AUDU & ORS v. DANGANA
(2022)LCN/16289(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, March 16, 2022
CA/A/27/2019
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. ALH. MUSA AUDU 2. ALH. UMAR ADAMU 3. ALH. BALA ABDULLAHI (For Themselves, Family And Representing The Karie Community) APPELANT(S)
And
ABUBAKAR DANGANA RESPONDENT(S)
RATIO
THE MODES OF COMMENCING OR INITIATING AN ACTION IN COURT
Firstly, it is important to note that there are four main modes of commencing or initiating an action in Court. These are by writ of summons, originating summons, Originating Motion and petition. The Rules of a particular Court may in some circumstances provide other modes of beginning an action in Court. See the decision of this Court in the case of MINISTER OF PETROLEUM RESOURCES & ANOR V THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED, (2021) LPELR-55436. See also KOLAWALE V ALBERTO, (1989)1 NWLR (pt 98) 382 (SC), DOHERTY V DOHERTY (1964) NWLR 144 AND ADOJUTELEGAN V APC & ORS (2021) LPELR.
A further illustration of the mode of commencing an action in Court is Section 410 of the Companies and Allied Matters Act, 1990, Section 54(1) of the Matrimonial Causes Act, 1970 and Section 140 of the Electoral Act 2010 (as amended). PER SENCHI, J.C.A.
DOCUMENTS TO BE ACCOMPANIED BY ALL CIVIL PROCEEDINGS
Now by the High Court (Civil Procedure) Rules, 2012 of Niger State, Order 3 Rule 2(1) provides as follows:-
“All civil proceedings commenced by writ of summons shall be accompanied by;
(a) Statement of claim;
(b) List of witnesses to be called at the trial;
(c) Written statements on oath of the witnesses;
(d) Copies of every document to be relied on the trial;
(e) A certificate of Pre-action counselling signed by the plaintiff’s counsel.”
Sub-paragraph (2) of Order 3 of the Rules under reference also states:-
“Where a plaintiff fails to comply with Rule 2 (1) above, his originating process shall not be accepted for filing by the Registry.” PER SENCHI, J.C.A.
WHETHER OR NOT PARTIES ARE BOUND TO COMPLY WITH ALL FORMAT FOR THE COMMENCEMENT OF AN ACTION AS PROVIDED BY THE COURT OF LAW
No doubt, the failure here is in the commencement of the proceedings and will be fatal to the case of the plaintiffs in OCHEGBUOU VS AGBALA (2014) LPELR-22650 CA, it was held:
If Rule of Court provide for a particular format for the commencement of action or taking out of any processes such as Brief of Argument, a party is bound to comply with the format. Where it fails to do so, a Court of law is entitled to hold that action or that process incompetent, and it should not be considered. See MADUKOLU VS NKEMDILIM (1962) NWLR 595, D. E. N. R LTD VS TRANS INT’L BANK LTD (2008) 18 NWLR (pt. 1119) 388. I have alluded to this discretionary power of the Courts so as to make the point that learned counsel who represent clients in Courts of law must observe the law and Rule to avoid damaging the cases of their clients.
Again in EDE VS CBN & ORS (2014) LPELR-24121 CA it was held:-
Where there is a clear provision in the rules of Court on the manner a certain step should be taken, it becomes a condition precedent to hearing of the application and such must be followed and obeyed as it does not give room for the excessive of discretion by the Court no choice of method by the parties substantial justice can only be done to a suit properly initiated by due process not otherwise.
To argue that it is a mere irregularity is untenable. The breach is fatal and cannot be waived; see the case of KIDA VS OGUNMOLA (2006) AFWLR (pt. 327) 402 at 412 where this Court held as follows: The validity of the originating processes in a proceeding before a Court is fundamental as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit.” PER SENCHI, J.C.A.
WHETHER OR NOT THE COURT REGISTRY CAN VALIDATE AN INVALID OR INCOMPETENT WRIT OF SUMMONS
I disagree with the learned counsel to the Appellants. The Registry of the Court cannot validate an invalid or incompetent writ of summons. And the provision of Order 3 Rule 2(2) of the High Court of Niger State (Civil Procedure) Rules 2012 is crystal clear that such originating process shall not be accepted by the Registry at the time of filing. In the instant case, the Registry having accepted and fees assessed and paid, unfortunately for the Appellants, the originating process of the Appellants is incompetent ab initio.
In the case of ILOKSON & CO (NIG) LTD V UNION BANK, (2021) LPELR-55626, the Supreme Court held:-
“Once it is shown and demonstrated satisfactorily that an originating process employed or used to initiate an action or suit was/is incompetent, the defect is fatal ab initio depriving the trial Court and subsequently, the appellate Courts of the requisite jurisdiction to adjudicate over it since you cannot put something on nothing and expect it to stand; the defect being contiguous.”
In the case of NIGERIA RAILWAY & ORS V AKINBODE & ORS, (2007) LPELR-4603, this Court held as follows:-
“Since the action is incompetent, the Court lacked the requisite jurisdiction to hear and determine the suit. The action was not initiated by due process of law. Since the trial Court lacked jurisdiction, any further exercise thereafter is null and void and of no effect. It was an exercise in futility as it attempted to put something upon nothing. See MADUKOLU V NKEMDILIM (1962) SCNLR 341 and McFOY V UAC (1962) A.C 152. The suit must be struck out for being incompetent. And I so order.” PER SENCHI, J.C.A.
DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Niger State in Suit No. NSHC/SD/70/2017 delivered on the 12th day of October, 2018 by H. I. Abdulmalik J. (Now Acting Chief Judge).
The Appellants herein by an Amended Statement of Claim, dated the 30/01/2018, the Plaintiffs/Appellant are claiming against the Defendant/Respondent as follows:
a. A Declaration that the purported alienation of portion of the family land and/or any portion thereof by the Defendant without the authority, consent and/or the approval of the family members is a nullity.
b. A Declaration that the purported alienation is a nullity and the purchaser(s) of any portion thereof from the Defendant has a void title and any transaction carried on by the Defendant on the land is void ab initio.
c. An Order of perpetual injunction restraining the Defendant either by himself, agents, privies, servants, assigns or otherwise howsoever from entering, trespassing, interfering and/or committing other acts of trespass or in any manner whatsoever doing any act inconsistent with the rights and interest of the Plaintiffs.
d. N1,000,000 (One Million Naira) exemplary damages against the Defendant.
e. The cost of this suit.
The Respondent herein, as Defendant/counter-claimant before the lower Court filed his Statement of Defence/counter-claim on 13/10/2017, wherein he counter-claimed against the 1st, 2nd and 3rd Plaintiffs/1st, 2nd and 3rd Defendants to counter-claim as follows:
a. A Declaration by this honourable Court that the Counter-Claimant together with his siblings are the rightful owners of all that parcel of land having an area of 1,728ft length and 100ft width to the west and 200ft width to the east, lying and situate at Karfe village, in Tafa Local Government Area of Niger State, having legally inherited same from their father Mallam Albara, who also legally inherited same from his late father Mallam Adamu, who founded same by means of deforestation and exercised actual possession and occupation of same till his death in 2007.
b, A Declaration that the Plaintiffs (Defendants to the Counter-Claim) are trespassers who have no right/title howsoever over the said parcel of land.
c. A Declaration that the purported sale of a portion of the land thereof by the Plaintiffs (Defendants to the Counter Claim) to a third party is illegal, null and void, for it was a sale without title or any authority to so act.
d. An Order of perpetual injunction restraining the Plaintiffs (Defendants to the Counter-Claim), their agents, representatives, privies or heirs from in any manner interfering with the Counter-Claimant’s peaceful possession and occupation of the said land.
e. General damages of Three Million Naira (N3,000,000) only against the Plaintiffs (Defendant to Counter Claim) jointly and severally.
f. Three Hundred and Fifty Thousand Naira (N350,000) only cost of suit.
g. Any further Order(s) as this honourable Court may deem fit to make in the circumstance of this case and in the best interest of justice.
In a nutshell, the facts of this case as presented by the pleadings of both parties at the lower Court resolve around the alienation of family/communal land situate at Tafa Local Government Area of Niger State.
Pleadings, having been duly filed and exchanged between the parties at the lower Court, trial commenced on the 20/2/2018 and the Plaintiffs called two witnesses who testified as PW1 and PW2. PW1 adopted his witness statement on Oath on 20/2/2018 while PW2 adopted his witness statement on Oath deposed to on 29/8/2017 and 1/3/2018 respectively. The Defendant on the other hand opened his defence on the 24/04/2018. Two witnesses testified on behalf of the Defendant. DW1 is Yunana John who testified on 24/04/2018 while the Defendant himself testified as DW2 on 15/5/2018 by adopting his witness statement on Oath. Documents were tendered in evidence by the respective parties and admitted by the lower Court at trial. After all the witnesses were cross-examined and discharged, final written addresses were filed and exchanged by the parties and on the 28/06/2018 the respective parties adopted their final written addresses before the lower Court.
On the 12th day of October, 2018, the lower Court delivered its judgment.
(See pages 24 -76 of the supplementary Record of Appeal)
Aggrieved by the decision of the lower Court, the Appellants filed a Notice of Appeal dated the 18th day of October, 2018 (see pages 186 – 192 of the Record of Appeal). The Appellants raised four (4) Grounds of Appeal, (without their particulars) as follows:
GROUND ONE:
The trial Court erred in law when it relied on Order 5 Rule 1 of the High Court of Justice of Niger State (Civil Procedure) Rules, 2012 wherein it held that the failure of the Plaintiffs to file a certificate of pre action counselling signed by the Plaintiffs as provided by Order 3 Rule 2(1) and (2) of the Rules of the Court rendered the Plaintiff’s suit incompetent.
GROUND TWO
The trial Court erred in law when it held that from the pleadings and evidence led by the Respondent at the trial, the Respondent’s case is stronger, more consistent, cogent, credible and weightier, entitling the Respondent reliefs.
GROUND THREE
The trial Court erred in law when it rejected the witness statement on oath of the 1st Appellant on the ground that it was signed at the Counsel’s office.
GROUND FOUR
The lower Court erred in law when it glossed over live issues placed before it for its determination thereby occasioned a miscarriage of justice.
The Record of Appeal was transmitted to this Court on 14/01/2019 and the supplementary record also transmitted on 11/03/2019.
The Appellants on the 15th day of April, 2019 filed their Brief of Argument dated the 18th day of March, 2019. The Respondent’s Brief of Argument was dated and filed on the 14th day of May, 2019. The Appellant’s Reply Brief dated the 10th day of February, 2021 was filed on the 5th day of March, 2021.
The learned Counsel to the Appellants adopted the Appellant’s Briefs of Argument and urged the Court to allow the appeal and set aside the decision of the lower Court.
The learned Counsel for the Respondent also adopted the Respondent’s Brief of Argument and urged the Court to dismiss the Appellant’s Appeal.
In the Appellants’ Brief of Argument settled by Musa Yahaya Esq., and Abubakar Musa Esq., four issues were formulated for the determination of this appeal, to wit:
1. Whether the learned trial Court was right when it held that the Appellants’ Writ of Summons is incompetent for not accompanying same with Certificate of Pre-action Counseling signed by the Appellants (Plaintiffs) as provided by Order 3 Rule 2(1) and (2) of the High Court of Niger State (Civil Procedure) Rules, 2012. (Ground 1).
2. Whether the trial Court was right in law when it rejected the Witness Statement on Oath of the 1st Appellant on the sole ground that it was signed in his Counsel office (Ground 3).
3. Whether the learned trial Court properly evaluated the evidence adduced in this case, having regard to the state of pleadings and evidence in awarding the entire seven families plot to the Respondent (Grounds 2 and 3).
4 Whether the Respondent by his counter-claim discharged the burden of proof required of him to judgment of title to the property subject to this appeal (Ground 2 and 4).
In the Respondent’s Brief of Argument settled by B. Y. Yarima Esq., the Respondent adopted all four Issues raised by the Appellants and added one more issue (Respondent’s issue 5) to wit:
5 Whether or not the case of the Plaintiffs/Appellants at the lower Court was not statute-barred.
ARGUMENTS OF COUNSEL
APPELLANT’S SUBMISSIONS
APPELLANT’S ISSUE ONE (1)
At paragraph 4.02 of the Appellant’s Brief of Argument, Counsel to the Appellant submitted that the provisions of Order 3 Rule 2(2) of the High Court of Niger State (Civil Procedure) Rules, 2012 does not say that failure to accompany a Writ of Summons with any of the processes listed in Sub-rule (1) would render an otherwise valid Writ incompetent. He submitted further that in unambiguous terms, the sub-rule only provides that where the writs are not accompanied by the processes listed therein, it shall not be accepted for filing by the Registry, and once accepted and assessed by the Registry and requisite fees paid, the consequence of non-compliance with the provisions of the rules will not affect the competence of the Writ. Counsel to the Appellant contended that where the Registry fails in its duty and accepts a process which does not comply with the rules, such failure will not affect the validity and competence of the Originating Processes, it will be a mere irregularity. He relied on the authority of SPOG PETROCHEMICALS LTD V. P.P.L. LTD (2018)1 NWLR (PT. 1600) 321 CA. Counsel to the Appellant submitted further at paragraph 4.03 of his Brief of Argument to the effect that in the instant case, the processes were accepted and assessed by the Registry, and the Appellants paid the requisite fees, hence, the consequence of any non-compliance with the provisions of the rules cannot affect the validity and competence of the Writ.
At paragraph 4.05 of the Appellant’s Brief of Argument, Counsel to the Appellant submitted that where strict adherence to the rules will occasion injustice, the Court will lean in favour of doing substantial justice. He relied on the case ofKLM ROYAL DUTCH AIRLINES V. ALOMA (2018)1 NWLR (1601) RATIO 5 473 AT 480 SC. He submitted further at paragraphs 4.06 – 4.07 of his Brief of Argument to the effect that while Rules of Court are to be obeyed, it is not every irregularity that would result in the dismissal of the proceedings. Also, the Appellants complied substantially with the Rules of the trial Court and the Respondents did not show that he was misled by the non-compliance of the Appellant or that he suffered any injustice, hence, the justice of the case demanded that the trial Court should have considered the merit of the case than concentrating on the defect in form. He relied on KLM ROYAL DUTCH AIRLINES V. ALOMA (SUPRA).
He urged this Court to resolve issue one in favour of the Appellants.
APPELLANTS’ ISSUE TWO (2)
At paragraph 5.0 – 5.03 of the Appellants’ Brief of Argument, Counsel to the Appellant submitted to the effect that it is trite law that where the Written Statement on Oath is adopted again on oath by the maker before cross-examination on it, whatever defect in the original oath in respect of the Witness Statement is cured by the second oath made in Court prior to the adoption of the Witness Statement by the maker and his subsequent cross-examination, hence, the adoption on oath in open Court by the 1st Appellant in the instant case has cured whatever defect of the Written Statement. He relied on the cases of UDUMA V. ARUNSI (2012)7 NWLR (PT. 1298) 55 AT 69 RATIO 4 CA and AJAYI V. ALALADE (2015)5 NWLR (PT. 1452) 380 AT 385 RATIO 3 CA.
He submitted further at paragraphs 5.04 of the Appellants’ Brief of Argument that it is trite that the theory of a matter and the practicality of the facts are two different things, and the main duty of the Court is substantial justice and not technical justice. He relied on the authorities of CBN V. INTERSTELLA COMMUNICATION LIMITED & ORS (2017) LPELR-43940 and SALEH V. MUNGONO & ORS (2006)7 SC (PT 11) 97.
He urged this Court to resolve Issue 2 in favour of the Appellants.
APPELLANTS’ ISSUE THREE (3)
At paragraph 6.01 of the Appellant’s Brief of Argument, Counsel to the Appellant submitted that the duty of a Court in ensuring justice is done is to evaluate the evidence before it before coming to a finding based on the evaluated facts. He relied on AGBABIAKA V. SAIBU & ORS (1998) 7 SC (PT. 2) 167. He submitted further at paragraphs 6.02 – 6.05 of the Appellants’ Brief of Argument to the effect that the learned trial Judge, having discountenanced the evidence of the 1st Appellant, has failed in evaluating the evidence before it and discharging its legal duty to properly evaluate the evidence led on both sides before coming to its decision, hence, such decision is a nullity. He relied on the authorities of PDP V. EKEAGBARA & ORS (2016) LPELR-40849 (CA) and OKPE V. FAN MILK PLC & ANOR (2016) LPELR-42562 (SC)
At paragraphs 6.06 – 6.08 of the Appellants’ Brief of Argument, learned counsel to the Appellant submitted to the effect that until it is shown that a family land has been partitioned, no individual has any distinct and alienable right over the land as it belongs to the entire family and all members are entitled to enjoy it, and it does not cease to be family property simply because an individual member has made any improvements on it. He contended that a party who claims exclusive title to communal or family land against the entire family or community must cogently prove that there has been a partitioning of the land, and the Respondent in the instant case failed to do so. The Appellants’ Counsel contended further that the mere fact that Respondent developed the land by farming and/or giving it to DW1 for farming cannot make the portion of land in dispute or any part of it the exclusive property of the Respondent since he has failed to discharge the burden of proving that the land was partitioned. He relied on the authority of OLODO V. JOSIAH (2010) 10 NWLR (PT. 1225) 653 AT 658 RATIO 4 SC.
At paragraphs 6.11 – 6.14 of the Appellants’ brief, the learned Appellants’ Counsel submitted to the effect that Exhibits A and B duly pleaded by the Appellants as plaintiffs before the lower Court are relevant to the determination of the main issue in controversy between parties, and what determines admissibility is relevance. He relied on the authority of ABUBAKAR V. CHUKS (2007)18 NWLR (PT. 1066) 386 AT 389-390 RATIO 1 SC. He urged this Court to resolve issue 3 in favour of the Appellant.
APPELLANTS’ ISSUE FOUR (4)
At paragraph 6.16 of the Appellant’s Brief of Argument, Counsel to the Appellant submitted that where a person relies on traditional history as his root of title to land, the onus is on him to plead the root of title, names and history of ancestors. He relied on the authority of ADDAH V. UBANAWAKI (2015) 7 NWLR (PT. 1458) 325 AT 330 RATIO 2 SC. He submitted further at paragraph 6.17 of the Appellant’s Brief of Argument that in the instant case, while the Appellants pleaded their root of title by stating names and history of their ancestors without missing any link, the Respondent failed to plead his root of title and the names and history of his ancestors, and by his pleadings and evidence, he informed the trial Court that he only knows Mal. Adamu, his grandfather, and he was not there when the land was shared. The Appellant’s Counsel submitted that the Respondent by his counter-claim, which was relied upon by the trial Court in arriving at its decision, failed to discharge the burden of proof required of him.
He urged this Court to resolve this issue in favour of the Appellant.
In conclusion, the learned Counsel to the Appellants urged this Court to allow the appeal and dismiss the findings of the trial Court.
RESPONDENT’S SUBMISSIONS
RESPONDENT’S ISSUE ONE (1)
At paragraph 4.2 of the Respondent’s Brief of Argument, Counsel to the Respondent submitted to the effect that where the Rules of Court provide a particular way of doing anything, compliance is mandatory, and failure to comply renders the process a nullity. Also, where the word ‘shall’ is used in a Statute or Rule, it denotes obligation and gives no room for discretion. He submitted further that in the instant case, the failure of the Appellants to file a Certificate of Pre-action Counselling renders their process incurably defective. Her relied on the authorities of AGBITI V. THE NIGERIAN NAVY (2011) 200 LRCN 1-230 PAGE 194, EMORDI V. IGEKE & ORS (2011) 197 LRCN 1-241 PAGE 102, DUKE V. AKPABUYO LOCAL GOVERNMENT (2006) 133 LRCN 1-315 PAGE 108, COTECA V. IVORY BANK (2006) VOL 26 NSCQLR PT, 1 PAGE 531, NDIC V. BALONWU & ORS (2017) LPELR-41963 (CA) R.3 AND NNPC V. TIJANI (2006)17 NWLR (1007) 29 (9) 45.
At paragraphs 4.03 – 4.04 of the Respondent’s Brief of Argument, Counsel to the Respondent submitted to the effect that contrary to the argument of the Appellant that the failure to file a Pre-action Counselling Certificate is a mere irregularity, such breach goes beyond mere irregularity or technicality, it is fatal and cannot be waived, hence, the trial Court was right in its finding that the Plaintiffs/Appellants’ suit was incompetent. He relied on the authority of KIDA V. OGUNMOLA (2006) AFWLR (PT 327) 402 AT 412. He urged this Court to resolve issue one in favour of the Respondent.
RESPONDENT’S ISSUE TWO (2)
At paragraphs 4.2-1 – 4.2-4 of the Respondent’s Brief of Argument, Counsel to the Respondent submitted to the effect that the signing of PW1’s Statement on Oath in his lawyer’s office is contrary to the requirement of the law that such statement must be sworn before a Commissioner for Oath, hence, it lacks evidential value and being liable to be discountenanced, the lower Court was right to have discountenanced it. He relied on the authorities of BUHARI V. INEC & ORS (2009) VOL 167 LRCN P.114 and AKANMODE V. DINO & ORS (2008) LPELR-8405 (CA). He submitted further that assuming the statement of PW1 was not discountenanced by the lower Court, it still would not have changed the decision of the Court, as there are material contradictions in the statements of the two witnesses for the Plaintiff/Appellant.
RESPONDENT’S ISSUE THREE (3)
At paragraphs 4.3-1 – 4.3-5 of the Respondent’s Brief of Argument, the learned Counsel to the Respondent submitted to the effect that it is clear from the evidence before the Court that there is nothing showing that the subject matter in this case jointly belongs to any seven families as alleged by the Plaintiffs/Appellants and the trial Judge properly evaluated the evidence before him before arriving at a decision based on the totality of evidence properly appraised or evaluated. He submitted further at paragraphs 4.3-6 – 4.3-7 of the Respondent’s Brief of Argument to the effect that it is a settled principle of law that where a trial Court has carried its assignment satisfactorily, as done by the lower Court in this case, an appeal Court shall be left with no option but to affirm such a decision. He relied on the authorities of MADAKI V. CIROMA & ORS (2016) LPELR-40268 (CA) and IKO V. STATE (2001)14 NWLR (PT. 732) P.221 AT 225.
In response to the Appellant’s submission that having declared the Appellant’s process incompetent, the trial Court cannot decide the case on an incompetent process, Counsel to the Respondent submitted at paragraph 4.3-8 of the Respondent’s Brief of Argument that the case was decided on the strength of the case of the Defendant/Counterclaimant/Respondent, as pleaded in his Counterclaim. He submitted further that a Counterclaim is a separate action from the substantive suit though given birth to by the substantive suit, and even where the substantive suit fails, the Counterclaim could succeed. He urged this Court to uphold the Respondent’s submissions and resolve the issue in favour of this Respondent.
RESPONDENT’S ISSUE FOUR (4)
At paragraphs 4.4-1 and 4.4-2 of the Respondent’s Brief of Argument, Counsel to the Respondent submitted that the Respondent clearly established his root of title before the lower Court without missing any link, by informing the Court that the property belongs to his grandfather Mallam Adamu who founded same by means of deforestation and who is the first person that founded the old Karfe village where the land is situate and became the first Ward Head of the village and when he died, the Defendant/Respondent’s father, Mallam Albara, became the Ward Head and the property in question is a portion of the larger parcel which the Defendant’s father inherited from the estate of his father, duly shared amongst the children of the Defendant’s grandfather (the Respondent’s father and the 2nd Plaintiff inclusive). The Respondent’s Counsel urged this Court to resolve this issue in favour of the Respondent.
RESPONDENT’S ISSUE FIVE (5)
At paragraphs 4.5-1 – 4.5-12 of the Respondent’s Brief of Argument, Counsel to the Respondent submitted to the effect that the evidence before the lower Court shows that the Defendant/Respondent’s father had seen in possession of the disputed land since the 11th day of August, 1998 when the estate of his late father was shared, until he died in 2007 before which he planted many economic trees and put DW2 in occupation of a large portion of land, and DW2 had remained in actual occupation for over twelve years before the institution of the case at the lower Court, contrary to Section 6 of the Niger State Limitation Law of 2007 which provides that a matter of this nature cannot be instituted after ten years of the cause of action. He submitted further that the lower Court had no jurisdiction to hear or determine the case of the Plaintiff/Appellant as the claims were commenced after the period of limitation. He relied on the authorities of INAKOJU V. ADELEKE (2007)4 NWLR PT1025 P. 423, HAPPY LAND HAPPY WORLD LTD V. U.B.N. (NIG) PLC & ORS (2017) LPELR CA and EMIATOR V. N.A. (2000)21 WRN 97 AT 107. He urged this Court to uphold the Respondent’s submission and resolve this issue in favour of the Respondent.
In conclusion, the learned Counsel to the Respondent urged this Court to dismiss this appeal with substantial cost against the Appellants jointly and severally, for lacking merit and/or substance, and uphold the judgment of the lower Court.
APPELLANTS’ REPLY TO THE RESPONDENT’S BRIEF
On the issue of Statute of Limitation. Counsel to the Appellant submitted at paragraphs 2.01 – 2.02 of the Appellant’s Reply Brief to the effect that the doctrine of proscription is not applicable to customary proprietary rights, thus, a claim founded on customary land tenure, as in the instant case, is not affected by Limitation Law since a grant under customary law is a grant in perpetuity. He relied on the authorities of ADETULA V. AKINYOSOYE (2017)16 NWLR (PT. 1592) 492 AT 496 RATIO 2 CA and OGUNLANA V. DADA (2010) 1 NWLR (PT. 1176) 534 AT 541 RATIO 4.
On the issue of counter-claim and the need to prove same by the counter-claimant, Counsel to the Appellant submitted at paragraphs 2.05 – 2.09 of the Appellant’s Reply Brief of Argument to the effect that a counter-claim must be proved to the satisfaction of the Court as required by law, however, in the instant case, the Respondents failed to do so with a distinct claim from the claim of the Appellant, and in addition to the Respondent’s failure to lead credible evidence to prove his counter-claim, he also placed reliance on the document tendered by the Appellant which the trial Court failed to utilize and/or rejected same, thereby erroneously deciding in favour of the Respondent. He submitted further that the burden of proof which lies on the Appellant to prove their claim is also on the Respondent to prove their counter-claim. He relied on the cases of KOLADE V. OGUNDOKUN (2017)18 NWLR (PT. 1596) 152 AT 159 RATIO 7 SC, UNOKAM ENT. LTD V. OMUVWIE (2005)1 NWLR (PT. 907) 193 CA, GARBA V. KUR (2003)11 NWLR (PT. 831) 280 CA, DAGACI OF DERE V. DAGACI OF EBWA (2006)7 NWLR (PT. 979) 382 SC, LEBILE V. REG. TRUSTEES C & S (2003)2 NWLR (PT. 804) 399 SC AND EWO V. ANI (2004) 3 NWLR (PT. 861) 610 SC.
Counsel to the Appellant submitted that the evidence of DW1 and DW2 on pages 18-21 of the Supplementary Record of Appeal are fundamentally contradictory and they are evidence against the Respondent and also in conflict with the Respondent’s Statement of Defence at the lower Court. Also, the Respondent is of a different father, Albara, and cannot inherit the property of the Appellant’s parents, Barden Kurmi and Malam Adamu.
He contended that contrary to the submission of the Respondent’s pleadings and evidence adduced, the Appellant have established their case by their Written Statements/depositions on oath of PW1 and PW2 due to the fact that the Appellants’ grandparents founded the land in dispute by clearing same personally as held in GBADAMOSI V. OKEGE as well as the Respondent’s admission that the subject of this appeal was housing the entire Karfe. The Appellant’s Counsel contended further that it has been established in evidence that the Respondent in company of other persons has been trespassing into the Appellants’ land without any authority or legal justification. In proving their case, the Appellants tendered documents admitted and marked Exhibits A and B buttress their claim and this constitutes sufficient proof of the boundaries and features set out in the land in dispute. He relied on the authorities of ADIMORA V. AJUFO (1988) NWLR (PT. 80) 1.
On the issue of whether the trial Court was right when it admitted Exhibits A and B in Evidence and relied on it in support of the Respondent’s case, Counsel to the Appellants contended at paragraphs 4.09 – 4.12 of the Appellants’ Reply Brief to the effect that Exhibits A and B were wrongly received in evidence, having been received in relation to a matter of native law and custom, hence this Court should expunge same. In submitting that documentary evidence is unknown to native law and custom, the Appellants’ Counsel relied on the authorities of OLUBODUN V. LAWAL (2008)17 NWLR (PT. 1115) 1, RATIO 21 and EGWU V. EGWU (1995)5 NWLR (PT. 396) 493 RATIO 5.
He submitted further that assuming without conceding that Exhibits A and B were rightly admitted in evidence, the Respondent is not among the persons named in Exhibits A and B and there is nothing in his pleadings that linked him with the said Exhibits.
The Appellant’s Counsel contended that the evidence of the Respondent given on facts relating to Exhibits A and B which facts were not pleaded, goes to no issue, as it is trite law that evidence led on facts not pleaded go to no issue. He relied on the authority of FALEKE V. INEC (2016)18 NWLR (PT. 1543) 61 AT RATIO 35. Relying on the case of OGBOJA V. ACCESS BANK PLC (2016)2 NWLR (PT. 1469) 291 AT RATIO 7. He submitted further that in the instant case, the evidence of the Respondent amounted to varying the contents of Exhibits A and B, hence, his oral evidence was not permissible in law and should be rejected.
In conclusion, the Appellants’ Counsel urged this Court to resolve all issues in favour of the Appellant.
RESOLUTION OF ISSUES
The Appellants distilled four (4) issues for determination of this appeal as earlier set out. I adopt the four issues to determine this appeal and the issues submitted for determination by the Respondent shall be considered thereunder. The first issue for determination is:-
“Whether the learned trial Court was right when it held that the Appellants’ writ of summons is incompetent for not accompanying same with certificate of pre-action Counseling signed by the Appellants (plaintiff) as provided by Order 3 Rule 2(1) and (2) of the High Court of Niger State (Civil Procedure) Rules, 2012. (Ground 1).”
The above issue is jurisdictional and it is therefore imperative that being a threshold issue, it must be resolved first before taking steps to consider the remaining issues or take steps in this suit. In otherwords, it has now become universally accepted that when an objection is raised in respect of the competence of a suit or an appeal, the jurisdiction of the Court becomes an issue and it is fundamental and indeed a duty on the Court to resolve the issue before delving into the merits or demerits of the case. See SPDC V EJEBU & ANOR (2010) LPELR, 5025 (CA), B. A S. F (NIG) LTD V FAITH ENTERPRISES LTD, (2010) 411 NSQR 381 at 411, AFRO CONTINENTAL (NIG)LTD & ANOR V CO-OPERATIVE ASSOCIATION INC (2003) LPELR-217 (SC), AG ANAMBRA STATE V A. G FEDERATION (1993) 6 NWLR (Pt. 302) 692 AND A.G LAGOS STATE V DOSUNMU (1989)3 NWLR (Pt. 111) 582.
The Appellants Counsel at paragraphs 4.01-4.07 of the Appellants Brief of Argument submitted to the effect that failure to satisfy the requirements of Order 3 Rule 2(1) and (2) of the High Court of Niger State (Civil Procedure) Rules, 2012 does not render an otherwise valid writ incompetent. He submitted that where the Registry of the Court accepted and assessed the requisite fees and the fees are paid by the claimant, the consequence of any non-compliance with the provision cannot go to affect the validity and competence of the writ.
In his response, the Respondent at paragraphs 4.02 – 4.04 of the Respondent’s Brief of Argument, learned Counsel submitted that the mode of beginning civil proceedings is as provided in Order 3 Rule 2 (1) of the Niger State High Court (Civil Procedure) Rules 2012. According to learned counsel, the Appellant failed to include a certificate of pre-action counselling as required by the Rules of the Court and thus, the originating process is incurably defective and that the trial Court had no option than to dismiss the case of the plaintiff/Appellants for being incompetent. Learned counsel cited plethora of judicial authorities to support his contention.
Firstly, it is important to note that there are four main modes of commencing or initiating an action in Court. These are by writ of summons, originating summons, Originating Motion and petition. The Rules of a particular Court may in some circumstances provide other modes of beginning an action in Court. See the decision of this Court in the case of MINISTER OF PETROLEUM RESOURCES & ANOR V THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED, (2021) LPELR-55436. See also KOLAWALE V ALBERTO, (1989)1 NWLR (pt 98) 382 (SC), DOHERTY V DOHERTY (1964) NWLR 144 AND ADOJUTELEGAN V APC & ORS (2021) LPELR.
A further illustration of the mode of commencing an action in Court is Section 410 of the Companies and Allied Matters Act, 1990, Section 54(1) of the Matrimonial Causes Act, 1970 and Section 140 of the Electoral Act 2010 (as amended).
In the instant appeal, the suit of the Appellants at the lower Court was commenced by a writ of summons dated and filed on 29th August, 2017. (See pages 1-13 of the Record of Appeal). Now by the High Court (Civil Procedure) Rules, 2012 of Niger State, Order 3 Rule 2(1) provides as follows:-
“All civil proceedings commenced by writ of summons shall be accompanied by;
(a) Statement of claim;
(b) List of witnesses to be called at the trial;
(c) Written statements on oath of the witnesses;
(d) Copies of every document to be relied on the trial;
(e) A certificate of Pre-action counselling signed by the plaintiff’s counsel.”
Sub-paragraph (2) of Order 3 of the Rules under reference also states:-
“Where a plaintiff fails to comply with Rule 2 (1) above, his originating process shall not be accepted for filing by the Registry.”
The Appellants (plaintiffs) at the lower Court, at the time of commencing and filing his writ of summons did not accompany the writ of summons with a certificate of pre-action counselling signed by the plaintiff’s counsel.
In other words, the Appellants did not fulfill or satisfy the requirements of Order 3 Rule 2(1) of the Niger State High Court (Civil Procedure) Rules 2012 in that the certificate of pre-action counselling signed by the plaintiff’s counsel did not accompany the writ of summons. In this regard, the learned trial judge at pages 55-58 of the supplementary Record of Appeal held as follows:-
“…I will however, for obvious reasons delve into issues number 4 which was raised by the learned defence counsel in his address. That is the competence or incompetence of the plaintiff’s suit in view of the non-compliance with the express provision of Order 3 Rule 2(1) and (2) of the Niger State High Court (Civil Procedure) Rules.
Whilst being mindful of the current position of the Courts to do substantial justice and not to sacrifice substantial justice on the altar of technicalities, I do note that by virtue of Order 3 Rule (2) of the rules of this Court, where a party fails to comply with Rule 2 (1) the originating process shall not be accepted for filing. The use of the word shall is a command; it makes compliance compulsory and mandatory and where an originating process fails to comply, it is bad ab initio.
I am mindful also, that the rules had given a widow with regards to failure to observe certain acts which could be treated as an irregularity, by virtue of Order 5 Rules 1 (2) by Order 5 Rules 2 an application may be made to set aside such proceeding for irregularity, but, such an application must be made within a reasonable times before the party applying takes any fresh steps after becoming aware of the irregularity. Unfortunately, this issue is raised in the final written address. I have therefore considered whether the irregularity is such which can be waived but I am unable to do so in view of the provision of Order 5 Rule 1(1) which provides:-
“Whether in the beginning or purporting to begin any proceeding, there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure shall nullify the proceedings.
No doubt, the failure here is in the commencement of the proceedings and will be fatal to the case of the plaintiffs in OCHEGBUOU VS AGBALA (2014) LPELR-22650 CA, it was held:
If Rule of Court provide for a particular format for the commencement of action or taking out of any processes such as Brief of Argument, a party is bound to comply with the format. Where it fails to do so, a Court of law is entitled to hold that action or that process incompetent, and it should not be considered. See MADUKOLU VS NKEMDILIM (1962) NWLR 595, D. E. N. R LTD VS TRANS INT’L BANK LTD (2008) 18 NWLR (pt. 1119) 388. I have alluded to this discretionary power of the Courts so as to make the point that learned counsel who represent clients in Courts of law must observe the law and Rule to avoid damaging the cases of their clients.
Again in EDE VS CBN & ORS (2014) LPELR-24121 CA it was held:-
Where there is a clear provision in the rules of Court on the manner a certain step should be taken, it becomes a condition precedent to hearing of the application and such must be followed and obeyed as it does not give room for the excessive of discretion by the Court no choice of method by the parties substantial justice can only be done to a suit properly initiated by due process not otherwise.
To argue that it is a mere irregularity is untenable. The breach is fatal and cannot be waived; see the case of KIDA VS OGUNMOLA (2006) AFWLR (pt. 327) 402 at 412 where this Court held as follows: The validity of the originating processes in a proceeding before a Court is fundamental as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit.” I agree with the Respondents that failure to commence proceedings as anticipated by the Rules of Court strikes at the judgment of the Court to determine the application.
Jurisdiction is the life wire of a Court or Tribunal and it is fundamental as without jurisdiction a trial would be a nullity and an unnecessary waste of time. It is settled that jurisdiction can be raised at any time even on appeal, orally or formally or even by the Court itself suo motu…”
For the aforementioned reason and authority cited, I find the plaintiffs’ suit incompetent and I so hold.”
The position and finding of the learned trial Judge on the non-compliance with the requirements of Order 3 Rule 2(1) and (2), Rules of the High Court of Niger State, 2012 is correct, perfect and the position of our procedural law and such finding cannot be disturbed by this Court. This is because, the requirement of filing a certificate of pre-action counselling by the plaintiffs or their counsel is a condition precedent and that is why in both Rules (1) and (2) of Order 3, the use of the word “shall” makes it mandatory for the plaintiffs to file a certificate of pre-action counseling. In the case of NONYE IWUNZE V. FRN, (2014) LPELR-22254, the Supreme Court in considering Order 17 Rule 4 (1) of the Court of Appeal Rules, 2011 held as follows:-
“By the above provision which for me is very clear and unambiguous, any aggrieved party to which this Rule applies, who desires to appeal “shall” personally sign the Notice of appeal. The use of the word “shall” in the Rule denotes mandatoriness and does not make room for any exercise of discretion. It is a word of command. See ONOCHIE V ODOGWU, (2006) 6 NWLR (pt 975)65, AMOKEODO V IGP & 2 ORS, (1999) 5 SCNJ 71 AT 81.”
Thus, in the instant case, the competence of the writ of summons initiating the suit at the lower Court has been called to question and question of competence, which is a threshold issue of jurisdiction, is fundamental to adjudication because it goes to the foundation and competence of any cause, matter or action before the Court. It is indeed the epicentre of the entire litigation process and thus without it there can be no validity in any proceedings or resultant judgment of the Court.
See the cases of MADUKOLU V NKEMDILIM, (supra), D.E.N.R V TRANS INT’L BANK LTD (supra), EDE V CBN & ORS (supra) etc all cited by the learned trial judge are in all fours with the objection raised at the lower Court.
See also ELUGBE V OMOKHAFE (2004) 18 NWLR (pt 905)319 at 334, ANSA V RTPCN (2008)7 NWLR (Pt 1086)421 at 448, NICON INSURANCE PLC V ANAGBA VENTURES LTD, (2018) LPELR-46672(CA).
The Appellants counsel has argued that the Registry of the trial Court despite the clear provision of Order 3 Rule 2(2) of the High Court (Civil Procedure) Rules of Niger State, accepted for filing the plaintiffs’ writ of summons and accompanied processes listed therein, assessed same and fees paid and therefore the action of the plaintiffs non-compliance of accompanying the writ of summons with a certificate of pre-action counselling is a mere irregularity that can be waived and for the Court to avoid technicalities and do substantial Justice to all parties.
It is correct that Courts of Law are enjoined to do substantial justice to parties before them rather than adhere to technicalities. By the judgment of the trial Court, the learned trial Judge considered Order 5 (1) and (2) of the High Court (Civil Procedure) Rules of Niger State which states:-
(1) “Where in beginning or purporting to began any proceeding, there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure shall nullify the proceedings.”
(2) Where at any state in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The judge may give any direction as he thinks fit to regularize such steps.”
The failure or the non-fulfilment of the requirement(s) of Order 3 Rule 2(1), Rules of the High Court of Niger State is or are not the kind of irregularity envisaged by Order 5 (2), Rules of the same Court. The irregularities envisaged under Order 5 (2) are in relation to failure to comply with requirements as to time, place, manner or form, then such irregularities cannot affect the validity of a competent writ of summons or any originating process. Conversely, in the instant case, the failure to comply with the requirement as provided by Order 3 Rule 2 (1) of the High Court (civil procedure) Rules, 2012 of Niger State is fundamental or a condition precedent to be met before a Court would assume jurisdiction. Thus, failure to fulfil any of the requirements, renders the writ of summons incompetent and where the mode of commencement of an action is incompetent, then there is no jurisdiction by a Court to entertain it.
The learned counsel to the Appellants had submitted that where the Registry fails in its duty and accepts the originating process, the failure of the Registry will not affect the validity and competence of the originating process.
I disagree with the learned counsel to the Appellants. The Registry of the Court cannot validate an invalid or incompetent writ of summons. And the provision of Order 3 Rule 2(2) of the High Court of Niger State (Civil Procedure) Rules 2012 is crystal clear that such originating process shall not be accepted by the Registry at the time of filing. In the instant case, the Registry having accepted and fees assessed and paid, unfortunately for the Appellants, the originating process of the Appellants is incompetent ab initio.
In the case of ILOKSON & CO (NIG) LTD V UNION BANK, (2021) LPELR-55626, the Supreme Court held:-
“Once it is shown and demonstrated satisfactorily that an originating process employed or used to initiate an action or suit was/is incompetent, the defect is fatal ab initio depriving the trial Court and subsequently, the appellate Courts of the requisite jurisdiction to adjudicate over it since you cannot put something on nothing and expect it to stand; the defect being contiguous.”
In the case of NIGERIA RAILWAY & ORS V AKINBODE & ORS, (2007) LPELR-4603, this Court held as follows:-
“Since the action is incompetent, the Court lacked the requisite jurisdiction to hear and determine the suit. The action was not initiated by due process of law. Since the trial Court lacked jurisdiction, any further exercise thereafter is null and void and of no effect. It was an exercise in futility as it attempted to put something upon nothing. See MADUKOLU V NKEMDILIM (1962) SCNLR 341 and McFOY V UAC (1962) A.C 152. The suit must be struck out for being incompetent. And I so order.”
Thus, in the instant appeal, I want to further draw the attention of the Appellants’ counsel to the fact that even at the time he approached the lower Court’s registry with the Originating Summons, whether the Registry accepted same or not, the process was already an incompetent one. In other words, the acceptance by the Registry of the lower Court was made in vacuum because it was void and it cannot be revived by the Registry of the Court no matter the amount of fees paid.
Lord Denning M.R in McFOY v UAC (supra) stated in clear terms thus: “if an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the Court to declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
See also DAKAN & ORS V ASALU & ORS, (2015) LPELR-24687(SC).
Now before I conclude on this very important requirement of accompanying the writ of summons with a certificate of pre-action counselling, the Appellants counsel’s attitude and conduct in taking the blame of his failure to comply with the Rules of Court to the doorsteps of the Registry of the Court is most unfortunate and it does not portray the counsel as a minister in the temple of Justice. This Court had in the case of OGUWEDE & ORS V ANAJUBA & ORS, (2016) LPELR-42118 held as follows:-
“Many lawyers have abdicated their roles to litigation secretaries in their chambers such as preparation of legal processes, example, bail applications etc. But whenever disputes arise, lawyers quickly file affidavits pleading “mistake” negligence, “blunders” or ‘inadvertence’ of counsel etc. There is need to curtail these pleas since they bother on professional malpractices or misconduct as provided under Rules 14 (1) – 5; 16 (1) (a) – (d) and 31 (3) of the Rules.
The Rule reads “14(1) it is the duty of a lawyer to devote his attention, energy and expertise to the service of his client and, (2) without prejudice to the generality of paragraph (1) of this rule, a lawyer shall (a) consult with his client in all questions of doubt which do not fall within his discretion; (b) keep the client informed of the progress and any important development in the cause or matter as may be reasonably necessary; (c) warn his client against any particular risk which is likely to occur in the course of the matter; (d) Respond as promptly as reasonably possible to request for information by the client; and (e) where he considers the client’s claim or defence to be hopeless, inform him accordingly (3) when representing a client, lawyer may, where permissible exercise his independent professional judgment to waive or fail to assert a right or position of his client. (4) It is the duty a lawyer employed in respect of a Court case to be personally present or be properly represented throughout the proceedings in Court. (5) Negligence is handing of a client’s affairs may be of such a nature as to amount to professional misconduct. (16)(1) A lawyer shall not (a) handle a legal matter which he knows or ought to know that he is not competent to handle, without associating with him a lawyer who is competent to handle it unless the client objects; (b) Handle a legal matter without adequate preparation; (c) Neglect a legal matter entrusted to him; or (d) attempt to exonerate himself from or limit his liability to his client for his personal malpractice or professional misconduct. (30) A lawyer is an officer of the Court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice, 31 (3) A lawyer who fails to comply with any undertaking given to him either personally or on behalf of his client to a Court is prima facie guilt of professional misconduct.”
Pending on the facts and circumstances of each case, a lawyer may be liable to punishment as provided under Rule 55(1) and (2) of the Rules of Professional Conduct for Legal Practitioners Rules 2007. 55 (1) if a lawyer acts in contravention of any rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall be guilty of a professional misconduct and liable to punishment as provided in legal practitioners Act, 1975 (2) it is the duty of every lawyer to report any breach of any of these rules that comes to his knowledge to the appropriate authorities for necessary disciplinary action.”
In the instant case before the lower Court, the facts and circumstances of the failure of the Appellants counsel to file together with the writ of summons, a certificate of pre-action counselling presupposes that counsel never warn his clients i.e. Appellants of the risk of their case and for counsel to be personally liable as provided by the Rules of Court, Rules of Professional Ethics and Legal Practitioners Act. The Appellants’ counsel cannot therefore, in the instant appeal hide his inadequacies by blaming or shifting the goal post on the Registry of the lower Court. The process of commencing an action wholly lies with counsel representing the Appellants who has the authority of the Appellants to initiate and conduct their case at the lower Court and this invariably calls for the professional expertise of counsel. Thus, this is not in the realm of mistake of Registry staff or mistake of counsel but rather it is a fundamental issue at the time of initiating the action.
Having said all of the above, the trial Court, at page 58 of the supplementary Record of Appeal held that: “I find the plaintiffs suit incompetent and I so hold,” at that stage the learned trial Judge ought to have struck out the suit for incompetence. Proceeding to hear the suit in the alternative is wrong because both the trial Court and this Court have no jurisdiction to hear and determine the suit due to its incompetence.
Hence, therefore, the jurisdictional issue is hereby resolved against the Appellants and in favour of the Respondent. The appeal is hereby dismissed.
Consequentially, the suit no. NSHC/SD/70/2017 filed on 29/08/2017 before the lower Court is hereby struck out.
Cost of N100,000 is hereby awarded in favour of the Respondent against the Appellants’ counsel, i.e. the cost be paid personally by counsel to the Appellants, Musa Yahaya Esq.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Danlami Zama Senchi, JCA gave me the privilege of reading in advance the judgment just delivered.
The proceedings of the Niger State High Court delivered on the 12/10/2018 in Suit No: NSCH/SD/70/2017 was set aside for breach of the mandatory requirements of Order 3 Rule 2(1) of the Civil Procedure Rules of that Court. Specifically, the suit was commenced without accompanying same with “a certificate of pre-action counseling” duly signed by counsel. The omission fundamentally affected the competence of the Writ of Summons, the filing of the pre-action counseling certificate being a condition precedent to the validity of the action.
I therefore agree with my learned brother for the reasons precisely heralded in the lead judgment, that the appeal lacks substance. It is hereby dismissed. I abide by the consequential orders made including the order on costs.
HAMMA AKAWU BARKA, J.C.A.: I read in draft the lead judgment delivered by my learned brother, Danlami Zama Senchi JCA.
Having also studied the grounds of appeal, the record of proceedings and listened to the submissions of learned counsel, I hold the view that the appeal is lacking in merit and that which ought to be dismissed. I agree that the lower Court ought to have struck out the incompetent originating process, and whatever finding, it might venture to do in respect of the either issues contended upon, since that Court has no finality in the matter, strike out the case. Accordingly, I strike out the suit before the lower Court and make no order on cost.
Appearances:
Musa Yahaya, Esq., with him, Abubakar Musa, Esq. For Appellant(s)
B. Y Yerima, Esq. For Respondent(s)
