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NASARA v. ALARAMMA & ORS (2022)

NASARA v. ALARAMMA & ORS

(2022)LCN/17173(CA) 

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, March 03, 2022

CA/K/210/2020

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

BISHIR MAI NASARA APPELANT(S)

And

1. KABIR ALARAMMA 2. SAMINU MUHAMMAD 3. KABIR M. DAUDA RESPONDENT(S)

 

RATIO

THE JURISDICTION OF THE HIGH COURT TO HEAR AND DETERMINE ANY CIVIL PROCEEDINGS IN WHICH THE EXISTENCE OR LEGAL RIGHT IN ISSUE

Section 272(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) reads:
“272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil and criminal proceedings in this Section include a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.”
Furthermore, and in relation to this appeal, the 8th Edition of the Black’s Law Dictionary at page 837 gives a relevant meaning of interplead as (1) (of a claimant) to assert one’s own claim regarding property or an issue already before the Court.
PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision, ruling of the Katsina State High Court sitting at Funtua delivered by Hon. Justice Lawal Garba Abdulkadir on 13th August, 2020 in Suit No. KTN/FT/38/2018.

The Appellant as claimant in the Court below brought originating summons in respect of a judgment and ruling delivered on 29th day of July, 2015 and 3rd January, 2017 respectively by the Upper Sharia Court No.2 Funtua.

The Appellant’s originating summons was brought for the determination of the questions hereunder and consequential orders hereinafter:
1. “WHETHER the judgment debtor still retains ownership of the property situated and lying at Sokoto By-pass Dahiru Bauchi Road, Unguwar Wanzamai; Funtua. Attached and sold by the judgment creditor on 29th November, 2018 in fulfilment of the judgment of the Court. Against the judgment debtor.
2. If the answer to the above question is in the AFFIRMATIVE, a declaration that the judgment creditor cannot sell the property in question of the fulfillment of the judgment of the Court. Between the judgment creditor and the judgment debtor.
3. An order declaring the auction sale on 29th November, 2018 of the property in question as null and void and no effect whatsoever.
4. A consequential order directing the sheriff and/or his legal representatives and/or his staff to release forthwith any hold on the property in question.
5. And for such further orders as the Court may deem fit to make in the circumstance.”

Thereafter on 4/2/2019, Mr. Lawal Ahmadu Funtua of counsel to the 1st Respondent judgment creditor filed a notice of preliminary objection wherein he contends that the trial High Court lacks the requisite jurisdiction to hear and determine the suit.

The grounds of the 1st Respondent’s preliminary objection are as stated on page 14 of the Record of Appeal as follows:
1. “The Honourable Court lacks jurisdiction to hear and determine this suit in its original jurisdiction as provided under Section 272(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended (2011).
2. The Honourable Court lacks jurisdiction to hear and determine this suit by way of Originating Summons because the entire suit constitute the question of fact alone.
3. The Honourable Court lacks jurisdiction to hear this suit as there is no locus standi to institute this action against the Judgment Creditor.
4. The Honourable Court lacks jurisdiction to hear this suit for failure of the claimant to join the proper party to the suit.”

In a considered ruling delivered on 13-08-2020, the learned trial Judge upheld the 1st Respondent’s preliminary objection and declined jurisdiction to hear the Appellant’s originating summons. In ruling in favour of the 1st and 3rd Respondents, the learned trial Judge held inter alia first at page 75 of the Record of Appeal, that:
“Also, this Court in a Motion No. KTH/FT/230M/18 order the Judge and Members of USC No.2 Funtua to execute the judgment it delivered within one week from the day the order was issued on the 22nd November, 2018.
Going by the above, there was never a time when this Court sit in respect of the case filed and determined by the Upper Sharia Court No.2 Funtua.
It is the humble view of this Court that assuming supervisory jurisdiction by this Court does not mean to rob another Court of competent jurisdiction its own jurisdiction.”
Secondly, at page 76 of the Record of Appeal, that:
“The Claimant’s in this suit is by way of inter-pleader proceedings is urging this Court to descend and interfere with the execution of the judgment of Upper Sharia Court No. 2 Funtua in an application he ought to have file before the lower Court which this Court can only decide on its appellate jurisdiction which will be neater, tidier and better in the interest of justice.
In view of the above, this Court declined jurisdiction and resolve in favour of the 1st and 3rd defendants.
The suit is hereby struck-out for want of jurisdiction.”

Dissatisfied with the decision/ruling, the Appellant filed a Notice of Appeal containing two (2) grounds of appeal in this Court on 13-08-2020.

The relevant processes for the appeal are as follows:-
1. “Appellant’s brief of argument which was filed on 9/09/2020, it is settled by Lawal Amah Esq.
2. 1st and 3rd Respondents’ brief of argument together with Notice of Preliminary Objection filed on 7/10/2020. It is settled by Lawal Ahmadu Funtua Esq.

3. Appellant’s reply brief filed on 28/10/2020. It is settled by Lawal Amah Esq.”

The Preliminary Objection
The grounds and the arguments of the learned counsel for the 1st and 3rd Respondents can be summarised from his Notice of Preliminary Objection as follows:
1. “That ground one and two of the notice of appeal as contained at pages 77 – 78 of the record of appeal are grounds of fact or at most mixed law and fact that same are hereby incompetent as the leave of the lower Court nor this Honourable Court was not sought before the said Notice of Appeal was filed.
2. That the argument canvassed on these two grounds is incompetent.
3. Pursuant to the two issues above in paragraphs 1 and 2 and by virtue of Section 241 (1) and 242 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) with Fourth Alteration 2018. Leave of the lower Court or Court of Appeal ought to have been sought and obtained before filing of ground of mixed law and fact.
4. The representation of the counsel to the appellant is against the provision of Section 19(5) of the Rules of Professional Conduct for Legal Practitioners 2007.”


In his reply brief, learned counsel for the Appellant responded to the Respondents’ Preliminary Objection and submitted that the Preliminary Objection is misconceived and incompetent. That the learned counsel to the Respondent failed to appreciate that the Appellant’s grounds of appeal are issues of hard law both hinged on Section 272(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). And, that being the case, the Appellant is covered by the provision of Section 241 (1)(a) and (b) of the said Constitution. The Appellant said counsel does not require any leave to file the grounds of appeal. He referred to the case of Onah v. Messers Maduka Ent. Mgt Ltd (2007) All FWLR (Pt. 347) 759 at 765 and submitted that the two grounds of appeal are questioning the trial Court’s interpretation of Section 272(2) of the 1999 Constitution of the Federal Republic of Nigeria as amended. He added that this makes the two grounds of appeal grounds of law by virtue of Section 241(1)(b) of the Constitution.

On the issue of Rule 19(5) of the Rules of Professional Conduct for Legal Practitioners, he submitted that the fact that he appeared for the 2nd Respondent at the lower Court and the case was determined ends his contract with the 2nd Respondent.

Moreover, that counsel to the 1st and 3rd Respondents cannot accuse him (Appellant’s) counsel of infamous conduct as the 2nd Respondent whom he represented has not complained. He urged us to overrule the Respondents’ Preliminary Objection.

For ease of reference Appellant’s grounds 1 and 2 of the Notice of Appeal together with their particulars are reproduced below:
“GROUNDS OF APPEAL
GROUND 1
Error in law
The learned trial Judge erred in law when he decline jurisdiction to entertain the originating summons before him.
Particulars of Error
a. The provision of Section 272(2) of the 1999 Constitution as amended confers jurisdiction on his lordship to entertain the originating summons.
GROUND 2
The learned trial Judge erred in law by holding as follows:-
“….it is the humble view of this Court that assuming supervisory jurisdiction by this Court doesn’t mean to rob another Court of competent jurisdiction its own jurisdiction, because jurisdiction is the limits imposed on the power of a validly constituted Court…..”
Particulars of Error
a. The provision of Section 272(2) of the 1999 Constitution as amended are explicitly clear as it does not oust a Court of its jurisdiction.
b. The originating summons being an interpleader proceedings, the Court has the jurisdiction to entertain same.
c. The fact that the case does not originate from the High Court, it does not oust the Court of jurisdiction to entertain it.”

These grounds are clearly grounds of law and not of mixed law and facts as suggested by the learned counsel for the Respondents. That being the case, the Appellant’s grounds of appeal are covered by the provision of Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as ground of law which are appealable as of right and do not require any leave of Court. The allegation of breach of the provision of Rule 19(5) of the Rules of Professional Conduct by the learned counsel for the Respondents as against the learned counsel for the Appellant cannot be countenanced as the content of Rule 19(5) of the Rules of Professional Conduct require affidavit evidence and not mere ipse dixit allegation and would have been better presented before the Legal Practitioners Disciplinary Committee.

For these reasons, the Respondent’s Preliminary Objection is devoid of merit and it is accordingly overruled.

THE MAIN APPEAL
Learned counsel for the Appellant nominated one issue for determination of the appeal. It is:
“Whether the learned trial Judge was right to have declined jurisdiction, having regard to the provisions of Section 272(2) of the 1999 Constitution as amended.”

Learned counsel for the 1st and 3rd Respondents adopted the Appellant’s sole issue for the determination of the appeal.

Learned counsel for the Appellant submitted on the sole issue that by the provision of Section 272(2) of the 1999 Constitution (as amended), the lower Court has the requisite jurisdiction to entertain the suit. He submitted that the originating summons method of instituting an action at the lower Court was provided for under Order 3 Rule 1 of the Katsina State High Court (Civil Procedure) Rules 2007. He reasoned that the property of the Appellant who was not named in the writ of execution was attached in execution of the judgment in proceedings of which the Appellant was not a party.

Appellant’s counsel submitted that it is erroneous for the learned trial Judge to hold that assuming jurisdiction in the Appellant’s case before him amounts to robbing another Court of its own jurisdiction. Moreso, he submitted that the interpleader proceedings are separate and therefore clothes the lower Court with jurisdiction to entertain it.

He urged us to resolve the sole issue in favour of the Appellant.

On the sole issue, learned counsel for the Respondents submitted that the adjudicatory power/jurisdiction conferred on the High Court of a State by Section 272(2) of the Constitution of the Federal Republic of Nigeria (as amended) even though unlimited is not at large especially in this situation where a sale of a house was conducted by the Upper Sharia Court No.2 Funtua.

He submitted that any interpleader proceedings in respect of such sale shall be filed before the Upper Sharia Court No. 2 Funtua as the original jurisdiction of the lower Court is circumscribed. For this, he referred to the provision of Order 21 Rule 1 of the Sharia Courts (Civil Procedure) Rules 2008 of Katsina State which he said is in pari materia with Order VI Rule 9 Judgment (Enforcement) Rules, Rules of Court under Section 94 of the Sheriffs and Civil Process Act, Cap 56 LFN 2004. The rule states:
“Any person who claims that any property, whether movable or immovable, which has been attached is not liable to be sold in execution of a judgment debtor, may apply to the Court which issued the writ of attachment and sale for the issue of a summons calling upon the judgment creditor to appear before the Court on a date and at hour specified in the summons to show cause why the property should not be released from the attachment.”

Learned counsel for the Respondents submitted that the sale of the property was conducted by the Upper Sharia Court No. 2 Funtua, and therefore the lower Court has only appellate, review or supervisory jurisdiction under Section 272(2) of the Constitution and does not have original jurisdiction to entertain interpleaders summons on a property disposed by the Upper Sharia Court No. 2 Funtua.

He submitted that the lower Court was right when it held that the Appellant ought to have filed his application before the Upper Sharia Court No. 2 where the purported sale and attachment was conducted. That the High Court can only adjudicate in its appellate or supervisory jurisdiction and that the lower Court was right to have declined jurisdiction in the matter.

Learned counsel for the Respondent further referred to the provision of Order VI Rule 9 Judgment (Enforcement) Rules, Rules of Court under Section 94 of the Sheriffs and Civil Process Act, Cap 56 LFN 2004 which states that:
“Where the summons relate to any immovable property and the parties thereto other than the Sheriff are all parties ordinarily subject to the jurisdiction of a customary or area Court, the Court shall on the return day of the summons adjourn the hearing and stay execution for one month to enable the claimant to institute proceedings in the competent customary or area Court to establish as against the judgment creditor or plaintiff and debtor or defendant the right, title or interest on which his claim to have the property released from attachment is based.”

He reiterated that the provision of Section 272(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is applicable only by way of appeal or supervisory jurisdiction but not original jurisdiction against the proceedings of the Upper Sharia Court No.2 Funtua.

He concluded that interpleader proceedings are to be instituted in the Court where the execution, sale and attachment were conducted and the lower Court cannot entertain cases by its original jurisdiction where the action held at other Courts but by appeal or under supervisory powers.

He urged us to resolve the sole issue in favour of the 1st and 3rd Respondents.

Resolution of Sole Issue:
The sole question in this appeal involves an interpretation of the provisions of Section 272(1) and (2) which deal with the jurisdiction of the High Court of a State, the meaning and procedural requirements of interpleaders.

Section 272(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) reads:
“272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil and criminal proceedings in this Section include a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.”
Furthermore, and in relation to this appeal, the 8th Edition of the Black’s Law Dictionary at page 837 gives a relevant meaning of interplead as (1) (of a claimant) to assert one’s own claim regarding property or an issue already before the Court.
In the instant case, the Appellant was indeed not a party to the claims between the 1st and 3rd Respondents as Judgment Creditor and Judgment Debtor respectively which was determined to the stage of attachment, execution and sale by the Upper Area Court No.2 Funtua. It is therefore that same Court, that is the Upper Area Court No. 2 Funtua that possesses the original jurisdiction to entertain interpleader’s proceedings in relation to the suit settled by it between the 1st and 3rd Respondents. As pointed out by the lower Court and rightly too by the learned counsel to the Respondents the lower Court can only entertain appellate and/or supervisory jurisdiction on the interpleader’s proceedings of the Appellant since it is only the Upper Area Court No. 2 that retains original jurisdiction to entertain such interpleader’s summons.
The belief of the learned counsel for the Appellant that the High Court, that is the lower Court can entertain the interpleader’s intervention by dint of the fact that any originating summons could be filed in the lower Court is procedurally limited by the fact that an interpleader’s proceedings would only be entertained by the Court that adjudicated on the main or substantive proceeding which brought about the interpleader’s intervention.
In the instant case therefore, the original jurisdiction of the lower Court under Section 272 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) does not extend to interpleader’s application of suits or cases that were determined by the Upper Sharia Court.
Learned counsel for the Respondents rightly supported his arguments with the provision of Order 21 Rule 1 of the Sharia (Civil Procedure) Rules 2008 of Katsina State which is in pari materia with the provision of Order VI Rule 9 Judgment (Enforcement) Rules, Rules of Court, under Section 94 of the Sheriffs and Civil Process Act Cap 56 LFN 2004. The provision states thus:
“Any person who claims that any property, whether movable or immovable, which has been attached is not liable to be sold in execution of a judgment debtor, may apply to the Court which issued the writ of attachment and sale for the issue of a summons calling upon the Judgment creditor to appear before the Court on a date and at hour specified in the summons to show cause why the property should not be released from the attachment.”
In the circumstance, the learned trial Judge was right to have held at page 76 of the records that:
“The claimant in this suit is by way of interpleader proceedings is urging this Court to descend and interfere with the execution of the judgment of Upper Sharia Court No. 2 Funtua in an application he ought to have file (sic) filed before the lower Court which this Court can only decide on its appellate jurisdiction which will be neater, tidier and better in the interest of justice.
In view of the above, this Court declined jurisdiction and resolve in favour of the 1st and 3rd defendants. The suit is hereby struck out for want of jurisdiction.”

The only issue in this appeal is resolved against the Appellant. This appeal lacks merit and it is accordingly dismissed. N30,000 costs is awarded to the 1st and 3rd Respondents.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead judgment of my learned brother, Mojeed A. Owoade, JCA and I agree with his reasoning and conclusion that the appeal lacks merit. I too dismiss the appeal for lacking in merit and abide by the order as to cost.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, MOJEED A. OWOADE, JCA. I entirely agree with the reasoning and conclusion reached to the effect that there is no merit in the appeal and it is liable to be dismissed. I also dismiss the appeal. I abide by the order as to cost.

Appearances:

L. A. AMAH, ESQ. For Appellant(s)

DUTSE A. IBRAHIM, ESQ., HOLDING THE BRIEF OF LAWAL AHMADU FUNTUA, ESQ. For Respondent(s)