HUSSAIN YUSUF HAJAIG & ANOR v. DELE YUSUF HAJAIG & ORS
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of January, 2003
MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria
BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria
JOSEPH JEREMIAH UMOREN Justice of The Court of Appeal of Nigeria
- HUSSAIN YUSUF HAJAIG
2. IHAB YUSUF HAJAIG Appellant(s)
- DELE YUSUF HAJAIG
2. ALKALI JUMARE JALALU
3. ATTORNEY-GENERAL, KADUNA STATE Respondent(s)
BABA ALKALI BA’ABA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the Kaduna State High Court delivered on 5/8/98.
The respondent who is the applicant before the trial court, filed a motion ex-parte on 26/1/98 dated 23/1/98, pursuant to Order 48 rule 3 of the Kaduna State High Court (Civil Procedure) Rules, 1987, the application reads:
“TAKE NOTICE that this Honourable Court shall be moved on the … day of … 1998 at the hour of 9 O’clock in the forenoon or soon afterwards as counsel will be heard on applicant’s behalf for the following:
1. An order granting leave to the applicant to apply for judicial review by way of certiorari to quash the proceeding and judgment of the Upper Area Court No.1 Zaria in Re: CVF1/141/97 Dele Yusuf Hajaig v. Mr. Hussain I. Hajaig & 1 Or. for contravening the provisions of Order 2 and Order 11 rule 5 of the Area Courts (Civil Procedure) (Amendment) Rules, 1994.
2. An order staying all actions and maintaining the status quo ante pending the determination of the motion on notice.
3. Such other orders as the Honourable Court may deem fit to make in this case.”
The application was supported by a sixteen-paragraph affidavit of urgency, three paragraphs verifying affidavit and a statement. The respondent also filed a motion on notice dated 19/2/98, filed same date, pursuant to Order 42 rule 5 of the Kaduna State High Court (Civil Procedure) Rules, 1987. The application reads as follows:
“TAKE NOTICE that this Honourable Court will be moved on the 9th day of March, 1998 at the hour of 9 O’clock in forenoon or soon afterwards as counsel will be heard on applicant’s behalf for the following relief:
1. An order of certiorari quashing and annulling the proceeding and judgment of the Upper Area Court 1, Zaria in Re: CVF1/141/97 (Dele Yusuf v. Mr. Hussain Yusuf Hajaig & l Or.) contravening the provision of Orders 2 and Order 13 rule 5 of the Area Court (Civil Procedure) (Amendment) Rules, 1994.
2. Such other orders as the court may deem fit to make in the circumstance of this case.”
The application was supported by an eight paragraph affidavit deposed to by one Dele Yusuf of No. 28, Queen Elizabeth Road, G.R.A., Zaria. The affidavit in support reads:
“2. That the said application is attached as exhibit A.
3. That I adopt the affidavit in support of exhibit A and repeat the averments therein for the purpose of the motion on notice.
4. That the 1st respondent evidently has lost impression of what transpired on the case in his judgment.
5. That the 1st respondent though, adopted the Islamic Law mood of trial, has not applied the Islamic principle and had rather followed the pattern of common law trial.
6. That the 1st respondent gave judgment instantly without reviewing the evidence before him being not the recorder of the proceedings.
7. That the trial, 1st respondent, Judge, awarded what was not claimed in the case.
8. That I swear to this Oath in good faith and in accordance with the Oaths Act, 1990, L.F.N.”
In view of the averment in paragraph 3 of the supporting affidavit, it is pertinent to reproduce the affidavit deposed to by the respondent as application in support of the motion ex-parte. Paragraphs 1-16 of the said affidavit reads as follows:
“1. That I am the applicant in this application.
2. That I sued the 2nd and 3rd respondents before the first respondent in case No. CVF1/I41/97.
3. That throughout the period of hearing of the said case up to the point of judgment, I was always present in court.
4. That I know as of fact that from the day this case was mentioned up to the day of judgment, the 1st respondent did not record the proceedings in this case.
5. That the proceedings in this case was recorded by one Mallam Musa at one occasion and also by one Mallam Sanni at the other occasion both of whom are clerks of the 1st respondent’s court.
6. That the evidence of PW1, PW2 and PW3 was recorded by the said Mallam Musa while the cross-examination of PW3 and the judgment was recorded by the said Mallam Sanni.
7. That the 1st respondent aforesaid did not consider part of the important evidence led by the PWI in the case due to the fact that he was not the person who recorded the proceedings.
8. That PW1 in his evidence aforesaid stated that my father told him before the latter’s death that I am his son delivered for him by a woman he married in Lagos.
9. That the 1st respondent did not avert his mind to the underlined portion of the evidence given by PW1 but restrict the consideration of the evidence to the aspect only that my father told PQ that I am his son and no more.
10. That I sued my other brothers 2nd & 3rd respondents, claiming the distribution of the Estate left by our father but the 2nd & 3rd respondents said they do not know me while I had been living with them and taking care of our father’s properties during his life time.
11. That I was delivered to my father who is a Lebanese by Nigerian mother who my father married in Lagos and later re-married to another Lebanese woman after the death of my mother.
12. That the 2nd & 3rd respondents are the product of the marriage between my father and the Lebanese woman while I am the product of the marriage between my father and the Nigeria woman.
13. That as a result of the purported judgment and proceedings of the 1st respondent aforesaid, the 2nd & 3rd respondents are now threatening to frustrate and forcefully eject me from my father’s house and properties.
14. That the 1st respondent completely lost track of the proceedings and the procedure adopted by him in the case.
15. That I undertake to abide by any condition this Honourable Court may impose for the purpose of granting this application.
16. That I swear to this Oath in good faith and in accordance with the Oaths Act, 1990, L.F.N.”
The 1st respondent now 1st appellant, Alhaji Jumare Jalalu of No. 1, Zaria, off Rigachukum Town of Igabi Local Government deposed to a five paragraphs counter-affidavit which reads as follows:
“1. That I read the two affidavits of one Dele Yusuf in support of both the ex-parte applications dated 26/01/98 and that in support of motion on notice dated 19th February, 1998.
2. That paragraphs 4, 5, 6, 7,8 and 9 of the affidavit dated 26th January, 1998 are false.
3. That paragraphs 4,5,6 and 7 of the affidavit dated 19th February, 1998 are false.
4. That I took full proceedings personally in respect of case No. CVF1/141/97 between Dele Yusuf Hajaig v. Hussain Yusuf Hajaig & 1 Other.
5. That I swear to this Oath in good faith and in accordance with Oaths Act, 1990.”
A nine paragraphs counter-affidavit was also deposed to by one Esther Ogunkola of Bida Street, Muchiya, Sabon Gari, Zaria, on behalf of the 2nd & 3rd respondents now 2nd & 3rd appellants.
The nine paragraphs counter-affidavit reads:
1. That I am the litigation secretary in the Chambers of Messrs Ja’afaru Abbas Ibrahim & Co., the solicitors of the 2nd & 3rd respondents and virtue of my duties and responsibilities to my employers, I am fully conversant with the facts of this case and I have my employer’s and the 2nd & 3rd respondents authorities and permission to depose to this affidavit.
2. That I know as a fact that my employers represented the 2nd & 3rd respondents throughout the entire proceedings at the Upper Area Court No.1, Zaria in suit No. CVF1/141/97 between the applicant and the 2nd & 3rd respondents before the 1st respondent.
3. That both Ja’afaru Abbas Ibrahim, Esq., and A. Y. Musa, Esq., both counsels who appeared in the case informed me and I verily believed as follows:
a. That throughout the trial period up to judgment, they were present in court.
b. That throughout the trial, the 1st respondent presided and recorded the entire proceedings at the Upper Area Court No.1, Zaria.
4. That the 2nd & 3rd respondents further informed me and I verily believed him that the applicant is not the legitimate son of late Yusuf Hajaig out of legal marriage under the Islamic law.
5. That my employer informed me and I verily believed them that the application by the applicant is essentially filed to waste time and is an abuse of the court’s process.
6. That I know the application is made so as to humiliate, ridicule and scandalize the 1st respondent simply because the applicant lost at the trial.
7. That my employers informed me and I verily believed them that Rabiu Abdulhamid, Esq., consistently appeared and represented the applicant throughout the trial. A translated copy of proceeding is herewith attached and marked as exhibit ‘1’.
8. That my employers informed me and I verily believed them that the application is made in bad faith.
9. That I swear to this affidavit conscientiously in good faith believing same to be true and correct according to my information believe and in accordance with Oaths Act, 1990.”
After the grant of the application of the applicant, now respondent, to call oral evidence by the trial Judge despite the opposition by the respondents, now appellants, the appellants still filed a motion on notice dated 22/3/99, filed the same date for the following prayers:
“1. An order setting aside the order granted Dele Yusuf Hajaig to adduce oral evidence in an application for judicial review to wit: Certiorari for lack of jurisdiction.
2. An order striking out the name of Attorney-General of Kaduna State, the 4th respondent due to lack of locus.
3. Struck out the substantive application for Certiorari for it constitutes an abuse of legal process and attempt to scandalize the Upper Area Court 1, Zaria and for lack of substance in the application for none strict compliance with Order 42.
4. Such further or other orders as the court may deem fit to make in the circumstance of this case.”
The 1st and 2nd appellants as respondents filed a notice of preliminary objection on the ground of incompetence and ground of law.
In his ruling dated 22/6/99, the learned trial Judge overruled and dismissed the preliminary objection. The motion on notice dated 22/3/99, was argued by counsel to the parties and in his ruling, the learned trial Judge held:
“This case is a fundamental one and as I said, it is one that could vitiate the proceedings, therefore, not one which the court can waive with a wave of the hand. It must be looked into.
The applicants, the 1st, 2nd and 3rd respondents have all deposed to an affidavit in which there is discrepancy on the main issue in dispute in the substantive suit. I still hold on to my ruling that there is no way the substantive matter in this matter can be resolved without calling for oral evidence.
It is the only way justice will be done, there is no other way out, therefore, this court cannot and have no alternative than to call for the oral evidence. The calling of the oral evidence is by no means varying or declaring void upon appeal or revision. It will only help the court in determining the substantive issue before it.”
Aggrieved with the ruling, the appellants who were the applicants appealed to this Honourable Court by their notice of appeal dated August, 1999 and filed on the 16/8/99 containing six grounds of appeal. The grounds of appeal without particulars read as follows:
“Ground one-error of law
The learned trial Judge erred in law when he allowed respondent to call for oral evidence in a suit commenced by way of judicial review for (certiorari) contrary to the provisions of Order 42 of the Kaduna State High Court (Civil Procedure) Rules.
Ground two-error of law
The learned trial Judge further erred in law that is in contravention of Order 42 rule 5(1) & (2) to have entertained the respondent’s application by motion instead of originating motion without leave either sought by the respondent or by the trial court granting leave suo motu, in consequence of which renders the entire proceedings void.
Ground three-error of law
Had the learned trial Judge adverted his mind to the proper import and the express wordings and of the cumulative effect of section 10(2)(b) of the Area Courts Law, 1968 together with Order 14(1) and Order 27(1), (2) & (3) of the Area Court (Civil Procedure) Rules, the trial Judge would have struck out the main application.
Ground four-error of law
In view of the fact that the substratum of the plaintiff/respondent’s complaint is the 1st defendant/respondent’s alleged none compliance with Order 13 rule 5 of the Area Courts (Civil Procedure) Rules, 1971 which if the learned trial Judge had properly adverted his mind to the provisions of section 61 of the Area Courts Edict, 1968 and the decision of the Supreme Court of Nigeria in Alhaji Dahiru Saude v. Alhaji Halliru Abdullahi (1989) 4 NWLR (Pt. 116) 387, (1989) 7 SCNJ 216 at 228 from lines 4 to 10 (As per lead judgment of Uwais, J.S.C. (as he then was), the learned trial Judge would not only have allowed oral evidence be called rather the main application ought to have been struck out.
Ground five-error of law
In view of the cumulative effects of sections 115, 132(1) and 150(1) of the Evidence Act Laws of the Federation, Cap. 112 together with the 5 paragraph counter-affidavit deposed to by the 1st defendant/respondent in person and ‘exhibit 1′, translated copy of proceedings of the Upper Area Court 1, Zaria the trial High Court, Zaria Division had no jurisdiction to not allow oral evidence but to entertain the whole action.
In view of the fact that the 1st defendant/respondent being a judicial officer and is made party, then the Attorney-General of Kaduna State has no business being joined as a party in this suit, for lack of any pecuniary interest directly or indirectly.”
Briefs of arguments were filed and exchanged between the parties in accordance with the rules of practice and procedure of this court.
When the appeal came up for hearing on 30/10/2002, counsel to the parties adopted and relied on their respective briefs.
At pages 3 – 4 of the appellants’ brief, three issues were formulated for the determination of this appeal and they are as follows:
“(a) Whether the respondent’s certiorari proceeding is sustainable in law, having regard to the combined effect of the provisions of Order 14(1) and Order 27(2)(3) of the Area Court (Civil Procedure) Rules, 1971 vis-a-vis section 10(2)(b) of the Area Court Law.
(b) Where someone other than the trial Upper Area Court Judge recorded the proceedings at the trial, whether the respondent’s silence is not caught by the doctrine of acquiescence and or laches.
(c) Whether any proceedings and or judgment of an Area Court can be quashed or set aside for contravening the provisions of Order 13 rule of the Area Courts (Civil Procedure) (Amendment) Rules, 1994 of Kaduna State in view of the provisions of section 61 of the Area Court Law of Kaduna State.”
The respondent in the respondent’s brief adopted issue (A) and (C) formulated by the appellants and states that issue (B) will be considered in isolation as an alternative to the preliminary objection.
The learned counsel for the respondent in the respondent’s brief raised preliminary objections to ground 2 of the appeal which does not emanate from the ruling of 5/8/99. He contended that neither was the issue complained of in ground 2 raised at the lower court and for that, learned counsel for the appellant urged the court to discountenance the said ground.
Learned counsel for the respondent further contended that ground of appeal No.4 is devoid of meaning and clarity while ground of appeal No.5 has not raised any complaint. Counsel to the respondent submitted in his objection that since no issue is formulated on grounds 2, 4, 5 and 6, they are therefore deemed abandoned citing the cases of A.-G., Kwara State & Ors. v. Olawale (1993) 1 NWLR (Pt. 272) 645, (1993) 1 SCNJ 208 at 218; Godwin v. CAC (1998) 14 NWLR (Pt. 584) 162, (1998) 12 SCNJ 213 at 225.
The appellants did not respond to the preliminary objections as they did not file a reply brief.
Where a party intends to rely upon a preliminary objection to the hearing of the appeal, he should follow the procedure stipulated in Order 3 rule 15(1) of the Court of Appeal Rules, 2002. It provides:
“15(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.”
Having ascertained that the respondent in the instant appeal did not comply with the provisions of Order 3 rule 15(1) of the rules of this court, I hold that the preliminary objection is incompetent and cannot therefore be entertained. The preliminary objection is therefore struck out. See the case of A.P.C. Ltd. v. N.D.I.C. (2002) 16 NWLR (Pt. 792) 106 at 114.
An issue for determination derives its support from the ground of appeal and cannot exist independent of the ground of appeal. It automatically collapses when the ground of appeal ceases to exist. See Fasoro & Ors. v. Beyioku & Ors. (1988) 2 NWLR (Pt. 76) 263; (1988) 1 NSCC 705 and Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546.
Order 6 rule 3(1) of the rules of this court requires that the brief of the appellant shall contain what are in the appellant’s view, the issues arising in the appeal, that does not mean that the appellant is free to put forward any issue unrelated to the grounds of appeal filed by him. Issues arising in the appeal must be issues arising out of the grounds of appeal for it is only such issues that can arise in the appeal. See Osinupebi v. Saibu (1982) 7 SC 104; Ugo v. Obiekwe & Anor. (1989) 1 NWLR (Pt. 99) 566 at 580 and Kari v. Ganaram (1997) 2 NWLR (Pt. 488) 380 at 394. From a careful examination of the grounds of appeal filed by the appellants, the issues formulated therefrom as well as the application dated 22/3/99, filed same date, it cannot be disputed that the issues formulated are unrelated to grounds of appeal, as a result, I hold that the issues are incompetent and should be struck out. It is also the law that a ground of appeal on which no issue for determination has been framed in the appellant’s brief of argument is deemed to have been abandoned and should be struck out. See Baridam v. State (1994) 1 NWLR (Pt. 320) 250 and Adigun v. Ayinde (1993) 8 NWLR (Pt. 313) 516. In effect, the six grounds of appeal on which no issues for determination have been framed by the appellants in the appellant’s brief of argument are deemed to have been abandoned and should be struck out.
In my view, the only proper issue that can be formulated in respect of the ruling is whether the grant of the application for calling oral evidence was right? Assuming that there is such a proper issue, I would have dismissed the appeal having regard to the reason given by the learned trial Judge in ordering for oral evidence contained in his ruling reproduced herein.
It is trite that an appellate lower court will not interfere with an exercise of discretion by a lower court simply because faced with a similar application, it would have exercised the discretion differently. See University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 156 at 163 and Worbi & Ors. v. Asamanyuah & Ors. 14 WACA 669 at 671. But it may do so on special circumstances such as when the direction was based on wrong or insufficient material or where no weight or insufficient weight was given relevant consideration or the tribunal acted under misconception of law or under misapprehension of fact and in all other cases where it is in the interest of justice to interfere. See Enekebe v. Enekebe & Anor. (1964) 1 All NLR 102.
In the result, having held that all the three issues formulated for determination are incompetent, they are hereby struck out. Consequently, the appeal is struck out. It is hereby ordered that the learned trial Judge should proceed to complete the hearing and determine the case as soon as possible, having regard to the delay suffered as a result of the appeal. I award costs assessed at N5,000.00 in favour of the respondent.
MAHMUD MOHAMMED, J.C.A.: I have had the opportunity before today of reading the judgment of my learned brother, Ba’aba, J.C.A. which has just been delivered. Having regard to the fact that the learned counsel to the appellants had decided in the appellants brief of argument to completely abandon the real appeal against the ruling of the trial court of 5/8/99 allowing the respondents in this appeal to call oral evidence in the course of the hearing of the substantive matter now pending at the trial court, to attack the substantive matter itself which is yet to be determined, this action of the learned counsel resulted in his formulating issues which are completely unrelated to the actual ruling of the trial court of 5/8/99 against which the appellants had actually appealed. This rather strange behaviour of the learned counsel to the appellants had led him into raising new or fresh issues which were never canvassed between the parties at the court below.
Unfortunately, the law does not allow him to do so without first seeking for and obtaining leave of court to raise such new or fresh issues. The result of this recklessness of course is to render the appeal incompetent and liable to be struck out as happened in a recent case of Salami v. Mohammed (2000) 9 NWLR (Pt. 673) 469, (2000) 6 SCNJ 281 at 288. See also the cases of Atoyebi v. Gov., Oyo State (1994) 5 NWLR (Pt. 344) 290, (1994) 5 SCNJ 62 and Kuusu v. Udom (1990) 2 SCNJ 43.
In the result, this appeal which has no single valid issue to support it must collapse. Accordingly, I entirely agree with my learned brother in the lead judgment that the appeal must be struck out. The appeal is therefore hereby struck out with N5,000 costs to the respondents.
JOSEPH JEREMIAH UMOREN, J.C.A.: I have read in advance the judgment of my learned brother, Baba Alkali Ba’aba, J.C.A., just delivered. I agree with his reasoning and conclusion that the appeal lacks merits and must be struck out. I abide by all other orders made in the lead judgment including order as to costs.
Appeal struck out.
Abdul Aliyu, Esq., (holding brief of J.A. Ibrahim, Esq.)For Appellant
Abdulhamid Rabiu, Esq.For Respondent