ALHAJI SULYMAN ALIYU v. LAWAL ALHAJI ALMU (2013)

ALHAJI SULYMAN ALIYU v. LAWAL ALHAJI ALMU

(2013)LCN/6372(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 3rd day of July, 2013

CA/K/9/2012

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

T. N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria

I. G. MBABA Justice of The Court of Appeal of Nigeria

Between

ALHAJI SULYMAN ALIYU (OTHERWISE KNOWN AS KILISHIN DAURA) Appellant(s)

AND

LAWAL ALHAJI ALMU Respondent(s)

RATIO

WHETHER OR NOT AN APPLICATION TO RE-OPEN A CLOSED CASE IS AN INTERLOCUTORY APPLICATION

An application to re-open a case which has been closed by both parties and the matter adjourned for the filing and adoption of written final addresses is no doubt a major interlocutory application.
In Nebo v. FCDA (1998) 11 NWLR (pt. 574) page 480 this Court said inter alia of the principles regulating the re-opening of a case closed thus:
“An application by a party to re-open an already closed case is an invitation to the Court to exercise its discretion in his favour in which case the applicant must disclosed reasons sufficient to persuade the Court to exercise its discretion in his favour.
The principle here is similar to when a party who has failed to take a legal step within the time stipulated is now seeking the Court’s indulgence to have time extended for him, which must be backed up with convincing reasons to enable the Court exercise its discretion in his favour.
Some of the reasons the applicant could canvass include lack of means, mistake, or accident. PER ABOKI, J.C.A.

WHETHER OR NOT A PARTY SEEKING TO RE-OPEN HIS CLOSED CASE REQUIRES THE CONSENT OF HIS OPPONENT

A party seeking to re-open his closed cased would require the consent of his opponent, in the absence of which he has to depend on the discretion of the Court.
Although a court will not tolerate delay tactics by parties, however where a party seeking the discretion of the Court shows seriousness in prosecuting his case, especially in land matters that “provokes” a lot of emotions, (such as the case at hand) the closed case could be re-open. The discretion of the Court could be exercised in his favour where fresh facts have arisen necessitating the case to be re-opened. In such circumstance the Court will not hesitate to order a re-opening of the matter in the interest of justice because it is a cardinal principle of law, natural justice and enshrined in the Constitution of this country that both parties be given opportunity to be heard (on the merit) before their fortunes could be decided. See Chiorlu v. Akani (2001) (FWLR (pt.71) page 1781.
The Court can still exercise its discretion to re-open a case which has been closed by both parties and the matter adjourned for judgment, if an issue has arisen which no human ingenuity could have foreseen. See Fatola v. Mustapha (1985) 2 NWLR (pt.7) page 438. PER ABOKI, J.C.A.

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of Katsina State High Court No. 8 Katsina, delivered on 28/11/2011 by Ibrahim Bature Ahmed J.
The brief facts of the case are that the Appellant who was the plaintiff before the Court below took out a writ of summons against the Respondent who was the defendant at the Court below seeking the relief contained in the statement of claim. After pleadings were filed and exchanged, the Court below set down the suit for hearing.
The Appellant (as plaintiff) called all his witnesses and closed his case. The Respondent (as Defendant) equally opened his case and also called witnesses. The case was adjourned to enable both parties file and adopt their written final addresses.
It was at this stage that the Appellant (as plaintiff) then filed a motion on notice seeking for leave of the Court below to allow him re-open his case which he had earlier closed voluntarily. The Appellant sought to call additional witness or witnesses to support his pleadings regarding Islamic Law in paragraphs 9-11 of his statement of claim.
The motion sought for the following reliefs.
“1. AN ORDER for leave of the Honourable Court to re-open the case for the plaintiff which was closed on the 14th day of February 2011 to enable him conclude evidence in proof of his claim.
2. AND FOR ANY OTHER ORDER(S) as this Court may deem fit to make in the interest of justice in the circumstances.
TAKE FURTHER NOTICE that we shall at the hearing rely on the content of the attached affidavit.”
After hearing both parties to the motion the Court below in a considered ruling dismissed it for lack of merit.
The Appellant being dissatisfied with the said ruling appealed to this Court.
Parties in accordance with the rules of this Court filed their respective briefs of argument.
The Appellant’s Amended brief of argument was prepared by Abdul Aliyu Esq, it was dated 14th February, 2013 but filed on 4/3/2013.
The Appellant from the four grounds of appeal contained in his notice of appeal distilled three issues for determination. The issues are hereby adumbrated as follows:
1. Whether the learned trial judge was not in error when he hold that Islamic Law principles does not require any proof by virtue of section 14 of the Evidence Act. (Distilled from grounds 1 and 2).
2. Whether the failure of the learned trial judge to allow for the re-opening of the Appellant’s case for the purposes of adducing evidence does not amount to a failure of justice occasioning a substantial miscarriage of justice. (Distilled from ground 3).
3. Whether the principles enumerated by the Supreme Court in the case of AGBABIAKA V. SAIBU (1998) 10 NWLR (pt. 571) AT P. 534. Relied upon by the trial judge is not at variance with the principles applicable with the case at hand. (Distilled from grounds 4).
The brief of argument was adopted as the Appellant’s argument in this appeal.
The Respondent brief of argument prepared by the A. I. T. Adams Esq. was dated 5th April, 2012 and filed on 13th April, 2012.
The three issues distilled by the Appellant were also adopted by the Respondent for the determination of this appeal.
It is very clear to me that the only issue for determination capable of disposing of the Appeal is issue (2) as couched by the Appellant and adopted by the Respondent. The said issue reads thus:
“Whether the failure of the learned trial judge to allow for the re-opening of the Appellant’s case for the purposes of adducing evidence does not amount to a failure of justice occasioning a substantial miscarriage of justice.”
It has been submitted on behalf of the Appellant on this issue, that the failure of the learned trial judge in not allowing the reopening of the Appellant’s case for the purpose of proving a point in his pleadings has occasioned a substantial miscarriage of justice, as it is the law that parties must be given an opportunity of hearing before a decision is taken on the matters they present for adjudication. It has been contended that once an appellate Court comes to the conclusion that the party entitled to be heard before a decision was reached was not given the opportunity of a hearing, the order/judgment given by the Court below is bound to be set aside. The Court was referred to the cases of Katoyo v. Central Bank of Nigeria (1989) 1 NWLR (pt. 98) page 412 at 4481; Ogundoyin & ors v. Adeyemi (2001) 7 NLQR page 378 at 392 – 393.
Learned counsel maintained that the Appellant was denied a hearing when his application for leave to re-open his case to enable him conclude evidence in proof of his claim was refused by the trial Court.
It has been submitted that the law is settled that fair hearing connotes or involves a fair trial and a fair trial of a case consist of the whole hearing.
It was submitted that the trial Court was in error when it said that:
“The question of whether justice will not be done or that the principle of fair hearing will be breached as canvassed by the applicant counsel does not arise especially for the fact that both parties were given adequate opportunity to present their case as they envisaged”
The Court was referred to the case of Orunwo v. Woko (2011) 46 NSDQR page 517 at 548. The Court is urged to resolve the lone issue in favour of the Appellant.
In response to the submission of the Appellant the Respondent contended that the appellant was given reasonable time to prosecute his case and had called all his witnesses before he voluntarily applied to close his case.
It has been submitted on behalf of the Respondent that the lower Court had satisfied the provisions of section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Learned counsel for the Respondent argued that where a party to a suit has been accorded a reasonable opportunity of being heard and for non-just cause whatsoever refuses or neglects that opportunity, he cannot be heard to complain of breach or denial of fair hearing. The Court was referred to the case of Ukwujok v. Ogbulu (2010) 5 NWLR (pt. 1187) page 316 at 346.
Learned counsel for the Respondent insisted that the issue before the lower Court is not about fair hearing but that the Appellant wanted to re-open his case to support his pleadings regarding Islamic Law which is unnecessary. He argued that even if the issue before the lower Court relates to breach of fair hearing, fair hearing he maintained is a two edged sword, to the Plaintiff it means giving him opportunity to be heard TIMEOUSLY, and to the Defendant to avail himself of the right to defend the claim of the plaintiff. Learned counsel contended that the Court is not a slave to time that must wait indefinitely for a party to decide when to put forward his case. The Court was referred to the case of Newswatch Ltd v. Ibrahim Attah (2006) NSCQLR vol. 26 (pat. 1) page 438 at 465.
Learned counsel for the Respondent submitted that the lower Court was right to have dismissed the Appellant’s application and he urged the Court to resolve this issue against the Appellant.
An application to re-open a case which has been closed by both parties and the matter adjourned for the filing and adoption of written final addresses is no doubt a major interlocutory application.
In Nebo v. FCDA (1998) 11 NWLR (pt. 574) page 480 this Court said inter alia of the principles regulating the re-opening of a case closed thus:
“An application by a party to re-open an already closed case is an invitation to the Court to exercise its discretion in his favour in which case the applicant must disclosed reasons sufficient to persuade the Court to exercise its discretion in his favour.
The principle here is similar to when a party who has failed to take a legal step within the time stipulated is now seeking the Court’s indulgence to have time extended for him, which must be backed up with convincing reasons to enable the Court exercise its discretion in his favour.
Some of the reasons the applicant could canvass include lack of means, mistake, or accident.

The party seeking for the discretion of the Court to re-open the case must approach the Court by way of a motion on Notice praying the Court to exercise its discretion by re-opening the case.
In the instant appeal the Appellant (as Plaintiff/Applicant) before the Court below deposed in the affidavit in support of his application the reasons and necessity for bringing the said application. Paragraphs 5, 6, 7, 8, 9 and 10 of the affidavit in support at pages 7 – 8 of the record of Appeal are pertinent and are hereby reproduced as follows:
“5. That in this case it is apparent that the Plaintiff omitted inadvertently to lead evidence on an essential and fundamental fact which is principle of Islamic Law which as a matter of fact needs to be proved.
6. That it was after the close of the defence case before the filing of addresses that the counsel deserved that no evidence was led in proof of paragraph 10 and 11 of the Statement of Claim.
7. That it is necessary to seek the leave of this Court to re-open the case before doing so.
8. That failure to lead evidence in proof of paragraph 10 and 11 of the Statement of Claim was done to inadvertence of the counsel to the Plaintiff.
9. That this application will not in any way prejudice the interest of the Defendant may have equal opportunity to prosecute his defence accordingly.
10. That is in the interest of justice to grant this application.
11. That I depose to this affidavit in good faith and in accordance with the Oaths Act 2004”
I have equally examined the statement of claim filed by the Appellant at the lower Court. It is contained on pages 1 – 3 of the record of appeal. Paragraphs 6, 7, 8, 9, 10, 11 of the Statement of Claim are relevant to this appeal and are hereby reproduced for ease of reference thus:
“6. The farmland was originally the property of Alh. Aliyu Kilishin Daura of blessed memory who is the father of both the Plaintiff and Defendant.
7. The said Alhaji Aliyu Kilishin Daura died on the 30th day of June, 1980 and was survived by 1 wife, 10 sons and 6 daughters and among the properties left behind is this piece of land the subject of this suit.
8. That since the death of Alh Aliyu Kilishin Daura the said farmland was not distributed among his heirs according to Islamic Law.
9. The Plaintiff aver that both Alh. Aliyu Kilishin Daura of blessed memory as well as the suruiving heirs left behind are Muslims practicing under Doctrine of Imam Malik.
10. The Plaintiff will further contend at the trial that under Islamic Law Principle regarding the distribution of inheritance in surviving wife is entitle to 1/8 of the estate and a son is entitle to a share twice the share of a female daughter.
11. The Plaintiff will further aver that under Islamic Law Doctrine of prescription (Hauzi) is applicable in the absence of any relation blood or marital from 10 years but where there is a relationship either blood or marital is from 40 years.
WHEREOF the Plaintiff claim against the Defendant is as follows:
1. A DECLARATION that the Farmland situate at Kofar Gabas Daura town in Daura Local Government Area, Katsina is the property of the heirs of Late Alhaji Aliyu (Kilishin Daura) who died on 30th Day of June, 1990.
2. AN ORDER OF DECLARATION that the said farmland is a property subject for distribution amongst the heirs of Late Alhaji Aliyu (Kilishin Daura) under Islamic Law.
3. Mesne profit for nine (9) years at N10, 000.00 per annum.
4. General damages for filling and prosecuting this suit together with several other costs that this honourable Court may deem fit and just to award in the interest of Justice, in the circumstance”
In opposing the application, the Respondent (as Defendant) filed a four paragraph counter affidavit, which is contained on pages 9 – 10 of the record of appeal.
Paragraphs 2, 3 and 4 of the said counter affidavit are adumbrated as follows:
“2. That I was informed by Ahmed M. Danbaba Esq. counsel to the Respondent in my office on the 25/07/2011 at about 1.30p.m and I verily believe the facts deposed hereunder as true and correct.
a. They the Plaintiff’s counsel was given ample time to lead evidence and call all his witnesses.
b. That the Plaintiff’s counsel willingly closed his case after calling his witnesses since the 14/02/2011.
c. That the Defendant’s counsel afterwards opened his defence by calling his witnesses and the matter was adjourned for exchange of written addresses and adoption of same with the consent of the parties and their counsel.
3. That it is in the interest of justice to refuse this application as the Respondent will be prejudiced if this application is granted.
4. That I depose to this counter-affidavit in good faith believing same to be true and correct in accordance with the Oaths Act 2004”.
An Applicant seeking the court’s discretion must act in good faith. In other words he must come to equity with clean hands. See Dana Impex Ltd v. Aderotoye (2006) All FWLR (pt. 308) 1338;
All States Trust Bank v. Nsofor (2004) All FWLR (pt. 201) 1719.
The Applicant must place before the Court all necessary materials to enables the Court exercise its discretion in his favour.
See Remawa v. NACB Consulting & Financial Co. Ltd (2007) ALL FWLR (pt. 349) page 1111;
General & Aviation Service Ltd v. Tratial (2004) ALL FWLR (pt. 211) page 1368;
Menakoya v. Menakoya (2001) 16 NWLR (pt. 739) page 203;
Dongtoe v. Civil Service Commission, Plateau State (2001) FWLR (pt. 50) page 1639;
Gwandu v. C. O. P. Kebbi State (2006) All FWLR (pt. 294) page 529;
Livestock Feeds Plc v. Funtua (2005) All FWLR (pt. 286) page 753;
Bamaiyi v. Bamaiyi (2005) ALL FWLR (pt. 288) page 1142.
An Applicant seeking for the exercise of the Court’s discretion must also put up convincing arguments showing that in law and in fact he is entitled to the Court’s discretion. See Olumegbon v. Kareem (2002) FWLR (pt. 107) page 1145.

Discretion of the Court is said to be the judges assessment of what is fair and just to do in a particular case. See Ngwu v. Onoh (2006) All FWLR (pt. 303) page 303 at 375; Iwuji v. Federal Commissioner for Establishments (1985) 1 NWLR (pt. 3) page 497 at 517.
Okafor v. Uchedo (2002) FWLR (pt. 122) page 188.

It is trite that in settled matters of fact and law, the Court has no discretion to exercise, it only exercises discretion if, after stating the facts and the law as they are, it has to make a choice between or among the two various sets of such facts and the law. See Abubakar v. Chuks (2008) All FWLR (pt. 408) page 207 at 238.

It is the general practice of Courts not to punish litigants for the mistake, blunder, negligence or inadvertence of his counsel. See Ogundoyin v. Adeyemi (2001) FWLR (pt. 71) page 1741; Ibodo v. Enarofia (1980) 4 – 7 SC 42 at 52;
Olowokere v. Akinsiku (2004) All FWLR (pt. 202) page 1970;
Odu v. Fawehinmi (2000) All FWLR (pt. 301) page 1848;
Francis v. Osunkwo (2000) All FWLR (pt. 14) page 24 – 69;
Emmanuel S. Danlang v. Teachers Service Commission (1996) 5 NWLR (pt. 446) page 97;
Iroegbu v. Okwordu (1990) 6 NWLR (pt. 159) page 643 at 648 – 649;
Nigerian Hotels Ltd v. Nzekw (1990) 5 NWLR (pt.) page 189;
Princewill v. Usman (1990) 5 NWLR (pt. 150) page 174;
Nneji v. Chukwu (1988) 3 NWLR (pt. 81) page 184 at 188;
Doherty v. Doherty (1984) 1 All NLR page 162;
Bowaje v. Adediwura (1976) 6 SC 146;
Akinyede v. Appraiser (1971) 1 All NLR page 162.
Although in the present appeal the Appellant had referred to his omission to lead evidence to prove a particular point in his pleading as a mistake or inadvertence, it will be proper if it is referred to as blunder.
There are instances where the Supreme Court lean in favour of granting the relief sought despite the mistake or blunder of counsel in the spirit of not visiting sin or mistake of counsel on his client.
In Saleh v. Monguno (2006) 15 NWLR (pt. 1001) page 1 at 61 – 62. The Supreme Court in considering whether parties should be punished for the ignorance or mistake of their counsel, where the Plaintiff who had been unduly deprived of his properties for over 22 years commenced the action before the lower Court by a motion on notice simpliciter which was not one of the four modes commencing action in the High Court. The Court held that the suit ought to be save because the mistake in so commencing it was made by Plaintiff’s counsel, which mistake should not be visited on the Plaintiff. The Court held inter alia thus:
“Parties should not be punished for the ignorance or mistake of their counsel. In the instant case, the decision whether to come by way of a motion or a writ of summons was entirely that of the Appellants’ counsel who formulated the process.
Thus, rather than decide the case on the mistake of counsel for the Appellant, the case ought to be decided on the merit based on the undisputed facts before the Court.
(Ibodo v. Enarofia (1980) 5 SC 42;
Nneji v. Chukwu (1988) 3 NWLR (pt. 81) 186;
Obidiaru v. Unique (1986) 3 SC 39;
Afolabi v. Adekunle (1983) 2 SCNLR 141;
Bello v. A. G. Oyo State (1986) 5 NWLR (pt 45) 828 referred to)”
In the instant appeal counsel to the Appellant had deposed in the affidavit in support of his application seeking for the exercise of discretion of the lower Court to re-open his case which he had closed due to his mistake or inadvertence. The case of the Plaintiff/Appellant was voluntarily close by his counsel before proving a very fundamental issue of pleadings which he had pleaded in paragraphs 10 and 11 of his statement of claim. It has been deposed to on behalf of the Plaintiff/Appellant that the Defendant/Respondent would not be prejudiced if the Court exercised its discretion by ordering the re-opening of the case.
In order to establish that it was a genuine mistake, the Court was referred to the paragraphs of the Statement of Claim where the issue of Islamic Law had been pleaded.
It was further argued on behalf of the Appellant that the Respondent would have equal opportunity to prosecute his defence after the Plaintiff/Appellant had finishing proving his case.
Although Defendant/Respondent filed a counter-affidavit opposing the application on the grounds that the Plaintiff/Appellant had ample time to lead evidence on the issue which he did not utilize and that the Defendant/Respondent would be prejudice if the Court exercised its discretion to re-open the matter, he did not provide sufficient particulars indicating how he would have been prejudiced. The argument put forward by the Plaintiff/Appellant that the issue he intends to establish is an Islamic Law issue which require evidence to establish and that the interest of justice will be best served if the matter is heard on its merit is very convincing. The matter before the lower Court is a land matter whose root of title is derived from inheritance and both parties are the children/heirs of the deceased. I am of the opinion that this is a matter where the best interest of justice will be served if the matter is heard on its merit. The lower Court should exercise its discretion to open the case in the spirit of not visiting the sin of counsel on his client.
The lower Court ought not to have punished the Appellant for the sin of his counsel. This matter is such that the lower Court ought to have decided on its merit. See International Carpet Ind. Ltd. v. Savanah Bank (Nig.) Plc (2006) All FWLR (pt. 325) page 108.
This lone issue is hereby resolved in favour of the Appellant.
There is merit in the Appeal and it is hereby allowed. The ruling of the lower Court delivered on 28/11/2011 is hereby set aside. This case is hereby remitted to the Chief Judge of Katsina State for re-assignment to another judge of the Court to be heard de novo. There shall be no order as to costs.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the privilege of reading before now the judgment of my learned brother, Aboki, J.C.A., and I absolutely agree with his reasoning and conclusion therein. I hereby allow this appeal and I abide by the consequential orders made in the leading judgment.

ITA G. MBABA, J.C.A.: I have had the advantage of reading the lead judgment by my learned brother A. ABOKI, JCA just delivered, and I agree with his reasoning and conclusions.
I too allow the appeal and abide by the Consequential Orders in the lead judgment.

Appearances

ABDUL ALIYUFor Appellant

AND

RESPONDENT ABSENT AND UNREPRESENTEDFor Respondent