Hadiza Idris V. Mohammed Tanko Abubakar & Ors (2009)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

The Appellant who was an applicant before the Kaduna State High Court was granted leave to apply for an order of certiorari on the 11th of November, 2004. Pursuant to the said leave, the Appellant filed her motion on notice dated 17th November, 2004. The 1st Respondent filed counter affidavit in opposition to the Appellant’s motion.

The Appellant later filed further and better affidavit. After exchange of processes between the parties, arguments were taken on 21st March, 2005 and the matter adjourned to 3rd May, 2005 for ruling. After the said adjournment, the learned Counsel for the 1st Respondent filed a document titled “ADDITIONAL AUTHORITY ON THE ABOVE SUIT” dated the 22nd April, 2005 with an argument therein to the effect that the motion was incompetent because the applicant (now Appellant) failed to file a verifying affidavit as provided for by Order 42 Rule 6 of the High Court (Civil Procedure) Rules 1987. He also cited the case of Onyemaizu Vs. Ojiako (2000) 6 N.W.L.R. (Pt. 659) page 25. On receipt of the said document the Appellant’s counsel filed a response dated 22nd April, 2005 and raised the issue that the 1st Respondent had waived his right to complain about the non compliance having taken fresh steps in the matter, among other issues.

In his ruling dated 3rd June, 2005, the learned trial judge considered the case of Onyemaizu Vs. Ojiako (supra) and held that failure to file a verifying affidavit by the Appellant was not a mere irregularity that can be waived by the Respondent but a fundamental breach that goes to the root of the application and consequently struck out the motion of the Appellant.

Dissatisfied with the stance of the learned trial Judge, the Appellant filed notice of appeal dated 4th May, 2005 containing two grounds of appeal. Parties filed and exchanged their briefs in accordance with the rules and practice of this Court. However, the 2nd and 3rd Respondents did not file any brief and no reason has been proffered for their inability to file their briefs.

When this matter came up for hearing on 19th March, 2009, only the 1st Respondent was in court and his counsel.

The Appellant, the 2nd and 3rd Respondents were neither present not represented by counsel. Since the appellant had filed his brief, this appeal was deemed duly argued vide Order 17 Rule 9 (4) of the Court of Appeal Rules 2007.

Before going into the appeal proper, I need to point out here that the 1st Respondent filed notice of preliminary objection dated 21st May, 2007 on the same date. I shall determine the preliminary objection before taking further steps in the appeal if need be.

The preliminary issues are two and are as follows:-

“1. That this appeal is incompetent and this Honorable Court lacks the requisite jurisdiction to entertain same and this should be struck out.

2. The Grounds (sic) two of this appeal is incompetent as it raises an issue that was not canvassed at all at the Lower Court and should be struck out along with the Brief of Argument thereof or other orders as the Honorable Court may deem fit to make in the circumstance.”

The two preliminary issues are anchored on three grounds hereunder stated:-

“(i) There is no evidence on the record of this Appeal to show that the Notice and Grounds of Appeal relied upon in Appellants’ brief of Argument has been paid for at the Lower (sic) as no statement of the Registrar of the Court below on the record concerning particulars of the case and there is no schedule from the Registrar of the fees paid at the Lower Court.

(ii) The decision and finding of the Lower Court sought to be appealed against stemmed directly from exercise of discretion of the Lower Court and leave of court is no doubt required to appeal against same and no such leave either from the Lower Court or the Court of Appeal was sought and obtained by the Appellant before this appeal was purportedly filed.

(iii) Grounds (sic) two of this Appeal is to the effect that the 1st Respondent challenged the competence of the certiorari application by way of additional authority without any Summons or Motion on Notice is being raised for the first time in this Appeal and no leave of this court was sought and obtained to that effect.”