AMBURSA v. GOHE (2020)

AMBURSA v. GOHE

(2020)LCN/14504(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/S/42/2018

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

SHAFI’U SHEHU AMBURSA APPELANT(S)

And

ALH. LAWAL GOHE RESPONDENT(S)

RATIO

WHETHER OR NOT AN AMENDED JUDICIAL PROCESS RELATES BACK TO THE DATE OF THE ORIGINAL PROCESS WAS FILED

The settled position of the law is that an amended judicial process relates back to the date the original process was filed and that what stood before the amendment is no longer material before the Court and no longer defined the issues at stake to be tried between the parties. See the cases of ADEWUMI vs. AT-GEN-EKITI (2002) 1 SCNJ 27; ERUE vs. OKOTIE-EBOH (2017) 48 WRN 1-181 AT PG 138 PP @ 141 – RATIO 1 and the English case of WARNER vs. SAMPSON & ANOR. (1959) 1 QBD 297, 321. PER OHO, J.C.A.

WHETHER OR NOT A STATEMENT OF CLAIM IN A SUIT SUPERSEDES THE ORIGINAL WRIT OF SUMMONS

A second approach and perhaps, one which packs an unassailable lead on the issue is the settled position of the law, which clearly ordains that in the realm of pleadings, a Statement of Claim, once filed supersedes the writ of summons by which the suit was originally commenced. See the old case of OTANIOKU vs. ALLI (1977) LPELR-2820 SC where the apex Court per D. A. R. ALEXANDAR, JSC had this to say on the subject;
“In the face of well-established authority, therefore, the Statement of Claim in the suit superseded the original Writ of Summons. See UDOCHUKWU vs. OKWUKA (1956) 1 FSC 70.”
See also the case of STOWE vs. BENSTOWE (2012) WRN VOL. 13 (PT. 188) AT 1-8 RATIO 2per NGWUTA, JSC where the apex Court held thus:
“The writ, an initiating process, states the cause of action and the relief sought. The statement of claim amplifies the concise statement in the writ of summons. Once the statement of claim is filed, the writ of summons fades out of the picture as it were. The statement of claim supersedes the writ. See Udochukwu v. Okwuka (1956) 1 FSC 70.”PER OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This judgment is in respect of an Appeal against the judgment of the High Court of Kebbi State sitting at Birnin Kebbi, delivered on the 13th day of December, 2017 Coram: I. B. MAIRIGA, J in appeal No. KB/HC/27/2015 against one Bala Mohammed for a declaration of title to a piece land on which there is a developed property (house). The Respondent (Claimant) filed his Writ of Summons dated 18-09-2015 and Statement of Claim dated 11-09-2015.

The said Bala Mohammed entered his defence and the matter proceeded to pre-trial and trial without the Appellant’s father (Late Alhaji Chiso Ambursa) joined as a Defendant. (See page 78 – 84 of the record of appeal). The Respondent opened his trial and closed on the 24-5-2016 with the evidence of the PW1 and PW2, who adopted their written statements on oath. (See page 171-173 of the record of appeal) and (Page 8 – 12 of the record of appeal for the adopted statements on oath of the PW1 and PW2).

After the Respondent closed his case; the Respondent applied to join the Appellant’s father (Late Alhaji Chiso Ambursa) as a 2nd Defendant on the

14-12-2016. (See page 63 of the record of appeal) and amended his Statement of Claim, witness deposition on oath to include the Appellant as 2nd Defendant on the 28-02-2017 (See page 49 of the record of appeal). Hence the Appellant’s father (Late Alhaji Chiso Ambursa) was properly brought to Court and joined in the proceedings on the 28-02-2017 after the closure of the Respondent’s case on the 24-5-2016. The trial Court subsequently and after hearing the parties and based on the evidence of the Respondent Court, entered judgment against the Appellant’s father (Late Alhaji Chiso Ambursa).

Dissatisfied with the judgment of the trial Court the Appellant’s father (Late Alhaji Chiso Ambursa) filed this appeal on 23rd January, 2018 and on the 20th February, 2018, he filed a second Notice of Appeal. This brief is based on the notice of appeal filed on 20th February, 2018. On the death of Alhaji Chiso Ambursa; his eldest son was substituted by an order of this Court dated 23rd October, 2018 and deeming the amended notice of appeal and the amended brief of argument filed on 22nd October, 2018 as properly filed and served on the same day i.e., the 23rd October, 2018.

ISSUES FOR DETERMINATION:
The Appellant nominated a total of four (4) issues for the determination of this Appeal thus:
1. WHETHER the trial judge can assume jurisdiction on the Appellant’s late father “ALH CHISO AMBURSA” when ALH CHISO AMBURSA was not sued on the writ of summons filed by the Respondent. (Ground 3)
2. WHETHER by the decision in BASSEY EDIBI vs. THE STATE (2009) LPELR-8702 Hon. Justice E.A. Karatu has the Juridical power to read a Judgment not written and signed by Hon. Justice I.B. Mairiga (retired) as at 13-12-2017 (Ground 1)
3. WHETHER in a case for a declaration of title to land; the Claimant case is won on the strengths of his case or on the weakness of the defence (Grounds 5 and 6)
4. WHETHER from the evidence led by the Respondent before the trial Court on 24th May, 2016, the Respondent made any case on a preponderance of evidence against the Appellant for a declaration of title to any land. (Grounds 2 and 7)

On the part of the Respondent, the issues nominated by the Appellant were adopted and it is in respect of these issues that learned Counsel addressed Court extensively in their

briefs of argument. On this score, this Court shall determine this Appeal based on the issues nominated by the Appellant and adopted by the Respondent. In addition, the Respondent raised a Notice of Preliminary Objection. Not to the hearing of the Appeal per se but against the Grounds of Appeal filed the Appellant.
The Respondents also filed a Notice of Preliminary Objection directed only at the competence of Grounds 2 and 5 out of a total of seven (7) Grounds of Appeal filed and the corresponding issues nominated from these grounds and argued same at pages 2-14 of the Respondent’s Brief of argument. The purpose of a Notice of Preliminary Objection, it has been said for the umpteenth time is to lead quickly to the termination or the dismissal of a matter in limine, to avoid the dissipation of energy and also the waste of valuable time on matters which are not worthy of taking any valuable time and resources of the Court. See the case of the YARO vs. AREWA CONSTRUCTION LTD. & ORS (2007) 6 SCNJ 418. With this at the background, this Court has carefully observed that the substance of the Notice of preliminary objection raised by the Respondent

herein, even though intended to be an objection against the hearing of the Appellants’ Appeal, it is in reality not an objection taken against the hearing of the Appeal as such, but one which merely quarrels with Grounds two (2) and five (5) of the Appellant’s Notice and Grounds of Appeal, which Respondent’s Counsel has variously described as vague, incomprehensible, misleading, at-large, incompetent, academic, moot and hypothetical.
It would be recalled that the Appellant predicated his Appeal before this Court on seven (7) Grounds of Appeal and not just Grounds two and five alone, which the Respondents have picked quarrels with. The attitude of the apex Court in matters of this nature, which all Courts are bound to follow under the doctrine of stare decisis is that where as in this Appeal the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate and that the Respondent ought to have filed a Motion of Notice since the preliminary objection if successful would not have terminated the hearing of the Appeal as there were

other grounds of appeal to sustain the Appeal.
The apex Court remains of the clear view that Preliminary Objections are only filed against the hearing of an Appeal and not against one or more grounds of Appeal, which cannot stop the Court from hearing the appeal. See the case of GENERAL ELECTRIC CO. vs. HARRY AKANDE (2011) 4 NSCQR P. 61. See also the case of ADEJUMO vs. OLAWAIYE (2014) 12 NWLR (PT.1421) 252 AT 265, where the Supreme Court per BODE RHODES VIVOUR, JSC had this to say on the issue;
“A preliminary objection should only be filed against the hearing of an Appeal and not against one or more Grounds of Appeal which are not capable of disturbing the hearing of the Appeal. The purpose of a preliminary objection is to convince the Court that the hearing of the Appeal comes to an end if found to be correct. If sustained, a preliminary Objection terminates the hearing of an Appeal. Where a preliminary Objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on Notice filed complaining about a few Grounds or defects would suffice.”
On the strength of this and relying on

several decided authorities on the issue, this Court hereby finds and do hold that the Notice of Preliminary Objection filed by the Respondent, same having not been filed against the hearing of the entire Appeal per se, but solely against the competence of Grounds two (2) and five (5) of the Notice and Grounds of Appeal, is therefore inappropriate in the circumstances of this Appeal. It would have been a different thing altogether, if the defects spotted with Grounds two (3) and five (5) had permeated the entire Grounds of Appeal and the objection had been taken on the strength of the defects spotted and not just one associated only with a Ground.
Assuming aguendo that the objection raised against the Grounds are found to be appropriate and it is subsequently struck out, it would still not have been enough to terminate the hearing of the Appeal. In this connection, and on account of this development, this Court shall without hesitation go ahead and consider this Appeal on its merit while the Notice of Preliminary Objection is dismissed. This, at least is not a situation in which the entire seven (7) Grounds of Appeal have been cited as being defective.

The Amended brief of argument of the Appellant dated the 21-10-2018 and filed on the 22-10-2018 and deemed filed on the same date, was settled by HUSSAINI ZAKARIYAU ESQ., while the Respondent’s brief of argument dated the 15-11-2018 and filed on the 16-11-2018 was settled by the NURA BELLO ESQ.,. On the 10-6-2020 at the hearing of this Appeal, learned Counsel adopted their respective briefs of argument with each urging upon this Court to resolve the Appeal in favour of their sides.

SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
WHETHER the trial judge can assume jurisdiction on the Appellant’s late father “ALH CHISO AMBURSA” when ALH CHISO AMBURSA was not sued on the writ of summons filed by the Respondent. (Ground 3)

In arguing this issue, learned Appellant’s Counsel submitted that the writ of summons being the first originating process that is filed by a party confers jurisdiction on a Court and that it is very vital in determining who the Defendants sued before the trial Court. The argument of Counsel is that for this reason, it is the Claimant who determines who the Defendants sued in a Court will be.

The argument of Counsel is that in the instant case, the Respondent (as Claimant) did not sue ALHAJI CHISO AMBURSA (See page 1 and 2 of the record of appeal).Counsel further argued that in this position the Respondent cannot confer jurisdiction on the Court to hear a case against the Appellant when the Appellant was not sued as a party before the Court.

In learned Counsel’s further argument, he contended that as at the 18th September, 2015 when the Respondent filed suit no. KB/HC/27/2015 there was no case filed against the Appellant’s father Alhaji Chiso Ambursa and that for this reason, the trial Court cannot assume Jurisdiction against the Appellant. For this reason, Counsel urged this Court to resolve this issue in favour of the Appellant by setting aside the part of the Judgment in suit no. KB/HC/27/2015 affecting the Appellant as contained on page 206 of the record of appeal due to reason of lack of Jurisdiction. Finally, Counsel submitted that due to reason of failure by the Respondent to amend his Writ of Summons to add the Appellant’s father (Late Alhaji Chiso Ambursa), resulted in making the only writ of summons filed on the 18-09-2015 entirely

one which cannot confer the necessary jurisdiction on the Court to give any judgment against the Appellant’s father (Alhaji Chiso Ambursa) who was not a party before the Court. (See page 1 and 2 of the record of appeal)

ISSUE TWO:
WHETHER by the decision in BASSEY EDIBI vs. THE STATE (2009) LPELR-8702, Hon Justice E.A. Karatu has the Juridical power to read a Judgment not written and signed by Hon. Justice I.B. Mairiga (retired) as at 13-12-2017 (Ground 1).

The contention of learned Counsel in arguing this Appeal is that proceedings leading to the matter were conducted by Justice I. B. Mairiga who then adjourned the matter ta do ate to be communicated to the parties; but that somehow, Justice I.B. Mairiga could not deliver judgment before his retirement was up. Counsel further contended that on the 13th December, 2017 judgment was rather delivered by Justice E.A. Karatu, who Counsel said read a judgment that was said to have been written by Justice I.B. Mairiga before his retirement date but could not deliver same. The argument of Counsel is that pursuant to the decision of the Court in BASSEY EDIBI vs. THE STATE (2009) LPELR-8702, Justice E.A.

Karatu wrongly applied the decision in EDIBI vs. THE STATE (Supra) because as at July, 2017 when the Court read the judgment purportedly written by Justice I. B. Mairiga (rtd.), no such judgment had been written by the retired judge and Counsel urged this Court to so hold.

As far as Counsel is concerned the judgment purportedly written by Hon Justice I.B. Mairiga (rtd.) was a judgment written by an unknown person who then signed ‘for’ Hon. Justice I.B. Mairiga. (See pages 187 – 206 of the record of appeal). Counsel drew attention to page 206 of the record of appeal where a judgment was dated and signed ‘for’ Justice I.B. Mairiga on the 13th December, 2017 some five (5) months after Justice I. B. Mairiga has retired from the Bench. The further argument of Counsel is that assuming that the judgment read was written by Justice I.B. Mairiga (rtd.), then the said judgment cannot be signed ‘for’ him. As far as he is concerned, it is therefore manifestly clear from the record at page 206 that Justice I.B. Mairiga did not write and signed any judgment in suit no. KB/HC/27/2015 as required by the law in EDIBI vs. THE STATE (Supra). Counsel urged this Court to so hold.

ISSUE THREE:
WHETHER in a case for a declaration of title to land, the Claimant case is worn on the strength of his case or on the weakness of the defence (Grounds 5 and 6).

The contention of learned Counsel in arguing this issue is that the case before the trial Court was for a declaration of title to land as disclosed on the Respondent’s statement of claim. (See page 2 of the record of appeal). As far as Counsel is concerned for a litigant to succeed where his action is one seeking a declaratory relief, and in the instant case, where the Respondent’s suit at the Court below was for a declaration of title to land, such an action would be won on the strength of his own case as disclosed in the evidence of PW1 and PW2 on the 24th May, 2016 before the trial Court and not on the weakness of the defence. Counsel cited the case of OLAWEPO vs. SARAKI (2009) 45 WRN at 95 ratio 12 at 141-142 lines 45-15.

In the further contention of Counsel, he said that although the weakness in a defendant’s case where it support a Claimants case can be used to build an already proved Claim before the Court, this he said is not the position

with the instant case as the Respondent’s case is for a declaration of title to land as disclosed on his claim. (See page 2 of the record of appeal). Counsel further argued that the evidence of the PW1 and PW2 before the trial Court did not affect or say anything about the Appellant’s father (Late Alhaji Chiso Ambursa) before the trial Court, hence nothing was proved against the Appellant before the trial Court. Finally, Counsel urged this Court to resolve this issue in favour of the Appellant and against the Respondent, that in a case for a declaration of title; the Claimant wins on the strength of his case and not on the weakness of the defence. And that nothing was proved against the Appellant.

ISSUE FOUR:
WHETHER from the evidence led by the Respondent before the trial Court on the 24th May, 2016, the Respondent made any case on a preponderance of evidence against the Appellant for a declaration of title to any land? (Grounds 2 and 7)

The contention of learned Appellant’s Counsel is that in civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court

would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. Counsel told Court that the Respondent opened his case on the 24th May, 2016 where he testified as PW1 and called another witness who testified as the PW2. Counsel further told Court that the PW1 was led to adopt his witness statement in accordance with the rules of the Kebbi State High Court (Civil Procedure) Rules, 2011.

According to Counsel the evidence of the PW1 is to the effect that he purchased the disputed house from one BALA MOHAMMED who was the ONLY defendant as at the 24th May, 2016 and that he allowed BALA MOHAMMED to remain in the house and after two years BALA MOHAMMED refused to give up possession of the house and that was why he came to Court. Counsel also disclosed that the Respondent as Claimant (PW1) tendered EXHIBITS 1 and 1A. (See page 8-10 of the record of appeal for PW1 witness statement on oath).The argument of learned Counsel is that this piece of evidence did not mention the Appellant and that the Appellant was indeed not a party before the trial Court on the said 24th May, 2016.

As it has to do with the evidence of the PW2, Counsel said that the PW2 was led in evidence is to the effect that the Respondent purchased a house from one BALA MOHAMMED and the Respondent allowed BALA MOHAMMED to remain in the house for two years and that BALA MOHAMMED refused to deliver up possession of the house hence the Respondent filed the case before the trial Court. (See page 11-12 of the record of appeal for PW2 witness statement on oath). Learned Counsel further disclosed that the Respondent on the same date (24th May, 2016) closed his case when the Appellant was yet to be made a party. (See page 174 of the record of appeal).

Learned Counsel submitted that it was not until the 14th December, 2016 that the Respondent joined the Appellant’s father (Late Alhaji Chiso Ambursa) and on the 28th February, 2017 the Respondent amended his statement of claim. (See page 49, 63, 73, 175 and 177 of the record of appeal). The contention of Counsel is that the Appellant’s father was not made a party to the suit until after the Respondent closed its case against BALA MOHAMMED. That notwithstanding, Counsel argued that the Appellant’s father (Alhaji Chiso Ambursa) as 2nd

defendant filed his statement of defence to the Respondents claim (See page 88 – 105 of the record of appeal) despite the fact that the Respondent closed his case on the 24th May, 2016 when the Appellant was not a party to the case and when there was no any evidence against the Appellant.

Learned Appellant’s Counsel also submitted that the Respondent on joining the Appellant and amending his statement of claim to include the Appellant between the 14th December, 2016 and 28th February, 2017, thereafter did not call any evidence on record to reflect his amendment in line with the rules of the Kebbi State High Court (Civil Procedure) Rules 2011. The contention of Counsel is that pleading are not evidence until it is given and amplified by oral testimony and that for this reason, the Respondent joining of the Appellant and amending his pleading to reflect a claim against the Appellant on the 28th February, 2017 does not translate into evidence against the Appellant, having not been demonstrated by a witness testifying against the Appellant. Counsel cited the case ofONWUGBELU vs. MEZEBUO (2013) 23 WRN 90 at 107 ratio 17 in support. Counsel urged this Court

to resolve this issue in favour of the Appellant.

RESPONDENT:
Issue One:
In arguing this issue, learned Respondent’s Counsel submitted that the contention of the Appellant that the Lower Trial Court lacks jurisdiction to adjudicate on the matter on the basis of the fact that the Writ of Summons filed by the Respondent on the 18th September, 2015 does not include the father of the Appellant (Late Alh. Chiso Ambursa) is a misconception of the law on the part of the Appellant. The contention of Counsel is that the Respondent initially sued only one Bala Mohammed before the lower trial Court but later when the matter proceeded for trial the Respondent realized the need to join the Appellant and that same was done via a Motion Number KB/HC/M.192/2016 without any opposition from Appellant’s Counsel and that same was granted on the 14-12-2016 (see page 63 of the records).

It was also argued by Counsel that after joining the Appellant in the matter the Respondent again applied before the lower trial Court to amend his statement of claim and other processes and that same was not objected to by the Counsel to the Appellant and that same

was equally granted by the Court.(See page 27 of the record for the motion on amendment, page 49 of the records for the ruling granting the amendment and page 17 of the records for the amended statement of claim all incorporating the name of late Alh. Chiso Ambursa (father of the Appellant) as 2nd defendant in Suit No. KB/HC/27/2015).

The contention of learned Counsel is that what is important in the law relating to pleadings is the statement of claim because the claim supersedes the writ of summons and that it is trite that the writ of summons is superseded by the statement of claim. The argument of Counsel is that this position of the law is an important aspect of the law of pleadings as the parties are bound by their pleadings and the Court are also bound by the averments as contained in the statement of claim in the process of adjudication. Counsel cited the case of STOWE vs. BENSTOWE (2012) WRN VOL. 13 (PT. 188) AT 1-8 RATIO 2per CHUKWUMA-ENEH, JSC.

Learned Counsel also referred to the observations of NGWUTA, JSC in the same case of STOWE vs. BENSTOWE (Supra) where he held that
“The writ, an initiating process, states the cause of action

and the relief sought. The statement of claim amplifies the concise statement in the writ of summons. Once the statement of claim is filed, the writ of summons fades out of the picture, as it were. The statement of claim supersedes the writ. See Udechukwu v. Okwuka (1956) 1 FSC 70.”

Arising from the foregoing, Counsel urged the Court to hold that the lower trial Court is competent to adjudicate in Suit No. KB/HC/27/2015 against the Appellant and urged this Court to so hold.

It was also contended that an amended judicial process relates back to the date the original process was filed. Counsel cited the case of ERUE vs. OKOTIE-EBOH (2017) 48 WRN 1-181 AT PG 138 PP @ 141-RATIO 1 and urged this Court to hold that the amendment done to reflect the name and claims against the Appellant was proper before the lower trial Court hence the lower trial Court has jurisdiction to adjudicate Suit No. KB/HC/27/2015 against the Appellant. On the basis of this position, Counsel urged this Court to resolve this issue against the Appellant and dismiss the appeal.

Issue Two:
In arguing this issue, learned Counsel submitted that the contention of the

Appellant that the judgment delivered by Justice E. A. Karatu and purporting it to have been written and delivered on behalf of Justice Mairiga, and that same was not a product of Justice Mairiga, is a total misconception of the law in the case of BASSEY EDIBI vs. STATE (Supra). Counsel submitted that Justice I.B. Mairiga wrote and signed his judgment at the end of his judgment, which could be seen clearly at page 208 of the record of appeal.

Counsel further submitted that Hon. Justice I.B. Mairga wrote and signed the judgment in KB/HC/27/2015 before his retirement from the service of Kebbi State Judiciary and that the only thing that Justice E.A. Karatu did was to read and date the judgment as stipulated by Order 35 Rule 2 of the Kebbi State High Court Civil Procedure Rules, 2017 which provides as follows:-
“Where any judgment is pronounced by a judge the judgment shall be dated as of the day on which such judgment is pronounced and shall take effect from that date unless the judgment otherwise orders.”

Learned Counsel also contended that by the provision of Order 35 Rule 2 of the Kebbi State High Court Civil Procedure Rules, 2017

2017 the effective date of the delivery of a judgment is the date the said judgment was delivered; and that Justice E.A. Karatu delivered the judgment on the 13th December, 2017, which was why the same date was reflected on the judgment. He further argued that that does not, however, suggest that the judgment was written on same date and he urged this Court to so hold. Counsel finally on this issue submitted that the judgment delivered on the 13th December, 2017 was written and signed by Justice I.B. Mairiga as it was manifestly reflected at the end of the judgment at page 208 of the records and that page 206 referred to by the Appellant is not the end of the judgment of the lower Court.

Issue Three:
The argument of Counsel on this issue is that in an action of this nature as in the instant appeal, it behooves the claimant to succeed on the strength of his case by demonstrating cogent and compelling facts in his pleading and thereafter support it with oral and documentary evidence pointing to the fact that he is entitled to the reliefs he is asking before the Court. He further argued that the need for a claimant in an action for declaration to rely

on the strength of his case and not the weakness of the defence was made potent, by the apex Court. See OLATEJU vs. SANNI (2011) 31 WRN @ 87 V.1

Learned Counsel thereafter contended that the case of the Respondent as disclosed in his amended statement of claim dated 13th February, 2017 was proved based on the strength of his case that warranted the Court to enter judgment his favour. Counsel referred to pages 17-26, 106-109, 110-113 and also pages 171-174 of the records in prove of same. Counsel in this connection, further referred to pages 178 and 180-184 of the record where the Appellant cross examined the witnesses presented before the trial Court by the Respondent. On the basis of the strength of the case presented by the Respondent and balance of probabilities Counsel contended that the trial Court entered judgment in his favour see pages 202-206 of the record. Counsel urged this Court to resolve this issue against the Appellant and hold that the Respondent has proved his case based on the strength of his case and not on the weakness of the defence.

Issue Four:
In arguing this issue, Counsel began by conceding that the case of the Respondent

before the lower Court initially was with the 1st defendant Bala Mohammed who mentioned the name of the Appellant severally in his statement of defence and his cross examination before the lower Court, which necessitated the joinder of the Appellant in the trial. See Page 64-72, 172 and 173 of the record for the cross examination of the 1st defendant (Bala Mohammed) before the lower Court. The joinder of the Appellant, Counsel argued became necessary because in the event the Respondent obtaining judgment against the 1st defendant (Bala Moh’d) he cannot enforce same because the Appellant also has interest in same property.

The contention of Counsel is that after the formal joinder of the Appellant in the trial before the Court below, he filed his statement of defence and counter claim. See pages 88-105 of the record and pages 180 of the record also where the Appellant through his Counsel recalled PW1 (Lawali Gohe) and cross examined him on behalf of the Appellant wherein the Appellant cross-examine the Respondent see page 180 of the records.

On the submission of the Appellant that the Respondent after joining the Appellant has not demonstrated

evidence by a witness testifying against the Appellant, Counsel submitted that contention is an abysmal misconception of law, fact and circumstance of this appeal as the Respondent gave evidence against the Appellant and that that was the reason why the Appellant cross examined him. Counsel said that the impression the Appellant is trying to portray that the case of the Respondent was closed on the 24th May, 2016 is not true and correct as same was re-opened on the 26th April, 2017 on the request and application of the Appellant’s Counsel. For ease of reference, Counsel reproduced learned Counsel to the Appellant’s verbatim at Page 180 of the record, thus:
“Zakariya: At the last adjourned date we applied to recall PW1 for further cross examination and with the leave of the Court we are ready.
Court – Fatima Garba (Registrar) affirmed to interpret from English to Hausa and vice versa.
PW1 (Reminded of his Oath)…”

Learned Counsel contended that after cross examination by Mr. Hussaini Zakariya, the Court asked Nura Bello for re-examination and it was Nil. Counsel next posed a question thus; he said if the

Respondent did not testify or give evidence against the Appellant as claimed by the Appellant, then what was the Counsel to the Appellant doing at pages 180 of the records of appeal as stated from the extract reproduced above, if not cross-examination in respect of a testimony in evidence before the Court?

By way of emphasis Counsel once again submitted that evidence was led against the Appellant via amended witness statement on oath of Lawal Gohe who testified as PW1 and the recall and cross examination by the Appellant Counsel on the 26th April, 2017 was on the basis of that amended witness deposition on oath. Counsel also submitted that the application of the Appellant Counsel to recall the claimant, which was done, the testimony of the claimant as PW1 on oath and the cross examination of the Appellant Counsel of the PW1 at pages 180 of the records clearly shows that the Respondent led evidence against the Appellant that warranted the Court to enter judgment against the Appellant.

Learned Counsel further submitted that after been properly joined in suit no. KB/HC/27/2015 he filed his statement of defence and counter claim to the amended statement

of claim filed by the Respondent. See pages 88 to 105 of the records particularly at pages 98 of the record. See also pages 207 of the records where the Judgment of the lower Court touches on the counter-claim. Counsel finally submitted that the Respondent led evidence against the Appellant based on the pleadings as contained on his amended statement of claim and his amended witness deposition on oath at pages 17-26 of the record, the statement of defence filed by the 1st defendant (Bala Moh’d), the cross-examination of the 1st defendant and the recall of PW1 and cross-examination of the Appellant at page 180 of the record, clearly shows that the lower trial Court was right when it observed that the claimant proved his case against the 2nd defendant. Counsel referred this Court to the observation of the trial judge at pages 205-206 of the record.

He urged this Court to resolve this issue against the Appellant and dismiss this appeal for lacking in merit.

RESOLUTION OF APPEAL
The first issue canvassed by the Appellant for the determination of this Appeal was whether the trial judge can exercise jurisdiction in a case involving the

Appellant’s late father “ALH CHISO AMBURSA” who was not sued on the writ of summons filed by the Respondent. The argument of learned Appellant’s Counsel was that the writ of summons being the first originating process filed by a party confers jurisdiction on a Court and that it is very vital in determining who the parties sued before the trial Court are. In essence, the contention of Counsel for the Appellant is that as at the 18th September, 2015 when the Respondent filed his suit no: KB/HC/27/2015, there was no case filed against the Appellant’s father Alhaji Chiso Ambursa and that for this reason the trial Court cannot assume Jurisdiction against the Appellant. Learned Appellant’s Counsel cited no legal authorities to buttress his arguments on the issue.
The reaction of the learned Respondent’s Counsel on the issue, is that the Respondent as Claimant, initially sued only one Bala Mohammed before the lower trial Court but later on as the matter progressed unto trial, it became inevitable that the presence of the Appellant’s father as a party was necessary and that this prompted the need to join the Appellant’s father and

that when this was done, through the filing of a motion on notice, there was no objection whatsoever on the part of the Appellant and that same was granted on the 14-12-2016 by the learned trial Court. (See page 63 of the records). The printed records also show that after the grant of the motion for joinder, another motion was granted authorizing the Claimant to amend his processes to reflect the joinder made, still with no objections on the part of the Appellant as Defendant.
The settled position of the law is that an amended judicial process relates back to the date the original process was filed and that what stood before the amendment is no longer material before the Court and no longer defined the issues at stake to be tried between the parties. See the cases of ADEWUMI vs. AT-GEN-EKITI (2002) 1 SCNJ 27; ERUE vs. OKOTIE-EBOH (2017) 48 WRN 1-181 AT PG 138 PP @ 141 – RATIO 1 and the English case of WARNER vs. SAMPSON & ANOR. (1959) 1 QBD 297, 321. The Respondent, having successfully joined the Appellant’s father and subsequently amended his processes, the belated grouse of the Appellant on the issue is clearly misguided and a complete

misconception of the law. In seeking to use this issue in challenging the jurisdiction of the Court below is as unfortunate as it regrettable.

claim supersedes the writ. See Udochukwu v. Okwuka (1956) 1 FSC 70.”

Against the backdrop of the foregoing, the first issue is resolved against the Appellant.

The second issue nominated for the determination of this Appeal dealt with the question of whether a Judge has the power to deliver a Judgment not written and signed by him, but one written and signed by a Judge who has since left service due to reason of retirement. The learned Appellant’s Counsel in arguing this issue contended that the proceedings leading to this Appeal were conducted by Justice I. B. Mairiga, now retired and that before his retirement, he could not deliver his Judgment, which was delivered on the 13th December, 2017 by Justice E.A. Karatu. Counsel cited the case of BASSEY EDIBI vs. THE STATE (2009) LPELR-8702, and contended that Justice E.A. Karatu, who read the judgment, wrongly applied the decision in EDIBI vs. THE STATE (Supra) because as at December, 2017 when Justice E. A. Karatu read the judgment purportedly written by Justice I. B. Mairiga (Rtd.), no such judgment had been written by the retired judge and Counsel urged this Court to so hold.

The clarification offered by learned Respondent’s Counsel on this issue is that the judgment delivered by Justice E. A. Karatu was indeed written and signed by Justice I.B. Mairiga, shortly before he retired and was only delivered on his behalf after his retirement. Counsel referred this Court to page 208 of the record of Appeal on this issue and contended that this procedure is backed by the provision of Order 35 Rule 2 of the Kebbi State High Court (Civil Procedure) Rules, 2017 which provides thus;
“Where any judgment is pronounced by a judge the judgment shall be dated as of the day on which such judgment is pronounced and shall take effect from that date unless the judgment otherwise orders.”
The settled position of the law is that a judgment of Court whether delivered by the judge who wrote it or some other judge delivering it in his absence, generally takes effect on the day it is pronounced upon. That is exactly what the provision of Order 35 Rule 2 of the Kebbi State High Court (Civil Procedure) Rules, 2017 seem to have prescribed and which learned Respondent’s Counsel seem to have anchored his arguments on the issue.

The question to therefore address at this stage, is whether it is possible from the printed records to confirm the disclosures made by Learned Respondent’s Counsel, herein?
A careful inspection of the record of Appeal clearly shows at page 208 that the judgment in question was signed and also dated on the 13th day of December, 2017. Here is a situation in which the disputations of the Appellant on the issue did not include an allegation that the signature on the judgment does not belong to Justice I. B. Mairiga, now retired. In the same token, the disputations of the Appellant on this issue did not also include an allegation that the judgment in question was not delivered on the 13th day of December, 2017. In the considered opinion of this Court, therefore, it would only be fit and correct in the circumstances for Justice E. A. Karatu, now delivering the judgment written by another Judge who is now retired, to affix the date of the delivery of the said judgment to signify the actual date the judgment was pronounced as that would be the only way to comply with the dictates of Order 35 Rule 2 of the Kebbi State High Court (Civil Procedure) Rules, 2017.

This Court is fortified in its conclusions on the issue, by relying on the observations of the apex Court per MUSDAPHER, JSC in the case of OLATUNJI vs. OWENA BANK (PLC) & ANOR. (2008) LPELR-2578 SC, where the old sage had this to say on the issue;
“It is well settled that every judgment takes effect on pronouncement.”
Learned Appellant’s Counsel simply made a heavy weather of the issue as there is nothing procedurally wrong with Justice E. A. Karatu, (as Ag. Chief Judge Kebbi State at the time) to have delivered the judgment written and signed by Justice I. B. Mairiga, who due to reasons of his having left office on account of retirement was not readily available to deliver his judgment on the matter. The observation of the apex Court in the case of ADESOKAN & ORS vs. ADEGOROLU & ORS (1997) LPELR-151 SC per MOHAMMED, JSC is clearly instructive on the issue when the Court stated thus;
“In a situation like the case in hand, the correct practice is for the presiding justice to pronounce the opinion of the justice who left the service due to death or remover before the delivery of the judgment.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On account of the third issue, dealing with the question of whether in a case for a declaration of title to land; the Claimant’s case is won on the strength of his case or on the weakness of the defence, the argument of learned Appellant’s Counsel is that the case before the trial Court was for a declaration of title to land as disclosed on the Respondent’s statement of claim. (See page 2 of the record of appeal) and that for a litigant to succeed where his action is one seeking a declaratory relief as in the instant case, the case must be won on the strength of his case as disclosed in the evidence of PW1 and PW2 on the 24th May, 2016 before the trial Court and not on the weakness of the defence.
It is rather clear from the state of the pleadings of the parties and particularly that of the case of the Respondent as disclosed in his amended statement of claim dated 13th February, 2017 that his case was adequately proved based on the strength of his case and that that warranted the lower Court in entering judgment in his favour. The pages 17-26, 106-109, 110-113 and also pages 171-174 of the records are clearly instructive in the

instances of this case. A close look at pages 178 and 180-184 of the record clearly show where the Appellant cross-examined the witnesses presented before the trial Court by the Respondent, all clearly to no avail and that it was on the basis of the strength of the case presented by the Respondent and balance of probabilities, that the learned trial Court entered judgment in his favour. See pages 202-206 of the record. The third and fourth issues are also resolved in favour of the Respondent.

In the final analysis, this Appeal is moribund as it is adjudged unmeritorious and it is accordingly dismissed. Consequently, the judgment of the High Court of Kebbi State sitting at Birnin Kebbi, delivered on the 13th day of December, 2017 Coram: I. B. MAIRIGA, J in appeal No. KB/HC/27/2015 is hereby affirmed. There shall be cost of N100,000.00 awarded in favour of the Respondent.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother, Oho, JCA. I agree with his reasonings and conclusion that this appeal is unmeritorious. It is accordingly dismissed by me too.

I abide by the consequential orders of my learned brother including order for costs.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have read the draft of the judgment just delivered by my learned brother, FREDERICK O. OHO JCA, and I adopt his reasoning and conclusions as mine. The appeal lacks merit and it is accordingly dismissed.
I abide by the consequential orders in the lead judgment including the order for cost.

Appearances:

HUSSAINI ZAKARIYAU, Esq. For Appellant(s)

NURA BELLO, Esq. For Respondent(s)