HADIZA BELLO & ANOR v. HAPSATU SAJO (2014)

HADIZA BELLO & ANOR v. HAPSATU SAJO

(2014)LCN/7354(CA)

In The Court of Appeal of Nigeria

On Monday, the 7th day of July, 2014

CA/YL/29/2014

RATIO

APPEAL: RECORD OF APPEAL; WHETHER A COURT IS BOUND BY THE RECORD OF APPEAL

It is basic and trite law and authorities are legion to the effect that a court is bound by the record of appeal. See Garuba v. Omohodion (2011) 6 SCNJ 334, Sapo v. Sunmonu (2010) 5 SCNJ 1, Leaders of Company Ltd (Publishers of This Day) v. Bamaiyi (2010) 12 SCNJ 480. per. ADAMU JAURO, J.C.A.

APPEAL: NOTICE OF APPEAL; WHETHER THAT A NOTICE OF APPEAL IS RENDERED INCOMPETENT WHERE THE DATE OF JUDGMENT REFLECTED ON THE NOTICE OF APPEAL, IS DIFFERENT FROM THE ACTUAL DATE THE LOWER COURT DELIVERED ITS JUDGMENT

The notice of appeal might be a challenge to a different judgment delivered on 20th September, 2012 but between the same parties. In a similar situation, this court in Peter Halilu v. Titus Kwano, Appeal No. CA/YL/66/2013 delivered on 23rd May, 2014, this court held that a notice of appeal is rendered incompetent where the date of judgment reflected on the notice of appeal, is different from the actual date the lower court delivered its judgment. See the lead judgment of my lord, B. A. Georgewill, JCA. On this score alone, the notice of appeal is incompetent. per. ADAMU JAURO, J.C.A.

COURT: HIGH COURT; THE PROVISION OF THE CONSTITUTION FOR HIGH COURT FOR EACH STATE AND THE YOLA IS AMONG THE 36 STATES LISTED

Section 270(1) and (2) of 1999 Constitution (as amended) provides as follows:
“270(1) There shall be a High Court for each State of the Federation.
(2) The High Court a State shall consist of –
(a) A Chief Judge of the State; and
(b) Such number of Judges of the High Court as may be prescribed by a Law of the House of Assembly of the State.”

By the aforementioned constitutional provision, there shall be a High Court for each state. Section 3(1) of the 1999 Constitution (as amended), made provision for the number of states in Nigeria to be 36, and listed the names of the 36 states. Section 3(3) of the same Constitution made provision for the headquarters of Government of each state, which shall be known as the state capital of that state. For ease reference, section 3(1) of the Constitution is hereby reproduced:
“3(1) There shall be thirty six States in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.”

From the Constitutional provision reproduced above, Yola is surely not among the 36 states listed. The state wherein the lower court is located is Adamawa State and Yola is the State Capital. Consequently by law, there is nothing known as “High Court Yola” but the correct title is “High Court of Adamawa State.” Indeed the appellants made a mistake by referring to the lower Court as High Court Yola. The mistake is even made costly coming from a legal practitioner with a background of training in law and who is supposed to be conversant with all the constitutional provisions. per. ADAMU JAURO, J.C.A.

APPEAL: NOTICE OF APPEAL; THE IMPORTANCE OF THE NOTICE OF APPEAL IN AN APPEAL AND THE CONSEQUENCE WHERE THE NOTICE OF APPEAL IS INCOMPETENT

The notice of appeal is the spinal cord and foundation of an appeal, that activates, animates and sustains the appeal. Where same is incompetent, the appeal is ipso facto incompetent. Kano Plastics Ltd v. Century Merchant Bank (1998) 3 NWLR (Pt. 343) 567 and Olowokere v. African Newspapers of Nig. Ltd (1993) 5 NWLR (Pt. 295) 583 at 586 ratio 1. per. ADAMU JAURO, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

Between

1. HADIZA BELLO
2. ALH. SA’AD LAMDO KATSINA Appellant(s)

AND

HAPSATU SAJO Respondent(s)

ADAMU JAURO, J.C.A. (Delivering the leading Judgment): This is an appeal against the decision of the Adamawa State High Court of Justice Yola, sitting in its appellate jurisdiction in appeal No. ADSY/4A/2012 from Upper Area Court 3, Yola. The judgment was delivered on 21st September, 2012 wherein the lower court affirmed the decision of the Upper Area Court No. 3, Yola.

The facts giving rise to this appeal, can be summarized as follows: The 1st appellant as plaintiff commenced an action against the respondent as defendant, before the Civil Area Court No. 2 Jimeta. The substance of the complaint before the court was that there was an outlet of waste water from the defendant’s toilet, passing in the frontage of the plaintiff’s room, thereby causing nuisance and pollution to the plaintiff. The Civil Area Court gave judgment in favour of the plaintiff now 1st appellant, and the defendant now respondent was ordered to block the outlet within two weeks.

The defendant now respondent appealed against the said decision to Upper Area Court No. 3, Yola. On appeal, the decision of the trial Area Court was reversed. The Upper Area Court made an order against the 2nd Appellant, though not a party to the case, banning him from visiting the house where his wife the 1st appellant was staying. Dissatisfied with the decision of the Upper Area Court, the 1st appellant appealed to the Adamawa State High Court of Justice, Yola. The appeal was dismissed by the Adamawa State High Court of Justice Yola and the decision of the Upper Area Court affirmed.

Aggrieved by the decision of the Adamawa State High Court of Justice Yola, the 1st appellant sought for leave to appeal against the judgment. The said leave was granted by this court on the 26th February, 2014. Pursuant to the said leave, the 1st appellant notice of appeal was filed on 4th March, 2014. The said notice of appeal is predicated upon five grounds appeal. The 2nd Appellant applied for leave to be joined as an appellant in this appeal. In compliance with the Rules of Court, briefs of argument were filed and exchanged. The appellants brief of argument is dated 7th May, 2014 and filed on the 8th May, 2014. The appellants Reply brief is dated and filed 30th June, 2014. The respondent’s brief of argument is dated and filed 9th June, 2014.

On the 30th June, 2014 the date fixed for hearing the appeal, Mr. Mohammed Abubakar leading Miss. Rahimat Abubakar for the respondent, sought for and was granted leave to move the preliminary objection filed by the respondent. Learned counsel stated that the preliminary objection is anchored upon three grounds and argument in respect of same contained on pages 4 to 11 of the respondent’s brief. Learned counsel adopted pages 4 to 11 of the respondent’s brief as his argument in respect of preliminary objection and urged the court to strike out the appeal. Mr. Mahmud Ahmed for the respondent, stated that they responded to the preliminary objection in the Appellants reply brief dated and filed 30th June, 2014. Learned counsel adopted the appellants reply brief and relied on the argument contained therein as his response to the preliminary objection and urged the court to dismiss same.

On the main appeal, the learned counsel for the appellants adopted the appellants brief of argument as their argument in this appeal and urged the court to allow the appeal and set aside the judgment of the lower court. The learned counsel stated that the appellants distilled two issues for determination from the five grounds of appeal. The learned counsel for the respondent adopted pages 11 to 16 of the respondent’s brief of argument in urging the court to dismiss the appeal. Learned counsel stated that they adopted the two issues for determination formulated by the appellants.

The two issues for determination formulated by the appellants as contained on page 2 of the appellants brief of argument are as follows:
“1. Whether the learned High Court Judge was right to uphold the decision of the Upper Area Court, when both Appellants were not heard and the 2nd Appellant was not even a party before the Court.
2. Whether the learned High Court Judge was right uphold the decision of the Upper Area Court which deviate from the substance of appeal before it and held that the 1st Appellant lacks locus standi to institute this action”

As earlier stated in this judgment, the respondent adopted the two issues for determination nominated by the appellants. See pages 11 and 12 of the respondent’s brief of argument.

The respondent having raised a preliminary objection, same will be considered first. The rationale for taking it first is because it is challenge to the hearing of the appeal and where it succeeds there will be no need to go into the merits of the appeal. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404, Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314, N.E.P.A. v. Ango (2001) 15 NWLR (Pt. 737) 627.

PRELIMINARY OBJECTION
The three grounds for the objection are as follows:
“1. The Appeal of the appellant is incompetent as same was commenced vide an incompetent Notice of Appeal.
2. Appellants’ Grounds of Appeal together with their respective particulars are incompetent as they do not attack the ratio decidendi of the judgment being purportedly appealed against.
3. Appellants’ issue Number One is incompetent as Ground One which is one of the Grounds of Appeal, same is distilled from is incompetent.”

ARGUMENT ON GROUND ONE
Learned counsel stated that a perusal of paragraph one of the notice of appeal on page 34 of the record would reveal that, the court against whose judgment the appeal is purportedly filed is stated as “the High Court, Yola”. It was contended that the “the High Court Yola” does not exist and it is not known to law. It was argued that the only High Court which exists and known to law is the High Court of Adamawa State which is a creature of the 1999 Constitution as (amended). In support, reference was made to section 270 (1) and (2) of the 1999 Constitution. It was submitted that the appellants notice of appeal is an appeal against the judgment of a court which is unknown to law, hence incompetent.

It was also contended that paragraph 1 of the notice of appeal on page 34 of the record, referred to the judgment appealed against as one delivered on 20th September, 2012. It was argued that the appellants appeal is against a different judgment from the one contained on pages 28 to 32 of the record. It was posited that the notice of appeal is the foundation of any appeal and where it is defective this court lacks the jurisdiction to entertain same for being a nullity. In support, reference was made to the following cases: Kano Plastics Ltd v. Century Merchant Bank (1998) 3 NWLR (Pt. 343) 567, Olowokere v. African Newspapers of Nigeria Ltd (1993) 5 NWLR (Pt. 295) 583 at 586. It was urged that ground one of the preliminary objection be sustained and the notice of appeal be struck out in line with Order 6 Rule 6 of the Court of Appeal Rules, 2011.

In response, the appellants contended that a reference to the lower court as “High Court Yola” in the notice of appeal was a typographical error. Learned counsel submitted that a reference to the body of the record of proceedings of the lower court, will reveal that the appeal is against the judgment of the High Court of Adamawa State.

On the issue of date, it was also submitted that it is not a defect but a typographical error, because the parties are the same. Learned counsel urged the court to refer to their earlier application for leave to appeal, in order to determine the correct judgment now on appeal. It was argued that the respondent is employing technicalities in order to defeat the cause of justice. This court was urged to discountenance ground one of the objection as lacking in merit.
I will start a consideration of ground one of the objection and as a preamble by reproducing paragraph 1 of the notice of appeal as contained on page 34 of the record. Paragraph 1 of the notice of appeal of page 34, reads thus:
“1. TAKE NOTICE that the Appellants being dissatisfied with the judgment of the High Court Yola, delivered by Justice B. P. Lawi on the 20th Day of September, 2012, do hereby appeal to the Court of Appeal, upon the grounds set out in paragraph 3 hereof and will at the hearing of the appeal seek the reliefs set out in paragraph 4.
The Appellants further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.” (Underlining mine)

The judgment of the lower court is on pages 28 to 32 of the record of proceedings. It is crystal clear from page 28 and 32, that the judgment was delivered on 21st September, 2012. The notice of appeal in the instant appeal is challenging a judgment delivered on the 20th September, 2012. Without much ado and it is beyond dispute that the instant notice of appeal is not challenging the judgment of the lower court delivered on 21st September, 2012. From the record of appeal, it is also not in dispute that there was no judgment of the lower court delivered on 20th September, 2012. It is basic and trite law and authorities are legion to the effect that a court is bound by the record of appeal. See Garuba v. Omohodion (2011) 6 SCNJ 334, Sapo v. Sunmonu (2010) 5 SCNJ 1, Leaders of Company Ltd (Publishers of This Day) v. Bamaiyi (2010) 12 SCNJ 480. The notice of appeal might be a challenge to a different judgment delivered on 20th September, 2012 but between the same parties.

In a similar situation, this court in Peter Halilu v. Titus Kwano, Appeal No. CA/YL/66/2013 delivered on 23rd May, 2014, this court held that a notice of appeal is rendered incompetent where the date of judgment reflected on the notice of appeal, is different from the actual date the lower court delivered its judgment. See the lead judgment of my lord, B. A. Georgewill, JCA. On this score alone, the notice of appeal is incompetent.

Consequent upon the aforementioned postulations, ground one of the preliminary objection is sustained. The defect in notice of appeal has rendered same incompetent and liable to be struck out. The notice of appeal is the spinal cord and foundation of an appeal, that activates, animates and sustains the appeal. Where same is incompetent, the appeal is ipso facto incompetent. Kano Plastics Ltd v. Century Merchant Bank (1998) 3 NWLR (Pt. 343) 567 and Olowokere v. African Newspapers of Nig. Ltd (1993) 5 NWLR (Pt. 295) 583 at 586 ratio 1. The ideal thing would have been to amend the notice of appeal, but rather than doing that the appellants counsel was busy arguing that the mistake was typographical. The notice of appeal is hereby struck out for being incompetent, pursuant to Order 6 Rule 6 of the Court of Appeal Rules, 2011. Having struck out the notice of appeal, it will be a needless academic exercise to consider the second and third ground of the preliminary objection. On the attitude of the Courts to academic issues, see Abdullahi v. Mil. Adm. Kaduna State (2009) 15 NWLR (Pt. 1165) 417, Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1154) 50, Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285, Amanchukwu v. F.R.N. (2009) 8 NWLR (Pt. 1144) 475.
The instant appeal is hereby struck out and there will be no order as to costs.

JIMI OLUKAYODE BADA, J.C.A.: I read bofore now the lead judgment of my learned brother, ADAMU JAURO, JCA, just delivered. I agree with my Lord’s reasoning and conclusion.
I am also of the view that the Notice of Appeal filed on behalf of the Appellant is defecive, and this has rendered it incompetent. The meaning of this is that there is no valid appeal and this court lacks the jurisdiction to determine the appeal on its merit. I too strike out the appeal. I abide by the order on cost.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been availed before now a draft copy of the judgment just delivered by my learned brother, Adamu Jauro , JCA and I am in complete agreement with the reasons and conclusions reached therein. I wholly adopt it as mine and have nothing more useful to add. I too hereby strike out the appeal for being incompetent and abide by teh order as to no costs.

Appearances

Mahmud Ahmed, Esq.For Appellant

AND

Mohammed Abubakar Esq. Legal Aid Officer with Miss Rahimat AbubakarFor Respondent