Lawal Usman Ibrahim V. Deputy Sheriff & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of Hon. Justice Isa Aliyu of the High Court of Kaduna State in Suit No. KDH/Z/351/2007, delivered on the 29th day of June 2009, in which the Appellant was the Plaintiff.

The Court, following a Preliminary Objection filed by the 1st Defendant, the Deputy Sheriff of the High Court of Kaduna State (1st Respondent herein) requesting for the dismissal of the suit, struck out the suit, holding that the court had no jurisdiction to hear the same.

Dissatisfied with this decision; the Plaintiff appealed to this Court, seeking an order setting aside the order of the lower Court. He also sought for an order remitting the case to another Judge for trial.

The 3rd Respondent, in response to the appeal, filed a Notice of Preliminary objection on 12/6/13 contending that the appeal is incompetent and ought to be struck out.

At the hearing of the appeal, the Appellant and the 3rd Respondent adopted their Briefs of Argument. Senior Advocate of Nigeria, Mr. Yunus Ustaz Usman for the 3rd Respondent, drew the Court’s attention to the Notice of Preliminary Objection filed on behalf of the 3rd Respondent, which, he said, had been argued on pages 4-8 of the Respondent’s Brief of Argument.

The other Respondents filed no Briefs of Argument and were absent and unrepresented at the appeal, even though notified.

The Appellant’s Brief of Argument was settled by K. A. Adedokun Esq of K.A, Adedokun & Co. The 3rd Respondent’s Brief was settled by Yunus Ustaz Usman (SAN) of Yunus Ustaz Usman (SAN) & Co.

Two issues for determination were raised by the Appellant, as follows:

1. Whether the learned Judge did not deny the Plaintiff the right to fair hearing as enshrined in Section 36 of the 1999 Constitution.
2. Whether the learned trial Judge rightly declined jurisdiction on the ground that the Plaintiff’s suit is statute barred.

The 3rd Respondent, in the event that his Preliminary Objection failed, raised the following as his issues for determination in the appeal, namely:

1. Whether the Deputy Sheriff (1st Defendant/1st Respondent) can be sued on 24th July 2007 for the sale conducted by him in his official capacity on 31st January 2007.
2. Whether the Appellant was denied his right to fair hearing.

Before proceeding to a determination of the issues for determination, it is necessary to treat the Notice of Preliminary Objection filed by the 3rd Respondent.

The Preliminary Objection of the 3rd Respondent is that the appeal is incompetent and ought to be struck out, on the following ground:

“Having not appealed against the profound finding of the Honourable trial Judge to the effect that the 1st Respondent (whose action of auctioning the Appellant’s landed property is the primary lis in the action) is not a juristic personality capable of suing or being sued, the appeal has become academic.”

Arguing the Preliminary objection, counsel to the 3rd Respondent, in the 3rd Respondent’s Brief of Argument, submitted that once the lower Court granted the prayers contained in the Notice of Preliminary objection, the only way to challenge those findings is by way of appeal.