Hussain Yusuf Hajaig & Anor V. Dele Yusuf Hajaig & Ors (2003)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A. 

This is an interlocutory appeal against the ruling of the Kaduna State High Court delivered on 5/8/98.

The respondent who is the applicant before the trial court, filed a motion ex-parte on 26/1/98 dated 23/1/98, pursuant to Order 48 rule 3 of the Kaduna State High Court (Civil Procedure) Rules, 1987, the application reads:

“TAKE NOTICE that this Honourable Court shall be moved on the … day of … 1998 at the hour of 9 O’clock in the forenoon or soon afterwards as counsel will be heard on applicant’s behalf for the following:

1. An order granting leave to the applicant to apply for judicial review by way of certiorari to quash the proceeding and judgment of the Upper Area Court No.1 Zaria in Re: CVF1/141/97 Dele Yusuf Hajaig v. Mr. Hussain I. Hajaig & 1 Or. for contravening the provisions of Order 2 and Order 11 rule 5 of the Area Courts (Civil Procedure) (Amendment) Rules, 1994.
2. An order staying all actions and maintaining the status quo ante pending the determination of the motion on notice.
3. Such other orders as the Honourable Court may deem fit to make in this case.”

The application was supported by a sixteen-paragraph affidavit of urgency, three paragraphs verifying affidavit and a statement. The respondent also filed a motion on notice dated 19/2/98, filed same date, pursuant to Order 42 rule 5 of the Kaduna State High Court (Civil Procedure) Rules, 1987. The application reads as follows:

“TAKE NOTICE that this Honourable Court will be moved on the 9th day of March, 1998 at the hour of 9 O’clock in forenoon or soon afterwards as counsel will be heard on applicant’s behalf for the following relief:

1. An order of certiorari quashing and annulling the proceeding and judgment of the Upper Area Court 1, Zaria in Re: CVF1/141/97 (Dele Yusuf v. Mr. Hussain Yusuf Hajaig & l Or.) contravening the provision of Orders 2 and Order 13 rule 5 of the Area Court (Civil Procedure) (Amendment) Rules, 1994.
2. Such other orders as the court may deem fit to make in the circumstance of this case.”

The application was supported by an eight paragraph affidavit deposed to by one Dele Yusuf of No. 28, Queen Elizabeth Road, G.R.A., Zaria. The affidavit in support reads:

“2. That the said application is attached as exhibit A.

3. That I adopt the affidavit in support of exhibit A and repeat the averments therein for the purpose of the motion on notice.
4. That the 1st respondent evidently has lost impression of what transpired on the case in his judgment.
5. That the 1st respondent though, adopted the Islamic Law mood of trial, has not applied the Islamic principle and had rather followed the pattern of common law trial.
6. That the 1st respondent gave judgment instantly without reviewing the evidence before him being not the recorder of the proceedings.
7. That the trial, 1st respondent, Judge, awarded what was not claimed in the case.
8. That I swear to this Oath in good faith and in accordance with the Oaths Act, 1990, L.F.N.”

In view of the averment in paragraph 3 of the supporting affidavit, it is pertinent to reproduce the affidavit deposed to by the respondent as application in support of the motion ex-parte. Paragraphs 1-16 of the said affidavit reads as follows:

“1. That I am the applicant in this application.

2. That I sued the 2nd and 3rd respondents before the first respondent in case No. CVF1/I41/97.
3. That throughout the period of hearing of the said case up to the point of judgment, I was always present in court.
4. That I know as of fact that from the day this case was mentioned up to the day of judgment, the 1st respondent did not record the proceedings in this case.
5. That the proceedings in this case was recorded by one Mallam Musa at one occasion and also by one Mallam Sanni at the other occasion both of whom are clerks of the 1st respondent’s court.
6. That the evidence of PW1, PW2 and PW3 was recorded by the said Mallam Musa while the cross-examination of PW3 and the judgment was recorded by the said Mallam Sanni.
7. That the 1st respondent aforesaid did not consider part of the important evidence led by the PWI in the case due to the fact that he was not the person who recorded the proceedings.
8. That PW1 in his evidence aforesaid stated that my father told him before the latter’s death that I am his son delivered for him by a woman he married in Lagos.
9. That the 1st respondent did not avert his mind to the underlined portion of the evidence given by PW1 but restrict the consideration of the evidence to the aspect only that my father told PQ that I am his son and no more.
10. That I sued my other brothers 2nd & 3rd respondents, claiming the distribution of the Estate left by our father but the 2nd & 3rd respondents said they do not know me while I had been living with them and taking care of our father’s properties during his life time.
11. That I was delivered to my father who is a Lebanese by Nigerian mother who my father married in Lagos and later re-married to another Lebanese woman after the death of my mother.
12. That the 2nd & 3rd respondents are the product of the marriage between my father and the Lebanese woman while I am the product of the marriage between my father and the Nigeria woman.
13. That as a result of the purported judgment and proceedings of the 1st respondent aforesaid, the 2nd & 3rd respondents are now threatening to frustrate and forcefully eject me from my father’s house and properties.
14. That the 1st respondent completely lost track of the proceedings and the procedure adopted by him in the case.
15. That I undertake to abide by any condition this Honourable Court may impose for the purpose of granting this application.
16. That I swear to this Oath in good faith and in accordance with the Oaths Act, 1990, L.F.N.”

The 1st respondent now 1st appellant, Alhaji Jumare Jalalu of No. 1, Zaria, off Rigachukum Town of Igabi Local Government deposed to a five paragraphs counter-affidavit which reads as follows:

“1. That I read the two affidavits of one Dele Yusuf in support of both the ex-parte applications dated 26/01/98 and that in support of motion on notice dated 19th February, 1998.

2. That paragraphs 4, 5, 6, 7,8 and 9 of the affidavit dated 26th January, 1998 are false.
3. That paragraphs 4,5,6 and 7 of the affidavit dated 19th February, 1998 are false.
4. That I took full proceedings personally in respect of case No. CVF1/141/97 between Dele Yusuf Hajaig v. Hussain Yusuf Hajaig & 1 Other.
5. That I swear to this Oath in good faith and in accordance with Oaths Act, 1990.”

A nine paragraphs counter-affidavit was also deposed to by one Esther Ogunkola of Bida Street, Muchiya, Sabon Gari, Zaria, on behalf of the 2nd & 3rd respondents now 2nd & 3rd appellants.

The nine paragraphs counter-affidavit reads: