(2018) LPELR-46032(CA)

Transcription

1 BUBA v. ISA CITATION: In the Court of Appeal In the Yola Judicial Division Holden at Yola ON WEDNESDAY, 28TH NOVEMBER, 2018 Suit No: CA/YL/08/2018 OYEBISI FOLAYEMI OMOLEYE JAMES SHEHU ABIRIYI SAIDU TANKO HUSSAINI Before Their Lordships: Between UMARU BUBA - Appellant(s) And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal YUSUFU ALH. ISA - Respondent(s) RATIO DECIDENDI

2 1. ACTION - COMMENCEMENT OF ACTION: Requirements of the law as regards commencement of action in Area Courts "Issue No. 1 primarily raises the question of the validity of the action or suit brought at the Grade I Area Court, Mbamnga and the question is whether the action or suit was properly commenced at that Court? Order 2 Rule 2 of the Area Court Rules provide: "Every Civil cause shall be commenced by a complaint made in person or by the authorised representative of the person making the complaint." The Rules thus, require the person initiating the action to commence it by a complaint. A "complaint" is defined to mean a statement or inquiry or grievance laid before a Court by a person or by the authorised representative of the person making the complaint for the purpose of prosecution or redress" see Shorter Oxford English Dictionary By W. Little 3rd edition, Vol. 1. Under the Area Court Rules of Taraba State, Order 2 Rule 2, a civil cause is commenced by a complaint made in person or by his authorised representative. This provision to my mind, does not preclude a complaint being presented orally provided that the person bringing the complaint has done all that is required of him to commence an action by the payment to the registrar of Court the prescribed fees, in that instance, the action has commenced:alawale V. Semoh (1959) NSCC 36. It is important though that upon the action being commenced the substance of the case is entered in a book kept for that purpose pursuant to Rule 3 of Order 2 of the Area Court Civil Procedure Rules. See: Fouad V. Fauzija (1971) NNLR 136. It is not being alleged that the respondent herein has not done all that is required of him to commence the action in this matter rather the action was not commenced by way of pleadings There is no provision for the filing of pleadings in the Area Court Rules as wrongly argued by the learned counsel for the appellant. See: Silli Vs. Mosoka (1997) Vol. 1 NWLR (Pt. 479) 98, 111; Okunrimeta V. Agitan (2002) 2 NWLR (Pt. 752) 565, 574; Inyaki-Abe Vs. Akaajime (1989) 4 NWLR (Pt. 113) 95 Ari Vs. Paiko (1997) 10 NWLR (Pt. 524) 335, What appears at page 1 of the record of Appeal and tagged as "statement of claim", is in fact the statement made or presented in the course of proceedings at the hearing of the case. Respondent is not expected to authenticate that record of Court. In any case the Statement at page 1 of the record can by no means be equated with or referred to as the process that originated the suit at the trial Court. No it is not. The suit had been commenced before then, by the complaint laid at the registry and upon application made by the complainant and the payment of fees for the commencement of that action. Where therefore the plaintiff, at an Area Court, presented his complaint, and the substance of his complaint was entered into the record books kept for that purpose the suit has commenced. There is no duty on the part of the complainant to sign or authenticate that document of Court."Per HUSSAINI, J.C.A. (Pp , Paras. C-F) - read in context

3 2. JUDGMENT AND ORDER - JUDGMENT OF COURT: Whether a court can give judgment against a person who is not a party to a suit "What I think should really engage our attention in this appeal are the myriads of questions raised by the appellant under his issue No. 2, one which is the question whether a Court can grant a relief in favour of the person who was not designated as a party to the proceedings at the trial Court, an order which the Court below also affirmed as being correct. By the Area Court Civil Procedure Rules, Order 2 Rule 2, an action can maintain in a representative capacity. In otherwords the persons or persons whose name is in the writ as a party has the mandate of person whose names are not disclosed in the action as parties to present or defend the action as the case may be. It necessarily follows that any order or decision of Court can only be directed on the person whose name appears on the writ or process as a party and none other, even if the decision or order of Court is binding on that other person by reason of the representative nature of the action. See: Olufeagba & Ors Vs. Abdul-Kareem & Ors (2009) 12 SCNJ 349. The trial Court in its Judgment held at page 16 of the record thus:- "...we are not left in doubt that the grazing land in dispute was the very land that Yaji Ruwa exchanged with the land of the plaintiff's father Alhaji Isa Maja and we so hold and declare the land in belongs to the father of the plaintiff Alhaji Isa Maja" Alh. Isa Maja in favour of whom an order of declaration of ownership was made was not designated as a party in the matter before the trial Court. Persons designated as parties before the trial Court are "Yusuf Isa" as the plaintiff and "Umoru Buba" as the defendant. Hence the Court below was in error when it held at page 61 of the record of appeal that there is nothing wrong with the order made at the trial Court in granting the relief to Isa Maja, even though not designated as a party. Everything is wrong with that finding on the principle that orders made by Courts can only be directed at persons designated as parties to the proceedings, a fortiori, reliefs cannot be granted to persons other than parties designated in the case. It also amount to granting of reliefs which are is not claimed. See: Azuh V. UBN 60 NSCQR 458, ; Uku Vs. Okumgba (1974) 1 All NLR 475. This appeal is allowed on this score hence the appellate Judgment delivered at the Court below affirming the null decision of the trial Court is hereby set aside and in its place is entered this Judgment."Per HUSSAINI, J.C.A. (Pp , Paras. F-A) - read in context

4 SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The respondent was the plaintiff at the Grade I Area Court Mbamnga. He instituted action at that Court and claimed against the appellant, the defendant at the trial Area Court, that piece of land situate at Geroji Mbamnga and described as the Grazing land of the Respondent. He claimed that the Appellant trespassed into the land without his consent hence the action, a claim which the appellant also denied. Before the trial Area Court the Respondent as plaintiff led evidence to establish certain facts, among which is that his father Isa Maja took over the land in dispute from Alh. Yaji Ruwa in exchange for the land previously held by his father, hence himself is now the rightful owner of the land in dispute. The appellant denied those claims stating that the exchange of the land in dispute was between himself (appellant) and one Alhaji Ruwa and not the facts as stated by the respondent in his statement to the Court at the trial. At the close of evidence, the trial Court, in a considered Judgment delivered on the 1st June, 2016 the trial Court 1

5 found for the respondent and entered Judgment in favour of Respondent s father, Alh. Isa Maja and accordingly declared title to the land for him. The trial Court went further and held that Issues of inheritance and distribution of assets, a point alluded to, in the course of hearing, by witnesses in their evidence was not before it as a claim and the Court accordingly discountenanced that evidence. The appellant ostensibly irked by that finding or holding at the trial Court lodged his appeal to the Court below who, upon hearing the parties or counsel respectively affirmed the decision of the trial Court and dismissed the appeal vide the Judgment delivered on the 11th July, 2017 There is a further appeal to this Court against the concurrent findings at the Court below by dint of the Notice of Appeal filed with leave of this Court sought and granted on the 27th October, The Notice of Appeal contains 6 (six) grounds of Appeal dated the 16th August, 2017, was filed on the 1st November, (Record: pages 75-81) The record of appeal having been transmitted, the same was deemed on the 4th October, 2018; Parties and their counsel 2

6 filed, exchanged and adopted their respective briefs of Argument on the 4th October, 2018, that is to say: Appellant s brief of argument dated the 14th February, 2018 and filed the 16th February, 2018 was deemed as properly filed and served on the 4th October, Ditto the brief of argument filed for the respondent. Same is dated 26th March, 2018 and filed on the 27th March, Mr. D. O. Ovoyenta (leading E.C.C. Agajere) for the appellant urged us to allow this appeal. Mr. A.I. Umar (leading H.B. Nguroye) for the Respondent urged us to dismiss the appeal. I am obligated though to look at the case put forward by parties on both sides through the briefs of argument filed by them. In his brief of argument, the appellant through counsel distilled 3 (three) issues from the 6(six) grounds of appeal thus: 1. Whether the High Court was right when it held that civil suits before Area Court in Taraba State need not to be commenced by pleading or written statement and that the non signing of such pleading does not affect the jurisdiction of the trial Court? (distilled from ground 1 of the notice of appeal). 3

7 2. Whether the High Court was right in law when it affirmed the decision of the trial Court even though the evidence in support of the respondent s case is contradictory. (distilled from grounds ii and IV of the notice of appeal). 3. Whether the High Court was right in law when it affirmed the decision of the trial Court which declared titled over the disputed land to the respondent s father when there is evidence on record before it that the land in dispute is the joint property of the appellant s father, the respondent s father and one Alhaji Hassan, which property is the subject of inheritance that has not been partitioned or shared amongst them. (Distilled from grounds (III), (V) and (VI) of the notice of appeal). The Respondent formulated 2 (two) issues for determination of Court, namely: 1. Whether the High Court of justice was right in law when it held that the case of the plaintiff/ respondent is competent and the trial Court has jurisdiction to entertain same? (Distilled from Ground I) 2. Whether the High Court was right in law when it 4

8 affirmed the decision of the trial Area Court Mbamnga? (Distilled from Grounds (II) (III) (V) of the Grounds of Appeal). I am of the view that the two issues identified in the respondent s brief of argument are apt and best suited for consideration in the determination of this appeal. I accordingly adopt the said issues in addressing this appeal, that is to say 1. Whether the High Court of justice was right in law when it held that the case of the plaintiff/ respondent is competent and the trial Court has jurisdiction to entertain same? (Distilled from Ground I) 2. Whether the High Court was right in law when it affirmed the decision of the trial Area court Mbamnga? (Distilled from Grounds (II) (IV), (III) (V) and (VI) of the Grounds of Appeal). Arguing this appeal with reference to issue No.1 above, learned appellant s counsel submitted that the Court below was wrong to have decided that the suit at the trial Court was properly commenced whereas the same was not initiated by way of pleadings. He referred us to Order 2 Rule 2 of the Area Courts Civil (Procedure) Rules, to submit that 5

9 every civil suit in an area Court is commenced by way of complaint. To him the word complaint is akin to pleadings and since the suit was not so commenced by way of pleadings, the suit at the trial Court was incompetent and the trial Court lacked jurisdiction to have entertained same. He argued that the Court below was wrong to hold to the contrary. He referred us to the record of Appeal and in particular, the process tagged the statement of claim at page 1 of the record by which he said the suit was commenced at the trial Court. It is further submitted that the said process was not signed or authenticated. The failure to sign or authenticate the originating process it is argued, rendered that process invalid, invariably, the suit itself. He referred us to decisions in Okarika V. Samuel (2013) Vol. 53 (Pt. 1) NSCQR 220, ; Okafor Vs. Nweka (2007) 3 SCNJ 185; Braithwaite V. Skye Bank (2012) Vol. 52 (Pt. 2) NSCQR 458, 468; Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341; Kida Vs. Ogunmola (2006) LPELR-1690(SC). Learned counsel for the appellant would not agree with the suggestion or holding at the Court below that a suit 6

10 can be commenced at the Area Court by way of a complaint made orally at registry of that Court. He referred us to Order 27 Rules 1-5 of the Area Court Rules. To him a Civil Suit is instituted at an Area Court by filing a complaint/petition or pleadings in line with Order 2 Rule 3 of the Area Court Civil Procedure Rules. In the instant case on appeal, it is argued that the process which originated the suit at the trial Court was not authenticated by the respondent. He urged us to resolve this issue in favour of the appellant. Arguing the appeal with reference to issues No. 2 above, it was contended first, that evidence led in support of the respondent s case at the trial Court, was contradictory yet the High Court affirmed the Judgment of the trial Court premised on those contradictory pieces of evidence. The bone of contention as argued by appellant, is that the evidence of Pw2, Pw3 and Pw4 who all testified that the land in dispute belong to the respondent was contradicted by the evidence of Pw1 and Pw5 whose evidence has it that the land in dispute is the joint property of Pw1, Dw1 and one Alhaji Hassan. 7

11 It is further argued that since the land in dispute has not been distributed even after the demise of their father, pw1, Dw1 and Alh. Hassan still retain that common or joint interest over the land in dispute, hence the respondent (or his father) cannot lay exclusive claim to ownership of that land. For this reason it is argued that the Court below was in error when it affirmed the decision of the trial Court who made an order of declaration of title in favour of the respondent s father, notwithstanding the contradiction in the evidence of witnesses called by the Respondent as plaintiff. We were urged to so hold on the authority of Kayili Vs. Yilbuk (2015) Vol. 61(Pt. 1) NSCQR 359; Hassan V. State (2016) vol. 68 (Pt. 2) NSCQR 590, 628. We were further urged to reject the entire evidence. What is more, the Court below, also wrongly affirmed the Judgment which granted a relief to a person who was not a party to the suit. The case of Azuh V. UBN 60 NSCQR 458, ; Uku Vs. Okumagba (1974) 1 All NLR 475, were cited and relied on. On the question whether the issue of inheritance and distribution of property (land in dispute) was a claim before 8

12 the trial Court, learned counsel for the appellant answered the question in the affirmative by reference to evidence of Pw1, Pw5 and Dw1, to urge us to hold that the Court below wrongly affirmed the decision of the trial Court who earlier held that the issues of inheritance and distribution of property were not part of the claim made at the trial Court. He urged us to take another look at the record of the Area Court to ascertain what indeed is the true nature of the dispute before that Court or what the claim is. He urged us to look beyond what appears on the face of claim or writ. To the learned appellant s counsel, if the entire record of proceedings of the trial Court was properly looked into, it is discernible that the land in dispute is the property jointly owned by family members comprising Pw1, Dw1 and Alhaji Hassan, hence the Court below was wrong to affirm the Judgment of the trial Court which declared title over the disputed land in favour of respondent s father alone. He relied on decision in Musa Iyaji Vs. Sule Eyigebe (2006) 2 NSCQR 1, 2; Alafia Vs. Gbade Vetuns Ltd (2016 Vol. 65 (Pt. 3) NSCQR 1724, We were urged finally to 9

13 allow this appeal and set aside the Judgment of the High Court affirming the decision of the trial Area Court which made an order of declaration of title in favour of Respondent s father. Learned Respondents counsel addressing Issue No. 1, on the competence of the suit initiated at the trial Court, was positive. He argued that not only was the action competent, the trial Court has jurisdiction over the matter and rightly exercised it. He referred us to Section 11 of Area Court Law Cap. II, Laws of Taraba State, He argued further stating that a suit can be commenced at an Area Court by presenting an oral complaint; that actions are not commenced by pleadings in Area Courts. He cited Ogo V. Ogo (1964) NMLR 117; Garuba V. Yahaya (2007) All FWLR (Pt. 357) 862, 862, 864; Ezeanya Vs. Okeke (1995) 4 SCNJ 60, 76; Umoru Vs. Akinyede (2007) All NWLR (Pt. 355) 648 (CA). On the 2nd Issue, that is whether the Court below was right to have affirmed the decision of the Area Court Mbamnga, learned respondent s counsel urged us to resolve the said issue 2 in favour of the respondent, in that:- 10

14 1. The evidence adduced in support of the claim was not contradictory as alleged. 2. The lone issue before the trial Court was the exchange of two grazing lands between Respondents father and Yaji Ruwa. 3. Issue of inheritance and distribution of the land in dispute among family members was not the complaint laid at the trial Area Court, and therefore the same is not an issue. OPINION Issue No. 1 primarily raises the question of the validity of the action or suit brought at the Grade I Area Court, Mbamnga and the question is whether the action or suit was properly commenced at that Court? Order 2 Rule 2 of the Area Court Rules provide: Every Civil cause shall be commenced by a complaint made in person or by the authorised representative of the person making the complaint. The Rules thus, require the person initiating the action to commence it by a complaint. A complaint is defined to mean a statement or inquiry or grievance laid before a Court by a person or by the authorised representative of the person making the complaint for the purpose of 11

15 prosecution or redress see Shorter Oxford English Dictionary By W. Little 3rd edition, Vol. 1. Under the Area Court Rules of Taraba State, Order 2 Rule 2, a civil cause is commenced by a complaint made in person or by his authorised representative. This provision to my mind, does not preclude a complaint being presented orally provided that the person bringing the complaint has done all that is required of him to commence an action by the payment to the registrar of Court the prescribed fees, in that instance, the action has commenced:alawale V. Semoh (1959) NSCC 36. It is important though that upon the action being commenced the substance of the case is entered in a book kept for that purpose pursuant to Rule 3 of Order 2 of the Area Court Civil Procedure Rules. See: Fouad V. Fauzija (1971) NNLR 136. It is not being alleged that the respondent herein has not done all that is required of him to commence the action in this matter rather the action was not commenced by way of pleadings There is no provision for the filing of pleadings in the Area Court Rules as wrongly argued by the learned counsel for the appellant. See: Silli Vs. Mosoka (1997) Vol. 1 NWLR 12

16 (Pt. 479) 98, 111; Okunrinmeta V. Agitan (2002) 2 NWLR (Pt. 752) 565, 574;Inyaki Abe Vs. Aka Akaajime (1989) 4 NWLR (Pt. 113) 95 Ari Vs. Paiko (1997) 10 NWLR (Pt. 524) 335, What appears at page 1 of the record of Appeal and tagged as statement of claim, is in fact the statement made or presented in the course of proceedings at the hearing of the case. Respondent is not expected to authenticate that record of Court. In any case the Statement at page 1 of the record can by no means be equated with or referred to as the process that originated the suit at the trial Court. No it is not. The suit had been commenced before then, by the complaint laid at the registry and upon application made by the complainant and the payment of fees for the commencement of that action. Where therefore the plaintiff, at an Area Court, presented his complaint, and the substance of his complaint was entered into the record books kept for that purpose the suit has commenced. There is no duty on the part of the complainant to sign or authenticate that document of Court. What I think should really engage our attention in this appeal 13

17 are the myriads of questions raised by the appellant under his issue No. 2, one which is the question whether a Court can grant a relief in favour of the person who was not designated as a party to the proceedings at the trial Court, an order which the Court below also affirmed as being correct. By the Area Court Civil Procedure Rules, Order 2 Rule 2, an action can maintain in a representative capacity. In otherwords the persons or persons whose name is in the writ as a party has the mandate of person whose names are not disclosed in the action as parties to present or defend the action as the case may be. It necessarily follows that any order or decision of Court can only be directed on the person whose name appears on the writ or process as a party and none other, even if the decision or order of Court is binding on that other person by reason of the representative nature of the action. See: Olufeagba & Ors Vs. Abdul-Kareem & Ors (2009) 12 SCNJ 349. The trial Court in its Judgment held at page 16 of the record thus:- we are not left in doubt that the grazing land in dispute was the very land that Yaji Ruwa 14

18 exchanged with the land of the plaintiff s father Alhaji Isa Maja and we so hold and declare the land in belongs to the father of the plaintiff Alhaji Isa Maja Alh. Isa Maja in favour of whom an order of declaration of ownership was made was not designated as a party in the matter before the trial Court. Persons designated as parties before the trial Court are Yusuf Isa as the plaintiff and Umoru Buba as the defendant. Hence the Court below was in error when it held at page 61 of the record of appeal that there is nothing wrong with the order made at the trial Court in granting the relief to Isa Maja, even though not designated as a party. Everything is wrong with that finding on the principle that orders made by Courts can only be directed at persons designated as parties to the proceedings, a fortiori, reliefs cannot be granted to persons other than parties designated in the case. It also amount to granting of reliefs which are is not claimed. See: Azuh V. UBN 60 NSCQR 458, ; Uku Vs. Okumagba (1974) 1 All NLR 475. This appeal is allowed on this score hence the appellate 15

19 Judgment delivered at the Court below affirming the null decision of the trial Court is hereby set aside and in its place is entered this Judgment. Appeal allowed. Parties to bear their cost. OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, Saidu Tanko Husaini, JCA, in this appeal. I agree that the appeal is quite meritorious and equally allow it, as I abide by the consequential orders contained in the leading judgment including that of costs. JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned Brother, Saidu Tanko Husaini JCA. He has dealt exhaustively with the issues for determination. I adopt the reasoning and conclusions in the lead judgment. For the reasons contained in the lead judgment, I too allow the appeal. The judgment of the Court below is hereby set aside. I abide by all other orders including the order as to costs.

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21 Appearances: D.O. Ovotenta, Esq. with him, E.C.C. Agahere, Esq. For Appellant(s) A.I. Umar with him, H. B. Nguroje, Esq. For Respondent(s)