ALIYU v. UNKNOWN PERSON & ORS (2022)

ALIYU v. UNKNOWN PERSON & ORS

(2022)LCN/16197(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, November 04, 2022

CA/KN/239/2020

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

ALH. SULEMAN ALIYU APPELANT(S)

And

1. UNKNOWN PERSON 2. BUREAU FOR LAND & MANAGEMENT OF KANO STATE 3. DR. AHMAD MUHAMMAD SARAKI 4. SARAKI KLASSIQUE MERCHANDISE SKM LTD 5. ALH. GARBA YAKUBU LADO RESPONDENT(S)

RATIO

THE POSITION OF LAW ON A NOTICE OF APPEAL

A Notice of Appeal is an originating process in the Court of Appeal, which must be regular on the face of it and true, particularly, with regards to the judgment or decision appealed against. Appellant cannot originate appeal against a non-existing judgment or decision of a trial Court, and cause the appellate Court to waste its judicial time and resources to entertain, and when told that he took the Court on a fool’s voyage, explain that he made a mistake on the suit number; that he intended another decision whereof he listed some reliefs. And yet asserts that the defective appeal on the non-existing judgment is competent!
That is a very absurd and immature submission, founded on ignorance, clear misconception of the law, and paucity of knowledge of legal principles, relating to prosecution of appeals in Appellate Courts. PER MBABA, J.C.A.

WHETHER OR NOT A DEFECTIVE NOTICE OF APPEAL IS ENTITLED TO BE STRUCK OUT

The law is trite, that where a Notice of Appeal is defective, the Court is entitled to strike it out, either on the motion of the adverse party, or on its own discretion. See Order 7 Rule 6 of the Court of Appeal Rules, 2021. See also the case of Uwazurike & Ors Vs A.G. Federation (2007) LPELR-3448 SC, where it was held:
“It must be borne in mind always and this is also settled that a notice of appeal is the foundation and substratum of every appeal. Any defect thereto or therein will render the whole appeal incompetent and the appellate Court will lack the required jurisdiction to entertain it or any interlocutory application based on the said appeal. See the cases of Aviagents Ltd. v. Balstravest Investment Ltd. (1966) 1 All ER 450; Olowokere v. African Newspapers (1993) 5 NWLR (Pt. 295) 583 and Olanrewaju v. B.O.N. Ltd. (1994) 8 NWLR (Pt. 364) 622 just to mention but a few.”
See also Umezinne Vs FRN (2018) LPELR-46334 (SC), where it was held:
“A Notice of Appeal is an originating process; thus, any defect therein goes to the root of the appeal and robs an appellate Court of jurisdiction to hear the appeal – see Nonye Iwunze V. FRN (2015) 6 NWLR (Pt. 1404) 580 SC, wherein Rhodes-Vivour, JSC, observed – The Constitution confers on the Court of Appeal Jurisdiction to hear and determine appeals – – The Court of Appeal would lack jurisdiction to hear an appeal if an Appellant fails to comply with Statutory Provisions or the relevant rules of Court. The originating process in all appeals is the Notice of Appeal. Once it is found to be defective, the Court of Appeal ceases to have jurisdiction to entertain an appeal in whatever form. See also FRN V. Dairo (2015) 6 NWLR (Pt. 1454) 141 at 166/177 SC, wherein C. C. Nweze, JSC, likened a defective Notice to a virus, thus: The notice (actually a competent notice of appeal) is the foundational process that triggers off an appeal from a High Court to the lower Court – – As such, any virus in this process would, invariably, corrode or taint the entire appeal thereby rendering it incompetent – – The effect of such a viral corrosion is, usually, far-reaching as it nibbles at the jurisdiction of the appeal Court which must, as of necessity, strike out such a process – – In effect, the absence of a competent Notice of Appeal, simply, translates to the non-existence of an appeal – – This must be so for it is a condition precedent to any valid exercise of appellate jurisdiction. The importance of a notice of appeal in the process of an appeal is, therefore, tremendous because it is the substratum of the appeal. Thus, if it is defective, it must be struck out on the ground that it is incompetent – see First Bank Plc. V. T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt.1216) 247 and Shelim V. Gobang (2009) 12 N.W.L.R (Part. 1156) 435. PER MBABA, J.C.A.

WHETHER OR NOT A DECISION MADE AGAINST A PERSON NOT PARTY TO A SUIT IS NULL AND VOID

THE FUNDAMENTAL RIGHT OF FAIR HEARING

The right of fair hearing forms the “soul” of any judicial decision/order of Court, and where one has not been heard or given opportunity to be heard, the decision is a complete nullity and cannot be enforced against the party, having not been heard” In Akpamgbo-Okadigbo & Ors Vs Chidi & Ors (N0.1) (2015) 3 SCM 141 at 1661 (2015) 10 NWLR (Pt.1466) 171 at 198 this Court, per Onnoghen, JSC (as he then was, now CJN) held as follows: “Where there is a failure to hear all the necessary parties to the dispute before a decision is reached, there is a breach of Section 36 (1) of the 1999 Constitution as amended which has the effect of automatically rendering the proceedings in the action and the judgment or ruling resulting therefrom a nullity and void, without any legal effect.” PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the ruling of the Kano State High Court in Suit No. K/283/2019, delivered on 29th September, 2020 by Hon. Justice Usman Mallam Na’abba, wherein the learned trial Judge granted leave to the 3rd to 5th Defendants (now Respondents) to be joined in the suit as interested parties.

At the trial Court, Appellant as plaintiff, had filed an action against Unknown Person as first Defendant and the Bureau for Land Management, Kano State, as 2nd Defendant, for declaration of title to plot of land at No. C1 and C2 Tudun Yola Quarters in Kano State.

The 3rd to 5th Defendants (now respondents) were not parties and so not served with the originating processes, but the Court levied execution on the said properties, known as No. C1 and C2, Tudun Yola Quarters, Kano, covered by certificate of Occupancy No. LKN/COM/2011/269, said to have been built and occupied by the 3rd and 4th Respondents, and housing, not less than, 40 persons as occupants. The 3rd, 4th and 5th Respondents (Defendants), therefore, applied in two separate applications, for leave to be joined as interested parties, as well as for an order setting aside the judgment and execution, levied against their property. The trial Court, in its considered ruling of 29th September 2020, granted the two applications, set aside its earlier judgment and granted leave to the 3rd to 5th Defendants (Respondents) to be joined as Defendants in the case.

That is the order/ruling Appellant claimed to have appealed against in this appeal, as per the Amended Notice of Appeal and Grounds of Appeal, filed on 5/11/2021, disclosing nine (9) grounds of appeal. Appellant filed Amended Brief of Argument on 5/11/2021, which was deemed duly filed on 16/3/2022, and distilled nine (9) issues for the determination of the Appeal, as follows:
1) Whether the learned trial Judge was right in granting the 3rd and 4th interested parties on an order (sic) dated 19th day of August, 2020, without given(sic) an opportunity to the Appellant to be heard in line with the provision of principle of fair hearing under 1999 Constitution of the Federal Republic of Nigeria.
2) Whether the learned trial Judge was right in granting an order (sic) dated the 19th day of August, 2020, without the 3rd and 4th interested parties pays (sic) the default filling fees from the date the High Court No. 3 delivered the Judgment.
3) Whether the 3rd, 4th and 5th respondents were estopped from relitigating this case in Suit No, K/283/2019 being the suit was (sic) heard and determined by the High Court No. 3 presided by Hon. Justice A. T. Badamasi delivered on 6th January, 2020.
4) Whether lower Court Judge was right when he set aside the judgment of High Court No. 3 delivered by Hon. Justice A. T. Badamasi on 6th January, 2020 even though the Appellants did not file (sic) statement of defence together with the application while applying before the Court.
5) Whether the lower Court Judge was right when he set aside the judgment of the High Court No. 3 even though he did not evaluate the affidavit of the judgment creditor/appellant and refuse (sic) to say anything concerning the paragraphs of the said affidavit.
6) Whether the lower Court Judge was right when he delivered ruling in favour of the two applicants even though the two applicants did not file further and better affidavit to controvert the content of the counter affidavit of the judgment creditor/appellant.
7) Whether the learned trial Judge was right in delivering the ruling in favour of the Respondents even though he refused (sic) to pronounce and decide on all issues raised in the counter affidavit of the judgment creditor/appellant and all exhibits so far attached.
8) Whether the Respondents being an (sic) interested parties they must apply and obtain leave of the trial Court to appeal as an (sic) interested parties as required under the provisions of Section 243(1) (a) of the 1999 Constitution.
9) Whether the judgment of the trial Judge is against the weight of evidence.”

Appellant did not relate the Issues to the grounds of Appeal, formally, and on being reminded at the hearing of the appeal, Appellant’s Counsel said that the 9 issues derived from the 9 grounds of Appeal, serially.

The 3rd and 4th Respondents filed their Brief of argument on 24/5/2022 and raised a Preliminary Objection in the Brief, challenging the competence of the Notice of Appeal which was deemed duly filed on 16/3/2022 but dated 5th November, 2021, praying that it be struck out.

In the alternative, 3rd and 4th Respondents raised a lone issue for the determination of the appeal, namely:
“Having regards to the nature of this case, whether the lower Court was right in granting the 3rd, 4th and 5th Respondent’s prayers on the 29th day of September, 2020.”

The 5th Respondent filed his brief of Arguments on 30/5/2022. He too raised a lone issue for the determination of the Appeal, namely:
“Whether the learned trial Judge was right in setting aside the default judgment in this suit and granting leave to the 3rd, 4th and 5th Respondents to be joined as parties, same having affected them without being heard.”

The 2nd Respondent filed no Brief and the 1st Respondent could not have, being Unknown Person.

As a threshold issue, we have to consider the preliminary objection, first, as the success of same will terminate the appeal, in limine. See Uzoho Vs Asugha (2017) LPELR-42073 (CA):
“As is the usual practice, I shall first of all consider the Preliminary Objection, as the success of the same can determine this appeal in limine. See the case of Nwaolisah v. Nwaobufoh (2011) LRCN 21 at 60 (2011) 14 NWLR (Pt.1268) 600; Alaribe vs Okwuonu (2015) LPELR 24297.”

The counsel for 3rd and 4th Respondents had urged us to strike out this appeal for incompetence, because:
(1) The Amended Notice of Appeal deemed properly filed on 16/3/22 are incompetent on the ground that the appeal is against the ruling of the High Court… delivered on 23rd September, 2020, whereas the relief sought by the Appellant is for an order setting aside the ruling of High Court No. 8 of Kano State delivered on 29th September, 2020 presided over by Hon. Justice Usman Na Abba.
(2) Grounds 1, 2 and 3 of the grounds of Appeal as contained on the amended Notice of Appeal deemed properly filed on 16/03/22 are incompetent and liable to be struck out because the 3 grounds are challenging the ruling of the trial High Court dated 19th August 2020 which does not formed (sic) part of the Appellant’s appeal herein.”

Arguing the preliminary objection, 3rd and 4th Respondents’ Counsel M. I. Musa, Esq., urged us to strike out the appeal by reason of the above stated grounds. He asserted that, whereas the Notice of Appeal is seeking an order to set aside the judgment of the trial Court delivered on 29th September, 2020, the Amended Notice of Appeal is about judgment/ruling of the High Court, delivered on 23rd September, 2020, while Appellant, in the reliefs sought, is seeking remedy in respect of the judgment/ruling delivered on 29th September, 2020. Counsel said that, so far the appeal is against the ruling of 23rd September, 2020, there is no relief against the ruling, delivered on the 23rd September, 2020, and this makes the Amended Notice of Appeal incompetent and liable to be struck out. He relied on the case of Aderibigbe & Anor Vs Abidoye (2009) LPELR-140 (SC); Nigerian Navy & Ors Vs E-Tiana Ventures Ltd (2021) LPELR-55970 CA.

Counsel further said that, whereas Appellant claimed to have appealed against the entire ruling of 23rd September, 2020, the grounds 1, 2 and 3 of the appeal are quarrels against the decision of the trial Court, delivered on 19th August, 2020! He urged us to strike out the said 3 Grounds of Appeal for incompetence, the same not relating to the decision of 23/9/2020 appealed against. He relied on the case of Uzoechina & Ors Vs Unokah & Ors (2014) LPELR-22594 CA, LASTMA Vs Esezeoobo (2010) LPELR-4220 (sic) CA and Uwazurike Vs A.G. Federation (2007) LPELR-34481 SC.

Counsel urged us to strike out the Appeal, or the grounds 1, 2, and 3, for the reasons advanced, above.

Responding to the preliminary objection, Appellant’s Counsel, Nasir Abdurrahman, Esq., said that 23rd September, 2020, written as date of the ruling appealed against, was a mistake; that it was very clear, from the reliefs sought, that Appellant was seeking an order to set aside the ruling of 29th September, 2020. Counsel said that on page 2 of the Amended Notice of Appeal, that Appellant amended the brief of argument properly, by referring to the decision of the lower Court, delivered on 29th September, 2020; he said that there was no decision of the Court on 23/9/2020.

On the 2nd issue of the grounds 1, 2 and 3 of the appeal being incompetent, Counsel relied on the case of Nwaolisah Vs Nwabufoh (2011) 14 NWLR (Pt 1268) 600 at 641, to say that “A preliminary objection should only be filed against the hearing of appeal and not against one or more grounds of appeal…” Counsel said that by including objection against grounds 1, 2 and 3 of the appeal, in the preliminary objection, the said preliminary objection becomes incompetent. He also relied on Adejumo Vs Olawaiye (2014) 12 NWLR (Pt 1421) 252 at 279.

He urged us to dismiss the preliminary objection, saying that the era of relying on technicalities to abort the hearing of appeal is over; that the inclination of the Court has always been to do substantial justice; that where objection touches on irregularity, the same can be corrected or overlooked. He relied on Kakih Vs PDP (2014) 15 NWLR (Pt 1430) 403-404; Japhet Vs State (2016) NWLR (Pt 1509) 602; Oleksandr Vs Lonestar Drilling Co. Ltd (2015) NWLR (Pt 1464) 337.

The 5th Respondent’s Counsel had aligned himself with the submission of the Counsel for the 3rd and 4th Respondents.

RESOLUTION OF THE PRELIMINARY OBJECTION
With such response by the learned Counsel for the Appellant, it is clear that he has conceded that this appeal is not against the decision of the trial Court in the suit No. K/283/2019 delivered on 29th September, 2020, setting aside the earlier decision of the Court and allowing the 3rd, 4th and 5th Respondents to be joined as parties, to defend the suit. Appellant’s Amended Notice of Appeal, filed on 5/11/2021 and deemed duly filed on 16//3/2022, is against the ruling of the trial Court, delivered on 23rd September, 2020 by Hon. Justice Usman Na’abba. Now Appellant’s Counsel has told this Court that that was a mistake, as there is no decision of the trial Court, delivered on the said 23rd September, 2020.

That was indeed a very costly mistake by Appellant’s Counsel, which cannot be treated lightly, as an irregularity, as suggested by Appellant’s Counsel. On noticing that he made such grave error, Appellant was supposed to apply to further amend his said Notice of Appeal, or withdraw the appeal, to file it afresh. He rather undertook the fruitless and immature labour of filing a Reply Brief, trying to defend the indefensible, to justify his obvious blunders, suggesting that such a fundamental defect was a mere irregularity, that can be corrected, or that it was a complaint founded on technicalities!

A Notice of Appeal is an originating process in the Court of Appeal, which must be regular on the face of it and true, particularly, with regards to the judgment or decision appealed against. Appellant cannot originate appeal against a non-existing judgment or decision of a trial Court, and cause the appellate Court to waste its judicial time and resources to entertain, and when told that he took the Court on a fool’s voyage, explain that he made a mistake on the suit number; that he intended another decision whereof he listed some reliefs. And yet asserts that the defective appeal on the non-existing judgment is competent!
That is a very absurd and immature submission, founded on ignorance, clear misconception of the law, and paucity of knowledge of legal principles, relating to prosecution of appeals in Appellate Courts.

Apart from this flaw by the Appellant’s Counsel, I also noticed some unpardonable errors in the couching of the grounds of the appeal; like the grounds 1 to 3, which are also complaints against some decision not contemplated in the ruling appealed against.

Appellant’s Counsel did not also relate the issues (which are proliferate and vague, mostly) to the Grounds of Appeal, which are also repetitive and mostly unrelated to complaints about the substance of the case – being leave to join interested parties.

The law is trite, that where a Notice of Appeal is defective, the Court is entitled to strike it out, either on the motion of the adverse party, or on its own discretion. See Order 7 Rule 6 of the Court of Appeal Rules, 2021. See also the case of Uwazurike & Ors Vs A.G. Federation (2007) LPELR-3448 SC, where it was held:
“It must be borne in mind always and this is also settled that a notice of appeal is the foundation and substratum of every appeal. Any defect thereto or therein will render the whole appeal incompetent and the appellate Court will lack the required jurisdiction to entertain it or any interlocutory application based on the said appeal. See the cases of Aviagents Ltd. v. Balstravest Investment Ltd. (1966) 1 All ER 450; Olowokere v. African Newspapers (1993) 5 NWLR (Pt. 295) 583 and Olanrewaju v. B.O.N. Ltd. (1994) 8 NWLR (Pt. 364) 622 just to mention but a few.”
See also Umezinne Vs FRN (2018) LPELR-46334 (SC), where it was held:
“A Notice of Appeal is an originating process; thus, any defect therein goes to the root of the appeal and robs an appellate Court of jurisdiction to hear the appeal – see Nonye Iwunze V. FRN (2015) 6 NWLR (Pt. 1404) 580 SC, wherein Rhodes-Vivour, JSC, observed – The Constitution confers on the Court of Appeal Jurisdiction to hear and determine appeals – – The Court of Appeal would lack jurisdiction to hear an appeal if an Appellant fails to comply with Statutory Provisions or the relevant rules of Court. The originating process in all appeals is the Notice of Appeal. Once it is found to be defective, the Court of Appeal ceases to have jurisdiction to entertain an appeal in whatever form. See also FRN V. Dairo (2015) 6 NWLR (Pt. 1454) 141 at 166/177 SC, wherein C. C. Nweze, JSC, likened a defective Notice to a virus, thus: The notice (actually a competent notice of appeal) is the foundational process that triggers off an appeal from a High Court to the lower Court – – As such, any virus in this process would, invariably, corrode or taint the entire appeal thereby rendering it incompetent – – The effect of such a viral corrosion is, usually, far-reaching as it nibbles at the jurisdiction of the appeal Court which must, as of necessity, strike out such a process – – In effect, the absence of a competent Notice of Appeal, simply, translates to the non-existence of an appeal – – This must be so for it is a condition precedent to any valid exercise of appellate jurisdiction. The importance of a notice of appeal in the process of an appeal is, therefore, tremendous because it is the substratum of the appeal. Thus, if it is defective, it must be struck out on the ground that it is incompetent – see First Bank Plc. V. T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt.1216) 247 and Shelim V. Gobang (2009) 12 N.W.L.R (Part. 1156) 435. In this case, the Notice of Appeal filed at the Court of Appeal is fundamentally defective as it was signed by a legal practitioner. The Court of Appeal had no jurisdiction to entertain the appeal in the first place, not to mention deliver a judgment on the appeal. Thus, I also strike out the appeal for being incompetent.” Per AUGIE, JSC.
In this appeal, Appellant’s Notice of Appeal was founded on a non-existing decision, allegedly delivered on 23/9/2020 in Suit No. K/283/2019, whereas the reliefs sought the setting aside of a ruling delivered on 29/9/2020, in the said Suit No. K/283/2019! The appeal is incurably, defective and is accordingly struck out for incompetence.

Even if the Appellant had stated the correct date of the ruling appealed against, and the correct Suit Number (in some processes, Appellant listed the Suit Number as No. K/238/2019 – See the Reply Brief filed on 30/5/22), I still do not think Appellant can, successfully, raise appeal against the interlocutory decision of the trial Court, setting aside a decision it made earlier on 6/1/2020, binding persons who were not parties to the case, and joining the said persons as interested parties, to defend their interest in the suit.

By law, a decision made against a person, not made a party to a suit, is null and void, where such person was/is a necessary party, but not joined and in whose absence the suit cannot be effectively and effectually, determined. See the case of Poroye & Ors Vs Makarfi & Ors (2017) LPELR-42738 (SC), where it was held:
In the same vein, a necessary party has been held to be a person whose presence in an action is essential for the effectual and complete determination of the claim before the Court. He is the party in the absence of whom the claim cannot be effectively and completely fairly determined by the Court. See; Oyedeji Akani (Mogaji) Vs. Fabunmi & Anor. In Re: Yesufu Faleki (Mogaji) (1986) 2 SC 431 at 449; (1986) 1 NWLR (Pt.19) 7591; Ige & Ors Vs Farinde & Ors (1994) NWLR (Pt. 354) 42; (1994) 7-8 SCNJ 284. However, where all the facts before the Court are sufficient for the effectual or complete determination of the claim between the existing parties before the Court, an applicant seeking to be joined will not be a necessary party and his application will be rightly refused by the Court. But the decision of a Court reached in the absence of an adjudged necessary party will be a nullity and an exercise in futility, not having been given fair hearing in the determination of his right by the Court. Any such decision will be liable to be set aside on appeal. In the judgment of the Court below, the Court had rightly opined as follows: “Section 36(1) of the Constitution forbids a Court to make order that affects the interest of a person, without hearing him or giving him opportunity to be heard. The right of fair hearing forms the “soul” of any judicial decision/order of Court, and where one has not been heard or given opportunity to be heard, the decision is a complete nullity and cannot be enforced against the party, having not been heard” In Akpamgbo-Okadigbo & Ors Vs Chidi & Ors (N0.1) (2015) 3 SCM 141 at 1661 (2015) 10 NWLR (Pt.1466) 171 at 198 this Court, per Onnoghen, JSC (as he then was, now CJN) held as follows: “Where there is a failure to hear all the necessary parties to the dispute before a decision is reached, there is a breach of Section 36 (1) of the 1999 Constitution as amended which has the effect of automatically rendering the proceedings in the action and the judgment or ruling resulting therefrom a nullity and void, without any legal effect.” In the instant matter, having regard to the claims of the appellants as plaintiffs at the trial Court, I am of the firm view that the interests of the respondents were affected, to the effect that the plaintiffs/appellants claims could not have been fairly, effectually and completely determined without them being joined as defendants. In other words, they were necessary parties to the suit instituted by the appellants. The Court below was therefore right to have, on that basis, set aside the judgment of the trial Court.” Per ARIWOOLA, JSC.

The suit of the Appellant, at the lower Court, was commenced against an “Unknown Person”; as the 1st Plaintiff, and a nominal 2nd Respondent (Bureau for Land Management of Kano State), as parties. The Court entered judgment for the Appellant against the said “Unknown Person”, who, of course, could not be reached to defend the suit, being unknown. At the point of execution of the judgment, the 3rd, 4th and 5th Respondents, who occupied the property, appeared, to lay claims to the property (thereby showing themselves as the alleged Unknown Person). I think their application to set aside the judgment and join them, as Interested parties, to defend action, was well taken by the trial Court.

Accordingly, I see merit in the preliminary objection and strike out the appeal, for incompetence, as highlighted, above, about the defects in the Notice of Appeal.

Appellant shall pay the cost of this appeal, assessed at One Hundred Thousand Naira (₦100,000.00) only in favour of the 3rd to 5th Respondents.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft form, the leading judgment of my learned brother ITA G. MBABA, J. C. A. I am in agreement with his reasoning and conclusion on the appeal.

I equally abide by all the consequential orders of His Lordship including that as to costs.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother l. G. MBABA, JCA. I equally see merit in the preliminary objection and as such, hereby strike out the appeal for incompetence of the notice of appeal as highlighted. I abide by all other consequential orders as contained in the lead judgment.