AHMED v. SAHAB ENTERPRISES (NIG) LTD & ORS
(2022)LCN/16116(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Thursday, July 28, 2022
CA/K/585/2018
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
ALHAJI IBRAHIM AHMED APPELANT(S)
And
1. SAHAB ENTERPRISES NIGERIA LIMITED 2. MINISTRY OF LAND AND PHYSICAL PLANNING, KANO STATE 3. UNITED BANK FOR AFRICA PLC RESPONDENT(S)
RATIO
A JUDGEMENT ON MERIT
The judgment now sought to be set aside is based on a product of assessment and evaluation of evidence of witnesses and the determination of the entitlement of the plaintiff to the reliefs sought. In my view, it qualifies as a judgment on the merit rather than a default judgment having determined the rights of the parties in respect of the subject matter of the action on the basis of the evidence. (underlining provided for emphasis). See UTC (NIG) LTD V. PAMOTEI (1989) 2 NWLR (Pt. 103) 244 and PAUL CARDOSO V. JOHN BANKOLE DANIEL (1986) 2 NWLR (Pt. 21) 1. See pages 18-19 of the judgment. PER MUSALE, J.C.A.
THE POSITION OF LAW ON THE ABUSE OF COURT PROCESS
Any process filed in contravention of that principle is an abuse of process of Court and so deserves the big hammer of the Court striking it out or even dismissing it: See Saraki & Anor v. Kotoye (1992) LPELR-3016 (SC); (1992) NWLR (Pt. 264) 156; Arubo v. Aiyeleru ((1993) LPELR-566 (SC). That is the fate of this appeal; accordingly, it is also declared incompetent by me and struck out. PER UGO, J.C.A.
USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Kano State High Court delivered by Ibrahim Musa Karaye, J. on 21st day of July, 2011 in Suit No. K/173/2009.
Pursuant to the advertisement of public auction by Sunday Vanguard of 9th April, 1995, the 1st respondent bought from the 3rd respondent, as an unpaid mortgagee, Plot No. 62, Hotoro GRA, Nasarawa District, Kano covered by Certificate of Occupancy No. LKN/RES/RC/82/606. That this was done after his Solicitor did the necessary investigation in the Land and Survey Department. In May, 1995 the auctioneer sent the original certificate of occupancy to the 1st respondent’s counsel and in July, 1995 the 3rd respondent sent the duly executed Deed of Assignment to the 1st respondent’s counsel. Upon that, the 1st respondent’s counsel went to the Land Registry, Kano to effect the registration of the Deed of Assignment. However, the file relating to the property was not found. But before then, counsel had confirmed;
1. That the property being offered for auction belonged to one Alhaji Ibrahim Isah Abdullahi who had mortgaged same to the 3rd respondent on the 18th August 1987 and was also surety to the loan.
2. That the said mortgage was duly registered after the necessary consent was obtained.
That the 1st respondent’s counsel discovered that the appellant had complained to the Land Registry that the property belonged to him. The 1st respondent is yet to register the Deed and acquire possession.
The 1st respondent/plaintiff took out a writ of summons dated 22nd April, 2009 wherein he prayed for the declarations contained in his statement of claim, pages 10–11 of the record of appeal. To prove the claims, the 1st respondent called two witnesses and tendered six exhibits. The appellant failed/neglected to file defence at the lower Court. That notification of hearing dates were served on the appellant. The 2nd respondent was neither represented nor present at the trial. The 3rd respondent was represented during the trial.
Above is as presented by the plaintiff/1st respondent.
After hearing the matter, the lower Court held that:
“In view of all of the above therefore I hereby hold that the plaintiff has established his case and is entitled to judgment. Consequently, the following declaration and orders are hereby granted accordingly:
(1) That the property known as plot No. 62 Hotoro GRA Nasarawa District Kano is covered by a Certificate of Occupancy No. LKN/RES/RC/82/606 which certificate is valid and subsisting.
(2) That the plaintiff is the holder of Certificate of Occupancy No. LKN/RES/RC/82/606 having acquired same from the 3rd defendant as an unpaid mortgagee through an auctioneer.
(3) That the title of the property known as Plot 62 Hotoro GRA Nasarawa District, Kano resides solely in the plaintiff having properly and legally acquired same from the 3rd defendant as unpaid mortgagee and through a licensed auctioneer.
(4) That the Ministry of lands and Physical Planning, Kano State shall register the Deed of Assignment transferring title from the 3rd defendant to the plaintiff.
(5) That the 1st defendant is perpetually restrained either by his servants, agents, privies or whosoever from interfering with the property known as Plot No. 62 Hotoro Road GRA Nasarawa District Kano.
(6) That the certificate of occupancy No. LKN/RES/83/202 in as much as it covers or purports to be in respect of Plot 62 Hotoro GRA Nasarawa District, Kano in the name of the 1st defendant is null and void.
(7) An account of rent collected over the property by the 1st defendant from 1995 until the date of the determination of this case shall be made.
(8) The 3rd defendant shall hand over to the plaintiff vacant possession of the property known as plot No. 62 Hotoro GRA Nasarawa District Kano having sold the said property to it.”
Being dissatisfied with the lower Court’s decision, the appellant filed in this appeal. The Notice of Appeal has 5 grounds as hereunder reproduced excluding their particulars;
I. The learned trial Judge erred in law when he entered judgment in favour of the Plaintiff/1st respondent when the Plaintiff has failed woefully to discharge the burden of proof on it on the balance of probability as provided under Section 13 of the Evidence Act.
II. The learned trial Judge erred in law when it entered judgment in favour of the Plaintiff/1st Respondent when none of the essential elements/means of proof of title to land were proved by the plaintiff/1st Respondent before it to warrant conferring title/ownership of the land on the Plaintiff.”
III. The lower Court erred in law when it shut out the appellant by refusing to serve the appellant with hearing notice of some of its proceedings in the matter.
IV. The learned trial Judge erred in law when he entered judgment in favour of the plaintiff in this matter in which the plaintiff claimed to have acquired the property in dispute from the 3rd defendant/respondent as unpaid mortgagee without joining the mortgagor as co-defendant in this matter.
V. The whole judgment is against the weight of evidence.
The appellant filed his brief of argument on 6/3/2019 and reply brief on 26/10/2021. The 1st respondent filed his brief on 24/6/2020 which was deemed properly filed on 13/10/2021.
Ajagbe Esq of learned counsel to the appellant settled appellant’s brief of argument, wherein he formulated four issues for the determination of the appeal as follows;
(1) Whether having regard to the facts, evidence as well as the entire proceedings of the lower Court (especially the proceedings of 24/2/11 and that of 22/3/2011 without service of hearing notices) the Appellant could be said to, have been given fair hearing in the matter. (Distilled from ground III).
(2) Whether having regard to the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Appellant could be said to have been given fair hearing in this matter. (Distilled from ground IV)
(3) Whether having regard to the lack of service of hearing notices on the Appellant in this case, the jurisdiction of the lower Court to hear and determine the matter has not been vitiated. (Distilled from grounds II & V)
(4) Whether from the evidence placed before the Court the Plaintiff (now 1st Respondent) could be said to have proved his title to house No. 62, Hotoro G.R.A, Kano covered by Certificate of Occupancy No. LKN/RES/83/202 vide any of the five (5) ways judicially known to law for proving title to land. (Distilled from ground I)
The learned counsel to the 1st respondent, Bayo Funso Adaromola who settled the 1st respondent’s brief of argument adopted the four issues formulated by the appellant and formulated additional issue as follows:
(5) “Whether this Honorable Court of Appeal having made finding of facts as touching on whether the lower Court failed to give the Appellant fair hearing as guaranteed by the provision of Section 36 (1) of the Constitution of the Federal Republic of Nigeria in Appeal No. CA/K/302/2013 Decided on the 10th Day of June, 2016 can re-visit the issue in this appeal.”
Considering the above, the 1st respondent’s counsel did not state from or on which of the grounds of appeal he based the additional issue for determination. I do not want to waste my judicial time on that issue. What called for my attention is the decision of this Court in Appeal No. CA/K/302/2013 delivered on 10th June,2016. Learned counsel to the 1st respondent that raised the issue did not exhibit/attach the judgment for my attention. In ROSSEK & ORS V. ACB LTD & ORS (1993) LPELR–2955 (SC), Uwais, JSC (as he then was) later CJN inter alia held that;
“It is settled law that a previous decision of any Division of the Court of Appeal is binding on all the Justices of that Court”.
For this reason, I insisted on having the said judgment before delivering this judgment.
On a closer look at issues 1, 2 and 3 formulated by the appellant, it can easily be deduced that the issues revolve around one main issue;
Whether having regard to the failure of the lower Court to serve the appellant with the requisite hearing notices, particularly on 24/02/11 and 22/03/11 the right of the appellant as enshrined in Section 36(1) of the 1999 Constitution (as amended) had not been breached.
In his submission, the learned counsel to the appellant emphasized that this Court did not affirm the judgment of the lower Court in Appeal No. CA/K/302/2013 dated 10/06/2016. That it only affirmed the refusal of the lower Court to set aside its default judgment dated 21st/07/2011. He contended that this appeal, Appeal No. CA/K/585/2018 is against the substantive judgment of the lower Court in Suit No. K/173/2019.
Counsel submitted that when hearing started on 24/02/2011, no hearing notice was served on the appellant and that much was admitted by counsel to the 1st respondent. He referred to page 41 paragraphs 2-3 of the record. That the appellant was not given the opportunity to cross-examine the 1st respondent’s witnesses and the right to file defence. That a look at the proceedings of the lower Court from 24/02/2011 to 17/05/2011 revealed that the appellant was not given fair hearing. On the test of fair hearing, he relied on OGUNSANYA V. THE STATE (2011) 12 NWLR (Pt. 1261) 401, IJEOMA V. THE STATE (1990) 6 NWLR (Pt. 158) 567 and MOHAMMED V. KANO NA (1968) ALL NLR 424 among others.
The learned counsel concluded that none of the hearing notices issued as indicated on pages 170–174 of the record was against 24/2/2011, 23/3/2011, 5/4/2011, 17/5/2011 and 21/7/2011 when the case was heard and determined by the lower Court. He urged the Court to hold that the proceedings on the dates indicated supra were done in breach of the principle of fair hearing.
In response to this issue, the learned counsel to the 1st respondent submitted that this appeal is an ingenious attempt by the appellant to invite this Court to sit on appeal over its earlier decision. He relied on CHUKWUKA V. ATTORNEY GENERAL OF OYO STATE (No. 2) (1987) 2 NWLR (Pt. 56) 197 and ONUAGULUCHI V. NDU (2001) 7 NWLR (Pt. 712) 309 at 322–323. He urged the Court to strike out Issues 1, 2 and 3 of the appellant’s brief for being a surreptitious attempt to invite the Court to sit on appeal over its previous judgment.
This Court in Appeal No. CA/K/302/2013 delivered a judgment on 10th June, 2016. The appeal emanated from the same lower Court. The same parties and the same Suit No at the lower Court.
According to the 1st respondent, hearing this appeal will amount to sitting on appeal against earlier decision of this Court, while the appellant stood on a different ground. In my opinion, we have to look at what this Court decided in Appeal No. CA/K/302/2013 and compare with what the appellant is now seeking before this Court. Where the grounds are the same or substantially similar, then certainly making a pronouncement again on the grounds would be contrary to Order 23 Rule 4 of the Court of Appeal Rules,2021 which provides;
“The Court shall not review any judgment once given and delivered by it … A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative substantial part of it be varied and a different form be substituted.”
The appellant in the previous appeal, formulated the following issues for the determination of the appeal as distilled from the grounds of appeal;
1. Whether having regard to the circumstances of this case, the lower Court ought to have all its orders and directions as contained in its judgment given in default of defence set aside.
2. Whether a defendant is entitled to be heard if such a defendant proposes a defence to the action against him and refusal by the lower Court to hear the appellant in this matter particularly when there was this proposed statement of defence to the action.
3. Whether failure of the lower Court to effect service of hearing notices of all its proceedings on the parties including the appellant is fatal to the decision of the Court and its jurisdiction to determine the matter.
This Court in its judgment of 10th June, 2016 made the following observation;
“Briefly stated, the contention, argument and submission of the learned counsel for the appellant on the three issues formulated in his brief of argument as well as in the Appellant’s Reply Brief filed on 6/01/16 but deemed filed on 28/01/16 and to which the 1st Respondent’s learned counsel had responded in his own brief of argument are that the application before the trial Court for setting aside the judgment of that Court delivered on 21/07/2011 ought to have been granted for the reasons that the necessary hearing notices were not properly issued and served on the applicant now appellant and that this failure to properly serve hearing notice at the trial denied the appellant his constitutional right to fair hearing as he was not given the opportunity to state his own case which has rendered the judgment a nullity and liable to be set aside even by that Court.”
Page 11 of the judgment.
The issue identified by this Court captured the first three issues formulated by the appellant in the appeal now before us. At the risk of repetition, the issues are hereunder reproduced;
(1) Whether having regard to the facts, evidence as well as the entire proceedings of the lower Court (especially the proceedings of 24/2/11 and that of 22/3/2011 without service of hearing notices) the Appellant could be said to, have been given fair hearing in the matter. (Distilled from ground III).
(2) Whether having regard to the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Appellant could be said to have been given fair hearing in this matter. (Distilled from ground 1V).
(3) Whether having regard to the lack of service of hearing notices on the Appellant in this case, the jurisdiction of the lower Court to hear and determine the matter has not been vitiated. (Distilled from grounds II & V)
The 4th Issue has to do with evaluation of evidence.
The issues before this Court for determination as presented by the appellant simply are;
1. Failure to serve hearing notices. Captured by Issues 1, 2 and 3.
2. Evaluation of evidence as captured by Issue 4.
3. The status of the judgment of the lower Court.
In determining the three issues above, in no particular order, this Court in its judgment on page 18 inter alia held;
Notwithstanding the failure of the defendants to file statement of defence, the learned trial Judge appraised, assessed and evaluated the evidence of the witnesses in the case before finding in favour of the plaintiff.
The judgment now sought to be set aside is based on a product of assessment and evaluation of evidence of witnesses and the determination of the entitlement of the plaintiff to the reliefs sought. In my view, it qualifies as a judgment on the merit rather than a default judgment having determined the rights of the parties in respect of the subject matter of the action on the basis of the evidence. (underlining provided for emphasis). See UTC (NIG) LTD V. PAMOTEI (1989) 2 NWLR (Pt. 103) 244 and PAUL CARDOSO V. JOHN BANKOLE DANIEL (1986) 2 NWLR (Pt. 21) 1. See pages 18-19 of the judgment.
On hearing notices, this Court captured the scenario in the lower Court at page 255 of the record of appeal;
“In the instant case, the 1st Defendant/Applicant was served with all the processes of this Court in respect of the matter, in fact, he was represented by one Nabahani Usman appearing with Mr. Haruna Saleh on 27/07/09. Nabahani Usman also represented the 1st Defendant/Applicant on 27/10/09. From then on, the 1st defendant refused, failed and neglected to appear up to the day of judgment was (sic) delivered on the 21/7/11. The 1st defendant/applicant also failed, refused and neglected to file any defence to the action.”
This Court concluded with the following;
This finding of the trial Court correctly shows what transpired in the Court as borne out by the record which I had earlier set out in this judgment.”
See page 20 of the judgment.
This Court agreed that the right to fair hearing is constitutionally guaranteed to every citizen in the determination of his right and entitlements by virtue of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). That breach of this right in trials or proceedings in Court vitiates the trial and renders it null and void. This right is founded by rules of Natural Justice of audi alteram partem and nemo judex in causa sua. See A G RIVERS STATE V. UDE (2006) 17 NWLR (Pt. 1008) 436 and MAGAJI V. NIGERIAN ARMY (2008) 8 NWLR (Pt. 1089) 338. See pages 21 and 22 of the judgment.
This Court continued that where the appellant was served with originating processes in the suit, filed memorandum of appearance but refused to file a defence, attended the proceedings of the trial Court on some occasions but stayed away from Court even when he received notifications which he and counsel ignored, was in my view laying an ambush for the Court under the guise of breach of his fundamental right to fair hearing. I am of the view that it was the appellant that refused to utilize the fair hearing environment created for him by the trial Court. See pages 22 and 23 of the judgment.
In conclusion, My Lord Akeju, JCA (with whom Abiru and Adefope-Okojie JJCA concurred) held;
“In the final analysis, I have to state that I have considered the three issues formulated in this appeal and o resolve them against the appellant. The appeal therefore fails and it is dismissed for want of merit.”
In my view, this appeal is a waste of judicial time. I did not see the wisdom in counsel filing an appeal against a ruling of the lower Court, for refusing to set aside a judgment when the judgment is already there to be appealed against. Having found that this Court had made a pronouncement in Appeal No. CA/K/302/2013 on all the issues before us in Appeal No. CA/K/585/18, it would certainly amount to sitting on appeal over the issues if a pronouncement is made on them. For this reason, the appeal is dismissed for being incompetent. Cost of N50,000 against the appellant in favour of the 1st respondent.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion reached by my learned brother, A. U. Musale, JCA, that this appeal is incompetent. I adopt his said reasons and conclusion and dismiss the appeal, and abide by the consequential orders in the lead judgment.
BOLOUKUROMO MOSES UGO, J.C.A.: I have earlier read in draft form, the leading judgment of my learned brother USMAN ALHAJI MUSALE, J.C.A. I am in agreement with his Lordship’s reasoning and conclusion that the appellant in the instant appeal is clearly seeking this Court’s second opinion on issues that have been decided against him by this same Court in Appeal No CA/K/302/2013. Unless it is shown that a previous decision of Court is a nullity, no Court possesses jurisdiction to sit over its decision. Any process filed in contravention of that principle is an abuse of process of Court and so deserves the big hammer of the Court striking it out or even dismissing it: See Saraki & Anor v. Kotoye (1992) LPELR-3016 (SC); (1992) NWLR (Pt. 264) 156; Arubo v. Aiyeleru ((1993) LPELR-566 (SC). That is the fate of this appeal; accordingly, it is also declared incompetent by me and struck out.
I abide by the order of costs contained in the leading judgment.
Appearances:
Dapo Ajagbe, Esq, For Appellant(s)
Bayo Funso Adaramola, Esq, Jp, with him, Gaffar Gbenga Oroyinyin, Esq, Muhammed S. Tirmizi, Esq, Abubakar S. Muhaammad, Esq, Suraiya S. Yakubu, Esq, and Emanuel Audu, Esq, – for 1st Respondent For Respondent(s)