KASIM & ORS v. ABBAS & ANOR
(2020)LCN/14432(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Thursday, July 23, 2020
CA/K/137/12
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Between
1. NURA KASIM 2. RABIU KASIM 3. HASSAN KASIM 4. HUSSAINI KASIM 5. UWAIBA KASIM 6. AMINU KASIM 7. MUBARAK KASIM 8. ZAHARADDEEN KASIM 9. LIBABATU KASIM 10. HASSAN KASIM 11. HUSSAINI KASIM 12. AISHA KASIM APPELANT(S)
And
1. ENGR. GAMBO ABBAS 2. UPPER SHARIA COURT, DAURA ROAD, KADUNA RESPONDENT(S)
RATIO
WHETHER OR NOT THE LOWER COURT HAS A DUTY TO CONSIDER THE MERIT OR A PARTY’S APPLICATION FOR AN ORDER OF CERTIORARI
The lower Court had a duty to consider the merit or otherwise of the Appellants’ application for an order of certiorari. It was the heart and soul of the Appellants’ application. Looking at the judgment of the lower Court critically, it would seem that the Court saw in the issue of abuse of Court process an easy way out or a short cut to dispose of the matter before it. As stated by this Court in ISMAILA & ORS V CBN (2017) LPELR-43380 (CA), the Court is not to confine itself only to those issues it considers would dispose of a case. Every Court other than the Supreme Court has a duty to consider all the issues, if for nothing, in order that the relevant appellate Court can have the benefit of the view of a lower Court. Indeed it is the law that a Court must consider all issues before it except in the clearest of cases. Where a vital issue is raised and is ignored, the appellate Court will be right to hold that a miscarriage of justice as well as a breach of the right of fair hearing have occurred. See BRAWAL SHIPPING (NIG) LTD V. ONWADIKE CO. LTD (2000) 6 SCNJ 508 at 512; NYAWEN V. BADON & ORS (2016) LPELR-40825 (CA). By completely sidestepping considering the merit or otherwise of the issue of the application for an order of certiorari and sweeping it under the carpet of abuse of Court process, the lower Court occasioned a miscarriage of justice as it had failed to attain the ends of justice in the matter. PER DANIEL-KALIO, J.C.A.
OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): On 26/3/12, the High Court of Kaduna State (the lower Court) delivered a Ruling on an application for an order of Certorari to quash the decision of an Upper Sharia Court sitting at Daura Road, Kaduna. In a Motion on Notice dated 20/12/11 to which was attached an affidavit of urgency, statement in support made pursuant to Order 37 Rule 3 (2) (a) of the Kaduna State High Court (Civil Procedure) Rules, 2007 and Section 46 of the 1999 Constitution, verifying affidavit, written address in support of motion and exhibits, the Appellants as the applicants before the lower Court, prayed that Court for the following:-
1. An Order to remove to this Court for the purpose of being quashed the entire proceedings and decisions of the Honourable Judge Upper Sharia Court sitting at Daura Road Kaduna in suit No. USC/DR/153/2009 between Nura Kasim & 11 ORS v Engr. Gambo Abbas for the purpose of quashing the proceedings and the writ of attachment and sale of the Applicants’ deceased father’s property having not been conducted in accordance with the principle of natural justice and fair hearing as
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guaranteed by Section 36 of the 1999 Constitution of Nigeria.
2. An Order quashing the said proceedings of the 2nd Respondent on the basis that the applicants’ fundamental right to fair hearing guaranteed by Section 36 of the 1999 Constitution of Nigeria was violated by the 2nd Respondent.
3. And for such further or other order(s) as this Honourable Court may deem fit to make in the circumstances.
In the affidavit of urgency attached to their motion on notice, the applicants now the Appellants in this appeal, averred that they briefed the law firm of Z. Oche, Esq to file a law suit at the Upper Sharia Court Daura Road, Kaduna i.e. the 2nd Respondent, against the 1st respondent. They filed the suit as heirs of their late father’s property. They decided to file the suit after the 1st respondent upon the death of their late father, informed them that he owed their late father the sum of N404,000 and 750 bags of fertilizer. It was averred that before the matter could be heard by the 2nd Respondent, their counsel got to know that there was a suit No. USC/TW/KD/CF/483/08 between the same parties pending before the Upper Sharia Court, Tudun Wada.
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The said Counsel then filed an application in which he sought to persuade the 2nd respondent that it lacked jurisdiction to entertain the Appellants matter. The 2nd Respondent refused the application. It was further averred that the 2nd Respondent without hearing the case of the Appellants, proceeded to consider the counter-claim of the 1st Respondent and then gave judgment in his favor. It was averred that after the judgment, a Counsel who held brief for their Counsel, without informing them (the Appellants), filed a motion on notice dated 7/10/11 which is yet to be heard. It was averred that when the Appellants got to know about the judgment against them, they debriefed their former Counsel and briefed the law firm of Mamman Nasir & Co. It was averred that the 2nd Respondent without determining the motion on notice dated 7/10/11, issued a writ of attachment and sale of the property of the Appellants’ late father. The Appellants it was averred, filed an application dated 27/10/11 seeking to set aside the writ of attachment but the 2nd Respondent refused the application.
In a counter-affidavit dated 8/1/12, the 1st Respondent averred that judgment in
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suit No. USC/DR/153/2009 was delivered in his favor; that on 7/10/10, the Appellant’s Counsel filed an application for the payment of the judgment sum in his favour, in installments; that when the Appellant changed their Counsel, they abandoned that application and filed a Notice of Appeal at the Sharia Court of Appeal; that the Appellants did not prosecute the appeal and same was struck out on 12/10/11; that on 19/10/11 the Sharia Court of Appeal directed the Upper Sharia Court to execute its judgment; that on 27/10/11 the Appellants filed a motion to set aside the writ of attachment and sale of the property at No. 10 Faskari Road to which the 1st Respondent filed a counter-affidavit following which the Court dismissed the motion; that on 15/11/11 there was an application to sell the property with a notice published to auction the property within two weeks; that the Appellants rushed to the lower Court to frustrate the execution of the judgment of the Upper Sharia Court (2nd Respondent).
After considering the application for the Order of Certiorari, D. H. Khobo J, of the lower Court in his Ruling delivered on 26/3/12, held as follows:-
“It is clear
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from the documents filed in respect of this case that the applicants appealed against the decision of the 2nd respondent in this case to the SCA which appeal was struck out for lack of diligent prosecution by the SCA with a right to appeal by any aggrieved party to the Court of Appeal, Kaduna within 90 days from the date of the said Ruling.
In my view, the applicants ought to have applied to the SCA to have the appeal relisted or proceed to the Court of Appeal against the Ruling of the Sharia Court of Appeal and not to file an application for judicial review of the same 2nd respondent’s judgment before this Court. By implication, the applicants are seeking or asking this Court to review the decision of the SCA which this Court cannot do.
It is in the light of the foregoing that I find and hold that the applicants application before this Court for an order of judicial review of the entire proceedings and decision of the 2nd respondent which had earlier on been appealed against to the SCA and by the same applicants and which appeal was accordingly struck out for want of diligent prosecution amounts to an abuse of Court process which must be refused in
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the interest of justice.
Accordingly same is hereby refused for being an abuse of Court process and therefore, accordingly dismissed”.
Dissatisfied with the Ruling, the Appellants appealed against it on two grounds. The grounds, leaving out the particulars of the grounds, are the following-
GROUND ONE
1. The learned trial judge D.H. Khobo erred in law when he held that the certiorari application of the Appellant lacked merit.
GROUND TWO
The learned trial judge D.H. Khobo erred in law when he dismissed the suit of the Appellants without considering all the issues raised therein upon which the certiorari application was made.
The Appellants’ Brief of Argument was settled by M. B Alhassan, Esq. The 1st and 2nd Respondents did not file Briefs of Argument.
The Appellants’ learned Counsel distilled the following two issues from the two grounds of Appeal for this Court to consider and determine, viz:-
1. Whether the learned judge of the Court below erred and misdirected himself in law when he refused the Appellants’ application for certiorari without considering whether there was a violation of the Appellants’ right to
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fair hearing.
2. Whether having regard to the facts and circumstances of the case, the learned judge of the Court below erred in law when he dismissed the Appellants’ application for certiorari without considering all the issues raised therein on the ground that the Appellants’ application before the Court below is an abuse of Court process.
The above two issues are related and can be reformulated to read as follows:-
“whether the lower Court was right to have decided the application for an order of certiorari before it on the ground that it was an abuse of Court process without considering the merit of the application itself”
In arguing the issue, M.B. Alhassan, Esq. submitted that the lower Court erred and misdirected itself when it refused the application for an order of certiorari and in so doing, failed to consider whether there was a violation of the Appellants’ right to fair hearing. It was contended that the 2nd respondent in its decision, failed to comply with Order 10 Rule 1 and 2 of the Sharia Court (Civil Proceedings) Rules, 2010 which Order is aimed at ensuring fair hearing. He also referred to Order 11 Rules 5 and 6 of the same Rules
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He submitted that Rules of Court must be obeyed, citing the case of MV “ARABELLA” V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 5 SCNJ 109 at 120. Further, the Learned Counsel relied on Section 36 (1) of the 1999 Constitution. It was submitted that there was no abuse of Court process by the Appellants since according to learned Counsel, there was no pending appeal.
The 1st and 2nd Respondents did not file Briefs of Argument.
I have looked very carefully at the Ruling of the lower Court and it is obvious that the lower Court did not consider the issue of the merit or otherwise of granting the order of certiorari sought by the Appellants. Instead, the lower Court decided that the application was an abuse of Court process and consequently, dismissed it. The lower Court had a duty to consider the merit or otherwise of the Appellants’ application for an order of certiorari. It was the heart and soul of the Appellants’ application. Looking at the judgment of the lower Court critically, it would seem that the Court saw in the issue of abuse of Court process an easy way out or a short cut to dispose of the matter before it. As stated by
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this Court in ISMAILA & ORS V CBN (2017) LPELR-43380 (CA), the Court is not to confine itself only to those issues it considers would dispose of a case. Every Court other than the Supreme Court has a duty to consider all the issues, if for nothing, in order that the relevant appellate Court can have the benefit of the view of a lower Court. Indeed it is the law that a Court must consider all issues before it except in the clearest of cases. Where a vital issue is raised and is ignored, the appellate Court will be right to hold that a miscarriage of justice as well as a breach of the right of fair hearing have occurred. See BRAWAL SHIPPING (NIG) LTD V. ONWADIKE CO. LTD (2000) 6 SCNJ 508 at 512; NYAWEN V. BADON & ORS (2016) LPELR-40825 (CA). By completely sidestepping considering the merit or otherwise of the issue of the application for an order of certiorari and sweeping it under the carpet of abuse of Court process, the lower Court occasioned a miscarriage of justice as it had failed to attain the ends of justice in the matter. I therefore find that the appeal has merit. The Ruling of the lower Court is hereby set aside. The Chief Judge of the High
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Court of Kaduna State shall reassign the application to another Judge to decide same on the merits. Considering the age of the case, it is directed that the application before the new Judge be given an accelerated hearing. I shall make no order as to costs.
HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, Obietonbara O. Daniel-Kalio, J.C.A. I agree entirely with the reasons therein and the conclusion that the appeal has merit and should be allowed. I subscribe to the consequential orders made therein.
SAIDU TANKO HUSAINI, J.C.A.: I too agree with the reasoning and conclusion in the lead Judgment that this appeal has considerable merit and same ought to succeed.
The Court below has a duty to consider and make pronouncements on all material issues brought before it. Failure to discharge this duty will occasion a miscarriage of Justice as done in this case on appeal by the failure of the Court below to consider the application before it, for an order of certiorari, to remove, for the purpose of being quashed, the proceedings before the Upper Sharia Court, among other reliefs sought. The appeal is
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allowed and the Ruling appealed against is hereby set aside. I also abide by the other orders contained in the lead Judgment delivered by my Lord, Obietonbara O. Daniel- Kalio, JCA.
Ordered accordingly.
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Appearances:
B. ALHASSAN, ESQ. For Appellant(s)
1st Respondent not represented
2nd Respondent not represented For Respondent(s)
