Siman & Ors V. Audi & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

CHIDI NWAOMA UWA, J.C.A.

The Adamawa State High Court presided over by his Lordship Abdulrahman, J. (hereafter referred to as the trial Court) on the 4th day of April, 2019 upheld a preliminary objection raised by the respondents and consequently declined to entertain the application for judicial review filed by the Appellants.

The background facts are that the Appellants were the Applicants who approached the trial Court for a judicial review of the proceedings of the Upper Area Court, Numan. The 1st – 4th Respondents sued the Appellants in suit No. UACN/CV/FI/6/2018 at the Upper Area Court, Numan presided over by the 5th Respondent. In their application for the issuance of the writ of summons dated 18th January, 2018, at pages 36 – 38 of the printed records of appeal, the 1st – 4th Respondents claimed ownership of Nwanma Fish Pond and sought a declaration that they are entitled to perform traditional rites/rituals over the fish pond. It was alleged that the sale of the fish pond by the 1st – 4th Appellants to the 5th Appellant without their consent was wrong.

It was made out that on the same date 18/1/2018 of the application for the issuance of the writ of summons was filed, the 5th Respondent sat and apart from issuing injunctive orders against the Appellants, also set aside the sale of the fish pond to the 5th appellant by the 1st – 4th appellants without the knowledge of any of the Appellants of the action against them. The orders of the Upper Area Court Numan are at page 51 of the printed records of appeal. The second order read thus:

“I hereby set aside the purported sale of Nwanma Fish Pond to the 6th Defendant/Respondent by the 1st – 5th Defendants/Respondents.”

The Appellants made out that the writ and other Court processes were not endorsed for service on the applicants outside the jurisdiction of the trial Court in Taraba State. Also, that the Respondents’ counsel in his application for issuance of the summons represented that some of the Respondents and the Appellants residing in Jen, Taraba State were within the jurisdiction of the Upper Area Court, Numan in Adamawa State, reference was made to paragraphs 1 and 2 of the Respondents’ application for the writ of summons, pages 36 – 37 of the printed records. It was the contention of the Appellants that the Respondents who assumed that residents of Jen in Karun Lamido Local Government Area of Taraba State were within the jurisdiction of the Upper Area Court Numan in Adamawa State, did not endorse the writ issued by the Upper Area Court, Numan for service in Taraba State.

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The Appellants made out that they were not served with any Court process and were not aware of the action against them before the orders setting aside their transaction in respect of the fish pond were made on 18/1/18 and that the 5th appellant was not served with the Court processes before any of the proceedings and orders affecting his interest sought to be quashed were made.

The Appellants alleged that they were neither heard nor any witness called, before the Upper Area Court Numan, presided over by the 5th Respondent, set aside the sale of the fish pond in dispute to the 5th Appellant and also proceeded to allow the 1st – 4th respondents sale of the fish pond in dispute thus, violating the Appellants right to fair hearing. Further, that the 5th Respondent sat over the matter without proof of service of any of the Court processes on the 5th Appellant and thus acted ultra vires and without jurisdiction which necessitated the application for a writ of certiorari to quash the said proceedings.

The Appellants on 15th March, 2018 obtained leave of the lower Court to apply for an order of certiorari for the purpose of quashing the proceedings of the Upper Area Court, Numan in Suit No: UACN/CV/FI/6/2018. The motion through which the leave was sought is at pages 6 – 57 of the printed records of Appeal, while the order of the trial Court granting leave is at page 346 of the records of appeal. The Motion on Notice for judicial review filed on 21/3/18 is at pages 58 – 123 of the records of appeal. It was made out by the Appellant that when their application first came up on 19th April, 2018, the Respondents were within time to file their processes but, the matter was adjourned to 18/6/2018. In the interim, the 3rd Applicant was gruesomely murdered on the 5th of May, 2018. Consequently, upon the death of the 3rd Applicant, the Applicants filed an application praying for the following orders:

1. “An order of this Honourable Court striking out the name of Danladi Siman (now deceased) who was the 3rd Applicant in this case.
2. An order granting leave to the Applicants to amend the statement in support of the application and to amend and re-swear the affidavit in support of the motion on notice.
3. An order of this Honourable Court directing and allowing the Applicants to file a fresh originating motion pursuant to the leave already granted them jointly with Danladi Siman (now deceased) by this Honourable Court on the 15th day of March, 2018.
4. An order deeming as properly filed and served the motion on notice, annexed to this application as Exhibit “APP” same having been separately filed and relevant fees paid.
5. AND for such order or orders as this Honourable Court may deem fit to make in the circumstance.”

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The said motion dated 10th October, 2018 is at pages 207 – 249 of the records, while the order of the lower Court granting the application is at page 349 of the printed records. Pursuant to the orders of the lower Court, the applicant filed a fresh application as directed by the lower Court, the new application in the name of the new parties filed on 12/10/18 is at pages 140 – 205 of the printed records. The application dated 10/10/2018, filed on 12/10/18 was served on the parties and the affidavit of service in that regard was filed on 9th November, 2018. The affidavit of service is at pages 288 – 290 of the records. The Respondents’ counter-affidavit and written address filed on 22nd November, 2018 with a written address is at pages 307 – 316 of the records.

The 1st – 4th Respondents’ notice of preliminary objection dated November, 2018 was filed on 22/11/18 challenging the jurisdiction of the Court to entertain the application, at pages 291 – 316 of the printed records of appeal, while the Appellants’ counter-affidavit to the preliminary objection and written address are at pages 317 – 333 of the printed records.

The lower Court heard the objection with the substantive application on the 6th of February, 2019 and on the 4th of April, 2019 delivered its ruling upholding the Respondents’ preliminary objection, but did not determine the main application. Dissatisfied with the ruling, the Appellants appealed to this Court.