GARGAMA & ORS v. ABUBAKAR
(2022)LCN/16722(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, March 11, 2022
CA/K/142/S/2014
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Between
1. BABBA JAURO GARGAMA 2. ALH. MAMMAN ABUBAKAR 3. ALH. SARKI DAUDA 4. ALH. GAMBO ADO 5. SARKI BULAKI 6. HAJIYA HADIZA APPELANT(S)
And
UMAR ABUBAKAR RESPONDENT(S)
RATIO
WHETHER OR NOT AN AMENDED STATEMENT OF CLAIM SUPERSEDES THE ORIGINAL STATEMENT OF CLAIM
It is settled law that upon the grant of leave to amend the statement of claim, the original statement of claim is superseded by the amended statement of claim. And hence the amended statement of claim is incompetent it robs the trial Court the jurisdiction to hear the matter. And likewise, the lower Court will have no jurisdiction to entertain an appeal which emanates from a judgment which is a nullity due to lack of jurisdiction. The submission of the respondent’s counsel that the lower Court having dismissed the appeal and the entire decision of the trial Court nullified. There is no live issue as regards to the statement of claim. The said submission does not hold water because ab initio, the lower Court also lacks the jurisdiction to entertain the appeal whose foundation is incompetent. In other words, the lower Court has no jurisdiction to sit on an appeal that emanated from the judgment delivered by the Upper Sharia Court 1 G.R.A Zaria in an action that was premised on an amended statement of claim that was signed by the law office of Prince Emeka Emerole & Co. A process filed in violation of Sections 2(1) and 24 of the Legal Practitioners Act Cap 201 LFN 1990 cannot be said to have been duly filed before the Court in the eye of the law. Such process does not exist and cannot invoke the judgment of the Court. See Adekunle Ajbode & 4 Ors v. Dauda Gbadamosi & 3 Ors (2021) LCN/4954 (SC), Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521, Community Development Organization & Anor V. Ibrahim Muhammad (2014) LPELR-23598 (CA). PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Sharia Court of Appeal Kaduna State delivered on 7th of April, 2014 in Appeal No: KDS/SCA/ZA/82/11. The appeal emanated from the judgment of Upper Sharia Court 1 GRA Sabon Gari Zaria (hereinafter referred to as the trial Court) in Suit No: 98/2006 delivered on 23rd of February, 2010.
At the trial Court, the Respondent’s/Plaintiffs claim is as follows:
“I am claiming four houses situate in Zaria with the following address:
1. No. 9 Barebari Street Tudun Wada Zaria.
2. No. 18 Barebari Street Tudun Wada Zaria.
3. No. 4 Anguwan Kaya Close to W.T.C Zaria.
4. No. A2 Old Hospital Road Sabon Gari Zaria.
All these houses are owned by Hajiya Jajo who resides in Zaria and she died in Zaria. In 1986 when she died the claimant is her only relation who is entitled to inherit her property. The claimant left Zaria after the death of Hajiya Jojo. He left behind his wife and children in two of the houses on Barebari Street. When he came back to Zaria, he looked for the 2nd defendant who name is A. Mamman Abubakar who is in custody of these houses and other properties of Hajiya Jojo, for him to explain. Instead of him A. Mamman Abubakar to explain, he said these properties were given to him by the 1st defendant, for him to take care of them. As at now the claimant discovered that the 3rd, 4th, 5th and 7th defendants are saying that they have already bought some of the houses. And they are making effort to complete the transaction for the sale of some houses. The 6th defendant intervened and he is trying to confirm the transactions for the sale of the houses. The claimant wants the Court to summon the 1st and 2nd defendants to appear before the Court and prove to the Court their right to sell the houses. He is also praying the Court to stop all the sale transactions if any. Or restrain them from any attempt to sell the properties. That is all our claim.”
The claimant/Respondent called two witnesses to prove his claim while the defendants/Appellants called one witness. After hearing the trial Court dismissed the case. Being aggrieved by the decision of the trial Court the claimant/respondent appealed to the Sharia Court of Appeal (hereinafter referred to as the lower Court). After hearing the lower Court held thus:
“We cannot grant the application of the Appellant that we should grant his claims that is before Upper Sharia Court G.R.A Zaria which the Court refused him.
We also set aside the verdict of the Upper Sharia Court 1 G.R.A Zaria because we observed that the Court did not made its judgment on any ground of the law.”
The lower Court ordered as follows:
“We also ordered the Upper Sharia Court III Tudun Wada Zaria to retry the case since it is a new judge not the former judge that tried the case.
We also ordered the judge of the said Court to take possession of four houses that are in dispute from the people that are now in possession. And to keep custody pending the hearing and determination of the matter. We made this Order under Order 9 Rule 1 of the Rules guiding the Sharia Court of Appeal on Islamic Law No. 16 of 1960 and also Section 53(1)(a) of the Kaduna State Law No. 11 on establishment of Sharia Court 2001.”
Upon being aggrieved by the decision of the lower Court, the defendants/appellants appealed to this Court vide a notice of appeal filed on the 15th of May, 2014. The notice of appeal contains seven (7) grounds of appeal. At the hearing of the appeal on the 16th of December, 2021, learned counsel for the appellants Shehu Aminu adopted the appellants amended brief of argument filed on 15th of December, 2021. He urged the Court to allow the appeal, set aside the judgment of the lower Court and affirm the judgment of the trial Court. The respondent’s counsel Ibrahim Bawa, adopted the respondent’s amended brief of argument filed on 15th of December, 2021. He urged the Court to dismiss the appeal and affirm the judgment of the lower Court.
From the seven grounds of appeal, the appellants distilled three issues for determination thus:
“(1) Whether or not the Plaintiffs claim before Upper Sharia Court borders on Islamic personal law, consequent upon which the Court below can have the requisite jurisdiction to entertain appeal No: KDS/SCA/82/2011.
(2) Whether or not having regard to the amended statement of claim of the plaintiff/Respondent same is competent in law having been signed in the name of Prince Emeka Emerole & Co. who is not a legal practitioner within the meaning of Section 24 of the Legal Practitioners Act.
(3) Whether or not the learned justices of the Sharia Court of Appeal were right in sending the matter for retrial before another Upper Sharia Court having regard to part of their findings that the appeal fails.”
The respondent distilled one issue for determination thus:
“Whether in the circumstances the Court below rightly assumed jurisdiction.”
I adopt the three issues submitted by the appellant for the determination of this appeal. On issue one, the appellants’ counsel submitted that the plaintiff/respondent’s claim before the trial Court borders on dispute to title. He is challenging the validity of sale of four landed properties and seeking a declaratory relief as regards to the ownership of the four houses in dispute. The lower Court lacks the requisite jurisdiction to hear and determine appeal emanating from the trial Court which did not raise any question of Islamic personal law. Therefore the decision of the lower Court is a nullity and he urged the Court to so hold. He relied on the case of Magaji V. Matari SQLR (2014) Vol 2 (Pt. 11) 181-211; Magaji v. Dattijo SQLR (2013) Vol 1 (Pt. 11) 106; Usman v. Umaru SQLR (2014) Vol 2 (Pt. 1) 1-49.
In his response the respondents counsel submitted that the lower Court rightly assumed jurisdiction over the matter. The plaintiff/respondent was claiming the ownership of the four houses of the deceased through inheritance being the only surviving heir of the deceased. The nature of the claim is that of inheritance which the defendants denied and which is within the competence of the lower Court by virtue of Section 277(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) learned counsel submitted that the Courts below restricted their proceedings to establishing whether the respondent is entitled to inherit the deceased or not.
Earlier in this judgment, the claim of the Respondent/Plaintiff at the trial Court has been reproduced verbatim. And having examined the claim, it is without any doubt that the nature of the claim is that of inheritance. The plaintiff/respondent is claiming ownership of the four houses on the ground that he is the only surviving heir/relation of the deceased Hajiya Jojo. The trial Court Upper Sharia Court 1 G.R.A Zaria dismissed the claim on the grounds that the plaintiff has failed to prove his relationship with the deceased Hajiya Jojo. Therefore, the Court will not give judgment in his favour that he can inherit the estate of the deceased as he claimed. See page 53 of the record. The certificate of judgment Hausa Version.
The lower Court is vested with jurisdiction to entertain the appeal by virtue of Sections 244 and 277(2)(e) of the Constitution of the Federal Republic of Nigeria (as amended). See Magaji v. Matari (supra); Magaji v. Dattijo (supra) and Usman v. Umaru (supra). Accordingly, issue one is resolved against the appellant.
On issue two, the appellants’ counsel submitted that the plaintiff/respondent has no valid statement of claim before the trial Court, the effect of which robs the trial Court of the jurisdiction to try same. By a motion on notice dated 16/01/2007 the plaintiff/respondent applied for and was granted leave to amend his statement of claim. The amended statement of claim was signed by Prince Emeka Emerole & Co. who is not a legal practitioner within the meaning of Section 24 of the Legal Practitioners Act 2004 LFN. This Court and the Apex Court have held that a Court process signed in the name of a law firm is incompetent. He relied on the case of Maude v. Thomas (2007) ALL FWLR (Pt. 361) 1749-1770 and Okonkwo v. Uba (2011) Vol. 7 MJSC 1-27.
In his response to issue two, the respondent’s counsel submitted that issue No.2 and 3 of the appellants’ brief have been answered by the Sharia Court of Appeal, particularly the issue number 2 bordering on the stands of the statement of claim. It is obvious in the judgment of Sharia Court of Appeal at page 155 of the record, the appeal of the respondent who was the appellant at the Sharia Court of Appeal was not granted. There is no valid claim as per the judgment of the Sharia Court of Appeal. And an order for retrial was made.
Without much ado, I have perused the record and particularly page 99 of the record lines 23-24, the trial Court stated thus:
“I therefore grant him leave to amend the words in his claims…”
Pages 50-51 is the amended statement of claim, signed by PP: Prince Emeka Mmereole & Co, Trinity Chambers (The Sanctuary) F. 15 Kaduna Road, Zaria. It is crystal clear that there was no competent amended statement of claim before the trial Court. It is settled law that upon the grant of leave to amend the statement of claim, the original statement of claim is superseded by the amended statement of claim. And hence the amended statement of claim is incompetent it robs the trial Court the jurisdiction to hear the matter. And likewise, the lower Court will have no jurisdiction to entertain an appeal which emanates from a judgment which is a nullity due to lack of jurisdiction. The submission of the respondent’s counsel that the lower Court having dismissed the appeal and the entire decision of the trial Court nullified. There is no live issue as regards to the statement of claim. The said submission does not hold water because ab initio, the lower Court also lacks the jurisdiction to entertain the appeal whose foundation is incompetent. In other words, the lower Court has no jurisdiction to sit on an appeal that emanated from the judgment delivered by the Upper Sharia Court 1 G.R.A Zaria in an action that was premised on an amended statement of claim that was signed by the law office of Prince Emeka Emerole & Co. A process filed in violation of Sections 2(1) and 24 of the Legal Practitioners Act Cap 201 LFN 1990 cannot be said to have been duly filed before the Court in the eye of the law. Such process does not exist and cannot invoke the judgment of the Court. See Adekunle Ajbode & 4 Ors v. Dauda Gbadamosi & 3 Ors (2021) LCN/4954 (SC), Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521, Community Development Organization & Anor V. Ibrahim Muhammad (2014) LPELR-23598 (CA).
Consequent to the above, issue two is resolved in favour of the appellant. Now having resolved that the lower Court lacks the requisite jurisdiction to entertain the appeal, the consequence is that the decision of the lower Court is rendered a nullity. Accordingly, the judgment of the lower Court delivered on 7th of April, 2014 in appeal No: KDS/SCA/ZA/82/11 is hereby declared a nullity and same is set aside. The judgment of the trial Court is equally liable to be set aside having emanated from an incompetent amended statement of claim and same is set aside.
Having set aside the judgment of the lower Court, the third issue becomes merely academic and same is discountenanced. Appeal is allowed.
No order as to cost.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading a draft of the judgment just delivered by my learned brother, ABUBAKAR MAHMUD TALBA, JCA.
I agree that the Sharia Court of Appeal lacks the jurisdiction to entertain the appeal.
I allow the appeal and set aside the proceeding before the Shari’a Court of Appeal in Appeal No. KDS/SCA/ZA/82/2011
MOHAMMED DANJUMA, J.C.A.: I have had the privilege to read in draft, the lead judgment just delivered by my learned brother A. M. TALBA JCA. I agree with the reasoning and conclusion that the appeal is allowed. I abide by the consequential order in the lead judgment.
Appearances:
Shehu D. Amina, Esq. For Appellant(s)
Ibrahim Bawa, Esq. For Respondent(s)
