ALH. AUDU TURAKI & ANOR v. ALHAJI SALLAU ABDULRAHAM
(2019)LCN/12798(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/J/218/2007(R)
RATIO
INTERPRETATION
“In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ‘determine’ as meaning ‘make an end of the matter.’ In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.” In Baba vs. Civil Aviation (1991) 6 SCNJ 1, Karibi-Whyte, JSC held at page 25 that: – The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel. ‘Decision has been defined in Section 318(1) of the Constitution but is restricted ?in this constitution etc. An ‘opinion’ is employed by the legislature in Section 294(2) of the Constitution through the word is not defined in Section 318(1) of the Constitution nor the Interpretation Act Cap 23, Laws of the Federal Republic of Nigeria 2004.” PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. ALH. AUDU TURAKI
2. ALH. GARBA MAIKARKASHI
-APPELLANTS/RESPONDENTS Appellant(s)
AND
ALHAJI SALLAU ABDULRAHAM
-RESPONDENT/APPLICANT Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Lead Ruling):
By a motion on notice dated 13/6/2016 and filed on 14/6/2016, respondent/applicant prays for an order of this Court:
1. To strike out the name of the 1st Appellant and the entire appeal No. CA/J/218/2007.
2. AND for further order or orders as the Honourable Court may deem fit to make in the interest of justice.
The grounds for the application are as follows:
i) That the 1st Appellant died since November 9, 2015.
ii) That only the 1st appellant was contesting the post of Sarkin Hausawan with the Respondent.
iii) That the death of the 1st Appellant made the appeal to be dead as the appeal does not survive.
The application is supported by;
(i) an 11 – paragraph affidavit deposed by the respondent;
(ii) a written address filed on 30/1/2018 on the order of this Court made on 18/1/2018; and
(iii) a reply on points of law filed on 16/2/2018.
In opposing the application, the 2nd appellant/respondent filed;
(i)a 23 – paragraph counter – affidavit deposed to by the 2nd appellant/respondent, with 5 exhibits attached to it; and
(ii) a written address filed on 9/2/2018 pursuant to the order of this Court.
The motion came for hearing on 23/1/2019. Amuwa Olatunde, Esq., for respondent/applicant moved the motion, adopting and relying on the processes filed on behalf of the respondent/applicant. He prayed the Court to allow the application.
Miss E. N. Tionsha for the 2nd appellant/respondent referred to and relied on the processes filed on his behalf in urging the Court to strike out the name of the 1st appellant and to refuse to strike out the appeal.
In his written address, counsel for respondent/applicant raised two issues for the Court?s determination. The issues are:
i) Whether or not the Honourable Court can exercise jurisdiction over this appeal and determine same, following the demise of the 1st Appellant/Respondent as well as Alhaji Ibrahim Modibbo.
ii) Where (i) above is answered in the negative, whether or not the Honourable Court ought to strike out the name of the 1st Appellant/Respondent as well as the entire appeal from the cause list.
Arguing issue 1, counsel urged this Court to enter a negative answer to the issue and hold that the Court has been stripped of jurisdiction to sit over the appeal following the death of the 1st respondent as well as Alhaji Ibrahim Modibbo. He referred to the claim before the trial Court and stated that in delivering its judgment, the trial Court had to decide which of the two rival constitutions was the right one. It was his submission that the main claim before the trial Court (and invariably this Court) was as to who should be the Sarkin Hausawa between deceased 1st appellant and Alhaji Ibrahim Modibbo (deceased). It was his further submission that the issue as to which of two constitutions is the authentic one would automatically determine who the right Sarkin Hausawa is. He contended that the determination of the appeal would result in a nullity as the 1st appellant is dead and a new person is now Sarkin Hausawan. He stressed that the main issue of who is entitled to be Sarkin Hausawan between the deceased persons is dead and a mere academic exercise. He further contended that the issue of which of the two constitutions is authentic cannot stand independently of the main issue as it cannot be decided without considering the main issue, which, he said, is dead. He placed reliance on Tukur V Governor, Gongola State (1989) 14 NWLR (Pt. 117).
He pointed out that the determination of the issue of the two Constitutions will by and large affect the dead parties, particularly the deceased 1st appellant. He referred to Order 15 Rule 3 of the Court of Appeal Rules, 2016.
In respect of issue 2, counsel offered a lengthy argument on which of the two Constitutions is the authentic one. This is completely out of the orbit of issue (ii) framed by him. Besides, the point cannot be taken at this interlocutory stage. I therefore discountenance the argument of counsel in issue ii as being unrelated to the issue. That leaves the issue unargued and therefore abandoned. As a result, I hereby strike out the issue as having been abandoned.
On his part, counsel for the appellants/respondents conceded to the striking out of the name of the 1st appellant/respondent on account of his demise. He however opposed the striking out of the appeal and raised one issue for determination, viz:
Whether this appeal survives the deceased 1st appellant.
He straightaway gave an affirmative answer to the issue. After giving a synopsis of the facts of the case leading to this appeal, he stated that in grounds 2 and 3 of the grounds of appeal, the appellants challenge the decision of the trial Court accepting Exhibit H as the authentic Constitution of the Hausawan Community, Makurdi as against Exhibit J. He stated that the respondent was substituted for the deceased Alhaji Ibrahim Modibbo and that with the death of the 1st appellant/respondent, the only live issue in the appeal is the question of which of the two Constitutions is authentic. It was his view that as the Chairman of the Board of Trustees of Hausawa Community, Makurdi, the presence of the 2nd appellant is sufficient to determine the live issue.
Counsel contended that the judgment of the trial Court made the authencity of the Constitution an issue for determination when it accepted Exhibit H as against Exhibit J. He contended that the interpretation of a Constitution or the determination of the genuiness of a Constitution regulating the activities of a community cannot be an issue personal to a party that should abate upon the death of the party as the decision of the Court binds every person subject to that Constitution. He contended that it is a misconception to argue that the issue is auxiliary to the question of the rightful occupant of the stool of Sarkin Hausawan. This, he said, is because the determination of who should rightly occupy the stool is dependent on the interpretation of the Constitution; thus, he opined the challenge to the Constitution cannot be auxiliary to the question of the rightful occupant of the stool.
Counsel further submitted that the issue as to the life of the appeal independent of the question of the rightful occupant of the stool of Sarkin Hausawan Makurdi has already been determined by this Court in the ruling attached as Exhibit 5 to the counter – affidavit. He referred in particular to the opinion of Onyemenam, JCA, therein and contended that the respondent was not substituted to continue the contest as to the rightful occupant of the stool but rather because he was considered a concerned person to determine the appeal against the acceptance of Exhibit H by the trial Court given that he was acclaimed as Sarkin Hausawan after the demise of Alhaji Modibbo.
He stated that the challenge to the life of the appeal amounts to an abuse of Court process and that the application is caught by issue estoppel as well as res judicata.
In his reply, respondent/applicant’s counsel submitted that the ruling relied upon to raise the issue of estoppel is not a final decision and so the concept of estoppel is inapplicable.
In determining this application, it seems to me pertinent to set out, though in brief, the facts of the case leading to the application. They are as follows:
1. Alhaji Ibrahim Modibbo (deceased) was elected the Sarkin Hausawan of Makurdi on 15/8/2004.
2. He was purportedly dethroned by the Board of Trustees of the Sarkin Hausawan Makurdi headed by the 2nd appellant/respondent on 29/11/2004.
3. Alhaji Audu Turaki (1st appellant) was purportedly selected as the new Sarkin Hausawan of Makurdi by the said Board.
4. Aggrieved by the turn of events, Alhaji Ibrahim Modibbo sued the 1st appellant and 2 others including the 2nd appellant/respondent.
5. The trial Court entered judgment in his favour declaring him to still be the Sarkin Hausawan of Makurdi.
6. The judgment of the trial Court was based on its acceptance of Exhibit H tendered by Alhaji Modibbo as the authentic copy of the Constitution of the Hausawan Makurdi as against Exhibit J, the Constitution tendered by the defendants in the case.
7. The defendants appealed against the judgment to this Court.
8. The then respondent Alhaji Modibbo died and was on 10/5/2011 substituted by the 1st respondent (Alhaji Sallau Abdulraham) who said to have been elected as the new Sarkin Hausawan in his place.
9. The High Court of Benue State had in Suit No. MHC/132/2009 on 10/11/2009 declared election of the respondent as Sarkin Hausawan null and void.
Both parties are ad idem that the name of the 1st appellant/respondent should be struck out of the suit as a result of his demise. I agree with them because a dead person ceases to have any legal personality from the moment of his death and therefore cannot sue or be sued. He automatically is beyond the jurisdiction of the Court and cannot therefore continue to be a party in a suit or an appeal. Consequently, I hereby strike out the name of the 1st appellant/respondent from this appeal. Thus the only appellant left for now is Alhaji Garba Maikarkashi.
He was joined in the suit at the trial Court not as one who claimed the stool of Sarkin Hausawan but as one of the persons who purportedly removed the late Alhaji Modibbo as Sarkin Hausawan.
The suit at the trial Court had revolved around the issue as to who between the late Alhaji Ibrahim Modibbo and the late Audu Turaki was the Sarkin Hausawan Makurdi. The trial Court ruled in favour of the late Alhaji Ibrahim Modibbo. With the demise of the two contenders, that issue ordinarily should have ended there. This is because the stool is not said to be hereditary and the late Modibbo sued in his personal capacity.
Nevertheless, this Court in its ruling on 10/5/2011 substituted the respondent for the late Alhaji Ibrahim Modibbo. In the lead ruling, Kekere – Ekun, JCA (now JSC) stated as follows:
From Exhibit A it is clear that a new Sarkin Hausawan in the person of Alhaji Sallau Abdulrahman, the party now sought to be substituted has stepped into the shoes of the deceased respondent. As the Sarkin Hausawan, he would be expected to uphold and implement the provisions of the Constitution of the Hausawan Makurdi.
Indeed it was the alleged failure of the deceased respondent to abide by the provisions of the constitutions that led to his dethronement, which gave rise to the suit before the lower Court. The learned trial judge, in declaring the acts of the 2nd and 3rd defendants (2nd and 3rd appellants herein) an exercise in futility and quashing same, relied on Exhibit H. It is the appellants’ contention that the authentic Constitution of the Hausawan Makurdi is Exhibit J. The very foundation upon which the judgment was based is being challenged in this appeal. Whoever occupies the position of Sarkin Hausawan Makurdi must know which version of constitution to implement. The party now sought to be substituted in this appeal would certainly be affected by the outcome of the appeal. In the event that it succeeds, the decision of the lower Court would be reversed and the 1st appellant’s appointment made after the purported dethronement of the deceased respondent would stand. In effect the party sought to be substituted would be dethroned. It is therefore my humble view that this appeal survives the death of the respondent, as the party sought to be substituted has stepped into his shoes upon his death in accordance with Hausa tradition.
It is clear to me that the decision that the appeal survives was based on the fact that the respondent had stepped into the shoes of the late Alhaji Modibbo as the Sarkin Hausawan; that if the appeal succeeds the deceased 1st appellant?s appointment would stand while the respondent would be dethroned.
The dictum of Onyemenam, JCA, referred to by the appellant was in His Lordship’s contribution wherein His Lordship gave a different reason from that of Kekere – Ekum, JCA (now JSC) for concurring with the lead ruling that the appeal survived the demise of the original respondent, viz; that the appeal involved the interpretation of the Constitution of Hausawan Makurdi. The lead ruling of Kekere – Ekum, JCA (now JSC) stands as the ruling of the Court.
Again, the issue of estoppel per rem judicatum or issue estoppel raised by the appellant/respondent is misconceived. This is because, as rightly pointed out by respondent?s counsel, the decision relied upon for the plea of estoppel must be final and that is not the case in this instance. See Central Bank of Nigeria V Aribo (2018) 4 NWLR (Pt. 1608) 130, 161.
The name of the deceased 1st appellant has already been struck out of the suit. The implication is that no order can be made in his favour if the appeal succeeds. Furthermore, in Exhibit 2 attached to the counter-affidavit of the remaining appellant/respondent (a certified true copy of the judgment of Benue State High Court in Suit No. MHC/132/2009) the election of the respondent (Alhaji Sallau Abdulrahman) was declared null, void and of no effect. Since the two contenders for the throne have died and the selection of respondent has been nullified, none of the two parties left can take the benefit of the reversal or affirmation of the judgment of the trial Court. This is because the appellant cannot be declared the Sarkin Hausawan since he never contested for it and the respondent can also not be Sarkin Hausawan on the basis of this appeal as his selection has been nullified.
What is more by the uncontradicted deposition in paragraph 17 of the counter- affidavit, the incumbent Sarkin Hausawan is one Alhaji Rayyanu Sangami who was elected on 22/11/2015 after the death of the late Alhaji Audu Turaki.
There is no prayer to substitute him for Alhaji Turaki. It is therefore my view that the appeal has become academic.
In the case of Plateau State v Attorney – General of the Federation (2006) 137 LRCN 1400, 1478 Tobi, JSC stated that, A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to the practical situations of human nature and humanity. See also Abubakar v Yar ‘Adua (2008) 4 NWLR (Pt. 1078) 405, 497.
The appellant as I have already stated, will draw no benefit from the success of this appeal as he would not be declared the Sarkin Hausawan Makurdi.
In the case of Ijaodola v University of Ilorin Governing Council (2018) 14 NWLR (Pt. 1638) 32, 45 Rhodes ? Vivour, JSC opined thus,
‘A suit becomes academic when the questions placed before the Court for determination are no longer live issues in the subject matter of the suit, because it is spent and the successful party cannot obtain any right or benefit.’
The subject matter of the suit and the appeal is as to who is the Sarkin Hausawan Makurdi. It does not survive the death of Alhaji Audu Turaki and the nullification of the selection of the respondent. In fact in paragraph 11 of the counter – affidavit, appellant deposed:
‘That the question of who should be Sarkin arising from Suit No. MHC/253/2004 which culminated to this Appeal has been overtaken by the event of death of the contenders Alhaji Modibbo and Alhaji Audu Turaki.’
The question of which of the Constitutions is authentic therefore is no longer a live issue in the con of the appeal. This is because that question is only relevant in this appeal if its resolution will lead to determining who as between the deceased contestants is the Sarkin Hausawan. That is no longer possible as the two of them no longer have legal personalities and are far beyond the jurisdiction of the Court.
It is therefore my view that the application has merit and it therefore succeeds. The appeal NO. CA/J/218/2007 is hereby struck out for being academic.
The parties shall bear their costs.
ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Joseph Eyo Ekanem, JCA, made available to me a draft copy of the Ruling just delivered in which the application of the Respondent/Applicant was granted, and in consequence, the appeal CA/J/218/2007 was dismissed for being academic.
I share the view that, with the demise of both of the contenders for the position of Sarkin Hausawan, and in view of the fact that neither the surviving Appellant nor the surviving Respondent can take benefit of any order that may be made by this Court upon the hearing and determination of the appeal CA/J/218/2007, the said appeal has become academic. A matter is an academic exercise when the end result ensures no benefit to any party; Nwokocha v Oguoma (2015) LPELR-24766(CA). The law is firmly settled that where a question before the Court is entirely academic, speculative or hypothetical, an appellate Court would decline to decide the point, Onochie Ors v. Odogwu Ors (2006) LPELR-2689(SC); Kubor & Anor v. Dickson Ors (2012) LPELR-9817(SC); Ndulue v. lbezim Anor (2002) LPELR-1980(SC).
For these reasons and for the fuller reasons given by my learned Brother, I also grant this application and abide by the orders made.
JOSEPH TINE TUR, J.C.A. (DISSENTING): I had the advantage of reading an advance copy of the ‘determination’ of the application filed by the applicant in the Registry of this Court on 13th June, 2016 by my learned colleague J. E. Ekanem JCA, which is titled ?Ruling?. The appellate jurisdiction of the Court of Appeal is governed by the provisions of Sections 294(2)-(3) and 318 of the Constitution. The provisions read as follows: –
294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
318 (1) In this Constitution, unless it is otherwise expressly provided or the con otherwise requires:-
“Decision” means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.”
The operative words in the above provisions are ?determine?, ?determination?, ?opinion? and ?decision?. ?Determination? has been defined by the Supreme Court inDeduwa vs. Okorodudu (1976) 1 NMLR 236 per Alexander C.J.N. at pages 243-244 to wit: –
More light is thrown on the meaning of the words ?decision? and determination? in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ?a bringing or coming to an end? or (the mental action of coming to a decision,? or ?the resolving of a question?).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ‘determine’ as meaning ‘make an end of the matter.’ In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.”
In Baba vs. Civil Aviation (1991) 6 SCNJ 1, Karibi-Whyte, JSC held at page 25 that: –
The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel. ‘Decision has been defined in Section 318(1) of the Constitution but is restricted ?in this constitution etc. An ‘opinion’ is employed by the legislature in Section 294(2) of the Constitution through the word is not defined in Section 318(1) of the Constitution nor the Interpretation Act Cap 23, Laws of the Federal Republic of Nigeria 2004.
A ‘Ruling’ has not been mentioned in Section 294(2) or Section 318(1) of the Constitution. InMaxwell On The Interpretation of Statutes, 12th edition by P. St. J. Langan appears the following passage at page 33:
‘It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: ?It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do?. We are not entitled, said Lord Loreburn L.C, to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.”
The learned authors of Black?s Law Dictionary, 9th edition defines a ?determination? and a ?ruling? at pages 514 and 1450 as follows:
Determination – 1. A final decision by a Court or administrative agency (the Court?s determination of the issue). 2. The ending or expiration of an estate or interest in property, or of a right, power, or authority (the easement?s determination after four years).
Ruling ? 1. The outcome of a Court?s decision either on some point of law or on the case as a whole.”
While a ?determination? puts an end to a controversy or a dispute, a ?ruling? may or may not, depending on the nature of the order made by the Court seised with hearing the dispute or controversy. In Words and Phrases Legally Defined Vol. 2 ?D?H? by John B. Saunders appears the definition of ?determined? or ?determination? at page 63:
The word ?determination? may properly, and according to legal as well as to ordinary use, signify the coming to an end in any way whatever. That appears to me to be the honest mode of construing the word?
An appeal, once determined by the commissioners, shall be final, and neither the determination of the commissioners nor the assessment made thereon shall be altered, except It is plain that there the words ?determined? and ?determination? are equivalent to: decided and decision, and are quite incapable of being understood to mean an assessment or the amount stated in an assessment.
The word determination appears to me to be used for ?termination? and usage shows that they are now used interchangeably
Section 36(1) and 294(1) of the Constitution of the Federal Republic of Nigeria 1999 as altered provides as follows:
?36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
If a trial Court seised with jurisdiction has not ?determined? a dispute or controversy, that is ?put an end? or terminated a dispute or controversy in favour of a litigant, the Court of Appeal has no jurisdiction to adjudicate under Section 294(2)-(3) and 318(1) of the Constitution. An ‘interlocutory’ ‘decision’, ‘ruling’ or ‘order’ made by a Court below in the course of trial is not provided in Section 294(2)-(3) and 318(1) of the Constitution but Sections 13-14 and 24(1)-(4) of the Court of Appeal Act, 2004 (as amended) to wit:
13. This Part of this Act shall apply to the exercise of the jurisdiction of the Court of Appeal to hear appeals in civil causes or matters.
14(1) Where, in the exercise by the High Court of a State or as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal lie to the Court of Appeal, but no appeal shall lie from any order made ex-parte or by consent of the parties, or relating only to costs.
(2) Nothing in Subsection (1) of this Section, shall be construed so as to authorize an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.
24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Subsection (2) of this Section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
a. in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
b. in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) Where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of this Section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this section.”
The intention of the National Assembly is that ?any determination in relation to a Court etc is a ?decision?. The Court of Appeal is bound to adhere to the words and phrases used in the most current Constitution, Statute or Rules of Practice and Procedure. In Letang vs. Cooper (1964) 2 ALL E.R. 929, Lord Denning M.R. held thus:
I must decline, therefore, to go back to the old forms of action in order to construe this statute. I know that in the last century Maitland said ‘the forms of action we have buried, but they still rule us from their graves’ (see Maitland, Forms of Action (1909) p. 296), but we have in this century shaken off their trammels. These forms of action have served their day. They did at one time form a guide to substantive right, but they do so no longer. Lord Atkin, in United Australia Ltd. Vs. Barclays Bank Ltd. (1941) AC 1, 29) told us what to do about them: ‘when these ghosts of the past stand in the path of justice clanking their mediaeval chains the proper course for the judge is to pass through them undeterred’ The modern law on this subject was well expounded by Diplock J. in Fowler Vs. Lanning (1959) 1 Q.B. 426; above p. 261), with which I fully agree
In Odu vs. The State (1965) NMLR 129 where Brett JSC held at page 131 last paragraph:
‘As regards the specimen signature card and the paying-in slip, the trial Judge held that they ?came within the principle of the cases in which it has been held that the use of a pretended name of a fictitious person amounts to forgery?, and he referred to the case of Anne Lewis (1) having previously entered into a lengthy examination of what constitutes forgery at common law. With respect, we think that the most profitable approach to the interpretation of the Criminal Code is to begin by examining the words of the Code itself, and that decisions on the common law are only of value where the wording of the Code is obscure or capable of bearing more than one meaning, when they may be referred to for the purpose of ascertaining the sense in which words are used in the Code.
In Nwobodo vs. Onoh (1984) 1 ALL NLR 1 Bello JSC held at page 13:
I think, I may end this part of my judgment with this observation. In the application of the provisions of a statute to a particular case, a Court should not blindly adhere to the ratio decidendi of a previous case founded on the interpretation of a former statute without having first carefully examined that statute and meticulously compared it with the statute governing the case for determination by the Court in order to ascertain whether the two statutes are in pari material. It is only when the two statutes are similar and identical that the interpretation placed on one can be a precedent to the interpretation of the other.”
The intention of the legislature is that Court that exercise jurisdiction under Section 36(1) and 294(1) of the Constitution are to head the determination of disputes or controversies ?decisions? or ?determinations?. But the Supreme Court and the Court of Appeal, seised with jurisdiction under Section 294(2)-(3) and 318(1) of the Constitution shall head same as ?determination?, ?decision? or ?opinions?. I shall head this ?determination? a ?decision? so as to comply with the intention of those who enacted the Constitution of the Federal Republic of Nigeria, 1999 as altered with effect from 29th May, 1999. Each of the Justices that were on the panel that heard argument on appeal is at liberty to express an opinion or to adopt the opinion or decision of another Justice. The mind of this Court will be determined by the decision of the majority of the Justices that heard the argument. The live issue is whether with the death of the 1st appellant on 9th December, 2015, the appeal has survived or not? The learned editor of Osborn?s Concise Law Dictionary, 9th edition page 371 defines ?survivorship? as:
?The right of a person to property by reason of his having survived another person who had an interest in it, e.g. on the death of one of two joint tenants, the whole property passes to the survivor.”
The Latin phrase is ?actio personalis moritur cum persona? which Sheila Bone defines at page 13 Osborn?s Concise Law Dictionary, 9th edition as follows:-
?(A personal action dies with the person). No executor or administrator could sue or be sued for any tort committed against or by the deceased in his lifetime (except injuries to property), the right of action in tort was destroyed by the death of the injured or injuring party, because an act of tort was regarded originally to causes of action for defamation(Miscellaneous Provisions) Act 1934, S. 1(1), as amended). Exemplary damages are not recoverable (s.1(2) as amended).”
The learned authors of Black?s Law Dictionary, 9th edition defines the same Latin maxim at page 31 as ?A personal action?. Clerk and Lindsell On Torts, 15th edition page 250-251 paragraph 6-02:
?At common law, by reason of the rule which is often expressed in the maxim actio personalis moritur cum persona, most actions of tort died with the person, whether the person dying was the injured person or the wrongdoer. The main exception to this common law rule was that an action could be sustained against a deceased person?s representatives in respect of property which had been appropriated by the deceased and added to his estate.”
Paragraph 24(1)-(6) of the Amended Statement of Claim at page 87 to 88 of the record of appeal shows the nature of the relief the plaintiff (?the appellant? now deceased) was seeking from the High Court of Justice of Benue State sitting in Makurdi to wit:
?1. A declaration that the 2nd and 3rd defendants are not competent to dethrone the plaintiff as the Sarkin Hausa Wan Makurdi.
2. A declaration that the purported resolution of Committee/Board of Trustees of Hausawan to dethrone the plaintiff in their resolutions of 29-11-2004 is null and void and of no effect as the appointment of the 1st defendant as Sarkin Hausawan Makurdi be set aside.
3. A declaration that it is only the kingmakers/Hakimai of delegates of wards that can dethrone the plaintiff for breach of the relevant sections of the Constitution of Hausawan Makurdi which is not in place yet and not the Board of Trustees.
5. A declaration that the plaintiff is still the Sarkin Hausawan Makurdi and therefore entitled to function as such by enjoying all the benefits of his office as the Sarkin Hausawan Makurdi and not the 1st defendant.
6. An order of perpetual injunction restraining the defendants their agents and privies from interfering with the throne of Sarkin Hausawan and preventing the plaintiff from enjoying all the aura and benefits pertaining to the stool of Sarkin Hausawan Makurdi.”
It is not in dispute that Alhaji Audu Turaki died since 9th December, 2015. Whichever way and manner the appeal is determined will not affect the fortunes of late Alhaji Audu Turaki (the deceased). Paragraphs 1-11 of the Amended Statement of Claim (page 84-85) of the printed record pleads the following facts:
?1. The plaintiff is the elected Sarkin Hausawan of Makurdi who reside at No. 5, Enugu Street, Wadata, Makurdi within the jurisdiction of this Honourable Court.
2. The 1st defendant is the purported appointed candidate that was illegally appointed on 7-12-2004 in an unknown place without the participation of Hausa/Fulani Community members/delegates while the 2nd and 3rd defendants are the authors of the letter that purportedly dethrone the plaintiff.
3. The plaintiff was elected by all delegates of Hausa/Fulani Communities in Makurdi with the members of the Committee/Board of Trustees on 15-8-2004 and was installed and has been functioning as such, having emerged as the winner.
4. The plaintiff avers that 74 delegates democratically voted and elected the plaintiff with 24 votes which was the highest amongst the contestants as the compositions of the delegates are:
a. Committee of Trustees – 30 delegates
b. Central/Mission Ward, Madikpo – 11 delegates
c. Market Clerk (Gangere) – 11 delegates
d. Wadata/Wailomayo – 11 delegates
e. North Bank (Getere) – 11 delegates
5. The plaintiff avers that in a democratic election to the post of Sarkin Hausawan Makurdi, seven candidates contested namely:
i. Alhaji Ibrahim Madibbo – 24 votes
ii. Alhaji Audu Turaki – 23 votes
iii. Alhaji Bala Bawa – 8 votes
iv. Alhaji Rayynu Sangami – 8 votes
v. Mohammed Bello Abdulraham – 6 votes
vi. Mohammed Abdullahi Toski – 2 vote
vii. Alhaji Abubakar Mohammed Magawata- 2 votes
6. The plaintiff was openly declared as the winner and the Chairman of the Electoral Committee, Sani Imam Yusuf and the Secretary, Alhaji Yunusa A. Garba presented a Certificate to the plaintiff on behalf of the electoral body, in the presence of the Hausawan Makurdi and was subsequently turbaned. The Certificate of Confirmation of the plaintiff shall be tendered at the hearing of this suit.
7. The plaintiff has been functioning since then as the Sarkin Hausawan Makurdi without complaint or contravening the constitution of Hausa Community in Makurdi and its environment in any respect.
8. The plaintiff avers that on 29-11-2004, the Board of Trustees purportedly conveyed an illegal meeting and framed up false allegations against the plaintiff, spearheaded by writing a letter to the plaintiff to dethrone him on the ground that he has refused to attend a meeting. The said letter purportedly dethroning Sarkin Hausawan Makurdi Alhaji Ibrahim Modibbo shall be tendered at the hearing of this suit.
9. The plaintiff avers that he had not breached any of the provisions of the Constitution of Hausawan Makurdi.
10. The plaintiff avers that immediately he won the election, as the Sarkin Hausawan, some of his co-contestants and some members of the Board/Committee of Board of Trustees were not happy and engaged in all antics to see that he was not turbaned but they failed.
11. The plaintiff further avers that after his turbaning, he wrote to the Chairman of Committee of Trustees for an extension of time to appoint his nine kingmakers Haiki mai as it was the period of Ramadan on 20-10-2004 and his letter was replied that the appointment should be made after the Ramadan by the representatives of the Board/Committee of Trustees as Board of Trustees is being referred to as Committee of Trustees and vice-versa in the constitution of Hausawan. The various letters shall be tendered at the hearing of this suit.”
The question is whether, though the 1st defendant (the appellant) died since 9th December, 2015 the appeal against the 2nd defendant (Alhaji Garba Maikarkashi) and the 3rd defendant (Alhaji Sha? Aban Anas) as the 2nd and 3rd appellants in the Notice of Appeal to continue or not. The Notice of Appeal set out the relief the appellant was seeking from the Court of Appeal:
?The appellant prays for an order allowing the appeal in its entirety, setting aside the decision and orders of the trial High Court in suit MHC/253/2004 dated 9-3-2007 and in its place make an order dismissing the entire suit for lacking in substance and merit.”
The Notice of Appeal sets out the names of the parties directly affected by the appeal:
i. Alh. Audu Turaki (deceased)
ii. Alh. Garba Markarkashi
iii. Alh. Sha?aban Anas.”
There are parties directly affected in the outcome of the appeal. Paragraphs 12-24 of the Amended Statement of Claim shows the role each of the parties played in the selection, installation and dethronement of Alhaji Ibrahim Modibbo (the respondent in the Court of Appeal). Ikyegh J., (now Ikyegh, JCA) had held at page 215 lines 27 to page 217 lines 1-30 of the printed record as follows:
?Though the holder of the post of Sarkin Hausawan is entitled to be in the post for life, the kingmakers/Hakimai on whose pleasure the Sarkin Hausawan holds the post may remove him from the post if found in breach of any of the items set out in article 9 of the Constitution of the Hausawan Association in Exhibit H. For clearness, article 8 and 9 of Exhibit H say of that as follows:
Article 8: TENURE
Sarkin Hausawan, Makurdi shall hold office at the pleasure of the kingmakers who are: Galadima, Madaki, Ciroma, Tafida, Turaki, Wasiri, Jarma, Wambai and Sarduana (9 nos). The tenure of Sarkin Hausawan shall be for life, so be it the Committee of Trustees.
Article 9: SUSPENSION/COMPULSORY RETIREMENT
Sarkin Hausawan of the people shall be suspended/compulsorily retired for:
i. Any act(s) considered as inimical to the aims and objectives of the Community,
ii. Any proven act of corruption, abuse of office, involvement in partisan politics, dishonesty and any other act unbecoming of the position of the Chief.
iii. Upon conviction of any criminal offence or in contravention of the Code of Conduct except for motor accident offences.
iv. The above conditions (i-iii) equally affect the kingmakers/Hakimai except for partisan politics, such a person who becomes holder of office of the party Chairman, Secretary and Treasurer shall by that act, must have forfeited his right of being an appointee.
It follows in my respectful finding and opinion that only the kingmakers/Hakimai would have had the power to remove plaintiff from the post of Sarkin Hausawan, if they had found him in breach of Article 9 of Exhibit H (supra) not the Committee of Trustees working through 2nd – 3rd defendants as they did in this case, as the said Committee of Trustees can act only as ‘checks and balances’ on the Sarkin Hausawan’s performance in the duty post in accordance with article 12(1) of Exhibit H, not as the removing authority of the Sarkin Hausawan. Exhibit B had shown the willingness of plaintiff to appoint the kingmakers/Hakimai after the holy month of Ramadan, which was a reasonably and responsible stand, having regard to the sanctity of that period of time to Muslim faithful. But the 2nd-3rd defendants were impatient with him and took precipitated action to remove him from the post. If they had allowed caution to prevail and plaintiff given time outside the Ramadan period to appoint the kingmakers/Hakimai, then a body recognized by their Constitution in Exhibit H would have been in place to deliberate on the alleged wrong-doings of the plaintiff with a view to disciplinary him articles 4, 8 and 9 of Exhibit H. They did not do so, and usurped the powers of the kingmakers/Hakimai to remove the plaintiff from his duty post of Sarkin Hausawan.
Consequently, I hold that the steps the Committee of Trustees of the Hausawan Association Makurdi took through the 2nd and 3rd defendants in Exhibits D, F1, G, L, M, N, and O to remove plaintiff from the post of Sarkin Hausawan Makurdi and replaced him with the 1st defendant were done without authority and in violation of the powers of the kingmakers/Hakimai under the cumulative impact of articles 4, 8 and 9 of Exhibit H (supra), and amounted to an exercise in futility, and are hereby quashed. And it is for the above given reasons that I find the suit of the plaintiff made out against the defendants and hereby enter judgment for the plaintiff against the defendants in terms of paragraph 20 of the Amended Statement of Claim (supra).
Signed by J. S. Ikyegh, Judge on 9-3-2007.”
The 2nd and 3rd appellants had individual and collective interests to protect independent of Audu Turaki (the deceased/appellant). But it has been shown that Alhaji Ibrahim Modibbo (the respondent) in this appeal is also dead. The effect is that his name and that of Audu Turaki (the 1st appellant) ought to be struckout from the Notice of Appeal which I now do. Left in the Notice of Appeal is the name of (1) Alhaji Maikarkasi (2nd appellant) and (2) Alhaji Sha?Asan Anas (2nd appellant) without a respondent. Order 15 Rules 1 and 3 of the Court of Appeal Rules 2016 provides that:
1. It shall be the duty of counsel representing a party to an appeal to give immediate notice of the death of that party to the registrar of the Court below or to the Registrar of the Court (as the case may require) and to all other parties affected by the appeal as soon as he becomes aware of the fact.
3. Where an appeal has been set down for hearing and the Court is or becomes aware that a necessary party to the appeal is dead the appeal shall be struck off the hearing list.”
The 1st appellant and the respondent having died; Order 15 Rule 2 of the Rules provides that:
Where it is necessary to add to substitute a new party for the deceased, an application shall, subject to the provisions of Order 4 Rule 10, be made in that behalf to the Court below or to the Court either by any existing party to the appeal or by any person who wishes to be added or substituted.”
The deceased respondent was substituted with Alhaji Sallau Abdulrahman as a respondent. The post of Sarkin Hausawa is not dead. It is the 1st appellant (Alhaji Audu Turaki) and the respondent (Alhaji Ibrahim Modibbo) that are dead. The question is whether it was necessary to substitute a new party the deceased respondent. If the answer is yes, there will be the need to bring an application, subject to the provisions of Order 4 Rule 10 of the Rules of the Court of Appeal ?either by the existing party (Alhaji Garba Maikarkabi or Alhaji Sha? Aban Anas)” who but certainly not Alhaji Audu Turaki (the deceased 1st appellant) to enable the proceedings in the Court of Appeal to continue to be heard and put the dispute to an end or finality. I hold that the appeal has not abated with the demise of Audu Turaki (the 1st appellant) or Alhaji Ibrahim Modibbo (the respondent). This application is without merit and is dismissed with One Hundred Naira (N100,000.00) cost to the respondent.
Appearances:
Miss E.N. Tionsha for Appellant/Respondent
For Appellant(s)
Amuwa Olatunde, Esq. for Respondent/ApplicantFor Respondent(s)
