MUHAMMED MIJINYAWA & ANOR v. ALHAJI YUSUF ANAS
(2016)LCN/8129(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of January, 2016
CA/YL/73/2004
RATIO
PRACTICE AND PROCEDURE: HEARING NOTICE; THE SERVICE OF HEARING NOTICE AND THE IMPLICATION OF THE FAILURE TO SERVE THE SAME WHERE IT IS REQUIRED
The Law is trite that hearing notice is imperative where a party is not present in the Court or duly represented. See Madueke v. Madueke (2012) 4 NWLR (PT. 1289) 77 at 97 Paragraphs A-C.
It is the duty of the Court to fully satisfy itself that a party to the case was duly served and is aware that the matter is coming up before the Court that day. It is not for the trial Court to assume that the party is aware of the suit when in the first place, it had not issued any hearing notice to the party. See Integro Ltd v. Bassey (2008) ALL FWLR (PT. 419) 450 at 452 ? 453. In the same case it was held that failure to serve hearing notice on a party when such notice is required as in the instant case renders proceedings conducted thereafter a nullity.
Service of hearing notice is also predicated on the principle of fair hearing as contained in Section 36(1) of the Constitution of the Federal Republic of Nigeria and enunciated in the popular Latin Maximum: audi ateram partem ? See Adeniyi v. Yaba Collage (1993) 7 SCNJ 304 at 306 Ratio 1 and Amoo v. Alabi (2003) 12 NWLR (PT. 835) 537 at 542 ? 543 Ratio 3. per. TIJJANI ABDULLAHI, J.C.A.
PRACTICE AND PROCEDURE: WHETHER PARTIES ARE STRICTLY BOUND BY THEIR PLEADINGS AND THE DUTY OF A COURT TO DECIDE ISSUES BASED ON THE PLEADINGS OF THE PARTIES
The law is well settled that parties are strictly bound by their pleadings and Court is under a duly to decide issues based on the pleadings of the parties. See Gbadamosi v. Akinloye & Others (2013) Vol. 223 LRCN (PT.2) 1 at 6 Ratio 5. The objective of pleadings is that either party is given the opportunity or window to prepare his evidence and argument upon the issues raised by the pleadings and this prevents either side form being taken by surprise. See Mbanefo v. Molokwu & Ors (2014) Vol. 232 LRCN 1 at 10 Ratio 9.
Courts of law are also prevented from making a case for the parties outside their pleadings. See Aboyeji v. Lateju (2012) 3 NWLR (PT. 1288) 434 at 438 – 439 Ratio 7. Ordinarily, a Court should not set up for parties a case different from the one set up by the parties themselves. If it is otherwise, the Court may be accused of jumping into the arena of conflict to support one of the parties and may be rubbished in the process. See Omokuwajo v. FRN (2013) Vol. 223 (Pt. 2) 166 at 173 Ratio 4. per. TIJJANI ABDULLAHI, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
1. MUHAMMED MIJINYAWA
2. ILIYASU MIJINYAWA
(For themselves and as representing Mijinyawa family) Appellant(s)
AND
ALHAJI YUSUF ANAS Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Justice, Taraba State (Coram Adamu Aliyu (CJ) (as he then was) delivered on 7th February, 2012 wherein the Lower Court ordered the transfer of the case before it to Mutum Biyu Area Court. The ruling of the Lower Court can be found on pages 62 to 63 of the Records.
In the Court below, the Appellants as plaintiffs filed this suit and claimed against the Respondent/Defendant via a Writ of Summons dated 15th April, 2005 as follows:
1. A Declaration of title to the piece of parcel of land situate and lying at Anguwan Bariki, behind the Ministry of Agriculture, Extension Office, along Cooperative Road and is bound in South by the Ministry of Agriculture, West by the House of Mallam Garba, North by TK Line and the House of Sarkin Zango and on the East by the House of Alhaji Yusuf Jessawa and thereby Comprising land approximately 4050 square meters in Mutum Biyu town of Gossol Local Government Area, Taraba State.
2. The sum of N2,000,000.00 (Two Million Naira) being general damages for trespass against the
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Defendant and in favour of the Plaintiffs.
3. An injunction against the Defendant, his agents and privies from further trespassing into the land.
4. The cost of this action.
Issues were joined on these claims wherein the Defendant/Respondent via his Amended Statement of the Defence particularly in Paragraph 5 claimed that the land in dispute has been sold to him by the Plaintiffs/Appellants? deceased father. The case proceeded to hearing with each side calling witnesses in support of their various positions. After the close of the Plaintiffs/Appellants? case the Defendant/Respondent called his first witness through whom he sought to tender some documents evidencing the sale transaction of the land in dispute. The Plaintiffs/Appellants objected to the admissibility of the documents in question. In view of this the Lower Court adjourned the case to 29th September, 2011 for ruling on the said objection.
?The trial Court resumed hearing on the matter on the 7th February, 2012 with the Counsel for the Defendant/Respondent present in Court and the Plaintiffs/Appellants as well as their Counsel absent. At this sitting of the Court the
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Defendant/Respondent?s Counsel raised an objection as to the jurisdiction of the Court claiming that the subject matter in dispute is an inherited property which is subject to Islamic Law of Secession which the trial Court has no jurisdiction to entertain. Based on this, the Defendant?s Counsel urged the trial Court to invoke the provision of Section 76 of the High Court Rules and transfer this suit to a Court of competent jurisdiction. In view of this the learned trial Chief Judge agreed with the Defendant?s Counsel and ordered the Mutum Biyu Area Court 1 to start and hear the case de novo under the principles of Islamic Personal Law, through a ruling dated 7th February, 2012.
?Aggrieved by the ruling of the trial Court, the Plaintiffs/Appellants approached this Court and filed a Notice of Appeal on 22nd April, 2014 which was later amended through an Amended Notice of Appeal filed on the 3rd November, 2014 and sought for the following reliefs:
a) An order allowing the appeal and setting aside ruling of the Lower Court dated 7th day of February, 2012.
b) An order remitting the suit to the High Court of Justice Taraba State for
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trail de novo by a different judge.
The Plaintiffs/Appellants filed their Brief of Argument on the 9th March, 2015 which was deemed filed on the 28th April, 2015 by this Court through an order granted on the Appellants? application filed on 9th March, 2015 for extension of the time to file brief.
The Respondent after being served with Appellants? Brief of Argument and hearing notice did not file his Brief of Argument.
Consequently, the Appellants filed an application on 30th October, 2015 seeking an order of this Court to hear and determine the appeal solely on the Appellants? Brief of Argument which was granted on the 10th November, 2015.
?The Plaintiffs/Appellants in a Brief settled by J. A. Oguche, (Esq.) distilled three issues for determination from the three grounds of appeal as follows:
?(1) Whether the learned trial Judge was right in law to have order (sic) for the transfer of Appellants? suit to an Area Court at the instance of Respondent without first availing the Appellants of the opportunity to be heard on the issue.
(2) Whether the learned trial Chief
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Judge was right in law to have ordered for the transfer of Appellants suit to the Mutum Biyu Area Court for trial de novo on the date when the said suit ought to have been slated for ruling on the admissibly of the purchase agreement sought to be tendered by the Respondent in his evidence-in-chief.
(3) Whether regard being had to the state of pleading and issues joined by the parties before the trial Court, the learned trial Chief Judge was right in law to have held that the suit is a subject of inheritance under the Islamic Law and thus outside the Jurisdiction of the High Court of Justice.
On the 30th November, 2015, when the appeal came up before us for hearing, learned Counsel for the Appellants adopted his Brief of Argument dated 9th March, 2015 but deemed filed by the order of the Court on 28th April, 2015.
?In arguing the 1st issue for determination Learned Counsel for the Appellants after referring to the proceedings of Lower Court as contained in pages 60-62 submitted that the Lower Court was wrong to have ordered for the transfer of Appellants? suit to an Area Court at the instance of the
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Respondent without first availing the Appellants of the opportunity to be heard on the issue of whether the suit is a subject of inheritance under Islamic Law.
It is the contention of Learned Counsel that in the sitting of the Court on 27th July, 2011 the matter was adjourned to the 29th September, 2011 for ruling on the admissibility of the documents sought to be tendered by the Respondent, but the trial Court never sat on that date or any later date throughout the year 2011. The trial Court only sat on the 7th of February, 2012 which was seven (7) months later and the Appellants were never put on notice or being informed of the said date. And that was why the Appellants and their Counsel were not in the Court on the said 7th February, 2012.
?It is the submission of the Learned Counsel that the law is well settled beyond equivocation that in proceedings before a Court, each party to the suit must be informed beforehand of all dates of the Court?s sitting, failing which such proceedings conducted without such a party been duly informed and/or notified would be automatically rendered a nullity, as same amounts to a clear breach of the
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party’s Right to Fair Hearing. For this submission, Learned Counsel relied on the case of Intagro Ltd v. Bassey (2008) ALL FWLR (PT.419) 450 at 452-453, Madueke v. Madueke (2012) 4 NWLR (PT 1289) 77 at 97 Paragraphs A- C and Adeniyi v. Yaba College (1993) 7 SCNJ 304 at 306 Ratio 1.
Learned Counsel relying on the case of Amoo v. Alabi (2003) 12 NWLR (PT. 835) 537 at 542 ? 543 Ratio 3, submitted that the law is indeed well settled that a decision on issues raised in a suit can only be validly reached by a Court of Law after both parties have been heard or have been duly granted the opportunity to be heard. The Learned Counsel further relied on principle of law as encapsulated in the Latin Maxim: audi alteram partem and Section 36(1) of the Constitution of Federal Republic of Nigeria 1999 (as amended).
We are urged to resolve this issue in favour of the Appellants and against the Respondent.
On the 2nd issue for determination, Learned Counsel submitted that it is wrong in law for the Learned trial Chief Judge to have ordered the transfer of Appellants’ suit to the Mutum Biyu Area Court 1 for trial de novo on the date when
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the said suit ought to have been slated for ruling on the admissibility of the purchase agreement sought to be tendered by the Respondent.
Learned Counsel submitted that the Law became settled that Courts of Law are wholly bound by the positions of the cases pending before them. Where on its records, a Court adjourns a suit to a further date for mention, such Court can only proceed to mention the said suit on that next adjourned date but no other business what-so-ever. Learned Counsel relied on the cases of Kano v. Bauchi Meat Products Co. Ltd (1978) 9-10 SC and Faladu v. Kwoi (2001) 9 NWLR (PT. 826) 643 at 646 Ratio 2.
We are urged to resolve this issue in favour of Appellants.
On the 3rd issue the Appellants’ Counsel submitted that it is wrong in law for the learned trial Chief Judge to have held that the suit is a subject of inheritance under the Islamic Law and thus outside the jurisdiction of the High Court of Justice.
Learned Counsel submitted that the Law is well settled in our jurisprudence that civil trials commenced by Writ of Summons, parties are strictly bound by their pleadings. For this submission he relied on the case
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of Gbadamosi v. Akinloye & Others (2013) Vol. 223 LRCV (PT. 2) 1at 6 Ratio 5.
It is the Learned Counsel’s contention that a perusal of the Statement of Claim of the Appellants would clearly showed that the Appellants’ claim before the trial High Court was for declaration of title over a piece of land.
Learned Counsel further contended that a careful perusal of the Statement of Defence filed by the Respondent in the trial Court would reveal that the Defence of the Respondent is wholly and clearly anchored on purchase of the piece of Land in dispute.
Learned Counsel submitted that it was wrong for the trial Chief Judge to have held that the Plaintiffs/Appellants’ suit is a subject of inheritance under Islamic Law and thus outside jurisdiction of the High Court of Justice and so the purported transfer of the suit to the Mutum Biyu Area Court 1 was also wrong. Learned Counsel relied on the case of Mbanefo v. Molokwu & Others (2014) Vol. 323 LRCN 1, Paragraph 10 Ratio 9.
Learned Counsel further submitted that it is settled law that when appearing before a Court of law a Counsel is under a solemn duty to refrain from
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misleading or confusing the Court. He relied on the cases of Abacha v. The State (2002) 7 SC (PT. 1) 1 and Babatunde v. P.A.S & T.A.Ltd (2007) ALL FWLR (PT. 372) 1721. Therefore, it was highly unprofessional, wrongful and improper for Defendant/Respondent’s Counsel to have misled the learned trial Chief Judge by arguing before him on the 7th February, 2012 that the pleadings of the Appellants filed at the trial Court had disclosed that the subject matter in dispute is an inherited property which is subject to Islamic Law of Succession, even when he was well aware that the pleadings before the trial Court was simply for declaration of title to the piece of land in dispute.
We are urged to resolve the issue in favour of the Appellants and against the Respondent and allow the appeal by setting aside the ruling of the trial High Court delivered on the 7th February, 2012.
I have carefully considered the submissions of the Learned
Counsel of the Appellants and the record of proceedings of the Lower Court. I am of the view that issues 1 & 2 formulated by the Appellants’ Counsel could be considered together as the two issues bordered on
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the propriety or otherwise of the transfer of Appellants? suit to the Mutum Biyu Area Court 1 by trial Court.
As can be seen from the Brief of the Appellants the Counsel submitted that it was wrong for the trial Court to have ordered the transfer of the suit to the Mutum Biyu Area Court 1.
It is evident from the printed record of proceedings of the trial Court particularly pages 59-63 that since when the matter last came up on 27th July, 2011 and adjourned for ruling on the admissibility of the purchase agreements there was nothing to show in the Records that the Court ever sat until 7th February, 2012 which was the date the Court ordered for the transfer of the Appellants? suit to the Mutum Biyu Area Court 1. There was also no evidence to show that hearing notice was served on the Appellants for the proceedings of the 7th February, 2012. The Law is trite that hearing notice is imperative where a party is not present in the Court or duly represented. See Madueke v. Madueke (2012) 4 NWLR (PT. 1289) 77 at 97 Paragraphs A-C.
?It is the duty of the Court to fully satisfy itself that a party to the case was duly served and is aware that
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the matter is coming up before the Court that day. It is not for the trial Court to assume that the party is aware of the suit when in the first place, it had not issued any hearing notice to the party. See Integro Ltd v. Bassey (2008) ALL FWLR (PT. 419) 450 at 452 ? 453. In the same case it was held that failure to serve hearing notice on a party when such notice is required as in the instant case renders proceedings conducted thereafter a nullity.
Service of hearing notice is also predicated on the principle of fair hearing as contained in Section 36(1) of the Constitution of the Federal Republic of Nigeria and enunciated in the popular Latin Maximum: audi ateram partem ? See Adeniyi v. Yaba Collage (1993) 7 SCNJ 304 at 306 Ratio 1 and Amoo v. Alabi (2003) 12 NWLR (PT. 835) 537 at 542 ? 543 Ratio 3.
In the light of the foregoing, issues 1 & 2 being raised by the Appellants? Counsel are resolved in favour of the Appellants and against the Respondent.
?The 3rd issue for determination is in relation to whether having regard to the pleadings in the trial Court the Appellants? suit is a subject of inheritance under
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Islamic Law. The Appellants? grievance on this issue is that the trial Court was wrong to have held that their suit is a subject of inheritance under Islamic Law and thus outside the jurisdiction of the High Court of Justice.
Taking a look at Appellants? Statement of Claim and the Respondent?s Statement of Defence as contained in the printed record of proceedings of the trial Court, it is evidently clear that the Appellants? suit bordered on the declaration of title to the piece of land in dispute and the Respondent had joined issues with Appellants to that effect by claiming to have purchased the land form the Appellants? deceased father.
?The law is well settled that parties are strictly bound by their pleadings and Court is under a duly to decide issues based on the pleadings of the parties. See Gbadamosi v. Akinloye & Others (2013) Vol. 223 LRCN (PT.2) 1 at 6 Ratio 5. The objective of pleadings is that either party is given the opportunity or window to prepare his evidence and argument upon the issues raised by the pleadings and this prevents either side form being taken by surprise. See Mbanefo v. Molokwu &
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Ors (2014) Vol. 232 LRCN 1 at 10 Ratio 9.
Courts of law are also prevented from making a case for the parties outside their pleadings. See Aboyeji v. Lateju (2012) 3 NWLR (PT. 1288) 434 at 438 – 439 Ratio 7. Ordinarily, a Court should not set up for parties a case different from the one set up by the parties themselves. If it is otherwise, the Court may be accused of jumping into the arena of conflict to support one of the parties and may be rubbished in the process. See Omokuwajo v. FRN (2013) Vol. 223 (Pt. 2) 166 at 173 Ratio 4.
In view of the above, this issue like issues 1 & 2 is resolved in favour of Appellants and against Respondent.
In conclusion, the three issues having been resolved in favour of Appellants the appeal succeeds and the Ruling of the trial Court dated 7th February, 2012 is hereby set aside with N50,000.00 cost in favour of the Appellants.
The Appellants’ suit is hereby remitted back to the High Court of Taraba State to be assigned to another Judge for retrial.
JUMMAI HANNATU SANKEY, J.C.A.: I have had the privilege of reading in draft the
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Judgment just delivered by my learned brother, Abdullahi, JCA and I agree with the reasoning and conclusions therein. I have nothing to add.
Accordingly, I too hold that this Appeal is meritorious. It succeeds and is allowed. I endorse the consequential orders made therein.
SAIDU TANKO HUSAINI, J.C.A.: I had the advantage of reading in draft the lead Judgment just delivered by my Lord, Tijjani Abdullahi JCA with whom I concur that there is considerable merit in this Appeal and that same be allowed.
It is clear beyond peradventure that defence case came up for hearing at the Court below on the 27th July, 2011. Defence opened their case and called DW1. But following objections taken against the admissibility of certain documents in the course of defence witness’s evidence, the Court adjourned proceedings to the 29/9/2011 to consider a Ruling.
There is no record of any sitting of Court on the 29/9/2011 or any ruling made or delivered. At the resumed sitting of Court on the 7th February, 2012, counsel on behalf of the defendant in that case applied viva voce to Court to seek the transfer of case
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to a Court of competent jurisdiction since according to him the subject-matter of dispute was property subject of Islamic law succession. The trial Court without hesitation granted defence counsel’s request and ordered the transfer of the case before it to Mutum Biyu Area Court 1 for proper adjudication.
The Plaintiff was neither present in Court nor represented by counsel on that occasion.
Two issues readily come to mind, namely:
(a) Were the Plaintiff or Counsel put on Notice regarding proceedings of the 7/2/2012?
(b) Were the Plaintiffs or counsel heard before the order of transfer was made?
My Lord, in his lead Judgment has exhaustively addressed these 2 (two) questions. The Plaintiff who by the Writ of Summons initiated by them had sought the various claims or reliefs contained in the Writ and the Statement of claim is without saying, are persons interested in the case. Thus being parties or persons interested in the case initiated by them, no step affecting their interest relative to the subject-matter of the case can be taken the knowledge, involvement or imputes from the Plaintiffs, now the Appellants. Thus the
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proceedings conducted at the trial Court at pages 62 ? 63 is anything but fair so far as Plaintiffs were neither put on Notice for it nor participated in the proceedings leadings to the order of transfer as done by the Lower Court.
The essence of putting the party on the other side on Notice is to make the party aware of the date the matter of which he is a party, was adjourned to and for him to be present if he wants to at the next adjourned date.
Counsel for the Plaintiffs and Defendants were present in Court on the 27th July, 2011 when the case came up for hearing of defence case and eventual order for adjournment to the 29/9/2011. Parties and their Counsel had Notice of the next date the matter was adjourned to i.e the 29/9/2011. But as earlier indicated, there is no record of sitting on the said date until the 7/2/2012. Plaintiffs were not on Notice against the said date of 7/2/2012. So also counsel that represent them. This perhaps explains their absence at the proceedings of the 7/2/2012.
?Failure to serve hearing Notice on a party as in this case before an order of Court is entered is a fundamental vice which can render proceedings
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leading to the order or Judgment void and the same can be set aside as being a nullity. See: Ikom Local Government Vs. Chanlex Group Ltd. (2011) LPELR (CA); Somaco Enterprise Ltd V. NN Bank Plc (2006) All FWLR (Pt. 193) 1250; Integro Ltd V. Bassey (2008) All FWLR (Pt. 419); Umeadi Vs. Nnamani; Teno Engineering Ltd Vs. Adisa (2009) All FWLR (Pt. 260) 183.
It is imperative that the Appellants were put on Notice of the Proceedings of 7/2/2012. This is even so since the date of 7/2/2012 was not taken on record. Failure to serve notice of hearing against the said date renders proceedings of that day a nullity. See: Foloronsho V. Shalong (1994) 3 NWLR (Pt. 333) 413, 430; Somaison Kahonlor Coy. Nig. Ltd Vs. Adzege (2001) FWLR (Pt. 68) 1104.
?For the more detailed reasoning and conclusions as contained in the lead Judgment, I too allow this appeal. I abide by the consequential orders contained in the lead Judgment.
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Appearances
J. A Oguche, Esq.For Appellant
AND
.For Respondent
