ALH. ISIAKU TAHIR ISAH & ANOR v. KADUNA STATE MINISTRY OF LAND, SURVEY AND COUNTRY PLANNING & ANOR (2019)

ALH. ISIAKU TAHIR ISAH & ANOR v. KADUNA STATE MINISTRY OF LAND, SURVEY AND COUNTRY PLANNING & ANOR

(2019)LCN/13164(CA)

In The Court of Appeal of Nigeria

On Thursday, the 2nd day of May, 2019

CA/K/306/2017

RATIO

FUNCTUS OFFICIO : MEANING

To be functus officio, means that a Court having given a decision in a matter, it lacks the power, potency to revisit, re-open or review that matter or judgment for want of jurisdiction. See Mohammed v. Hussein (1998) 11-12 SCNJ, 133, 133-164; First Bank of Nig. Plc. v. TSA Industries Ltd (2010 15 NWLR (Pt. 1216) 247, 296; Dingyadi v. INEC (No. 2) (2011) 18 NWLR (Pt. 1224) 154; 218; Ini Okon Utuk v. The Official Liquidator (2008) LPELR-4322 (CA); Maikano Kura & Ors. v. Moses Yero & Anor. (2016) LPELR-40256 (CA). Thus, a Court is functus officio over a matter, when the Court has fulfilled or accomplished its function in respect of that matter and it lacks the vires to revisit the matter. As a general Principle of law therefore, once a Court has delivered a judgment on a matter it cannot revisit or review that judgment. See: Agbaso v. Ohakim & Ors. (2011) LPELR-8812 (CA), Nigeria Army v. Iyela (2008) 12 MJSC 74.PER SAIDU TANKO HUSSAINI, J.C.A.

LITIGATION: THERE HAS TO BE AN END TO LITIGATION
This principle is not unconnected with the rationale founded in public policy that there has to be an end to litigation. See: Onwuka v. Maduka (2002) 18 NWLR (Pt. 799) 586 or (2002) 9-10 SC 142; Akporue & Anor. v. Iscichari Okei & Ors. 8 NSCC 649 or (1993) 12 SC 137, 146.PER SAIDU TANKO HUSSAINI, J.C.A.

WHEN A COURT WILL REVISIT, REOPEN AND REVIEW ITS PREVIOUS DECISIONS
The Court nevertheless, under some exceptional circumstances would revisit, reopen and review its previous decisions as in a case where: –
(i) There is the need to make minor permissible corrections under the slip rule. See Nigerian Army v. Iyela (supra).
(ii) There is a concealment of material facts, an application to set aside that judgment can be considered. See ADH Ltd. v. MIIV. FCT (2013) 8 NWLR (Pt. 1357), 493, 516.
(iii) When the judgment was obtained by fraud or deceit, or
(iv) When the judgment is a nullity, or
(v) It is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consent to it, or
(vi) When the judgment was given in absence of jurisdiction, or
(vii) When the procedure adopted was such as to deprive the decision or judgment of the character of legitimate adjudicating. See UBA v. Ukachukwu (2006) ALL FWLR (Pt. 337) 515, 521; Sken Consult Nig. Ltd v. Gowon Siekondy Ukey (1981) 1 SC 6; Joe-deb Ventures Ltd v. NDIC (2015) ALL FWLR (Pt. 780) 1322, 1338.PER SAIDU TANKO HUSSAINI, J.C.A.

PARTY: NECESSARY PARTIES: WHO IS A NECESSARY PARTY

A necessary party is that person who is not only interested in the subject-matter of the proceedings but also who in his absence, the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless he is a party to the action instituted by the plaintiff. See Green v. Green (1987) NWLR (Pt. 61) 481.PER SAIDU TANKO HUSSAINI, J.C.A.

JUSTICES

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria

Between

1. ALH. ISIAKU TAHIR ISAH
2. HON. SALISU NDANUSA DAUDA Appellant(s)

AND

1. KADUNA STATE MINISTRY OF
LAND, SURVEY AND COUNTRY
PLANNING
2. MUSTAPHA HASSAN KATSINA
(Suing for himself and other children of Late Gen. Hassan Usman Katsina) Respondent(s)

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Justice, Kaduna State, delivered on the 9th May, 2017 vide Suit No. KDH/KAD/1088/2013 which granted all the prayers contained in the Motion paper dated 14th March, 2017 and filed on the 15th March, 2017; namely: –
?1. AN ORDER of this Court for extension of time within which to enable the Applicant apply to have the judgment in the above suit delivered on the 6th day of April 2016 to be set aside for being obtained by the Respondents in favour of the 1st and 2nd Respondents as a result of misrepresentation of fact to the Court.
2. AN ORDER of this Court granting leave to the Applicant to apply for the setting aside of the judgment delivered in the above mention suit on the 6th day of April, 2016 for being obtained from this Court as a result of collusion of the Respondents against the Applicant and/or fraud of the Respondents against the applicant to deny the applicant the opportunity of fair hearing in a matter that affects his interest and upon which the Applicant is a proper and necessary party.

3. AN ORDER of this Court setting aside its judgment as the absence of the Applicant occasioned a miscarriage of justice and robs the Court of the jurisdiction to properly determine the matter to its logical conclusion because the Respondents jointly and severally denied the Applicant the opportunity to be heard deliberately by misrepresenting facts to the Court.
4. AN ORDER of this Court granting the Applicant leave to join as a party in this suit before this Court as a proper and necessary party and in so doing afford the Applicant the opportunity to be heard before the final determination of this case.
5. AND for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.

The application had been brought and moved by one Mustapha Hassan Katsina (for himself and other children of late Gen. Hassan Usman Katsina). Facts leading to the application and the ruling appealed against can be traced to the judgment delivered at the same Court on the 6th April, 2016, vide Suit No. KDH/KAD/1088/2013. The appellants were the plaintiffs who had approached the High Court of Justice, Kaduna State and claimed against

the Ministry of Lands, Survey and Country Planning, all the reliefs set out in the Statement of Claim, Paragraph 16(i)-(v) at pages 7-8 of the record of appeal, namely: –
i. A declaration that the name (the family of Late Major General Hassan Usman Katsina) on the Grant/Re-grant of statutory Right of Occupancy 20th day of April, 2012 is neither a natural person nor a juristic person that, can be granted a statutory right of Occupancy under the Land Use Act (Cap. 202 Laws of the Federation of Nigeria) 2004.
ii. A declaration that the said letter of Grant/Regrant is null and void and an order setting aside the grant/re-grant.
iii. A declaration that the plaintiffs are the rightful owner of the property known and described as plot No. 10 Murtala Mohammed Way on TPO 483C Kurmi Mashi Kaduna covered by Certificate of Occupancy No. 14569 having purchased and acquired title from Hajiya Hauwa Jakardiya Kulu who acquired her title from late Major General Hassan Usman Katsina.
iv. A declaration that the defendants have not issued any previous grant/regrant in error dated 10th day of July with unknown year.

v. A perpetual injunction restraining the defendant from declaring any grant or regrant over plot No. 10 Murtala Mohammed Way, Kurmin Mashi Kaduna occupied by the Plaintiffs as being erroneously granted without complying with Section 44 of the Land.?

The Court took evidence of witnesses in the said suit, and in a considered judgment delivered on the 6th April, 2016 granted all the reliefs sought.

On the 15th March, 2017, that is, almost 1 (one) year after the judgment referred to above was given, the 2nd respondent, by way of the application brought or made on his behalf approached the same Court and prayed that the said Judgment be set aside in terms of the prayers 1, 2, 3, 4 and 5 contained in the motion paper dated 14/3/2017 (Record: pages 99-100). I am mindful, to reproduce the reliefs sought in the said application, for clarity of purpose thus: –
1. AN ORDER of this Court for extension of time within which to enable the Applicant apply to have the judgment in the above suit delivered on the 6th day of April 2016 to be set aside for being obtained by the Respondents in favour of the 1st and 2nd Respondents as a result of misrepresentation of fact to the Court.

2. AN ORDER of this Court granting leave to the Applicant to apply for the setting aside of the judgment delivered in the above mention suit on the 6th day of April, 2016 for being obtained from this Court as a result of collusion of the Respondents against the Applicant and/or fraud of the Respondents against the applicant to deny the applicant the opportunity of fair hearing in a matter that affects his interest and upon which the Applicant is a proper and necessary party.
3. AN ORDER of this Court setting aside its judgment as the absence of the Applicant occasioned a miscarriage of justice and robs the Court of the jurisdiction to properly determine the matter to its logical conclusion because the Respondents jointly and severally denied the Applicant the opportunity to be heard deliberately by misrepresenting facts to the Court.
4. AN ORDER of this Court granting the Applicant leave to join as a party in this suit before this Court as a proper and necessary party and in so doing afford the Applicant the opportunity to be heard before the final determination of this case.
5. AND for such further order(s) as this Honourable

Court may deem fit to make in the circumstances of this case.?

The Court below took or heard the application and granted all the prayers.
The appeal to this Court vide the Notice of appeal dated the 9th May, 2017 and filed on 11th November, 2017 is against this ruling and order. The complaint is on 3 (three) grounds, as follows:-
?GROUND ONE
The learned trial judge erred in law in entertaining the 2nd respondent?s application dated 14th day of March, 2017 for joinder and setting aside its judgment dated 6th April, 2016.
PARTICULARS OF ERRROR
(a) The Court having heard the claim of the Appellants on the merit becomes functus officio.
(b) The condition precedents for a Court to set aside its judgment were absent.
(c) The learned trial judge has presided on appeal over her judgment of 6/04/2016.
(d) The issues being raised by the 2nd respondent are different issues and different parties that necessitates a fresh suit hence the remittance of the suit to the Chief Judge for reassignment.
GROUND TWO
The learned trial judge erred in law in holding that the 2nd respondent who was not a party to

the suit should be given fair hearing.
PARTICULARS OF ERROR
(a) The principle of fair hearing apply to a party to a suit who is not heard during trial.
(b) The respondent was not a party to the proceeding and therefore not entitled to fair hearing.
(c) The appellant have no claim against the 2nd respondent who was not a party to the proceedings.
(d) The 2nd respondent can neither be made a plaintiff or a defendant in the appellants? case.
GROUND THREE
The decision/Ruling of the learned trial judge was against the weight of evidence.?

The record of appeal had been transmitted on the 23th May, 2017 and the appellants filed a brief of argument thereafter on the 9th June, 2017. The 1st respondent filed a brief of argument on the 23rd February, 2018 and the same deemed on the 26th February, 2018. The brief of argument for the respondent was filed on the 12th September, 2017.

Appellants reply brief filed on 29th November, 2017 was deemed on 26th February, 2018. Learned counsel adopted their respective briefs at the hearing on the 6th February, 2019.

Issues distilled in the appellants? brief of

argument are 3 (three) as follows:
(i) Whether the learned trial judge was not functus officio in entertaining the application of the 2nd respondent for joinder and setting aside of the Judgment delivered on the 6th day of April, 2016 (GROUND ONE).
(ii) Whether the trial Court was right in holding that the respondent who was not a party to the suit ought to given fair hearing (GROUND TWO).
(iii) Whether the new issues being raised by the 2nd respondent were not supposed to be properly ventilated in a fresh suit. (GROUND THREE).

The 1st respondent in their brief of argument, at pages 1-2 formulated 3 (three) issues for determination as follows:
1. Whether having regard to the affidavit evidence of the Applicant joined/Respondent, the learned trial judge was wrong to have set aside its judgment dated the 6th day of April, 2016 being functus officio in entertaining same.
2. Whether the learned trial judge was wrong to have held that the Applicant joined/Respondent was a necessary party to the judgment/suit and should be given fair hearing.
3. Whether the issues raised in the Applicant

joined/Respondents affidavit are new and not germane to the judgment set aside by the learned trial judge.

The 2nd respondent similarly raised 3 (three) issues for determination and the same are set out at pages 3-4 of his brief thus:
1. Whether having regard to the affidavit evidence of the Applicant joined/Respondent, the learned trial judge was wrong to have set aside its judgment dated the 6th day of April, 2016 being functus officio in entertaining same.
2. Whether the learned trial judge was wrong to have held that the Applicant joined/Respondent was a necessary party to the judgment/suit and should be given fair hearing.
3. Whether the issues raised in the Applicant joined/Respondent’s affidavit are new and not germane to the judgment set aside by the learned trial judge.

It can observed that the 3 (three) issues formulated by parties on both sides are similar, both in scope and content. However I chose to reframe the 3 issues thus:
?(1) Whether the learned trial judge was not functus officio when he entertained the application for joinder and the setting aside of the judgment in suit

No. KDH/KAD/1088/2017 delivered on the 6th day of April, 2016?
(2) Whether the learned trial judge was right when he held that the 2nd respondent was a necessary party to the judgment in Suit No. KDH/KAD/1088/2013 who ought to be accorded hearing?
(3) Whether issues raised in the application of the 2nd respondent are new issues not germane to the judgment in suit No. KDH/KAD/1088/2013 set aside at the Court below

Relative to Issue No. 1 above, it was argued for the appellants, that the trial Court below was functus officio over the judgment it delivered on 6th April, 2016 hence it lacked jurisdiction to revisit the same case as it did upon the application made to it. We were urged to hold that the Court below was equally in error when it granted the application for joinder of a person who was not a party to the judgment earlier delivered by the same Court.

On Issue No. 2 it was argued that there being no claim against the 2nd respondent in the suit leading to the judgment delivered on the 6th April, 2016, the trial Court ought not to have made an order of joinder of the 2nd respondent to the suit in which, judgment had been

delivered. He argued that an order of joinder of a person as a party can only properly be made before judgment and not after, hence the Court below erred in the ruling appealed against.

Under Issue No. 3, it was argued for the appellant that issues raised and the reliefs sought by the 2nd respondent vide the application made by him and the eventual grant of same vide the ruling of Court were completely new or distinct claims/reliefs from the reliefs sought and granted in favour of the appellant in the judgment now set aside by the Court below hence there was no basis for the Court to set aside that judgment. We were urged to so hold and allow this appeal.

As indicated before, the 2nd respondent filed a separate brief of argument. However the submission made on his behalf in the brief are tailored along the same direction with those for the 1st respondent. On the question whether or not the Court below has jurisdiction to revisit the judgment earlier delivered by it and to set same aside, it was argued that a Court could do so where by the facts presented, the Court had been misled into relying and acting on those facts leading to that Judgment. He

argued that in those exceptional situations, the principle that a Court becomes functus officio upon delivery of judgment will not apply hence a Court, so confronted with those facts, could revisit its own judgment and review it where it became necessary. The trial Court, it is argued, did the right thing when it set aside the judgment, especially so when the appellants failed to respond to the issue of fraud and misrepresentation of facts by them to the Court below. We were urged to dismiss this appeal also on this account.

On the need or necessity for an order of joinder of the 2nd respondent to the suit before the trial Court, it was argued that the trial Court rightly joined the 2nd respondent as a necessary party to the case. Being the person or party interested in the subject matter but who was not so joined to the suit initially, it became necessary to set aside that judgment on that account. He argued that the mere fact that the subject-matter of the suit is linked to the late father of the 2nd respondent who is the original owner of the subject matter, not only made him a necessary party to the ensuing suit, but an aggrieved person or party who

was never sued or heard. The trial Court it is argued, rightly set aside that judgment so as to afford the 2nd respondent the opportunity to be heard on the matter.

In response to the 3rd Issue, the 1st and 2nd respondents referred us to the 27 paragraph affidavit in support of the Motion under reference to submit that the 2nd respondent and his siblings are no doubt the aggrieved party in the suit in which judgment was given on 6th April, 2016 and as such, ought to have been joined to the suit so far as the said affidavit evidence in support was never controverted in any material particular, facts deposed therein are relevant and the trial Court rightly relied on them in setting aside the judgment delivered on the 6th April, 2016. We were urged to dismiss this appeal.

RESOLUTION OF ISSUES
The basis for the application, that is the Motion on Notice which gave rise to the ruling being appealed against, is the judgment delivered at the trial Court on 6th April, 2016 wherein the Court below granted in favour of the appellants as plaintiffs, some declaratory reliefs and an order of perpetual injunction. The trial Court had reason to revisit that

judgment. Not only did the Court revisit the judgment, it went further and indeed set aside that judgment vide the ruling appealed against and delivered on the 9th May 2017. It is this ruling or decision of the trial Court that is now being questioned on the principle that a Court is functus officio in a matter over which it has taken a decision or has delivered a judgment.

it cannot revisit or review that judgment. See: Agbaso v. Ohakim & Ors. (2011) LPELR-8812 (CA), Nigeria Army v. Iyela (2008) 12 MJSC 74.
This principle is not unconnected with the rationale founded in public policy that there has to be an end to litigation. See: Onwuka v. Maduka (2002) 18 NWLR (Pt. 799) 586 or (2002) 9-10 SC 142; Akporue & Anor. v. Iscichari Okei & Ors. 8 NSCC 649 or (1993) 12 SC 137, 146. The Supreme Court has held in Onwuka v. Maduka (supra) that:
Were the parties to be at liberty, without exceptional circumstances and rules of Court so permitting them, to bring before the High Court, facts which were not put before it came to a decision and to ask for a review of a prior decision on the basis of those facts, finality of decisions would become uncertain
The Court nevertheless, under some exceptional circumstances would revisit, reopen and review its previous decisions as in a case where: –
(i) There is the need to make minor permissible corrections under the slip rule. See Nigerian Army v. Iyela (supra).
(ii) There is a concealment of material facts, an application to set

aside that judgment can be considered. See ADH Ltd. v. MIIV. FCT (2013) 8 NWLR (Pt. 1357), 493, 516.
(iii) When the judgment was obtained by fraud or deceit, or
(iv) When the judgment is a nullity, or
(v) It is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consent to it, or
(vi) When the judgment was given in absence of jurisdiction, or
(vii) When the procedure adopted was such as to deprive the decision or judgment of the character of legitimate adjudicating. See UBA v. Ukachukwu (2006) ALL FWLR (Pt. 337) 515, 521; Sken Consult Nig. Ltd v. Gowon Siekondy Ukey (1981) 1 SC 6; Joe-deb Ventures Ltd v. NDIC (2015) ALL FWLR (Pt. 780) 1322, 1338.

The trial Court at page 156 of the record observed thus: –
?Having considered the processes filed by parties, I see that the facts supporting this application as highlighted in the above quoted 27 paragraph affidavit are not disputed by any of the respondents.
The 1st and 2nd respondents/judgment creditors filed a 6 paragraph counter-affidavit as stated earlier. None of the paragraphs directly denies the averments in the

applicant’s affidavit as to the fact that there was a dispute between the applicants and the 1st and 2nd respondents which led to the revocation of their title of their predecessor in title. The respondents did not deny that there was a dispute as to the genuineness or otherwise of the documents of grant of their predecessor in title which formed the basis for their claim for a declaration of title.? (Words underlined for emphasis only)

At page 158 of the record of appeal, the trial Court further observed in its judgments thus:
There is also no doubt that this Court was misled into thinking that there was no other dispute with anyone concerning the matter except with the 3rd respondent who without complaint revoked the title of their predecessor or and re-issued the Certificate of Occupancy to an non existing person, from the affidavit in dispute, it was the complaint of the applicants that led to the revocation and re-issuance of the Certificate of Occupancy and all the respondents were aware of this. It is quite improper of the respondents to have hidden this fact from the Court especially in view of the fact that this Court did

ask counsel whether there was any adverse claim by the family that necessitate the use of that name in the re-grant and counsel answered in the negative.? (Words underlined for emphasis)

It can thus be asserted without equivocation that the trial Court in its wisdom chose to revisit its earlier decision and to set aside same, was guided by the fact that:
(i) There are doubts surrounding the genuineness of the documents (of title) submitted or tendered before it by the appellants.
(ii) The appellants misled the Court into believing that certain facts were true but which impacted negatively on the 2nd respondent.
(iii) That the appellants failed to disclose certain facts to the Court.
(iv) The 2nd respondent though an interested person was not a party to Suit No. KDH/KAD/1088/2013 in which judgment was delivered on the 6th April, 2016.
(v) That material averments contained in the supporting affidavit to the application of the 2nd respondent giving rise to the ruling appealed against were not denied or controverted by the appellants.

At this point, one necessarily have to look at the claim or reliefs that the appellants as

plaintiffs had sought in the suit that led to the judgment delivered on the 6th April, 2016. The claim is endorsed in the Writ of Summons at page 3 of the record of appeal. It is also repeated in the Statement of claim at pages 7-8 of the record. The Court below in its judgment granted all those reliefs/claims as per page 144 of the record where the Court held thus:
Consequently, the plaintiffs? claims succeed and judgment is entered for plaintiffs as per their statement of claim

A close look at those reliefs or claim will reveal that those claims were directed at Government as represented by the 1st Respondent, i.e. the Ministry of Lands Survey, and Country Planning Kaduna State, whose duty/responsibility under the Land Use Act among other things is to make grants and issue title documents. Where therefore in the exercise of its duty/functions to make grants and or issue documents of title, there is failure on its part to properly discharge those duty/functions, it is that body or organ alone and none other who should be called upon to answer any question relative to their acts or omissions.

The appellants? relief at paragraph 16 in the Statement of Claim at pages 5-8 of record is for a declaratory order that a grant or regrant of Statutory Right of Occupancy cannot be made in favour of a non-juristic person.
By reason of Section 5(1) (a) of the Land Use Act, it is government (1st respondent) that has the power to grant Statutory Right of Occupancy to any person, of any land whether or not the land is in urban area. Where therefore the complaint or declaration sought is against the governor (1st respondent) for carrying out its duty/functions without due regard to the law and procedure for carrying out those activities, as in land matters, it is that body or organ alone that action can maintain for its failure or ineptitude in the discharge of its obligations as a necessary party. In this connection, I find it difficult to find space for the 2nd respondent’s contention that himself ought to have been joined to the suit as a necessary party who was affected by the claim or the reliefs which otherwise indicate that only the 1st respondent can explain why a grant had to be made and a certificate of grant issued to a non-juristic person. That duty to my

mind, is not for the 2nd respondent to explain.
Relief No. 2 in paragraph 16 of the Statement of Claim at page 7 of the record of appeal flow from relief No. 1 in that a grant or regrant of a Statutory Right of Occupancy cannot be made in favour of a non-juristic person, which is the contention of the appellants in their claim. Again I do not see the rationale in the claim of the 2nd respondent that he is the aggrieved person or party relative to the grant made to a non-juristic person or entity vide a Certificate of Occupancy issued in the name of that non-juristic person. By the way, the 2nd respondent, being a juristic person cannot at the same time lay personal claim to the grant or certificate of grant issued in the name of an entity not known to law or to contend that he was/is a necessary party by reason of that grant.
A necessary party is that person who is not only interested in the subject-matter of the proceedings but also who in his absence, the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless he is a

party to the action instituted by the plaintiff. See Green v. Green (1987) NWLR (Pt. 61) 481.
Like reliefs No. 1 and 2 in the Statement of Claim of the appellants, relief Nos. 3, 4 and 5 are all directed on the 1st respondent, the Ministry of Land and Survey, Country Planning, Kaduna State. The reliefs are not directed to the 2nd respondent. Assuming without conceding, that those reliefs are remotely connected to the 2nd respondent, the facts presented by the appellants on the case filed by them are such that the case can be heard to conclusion and judgment given over it without the 2nd respondent being joined as a party to the suit.

As a further reason which necessitated the setting aside of the judgment under reference, is on account of misrepresentation of facts or fraudulent misrepresentation of a fact or facts which as contended by the 2nd respondent, misled the Court below.

Issues of fraudulent misrepresentation of facts to Court to obtain judgment constitute veritable grounds upon which a judgment of Court can be set aside. At paragraph 6 of the affidavit in support of the motion seeking to set aside the judgment of the 6th April, 2016,

are facts deposed to by the 2nd respondent at page 702 of the record thus:
That upon the knowledge that the earlier Certificate issued to our late father was revoked on the facts stated above, the family of Late Hassan Katsina including myself petitioned the 3rd respondent that the document submitted to the 3rd respondent by the 1st and 2nd respondents were not genuine as we alleged forgery of same.

I want to emphasize here that allegations of ?forgery? or ?fraud? or making of ?false documents? are offences under our penal laws, as for instance Section 177 of the Penal Code Law. Hence by reason of Section 135(1) of the Evidence Act 2011 Cap. 14, such allegations must be proved beyond reasonable doubt by the person asserting same, meaning that the Court below ought not to have acted on mere allegations of fraud as referred to above, to set aside the judgment of 6th April, 2016 in absence of any concrete proof under our laws, by due process employed, that indeed the documents the appellants presented to the Court below to obtain judgment, were indeed forged documents. That apart, all those allegations

coming up for the first time after almost 1 (one) year since the date of the judgment on 6th April, 2016, now set aside, afforded the 2nd respondent that opportunity to appeal that judgment as an interested party. He had other options to explore and that is by way of a fresh suit or action filed or instituted on account of those fresh facts or information made against the appellants.

It is certainly not proper in my view for the Court below to set aside, as it did, the judgment delivered by it on the 6th April, 2016 whereas the 2nd respondent, on the facts presented, was not deliberately excluded in that proceedings, as a necessary party.

I have in this discourse considered and addressed all the 3(three) Issues canvassed in this appeal together and I resolve each one of them in favour of the appellants. In effect, the appeal succeeds and same is allowed. The ruling delivered at the Court below on 9th May, 2017 including the orders(s) made there-to are set aside and in its place is entered this judgment dismissing the Application, the Motion on Notice dated the 14th March, 2017 and filed on the 15th March, 2017. The judgment of the said

Court delivered on the 6th April, 2016 in Suit No. KDH/KAD/1088/2013 is hereby restored.
That is the order and judgment.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft, the judgment of my learned brother SAIDU HUSSAINI, JCA.
I agree.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read in advance the Judgment delivered by my learned brother, Saidu Tanko Husaini, JCA. I am in agreement with his Lordship that this appeal is meritorious and is hereby allowed. The ruling of the Lower Court is hereby set aside. In consequence I too enter an Order of dismissal of the motion on notice filed on 15th March, 2017.

Appearances:

S. B. Muhammed, Esq. with him, Mrs. T. O AkinbelusiFor Appellant(s)

A. H. Yohanna Mrs. for the 1st Respondent.
K. P. Andezai, Esq. with him, Haruna Magaji for the 2nd Respondent.For Respondent(s)

Appearances

S. B. Muhammed, Esq. with him, Mrs. T. O AkinbelusiFor Appellant

AND

A. H. Yohanna Mrs. for the 1st Respondent.
K. P. Andezai, Esq. with him, Haruna Magaji for the 2nd Respondent.For Respondent