COMMUNITY DEVELOPMENT ORGANIZATION & ANOR v. IBRAHIM MOHAMMED (2014)

COMMUNITY DEVELOPMENT ORGANIZATION & ANOR v. IBRAHIM MOHAMMED

(2014)LCN/7158(CA)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of May, 2014

CA/K/130/2009

RATIO

CIRCUMSTANCES WHERE A COURT CAN EFFECTIVELY RAISE AN ISSUE SUO MOTU AND DETERMINE SAME WITHOUT HEARING THE PARTIES

The law is settled that no Court possesses the power to raise an issue and motion and proceeds to determine without first inviting Learned Counsel for the parties to address it, on it, otherwise it would amount to denial of fair hearing.

However, there are circumstances recognized by our law in which a Court can effectively raise an issue suo motu and determine the same without hearing the parties particularly if it borders on the jurisdiction of the Court and, on law, the Court can take judicial notice of the same. See Omokuwajo vs. Federal Republic of Nigeria (2013) LPELR 20184 (SC) where the Supreme Court held that the need to give the parties a hearing when a Judge raises an issue suo motu would not be necessary when the issue (a) relates to the Court’s own jurisdiction, (b) both parties are/were not aware or ignored a statute which may have bearing on the case, that is to say, whereby virtue of statutory provision the Judge is expected to take judicial notice; and (c) when on the face of the record, serious questions of the fairness of the proceedings is evidenced. Per THERESA NGOLIKA ORJI-ABADUA, J.C.A.

WHETHER A LAW FIRM CAN SIGN AND ISSUE ANY LEGAL PROCESS UNDER THE LEGAL PRACTITIONERS ACT

The issue of the proper person to sign a legal process is so fundamental that when a legal process is authored by a person not authorized or recognized by the Legal Practitioners Act to sign the document or the Rules of the Court, the process is rendered invalid and it becomes null and void and it cannot be rectified by any subsequent amendment to the process. The law is that once an initiating process or any other legal process is not signed or authorized either by the party in the suit or the Legal Practitioner on his behalf, then the process is invalid and the jurisdiction of the Court is ousted.

JUSTICES:

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA G. MBABA Justice of The Court of Appeal of Nigeria

Between

1. COMMUNITY DEVELOPMENT ORGANIZATION
(TUDUN-MALIKI QUARTERS)
2. MUSA MAGAJI MAJIYA – Appellant(s)

AND

IBRAHIM MOHAMMED – Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The Plaintiff initiated a civil proceeding against the Appellants before the Kano State High Court by an Amended Writ of Summons dated 12/10/2000 and signed as “pp Abdulhamid Kassim & Co. The Respondents’ unsigned Amended Statement of Claim before the Lower Court shown at pages 166-168 of the record but which has the name of a Law Firm, i.e. Abdulhamid Kassim & Co. typed in the column for signature, contained the following reliefs against the Appellant:
a) That the first Defendant vacate and deliver up possession of No.126 on Plan No.TP/MB/60, Hausawa, Tudun Maliki district of Kano, Kano State.
b) An order that the 1st Defendant desist from their acts of trespass on the Plaintiffs plot No. 126 on plan No.TP/MB/60 Hausawa, which was duly allocated to the Plaintiff on the 9th day of May, 1997.
c) An order for Special damages to be paid to the Plaintiff for the 1st Defendant’s act of trespass in the sum of N500,000.00 (Five Hundred Thousand Naira) viz:
i. Using without authority and payment of rent for the period of over Ten (10) Years that the Plot has been in the possession of the 1st Defendant.
ii. Construction and or defacing of the Plot.
d) An order of perpetual injunction restraining the Defendants by themselves, Agents, Privies, Assigns, or any personal whatsoever named or designation from committing any or continuing any act or acts of trespass on the Plaintiffs plot in dispute.
e) An order setting aside the sale for transaction in respect of the subject matter which took place between the Defendants dated 1/5/1990.
The Appellants also counter-claimed in their Statement of Defence against the Respondent thus:
1. A declaration that 1st Defendant is the rightful and the legal owner of the subject matter of dispute in the suit.
2. A declaration that transaction between 1st and 2nd Defendant is valid.
3. A declaration that 2nd Defendant transferred valid and good title to the 1st Defendant in respect of the subject matter dispute.
4. A declaration that subject matter of dispute have never form part of Late Musa Jama’are estate.
5. A perpetual injunction restraining the Plaintiff or any of the heirs of Musa Jama’are from further claiming, trespassing or interference into any part of the subject matter of dispute in this suit.
6. Cost of this action.
In his testimony, P.W.1, Audu Jama’are, stated that Musa Jama’are is his brother of full blood. The subject matter, the house is situated at Gidan Zoo, Kano. He lived in the house for over 3 years with his wife. It was built by his senior brother. His neigbours were Maiunguwa by the North, Mechanic Garage by the East and Roads by South and West. It is a room and parlour mud house. He was a Motor Park agent. He moved out of the house when his brother died.
P.W.2 – Ali Adamu, a Mechanic and 52 years old. Musa Jama’are granted him license to stay on his land for his mechanic workshop by an agreement dated 13/4/94. He was around when Musa Jama’are built the house. He confirmed that P.W.1 lived in the house. He said he knows Muhammed Ibrahim and he identified Mallam Inusa that Maiunguwa lived in the place for 3 years and
P.W.3 – Muhammadu Babayo, a Mechanic. He knew that the people in Ja-oji were asked to vacate their houses and that they were re-settled at Hausawa Zoo Quarters, and as a result of that, his father built his house. He gave his brother, P.W.3’s uncle, he also got a plot and built one. After his uncle left the house and after their father’s death, he removed the iron sheets and the wood on the roof. Later, the ward Head and one Alhassan came looking for him and told him that that plot belonged to one Musa Dansanda, and, he, P.W.3., was taken to him. The said Musa Dansada told him that that plot belonged to him and then warned him to steer clear of the land. He, also, threatened to arrest him for parking his sheets and wood. Afterwards, he instituted a case at Area Court. When that house of their father which they were occupying was sold and the money was divided amongst them. Later his brother Safiyanu filed an action in respect of the house Musa Dansanda then warned him about it. He was about 15 years when the Government compensated them. It was Kano Sate Government that compensated them. He is the first son of his father.
P.W.4 -Sefinayu Muhammed Ya’u. He stated that his mother was a wife to the father of the Plaintiff, Alhaji Musa Jama’are. The Defendants are his neighbours with Alhaji Alhassan and the house of Mai Unguwa. Alhassan is the Treasurer of Northern Part of the Organization concerning Musa Magaji. He was there when the two plots were given and the two allocation papers were shown to him. The Court gave Mai Unguwa the second house for safe keeping. The affidavit sworn by P.W.4 on behalf of Muhammad and Ibrahim was admitted as Exhibit P2.
At this stage however, and on 13/10/03, Motion for extension of time to enable the Defendants file their Counter-Claim out of time was heard by the Lower Court. The ruling was delivered on 26/2/04 granting the application.
P.W.4 – Confirmed that after a while they saw people demolishing the former house and building on that house. They were the Community Development of T. I. Maliki Association of T. I. Maliki. The Area Court asked them to go and verify from KASSEPA the actual owner of the Land in a letter dated 25/8/98, and, KASSEPA replied on 28/8/98, stating that the owner of that place is Mohammed Ibrahim. The letter from KASSEPA was admitted as Exhibit P3. P.W.4 instituted suit No.10/207/98 at the Area Court on behalf of his mother. The Area Court struck out the matter. They, then, lodged a complaint with the Emir. He later heard that it was Musa Magaji Majiya who sold the land to the Community Committee and he wrote the agreement on his letter headed paper which he gave him with the original allocation paper. The said Sales Agreement written in Hausa and dated 1/5/90 and its English Translation and photocopy of the allocation paper of Plot No. 26 written in Hausa Language and the English Translation were admitted as Exhibits P11 and P12 respectively. After they succeeded in the case they applied for a building permission which was granted to them.
P.W.4 was extensively cross-examined.
D.W.1 – Yunusa Lawan,a farmer and Ward-Agent of Tudun Maliki Quarters, Kano for 34 years. He settled first before Musa Jama’are.
He said the original owner of the Land in dispute was the Emir of Kano which he gave to Kabiru Lawan Kurawa. The Tudun Malik Association bought the Land from Musa Magaji; who bought from Bako Maishabala, who bought from Sharaibu Kazaure and Sharaibu bought from Lawan Hussein Kurawa.
He said it is not true the Land was given as compensation to Musa Jama’are. He admitted the land was entrusted to him for them by the Area Court. He stated under cross-examination that both him and Musa Jama are settled at Tudun Malik at the same time, about 34 years ago.
He was confronted with Exhibit 1, an agreement between Musa Jam’are and Ali Makanike which he, D.W.1 signed. He recognized his signature. He said he was one of the Officials of Tudun Maliki Association. He admitted he is a member of the Association. He admitted it is the same Plot the Area Court entrusted to him on behalf of Musa Jama’are’s family that he said was sold to the Association by Musa Magaji. The Association bought the land after the Court gave it to him on trust. He was not aware when the Emir of Kano was giving the Land to Kabiru Lawan Kurawa and he did not witness the sale of the Land from Kurawa to Maishadda and up to Musa Magaji.
D.W.2. – Musa Magaji, admitted selling the land to the 1st Appellant. The Receipt of purchase was tendered as Exhibit D1(a) and (b) both the Hausa and English version. He did not know from whom Bako Maishadda bought the land. He was a Police Officer for about 35 years. The Sale Agreement he had with the 1st Appellant was tendered as Exhibit D 2(a) and (b) in both the Hausa language and the English translation. He was extensively cross-examined at pages 54 and 55 of the record.
D.W.3 – Alhassan Muhammed Dadi. He has been in Tudun Maliki for about 29 years then. He is the Secretary of the 1st Defendant. The Register of Tudun Maliki Zumunta Development Association No. 004746 dated 30th April, 2003 was tendered as Exhibit D3. He knew Musa Jam’are. He knew the subject matter in the suit. The 1st Defendant bought from Musa Magaji in 1996 at N30,000.00. He represented the 1st Defendant in the transaction. He said that Alh. Makauke was never on the land and it was not given to him by Musa Jama’are. Ali Makanike works behind thehave of Musa Jama’are.
Under cross-examination he said that the 1st Respondent was not registered as at the time it bought the land from Musa Magaji and for about 20 years he has been the Secretary of the 1st Defendant. The 1st Defendant has not been registered. D.W.3 signed the agreement. D.W.3’s specimen signature was tendered as Exhibit D4. He was shown Exhibit D2 (a) and he acknowledged that he signed at the buyer’s column. He admitted that the name of the 1st Defendant is not contained in Exhibit D2 (a) and (b). The Emir issued him with Writ of Possession. He admitted he was there in the Area Court when the Area Court gave it to Mai Unguwa the land for safe keeping. He said he did not inform the Area Court when he bought the land from Musa Magaji but that he bought the land and gave to Mai Unguwa for safe keeping. He said that apart from the signature of the Seller and Buyer in Exhibit D2 (a), no other signature appeared on it. He said he did not investigate about the land before he bought it. As at 1999 he instituted action on behalf of the 1st Defendant, the 1st Defendant was not registered in that No. KA/19/Ct.21/1999.
D.W.4 – Alhaji Bako Yankatsari, a trader – He bought the land from Shu’aibu Kazaure through his agent, Alharamane. He did not investigate about the land before he paid for it. It was his agent who took the money to Shu’aibu Kazaure and he gave him the title document to bring to him. He sold the plot to D.W.2 and he handed the Sale Agreement to him. He could not remember how much he sold the land to D.W.2.
The Defendants were disappointed with the judgment that they lodged an appeal challenging the same. They later amended their Notice of Appeal contains nine grounds of appeal. At the end of the trial, the Lower Court entered judgment in favour of the Respondent at pages 325 of the record read thus:
‘There is no evidence before this Court that allocation made by the Kano State Government in the name of the Plaintiff Muhammed Ibrahim in connection with Plot 126 T. Maliki Quarter, Kano has been revoked or that double allocation has been made.
In consideration of the above, and from the totality of the evidence including all exhibits before this Court, I am satisfied that the Plaintiff has established his case on the balance of probabilities against the Defendants in line with the case of Idundun vs. Okumagba (1976) 9 and 10 SC page 207 and the case of Kyari vs. Alkali (2001) FWLR page 1481 -1506 paragraphs C-E.
The Plaintiff therefore having established his case on the balance of probabilities hereby declared the owner Plot No. 126 TP/MB/60. T. Maliki Quarters Kano. The transaction therefore between Musa M. Majiya and the 1st Defendant which is null and void is hereby set aside. The Plaintiff therefore should take possession of the said plot.”
Learned Counsel for the Appellant raised six issues for determination they are:
1. Whether there are material contradictions in the case of the Respondent. And if so, whether the contradictions are such that will result in the reversal of the judgment.
2. Whether the learned trial Judge was right in admitting Exhibits P2, P3, P5, P6, P7, P8, P9 and P10 in evidence and relying on same to hold that the Plaintiff has established his case on balance of probabilities.
3. Whether the Lower Court had jurisdiction to hear and determine the Plaintiffs claim against the 1st Appellant.
4. Whether the Lower Court was right to hold that the Plaintiff established his case on the balance of probabilities.
5. This issue emanates from the first ground of appeal which is the omnibus ground of appeal that the judgment of the Lower Court is against the weight of evidence adduced at the trial.
6. Whether the proceedings of the Lower Court from 10/10/2008 which is not predicated on a fresh suit filed against the Defendants/Appellants is legally competent and the Lower Court had jurisdiction in view of the ruling of the Lower Court on 9/10/2000.”
Counsel relied on the numerous cases of Fatoba vs. Ogundahunsi (2003) 134 NWLR Part 840 page 323 at 347; Araka vs. Egbue (2003) 17 NWLR Part 655 page 19 at 26 – 27, paragraphs H-A; Umogbai vs. Aiyemhoba (2002) 8 NWLR Part 770 page 687 at 694 paragraphs B-F; Etim vs. Ekpo (1993) 3 SC 12; Lawson vs. Afani Continental Ltd (2002) FWLR Part 109 page 1736 at 1752; Nigeria Arab Bank Ltd vs. Eng. NIG. Ltd (1995) A SCNJ 147; Ali vs. Obande (1999) 1 WNLR Part 620 page 563 at 574; Abdulhamid vs. Milad (2004) 5 NWLR Part 866 page 232 at 256 paragraphs F-G; Fasade vs. Babalola (2003) 17 NWLR Part 830 page 26 at 45-46 paragraphs D-C; Arake vs. Egbue (2003) 17 NWLR 848 page 1 at 18 paragraph D; Onobruchere vs. Esegine (1996) NWLR Part 19 page 799; Kamalu vs. Ojoh (2000) 11 NWLR Part 679 page 503 at 512 -513; Military Governor Kamalu vs. Ojoh (2000) 11 NWLR Part 679 page 503 at 512 -513 of Lagos State vs. Ujukwu (1986) 1 NWLR Part 18 page 621; Kale vs. Coker (1982) 12 SC 252; Ebba vs. Ogo (1984) SCNLR 372; Nigeria Nurses Association & ors vs. Attorney General of the Federation & others (1982) 11-12 SC -1; Shittu vs. Ligali (1941) 16 NLR 23; Onaga & others vs. Micho & Company (1963) 1 All NLR 324; Ogbodo vs. Ishokare (1967) NMLR 234; Agbeje vs. Aligun (1993) 1 NWLR Part 202 page 131; Hassan vs. Maiduguri Management Committee (1991) 8 NWLR Part 212 page 738; Highgrade Martime Services Ltd vs. First Bank of Nigeria Ltd (1999) 1 NWLR Part 167 page 290 at 310; Finnih vs. Imade (1992) 1 NWLR Part 219 page 55 at 542 – 544 paragraphs H-A; B. B. Apugo & Sons Ltd vs. OHMB (2005) 17 NWLR Part 954 page 305 at 340 – 341 paragraphs H-E; ANPP vs. RJASD (2005) 6 NWLR Part 920 PAGE 146 AT 175; Madukolu vs. Nkemdilim (1962) 2 SC NLR 341, Tukur vs. Govt of Taraba State (1997) 6 NWLR Part 310 page 549 and Macfoy vs. UAC LTD (1962) AC 152, herein adopt all the legal principles and submission of the Appellant Counsel as shown in the Appellants’ Brief of Argument.
Learned Counsel for the Respondent raised Preliminary objection on certain grounds of appeal which I have taken special notice of, and which is subsumed by issue No. 3 raised by the Appellant which questioned in its entirety the competency of the suit filed by the Respondent.
Counsel for the Respondent on the other hand submitted four issues for the determination of this Court thus:
“1. Whether having regard to the pleadings, and evidence, both oral and documentary led, the Respondent has proved title to the land in dispute to warrant him being declared as the owner of the subject matter.
2. Whether the admissions of Exhibits P2, P3, P5, P6, P7, P8 AND P10 negatively affected the final judgment appealed against.
3. Whether at all material time when this suit was instituted the 1st Appellant is not a proper defendant known to law having regards to Exhibits D2(a) and D2(b) respectively.
4. Whether the proceedings of the Trial Court from 19/10/2000 – 6/10/2008 the Respondent having filled an application on Notice re-listing the suit, substituting the previous defendants (DW1 and DW3) without objection by the Defendants/Applicants, the trial Court lacks jurisdiction.
Learned Counsel submitted the following cases Alhaji Silifatu Omojayo vs. Co-operative Supply Association (2010) vol. 5-7 Part II, M.J.S.C. 124 at 127; Akintola vs. Lasupo (1991) 3 NWLR Part 180 page 508; Okorie vs. Udom (1960) SCNLR Pg.326; Registered Trustees of Apostolic Church vs. Olowoleni (1990) 6 NWLR Part 158 page 514; Ayoola vs. Odofin (1984) 11 SC 120; Emo vs. Ani (2004) 17 NSCQR 36; Piaro vs. Tenalo (1976) 12 SC 31; Idundun vs. Okumagba (1976) 9 -10 SC 227; Alhaji Saibu Gbadamasi vs. Abiodun Tolani (2011) 5 NWLR Part 1240 page 352 at 337 particularly at page 369 paragraphs G-H; Raymond Iheonu & another vs. Simon Obiukwu & 4 others (1994) 1 NWLR Part 322 page 594; Daily Times vs. F.R.A. Williams (1986) 4 NWLR part 36 page 526; A.C.B. Plc vs. Nwodika (1996) 4 NWLR 443 page 470; Pavex Int. Com (NIG). Ltd vs. INT. Bank for West Africa & 1 other (2000) 4 SCNJ 200 or Vol. 2 Part 1 SCNQR page 224 at 226 Ratio 3 page 248; Mohammed Oladapo Ojengbede vs. M. O. ESAN (2001) 12 SCNJ 401; Obineche & ors vs. Akusobi & ors (2010) 8 SCM 126; Ogbimi vs. Niger Const. Ltd (2005) Vol 26 Part 1, NSCOR page 407; Anatogun vs. Iweka II (1985) 8 NWLR Part 415 page 547; Attorney vs. lweka II (1995) 8 NWLR Part 415 page 547; Attorney Gen. Oyo State vs. Fairlakes Hotels (1989) 5 NWLR Part 121 page 255 at 282; Densy Industries (Nig) Ltd vs. Uzokwe (1999) 2 NWLR Part 591 page 392 at 405 paragraphs D-E; Onochie vs. Ike (1989) 4 NWLR Part 116 page 458; Anyaegbo vs. R. T. Briscoe (Nig) Ltd (1989) 3 NWLR Part 59 page 84 at 107 – 108 paragraphs G-B; Onalo vs. Aguda (1997) 7 SCNJ page 392 at 394; Raphel Ejezie & other vs. Christopher Anuwu (2008) Vol. 34 Part II page 996 at 1004; Mkpat Enin Local Government vs. Pikk Nig Ltd (2004) ALL FWLR Part 236 page 287 at 294 ratio 12; Onyia Nwagwu Ngwu other vs. Ani Ozougwu & other (1999) SCNJ page 1; Oke vs. Nwagbouinya (2001) 2 SCNJ Page 157 at 160; Jikantoro vs. Dantoro (2004) Vol 18 Part II NSCQR Page 645 at 652; Akande vs. Ajani (1989) 3 NWLR Part 111 page 511 at 545; Nneji & ors vs. Chukwu & ors (1988) 6 SCNJ 132 at 138 – 140; Saude vs. Abdulhamid (1989) 4 NWLR Part 116 page 387; Duke vs. Akpabiyo Local Government (2006) ALL FWLR Part 294 page 563 ratio 5 & 6; Shell vs. Edamkue, Koro & Nwikunee page 603; Ipinlaiye vs. Olukotun (1996) SCNJ page 74 at 77; Ilodiba vs. N.C.C. (1997) 7 SCNJ 77 at 79; DR. vs. J. N. Udom vs. E. Micheletti (1997) 7 SCNJ page 447; Ndukwe vs. Domsey Int. Sales Rep. (1991) 7 NWLR Part 206 page 680 at 682 at 689 paragraphs D-F; and Chief Okumagba Eboh & ors vs. Oghotemi Akpotu (1968) 1 ALL NLR Page 220.
I have carefully considered five issues raised by the Appellants in this appeal but before dwelling on them, I think its pertinent in the light of an obvious occurable defect in the processes filed at the Lower Court that generated this appeal. I highlighted in the opening paragraph of this judgment that the original process in the suit before the Lower Court and the Amended Statement of Claim filed by the Plaintiff i.e., the Respondent was signed as “Pp. Abdulhamid Kassim & Co. The Amended Statement of Claim dated 2001 was signed by Abdulhamid Kassim & Co. These documents were authored by a law firm not being a legal practitioner called to the Nigerian Bar in accordance with the Legal Practitioners Act. This fundamental anomaly was observed at the time of hearing of this appeal and none of the counsel advocated his mind to it. Unfortunately, it was discovered at the time of writing this judgment and I cannot pretend that all is well, when the initiating process at the Court before giving rise to this appeal, is fundamentally and incurably defective.
The law is settled that no Court possesses the power to raise an issue and motion and proceeds to determine without first inviting Learned Counsel for the parties to address it, on it, otherwise it would amount to denial of fair hearing.

It has been held in innumerable cases both by the apex Court and this Court that a Law Firm is not a legal person, and therefore, cannot sign and issue any legal process under the Legal Practitioners Act. It is a total and flagrant breach of Sections 5 2(c), 4(k) and 7 of the Legal Practitioners’ Act. It is well established that when a law is breached, any action carried out as a result of the breach or contrary to the dictates of the law is illegal, null and void.
It follows that any Court process not signed or authored by the person authorized to so author, is fundamentally defective and cannot be corrected. The processes filed by the Plaintiff that the Respondent herein, were self evident that nothing can be done to validate them. They are ex facie invalid. It is in situations such as this touching on the jurisdictional competence of the Court to entertain the suit in the first place that the Supreme Court recognized that a Court can suo motu raise the issue of jurisdiction and deliberate on it without first calling on the Counsel or the parties to address on that. The process filed by the Respondent, i.e., the originating process and the Amended Statement of Claim, were not signed by any Legal Practitioner known to law as envisaged by the Legal Practitioner Act, therefore they are all incurably defective and utterly incompetent, meaning that the proceeding initiated by the Respondent via the invalid originating process and hearing conducted thereon have been rendered null and void and ought to be struck out.
Be that as it may, I will still proceed to consider the issues raised by the parties in this appeal. Issues 1, 2, 4 and 5 question the quality of the evidence adduced by the Plaintiff and the weight attached to it, by the Lower Court, while issue No 3 challenges the jurisdiction of the Lower Court to hear the suit.
It is obvious in the parties before the Court that the Respondent, Mohammed Ibrahim was the Plaintiff at the Lower Court. The Plaintiffs witnesses were Audu Jama’are, P.W., Ali Adamu P.W.2, Muhammed Babayo P.W.3 and Sejunayu Muhammed Ya’u P.W.4. The said Mohammed Ibrahim did not testify at the hearing.
PW1 said his senior brother Musa Jama’are built it. He mentioned the names of his brother’s children he knew as Mijinyowa, Alhaji Audu, Mihtari Babayo, Amone, InoA’i. He said that Muhammed Ibrahim is the son of Musa Jama’are’s junior brother.
P.W.2 said he knew some of Musa Jama’are’s sons. He knew Muhammadu Ibrahim as one of Musa Juma’are’s sons.
P.W.3, one of the sons of Musa Jama’are said apart from the plot given to his father and on which he had built a house, he, too, P.W.3 Muhammad Babayo, was given a plot, that his own was also developed and his father’s brother occupied it. It was when he tried to renovate the iron shed from the roof of the house that he was told by the Ward – Head and one Alhassan that the land belonged one Musa Dansanda. P.W.3 claimed that the house in dispute was his own allocation. He was 15 years old when the Government compensated him with the plot. He told the Court that it was Safinayo who instituted the action at the Lower Court. He is the eldest son of Musa Jama’are, and by his position he knew all his father acquired. As for the house that belonged to him, he told his mother that he had left that house to Musa Dansanda, but his brothers instituted action in respect of that house.
P.W.4 – He named some of the sons of Musa Jama’are as Muhammad and Ibrahim.
P.W.4 said that the action was instituted by the two sons of Musa Jama’are namely Abdulhamid and Mohammed. He was shown the Statement of Claim and he admitted that the name of Abdulhamid was not on title. He said that Musa Jama’are’s children were of age, about 37-38 years. Two of the grown ones are living in Kano. P.W.4 was a step son to Musa Jama’are. He said that the allocations were made in the names of two children of Muhammad and Ibrahim. He said the names Babayo which is Muhammad while Ibrahim is Mijinyowa. When Exhibit 4 was shown to him particularly page 4 and second to the last paragraph where the Muhammad said that the House No. 2, the subject matter of the case does not belong to their father, and he admitted it is correct. He also acknowledged that Mohammed’s name is the first name in the list of the Plaintiffs.
The law is that he who asserts must prove and that will be carried out by production of cogent and credible evidence. P.W.4 identified the Mohammed who instituted this action as Muhammad Babayo. It was the said Muhammad, the eldest son of Musa Jama’are, who testified as P.W.3. Muhammad Babayo claimed that the land in dispute was allocated to him by the Government of Kano State as a compensation when he was 15 years.
He said he was confronted by Musa Dansanda as the true owner of the property and, following which, he surrendered or relinquished his title in the land to Musa Dansanda. He said he left that house to Musa Dansanda but his brothers, Safinayu, P.W.4 instituted actions in respect of that house. It is clear in P.W.3’s evidence that he personally did not institute any action before the Lower Court and he was not claiming for anything.
There is a big hole in the evidence adduced by the Plaintiff as to who is the proper owner of the house. P.W.3, who asserted the house was given to him as a compensation by the Government equally said he had surrendered and ceded the land to Musa Dansanda. He is no longer contesting his title over the land, and he is the eldest son of Musa Jama’are.
P.W.3 completely debunked the assertions that the house belonged to his Late father, Musa Jama’are. He said the plot was given to him and he built on it and when he was confronted by Musa Dansanda, he left the house for Musa Dansanda. When the man in whose name the action was allegedly instituted said in his evidence at the hearing of this suit that the house was not his, and, that he had left the house since, for the said Musa Dansanda after being confronted by him, what sort of proof is one waiting for to be convinced that the case for the Plaintiff was thrashed and there was no proof adduced before the Lower Court in support of the phantom Plaintiff’s claims. P.W.4, Safinayu seems a busy body, and very litigious. How the trial Court arrived at its conclusion in the light of the Plaintiff’s, denial of instituting the action, that his brother, Safinayu instituted the action and that he had left the house for Musa Dansanda is completely bizarre and in replicable. It may well be that the house might have been given to the late Musa Jama’are as compensation by the Government of Kano State, but unfortunately not much diligence and efforts were devoted so as to avoid creating the impression of not having sufficient evidence. As rightly pointed out by the Respondent’s Counsel, Exhibits D3, P4, P5, P6, P7, P8 and P10 were all uncertified public documents. They ought to have been certified before tendering. Even if they were not objected to at the time of their admissibility at the Lower Court, that can never transform such invalid documents to valid ones to be assessed and relied upon by the Court. By the requirement of the Evidence Act, they, being public documents ought to have been certified. Failure to certify them would necessitate their being expunged as wrongly admitted evidence. They were inadmissible in law being uncertified photocopies of public documents. On this premise, they are hereby expunged by this Court.
It is glaring that no credible evidence was adduced at the Lower Court in proof of the Respondent’s case, the supposed Respondent, who asserted in his evidence that he had left the house, the subject matter of the suit for Musa Dansanda, and that his father owned only one house. The salient question is, “Who then was the Plaintiff where the supposed Plaintiff said he had surrendered his title in the subject matter of the suit to Musa Dansanda? It seems therefore, there was no proper Plaintiff before the Lower Court, that the suit merely instituted by a meddlesome interloper who has no visible interest in the subject matter of the suit, therefore issues 1, 2, 3, 4 and 5 are hereby resolved against the supposed Respondent.
Issue No. 3 attacks the jurisdiction of the Court to entertain the suit but it was somewhat grounded on the fact that the 1st Appellant is not a juristic person. It should be recalled that there were two Defendants in the suit, the fact that one of the Defendants is not a juristic person does not render the suit invalid. It would only warrant the striking out of the name of the non-juristic person and the case will continue.
However, the averments of the parties proved that the 2nd Appellant bought the house in the life time of Musa Jama’are and he sold the same to the 1st Appellant, so, really, the 2nd Appellant had parted with his title in the said property which resides in the 1st Appellant. The proper defendant to have been sued seems the 1st Appellant but, since it was not a juristic person, and as revealed by the evidence of D.W.3, it ought not to have been sued since it did not have the legal capacity to sue or be sued. Accordingly, the 1st Appellant is hereby struck off the suit. In any case, there was no iota of proof of the Plaintiff’s Claim before the Court, the Plaintiff was even at large as no individual was identified as Muhammad Ibrahim.
P.W.4, who apparently engineered the institution of the action was at difficulty in establishing that there was one son of Late Musa Jama’are known as Muhammad Ibrahim particularly when shown Exhibits P4 and P4(i). He said in the Hausa version of Exhibit P4 (b) Babayo is Muhammad while Mijinyowa is Ibrahim. He said that Muhammed and Ibrahim were the names of late Musa Jama’are’s two sons. What it means is that there was no son of the late Musa Jama’are known as Muhammad Ibrahim, so how was the name of the phantom Plaintiff Muhammad Ibrahim contrived and was made available to the lower Court, and, no one person was identified as the Plaintiff or the said Muhammad Ibrahim. If there was no proper Plaintiff before the Court, the suit is bound to be struck out. This suit is riddled with many holes, firstly the initiating process is incurably defective having been signed by and on behalf of a Law Firm, Abdullhamid Kassim and Co.
It is an illegal process and cannot be allowed to stand. In this regard and based on the legal decisions of the Supreme Court in Omokuwajo vs. FRN (supra) that issue of jurisdiction can be raised suo motu by a Court and decided by it without first inviting respective Counsel for the parties to address on it. I hereby strike out Suit No.K/125/2000 instituted by the Respondent for being incompetent. In the event that I were wrong in the first order, the appeal is hereby found to be meritorious and the same is hereby allowed. There was no one soul described as Muhammad Ibrahim who appeared at the Lower Court as the Plaintiff and testified showing how he acquired the land. Accordingly, the judgment of the Lower Court delivered on 6/10/08 is hereby set aside. The 1st Appellant is not a registered body while the 2nd Appellant, according to him, had already parted with his title in the said land, so he had nothing more to protect thereon, there were no known parties in law before the Lower Court. On this premise too, this action is hereby struck out. I make no order as to costs.

ABDU ABOKI, J.C.A.: I agree with the reasoning and conclusions of my learned brother T. N. ORJI-ABADUA, JCA that this appeal should be struck out, I too make no order as to costs.

ITA G. MBABA, J.C.A.: I agree with the reasoning and conclusions of her Lordship Orji-Abadua JCA. I abide by the consequential orders in the lead judgment.

Appearances

A. T. Abubakar, Esq. For Appellant

AND

Abdulhamid Kassim Esq. For Respondent