IDRIS & ORS v. ZARA (2020)

IDRIS & ORS v. ZARA

(2020)LCN/14845(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, December 17, 2020

CA/J/199/2018

RATIO

EVIDENCE: REQUIREMENT TO FILING MOTION OR SUMMONS

Order 42 Rule 5(6) of the Bauchi State High Court (Civil Procedure) Rules, 1987 and not Order 43 Rules 5(6) as cited by counsel provides:
“An affidavit giving the names and addresses of and the places and dates of service on all persons who have been served with the notice of motion or summons shall be filed before the motion or summons is entered for hearing and, if any person who ought to be served under this rule has not been served, the affidavit shall state the fact and the reason for it, and the affidavit shall be before the Court on the hearing of the motion or summons.”
There is no iota of doubt that an applicant who desires relief in the form of an order of certiorari is mandatorily enjoined to verify by an affidavit the names and addresses of persons served with the originating motion and the place and date of service. Also, the affidavit must be filed before the motion is entered for hearing and must be before the Court on the date of the hearing of the motion. The provision in my own understanding sounds like a pre-condition for the competence of the suit. And that is what it is. PER GANA MSHELIA, J.C.A.

COURT: OBEDIENCE TO RULES OF COURT

It has to be borne in mind that Rules of Court are meant to be obeyed. They are not merely made for the fun of it. They regulate the proceedings in Court and have the force of law and therefore binding on the parties. The non-compliance in the instant case affects the root, foundation or props of the case. The Court will treat it as nullifying the entire proceedings. SeeSken Consult Nigerian Limited v Ukey (1981) 1 S.C 6, Oke v Aiyedun (1986) 2 NWLR (pt.23) 548. The case of Hadiza Idris v Mohammed Tanko & Ors (supra). PER GANA MSHELIA, J.C.A.

WRIT: PREROGATIVE WRIT OF CERTIORARI

The prerogative writ of certiorari is one of the means by which a superior Court, such as High Court exercises its supervisory jurisdiction over the proceedings of inferior Courts and tribunals. The writ of certiorari is designed to check the excesses and arbitrary decisions of inferior Courts or tribunals whereby the Court or tribunal is compelled to bring up its records for correction and/or for the purpose of being quashed where appropriate. See Bamaiyi v Bamaiyi (2005) 15 NWLR (Pt.1948) 334 @ 354 C-F, Oduwole v Famakinwa (1990)4 NWLR (Pt.143) 239 @ 251 D-E; Lagos State Judicial Service Commission & Anor v Kaffo (2007) LPELR – 8594 (CA); Head of F.M.G.P.S.C of Mid-West State & Anor v In-Re Kubeinje (1974) LPELR -1360 (SC); Esabunor & Anor v Faweya & Ors (2008)12 NWLR (Pt.1102) 794.
Certiorari will issue to quash the decision of an inferior Court where it is established that there are errors of law on the face of the record of the lower Court or where the said lower Court has acted in excess of its jurisdiction including breaches of natural justice regarding fair hearing or that the decision of the aforementioned Court was obtained by fraud. See the Chairman and Members of Customary Court MBAWSI & Ors v The State Exparte Ndimele Nwosu (2014) LPELR -22852 (CA); Chief I.C. Ezenwa v Best Way Electronics Manufacturing Coy Ltd (1999)8 NWLR (Pt.613) 61 at 82 H-A. PER GANA MSHELIA, J.C.A.

FAIR HEARING: MEANING OF FAIR HEARING

This Court in Onyekwuleje v Benue State Government (2005)8 NWLR (Pt.928) 614, held that fair hearing within the meaning of Section 36(1) of the 1999 Constitution means a trial or investigation conducted according to all rules formulated to ensure justice is done to the parties. It is an indispensable requirement of justice that an adjudicating authority to be fair and just shall give both sides opportunity to present their case. A party who actively participated in the proceedings cannot be deprived of fair hearing. Respondent has been given opportunity to present his case before the Upper Sharia Court as such the lower Court cannot claim that his right has been compromised. The principle of fair hearing is that both sides must be given opportunity to present their respective cases. This was what happened in the instant case. See Okon v. Adigwe (2011) LPELR – 4528 (CA). PER GANA MSHELIA, J.C.A.

Before Our Lordships:

Adzira Gana Mshelia Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

SARKIN ZARA ALIYU IDRIS 2. MA’AJI KAWU 3. MALLAM SULEIMAN ALARANMA 4. SULE IMAN MAIHULA 5. SHEHU JA 6. THE HON. JUDGE, UPPER SHARIA COURT KAFIN MADAKI, GANJUWA L.G.A 7. THE REGISTRAR, UPPER SHARIA COURT KAFIN MADAKI, GANJUWA L.G.A APPELANT(S)

And

ALHAJI BETI ZARA RESPONDENT(S)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Bauchi State High Court delivered on 4th day of November, 2015 by Hon. Justice Rabi T. Umar (now Chief Judge) in Suit No. BA/108M/2015.

The Applicant now Respondent filed a motion on notice on 5th June, 2015 at the High Court of Justice Bauchi State (hereinunder referred to) as “The Lower Court”. The application sought for the following reliefs:
(a) AN ORDER of Certiorari quashing the proceedings and orders of the 6th and 7th Respondent of the Upper Sharia Court Kafin Madaki, Bauchi in Suit No. CV/24/2014. Between Alhaji Beti Zara v Sarkin Zara Idris and 4 Ors on ground of want of jurisdiction.
(b) A DECLARATION that all the proceedings and orders in the case of Alhaji Beti Zara v Sarkin Idriss & 4 Ors. in Suit NO. CV/24/2014 before the 6th and 7th Respondent were done without jurisdiction and therefore a nullity.
(c) Omnibus prayer.

Applicant filed 7 paragraphs affidavit, a verifying affidavit of 4 paragraphs with a further affidavit and reply on point of law. The Respondent on the other hand filed a 6

paragraphs counter-affidavit dated 10th June, 2015. Both counsel filed and adopted their written addresses. After considering the submission of counsel the lower Court delivered the Ruling on 04/11/2015 in favour of the Respondent.

Dissatisfied with the said Ruling, Appellants lodged an appeal to this Court vide their Notice and grounds of Appeal dated 9th November, 2015 containing two (2) grounds of appeal.

In compliance with the rules of Court, Appellants filed Appellants’ Brief dated 28/02/2019 and filed 05/03/2019. Same was settled by Naseer Muhammed Jumba Esq. Respondent did not file any brief of argument. When the appeal came up for hearing both counsel and parties were absent. There was no pending application to regularize Respondent’s brief of Argument. This Court deemed Appellants’ Brief as argued in compliance with Order 19 Rule 9(4) of the Court of Appeal Rules, 2016 as both parties were served with hearing notices.

In the Appellants’ brief of Argument, two (2) issues were distilled from the two grounds of appeal for determination as follows:
1. Whether from the circumstances and evidence led in this case,

the lower Court Judge was right when he held relying on the submission of the Respondent counsel that there was a breach of the Respondent right to fair hearing because, one of the Respondent witnesses was detained for contradictory statement before the 6th and 7th Appellants without material facts as to that contradictory statement made and when or where the said witnesses were purportedly detained. (Distilled from ground One (1) of the Appellants’ Notice and grounds of Appeal).
2. Whether failure to file affidavit of service as a condition precedent before the lower Court could entertain a certiorari application has rendered the proceeding and ruling orders of the lower Court a nullity.

Since the Respondent did not file any brief, the only issues for determination are the two issues raised by the Appellants in their Brief of Argument.

ISSUE ONE
In arguing this issue, learned counsel for the Appellants submitted that, fair hearing as defined and related to Judicial proceedings was stated in the case of Obiesie v Obiese (2007)16 NWLR (Pt. 1060) 225-226 R.1 where it was held “A hearing is fair when all the parties before the

Court are heard”. Learned counsel contended that Respondent was given opportunity to call all his five witnesses and closed his case. According to counsel, the lower Court erroneously arrived at the conclusion of breach of fair hearing as it relates to the Respondent. Counsel referred to page 39 of the record and submitted that one Ahmadu Abdulsalam testified but was not detained for giving contradictory evidence, as decided by the learned Judge of the lower Court at page 97 of the record. According to counsel, there was no material facts placed before the lower Court which prison custody the said witness was kept and for how long. That the learned Judge of the lower Court instead filled these gap for the Respondent. That at the same page 97 of the record, the learned Judge of the lower Court arrived at a conclusion not canvassed and very contradictory of his earlier findings at the same pages. Counsel submitted that no Court has a duty to bridge a gap in the case of a party to proceedings before it. SeeN.A.O.C Ltd v Nkweke (2016)7 NWLR (Pt.1512) 588 @ 598 R.11; Victino Fixed Foods Ltd v Ojo (2010)8 NWLR (Pt.1197) 486 @ 491 Ratio 7;

Orianzi v A.G. Rivers State (2017) 6 NWLR (Pt.1561) 224 @ 250 R.26; Spring bank Plc v Babatunde (2012) 5 NWLR (Pt.1292) 83 @ 85 R.1; Agi v Access Bank Plc. (2014) 9 NWLR (Pt.1411) 125 @ 140 R.31. Counsel contended that the requirement for fair hearing had been met by the 6th and 7th Respondent’s Court which the lower Court erroneously quashed. Reliance placed Okon v Adigwe (2011) 15 NWLR (Pt.1270) 350 at 354-355 R.5-8. He urged the Court to resolve the issue in favour of the Appellants.

ISSUE TWO
Learned counsel submitted that, the application for certiorari proceedings as it relates to the lower Court was guided by procedural law and rules to which compliance is imperative. That there was non-compliance to the requirements which could render the Ruling/Orders emanating therefrom to come to naught. Counsel referred to Order 43 Rules 5 and sub-rule 6 of the Bauchi State High Court (Civil Procedure) Rules, 1987. Counsel contended that the requirement was not fulfilled at the lower Court before the certiorari application was heard and no reasons as to why such a fundamental requirement of certiorari application was not met which is a condition precedent to the hearing

of certiorari application and goes to the root of the matter, thereby robbing the Court of jurisdiction. Reliance placed on S.C.S.C. v Council of O.A.U Ile-Ife (2011)15 NWLR (Pt.1265) 193 @ 196 R.3; Agip (Nig.) Ltd v. Agip Petrol Int’l (2010) 5 NWLR (Pt.1187) 348 @ 364-365 R.15 and 16. That Order 43 Rule 5 sub-Rule 6 of the Bauchi State High Court Civil Procedure Rules 1987 is a mandatory threshold that was not adhered to by the lower Court which robs it of jurisdiction. Cited in aid Aladinma Medicine Ltd v Trustees O.C.M (2012)5 NWLR (Pt.1294) 441 @ 444-445 R.3 and 4.

Counsel further submitted that once the requirement of the law have not been met, no matter how well conducted a matter is goes to naught. See Ayoronmi v N.P.C (2010) 8 NWLR (Pt.1197) 616 @ 621-623 Ratio 4, 5 and 7; Maduafokwa v Abia State Government (2009)2 NWLR (Pt.1126) 457 @ 462 Ratio 3 and 4. He urged the Court to resolve this issue in favour of the Appellants.

In determining this appeal, I will start with issue 2 since it touched on issue of jurisdiction of the lower Court to entertain the certiorari application. The said issue is derived from ground one. The said issue

read:
“Whether failure to file affidavit of service as a condition precedent before the lower Court could (sic) entertained a certiorari application has rendered the Proceeding/Ruling/Orders of the lower Court a nullity.”

hearing and must be before the Court on the date of the hearing of the motion. The provision in my own understanding sounds like a pre-condition for the competence of the suit. And that is what it is. I agree with the appellants’ counsel in the case at hand, that no affidavit of service was filed at all. The failure to file the verifying affidavit means non-compliance with the prescription for application for an order of certiorari under Order 42 Rule 5(6) of the Bauchi State High Court (Civil Procedure) Rules, 1987. By this act Applicant/Respondent has failed to follow the procedure or course laid down for activating or initiating an application for an order of certiorari which is tantamount to the action not being initiated by due process of law and consequently it is a non-fulfillment of the condition precedent to the exercise of jurisdiction by the Court. This condition must be fulfilled before an application for certiorari can be entertained by the Court. See Onyemaizu v Ojako (2000) 6 NWLR (Pt.659) 25, Madukolu v Nkemdilim (1962) 1 SCNLR 341. The failure by the Respondent to fulfill in full the conditions laid down by

Order 42 Rule 5(6) of the High Court (Civil Procedure) Rules Bauchi State, impacts upon the capacity of the trial Court to entertain the action which was initiated without following due process of law. See Onyemaizu v Ojiako (supra) and Saude v Abdullahi(1989) 4 NWLR (Pt.116) 387. The facts in the case at hand are all on fours with the facts in the case of Hadiza Idris v Mohammed Tanko Abubakar & Ors (2009) LPELR -8361 8 (CA), wherein this Court struck out the case on same ground.
It has to be borne in mind that Rules of Court are meant to be obeyed. They are not merely made for the fun of it. They regulate the proceedings in Court and have the force of law and therefore binding on the parties. The non-compliance in the instant case affects the root, foundation or props of the case. The Court will treat it as nullifying the entire proceedings. SeeSken Consult Nigerian Limited v Ukey (1981) 1 S.C 6, Oke v Aiyedun (1986) 2 NWLR (pt.23) 548. The case of Hadiza Idris v Mohammed Tanko & Ors (supra).

It is my firm view that the lower Court was in error not to have struck out the application for lack of jurisdiction. Jurisdiction is a threshold issue and any proceedings made

without jurisdiction no matter how well conducted, is a nullity. I will accordingly resolve issue two in favour of the Appellants.
Being a penultimate Court I find it necessary to resolve issue one.

the lower Court or where the said lower Court has acted in excess of its jurisdiction including breaches of natural justice regarding fair hearing or that the decision of the aforementioned Court was obtained by fraud. See the Chairman and Members of Customary Court MBAWSI & Ors v The State Exparte Ndimele Nwosu (2014) LPELR -22852 (CA); Chief I.C. Ezenwa v Best Way Electronics Manufacturing Coy Ltd (1999)8 NWLR (Pt.613) 61 at 82 H-A.

The question is whether the lower Court Judge was right when he held that there was a breach of the Respondent fair hearing because one of his witnesses was detained for giving contradictory evidence, before the 6th and 7th Respondents. The brief facts of the case as disclosed in the affidavit of urgency was that Applicant filed complaint against the 1st – 5th Respondents before Upper Sharia Court Kafin Madaki Ganjuwa Local Government claiming for a piece of farmland which he inherited from his late father which the 1st Respondent sold out to the 2nd to 5th Respondents. The Applicant called five witnesses who testified that the land belonged to him. The 1st – 5th Respondents also brought five witnesses and

closed their case. At the end of the case Judgment was entered in favour of the 1st – 5th Respondents and conferred with title of a piece of land situated at Zara, Ganjuwa, L.G.A of Bauchi State.
The allegation of the Applicant/Respondent was that one of his witnesses was ordered to be detained by Upper Sharia Court for making contradictory statement. Also some of his witnesses were threatened and could not come to Court for fear of victimization. For these reasons, Applicant claimed that he was not given fair hearing to present his case.
I have perused Exhibit(s) the proceedings of the Upper Sharia Court Kafin Madaki, Nganjuwa L.G.A. It is clear at pages 35-43 of the record, Applicant/Respondent called five witnesses and closed his case. From the record Applicant/Respondent voluntarily closed his case after presenting his case. Can it therefore be said that he was not given fair hearing? The answer is in the negative. On the allegation that one Abdulsalam was detained for giving contradictory evidence, Respondent did not place before the lower Court material facts as to which prison the said witness was kept and for how long. I agree with

learned counsel for the Appellants that it was the lower Court Judge that filled the gap. On the issue of trial de novo and the manner the new Judge concluded the case, is not in my view an issue of fair hearing. This Court in Onyekwuleje v Benue State Government (2005)8 NWLR (Pt.928) 614, held that fair hearing within the meaning of Section 36(1) of the 1999 Constitution means a trial or investigation conducted according to all rules formulated to ensure justice is done to the parties. It is an indispensable requirement of justice that an adjudicating authority to be fair and just shall give both sides opportunity to present their case. A party who actively participated in the proceedings cannot be deprived of fair hearing. Respondent has been given opportunity to present his case before the Upper Sharia Court as such the lower Court cannot claim that his right has been compromised. The principle of fair hearing is that both sides must be given opportunity to present their respective cases. This was what happened in the instant case. See Okon v. Adigwe (2011) LPELR – 4528 (CA).

From the facts and circumstances of the case, I am of the humble view that

certiorari proceedings is not the appropriate remedy to quash the Judgment of the Upper Sharia Court Kafin Madaki Nganjuwa L.G.A. I agree with Appellants counsel that the decision of the lower Court that led to this appeal was erroneously made. I will accordingly resolve issue 2 in favour of the Appellants.

In the final analysis, I find the appeal meritorious. Appeal is allowed. The Ruling of the High Court of Bauchi State delivered on 4th November, 2015 by Hon. Justice Rabi T. Umar is hereby set aside.
In its place I order that the case filed by the Applicant/Respondent in Suit No. BA/108M/2015 be struck out for want of jurisdiction.
No order as to costs.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother obliged with a copy of the judgment just delivered by my learned brother ADZIRA GANA MSHELIA, PJCA.
I agree with the reasoning and conclusion arrived thereat and I have nothing to add.
I abide by the consequential order made therein.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother ADZIRA GANA MSHELIA, J.C.A., (PJ) and I am in agreement with his reasoning and conclusion. I also

allow the appeal and set aside the ruling of the Bauchi State High Court.
I abide all the consequential orders in the lead judgment, costs inclusive.

Appearances:

NASEER MUHAMMED JUMBA, ESQ. (Absent though served) For Appellant(s)

Absent though served For Respondent(s)