno State which affirmed the judgment of the Upper Area Court I. This appeal is devoid of merit and is hereby dismissed. The judgment of the appellate High Court, Borno State endorsing that of the Upper Area Court I, Maiduguri is hereby affirmed.
I abide by the order made as to costs.
Appearances
Z. Hamza Esq.For Appellant
AND
No Respondent’s brief as the respondent was not represented.For Respondent
