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ABDULGANIYYI & ORS v. MUSA & ORS (2022)

ABDULGANIYYI & ORS v. MUSA & ORS

(2022)LCN/15942(CA) 

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/K/509/2016

Before Our Lordships:

Amina Audi Wambai Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

1. DR. ABDURRAFI I. ABDULGANIYYI 2. MAL. MUSA UMAR MINSHAWY 3. ALBANIY SCIENCE INT’L ACADEMY 4. ENGR. AHMAD Y. DALHATU (CHAIRMAN BOARD OF TRUSTEES DARUL HADEETHIS SALAFFIYYAH) APPELANT(S)

And

1. ALH. ADAMU MUSA 2. SALISU ADAM 3. ABDULLAHI ADAM RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE FEDERAL HIGH COURT HAS JURISDICTION OVER MATTERS ARISING FROM THE OPERATION OF THE COMPANIES AND ALLIED MATTERS ACT IN CIVIL CAUSES AND MATTERS

From the excerpts of the judgment, it is clear that the foundation is not a registered incorporation to bring it within the ambit of Section 251(1)(e) of the Constitution of the F.R.N 1999 (as amended). The said Section provides thus;
“251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the Natural Assembly the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters:
(e) arising from the operation of the companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act.”
PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Justice Kaduna State Zaria Judicial Division delivered on 12th August, 2016 in suit No: KDH/79/2016.

The respondents filed a suit against the appellants at the lower Court seeking for the following reliefs:-
(1) AN ORDER directing the defendants to surrender the foundation and all organs established by late Shaykh Muhammad Auwal Adam Albaniy Zaria, including the estate/properties specifically mentioned in paragraphs 10 and 11 of the statement of claim to this Honourable Court forthwith.
(2) AN ORDER directing the plaintiffs to set up a committee of respected persons under the watchful eyes of this Honourable Court with the view to appoint credible, reputable and respected persons to manage the affairs of the Foundation, all its Organs and properties in accordance with the purpose and/or intention of late Shaykh Muhammad Auwal Adam Albaniy Zaria Immediately.
(3) AN ORDER directing the defendants and all the organs of the foundation to account for all the monies and/or properties realized and/or acquired in respect of the foundation to this Honourable Court forthwith.
(4) ANY OTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances of this case.

Upon being served with the writ and statement of claim the appellants filed a notice of preliminary objection dated 9/5/2016, challenging the competence of the lower Court to hear and determine the suit, which is pertaining to companies and their management. The plaintiff has not disclosed a tangible cause of action and the plaintiffs lack locus standi to institute the suit.

After hearing the preliminary objection the learned trial Judge dismissed same and assumed jurisdiction. Being aggrieved by the decision, the appellants appealed to this Court vide a notice of appeal filed on 6/09/2016. It contains four (4) grounds of appeal. At the hearing of the appeal on 5/04/2022, the appellants’ counsel was not in Court. The registrar informed the Court that the appellants’ counsel was duly served with a hearing notice through phone call on 30/3/2022. Yunusa Y. Bamidele who appeared for the respondents urged the Court to deem the appellants’ brief of argument filed on 24/11/2016 as having been duly argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules 2021. The appellants’ brief of argument was accordingly deemed as argued. The respondents’ counsel adopted the respondents’ brief of argument filed on 11/01/2017. He urge the Court to dismiss the appeal and affirm the decision of the lower Court. From the four grounds of appeal the appellants distilled four issues for determination, thus:
(1). Whether the appellant had disclosed such facts as may deem sufficient to entitle the trial lower Court incompetent to entertain the instant suit considering the annexed Exh A, B and B1 to the notice of preliminary objection of the defendants (now appellants) dated 9/5/2016.
(2) Whether the trial lower Court was not in error to have assumed jurisdiction in a matter that the plaintiff’s claim is seeking the taking over and surrendering of the 3td defendant company incorporated under part A of CAMA 1999 which ordinarily is within the exclusive jurisdiction of the Federal High Court as confirmed in Section 251(1)(e) of the CFRN 1999 with amendments.
(3) Whether the trial lower Court was not in error when he ruled that the plaintiffs (now respondent) have requisite cause of action in a matter which none of the plaintiffs have the right to sue in a representative capacity to sue on behalf of late Shakh Auwal Adam Albaniy when the same deceased Shakh equally stated in the EXH. B & B1 attached to the 1st–3rd defendants affidavit in support to the Notice of Preliminary Objection in pages 45 -58 of the record is very clear about the declaration of the late Shahk Albaniy that he is not the owner of all the organs connected to the defendant apart from the shares he subscribed to in the Exhibit A attached to the defendants’ Notice of preliminary objection dated 9/5/2016.
(4) Whether the trial lower Court was not in error when he delivered ruling on the 12/8/2016 during the Court annual vacation without consent of the Chief Justice of Kaduna State contrary to Order 42 Rule 3 & 4 of Kaduna State Civil Procedure Rules 2007.

​The respondents adopted the issues submitted by the appellant. The general rule is that an appellate Court has a duty to consider all the issues placed before. But if it is of the view that a consideration of one is enough to dispose of the appeal, it is not under any obligation to consider all the other issues submitted. See 7Up Bottling Co v. Abiola & Sons (2001) 6 SC 82. 

An issue in an appeal should be a proposition of law or fact so cogent, weighty and compelling. It brings into clear focus and precision the main points involved in the appeal. 

An appellate Court is not bound by the issues formulated by the appellants and it has the power to reframe the issues. Throughout my experience, I have never come across issues such as the one submitted by the appellants. It is incoherent and inconsistent with the art of brief writing, which is a very important aspect of appellate trial that requires utmost skill. It is a function which require great skill and expertise. And that can only be acquired by a serious application of an organized professional mind. There is generally a steady decline in the standard of professional responsibility due to lack of seriousness of some members of the profession. A word is enough for the wise.

The simple straightforward issue which calls for determination in this appeal is thus:
“Whether the learned trial Judge rightly dismissed the preliminary objection and assumed jurisdiction”.

The appellants’ counsel submitted that from the writ of summons and statement of claim, it is clear that the claims are within the exclusive jurisdiction of the Federal High Court as per the provision of Section 251(1)(e) of the Constitution of the FRN 1999 (as amended). The claim has to do with the surrender of the 3rd appellant, appointment of members and Management among others. The trial Judge erred and held that it is only the 3rd defendant that has been registered and not the foundation itself and therefore the foundation is not an incorporated company which is not within the exclusive jurisdiction of the Federal High Court thereby vesting the Court with all the requisite jurisdiction to determine the case. The ruling of the trial Court did not take into consideration the claim against the 3rd defendant which is exclusively within the jurisdiction of the Federal High Court as conferred by Section 251(1)(e) of the Constitution of the FRN 1999 (as amended). He relied on the case of Abiola v. First City Merchant Bank Ltd (2013) 4 SCNJ 255 at 258. The learned counsel submitted that going by the deposition on oath of the eldest son and the annexed Exhibit B, B1 to the affidavit in support of the preliminary objection, the late Shaykh Muhammad Auwal Adam Albaniy expressly stated that the 3rd defendant company and other relevant bodies mentioned under the name Daarul Hadeethis Salafiyyah are not mine and all his family members are prohibited from claiming ownership of same. But yet the learned trial Judge held that the plaintiff possessed locus to institute the instant suit. Learned counsel submitted that a party bringing a case to the Court must have a vested interest in the issues raised and its outcome. All the plaintiffs/respondents herein are not members of/or shareholders in the 3rd defendant company and therefore they have no locus standi to file the suit. And from Exhibit A annexed to the notice of preliminary objection, late Sheikh Muhammad Auwal Adam Albaniy had disqualified his entire family members from inheriting the relevant bodies mentioned.

​The appellants’ counsel submitted that the rules of Court are meant to be obeyed. Order 42 Rule 3, 4, and 5 (1)(a) and (b) provide for days of sitting and long vacation. The defendants (now appellants) argued the notice of preliminary objection on 12th June, 2016 and ruling was adjourned at the instance of the Court on a date to be communicated by the Court after vacation in September, 2016. But without any issue of urgency nor at the request of all the parties concerned the trial Judge sat on 12th August, 2016 during vacation and delivered ruling without due regard to the provision of Order 42 Rule 5 (1) (a) and (b) of the Kaduna State High Court Civil Procedure Rules 2007.

The learned counsel urge the Court to set aside the ruling delivered during vacation. In his own response, the learned respondents’ counsel submitted that it is the writ of summons and the statement of claim that is considered in determining the issue of jurisdiction. He cited the case of Usman v. Baba (2005) 5 NWLR (Pt. 917) 113 and Adeyemi v. Opeyori (1976) 9–10 SC 31; Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) 446. Learned counsel submitted that the lower Court possess the requisite jurisdiction to entertain the suit same not falling within the provision of Section 251 (1) (e) of the 1999 Constitution. And from the averments in the statement of claim the 1st–3rd respondents are seeking for an Order directing the defendants to surrender the foundation (Daarul Hadeeths Salafiyyah) and all organs established by late Shaykh Albaniy Zaria to the Court below with a view to appoint competent, credible honest, respected, reputable and trustworthy persons to handle it because of the appellants deviating from the vision, philosophy and purpose for which the Foundation was established. Exhibit B and B1 annexed to the appellants’ preliminary objection states that all the (C of Os) and building structures and any plots bears Daarul Hadeethis Salfiyyah, Albaniy Science Academy, Albaniy University of Science and Technology and Albaniy Orphanage and Motherless Baby Home are solemnly own by Daarul Hadeethis Salafiyyah and Daarul Hadeethis Salafiyyah is not an incorporated body not having been registered with the corporate Affairs Commission (CAC). He cited the case of NBA v. Fawehinmi (1989) 2 NWLR 224. The facts as stated in the 1st–3rd respondents’ statement of claim did not fall within any of the items provided in Section 251(1)(a)-(e) of the 1999 Constitution. Learned counsel submitted that to commence an action against a company or any unincorporated body, one does not have to be a shareholder or Director of the company or Unincorporated body. It is a misconception of the law for the appellants to argue that the 1st–3rd respondents lack the locus standi to initiate the suit because they are neither directors nor shareholders of the 3rd defendant/appellants. The 3rd appellant is only one out of numerous properties and organs of late Shaykh Albaniy Zaria. At best the name of the 3rd appellant can be struck out in the suit and that will not affect the substratum of the 1st–3rd respondents’ suits before the Court. Learned counsel cited the case of Adesokan v. Adegorolu (1997) 3 NWLR (Pt. 493) 261. Learned counsel submitted that the statement of claim discloses a tangible cause of action and the 1st–3rd respondents not only have the locus standi but they have vested interest in the foundation established by their late son/brother. There is no averment in the statement of claim where the issue of inheritance of the foundation, estate or properties left behind by late Shaykh Albaniy Zaria is raised and Exhibit A, B & B1 did not make any Gift or Wakf as contended by the appellants to confer jurisdiction on Sharia Court of Appeal.

In relation to Order 42 Rule 5(1)(b) of the Kaduna State High Court Civil Procedure Rules 2007, the learned counsel submitted that the learned trial Judge was the vacation Judge at the time the ruling was delivered. And all parties were notified before the ruling was delivered, therefore the appellants cannot be heard to complain at this stage hence they were represented by Mr. Abubakar Hussaini Esq who held the brief of Mr. Suleiman Umar Esq for the appellants. He referred to page 68 of the record.

Firstly, on the days of sitting and long vacation pursuant to Order 42 Rule 3, 4, 5(1)(a) of Kaduna State High Court Civil Procedure Rules 2007. The appellants’ counsel did not state any law or provision of the Rules which provides that any ruling or judgment delivered during vacation is a nullity. More particularly in this instant case the learned trial Judge delivered the ruling on the said date while she was the vacation Judge. The Court does not act in vain it must be guided by law and rules of procedure. The issue canvassed herein by appellants’ counsel is without any legal bases and same is accordingly discountenanced.

The main issue arising in this appeal is as to whether the High Court of Kaduna State had jurisdiction to hear and determine the action which was brought before it by the 1st
–3rd respondents against the appellants in view of Section 251(1)(e) of the Constitution of the F.R.N 1999 (as amended). After considering the notice of preliminary objection filed by the appellants, the learned trial Judge ruled as follows:
“To answer issue number one it is trite law that it is the plaintiffs’ claim that determines the jurisdiction of a Court to determine a suit and the question of jurisdiction is determined by the nature of the plaintiffs’ claim. See A. G. Anambra State & Ors v. A. G. Fed. & Ors (1993) 6 NWLR (Pt. 302) 692 at 742; C.G.G (Nig) Ltd v. Ogu (2005) SC Pg. 215 Para C-E.
Now to answer this recourse must be had to the plaintiffs’ statement of claim and the facts contained therein paragraph 43(a)(b) and (c) refers wherein the plaintiffs are seeking for an order of this Court directing the defendants to surrender the foundation and all organs established by late Sheik Albaniy to this Court forthwith as well as for this Court to direct the plaintiffs to set up a committee of respected and credible individuals to manage the affairs of the foundation. Finally seeking for the order of this Court to compel the defendants to account for all the organs of the foundation.
The defendants are of the contention that the properties of which the plaintiff are suing is an incorporated company thereby it falls within the exclusive jurisdiction of the Federal High Court by virtue of the provision of Section 251(1)(e) of the Constitution, Federal Republic of Nigeria 1999 (as amended). A critical look at Exhibit A and B, B1 respectively Exhibit A is the certificate of incorporation of the 3rd defendant whereas Exhibit B & B1 are the handwritten declaration that the properties subject matter of the plaintiffs’ claim are the properties of the foundation and devoid of inheritance. The question that comes to mind is whether the foundation is registered with the CAC thereby vesting exclusive jurisdiction in the Federal High Court. Exhibit A reveals that it is only the 3rd defendant that has been registered with CAC. However, Exhibit B, B1 contains the following…
“…do testify that all the (C of Os) and building structures and any plot bears Daarul Hadeethi Salafiyyah Albaniy Science Academy, Saudatu Science Academy, Albaniy University of Science and Technology and Albaniy Orphanage and motherless baby home are solemnly own by Daarul Hadeethis Salafiyyah not mine and …”
This shows that all the items stated in Exhibit B & B1 are the organs of Daarul Hadeethis foundation including the 3rd defendant. However, it is only the 3rd defendant that has been registered and not the foundation itself therefore the foundation is not in an incorporated company and therefore not within the exclusive jurisdiction of the Federal High Court thereby vesting this Court with all the requisite jurisdiction to determine same.”

​From the excerpts of the judgment, it is clear that the foundation is not a registered incorporation to bring it within the ambit of Section 251(1)(e) of the Constitution of the F.R.N 1999 (as amended). The said Section provides thus;
“251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the Natural Assembly the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters:
(e) arising from the operation of the companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act.”
It is without any doubt that the suit in this instant case was not instituted against the 3rd defendant per se in terms of its operation and/or management. The suit was initiated against the defendants in relation to the management of the foundation which is not incorporated. The fact that a company or body is registered under the Companies and Allied Matters Act does not qualify every action brought by or against it as “matters arising from the operations of companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act,” as contemplated by the provisions of Section 251(1)(e) of the Constitution. Where the dispute does not involve the control or administration of company and deals with ordinary routine business of a company, the State High Court will have the jurisdiction to entertain and determine the matter. It does not fall within the exclusive jurisdiction of the Federal High Court. Consequently, the learned trial Judge rightly dismissed the preliminary objection and assumed jurisdiction.

There is no appeal against the interlocutory decision of the lower Court granting ex parte order to allow the respondents sue in representative capacity. Therefore, it is too late in the day for the appellants to argue that the respondents do not have the legal capacity to commence the suit. The learned trial Judge rightly held thus:
“On the second issue whether the plaintiffs have the locus standi to institute this suit the position of the law is an in an unincorporated Association like the foundation in the instant suit can sue and be sued. It can sue in a representative capacity and can equally sue through some of its members as representatives of the association. See Fawehinmi v. N.B.A (supra), UBN Plc v. NTUK (2003) 16 NWLR (Pt. 845)183; Abakaliki L.G.C v. Abakaliki R.M.O (1990) 6 NWLR (Pt. 155) 182. The plaintiffs having sought and obtained an order on the 28/04/16 to sue in a representative capacity and even though they are not members of Daarul Hadeethis are the most desirable and necessary parties with all the requisite locus standi to institute this suit so as to uphold and continue the legacy, unslies and humanitarian work of their deceased son and brother.”

Consequent to the above, the appeal lacks merit and it is accordingly dismissed. The ruling of the High Court of Justice Kaduna State delivered on the 12th August 2016 in Suit No: KDH/Z/79/2016 is hereby affirmed. No order as to cost.

AMINA AUDI WAMBAI, J.C.A.: I agree.

BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother A. M. Talba, JCA. I agree with and adopt as mine the finding and conclusion reached in the lead judgment by my learned brother that this appeal lacks merit. I also dismiss same and abide by the order as to cost.

Appearances:

M. S. Usman Esq. For Appellant(s)

Yunusa Y. Bamidele Esq. For Respondent(s)