SULEJA & ORS v. JIBRIN (2022)

SULEJA & ORS v. JIBRIN

(2022)LCN/16403(CA)

In The Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, July 08, 2022

CA/A/838/2019

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

1. ALH. IDRIS MADAKI SULEJA 2. ALH. JIBRIN SALIHU NOMA 3. ALH. ASSAN S. NOMA 4. PASTOR BARNABAS BALOGUN APPELANT(S)

And

MALLAM MOHAMMED BELLO JIBRIN RESPONDENT(S)

RATIO

WHETHER OR NOT A NOTICE OF APPEAL IS AN ORIGINATING PROCESS

WHETHER OR NOT AN APPELLANT CAN BY A MERE NOTICE OF APPEAL IMPOSE ON A RESPONDENT THE COUNSEL WHO REPRESENTED HIM AT A LOWER COURT AS HIS COUNSEL FOR THE APPEAL

Now, it is true that an Appellant cannot by a mere ‘Notice of Appeal” impose on a Respondent the counsel who represented him at the lower Court as his counsel for the appeal, that choice belongs entirely to the Respondent and cannot be curtailed under the guise of any subterfuge by an Appellant and therefore, a Notice of Appeal must be personally served on the Respondent to be competent. See Ihedioha & Ors V. Okorocha & Anor (2016) 1 NWLR (Pt. 1492) 147, where the Supreme Court had pronounced inter alia thus:
“A Notice of Appeal being an originating process, is fundamental to jurisdiction and must be served personally on the respondents unless otherwise directed or ordered by the Court or exempted by the provisions of the law. If a Notice of Appeal is not served on the parties affected as respondents to the appeal, the appellate Court cannot assume jurisdiction over the appeal.”
See also Adegbola V. Osiyi & Ors (2017) LPELR-42471 (SC), where the Supreme Court had opined inter alia thus: “The Notice of Appeal is the foundation of the appeal, non-service of the notice if established, goes to the root of the appeal. The defect is not a mere irregularity as being fundamental, it robs the appellate Court the jurisdiction to hear and determine the appeal…service of an originating process, which is the Notice of Appeal, is a sine qua non for a Court to assume jurisdiction over a case.” PER GEORGEWILL, JC.A.

WHETHER OR NOT EVERY NOTICE OF APPEAL MUST BE PERSONALLY SERVED ON H RESPONDENT

Now, by Order 2 Rule 1 of the Court of Appeal Rules 2021. it is provided thus:
“Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; Provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.”
By virtue of the above Order, being the extant Rules of this Court 2021, which being the procedural law is the applicable law as opposed to Order 2 Rules 6 of the Court of the Appeal Rules 2016, already repealed and no longer governing proceedings in this Court, unlike in substantive law in which the applicable law is the law at the time the cause of action arose. I hold that by Order 2 Rule 1 of the Court of Appeal Rules 2021, once the Notice of Appeal has in fact been communicated to the Respondent, as in the instant appeal by Order of substituted service duly granted by this Court and which was not denied by the Respondent, it is sufficient and no objection shall be sustained that the Notice of Appeal was not served personally. The extant Rule of this Court accords with the nowadays requirement for substantial justice taking priority of place over and above mere technicalities in our Courts and in the due administration of justice. In T. M. Lewin (Nig) Ltd. V. Smart Mark Ltd (2017) LPELR-43136 (CA), this Court per Sir Biobele Abraham Georgcwill, JCA had stated inter alia thus:
“There is no doubt that adherence to technical justice may still have its adherents and apostles, but the era of technical justice is long gone in our Courts. Now substantial justice is King! I choose to do substantial justice in this appeal to the parties”
See also Omisore V. Aregbesola (2015) 246 LRCN 44 (a pp. 105-106; Surakatu V. Nigerian Housing Development Society Ltd. 1984 4 SC 26; Odi V. Osafile (1987) 2 NWLR (Pt. 57) 510. PER GEORGEWILL, JC.A.

THE LEGAL MAXIM DE MINIMIS NON CURAT LEX

Nowadays. Courts of law do not concern themselves with trifles but with the substance and justice of the case which are weightier matters. Thus, wrong date of judgment alone is not of such a serious nature that should bug down the Court and be allowed to become a clog in the wheels of rendering substantial justice to the parties, more so when the judgment was delivered in the open Court and in the presence of counsel to the parties. The long – accepted Latin maxim is ’de minimis non curat lex.’ In Nigeria jurisprudence of today, substantial justice is king as was so admirably demonstrated by the Supreme Court in 1981. when its earlier decision in Adis Ababa V. Adeyemi (1976) 12 SC 51 was overruled by its decision in Nofi Surakat V. Nigeria Development Society Ltd & Anor (1981) 4 SC. 26. See also Jeric Nigeria Ltd V. Union Bank Nig Plc. (2000) 15 NWLR (Pt. 691) 477; African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2018) LPELR-46184 (CA) per Sir Biobele Abraham Georgewill JCA; Chief Adcbisi Adegbuyi V. All Progressives Congress & Ors (2013) LPELR-22799 (CA). PER GEORGEWILL, JC.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Niger State written by Ahmed A. Bima J on 14/6/2019 in Suit No. NSIIC/SD/121/2017: Mallam Mohammed Bello Jibrin V. Alh. Idris Madaki Suleja & Ors, but delivered by Ishaku Usman J. on 18/7/2019. The claims of the Respondent as Claimant were granted against the Appellants as Defendants.

The Notice of Appeal was filed on 22/7/2019 on six grounds of appeal. See pages 129-133 of the Record of Appeal. The Amended Notice of Appeal was filed on 22/1/2021 on six grounds of appeal but was deemed as properly filed on 11/10/2021. The Record of Appeal was compiled and transmitted to this Court on 19/9/2019. The Parties filed and exchanged their briefs, which were adopted as their arguments at the hearing of this appeal on 9/5/2022. The Appellants were represented by J. T. Ndubizu Esq. appearing with Ezekiel Ohwobeno Esq. The Respondent was represented by Mohammed Ndarani Mohammed SAN appearing with Michael Eleyinmi Esq. and Seidu Alla Esq.

By a Writ of Summons along with Statement of Claim filed on 19/12/2017 before the lower Court, the Respondent as Claimant claimed against the Appellants as Defendants the following reliefs, namely:
1. A Declaration that the Plaintiff is the owner of all that piece of farmland bounded by the land of Hassan Leda’s family, and Government Forestry down to the River Bank where there are some Mango and Palm Trees planted by the Plaintiff’s late Uncle, the Land then goes to an old cashew tree planted by plaintiff’s late Uncle and on to the top of Payada Hill, where there are trees such as Marke, baoba tree (Kuka tree) and some cashew trees planted by Plaintiff’s late Uncle and from there down to the boundary with Hassan Leda’s family Land, the land the 1st-3rd Defendants sold to the 4th Defendant, on which the 4th Defendant built a Church (Place of Worship) inclusive.
2. A Declaration that the Defendants trespassed and encroached into part of Plaintiff’s farmland, the 1st-3rd Defendants having sold same to the 4th Defendant.
3. An Order of perpetual injunction restraining the Defendants either acting by themselves or through their agents and Privies, from committing further trespass and encroachment into the aforesaid Plaintiff’s farmland situate at Near Forestry, Behind Ladi Kwali Pottery Centre Kantoma Area, Suleja, Niger State.
4. A Declaration that the purported sale of part of plaintiff’s farmland to the 4th Defendant by the 1st-3rd Defendant is null and void.
5. The sum of N50,000,000.00 as general damages against the Defendants. See pages 1-11 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The case of the Respondent as Claimant before the lower Court as can be seen from the averments in his pleadings and evidence led as in the Record inter alia was that he is the owner of land situate behind Ladi Kwali Pottery Centre. Kantoma Area, Suleja, Niger State and that the land was given to his late uncle, one Mallam Abdullahi Kuspa, Zaria, as a gift by the then Emir of Suleja, Late Alhaji Ibrahim Dodo Musa. However, the Respondent and his uncle were the first to deforest the land in dispute and put it into cultivation, and after the death of his uncle he continued to farm on the said land and he has since been in undisturbed and unencumbered possession thereof until in 2011 when the 1st-3rd Appellants sold part of the land to the 4th Appellant. In 2013 the 3rd Appellant sold more portions of the said land to the 4th Appellant, who proceeded to build a Church thereon despite the protestations by the Respondent. However, upon intervention by one Mallam Adamu Tanimu, the Dagaci to whom the Respondent reported the matter, the 4th Appellant on realizing that the land belongs to the Respondent offered him N200,000.00 in the house of one Abubakar Hassan Leda as settlement for the land but the Respondent rejected the offer. The Respondent had customary tenants on the said land who used to pay tributes of farm produce to him. including. Danjuma Jega. Musa Akoshi Koro. Mr. Amadi and Tunde Dauda.

The case of the 1st-3rd Appellants as 1st-3rd Defendants before the lower Court as can be seen from the averments in their pleadings and evidence as in the Record of Appeal inter alia was that they are the children of one late Alhaji Salihu Madallah of Dawaki, Suleja, the owner of the land in dispute by inheritance from his own father, he’s one Nuhn Ibrahim, the original owner and first person to deforest same. However, during his lifetime one Mallam Abdullahi Zaria pleaded with him to allow him stay and farm on a small portion of the land, which he obliged and the Respondent later came and joined him on the farmland. Sometimes in 2008, some land speculators sold part of the land to 4th Appellant, who later went and settled with 1st-3rd Appellants, as the real owners of the land. The 4th Appellant later built a Church thereon, where the Respondent became one of the laborers who worked on the 4th Appellant’s project and upon the completion thereof, he was employed as a security man for the 4th Appellant’s Church. However, the Respondent was later relieved of his job as a security man and he vowed to make life unbearable for the 4th Appellant on the said land.

The parties filed and exchanged pleadings and the matter proceeded to trial before Ahmed A. Bima J, who heard the matter from 9/2/2018 to its conclusion on 22/3/2019, when the final written addresses of the parties were duly adopted by their counsel. At the trial, the Respondent as Claimant called five witnesses, who testified as PW1. PW2. PW3, PW4 and PW5 and tendered some documents which were admitted in evidence as Exhibits. The Appellants as Defendants called four witnesses who testified as DW1, DW2, DW3 and DW4 and tendered some documents which were admitted in evidence as Exhibits.

On 22/3/2019. the matter was adjourned by Ahmed A. Bima CJ. the trial Chief Judge, to 15 5/2019 for judgment, but the judgment was not delivered until when the trial Chief Judge retired as Judicial Officer on 14/6/2019. However, on 18/7/2019, a serving Judge of the lower Court. Ishaku Usman J, proceeded to deliver the judgment of the lower Court written and signed by the trial Chief Judge who had since retired from Judicial Services on 14/6/2019. The lower Court in the said judgment granted the claims of the Respondent against the Appellants, hence this appeal. See pages 139-150, 151, 152-159 and 129-133 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellants’ brief, two issues were distilled as arising for determination from the six grounds of appeal, to wit:
1. Whether Hon. Justice Ishaku Usman can lawfully deliver or read a judgment written by Hon. Justice Ahmed A. Bima after he has retired as a Judge of the High Court of Niger State and ceased to be a Judicial Officer? (Distilled from Ground 1)
2. Whether the lower Court was right in holding that the Respondent successfully proved his ease before it? (Distilled from Ground 2)

In the Respondent’s brief, two issues were also distilled as arising for determination in this appeal, to wit:
1. Whether one Judge can read the judgment written by a fellow Judge of the same Court who is not available to do so?
2. Whether the lower Court was right in holding that the Respondent successfully proved his case before it?

My lords, I have taken time to review the pleadings and the evidence led by the parties as in the Record of Appeal. I have also taken time to consider the circumstances surrounding and leading to the delivery of the judgment of the lower Court appealed against. I have further considered the submissions of counsel in the light of the findings in the judgment appealed against and it is my humble view that the two issues for determination as distilled in the Appellants’ brief best represent the apt issues for determination in the appeal a consideration of which would, in my view, involve a consideration of the similar two issues as distilled in the Respondent’s brief. But first there is a preliminary objection challenging the competence of the Notice of Appeal, which being in the nature of jurisdictional issue must be considered and resolved first one way or the other before if need be the merit of the substantive appeal is considered and resolved in this judgment.

NOTICE OF PRELIMINARY OBJECTION
By a Notice of Preliminary Objection, the Respondent is challenging the competence of the Notice of Appeal for being incompetent and thus, liable to be dismissed and/or struck out on the ground that the Appellant failed to endorse therein the names and addresses of the parties directly affected by the appeal and further that the names of the parties were completely altered from the names of the parties as contained in the judgment of the lower Court.

RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions, which I have taken time to review, learned counsel for the Respondent had submitted inter alia that the Notice of Appeal filed contravenes the express provision of the Rules of this Court in that it does not contain the personal names and addresses of the respective parties to the appeal but contained only those of their counsel and contended that in such a Notice of Appeal is incurably defective and thus liable to be struck out and urged the Court to so hold and to strike out the Notice of Appeal for being incompetent. Counsel referred to Order 7 Rule 6 of the Court of Appeal Rules 2016, and relied on Odey V. Alaga (2021) 12 NWLR (Pt. 1792) 1.

It was further submitted that there was nowhere on the face of the Notice of Appeal where the personal names and addresses for service of the Notice of Appeal were endorsed as required by the Rules of this Court and contended that this failure breaches the requirement for personal service of the Notice of Appeal on the Respondent and contended that the failure to so endorse the addresses for service rendered the Notice of Appeal incurably defective and thus, liable to be struck out and urged the Court to so hold and to strike out the Notice of Appeal for being incompetent. Counsel relied on Adeniran V. Olusokun ll (2019) 8 NWLR (Pt. 1673) 98 at p. 102; Bestman V. Whyte (2020) 6 NWLR (Pt. 1719) 136 at p. 140; Ihedioha & Ors V. Okorocha & Ors (2020) 6 WRN 134 SC 147 at pp. 148- 149.

APPELLANTS’ COUNSEL SUBMISSIONS
In his submissions, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that by the leave of this Court the original Notice of Appeal was amended and a duly Amended Notice of Appeal was filed on 22/1/2021 and was deemed as properly amended and served on 11/10/2021 and contended in the circumstances the Notice of Preliminary Objection based on gross misrepresentation was grossly misconceived and urged the Court to so hold and to dismiss the preliminary objection for lacking in merit.

It was also submitted that under the extant Rules of this Court 2021, as distinct from the former Order 2 Rules 6 of the Court of Appeal Rules 2016 under which the authorities relied upon by the Respondent were decided, the preliminary objection by the Respondent was unfounded and baseless in that by the Amended Notice of Appeal on which the Respondent’s brief was based the Respondent’s address for service were visibly endorsed thereon and contended that under the extant Rules of this Court 2021. where the Notice of Appeal has in fact been communicated to the Respondent, as in the instant appeal by Order of substituted service duly granted by this Court and which was not denied by the Respondent, it is sufficient and no objection shall be sustained that the Notice of Appeal was not served personally and urged the Court to so hold and to dismiss the Notice of Preliminary Objection for lacking in merit, baseless and misconceived and to proceed to determine the appeal on its own merit and eschew mere technicalities and to render substantial justice to the parties in this appeal. Counsel referred to Order 2 Rule 1 (a) & (b) of the Court of Appeal Rules 2021. and relied on Omisore V. Aregbesola (2015) 246 LRCN 44 (d) pp. 105 – 106.

RESOLUTION OF PRELIMINARY OBJECTION
My lords, the primacy or should I say, the primary place of service of process, more particularly, originating process in the adjudicatory process cannot be overemphasized. It is a cardinal requirement of our procedural law that has dovetailed over the years into threshold issue of jurisdiction and competence. Thus, without service, proper service at that, where service of process is required, any proceeding founded thereon is a nullity.

In appellate litigation, the Notice of Appeal is indisputably the originating process. Its service personally on all the parties directly affected by the appeal is sine quo non unless there is an Order of Court for substituted service of the Notice of Appeal. It follows therefore, failure to serve a Notice of Appeal on a party directly affected by the appeal is fatal and would render any proceedings founded thereon a nullity. See Order 2 Rule 2 of the Court of Appeal Rules 2021. See alsoDr. Mrs. Grace Martins V. Ann J. Solomon & Ors (2022-05) Legal – Pedia 38152 (CA) per Sir Biobele Abraham Georgewill, JCA; NUT Taraba State V. Habu (2018) 15 NWLR (Pt. 1642) 381 at pp. 393-394; Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 at pp. 176-177.
I have taken time to go through the entire Record of Appeal in the light of the two basic grounds of the preliminary objection and considered the submissions of counsel for the parties. It is the contention of the Respondent firstly that the names of the parties to the suit before the lower Court were unilaterally altered by the Appellants in the Notice of Appeal, secondly that the personal names and addresses of the parties, particularly the Respondent was not endorsed as required by the Rules of this Court and thereby rendered the Notice of Appeal incompetent.
Now, it is true that an Appellant cannot by a mere ‘Notice of Appeal” impose on a Respondent the counsel who represented him at the lower Court as his counsel for the appeal, that choice belongs entirely to the Respondent and cannot be curtailed under the guise of any subterfuge by an Appellant and therefore, a Notice of Appeal must be personally served on the Respondent to be competent. See Ihedioha & Ors V. Okorocha & Anor (2016) 1 NWLR (Pt. 1492) 147, where the Supreme Court had pronounced inter alia thus:
“A Notice of Appeal being an originating process, is fundamental to jurisdiction and must be served personally on the respondents unless otherwise directed or ordered by the Court or exempted by the provisions of the law. If a Notice of Appeal is not served on the parties affected as respondents to the appeal, the appellate Court cannot assume jurisdiction over the appeal.”
See also Adegbola V. Osiyi & Ors (2017) LPELR-42471 (SC), where the Supreme Court had opined inter alia thus:

“The Notice of Appeal is the foundation of the appeal, non-service of the notice if established, goes to the root of the appeal. The defect is not a mere irregularity as being fundamental, it robs the appellate Court the jurisdiction to hear and determine the appeal…service of an originating process, which is the Notice of Appeal, is a sine qua non for a Court to assume jurisdiction over a case.”

It follows therefore, if this Court comes to the finding that an original Notice of Appeal is incompetent, then that would be the end of the appeal and there would be no need for the Court to dissipate energy on whether it could be amended or not. In law, an incompetent originating process cannot subsequently be amended to render it competent, since one cannot put something on nothing and expect it to stand. No! it would definitely collapse like a pack of cards! See Macfoy V. UAC Ltd. (1962) 1 AC 100 at p. 160. See also Pa Suraj Jinadu & Ors V. Alhaji Oba Yushau Goriola Oseni (Oniba of Iba) & Anor (2021) LPELR-54547(CA) per Sir Biobele Abraham Georgewill JCA; Babatope & Ors V. Sadiku & Anor(2017) LPELR-41966 (CA) per Biobele Abraham Georgewill, JCA a pp. 10-14.

However, unless and until the Court has arrived at the finding that a Notice of Appeal is incompetent, earlier decisions on the legal consequences of an incompetent Notice of Appeal on an appeal will not be apposite. This is so because in law a case is only an authority for what it decides and therefore, cannot be plucked by hair to be imposed on facts which are completely and entirely different from the facts in the earlier decided case. See Adegoke Motors Limited V. Dr. Babatunde Adesanya & Anor (1989) LPELR-94 (SC) at pages 5-6, where the Supreme Court per Oputa JSC (God bless his soul) had stated iner alia thus:
“It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court unnecessary isolation from the facts and surrounding circumstances those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are ratio decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts.”

Now, in the instant appeal the addition of the name of a party, in addition to the names of the parties on record before the lower Court, in a Notice of Appeal does not and cannot, in law render the Notice of Appeal incurably defective, and such a Notice of Appeal being not incurably defective can be validly amended with the leave to this Court. In the instant appeal, the original Notice of Appeal, in which there was endorsed the name of a person who was not a party to the suit on the record before the lower Court, in addition to the names of the proper parties on record before the lower Court, was with the leave of this Court duly amended to reflect only the proper parties on record, which duly Amended Notice of Appeal was filed on 22/1/2021 and was deemed as properly amended on 11/10/2021.
In law, an amended notice relates back to the date of the original process thereby amended, and therefore, the original Notice of Appeal having been duly amended, what stood before this Court at the hearing of this appeal was the Amended Notice of Appeal in which the names of the parties as in the record before the lower Court were thereon endorsed. In the circumstances therefore, the Respondent’s Notice of Preliminary Objection was both belated and lacking in merit on the first ground of objection and it is hereby overruled on this ground.

In the same token, since the second ground of preliminary objection was not that the Respondent was not duly served with the Notice of Appeal, having been duly served pursuant to the leave of this Court by means of substituted service, the objection that the name and address of the Respondent was not endorsed on the original Notice of Appeal for the purposes of ensuring personal service on the Respondent has become a spent objection and non sequitur. This is because, the Respondent had not only been duly served as ordered by this Court by means of substituted service, the name and address of the Respondent were not only clearly endorsed on both the original Notice of Appeal and the Amended Notice of Appeal but in addition they were endorsed exactly as the Respondent had endorsed as his address for service on his Writ of Summons before the lower Court. See pages 2, 11, 136A and 136B of the Record of Appeal.

Now, by Order 2 Rule 1 of the Court of Appeal Rules 2021. it is provided thus:
“Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; Provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.”
By virtue of the above Order, being the extant Rules of this Court 2021, which being the procedural law is the applicable law as opposed to Order 2 Rules 6 of the Court of the Appeal Rules 2016, already repealed and no longer governing proceedings in this Court, unlike in substantive law in which the applicable law is the law at the time the cause of action arose. I hold that by Order 2 Rule 1 of the Court of Appeal Rules 2021, once the Notice of Appeal has in fact been communicated to the Respondent, as in the instant appeal by Order of substituted service duly granted by this Court and which was not denied by the Respondent, it is sufficient and no objection shall be sustained that the Notice of Appeal was not served personally. The extant Rule of this Court accords with the nowadays requirement for substantial justice taking priority of place over and above mere technicalities in our Courts and in the due administration of justice. In T. M. Lewin (Nig) Ltd. V. Smart Mark Ltd (2017) LPELR-43136 (CA), this Court per Sir Biobele Abraham Georgcwill, JCA had stated inter alia thus:
“There is no doubt that adherence to technical justice may still have its adherents and apostles, but the era of technical justice is long gone in our Courts. Now substantial justice is King! I choose to do substantial justice in this appeal to the parties”
See also Omisore V. Aregbesola (2015) 246 LRCN 44 (a pp. 105-106; Surakatu V. Nigerian Housing Development Society Ltd. 1984 4 SC 26; Odi V. Osafile (1987) 2 NWLR (Pt. 57) 510

In the light of all I have found and stated above. I hold that the Notice of Preliminary Objection lacks merit and it is consequently, hereby dismissed. I shall proceed anon to resolve the two issues for determination and seriatim, commencing with issue one.

ISSUE ONE
Whether Hon. Justice Ishaku Usman can lawfully deliver or read a judgment written by Hon. Justice Ahmed A. Bima after he has retired as a Judge of the High Court of Niger State and ceased to be a Judicial Officer?

APPELLANTS’ COUNSEL SUBMISSIONS
In his submissions on issue one, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that there is no law or legislation whatsoever authorizing or permitting a High Court Judge to deliver the written judgment of another High Court Judge who has at the time, retired as a Judge and no longer a judicial officer and contended that by the applicable law, a Judge of the lower Court is statutorily incompetent to deliver judgment in a case conducted and heard by another Judge and urged the Court to hold that the judgment of the lower Court written by one Judge but delivered by another Judge after the retirement of the Judge who wrote it was a nullity and to allow the appeal and set aside the judgment of the lower Court for being null and void. Counsel referred to Section 80 of High Court Law, Cap 53, Laws of Niger State, Order 35 Rule 2 of the High Court of Niger State (Civil Procedure) Rules 2018. and relied on Wulge V. Olayinka, (2017) LPELR-43356 (CA); Shafiu Shuaibu V. State, (2019) LPELR-46688 (CA).

RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on issue one, which I have taken time to review, learned counsel for the Respondent had submitted inter alia that in law for the interest of justice, a judgment duly written and signed by a Judge of the High Court can validly be delivered by another Judge of same Court if the Judge who wrote the judgment is unable to deliver it due to unavoidable circumstances and contended that from the facts and circumstances of this appeal in which the Judge who heard the matter had not only written but had also dated and signed the said judgment before his retirement, the delivery of the already written, dated and signed judgment by a serving Judge of the same Court was valid and urged the Court to so hold and in the interest of substantial judgment validate the said judgment by dismissing the appeal for lacking in substantial justice and merit and to affirm the sound judgment of the lower Court. Counsel relied on AGF V. ANPP & Ors (2003) 15 NWLR (Pt. 844) 600 at pp. 658-659; Ondo State Development & Property Co. V. Ajanaku (2020) LPELR-51468 (CA); Shafiu Shuaibu V. The State (2019) LPELR-46688(CA); Wulge V. Olayinka & Ors (2017) LPELR-43356(CA)

It was also submitted that the judgment of the lower Court written by the Retired Chief Judge on 14/6/2019, the very date of his retirement was valid and contended that in law its being delivered by another serving Judge of the same Court did not render it invalid or one delivered without jurisdiction as erroneously contended by the Appellants and urged the Court to hold that in deserving circumstances another Judge of the same Court can validly deliver the judgment written by a brother Judge without it giving rise to the issue of incompetence since the crucial date to be reckoned with is the date on which the judgment was delivered and not merely the date on which it was delivered and to dismiss the appeal for lacking in merit and affirm the valid and sound judgment of the lower Court. Counsel relied on Ondo State Development & Property Corporation V. Ajanaku (2020) LPELR-51468 (CA); I.P.C (Nig) Ltd V. NNPC (2015) LPELR-24652 (CA); Wulge V Olayinka (2017) LPELR-43356 (CA); Shuaibu V. State (2019) LPELR-46688 (CA); Edibi V. The State (2009) LPELR-8702 (CA).

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply submissions, which I have taken time to review, learned counsel for the Appellants had submitted inter alia that in law the ability or competence of a High Court Judge to deliver or read the judgment written by another High Court Judge lasts or subsists only as long as the other Judge who wrote the judgment remained in the service of that same Court, and contended that such competence would therefore not subsist where the said Judge had retired and have ceased to have any judicial power to perform any judicial function, and urged the Court to so hold and to allow the appeal and set aside the null and void judgment of the lower Court. Counsel relied on Shafiu Shuaibu V. State (2019) LPELR-46688 (CA); Wulge V. Olayinka (2017) LPELR- 43356 (CA).

RESOLUTION OF ISSUE ONE
My lords, from the nature of issue one for determination, there is at this stage of considering issue one, not much need to consider either the evidence or the evaluation carried out by the lower Court since the crux of issue one is whether or not the judgment of the lower Court written by Ahmed A. Bima CJ. who retired on 14/6/2019, but was delivered by Ishaku Usman J. on 18/7/2019, after the retirement of the trial Chief Judge on 16/6/2019 was valid or invalid?

However, briefly at the trial, PW1 was one Mallam Muhammed Bello Jibril. His evidence is at pages 139-142 of the Record of Appeal. PW2 was one Abubakar Hassan Leda. His evidence is at page 143 of the Record of Appeal. PW3 was one Musa Abuchi. His evidence is at page 144 of the Record of Appeal. PW4 was one Danjuma Jaga. His evidence is at pages 144-145 of the Record of Appeal. PW5 was one Mallam Adamu Tanimu. His evidence is at page 145 of the Record of Appeal. The Statement of Claim was filed on 19/12/2017. See pages 1-37. The Reply to Statement of Defense was filed on 26/2/2018. See pages 89-95 of the Record of Appeal. The Respondent tendered the following documents which were admitted in evidence as Exhibits, namely: A Deed of Agreement between the Respondent and the 4th Appellant – Exhibit PD1. A Certified True Copy of the Respondent’s Written Statement on Oath in Suit No. NS11C/SD/85/201 3: Hussaini Hassan Leda & Ors V. Mallam Idris Sarkin Noma &. Anor – Exhibit PD2.

On the other hand, DW1 was one Pastor Barnabas Balogun. His evidence is at pages 146-147 of the Record of Appeal. DW2 was one Dauda Ladan. His evidence is at page 148 of the Record of Appeal. DW3 was one Jubril Salihu. His evidence is at pages 148-149 of the Record of Appeal. DW4 was one Idris Madaki Suleja. His evidence is at pages 149-150 of the Record of Appeal. The Joint Statement of Defense was filed on 18/1/2018. See pages 40-88 of the Record of Appeal. The Appellants tendered the following documents which were admitted in evidence as Exhibits. namely: The Record of Proceedings of the Sharia Court Suleja – Exhibit CD3. An Undertaking by the Respondent, but which the Respondent denied signing same – Exhibit CD4.

It was on the strength of the stale of the issues as joined by the parties in their pleadings and supported in evidence through their witnesses that the lower Court had in its judgment delivered on 18/7/2019 granted the claims of the Respondent against the Appellants and holding and stating inter alia as follows:
“…It is trite law that the burden of proof in a claim for declaration of title to land lies on the Plaintiff who must as a general rule succeed on the strength of his own case and not on the weakness of the Defendant’s case…That the Plaintiff and his uncle deforested the said land and farmed on it together until the death of the Plaintiff’s uncle…Plaintiff’s case therefore, succeeds and he shall be entitled to judgment in terms of his claim…”. See pages 152-159 of the Record of Appeal.

My lords, the real issue is not whether a serving Judge of the High Court of Niger State, the lower Court, can or cannot deliver the written, dated and signed judgment of another serving Judge of the Niger State High Court, as was so erroneously contended by the learned counsel for the Respondent, but whether a serving Judge of the lower Court can validly deliver the written dated and signed judgment of another Judge of the lower Court who at the time of the delivery of the judgment had retired from office as a Judicial Officer in the High Court of Niger State?

A lot of the energy dissipated by the learned counsel for the Respondent was in the wrong direction whilst leaving the real crux of the issue one for determination in this appeal. I think I should reiterate it here again that in law a case is only an authority for what it decides and therefore, cannot be plucked by hair to be imposed on facts which are completely and entirely different from the facts in the earlier decided case. See Adegoke Motors Limited V. Dr. Babatunde Adesanya & Anor (1989) LPELR-94 (SC) at pages 5-6, where the Supreme Court per Oputa, JSC (God bless his soul) had stated inert alia thus:
“It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court unnecessary isolation from the facts and surrounding circumstances those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts.”

I have considered the issue of the date on which the judgment of the lower Court was written, dated and signed by the Chief Judge of the High Court of Niger State on 14/6/2019. The parties are ad idem that the said Chief Judge retired on 14/6/2019. However, the judgment of the lower Court was delivered not by the Chief Judge, Ahmed A. Bima CJ. who retired on 14/6/2019 and was therefore no longer a serving Judge of the lower Court when the judgment was delivered by Ishaku Usman J. a serving Judge as at 18/7/2019. See pages 152 and 159 of the Record of Appeal.
Now by Section 291 (2) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
“A Judicial Officer appointed to any other Court, other than those specified in Subsection (1) of this Section may retire when he attains the age of sixty years and shall cease to hold office when he attains the age of sixty-five years.”
So, by the retirement of Ahmed A. Bima CJ on 14/6/2019, was the judgment written, dated and signed by him on 14/6/2019 valid at the date of retirement of Ahmed A. Bima CJ? In other words, had the judgment been delivered either by Ahmed A. Bima CJ or Ishaku Usman J on 14/6/2019 would it have been valid in law? I think so. This is because in law not only it is the date of delivery of a judgment is to be reckoned with and not the date it was written and/or dated, it is also settled law that one serving Judge of a High Court of a State can validly deliver the written, dated and signed judgment of another serving Judge of the same High Court, and there would in law nothing untoward, irregular and/or invalid with such a judgment, since it is the date of delivery that is important to its validity. See Mutual Benefit Assurance Plc V. Access Bank Plc (2021) LPELR-52751 (CA) per Sir Biobele Abraham Georgewill, JCA. See also Godwin Ohuabunwa V. Basil Duru & Ors (2008) LPELR—4699 (CA).
It would appear, here the issue of the date of the writing of the judgment and the date of the delivery of the judgment would no longer pose any difficulty as though by the learned counsel for the Appellants. This is so because, as I have earlier reiterated the insistence that there is any confusion between the date the judgment was written, dated and signed and the actual date on which it was delivered is undue reliance on mere technicalities, and in nowadays jurisprudence of substantial justice such undue technicality can no longer hold sway, it is the date on which the judgment was delivered that is the date to be reckoned with as regards its validity or otherwise. See Mutual Benefit Assurance Plc V. Access Bank Plc (2021) LPELR-52751 (CA) per Sir Biobele Abraham Georgewill, JCA.
Nowadays. Courts of law do not concern themselves with trifles but with the substance and justice of the case which are weightier matters. Thus, wrong date of judgment alone is not of such a serious nature that should bug down the Court and be allowed to become a clog in the wheels of rendering substantial justice to the parties, more so when the judgment was delivered in the open Court and in the presence of counsel to the parties. The long – accepted Latin maxim is ’de minimis non curat lex.’ In Nigeria jurisprudence of today, substantial justice is king as was so admirably demonstrated by the Supreme Court in 1981. when its earlier decision in Adis Ababa V. Adeyemi (1976) 12 SC 51 was overruled by its decision in Nofi Surakat V. Nigeria Development Society Ltd & Anor (1981) 4 SC. 26. See also Jeric Nigeria Ltd V. Union Bank Nig Plc. (2000) 15 NWLR (Pt. 691) 477; African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2018) LPELR-46184 (CA) per Sir Biobele Abraham Georgewill JCA; Chief Adcbisi Adegbuyi V. All Progressives Congress & Ors (2013) LPELR-22799 (CA).
At our Conference preceding the decision in this appeal, we had considered numerous possible scenarios should the date a judgment was said to have been dated and signed be the date to be reckoned with as the relevant date for the purposes of the issue one as raised in this appeal? It would mean a Judge can in defiance to the possible constitutional prescription of ninety days for the delivery of judgment proceed to deliver his judgment even one or two years after the adoption of the final written addresses of the parties and simply date and sign it within the ninety days as stipulated by law, there were several other possible scenarios which we considered as very possible should the date on which a judgment was allegedly dated and signed be reckoned with as opposed to the date on which it was delivered, either in the open Court in the presence of the parties and/or their counsel or by today’s innovation delivered virtually to the parties or their counsel in attendance.
Having held that the crucial date for the test for validity of the judgment of the lower Court was the date it was delivered on 18/7/2019, and having further considered the commonly accepted fact that as at the time the said judgment written, dated and signed by Ahmed A. Bima C.J on 14/6/2019 was delivered on 18/7/2019 by Ishaku J. a serving Judge of the High Court of Niger State, the said Ahmed A. Bima a had retired from the office of a Judicial Officer of the Niger State High Court, there is in my finding, and I so firmly hold, no reason in law whatsoever that would justify, validate and/or authorize one Judge as competent to read the judgment written by another Judge who has retired.
It follows therefore, the judgment of a Judge of the High Court. Ahmed A. Bima C.J retired not delivered until he was retired from his judicial office but delivered thereafter by another serving Judge. Ishaku Usman J. had become a nullity, when it was purportedly delivered on 18/7/2019 long after the retirement from Judicial Office of Ahmed A. Bima CJ Retired, and cannot be resuscitated by its being delivered by another Judge even of the same Court.
Thus, the judgment of Ahmed A. Bima CJ Retired of Niger State High Court with effect from 14/6/2019 delivered by Ishaku Usman J, serving Judge of Niger State High Court on 18/7/2019 was one done without any jurisdiction and validity and was therefore, dead on arrival, null and void and of no legal consequences and/or effect whatsoever and howsoever. It is simply liable to be declared a nullity and set aside. See Order 35 Rule 2 of the High Court Civil Procedure Rules of Niger State 2018. See also Shafiu Shuaibu V. State (2019) LPELR-46688 (CA); Wulge V. Olayinka (2017) LPELR- 43356 (CA).
In conclusion therefore, whilst a serving Judge of one Court can or may in deserving cases deliver the judgment written by his brother serving Judge who was unavoidably absent for whatever legally justifiable reasons that is how far the law could go. It cannot go so far to cover where one serving Judge, for whatever reasons, would deliver the written judgment of a retired Judge, who was no longer a Judicial Officer at the time of the purported delivery of his written judgment. It is immaterial when such a judgment is alleged to have been dated or signed, so long as it was not delivered until after the retirement of the Judge who is alleged to have written and signed it. It is a nullity.
My lords, there can be no legal validity in such a judgment delivered, as it were, on behalf of a person who was no longer a Judicial Officer and had ceased to have and/or possess the judicial powers of the State. The only and proper Order to make in such a circumstance, as in this appeal, is to set aside the said null judgment and to remit the case to the lower Court for trial de novo.

Consequently, issue one is hereby resolved in favor of the Appellants against the Respondent.

ISSUE TWO
Whether the lower Court was right in holding that the Respondent successfully proved his case before it?
My lords, having firmly held that the judgment of the lower Court delivered on 18/7/2019 was a nullity. I cannot but consider issue two for determination dealing with the merit or otherwise of the claims of the Respondent as merely academic, more especially in view of my decision that the Respondent’s suit should be remitted to the lower Court for trial de novo. An Order I shall make so soon hereafter in this judgment!

Indeed, the Courts are loath to and do not saddle themselves with the consideration of matters which had become merely academic and therefore, of no utilitarian value to either of the parties. To embark on such exercise of jurisdiction of the Courts over matters which are no longer live would clearly amount to nothing but sheer waste of the very precious and if I may say scarce, judicial time. See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853. See also Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 at pp. 254 – 255; Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 at p 1497.
My lords, issue two for determination has thus, become spent and I refuse to be drawn into the determination of an issue which are no longer live and with no utilitarian value except for its academic illumination and entertainment, which consideration of issue three for determination would entail. Consequently, issue two for determination is hereby discountenanced. In Global Fleet Oil & Gas Ltd V. Allen (2021) LPELR-54583(CA), this Court had per Sir Biobele Abraham Georgewill JCA, had cause to reiterate inter alia thus:
“Courts of are loath to spend their precious and scarce judicial time considering and resolving merely academic questions in its judgment, which are better left for scholars in the Faculties of Law in our Universities to grapple with. An issue becomes merely academic once it is no longer of any utilitarian value to the determination of the appeal one way or the other.”
See also UBA Plc V. Dana Drugs Ltd (2018) LPELR-44103 (CA), per Sir Biobele Abraham Georgcwill JCA; Action Congress v INEC (2007) LPELR-8988 (CA); Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 at p 1497; Adeogun V. Fashogbon (2008) 17 NWLR (Part 1115) 149 at p. 180.

On the whole therefore, having resolved issue one for determination in favour of the Appellants against the Respondent and having discountenanced issue two for determination, which can no longer be determined on the merit on the face of the nullity of the judgment of the lower Court, I hold firmly that this appeal succeeds and ought to be allowed. Consequently, this appeal is hereby allowed.

In the result, the judgment of the High Court of Niger State written by Ahmed A. Bima J on 14/6/2019, but delivered by Ishaku Usman J. in Suit No. NSHC/SD/121/2017: Mallam Mohammed Bello Jibrin V. Alh. Idris Madaki Suleja & Ors on 18/7/2019, in which the claims of the Respondent as Claimant were granted against the Appellants as Defendants, is hereby set aside being a nullity.

In its stead, the Respondent’s Suit No. NSHC/SD/121/2017: Mallam Mohammed Bello Jibrin V. Alh. Idris Madaki Suleja & Ors. is hereby remitted to the Chief Judge of the High Court of Niger Slate for same to be reassigned to any Judge of the said Court for expeditious trial de novo and determination according to law.
I make no Order as to cost.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance, the draft of the judgment delivered by my learned brother, Biobele Abraham Georgewill, JCA.

The crucial issue that called for determination by this Court is the validity of the judgment appealed against which was delivered on 18/7/2019. My learned brother has determined on the facts on record, and the applicable law, that the said judgment is a nullity. The evidence on record indicates that the judgment was delivered by a serving Judge of the lower Court (Niger State) on behalf of the Chief Judge of that Court who had retired before the judgment was delivered. I agree with my learned brother that, the judgment delivered in such circumstances runs foul of the law, and therefore a nullity.
The settled principle of law is that a judgment of Court whether delivered by the Judge who wrote it or some other Judge who delivers it on his behalf, takes effect from the date the judgment is delivered or pronounced upon. See Olatunji v. Owena Bank Plc. & Anor. (2008) LPELR-2578 (SC). Therefore, a Judge of the High Court cannot read the judgment written by another Judge who has ceased as at the time of reading the judgment, to be a Judicial Officer, or has been elevated to a higher Court or otherwise vacated office. Where such is done, the judgment so delivered will be a nullity. See Edibi v. State (2009) LPELR-8702 (CA).

It is for the above reasons that I agreed with my learned brother that the appeal be allowed on the ground that the judgment appealed against is a nullity. I abide by the consequential orders made in the lead judgment.

BATURE ISAH GAFAI, J.C.A.: I have before now read in draft, the judgment delivered by my learned brother Sir Biobele Abraham Georgewill, JCA. I am in full agreement with his lucid reasonings and the unassailable conclusion he arrived at on this appeal. I adopt those reasonings as mine; by which I too view the judgment of the learned trial Chief Judge (Retired) a nullity, thus resolving the main issue in this appeal in favour of the Appellants. For emphasis, I too hereby set aside the judgment and remit the case to the Court below for a fresh trial.