DOTTIYA & ORS v. WANDE & ANOR
(2022)LCN/16383(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, June 30, 2022
CA/S/143/2020
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Between
1. ALHAJI DOTTIYA 2. ALU MAI SANGO 3. MOHD HAMMA 4. GARDAYE UMARU 5. MALLAM HAMMA 6. MALAM MAU 7. MOHD SANI 8. DANDARE ZIZA APPELANT(S)
And
1. HAUWA’U WANDE 2. ABDULLAHI DAN FATIMA RESPONDENT(S)
RATIO:
POSITION OF LAW ON HOW TO AMMEND ANY DEFECT IN RECORD OF APPPEAL
I am well guided by the provisions of the Court of Appeal Act, 2004, on the general powers of the Court of Appeal. Section 15 of the Act, provides thus:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been institute in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.” SAIDU TANKO HUSSAINI, J.C.A.
POSITION OF LAW ON ESTOPEL PER RES JUDICATA TO OPERATE
For estopel per res judicata to operate, the parties and the issues and the subject matter must be the same in the two cases being considered i.e. the previous case and the subsequent case as held in Ranking Udo & Ors vs. Mbian Obot (1989) LPELR–3297 (SC) when the doctrine was invoked to warrant the Court, seized with the case, to decline jurisdiction over the new case and have the case, struck out for want for want of jurisdiction. It is wrong for the Court below to dismiss the case before it as it did on account of want of jurisdiction. See Attorney General Bauchi State vs. Attorney General Federation (2018) 17 NWLR (pt. 1648) 299 (SC). SAIDU TANKO HUSSAINI, J.C.A.
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered at the High Court of Justice of Kebbi State on the 10th June, 2020 in Suit No. KB/HC/M.376/2019 by which the Court dismissed the application before it for want of Jurisdiction. In dismissing the application, the Court below held as follows:
“It is clear from the Exhibit A1 that the judgment seeking for Extension of time within which the Applicants can appeal was delivered on the 24th of August, 2015.
The Applicants appealed against decision before the Kebbi State Sharia Court of Appeal Birnin Kebbi in Appeal No. SCA/KBS/BK/123/2015 and it was dismissed as per Exhibit B1 for lack of jurisdiction to hear and determined the matter and advised the party that aggrieved party can appeal.
It is my humble view that High Court of a State have co-ordinate jurisdiction therefore this Court has no jurisdiction to adjudicate on this matter. The Applicants should appeal to the appropriate Court that is Court of Appeal Sokoto Division, if they so wish or desire.
It is pertinent to say that this Court lacks jurisdiction to hear and determine this application.”
Dissatisfied with the ruling of the Court, the appellants, vide the Notice of the Appeal filed on the 20th July, 2020 has appealed to this Court on two (2) grounds, namely: –
1. The decision is against the weight of evidence
2. The Learned Judges of the Court below erred in law and thereby misdirected itself reaches his decision to dismissed (Sic) the Application by applying the principle of res-judicata on the ground that similar application was filed before the Sharia Court of Appeal Birnin Kebbi and same was struck out.
PARTICULARS
(a) Whereas the Appellant’s Application before the Sharia Court of Appeal Birnin Kebbi was struck out based on the lack of jurisdiction
(b) Whereas the Appellant’s Application before the Sharia Court of Appeal Birnin Kebbi was never tried on merit and dismissed.
(c) Whereas order of striking out can never be a bar for subsequent action to be filed on the same subject matter before a proper Court or tribunal.
Briefs of argument were filed and exchanged between Counsel on both sides and adopted by them at the hearing of this appeal on the 4th April, 2022.
In the brief filed on 3rd February, 2020 and deemed filed on 14th February, 2022, the only issue or lone issue submitted to this Court for determination is: Whether or not the lower Court was right in dismissing the Appellant’s application for lack of jurisdiction on the sole ground that same application was stuck out by the Sharia Court of Appeal Birnin Kebbi (Distilled from grounds 1 & 2 of the Notice of Appeal)
In arguing this sole issue, learned appellant’s counsel in his brief of argument, referred us to the claim before the Upper Sharia Court, and contended that the suit instituted by them at the Upper Sharia Court has, as its subject matter, the confirmation of the sale transaction between the appellants and the respondents in relation to land which the former had purchased from the respondents but which the Upper Sharia Court was constrained to dismiss vide the judgment delivered on the 24th August, 2015, in suit No. CV/F1/NO/25/2015.
Learned appellant’s counsel argue that the application placed before the High Court of Kebbi State vide the Motion on Notice filed on 19th December, 2019 for extension of time to appeal was based on that decision given at the Upper Sharia Court III, Birnin Kebbi on the 24th August, 2015 vide case No. CV/FI/ID/25/2015.
The appellant according to learned counsel, had earlier withdrawn a similar application placed before the Sharia Court of appeal for extension of time to appeal the judgment of the Upper Sharia Court but that the said application at the Sharia Court of Appeal was withdrawn by the appellant hence same was struck out at that Court. He argued that nothing stops the appellants from presenting another or a similar application at the High Court, being the Court vested with jurisdiction to hear the applications given the claim of the appellants at the Upper Sharia Court. He relied on the decisions: in RE: Apeh (2017) 11 NWLR (PT. 1576) 256 (SC) IGBINEDION VS WATSON & SONS (2018) 8 NWLR (pt. 1621) 374 (CA), AND OKOYE VS. NIGERIAN CONSTRUCTION AND FURNITURE CO. Ltd (1991) 6 NWLR (Pt. 199) 501 at 534.
Given the holding in the above cited case, learned appellant’s counsel has submitted that the High Court of Kebbi State was wrong in its ruling when it dismissed the application before it on the sole ground that the Sharia Court of appeal had heard and decided the matter whereas the Sharia Court of appeal only struck out the application. Given this position, learned counsel maintained that the High Court has jurisdiction to hear the application before it hence the High Court erroneously relied on the principle of res-judicata to decline jurisdiction. It is argued in any case that where a Court lacks jurisdiction over a matter, the appropriate order the Count can make is to strike out the case and not dismiss same. He relied on Attorney General Bauchi State Vs. Attorney General Federation (2018) 12 NWLR (Pt. 1648) 299 (CS).
Learned appellant’s counsel, in reference to the application for extension of time at the High Court, argued, that the appellant’s had done all that was required of them for the grant of the reliefs sought. He alluded to the affidavit in support of the application at that Court which he said has given sufficient reasons to explain the delay of the appellants. He said that the grounds of appeal were arguable grounds. He argued that rather than the trial Court to exercise its discretion in favour of granting the application, it dismissed same without looking at the merits of the application. The Court rather persisted in its error when it relied on exhibit B–B1 attached to the Counter Affidavit of the Respondents to dismiss Appellants’ application. He argued that the case covered by exhibit B–B1, was an entirely different case which the Respondents instituted against the appellants and that case, it is argued, cannot constitute res judicata to the case instituted by the Appellants at the Upper Sharia Court. It is further argued that the decision of the lower Court i.e High Court of Kebbi State was a case of misapplication of the law and the same has occasioned a miscarriage of justice. We were urged to allow this appeal, set aside the ruling of the High Court and make any order as appropriate.
The response of the Respondents are contained in the Respondents’ brief of argument filed in the 4th March, 2022 by which the Respondents’ adopted the lone issue identified in the Appellants’ brief o argument.
In arguing the lone issue as already identified, learned Respondent’s counsel has submitted that the application presented at the High Court by the Appellants was incompetent in that the Appellants have sought to re-open an appeal that has been heard and determined at the Kebbi State Sharia Court of Appeal vide Appeal No. SCA/KBS/BK 123/2015. We were referred to Exhibits B–B1 attached to the Counter–Affidavit of the Respondents at page 88 – 90 of the record of appeal as that appeal which the Sharia Court of Appeal has heard and determined. It is argued that after a matter in an appeal has been adjudicated upon, by a Court of competent jurisdiction, the same matter cannot be re-litigated upon by another Court of coordinate jurisdiction, in reference the Supreme Court decision in Customary Court of Appeal Edo State Vs Chief (Engr.) C.A Aguele & Ors. (2017) LPELR – 44632(SC)
I have considered the arguments of counsel on both sides and having done so it appears to me that the High Court below of Kebbi State and the learned counsel for the Respondents have both missed the point for their failure to appreciate the decision of the Upper Sharia Court III Birnin Kebbi upon which the order for extension of time is sought to appeal that decision by the Appellants. The Appellant’s as plaintiffs at the Upper Sharia Court presented a claim at that Court and requested the Court to confirm the sale transaction between them (appellants) and the Respondents in respect of a farmland sold to them. The subject matter of the suit at the Upper Sharia III which the Appellants instituted at that Court is thus, one of sale of farmland as distinguished from a claim of distribution of inheritable estate, which is the case decided at the Sharia Court of Appeal in Exhibit B–B1 at pages 88– 90 of the record. The case covered by Exhibit. B–B1 was commenced at the Sharia Court, Birnin Kebbi vide Suite No. CV/FI/65/2010. The case was filed by the 2nd Respondent in a claim of inheritance. It is thus clear that the subject matter in the two cases referred above are distinct as to the subject matter brought hence the appeal decided at the Sharia Court of Appeal vide Exhibit B-B1 cannot constitute estopel per res judicata to the case instituted by the Appellants at the Upper Area Court vide suit No. CV/F1/25/2015 as wrongly held by the High Court below.
For estopel per res judicata to operate, the parties and the issues and the subject matter must be the same in the two cases being considered i.e. the previous case and the subsequent case as held in Ranking Udo & Ors vs. Mbian Obot (1989) LPELR–3297 (SC) when the doctrine was invoked to warrant the Court, seized with the case, to decline jurisdiction over the new case and have the case, struck out for want for want of jurisdiction. It is wrong for the Court below to dismiss the case before it as it did on account of want of jurisdiction. See Attorney General Bauchi State vs. Attorney General Federation (2018) 17 NWLR (pt. 1648) 299 (SC).
It is not within the province of the High Court below to address the merits of an appeal case at an interlocutory stage and proceed to dismiss that application for the reason that the case had already been adjudicated upon by a Court of coordinate jurisdiction. That will amount to jumping the gun. Wise counsel should dictate that the application seeking for extension of time to appeal should first be taken and when the appeal is properly before the Court, it is then the question of the competence of that appeal case can be raised and addressed by the Court. It certainly amounts to a denial of fair hearing for the Court below to refuse to consider the application brought before it for extension of time to appeal the judgment of the Upper Sharia Court III Birnin Kebbi delivered on the 24th August, 2015 in suit No. CV/F1/2015.
This application, the Motion on Notice, together with the supporting affidavit are reflected at pages 1-79 of the record of appeal. In opposition to that application, the 2nd Respondent filed his Counter-Affidavit to which is attached as Exhibits A, A1, B, B1 and a written address. See pages 81-101 of the record. The applicant filed a further and better affidavit and a reply on point of law to the Counter Affidavit and a Written Address of the 2nd Respondent. See pages 102-109 of the record of appeal.
It is on record that the said written address was argued, see pages 113-115 of the record of Appeal and ruling was reserved. The High Court below thus, is duty bound to consider and address those issues raised by that application and make appropriate findings as to whether or not the appellants are entitled to the reliefs sought by them in that application but the High Court below shyed away from that responsibility but consider it, worthy enough to delve into issues of lack of jurisdiction raised before it without carrying out proper enquiry or investigation on the allegation that the Court below has no jurisdiction over the application and thus “dismissed” the application.
I have already addressed the issue of the propriety of the Court below dismissing that application on account of want of jurisdiction and I have also said that the Court below was wrong in doing so. What I think I am now confronted with, in a situation such as this, where the Court below failed to do that which it ought to have done, but failed, whether the Court of Appeal should step into the shoes of the High Court below and address those questions raised and concerning the application for extension of time to appeal the decision of the Upper Sharia Court III Birnin Kebbi, given the facts and the affidavit evidence presented by parties on both sides, that are before us in the printed record of Appeal?
I am well guided by the provisions of the Court of Appeal Act, 2004, on the general powers of the Court of Appeal. Section 15 of the Act, provides thus:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been institute in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”
Given this provision I think this Court has two options open to it, either,
1. To direct for the rehearing of the application in this Court of the Motion on Notice filed by the appellants at the Court below on 19th December, 2019, OR
2. To remit the said Motion on Notice to the High Court below for rehearing before another Judge of the Kebbi State High Court.
I am more inclined to go by the 2nd option above hence the appeal is allowed on the lone issue canvassed before us and I make the order as follows: –
The Motion on Notice seeking for an order extending and/or enlarging time within which the Appellants can appeal against the judgment of the Upper Sharia Court III Birnin Kebbi in suit No. CV/F1/NO/25/2015 filed on the 19th December, 2019 is hereby remitted to the Chief Judge of Kebbi State High Court for reassignment to another Judge of the High Court other than Hon. Justice Nusirat I. Umar who shall hear the application on the merit.
Ordered accordingly.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of a preview of the leading judgment just delivered by my learned brother S. T. Hussaini, JCA. For all the reasons ably set out by my learned brother, I would also allow this appeal. I abide by all the consequential orders in the leading judgment.
MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother Sa’idu Tanko Hussaini JCA. I agree with the reasoning and conclusion that this appeal succeeds and same is allowed. The application is remitted back to the Chief Judge of Kebbi State for reassignment to another Judge of the High Court for hearing other than Hon. Nusirat I. Umar J. I abide by all the consequential orders in the lead judgment.
Appearances:
A. Y. Abubakar, Esq, with him, W. G. Wadata, Esq, Faruk Mada, Esq, Sa’ad Aliyu, Esq, M. B. Nggada, Esq, A. Abdulrahaman, Esq, N. H. Belko, Esq, and Jasper Egede, Esq, For Appellant(s)
Nura Bello, Esq, with him, Ahmad Sidi Bello, Esq, For Respondent(s)