AMADU v. IMMA

The application relates to the judgment of the Upper Sharia Court of Kebbi State sitting at Zuru. The respondents application was accompanied with four paragraphed affidavit, the English version of the record of the Upper Sharia Court Zuru, the Notice Appeal and a written address in support of the application.
The respondent herein did not attach the Hausa version of the record of proceedings and judgment of the Upper Sharia Court of Zuru, Kebbi State which he appealed against and to which his application relates with the application.
The respondents application was filed before the High Court Zuru on 15th July 2015 and served on one John Ahmadu who resides at Gommawa on 21st March 2016 instead of serving same on the respondent Danjumma Amadu whose address for service is Ribah Danko/Wasagu Local Government Area, Kebbi State.
In response, the appellant filed a counter affidavit and a written address that raised an issue of jurisdiction of the High Court to hear the respondent’s application and determine same on two grounds thus:
(a) That the record before the High Court was not complete, and
(b) That the respondent before the High Court was not served with the processes. (See pages: 28, 29, 30, 31, and 32 of the transmitted record of appeal).
On 14th June 2016 the lower Court delivered its ruling and granted the respondent’s application. The respondent was not satisfied with the said ruling hence this appeal founded on the following twin grounds:
1. The trial Court erred in law when it struck out the respondent’s written address with the counter affidavit only for the reason that it was filed out of 7 days provided by the civil Procedure Rules of the High Court of Kebbi State, 2011.
PARTICULARS
i. The written address of the respondent only raised issue of jurisdiction of the High Court vis-a-vis the process filed before it.
ii. The High Court held that: “leave was not sought for before it was raised”.

iii. Issue of jurisdiction needs no leave of Court before it can be validly raised.
iv. Rules of Court cannot prescribe how issue of jurisdiction can be raised.
2. The High Court was erred in law when it assumed jurisdiction even when the respondent was not properly served with the applicant’s application.
PARTICULARS
i. The respondent in the applicant’s application is Danjumma Amadu
ii. The process of the Court was served on one John Ahmadu.

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iii. There was no application for substituted service nor any order for same was made by the High Court.
iv. John Ahmadu was not made a party to the application before the High Court.
The appellant raised the following lone issue for determination in this appeal:
Whether or not the lower Court was right when it struck out the appellant’s written address and counter affidavit on the ground that it was filed out of time and without the leave of the lower Court even when the only issue raised therein is an issue of jurisdiction and when the processes before the Court showed that it was served on 21/3/2016 on one John Ahmadu of Gommawa instead of the appellant Danjumma Amadu.
The Learned counsel for the appellant referred to the provisions of Order 39 Rule 3 of the High Court of Kebbi State (Civil Procedure) Rules 2011, which gives a respondent in any application 7 days to file processes in opposition if he so wishes to do.
It was argued for the Appellant that, in the instant case, the appellant was served (with wrong name and address) with the motion documents on 21st March 2016. The appellant in response thereto filed his written address accompanied with counter affidavit on 30th March 2016 based on the service that was affected on him in the name of John Ahmadu of Gommawa Area of Zuru Kebbi State. It is pertinent that the appellant was in fact served with the motion documents though his name and address were wrongly inserted, he was sure it was meant for him. Having accepted service and even taken steps by filing a counter affidavit and written address, the appellant could not claim to have been misled by the mistake in his name and address. While the appellant, on the one hand argued that the insertion of wrong name and address amounted to non-service on him, yet on the other he admitted being served and even responded by filing necessary processes in response to the application.
The appellant did all that he was supposed to do as good as no mistake was made in serving him. The appellant could no longer complain that the service of the motion documents on him was irregular. I think he was properly served.
It was further argued for the appellant that the time for filing the response to the application had elapsed seven days after service of the motion process from 21st March 2016 to 28th March 2016. It was argued that 25th and 28th March 2016 were declared as Public Holidays and that the appellant’s time to file processes would have elapsed on 28th March 2016. It was further argued that the two-day holiday had the effect of extending the appellants time by two more days thereby making the filing of the appellants processes on 30th March 2016 regular. The Learned trial judge, however, assessed the processes filed by the appellant as incompetent by observing thus:
“He slept soundly and woke up only on the 30th day of March, 2016, a period of over 180 days. In the circumstance its my candid view that the respondent may continue in his slumber till eternity. This is because the rules have already shut their doors against him. He could have knocked at their doors with a motion on notice supported by an affidavit deposing to cogent and compelling reasons why the period stated in Order 39 Rules 1 Sub-rule 3 may be extended. This, the respondent has failed to do
Sequel to the foregoing reason, the lower Court struck out the written address and counter affidavit filed by the respondent on 30th March 2016 and granted the reliefs sought for by the applicant on 14th June 2016.

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It was further argued, for the appellant, that the written address and counter affidavit having raised an issue of jurisdiction regarding incomplete record and improper service, did not need the leave or extension of time.
The real issue to determine in this appeal is whether the lower Court was right in striking out or discountenancing the appellants written address due to late filing? Other issues raised like incompleteness of record are premature as they would only be relevant in the proper appeal pending at the lower Court and certainly not regarding an interlocutory, which is the subject of the instant interlocutory appeal.
It was clear that the appellants written address and counter affidavit were filed after the statutory time-frame to do so had expired. The 7th however fell on a public holiday that was 28th March 2016 following the declaration of that day as Easter Monday. However, in normal proceedings like the instant one, where the last day for taking any step in the proceedings falls on a public holiday, that step must be taken on the next working day immediately following the public holiday, which fell on the 29th March 2016. The process filed on 30th March was apparently one day outside the statutory time-frame. If so, the appellant would, in the circumstances, need to regularize it by an application for extension of time. Failure to so do portrays the processes so filed as incompetent.
However, it is one thing for a Court process to be intrinsically incompetent and quite another for the Court to make an adequate pronouncement thereupon culminating into striking it out.
The question is whether, in the circumstance of this case, the lower Court was right to have raised the issue of incompetence of the appellants counter affidavit and written address suo motu and strike out those processes without affording the parties opportunity to address on it. The Court could not raise an issue suo motu and proceed to resolve it without inviting parties to address it on that issue.
It is an elementary principle of the law that a case must always be decided on the issues raised before the Court by the parties and not on what was raised by the Court suo motu. See NNAMANI Vs. NNAMANI (1996) 3 NWLR (Pt. 438) 591, where it was held thus:
A Court should not give a decision on a point which was not argued before it.
Ideally Courts, being independent arbiters, should be reluctant to raising issues suo motu. Where, however, a Court raises any issue suo motu, it exposes itself to the vulnerability of descending from its exalted position to be soiled with the filth of the litigation. Much as the Court is entitled to make observations and even raise any issue suo motu, if it is in the interest of justice to so do, it cannot however decide such issues bereft of any input from the parties in the case.
For the foregoing reasons, the sole issue is partly resolved in favour of the appellant.
The appeal has partial merit regarding the issue raised suo motu and determined by the lower Court devoid of input by the counsel appearing in the matter. The appeal, therefore, succeeds in part and is hereby allowed. The ruling of the Court below delivered on 14th June 2016 is accordingly set aside. In the stead thereof, the matter shall be and is hereby referred to Chief Judge of Kebbi State for hearing by another judge of that Court.
In the circumstances, the parties shall bear their respective costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, Hussein Mukhtar, JCA and I am in complete agreement with his reasons and

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conclusion that since the competence of the appellants counter-affidavit along with the written address was raised suo motu without the imput from the parties, that decision can hardly stand. This made me to agree with the lead judgment that the appeal must succeed and to that extent; I too allow the appeal in parts and abide by the consequential orders.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother HUSSEIN MUKHTAR, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious and hereby succeed. I abide by other consequential orders made in the lead judgment.