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GARBA & ORS v. GARBA & ORS (2022)

GARBA & ORS v. GARBA & ORS

(2022)LCN/16716(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, January 31, 2022

CA/K/418/2016

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

1. ALH. ADAMU GARBA 2. ALHAJI MUHAMMADU DAMBURAM GARBA 3. IBRAHIM GARBA 4. KABIRU GARBA 5. SAGIR GARBA 6. IBRAHIM SOLI GARBA (For Themselves And On Behalf Of The Heirs Of Late Alhaji Garba Dankundi) APPELANT(S)

And

1. ALH. AHMAD GARBA 2. ALHAJI TEE MUHAMMAD DAGURO 3. MINISTRY OF LAND AND PHYSICAL PLANNING, JIGAWA STATE RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE QUESTION OF JURISDICTION IS THAT WHICH THE COURT CAN TAKE SUO MOTU

The Supreme Court in KATTO Vs. CENTRAL BANK OF NIGERIA (1991) LPELR – 1678 (SC) emphasized that, the question of jurisdiction is that which the Court can take suo motu and at any stage of the proceedings. Jurisdiction is fundamental. It is the fiat, the stamp of authority to adjudicate. If it is not there, the Court labours in vain and all it does amount to nothing, a nullity. However, in taking the question of jurisdiction suo motu prudence and the principle of fair hearing demands that counsel be given opportunity to be heard on the issue before a decision is arrived at.

This Court in SANNI & ORS Vs. HAMZAT & ANR (2012 LPELR–8010(CA) had reason to pronounce on failure of the claimants to seek leave of the trial Court before instituting the suit in representative capacity. It held inter alia;-
“The suit was thus filed in a representative capacity. No leave of the Court below was sought and had by the suit in representative capacity … Although leave is necessary at the trial Court to sue in a representative capacity, an Appellate Court will not upset the judgment merely because such leave was not obtained in the trial Court … that failure to obtain the leave is not fatal as to vitiate the proceedings. See also PLATEAU INVESTMENT & PROPERTY DEVELOPMENT CO. LTD Vs. PHIL EBHOTA & ORS (2001) 4 NWLR (Pt. 704) 495 AT 534 and MOZIE & ORS Vs. MBAMALU & ORS ​(2005) 7 SCNJ 411 AT 421–423.”
PER MUSALE, J.C.A

THE POSITION OF LAW WHERE A PERSON DIES INTESTATE LEAVING MANY HEIRS BEHIND

The fulcrum of the case of the appellants is that the property in dispute belonged to their late father. The law is settled that where a person dies intestate leaving many heirs behind, his property will devolve on the heirs and will become family property of all the members of the family – Anusiem Vs Anusiem (1993) 2 NWLR (Pt 276) 485, Ironbar Vs Federal Mortgage Finance (2009) 15 NWLR (Pt 1165) 506, Umeadi Vs Chibunze (2020) LPELR-49566(SC). In Mohammed Vs Klargester (Nig.) Ltd (2002) 14 NWLR (Pt 787) 335, Iguh, JSC at page 363 B-D held:
“In the first place, if, as pleaded in the said paragraphs 3 and 4 of the amended statement of claim, the plaintiff was the sole beneficial owner of the landed property in issue, no iota of evidence was led by it in support of this averment. On the contrary, the evidence led by the plaintiff, as already pointed out, is that the property in issue originally belonged to one Alhaji Mamman Tela, the father of the defendant and that on the death intestate of the said Alhaji Mamman Tela in 1984, the property devolved on his numerous heirs who numbered about 18, including the defendant. The said property thus became family property on the death of Alhaji Mamman Tela.”
PER ABIRU, J.C.A.

WHETHER OR NOT A FAMILY MEMBER CAN SUE TO PROTECT HIS INTERESTS IN A FAMILY PROPERTY WITHOUT THE CONSENT OF OTHER FAMILY MEMBERS

The law is settled by a long line of judicial authorities that any member of the family whose interest in a family property is threatened by the wrongful alienation or wrongful interference with the property can sue to protect his interest whether with or without the consent of the other members of the family, for if he does not act he may find himself being held to be standing by when his rights were being taken away – see for example the cases of Melifonwu Vs Egbuji(1982) 9 SC 145, Orogan Vs Soremekun (1986) 5 NWLR (Pt 44) 688, Olowosago Vs Adebanjo (1988) 4 NWLR (Pt 88) 275, Okpala Vs Ibeme (1989) 2 NWLR (Pt 102) 208, Oduneye Vs Efunuga (1990) 7 NWLR (Pt 164) 618, Babayeju Vs Ashamu (1998) 9 NWLR (Pt 567) 546, Ejigini Vs Ezenwa (2003) 16 NWLR (Pt 846) 420, Mozie Vs Mbamalu (2006) 15 NWLR (Pt 1003) 466, Unity Bank Plc Vs Bouari (2008) 7 NWLR (Pt 1086) 372, Ojukwu Vs Ojukwu (2008) 18 NWLR (Pt 1119) 439, Ironbar Vs Federal Mortgage Finance (2009) 15 NWLR (Pt 1165) 506, Taiwo Vs Adegboro (2011) 11 NWLR (Pt 1259) 562, Odimegwa Vs Ibezim (2019) 9 NWLR (Pt 1677) 244.
Also, a member of a family who becomes aware of a threat to family land from external sources is competent to bring an action to protect the interest of the family in respect of family property or of his interest in it. This is so even if he has no authority of the family to bring the action and even if some members of the family or even the head of the family is in concert with the defendant – Sogunle Vs Akerele (1967) NMLR 186, Animashawun Vs Osuma (1972) 7 NSCC 253, Ugwu Vs Agbo (1977) 10 SC 27, Layinka Vs Gegele (1993) 3 NWLR (Pt 283) 518, G. Cappa Ltd Vs Shokunbi (1994) 4 NWLR (Pt 337) 215, Dadi Vs Garba (1995) 8 NWLR (Pt 411) 12, Olagbegi Vs Ogunoye II (1996) 5 NWLR (Pt 448) 332, Anuforo Vs Obilor (1997) 11 NWLR (Pt 530) 661, Afoezioha Vs Nwokoro (1999) 8 NWLR (Pt 615) 393, Effiom Vs Ironbar (2000) 3 NWLR (Pt 650) 545, Adeyori Vs Adeniran (2001) 10 NWLR (Pt 720) 151, Ezekude Vs Odogwu (2002) 18 NWLR (Pt 784) 366, Mozie Vs Mbamalu (2006) 15 NWLR (Pt 1003) 466, Unity Bank Plc Vs Bouari (2008) 7 NWLR (Pt 1086) 372, Sapo Vs Sunmonu (2010) 11 NWLR (Pt 1205) 374, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt 1230) 1, Taiwo Vs Adegboro (2011) 11 NWLR (Pt 1259) 562.  PER ABIRU, J.C.A.

WHETHER OR NOT EVERY MEMBER OF A FAMILY HAS A DUTY TO SUE ANYONE WHO TAMPERS WITH FAMILY PROPERTY

The Courts have held that every member of a family has a duty and right to sue anybody who tampers with the family property either in his individual name or in a representative capacity to protect his individual interest or the collective interest of the family – Aguocha Vs Ubiji (1975) 5 ESCLR 221, Disu Vs Ajilowura (2001) 4 NWLR (Pt 702) 70, Adeyori Vs Adeniran (2001) 10 NWLR (Pt 720) 151, Ezekude Vs Odogwu (2002) 8 NWLR (Pt 784) 366 and Olasa Vs Ezimuo (2003) 17 NWLR (Pt 848) 129. In Umeadi Vs Chibunze (2020) LPELR-49566(SC), the Supreme Court reiterated the position of the law thus:
“… every member of the family has or enjoys a locus-standi to institute an action in respect of any wrong or illegal dealings with the property. And the right of action to protect family property avails the individual member even if he has not, the authority of the family to bring the action. In other words, any member of family no matter how insignificant he may be considered can bring an action to protect a family land.”
The appellants thus, without more, possessed the legal capacity to commence the action in the way and manner that they did. 
PER ABIRU, J.C.A.

WHETHER OR NOT A COURT CAN RECALL A JUDGMENT OR DECISION WHERE THE DECISION IN THE JUDGMENT OR ORDER MADE IS RIGHT OR WRONG

The law is settled that where a Court enters judgment or makes an order, whether the decision in the judgment or order is right or wrong or defective ex facie, the same Court cannot competently recall the judgment or order and set it aside – Chukwuka Vs Ezulike (1986) 5 NWLR (Pt 45) 892, Babayagi Vs Bida (1998) 2 NWLR (Pt 538) 367, Omoyinmi Vs Ogunsiji (2001) 7 NWLR (Pt 711) 149, Independent National Electoral Commission Vs Nnaji (2004) 16 NWLR (Pt 900) 473, Kraus Thompson Organization Vs National Institute of Policy and Strategic Studies ​(2004) 17 NWLR (Pt 910) 44, Federal Radio Corporation of Nigeria Vs Iwuoha (2013) 1 NWLR (Pt 1335) 207, Famu Vs Kassim (2013) 7 NWLR (Pt 1352) 166.
The only recognized instances, where the Court can do, are if it is shown that the decision reached in the judgment or order was made without jurisdiction or is a nullity due to absence of fair hearing, or was reached as a result of fraud, the decision can be set aside by the Court under its inherent jurisdiction – Okafor Vs Attorney General, Anambra State (1991) 6 NWLR (Pt 200) 659, Onwuka Vs Maduka (2002) 18 NWLR (Pt 799) 586, Witt & Busch Ltd Vs Dale Power Systems Plc (2007) 17 NWLR (Pt 1062) 1, Osakue Vs Federal College of Education, Asaba (2010) 10 NWLR (Pt 1201) 1, Ene Vs Asikpo (2010) 10 NWLR (Pt 1203) 477, First Bank of Nigeria Plc Vs TSA Industries Ltd (2010) 15 NWLR (Pt 1216) 247, Dingyadi Vs INEC (No 1) (2010) 18 NWLR (Pt 1224) 1, Ede Vs Mba (2011) 18 NWLR (Pt 1278) 236, Adeyemi-Bero Vs Lagos State Property Development Corporation (2013) 8 NWLR (Pt 1356) 238.  PER ABIRU, J.C.A.

USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the ruling of Hon. Justice A. Y. Suleiman of High Court of Justice sitting in Hadejia, Jigawa State dated 1st December, 2015. Before the lower Court, the appellants were granted leave to institute this suit for themselves and on behalf of the heirs of late Alh. Garba Dankundi who died intestate in July, 2013.

By a writ of summons dated 22nd October, 2014, the claimants/appellants claimed against the defendants as follows: –
1. A DECLARATION THAT ALL THAT FARMLAND lying and situated at KADUME VILLAGE along Hadejia-Kano Road, Jigawa State (otherwise known as GONAR TSAMIYA) or alternatively covered by Kano State Government Certificate of Occupancy No. LKN/CON/COM/82/184 belong to LATE ALHAJI GARBA DANKUNDI.
2. A DECLARATION that with the demise of LATE ALHAJI GARBA DANKUNDI in July, 2013, the said farmland forms part of his estate and should be distributed amongst the deceased’s heirs in accordance with Islamic rites;
3. AN ORDER SETTING aside sale of ALL THAT FARMLAND lying and situated at KADUME VILLAGE along Hadejia-Kano Road, Jigawa State (or alternatively covered by Kano State Government Certificate of Occupancy No. LKN/CON/COM/82/184) to the 2nd Defendant either by himself, agent, servants or privies or anybody else claiming through him or anybody else otherwise howsoever;
4. AN ORDER DIRECTING the 2nd Defendant to hand over the Kano State Government Certificate of Occupancy No. LKN/CON/COM/82/184in and over the said land to the CHIEF REGISTRAR of this Honourable (sic) for transmission to the Court handling or to handle the distribution of the Estate of Late ALHAJI GARBA DANKUNDI for the distribution of the Estate in accordance with the Islamic injunctions;
5. AN ORDER for vacant possession of the farmland to be delivered to the heirs forthwith.
6. N2,000,000.00 against the 1st defendant as General Damages.
7. AN INJUNCTION RESTRAINING the 3rd Defendant either by itself, servants, privies or whatsoever name called otherwise howsoever from effecting any change of title in favour of the 2nd Defendant or anyone else;
8. Costs.

The 1st and 2nd respondents filed a joint statement of defence and a counter-claim, whereof they claimed as follows:
1. A declaration that all that land situate at Kadume Village along Hadejia-Kano Road, Jigawa State covered by Kano State Certificate of Occupancy No. LKN/CON/COM/82/184 belongs to the 2nd defendant having already obtain same from the representative of Yahaya Danbattalle, the original grantee.
2. Declaration that the claimants have no basis for claiming the subject matter of this suit in the face of earlier and stronger claim from the counter–claimants.
3. An order of Perpetual Injunction restraining the claimants whether by themselves, servant, privies or whatsoever called from trespassing, disturbing or in any way interfering with 2nd Defendant quiet possession of the subject matter of this suit.
4. Cost of defending this suit.

On the 24th June, 2015, the 1st and 2nd defendants/respondents filed a Motion on Notice before the lower Court seeking;
“An order of this Honourable Court dismissing this suit in limine, with substantial cost.”

The grounds of the application are;
1. By reason of the length of the period of delay in bringing this suit, this case is statute barred.
2. By reason of the antecedent of this case, this suit as currently constituted is academic and hypothetical.
3. This suit is an abuse of Court process.

In a considered ruling, the learned trial judge on pages 85–104 ruled that;
“the claimants/respondents (Alh. Adamu Garba & 6 Ors) have no legal capacity to institute the action in Suit No. JDU/04/14 and the subject matter of the action (Gonar Tsamiya) had long been disposed of by the owners and currently beyond the reach of both the claimants/respondents and the defendants/applicants, the action not properly constituted in law and in accordingly hereby struck out”.

Dissatisfied with the ruling, the appellants appealed to this Court. The Notice of Appeal contained 7 grounds, each with particulars. The reliefs sought are:
1. AN ORDER SETTING aside the entire decision of Hadejia High Court of Justice of Jigawa State made on the 1st day of December, 2015;
2. AN ORDER TRANSFERRING this suit for hearing before another High Court of Justice in Jigawa State;
3. AN ORDER FOR ACCELERATED hearing of the suit;
4. The cost of this appeal.

​For the appellants, the learned counsel formulated 4 issues for the determination of the appeal;
1. Whether the learned trial Judge was right by failing to be guided by the appellants’ statement of claim before him as decided by the superior Courts on an application of this nature (Grounds 6 and 7);
2. Whether the learned trial Judge was right when he held that the Appellants have no legal capacity to institute the action at the lower Court (Grounds 2, 3 and 4);
3. Whether the learned trial Judge was right to raise the issue of probate letters suo motu without calling on the parties to address him on it (Ground 1); and
4. Whether the learned trial Judge having veered off completely, from the prayers contained in the 1st and 2nd Respondent’s Motion on Notice dated 22nd June, 2015 should have dismissed the motion (Ground 5).

For the respondents, 5 issues were distilled for the determination of the appeal;
1. Whether the learned trial Judge was right when he held that the suit is incompetent for being an abuse of Court process, in addition to being hypothetical and academic.
2. Whether the learned trial Judge was right when he held that the suit is incompetent for being hypothetical and academic.
3. Whether the learned trial Judge was right when he held that the appellants lacked the legal capacity to institute the action as constituted before him.
4. Whether the learned trial Judge was not in error when he ignored counsels’ submission on limitation of time and failed to make a pronouncement on same.
5. Whether having found as above, the learned trial Judge having found above in favour of the respondents, he shouldn’t have dismissed the suit.

This Court in MV NORDICA & ORS Vs. NPA (2015) LPELR–25944(CA) had reason to pronounce that;-
No law prohibits a respondent from formulating his issues for determination, but it is also settled that a respondent, who has not cross-appealed or filed a Respondents Notice, is not entitled to formulate any issue for determination outside the grounds of appeal, which contain the complaints against the decision. Any issue formulated by the respondent outside the grounds of appeal raised is incompetent, and is liable to be struck out. See also OJEGBE Vs. OMATSONE (1999) 6 NWLR (Pt.608) 591 (SC). For the above reason, issues 1, 2 and 5 formulated by the Respondents are struck out.

For the determination of this appeal, I will rely on the issues formulated by the appellants. The learned counsel to the appellants on issue 1, submitted that the motion before the lower Court was seeking;
“An order of this Honourable Court dismissing this suit in limine…..”

The grounds upon which the application was brought were;
(a) By reason of the length of the period of delay in bringing this suit, this case is statute barred.
(b) By reason of the antecedent of this case, this case as currently constituted is academic and hypothetical.
(c) This suit is an abuse of Court process.

​Counsel submitted that the appellant’s right to the subject matter arose after the demise of their father, Alhaji Garba Dankundi in July, 2013 and that this fact was not challenged by the 1st and 2nd respondents. He referred to paragraph 5 of the statement of claim for this. He continued that their father remained the owner of the subject matter up to the time of his demise in July, 2013 as mentioned in paragraphs 7, 11, 16 and 17 of their statement of claim, while the suit was instituted before the lower Court on 22nd October, 2014. That their paragraph 16 of the statement of claim was admitted by the respondents in paragraph 13 of their statement of defence. That, attention of the trial judge was drawn to the fact that parties have joined issues having exchanged pleadings.

Learned counsel went on to submit that the learned trial Judge wrongly arrived at the conclusion that the suit is statute barred having failed to be guided by the decisions of our superior Courts on period of limitation, EDWARD O. NIKA GBATSE Vs. MADAM MERCY SCATER & ORS (2016) ALL FWLR (Pt. 835) 250 AT 266 and DANTATA Vs. MOHAMMED (2002) FWLR (Pt. 21) 889 AT 923. Counsel emphasized that the Court below wrongly decided the application before it, because it failed to look at the pleadings before the Court as it ought to, but relied on affidavit in support of the motion before it without more. He referred to pages 99–100 of the record. He urged the Court to resolve this issue in favour of the appellants.

On issue No 2, legal capacity to sue, the learned counsel submitted that the lower Court held on page 102 thus;
“The absence of the appropriate probate letter as at present robs the Respondents of the Legal capacity to institute this action as representatives of the estate of their late father”

Counsel submitted that leave was sought and granted on 13th November, 2014 to the appellants to institute the suit in representative capacity, pages 105–108 of the record. That the statement of claim clearly stated that the claimants are all children of Late Alhaji Garba Dankundi who died intestate in July, 2013. That, appellants averred that “their father is the owner of all that plot of farmland lying and situate at KADUME VILLAGE”. That despite this, the 1st defendant proceeded to sell the said property in April, 2014 to the 2nd defendant notwithstanding the pendency of the suit for distribution of the estate of their late father. That the lower Court did not consider the averments in the pleadings of the appellants as no Court would grant letters of administration on a property that is in dispute. Counsel continued that they sued per the decision in OKWU Vs. UMEH (2016) ALL FWLR (Pt. 825) 232 AT 251.
“In a representative action, common interest or same interest is a necessary ingredient to maintain the action”

That the lower Court rightly granted leave to the appellants per the decision supra. However, that the lower Court later in its ruling overruled itself when it held: –
“In fact, I have to admit that this Court was misled into granting leave to the respondents to sue in a representative capacity”

Counsel relied on Galadima, JSC in INEC Vs. OGBADIBO LOCAL GOVERNMENT (2015) ALL FWLR (Pt. 812) 1586 AT 1604; –
“It denotes the plaintiff’s capacity to sue in a Court of law to enforce a legal right. Once the plaintiff has the right or vested interest to protect and enforce legally and this has been disclosed in the writ of summons and statement of claim …. the plaintiff would be adjoined to have shown sufficient interest which entitles him to sue on the subject matter chances of success of an action are not relevant consideration”

The learned jurist inter alia held that: –
“The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint before the Court and not on the issues he wishes to have adjudicated.”
In other words, the locus standi to sue does not depend on the success or merits of the claim ……. it is not necessary to consider whether or not there is a genuine case on the merits”, OKWU Vs. UMEH supra at 254.

That considering the decision supra, it was wrong for the lower Court to hold that: –
“In my humble conclusion since the claimants/respondents … have no legal capacity to institute the action… And the subject matter of the action (Gonar Tsamiya) has long been disposed of by the owners and currently beyond the reach of both the Claimants/Respondents and the Defendants /Appellants, the action not properly constituted in law and in accordingly hereby struck out” (Underline ours for emphasis).

Counsel relied on the decision of this Court in USMAN Vs. LAWAL (2010)18 WRN 105 to the effect that the appellants have sufficient interest in the subject matter of the suit that they were deprived of. He urged the Court to resolve the issue in favour of the appellants.

​The learned counsel to the appellants on Issue No 3 submitted that the issue of probate letters was raised suo motu by the lower Court and none was called upon to address the issue. That the learned Judge raised the issue suo motu and resolved it against the appellants.

The lower Court held inter alia;
“The absence of the appropriate probate letter as at present robs the Respondents of the Legal capacity to institute this action as representatives of the estate of their late father.”

The appellants were not given the opportunity to be heard on the issue. He referred to INEC Vs. OGBADIBO LOCAL GOVT (supra) Per Ngwuta, JSC; –
“When a Court raises an issue suo motu as was done in this case, the issue so raised cannot form the basis of any decision if counsel to the parties are not given the opportunity to address the Court on it”

Counsel concluded on the issue that the lower Court had “condemned” the appellants when it concluded that absence of letter of administration “robbed” the appellants of the legal capacity to institute the action.

​Finally, on Issue No 4, counsel to the appellants submitted that the lower Court ought to have struck out or dismissed the motion on Notice dated 22nd June, 2015.

That the pronouncement of the Court to wit;
“After a careful consideration of the grounds forming the basis of the defendants application I am reluctant to delve into issue of the action or suit being statute barred for reasons that would be obvious at a letter stage of this ruling” (underlining ours for emphasis)
amounted to abandoning the motion and the prayers. That there is a duty on the lower Court to make a pronouncement one way or the other on the motion. See FEDERAL AIRPORTS AUTHORITY OF NIGERIA Vs. WAMAL EXPRESS SERVICES (2011) 1 SCNJ 133 @ 144: –
“It is the duty of a Court to entertain and decide on the merit or otherwise of any application brought before it by any party notwithstanding the perceived strength or the weakness of such an application” (underlining ours for emphasis).

In conclusion, the learned counsel urged the Court to;
1. Set aside the decision of the lower Court dated 1st December, 2015;
2. Transfer the suit for hearing before another Judge;
3. Order accelerated hearing; and
4. Cost.

I have earlier struck out Issues 1, 2 and 5 distilled by the respondents.

​On Issue No 3, the learned Respondent’s counsel submitted that appellants sued as administrators of the estate of the deceased per Order 13 (13) (1) of the Jigawa State Civil Procedure Rules, 2008. That by Order 53 (1–3) of the Rules, they are mandated to have letters of administration of the estate. That the appellants misled the trial Court when they sought for leave to institute the suit in representative capacity, as the Court believed that they had validly obtained letters of administration. That when the lower Court discovered that the leave was fraudulently obtained, it has the power to set it aside on its own. That where a Court set aside an order made without jurisdiction or if same was fraudulently obtained, it would not be necessary to appeal against such, BELLO Vs. INEC & 2 ORS (2010) 8 NWLR (Pt. 1196) 342, ODOFIN Vs. OLABANJI (1996) 3 NWLR (Pt. 435) 126.

​Counsel went further to emphasize that when the trial Court found that leave to sue in representative capacity was obtained by fraud, it went ahead to set it aside. That by Order 5 Rule 1 (1), where at the beginning of any proceeding, there has been by reason of anything done or left undone, been a failure may nullify the proceedings. That means the suit was void. That you cannot put something on nothing; MACFOY Vs. UAC (1962) AC 158. Counsel urged the Court to uphold the finding of the lower Court.

Counsel submitted on Issue No 4 that the learned trial Judge was in error when he refused to consider the question of limitation of time raised by the respondents in their preliminary objection.

Both counsel were unanimous on this issue, that the lower Court ought to have made a pronouncement. The departure is that the respondent wants this Court to invoke S.16 of the Court of Appeal Act to determine the issue.
Counsel urged the Court to dismiss the appeal for being unmeritorious.

RESOLUTION OF THE ISSUES
On the 22nd day of June, 2015 the 1st and 2nd respondents herein filed before the lower Court a Motion on Notice seeking in the main;
An order of this Honourable Court dismissing this suit in limine with substantial cost.
The grounds of the application are: –
a) By reason of the length of the period of delay in bringing this suit, this case in statute barred.
b) By reason of the antecedent of this case, this suit as currently constituted is academic and hypothetical.
c) This suit is an abuse of Court process.

After hearing, the learned trial Judge gave a considered ruling wherein he held inter alia: –
1. That the respondents/appellants have no locus to sue in representative capacity over the estate of their late father, the farmland in dispute having been disposed of pursuant to a valid Court judgment, page 103.
2. That since the claimants/respondents (Alh. Adamu Garba & 6 Ors) have no legal capacity to institute the action in Suit No. JDU/04/014, and the subject matter of the action (Gonar Tsamiya) had long been disposed of by the owners and currently beyond the reach of both the claimants/respondents and the defendants/applicants, the action not properly constituted in law and is accordingly hereby struck out, Page 104

The appellants were aggrieved by this decision, thus this appeal.

Now, would it be right to say the appellants have no locus to sue the respondents for themselves and on behalf of the heirs of late Alhaji Garba Dankundi?

​From the record of the lower Court, the appellants were held to lack the right to sue. In his ruling on page 102, the learned trial Judge held: –
“The absence of the appropriate probate letter as at present robs the respondents of the legal capacity to institute this action as representatives of the estate of their late father.”

In my view, the learned Judge had misconstrued the position of the law. Order 13 Rule 1 of the High Court of Jigawa State (Civil Procedure Rules) provides: –
All persons may be joined in one action as claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such claimant(s) as may be found to be entitled to relief and for such relief as he or they may be entitled to.
The above provision may seem to be of general application, applicable to persons of like interest. In particular, Order 13 Rule 13 provides: –
13(1)- where in any proceedings concerning: –
(a) the administration of an estate; or
(b) property subject to a trust; or
(c) land held under Islamic or Customary Law as Family or Community property; or
(d) …
A Judge is satisfied that: –
(iii) …it is expedient for the purpose of efficient procedure that one or more persons be appointed to represent that person or class or member of the class, the Judge may make the appointment. The decision of the Judge in the proceedings shall be binding in the person or class of persons so represented.
Sub- Rule (4) In this Rule, the word “class” includes the persons recognized by Islamic or Customary Law as members of a family or as members of and owing Community.

As provided in the Rule supra, the learned trial Judge in compliance did appoint the appellants for themselves and as also representatives of the estate of their late father, Alhaji Garba Dankundi.

The learned trial Judge in my view was wrong when he reversed/set aside the decision of granting the appellants’ leave to file the suit in representative capacity suo motu. The Judge ought to have heard the parties before setting aside that ruling, even if he was misled.

The Supreme Court in KATTO Vs. CENTRAL BANK OF NIGERIA (1991) LPELR – 1678 (SC) emphasized that, the question of jurisdiction is that which the Court can take suo motu and at any stage of the proceedings. Jurisdiction is fundamental. It is the fiat, the stamp of authority to adjudicate. If it is not there, the Court labours in vain and all it does amount to nothing, a nullity. However, in taking the question of jurisdiction suo motu prudence and the principle of fair hearing demands that counsel be given opportunity to be heard on the issue before a decision is arrived at.

This Court in SANNI & ORS Vs. HAMZAT & ANR (2012 LPELR–8010(CA) had reason to pronounce on failure of the claimants to seek leave of the trial Court before instituting the suit in representative capacity. It held inter alia;-
“The suit was thus filed in a representative capacity. No leave of the Court below was sought and had by the suit in representative capacity … Although leave is necessary at the trial Court to sue in a representative capacity, an Appellate Court will not upset the judgment merely because such leave was not obtained in the trial Court … that failure to obtain the leave is not fatal as to vitiate the proceedings. See also PLATEAU INVESTMENT & PROPERTY DEVELOPMENT CO. LTD Vs. PHIL EBHOTA & ORS (2001) 4 NWLR (Pt. 704) 495 AT 534 and MOZIE & ORS Vs. MBAMALU & ORS ​(2005) 7 SCNJ 411 AT 421–423.”

​From the record, the learned trial Judge did not make a pronouncement on the application before him. Both the appellants and the respondents were unanimous on his failure to make a pronouncement. The appellants raised the issue on page 18 of their brief, while the respondents did on page 15 (Issues No.4 for the determination of the appeal in both briefs). The learned trial Judge inter alia held on page 95 of the record thus: –
“After a careful consideration of the grounds forming the basis of the defendants application, I am reluctant to delve into the issue of the action or suit being statute barred…”

Both learned counsel relied on FEDERAL AIRPORTS AUTHORITY OF NIGERIA Vs. WAMAL EXPRESS SERVICES (2011) 1 SCNJ 133 AT 144 wherein the Supreme Court inter alia held: –
“It is the duty of a Court to entertain and decide on the merit or otherwise of any application brought before it by any party notwithstanding the perceived strength or the weakness of such an application
“In a nutshell, the incapacity of the respondents to sue in a representative capacity over the estate of their late father coupled with the disposal of the farmland in dispute pursuant to a valid Court judgment have jointly worked against the defendants/applicants”.
See page 103 of the record.

On page 104, the learned Judge again said;
“…the subject matter of the action (Gonar Tsamiya) had long been disposed of by the owners and currently beyond the reach of both the claimants/respondents and the defendants/applicants…”

In my view, the learned trial Judge was carried away by whims, when he failed to rule on the issue before him and went on to decide on what was not before him.

The appeal is meritorious and is allowed by me. The ruling delivered in Suit No. JDU/04/014 by the High Court of Jigawa State sitting in Hadejia on the 1st of December, 2015 is set aside.

The Hon Chief Judge Jigawa State shall assign the suit to another Judge for hearing de novo.
No order as to costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Usman Alhaji Musale, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I abide by the conclusion reached that the appeal has merit and should be allowed.

The appellants commenced the action in the lower Court as heirs and children of late Alhaji Garba Dankundi, for themselves and on behalf of the Estate of their late father. They claimed for a declaration that their late father was the owner of large farmland known as Gonar Tsamiya lying and situate at Kadume Village, along Hadeija-Kano Road, in Jigawa State and covered by a Certificate of Occupancy No LKN/CON/COM/82/184 and for a further declaration that upon the death of their father the property became family property and formed part of his estate to be distributed amongst his heirs according to Islamic law. The appellants also prayed the lower Court to set aside the sale of the land and for the handing back of the Certificate of Occupancy and possession of the land. The second Respondent counter-claimed for a declaration of ownership of the farmland in dispute.

​The first and second respondents filed a motion on notice for a dismissal of the suit on the ground that it was statute barred and amounted to an abuse of process. The lower Court acceded to the prayer of the first and second respondents and it dismissed the suit on the ground that the appellants lacked the legal capacity to commence the action and that their failure to obtain the appropriate probate letter robbed them of the legal capacity to institute the action as representatives of the Estate of their late father. The lower Court in the process also set aside the leave it had earlier granted the appellants to commence and prosecute the action in a representative capacity on the ground that it was misled to grant the leave. The lower Court stated expressly in its ruling that it was not delving into the issue of statute bar.

The fulcrum of the case of the appellants is that the property in dispute belonged to their late father. The law is settled that where a person dies intestate leaving many heirs behind, his property will devolve on the heirs and will become family property of all the members of the family – Anusiem Vs Anusiem (1993) 2 NWLR (Pt 276) 485, Ironbar Vs Federal Mortgage Finance (2009) 15 NWLR (Pt 1165) 506, Umeadi Vs Chibunze (2020) LPELR-49566(SC). In Mohammed Vs Klargester (Nig.) Ltd (2002) 14 NWLR (Pt 787) 335, Iguh, JSC at page 363 B-D held:
“In the first place, if, as pleaded in the said paragraphs 3 and 4 of the amended statement of claim, the plaintiff was the sole beneficial owner of the landed property in issue, no iota of evidence was led by it in support of this averment. On the contrary, the evidence led by the plaintiff, as already pointed out, is that the property in issue originally belonged to one Alhaji Mamman Tela, the father of the defendant and that on the death intestate of the said Alhaji Mamman Tela in 1984, the property devolved on his numerous heirs who numbered about 18, including the defendant. The said property thus became family property on the death of Alhaji Mamman Tela.”

​The Appellants sought for a declaration that upon the death of their father the property became family property and formed part of his estate to be distributed amongst his heirs according to Islamic law. The Appellants commenced the action in their personal names for themselves and on behalf of the Estate of their father. In other words, they commenced the action in two capacities – personally in their individual names and in a representative capacity for the family. I must say that I am perplexed that in this time and age there is a High Court in this country that still has a difficulty in understanding the right and legal capacity of a member of a family to sue to protect the family property, without first obtaining letters of administration or letters of probate and without seeking the leave of Court.

The law is settled by a long line of judicial authorities that any member of the family whose interest in a family property is threatened by the wrongful alienation or wrongful interference with the property can sue to protect his interest whether with or without the consent of the other members of the family, for if he does not act he may find himself being held to be standing by when his rights were being taken away – see for example the cases of Melifonwu Vs Egbuji(1982) 9 SC 145, Orogan Vs Soremekun (1986) 5 NWLR (Pt 44) 688, Olowosago Vs Adebanjo (1988) 4 NWLR (Pt 88) 275, Okpala Vs Ibeme (1989) 2 NWLR (Pt 102) 208, Oduneye Vs Efunuga (1990) 7 NWLR (Pt 164) 618, Babayeju Vs Ashamu (1998) 9 NWLR (Pt 567) 546, Ejigini Vs Ezenwa (2003) 16 NWLR (Pt 846) 420, Mozie Vs Mbamalu (2006) 15 NWLR (Pt 1003) 466, Unity Bank Plc Vs Bouari (2008) 7 NWLR (Pt 1086) 372, Ojukwu Vs Ojukwu (2008) 18 NWLR (Pt 1119) 439, Ironbar Vs Federal Mortgage Finance (2009) 15 NWLR (Pt 1165) 506, Taiwo Vs Adegboro (2011) 11 NWLR (Pt 1259) 562, Odimegwa Vs Ibezim (2019) 9 NWLR (Pt 1677) 244.
Also, a member of a family who becomes aware of a threat to family land from external sources is competent to bring an action to protect the interest of the family in respect of family property or of his interest in it. This is so even if he has no authority of the family to bring the action and even if some members of the family or even the head of the family is in concert with the defendant – Sogunle Vs Akerele (1967) NMLR 186, Animashawun Vs Osuma (1972) 7 NSCC 253, Ugwu Vs Agbo (1977) 10 SC 27, Layinka Vs Gegele (1993) 3 NWLR (Pt 283) 518, G. Cappa Ltd Vs Shokunbi (1994) 4 NWLR (Pt 337) 215, Dadi Vs Garba (1995) 8 NWLR (Pt 411) 12, Olagbegi Vs Ogunoye II (1996) 5 NWLR (Pt 448) 332, Anuforo Vs Obilor (1997) 11 NWLR (Pt 530) 661, Afoezioha Vs Nwokoro (1999) 8 NWLR (Pt 615) 393, Effiom Vs Ironbar (2000) 3 NWLR (Pt 650) 545, Adeyori Vs Adeniran (2001) 10 NWLR (Pt 720) 151, Ezekude Vs Odogwu (2002) 18 NWLR (Pt 784) 366, Mozie Vs Mbamalu (2006) 15 NWLR (Pt 1003) 466, Unity Bank Plc Vs Bouari (2008) 7 NWLR (Pt 1086) 372, Sapo Vs Sunmonu (2010) 11 NWLR (Pt 1205) 374, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt 1230) 1, Taiwo Vs Adegboro (2011) 11 NWLR (Pt 1259) 562.
The Courts have held that every member of a family has a duty and right to sue anybody who tampers with the family property either in his individual name or in a representative capacity to protect his individual interest or the collective interest of the family – Aguocha Vs Ubiji (1975) 5 ESCLR 221, Disu Vs Ajilowura (2001) 4 NWLR (Pt 702) 70, Adeyori Vs Adeniran (2001) 10 NWLR (Pt 720) 151, Ezekude Vs Odogwu (2002) 8 NWLR (Pt 784) 366 and Olasa Vs Ezimuo (2003) 17 NWLR (Pt 848) 129. In Umeadi Vs Chibunze (2020) LPELR-49566(SC), the Supreme Court reiterated the position of the law thus:
“… every member of the family has or enjoys a locus-standi to institute an action in respect of any wrong or illegal dealings with the property. And the right of action to protect family property avails the individual member even if he has not, the authority of the family to bring the action. In other words, any member of family no matter how insignificant he may be considered can bring an action to protect a family land.”
The appellants thus, without more, possessed the legal capacity to commence the action in the way and manner that they did.

But perhaps more worrisome is the ease with, and the whimsical manner, in which the lower Court set aside its earlier order granting leave to the appellants to commence the action in a representative capacity, on the flimsy ground that it was misled into granting the order. The law is settled that where a Court enters judgment or makes an order, whether the decision in the judgment or order is right or wrong or defective ex facie, the same Court cannot competently recall the judgment or order and set it aside – Chukwuka Vs Ezulike (1986) 5 NWLR (Pt 45) 892, Babayagi Vs Bida (1998) 2 NWLR (Pt 538) 367, Omoyinmi Vs Ogunsiji (2001) 7 NWLR (Pt 711) 149, Independent National Electoral Commission Vs Nnaji (2004) 16 NWLR (Pt 900) 473, Kraus Thompson Organization Vs National Institute of Policy and Strategic Studies ​(2004) 17 NWLR (Pt 910) 44, Federal Radio Corporation of Nigeria Vs Iwuoha (2013) 1 NWLR (Pt 1335) 207, Famu Vs Kassim (2013) 7 NWLR (Pt 1352) 166.
The only recognized instances, where the Court can do, are if it is shown that the decision reached in the judgment or order was made without jurisdiction or is a nullity due to absence of fair hearing, or was reached as a result of fraud, the decision can be set aside by the Court under its inherent jurisdiction – Okafor Vs Attorney General, Anambra State (1991) 6 NWLR (Pt 200) 659, Onwuka Vs Maduka (2002) 18 NWLR (Pt 799) 586, Witt & Busch Ltd Vs Dale Power Systems Plc (2007) 17 NWLR (Pt 1062) 1, Osakue Vs Federal College of Education, Asaba (2010) 10 NWLR (Pt 1201) 1, Ene Vs Asikpo (2010) 10 NWLR (Pt 1203) 477, First Bank of Nigeria Plc Vs TSA Industries Ltd (2010) 15 NWLR (Pt 1216) 247, Dingyadi Vs INEC (No 1) (2010) 18 NWLR (Pt 1224) 1, Ede Vs Mba (2011) 18 NWLR (Pt 1278) 236, Adeyemi-Bero Vs Lagos State Property Development Corporation (2013) 8 NWLR (Pt 1356) 238.

​It was not the finding of the lower Court that the earlier order it made granting the Appellants’ leave to sue in a representative capacity was made without jurisdiction or that it is a nullity due to absence of fair hearing, or was reached as a result of fraud. The lower Court had no power to set aside the order. It was bound by it. The lower Court must have overlooked the fact that its statement that it was misled into making the order, i.e. that it was led by the nose by a party to grant a wrongful order, is an admission of incompetence and lack of self-assuredness on its part. These are not qualities that should be found in a sitting High Court Judge.

I agree that this appeal has merit and I allow same. I too hereby set aside the ruling delivered by Honorable Justice A. Y. Suleiman of the High Court of Jigawa State in Suit No JDU/04/2014 on the 1st of December, 2015. I abide by the consequential orders made in the lead judgment.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother USMAN ALHAJI MUSALE, JCA, and I agree with his reasoning and conclusion that the appeal is meritorious and is accordingly allowed. I too allow the appeal and abide by all other consequential orders as contained in the lead judgment.

Appearances:

S. Y. Ibrahim, Esq., with him, I. A. Umar, Esq. For Appellant(s)

Mubarak Abubakar, Esq., with him, Yusrah Tahir, Esq. For Respondent(s)