ALHAJI USMAN TUNGA v. ALH. MALAMI YARO MAKERA (2013)

ALHAJI USMAN TUNGA v. ALH. MALAMI YARO MAKERA

(2013)LCN/6599(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of December, 2013

CA/S/65/2009

JUSTICES

JAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

ALHAJI USMAN TUNGA Appellant(s)

AND

ALH. MALAMI YARO MAKERA Respondent(s)

RATIO

WHETHER OR NOT LEAVE OF COURT IS REQUIRED IN AN APPEAL AGAINST AN INTERLOCUTORY DECISION AT THE LOWER COURT

It is an appeal against an interlocutory decision at the Lower Court. This appeal itself is not interlocutory here in this court. It is an appeal against the final decision of the High Court, on the interlocutory appeal.
No leave of court is needed. See S.241 (1a) of the 1999 Constitution. By virtue of S.241 (1b) and S.242 (1) of the 1999 Constitution further appeals from the decision of a High Court shall be with leave of this court or the High Court unless where the ground of appeal involves questions of law alone.
For clarity’s sake I shall quote S.241 (1) and 242 (1) of the 1999 Constitution follows.

S.241
“(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
a) final decision in any civil or criminal proceedings before the Federal High Court of High Court sitting at first instance;
b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person;
e) decision in any criminal proceedings in which the Federal High Court of a High Court has imposed a sentence of death;
f) decisions made or given by the Federal High Court –
i. where the liberty of a person or the custody of an infant is concerned,
ii. where an injunction or the appointment of a receiver is granted or refused,
iii. in the case of a decision determining the case of a creditor or the liability of a contributory of other officer under any enactment relating companies in respect of misfeasance or otherwise,
iv. in the case of a decree nisi in a matrimonial cause or a decision in an Admiralty action determining liability, and
v. in such other cases as may be prescribed by an Act of the National Assembly.
(2) Nothing in this section shall confer any right of appeal –
a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
b) from an order absolute, for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded had not appealed from that decree nisi; and
c) without the leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High Court made with the consent of the parties or as to costs only.

S. 242
(1) Subject to the provisions of section 241 of this constitution, an appeal shall lie from decisions of the Federal high Court or a High Court to the Court of appeal with the leave of the Federal high Court or that High Court or the Court of Appeal.
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a high Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other court after consideration of the record of the proceedings, if the Court of Appeal is of opinion that the interests of justice do not require an oral hearing of the application.” PER AWOTOYE, J.C.A.

WHETHER OR NOT GROUNDS OF APPEAL MUST BE RELATED TO THE DECISION BEING APPEALED AGAINST TO BE VALID

Now to the objection to the grounds of appeal. According to Onnoghen JSC in COOPERATIVE & COMMERCE BANK PLC & ANR V JONAH DAN OKORO EKPERI [2007] I SC Pt. II 130
“This settled law that for grounds of appeal to be valid and competent they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal.”
Also in OLUFEAGBA V ABDULRAHEEM (2009) 18 NWLR (Pt. 11783) 384, Fabiyi JSC had this to say.
“A ground of appeal can only be competent if the particulars and the nature of the alleged misdirection or error is clearly stated… it must disclose reasonable complaint against the ratio decidendi in the decision as opposed to an obiter-dictum. See EGBE V ALHAJI (1990) 1 NWLR (Pt. 128) 546; A. G. OYO STATE V FAIRLAKES HOTELS (1988) 5 NWLR (Pt. 92)” PER AWOTOYE, J.C.A.

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Appeal against the judgment of High Court of Sokoto sitting on appeal delivered on 8/7/2004 wherein the learned judges dismissed the appeal of the appellants in an interlocutory appeal as lacking in merit.
The facts of the case before the lower court are as follows: –
The appellant is a licensed agent.
The respondent contracted the sale of his properties to him.
The appellant sold the property for the sum of N2,500,000. and made payments to the respondent out of the proceed of the sale leaving a balance of N1,475,000.
The Respondent after several demands for the balance files an action against the appellant is suit No. UAC/111/SK/CV/F1/102/97 for its recovery. Judgment was given in favour of the Respondent in the sum of N1,475,000.
The Respondent subsequently successfully applied for execution of the judgment for the recovery of the judgment sum.
What transpired in court before the Respondent’s application was granted on 5/5/2000 is well set out on pages 1 – 3 of the record of the Upper Area Court III Sokoto. It is necessary for clarity’s sake to quote hereunder what transpired.
“I, Aliyu Abubakar Sayynna, plaintiff’s counsel (lawyer) Alhaji Malami Alkammawa. Am seeking this court to execute the judgment delivered against Alhaji Usman Tunga that he should pay Alhaji Malami Yaro the money of his house.
1. N1,400,000.00 since 10/3/98 which up to this moment is not been paid because of that I want the court to help me to collect for us those money N1,400,000.00.
The court agreed to the application of the counsel to the plaintiff Alhaji Aliyu Abubakar made to send summons to invite.
2. Alhaji Usman Tunga to appear before this Honourable Court on 14/1/2000. today, 14/1/2000 the plaintiff’s counsel Aliyu Abubakar and representative of the defendant Abdulkadir they appear before this court with the denfendant Usman Tunga.
3. Usman Tunga do you that you are owing Malami Yaro the balance of his money in sum of N1,100,000.00 and you have not paid him.
USMAN: Here is his counsel Abdulkadir he said he wants him to be given permission to estimate the debt Usman is owing.
COURT: agreed to this request and adjourned the matter to 17/1/2000
4. Today 17/1/2000 the plaintiff and the defendant together with the counsel to the plaintiff Aliyu Abubakar and the counsel to the defendant Abdulrahman.
COURT: Lawyer of the defendant Abdulkadir what do you say about the estimate you said you will prepare that you will bring today 17/1/2000.
5. ANS: Abdulkadir counsel to the defendant who is owing debt Alhaji Usman Tunga there is a paper for his house with this court because of that the house should be sold to settle the debt against him.
COURT: Alhaji Usman did you hear what your counsel Abdulkadir said what did you say?
ANS: Alhaji Usman Tunga whatever the counsel said I agree with him, I agreed for my house to be sold since he said so.
COURT: Alhaji Usman has admitted that his house be sold before police Inda Pengo Dan Uba and Aliyu Mai hulla.
COURT: Stop till 18/1/2000 to make order for sale of this house of Usman.
6. Today 18/1/2000 court sit to continue the execution of the judgment of this court on 10/3/98 where the court ordered Usman to Malami the money for his house N1,476,000.00 which up till now has not been paid where Usman himself gave the papers of his house to the court that he agreed same be sold to settle those money N1,476,000.00 which has paid where the sitting of 17/1/2000, Usman agreed that the house be sold to settle the debt against him and on the agreement of his counsel said before his witness. Because of that the court has attached the house of Usman to sell to sell to settle the debt owing him in favour of Malami Yaro N1,476,000.00 court ordered the paper to attach the house be pasted.
7. Today 29/1/2000 court agree to sell Usman’s house to Alh. Abdulrashid Jibrin Sokoto in the sum of N1,000,000.00 where he paid N350,000.00 in the month of March, 30/3/2000.
8. And I agreed that if I did not pay this said amount within the said time, I agree to return the house to open market when it is sold my money the sum of N350,000.00 will be given to me.
Today 2/3/2000 Abubakar Najari brought N350,000.00 out of the money owed Abdulrashid Jibrin Sokoto which is the part of the money he bought the house, totaling N700,000.00.

Dissatisfied with the decision of the Upper Area Court III Sokoto, the appellant appealed to the High Court Sokoto State. After hearing the appeal, His Lordships Abbas J and A. S. Dahiru dismissed the appeal as lacking merit and upheld the decision of the Upper Area Court III Sokoto emanating from UAC III/CVC/F2/102/97.
It is against this decision that the appellant in its amended Notice of Appeal filed eight grounds of appeal.

The grounds of appeal (excluding the particulars are):-

FIRST GROUND
The decision of the High Court of Sokoto State (sitting on appeal) is erroneous in Law, in that it confirm the Judgment/order of the Upper Area court II Sokoto which purports selling the appellant’s landed property covered by certificate of occupancy No. SOK 1193, without following procedure as prescribed by the Law.

SECOND GROUND
The High Court of Sokoto State sitting in its appellate jurisdiction in suit No: SS/AC/13A/2000 erred in law when it held that the Islamic Law principle of IZARI (final address) was compiled with by the Upper Area Court III Sokoto in suit No: U.A.C./III/SK/CV/FI/102/97 dated 5/5/2000.

THIRD GROUND
That the High Court Sokoto state (sitting on appeal) erred in law when it delivered its judgment in suit No: SS/AC/13A/2000 on 8th Day of July, 2004 (that is 10 months) after the conclusion of the hearing.

FOURTH GROUND
The High Court of Sokoto State (sitting on appeal) erred in law when it confirmed the decision of the upper Area court III Sokoto in suit: U.A.C./III/SK/CV/F1/102/97 dated 5/5/2000, the decision that contravened the law.

FIFTH GROUND
The High Court of Sokoto State (sitting on appeal) erred in law when it confirmed the decision of the upper Area Court III Sokoto in suit: No: U.A.C/III/SK/CV/F1/102/97 dated 5/5/2000, which granted representation without following the principle of Islamic Law.

SIXTH GROUND
The lower court erred in law and misdirected itself when it dismissed the appeal of the appellant based on misconception that the counsel to the defendant (now appellant) presented document for the court i.e. (trial Upper Area Court III Sokoto) for the court to sell the appellant’s house.

SEVENTH GROUND
The Lower Court erred in law and misdirected itself when it affirmed the interlocutory decision of the trial Upper Area Court III Sokoto emanating from substantive suit No: UAC/111/SK/CV/F1/102/97, dated 10th March, 1998 the decision which failed to ascertain the actual balance of indebtedness against the appellant, by way of stating the actual account i.e. (account stated).

EIGHT GROUND
The lower court erred in law and misdirected itself when it claimed that the appellant was present when his house was sold and money handed over to the respondent.

After transmission of record of appeal to this court each of the parties filed briefs of argument.
The appellant filed his amended brief of argument dated 12/11/2012. On receipt of the respondent’s further amended brief of argument, the appellant filed appellant’s reply brief of argument on 2/4/2013.
In the amended appellant’s brief of argument settled by IHEJIRIKA MAGNUS for the appellants, learned counsel formulated eight issues for determination.
The eight issues are: –
1. “Whether the judgment of the High Court Sokoto State is not erroneous in view of the fact that the Lower Court confirmed the decision of the trial Upper Area Court III by selling the appellant’s landed property to wit; his residential House covered by certificate of occupancy No. SOK.1193 without following the procedure by law.
2. Whether the High Court Sokoto State is right by holding that the principle of Islamic Law of Izari (final address before judgment) has been complied with the trial Upper Area Court III Sokoto in its decision.
3. Whether the High Court Sokoto State is not erroneous by delivering its judgment in suit No: SS/AC/13A/2000 Dated 8th July, 2004. Ten (10) months after the conclusion of hearing.
4. Whether the High Court Sokoto State is right in confirming the decision of the trial Upper Area court Iii Sokoto. The decision, which contravened the law by selling the appellant’s landed property, which is immovable property, when there are movable properties of the Appellant.
5. Whether the judgment of the High Court of Justice Sokoto State is not erroneous by confirming the decision of the trial Upper Area Court III Sokoto which listened to the delegation of the parties before it without following the procedure of Islamic Law on delegation (Wikala) as prescribed by Islamic Law.
6. Whether the Lower Court did not misdirected itself when it holds that the counsel to the Appellant presented a document to the Upper Area Court III Sokoto for the Appellant’s house to be sold.
7. Whether the Lower Court is right when it failed to ascertain the actual balance of indebtedness against the appellant before it arrived on its decision.
8. Whether the Lower Court did not misdirected itself by holding that the appellant was present when his house was sold and money handed over to the Respondent.”

On issue number one learned counsel for the appellant submitted that the learned judges erred in law by failing to observe the intents of the legislature in section 21(a) and 22 of the Land Use Act, which declared unlawful any transfer of landed property with statutory right of occupancy even with the order of any court without the consent of the Governor. He referred to SAVANNAH BANK (Nigeria) LTD V AJILO (1998) 1 NWLR (Part 97) at page 305 and ADEDEJI V NBN LTD (1989) 1 NWLR Pt. 9 page 212 at 215. He urged the court to resolve this issue in favour of the appellant.

On issue No.2 learned appellant’s counsel submitted that the failure to observe IZARI before the interlocutory order of the Upper Area Court III Sokoto vitiated the whole proceedings of the trial Upper Area Court III Sokoto and urged the court to resolve the issue in appellant’s favour.

On issue No.3 learned counsel for the appellant submitted that the lower court sitting in its appellate jurisdiction erred in law when it delivered its judgment 10 months after the conclusion of hearing. He relied on S.294 (1) of the constitution; he urged the court to allow the appeal on this issue.

On issue No.4 learned appellant’s counsel submitted that the lower court erred in law when it affirmed the decision of the Upper Area Court III Sokoto which was contrary to the provisions of section 19 of the Auctioneer’s law and the Sheriffs and Civil Process Act Cap 497.
He cited IHEKWE OBA V ACB LTD (1998) 10 NWLR (part 571) 590 at 607 TAIWO V ADEGBORO (1997) 11NWLR (Part 528) page 224 at 227.
He urged the court to resolve this issue in his favour.

On issue No.5 learned counsel submitted that the lower court erred by affirming the decision of the Upper Area Court which did not comply with the principle of Islamic Law-WIKALA.

On issue No.6 learned appellant’s counsel submitted that the lower court misdirected itself when it held that the counsel to the appellant at Upper Area Court III Sokoto consented to the procedure to sell the appellant’s landed property in the face of the provisions of the Land Use Act and S.19 of the Auctioneer is Law Cap 10. He added that the appellant’s counsel never consented to the procedure. He urged the court to resolve the issue in favour of the appellant.

On issue No.7 learned appellant’s counsel submitted that there was no fair trial and fair dealing in the procedure adopted by the lower court as proper account was not allowed. He submitted that had it been done it would have been discovered that only N720,000.00 was outstanding against the appellant. He urged the court to resolve the issue in favour of the appellant.

On issue No.8 learned appellant’s counsel submitted that the lower court misconceived the whole record of the trial court when it upheld that the appellant was present when his house was sold. He submitted that the appellant was not present and no advertisement or public auction was conducted before the sale.
He finally urged the court to allow this appeal.

The Respondent filed Respondent’s further amendment brief dated 11/3/2013 but filed on 13/3/2013 and settled by SOLOMON I. ALIMASUNYA.
He formulated 5 issues for determination to wit;
1. “Where the judgment of the High Court Sokoto State is not erroneous in view of the fact that the lower court confirmed the decision of the trial Upper Area Court III by selling the Appellant’s landed property to wit: this residential house covered by certificate of occupancy No. SOK. 1193 without following the procedure by law.
2. Whether the High Court of Sokoto state is right by holding that the principle of Islamic Law of IZARI (final address before judgment) has been complied with by the trial Upper Area Court III in its decision.
3. Whether the High Court of Justice Sokoto state is not erroneous by delivering its judgment in suit No. SS/AC/13A/2000 dated 8th July, 2004 Ten (10 months) after the conclusion of hearing.
4. Whether the High Court Sokoto State is right in confirming the decision of the trial Upper Area Court III Sokoto. The decision which contravened the law-by selling the appellant’s landed property which is immovable property when there are movable properties of the appellant.
5. Whether the judgment of High Court Sokoto State is not erroneous by confirming the decision of the trial Upper Area Court III Sokoto which listened to the delegation of the parties before it without following the procedure of Islamic law on delegation (Wikala) as prescribed by Islamic Law.

On issue No.1 Learned Respondent’s counsel submitted that the alienation of the statutory right of the occupancy of the appellant was done by his counsel. He referred to page 1 lines 25 – 34 and page 2 lines 1 – 19 of the printed record. He relied on AYO SOLANKE V ABRAHAM ABED & OR [1962] NNLR 92 at 94; OBA E. A. IPINLAYE II V CHIEF J. OLUKOTUN (1996) 36 LRCN 1023 at 1040 and other cases.
He submitted further that where a person had given his consent to a particular cause of event or action he could not later be heard to complain. He cited OLUBODE V SALAMI (1985) 2 NWLR Pt 7 282 at 284
He urged the court to dismiss their ground of appeal as lacking in merit.

On issue No. 2, he urged the court to hold that the Upper Area Court complied with the principle of Islamic law of IZARI even from the face of the record. He referred the court to page 25 lines 18 – 26 of the printed record.
Learned Respondent’s counsel urged the court to resolve this issue in favor of the respondent.

On issue No. 3 learned Respondent’s counsel submitted that the appellant was not mindful of the provisions of S.294 (5) of the 1999 constitution. He referred to the prominent decision of FABIYI JCA (as he then was) in ILLOMUANYA V. ILLOMUANYA (2004) 39 WRN 27 at 47 which reads;
“The appellants have not shown that they suffered miscarriage of justice by reason ride the dictate of section 294 (5) of the 1999 constitution”
He submitted that the appellant had not shown how he suffered miscarriage of justice by reason of the delay in delivery of the judgment.
He urged the court to resolve this issue in appellant’s favour.

On issue No. 4 learned Respondents counsel submitted that section 19 of the Auctioneer’s law cap 10 vol. 1 of the laws of Sokoto State was irrelevant but that even if it was relevant, was complied with by the Upper Area Court III since it gave more than one month notice after the placement of the auction. He urged the court to resolve this issue in favour of the Respondent.

On issue No. 5, learned Respondent’s counsel submitted that the application to execute the judgment of the Upper Area Court emanated from the substantive suit and there was no confusion as to representation.
He stated further that appellants counsel participated fully in the interlocutory application to execute the judgment of the trial court and did not raise any objection to the appearance of the said counsel. He urged the court to resolve this issue in favour of the Respondent.
He urged the court to dismiss the appeal.

The respondent also filed notice of preliminary objection to this appeal on the following grounds:-
1. That the appellant’s brief of argument dated 12/11/12 was filed out of time.
2. That grounds 6, 7 & 8 of the grounds of appeal as contained in the ADDITIONAL GROUNDS OF APPEAL dated 17/3/2006 and filed on the 4/4/2006 by the appellant are incompetent and should be struck out for the reason that it was not signed by a legal practitioner but by a firm of solicitors also violated section 242 of the Constitution of the Federal Republic of Nigeria.

Learned counsel for the Respondent Solomon Alimasuya, submitted that the additional grounds of appeal dated 17/3/2006 and filed 4/4/2006 was not signed by the appellant or his solicitor. He urged the court to hold that the additional grounds were incompetent and liable to be struck out.
He relied on ALIYU V. THE STATE (2008) 49 WRN 189 at 193.
He also urged the court to strike out the grounds of appeal as they alleged
i. both errors of law and misdirection
ii. that the grounds did not arise from the decision of the court
iii. that the grounds and their particulars are personal views of counsel and
iv. that the particulars in support of the 3 grounds are argumentative conclusive vague and do not flow from any alleged error or misdirection.
He referred to the following cases ADEGOROYE V. AD (2003) 46 WRN 47 at pages 6, 7 and 68, EGESIE V ELELIE (2001) 8 NWLR (Pt. 716) page 582 and other cases.
He further urged the court to strike out all the arguments on issues formulated on grounds 6 – 8 as the grounds were incompetent.
He submitted further that the appeal is against an interlocutory ruling and leave of court ought to have been sought and obtained. He referred to S.242 of the constitution, he cited OBI V OKEKE (2009) 3 WRN 80 at 83 and CHINAGEO V ENGR ISA (2008) 12 WRN 171 at 177 & 178.
He finally urged the court to uphold the preliminary objection by striking out the grounds of appeal and all arguments in support of them in the appellant’s brief of argument.

The appellant responded to the preliminary objection by filling appellants reply brief of argument.
Magnus Ihejirika for the appellant submitted that Order 17 Rule 2 and 3 (1) of the Rules did not require that the appellant or his solicitor sign additional grounds of appeal.
On the competence of the additional grounds of appeal he submitted that the grounds of appeal were not capable of misleading the other party and so were competent he referred to E. A. GARBA V KWARA INVESTMENT COMPANY LTD [2005] 1 SCNR 290 at 296 and other cases.
Learned counsel further submitted that the grounds of appeal arose from the decision of the lower court and so were competent. He referred to page 24 lines 22-31 of the record of proceedings of the lower court.
He added that the grounds of appeal were not argumentative nor vague.

On need for leave of court learned counsel submitted that leave of court was sought and obtained before the grounds of appeal relating to facts were filed.
He finally urged the court to dismiss the preliminary objection.
I have carefully considered the submissions of learned counsel on both sides as well as the content of records of appeal.

I shall first treat the preliminary objection raised by the respondent. It needs be noted that this is a further appeal from the decision of Upper Area Court III Sokoto which was the court of first instance. It is an appeal against an interlocutory decision at the Lower Court. This appeal itself is not interlocutory here in this court. It is an appeal against the final decision of the High Court, on the interlocutory appeal.
No leave of court is needed. See S.241 (1a) of the 1999 Constitution. By virtue of S.241 (1b) and S.242 (1) of the 1999 Constitution further appeals from the decision of a High Court shall be with leave of this court or the High Court unless where the ground of appeal involves questions of law alone.
For clarity’s sake I shall quote S.241 (1) and 242 (1) of the 1999 Constitution follows.

The next objection to consider is whether the brief of argument was filed out of time. I have carefully gone through the processes filed. It is clear from the record that the appellant did not file his brief on time but was granted an extension of time of 14 days to file the said brief on 9/10/2012. This the appellant never did.
From the appellant’s own averment in paragraph 4 (a) of the supporting affidavit to the motion filed on 23/9/2009 and granted on 5/10/2009, he filed his brief of argument in respect of this appeal dated 10/6/2006. He sought for and obtained an order of court to amend the said irregular brief on 5/10/2009. The brief was irregular because it was filed out of time and there was no extension of time granted by the court to regulate.
It therefore seems clear from the file that the amended brief of argument is like a house built on sand. There is no brief filed within time before the court.

Order 18 rule 2 of the Court of Appeal Rules 2011 reads;
“The Appellant shall within forty five days of the receipt of the record of Appeal from the court below file in the court a written brief being a succinct statement of his argument in the appeal.”
It is only after a brief has been regularly filed that it can be amended.
However, without objection from the Respondent, the appellant sought for and obtained the order of court to amend the improperly filed brief.
Having filed the amended appellant’s brief since 12-11-2012 with leave of court and without objection from the Respondent I shall invoke the provision of order 20 rules (2 – 3) in the interest of justice to waive compliance with the provision of order 18 rule 2 of the Rules and deem the amended appellant’s brief as having been properly filed and served.

The other objection of the Respondent is that the Additional Grounds of Appeal dated 17th day of March 2006 and filed on 4/4/2006 by the appellant were incompetent, having not been signed by a legal practitioner, I have gone through the rules of this Court.
It appears clear to me the statutory process required to be filed under order 6 rule 2 by the appellant is FORM 3 – NOTICE OF APPEAL.
Order 6 rule 2 of the Court of Appeal Rules read;
“(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.
(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) The Notice of Appeal shall be signed by the Appellant or his legal Representative.”
It follows from above that when leave of court to file additional grounds of appeal is granted what is required is the filing of an amended Notice of Appeal reflecting the new additional grounds.
It is the Notice of Appeal that is required to be signed by the legal practitioner or appellant see order 6 rule 4 of the Rules and not the additional grounds.
The grounds of Appeal filed on 4/4/2006 are not required by the rules unless incorporated into the Notice of Appeal.

I have gone through the amended Notice of Appeal filed subsequently on 1/6/2006 signed by learned counsel for the appellant Abdulkadir Iman Ibrahim and not a firm of solicitors. I am convinced it is in compliance with the rules of court and competent.
Now to the objection to the grounds of appeal. According to Onnoghen JSC in COOPERATIVE & COMMERCE BANK PLC & ANR V JONAH DAN OKORO EKPERI [2007] I SC Pt. II 130
“This settled law that for grounds of appeal to be valid and competent they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal.”
Also in OLUFEAGBA V ABDULRAHEEM (2009) 18 NWLR (Pt. 11783) 384, Fabiyi JSC had this to say.
“A ground of appeal can only be competent if the particulars and the nature of the alleged misdirection or error is clearly stated… it must disclose reasonable complaint against the ratio decidendi in the decision as opposed to an obiter-dictum. See EGBE V ALHAJI (1990) 1 NWLR (Pt. 128) 546; A. G. OYO STATE V FAIRLAKES HOTELS (1988) 5 NWLR (Pt. 92)”
I have gone through the grounds of appeal. I am unable to agree with the Respondent that they are incompetent. They disclose reasonable complaint against the ratio decidendi in the decision appealed against.
The preliminary objection fails in its entirely for lack of merit. It is hereby overruled.

Now to the main appeal.
I have gone through the issues formulated for determination by learned counsel on both sides. The sole issue that calls for determination in my respectful view is whether or not the High Court of Justice Sokoto State sitting in its appellate jurisdiction on 8/7/2004 was right to have dismissed the appeal filed by the appellant. This issue is wide enough to embrace all the issues formulated by the parties.

Section 38 of the Area Court Law of Sokoto State Cap 9, which reads “Any judgment or order given or made by an area court in a civil cause or matter may be enforced by seizure and sale of the property of the person condemned therein or by such other methods of enforcing judgments and orders as may be prescribed by rules made under section 65.” Could the Upper Area Court Sokoto have acted under this section of the law to order the sale of the house of the appellant in execution of the judgment in UAC/III/SK/CV/FI/102/97
What is the ambit of section 38 of the Area Courts Law of Sokoto State? No doubt the Sheriffs and Civil Process law Cap 134 of Sokoto State is inapplicable to Area Courts because under its interpretation section, section 2 court is defined to include the High Court, a district court and a Magistrate Court.
The Upper Area Court III Sokoto from which the appeal emanated to the High Court ostensibly acted under S.38 of the Area Court law of Sokoto State to enforce the earlier judgment in VAC/111/SK/CV/F1/102/97. The essence of this appeal in my respectful view, is the order of the sale of the house of appellant in execution of the said judgment.
I shall view this appeal in the light of the above sole issue formulated by me.
By virtue of Section 41 of the Land Use Act, 1978.
“An area court or customary court or other court of equivalent jurisdiction in a state shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a local government under this Act….”
However, section 39 of the Land Use Act vests jurisdiction in High Court in respect of proceedings in respect of any land the subject of a statutory right of occupancy granted by the governor or deemed to be granted by him under this Act…”
The Area Court’s Law which is a state law cannot vest jurisdiction is a state court which the Federal Law Land Use Act has divested it of. See section 4 (5) of the 1999 Constitution.
Both parties in this appeal agree that the land in question is subject matter of a statutory right of occupancy with C. of O. No Sok 1193. An Area Court does not have jurisdiction to order its sale. See ERHUNMWUNSE V EHARNIRE [2003] 13NWLR [Pt. 837] 353. What the Area Court did was an exercise in futility and should not have been affirmed by the lower court. According to Bello CJN in UTIH & ORS V ONOYIUWE (1991) 1 NWLR (Pt.166) 166.
“…jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise”.
I hold that the residential house covered by the certificate of occupancy No. SOK 1193 lying and situated at Mabera Area Sokoto was wrongly ordered to be sold by the Upper Area Court. Every order made in respect thereof is void for lack of jurisdiction. I therefore resolve the sole issue as formulated by me in favour of the appellant.

I need to comment on the submission that the lower court was in error to have delivered its judgment in suit No. SS/AC/13A/2000 dated 8th July 2004; ten months after the conclusion of hearing.
I must state that I am in full agreement with the Respondent when he submitted that no miscarriage of justice was done by the delay S.294 (1) and S.294(5) of the 1999 constitution are quite explicit on this.
They read;
“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….5) The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The appellant has not shown that he suffered any miscarriage of justice by reason of the delay. This submission is therefore a non sequitur. It does not hold water at all.

In the circumstance this appeal succeeds as it has merit.
I make the following orders.
a. The judgment of the High Court Sokoto State in Suit No.SS/AC/13A/2000 delivered on 8/7/2004 is hereby set aside.
b. The order/ruling and proceedings of the Upper Area Court III Sokoto dated 5/5/2000 which were affirmed by the High Court on 8/7/2004 as they concern the sale of appellants landed property covered by certificate of occupancy No SOK 1193 are hereby set aside for lack of jurisdiction.
I award N60,000 costs in favour of the appellant.

JA’AFARU MIKA’ILU, J.C.A.: I have carefully perused the lead judgment of my learned brother Hon. Justice Tunde O. Awotoye, JCA. I agree with all the reasons therein and the conclusion reached thereof. The appeal has merit and it succeeds. I allow the appeal with the same orders as per the lead judgment.

JAMES SHEHU ABIRIYI, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Tunde O. Awotoye, JCA.
I agree that this appeal should be allowed. I too allow the appeal. I abide by all the consequential orders made in the lead judgment.

Appearances

For Appellant

AND

For Respondent