FAYAMU & ANOR v. ULARJU & ANOR
(2020)LCN/14859(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Friday, December 18, 2020
CA/YL/113/2018(R)
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
1. KAFIYAMU FAYAMU 2. MICHEAL F. PAPKA BELLO BAPKA APPELANT(S)
And
1. GAMBO ULARJU 2. PAUL ULARJU LUCAS ULARU RESPONDENT(S)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This application is brought pursuant to Section 15 of the Court of Appeal Act 2010 (as amended), Section 242 (1) of the 1999 Constitution FRN (as amended) and Order 6 Rules 1 and 9 of the Court of Appeal Rules 2016. It is for the following:
“1. AN ORDER OF THE HONOURABLE COURT striking out the name of MICHAEL F. PAPKA (deceased) and substituting him with BELLO PAPKA the deceased persons’ brother as the 2nd Applicant.
2. AN ORDER OF THE HONOURABLE COURT striking out the names of GAMBO ULARJU AND PAUL ULARJU (deceased) and substituting them with that of LUCAS ULARJU the deceased persons’ brother as Respondent.
3. AN ORDER OF THE HONOURABLE COURT extending time within which the Applicants shall seek leave to appeal against the Judgment of the High Court of Justice Yola in Suit No. ADSC/5A/2014 delivered on the 1/12/2016.
4. AN ORDER OF THE HONOURABLE COURT granting the applicants leave to appeal against the Judgment of the High Court of Justice Yola in Suit No. ADSC/5A/2014 delivered on the 1/12/2016 between the parties herein on grounds
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which include grounds of facts, mixed law and facts and the concurrent Judgments of the Lower Courts.
5. AN ORDER OF THE HONOURABLE COURT granting the Applicants leave to appeal against the Judgment of the High Court of Justice Yola in suit No. ADSC/5A/2014 delivered on the 1/12/2016 between the parties therein out of time.
6. AN ORDER OF THE HONOURABLE COURT extending time within which the Applicants shall appeal against the Judgment of the High Court of Justice Yola in suit No. ADSC/5A/2014 delivered on the 1/12/2015 between the parties therein”
The application is brought upon four grounds. It is supported by an affidavit of seven paragraphs to which is annexed four exhibits.
The Respondent filed a counter affidavit of five paragraphs in opposition.
The counter affidavit elicited a further affidavit of six paragraphs from the Applicants. Annexed to the further and better affidavit are two exhibits.
Arguing the motion, learned counsel for the applicants submitted that annexure F will show that Paul Ularju was a party to the suit. That he was the 2nd plaintiff in the matter at the Area Court.
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discountenance the counter affidavit filed by the Respondent and grant the reliefs sought by the Applicants.
Learned counsel for the Respondents said they were only opposed to the grant of prayer 2 and urged the Court not to grant prayer 2.
In considering whether or not to grant the application I have read carefully the affidavit evidence before the Court. Paragraphs 3(d), (e), (g), (h), 4(e), (g), (i) and (l) of the affidavit in support of the motion reproduced immediately hereunder read as follows:
“3(d) That while Micheal F. Papka who was the Respondent before the Court below died in 2016 during the pendency of the Appeal before the High Court, Gambo Ularju and Paul Ularju died even before the Appeal before the High Court.
(e) That while Bello Papka is a brother to Michael F. Papka (deceased) and has an interest in the subject matter of this application Lucas Ularju is a brother to late Gambo Ularju and Paul Ularju and equally has an interest in the land subject matter of the Appeal for which this application is made.
(g) That it was after their application was struck out and the Applicants were still desirous of pursuing the
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Appeal that they sought and obtained the names of those that are to substitute the deceased persons.
(h) That they forwarded the names of those to substitute the deceased persons to their Counsel and instructed their Counsel to apply and prosecute their Appeal.
4(e) That when the application came up before this Honourable Court it was discovered in Court that some of the parties as then constituted were deceased in consequence of which the application i.e. Exhibit B hereto was withdrawn and struck out on grounds contained in Exhibit C hereto.
(g) That the Applicants intend to Appeal on both grounds of facts, mixed law and facts among others.
(i) That it was when the attention of our principal in chambers was drawn to it that he retrieved the file from our Mhen Philip Atsev’s table and continued work on it but took ill for sometime and only completed work on it when he was fully recovered.
(l) That the Applicants and the law firm of Sule J. Abul & Co. have made money available for the payment of the requirement penalty which shall be paid at the point of filing this application.
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Paragraphs 4(a), (c), (d) and (f) of the counter affidavit read as follows:
4(a) That his name is Lucas Ularju but was sued in this case at the trial Court as Paul Ularju and was served all the processes in the matter and he appeared several times before the trial Court and on Appeal at the High Court in this matter in that name.
c) That his brother Gambo Ularju who was sued along with him in this matter died sometime after the judgment of High Court and he is in a position to represent his interest in this matter.
d) That he was surprised when he was served with the motion of the Applicant where the affidavit in support stated that he is deceased.
f) That he is still alive and will always be ready to appear in Court whenever his personal attendance is required by the Court.
Reproduced also are paragraphs 4(h), (j), (n), (o), (p) and 5 of the further and better affidavit of the applicants:
4(h) That while it is shown on page 3 line 22 of Exhibit F hereto attached that LUKAS Ularju was joined as a party non of the initiating processes has his name on it.
(j) That of all the relations of the party sought to be joined as Respondent he is the only surviving member of
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the 6 brothers mentioned in paragraph 4(d) herein.
(n) That Lucas Ularju who is sought to be joined used to or is still the staff of the Judiciary in Maiduguri, Borno State.
(o) That Lucas Ularju and Paul Ularju are two distinct persons as the former used to represent the parties he is being sought to substitute at the Lower Court.
(p) That the said Paul Ularju who is a farmer and resident at Duhu died before the Lower Court delivered its judgment
5. That it is in the interest of justice to grant the application seeking to join Lucas Ularju as the sole Respondent as the grant of same will not prejudice him.
It is clear from paragraph 3(d) of the affidavit in support and paragraph 4(p) of the further affidavit that Gambo Ularju and Paul Ularju are late. It is evident from exhibits F and G annexed to the further and better affidavit that Lucas Ularju who the Applicants seek to substitute for the late Gambo Ularju and Paul Ularju was not a party at the trial Court, the Upper Area Court and the Court below. Paragraphs 4(a), (c) and (f) of the counter affidavit reproduced above show that Lucas Ularju is favourably disposed to the grant of the appliaction.
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The application is therefore granted as prayed.
1. An order is hereby made striking out the name of MICHAEL F. PAPKA (deceased) and substituting him with BELLO PAPKA the deceased persons’ brother as the 2nd Applicant.
2. An order is also made striking out the names of GAMBO ULARJU and PAUL ULARJU (deceased) and substituting them with that of LUCAS ULARJU the deceased persons’ brother as Respondent.
3. Time is extended within which the Applicants shall seek leave to appeal against the judgment of the High Court of Adamawa State in suit No. ADSC/5A/2014 delivered on 1/12/2016.
4. Applicants are granted leave to appeal against the judgment of the High Court of Adamawa State in suit No ADSC/5A/2014 delivered on 1/12/2016 between the parties herein on the grounds which include grounds of facts, mixed law and facts and the concurrent judgment of the lower Courts.
5. Applicants are granted leave to appeal against the judgment of the High Court of Adamawa State in suit No. ADSC/5A/2014 delivered on 1/12/2016 between the parties herein out of time.
6. Time is extended within which the Applicants shall
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appeal against the Judgment of the High Court of Adamawa State in Suit No. ADSC/5A/2014 delivered on 1/12/2016 between the parties therein.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the ruling delivered by my learned brother JAMES SHEHU ABIRIYI, JCA. I agree with his reasoning and conclusion in granting all the prayers as contained in the motion papers.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
P. Atsev Esq. For Appellant(s)
A. Mohammed Esq. For Respondent(s)
