Pere Roberto Nigeria Ltd. V. A.A. Ani (2007)
LawGlobal-Hub Lead Judgment Report
HUSSEIN MUKHTAR, J.C.A.
By a writ of summons and a statement of claim dated 2nd May and 28th April 1995 respectively and both filed on the 2nd May 1995, the respondent as plaintiff in the court below instituted an action for recovery of possession of property situate at No. 24A Cameron Road, Ikoyi, Lagos claiming the following reliefs:
- “That the plaintiff is entitled to the possession of the premises known as flats 1 and 2 together with the appurtenances situate at No. 24A, Cameron Road, Ikoyi, Lagos State, which were let by the plaintiff to the defendant for a tenancy for two (2) years certain commencing 1st April, 1992 under a rent of N=180,000.00 (one hundred and eighty thousand naira) per annum for flat No. 1 and which tenancy was determined by effluxion of time on 31st March 1994 and in respect of flat No. 2 let by the plaintiff to the defendant for a tenancy for two (2) years certain commencing 1st March 1992 under a rent of N160,000.00 (one hundred and sixty thousand naira) per annum and which tenancy was determined by effluxion of time on 29th February 1994. The plaintiff’s legal practitioners did serve on the defendant a notice in writing dated 28th April 1995 of plaintiff’s intention to apply to recover possession of the said premises and notwithstanding the said notice, the defendant has failed, neglected and or refused to delivered up possession of the said premises and still detains same.
- (i) The plaintiff claims possession and mesne profit on a pro-rata basis being a proportion of the annual rental value of the premises for the period the defendant continues to remain in possession thereof until possession is given up.
(ii) Interest rate on the said mesne profit at 35% per annum from the date judgment is entered until final payment of the judgment debt and costs awarded in the matter.”
The defendant/appellant entered a notice of preliminary objection dated and filed on 16th June 1998 challenging the competence of the suit and urging the court to dismiss it on the ground that the appellant was not served with the requisite statutory notices under the Recovery of Premises Act as a statutory tenant. In her ruling delivered on 4th June 1999 dismissing the objection, D. F. Akinsanya, J. sitting at the High Court of Lagos State held thus:
“Ruling is delivered dismissing the defendant’s objection with N=500.00 cost to the plaintiff and against the defendant. The case is now set down for hearing for 29th and 30th September 1999. It is now adjourned.” (See page 78 of the Record)
This was the full ruling delivered by the court below on 4th June, 1999 against which the appellant brought this interlocutory appeal on the following two grounds:
- “That the learned trial Judge misdirected herself when she held that the appellant was a contractual tenant and not a statutory tenant hence the appellant need not be served with the requisite statutory notice to quit.
- The trial Judge erred in law when she held that the appellant became a tenant at sufferance.”
From these two grounds, the learned counsel for the appellant raised three issues for determination as follows:
- “Whether the learned trial Judge was right to have determined at the interlocutory stage of the proceedings that the defendant/appellant is a contractual/tenant at sufferance and not a statutory tenant as pleaded in paragraph 2 of the statement of defence.
- If the answer to the first issue for determination is in the affirmative. Whether the learned trial Judge was correct when she held that the defendant was a tenant at sufferance.
- Whether the learned trial Judge was correct in deciding to admit further evidence by way of an affidavit after the counsel for the defendant/applicant had argued his motion without the plaintiff/respondent obtaining leave of court to file same and the defendant/appellant not given the opportunity to file a counter affidavit.”
The law is well settled that issues raised for determination must be distilled from the grounds of appeal. The third issue, which would have violated the rule against proliferation of issues, relates to admission of further affidavit evidence after the appellant had argued its motion at the lower court. It is not related to any of the two grounds of appeal and should therefore be struck out as being worthless and incompetent. My learned brother Ibiyeye, JCA has aptly observed in INTEGRATED BUILDERS VS DOMZAQ VENT. (NIG) LTD (2005) 2 NWLR (pt 909) 97 at pp. 112- 133 paras G-C thus
“Issues for determination in an appeal must arise from and related to the grounds of appeal filed. Therefore, any issue for the determination of an appeal, which has no ground of appeal to support it, is worthless and would be struck out. Also, a ground of appeal from which an issue is not identified is deemed abandoned and liable to being struck out. In instant case, issues 2 and 3 in the appellant’s brief of argument related to variation of written agreements by oral agreement which were not raised from the five grounds of appeal. They are therefore held incompetent and discountenanced. Furthermore, since no issues were raised from grounds 3, 4 and 5 of the grounds of appeal, those grounds were deemed abandoned and struck out.”
The third issue is clearly outside the scope of the two grounds of appeal and therefore tantamount to a non-starter. Having not been premised on any ground of appeal the appellant’s third issue should be and is accordingly hereby struck out, including the arguments canvassed thereon.
See OSINUPEBI VS SAIBU (1982) 7 SC 104; UGO VS OBIEKWE (1989) 1 NWLR (pt.99) 566; ARE VS IPAYE (1986) 3 NWLR (pt. 29) 416; UMORU VS STATE (1990) 3 NWLR (pt. 138) 363; CHUKWUOGOR VS OBUORA (1987) 3 NWLR (pt. 61) 454; MADAGWU VS STATE (1988) 5 NWLR (pt. 9) 2; A. P. LTD VS OWOWUNMI (1991) 8 NWLR (pt. 210) 391; OKOYE VS NIGERIA CONSTRUCTION FURNITURE LTD (1991) 6 NWLR (pt. 199) 501; A. B. C. VS MOLOKWU (2003) 9 NWLR (pt.825) 265; ASTRACO (NIG) LTD VS TRADE BANK PLC (2003) 6 NWLR (pt. 815) 22.
The respondent has not formulated any issue but adopted the appellant’s issues, by proceeding to argue on the same issues. The respondent’s argument on the void third issue is similarly struck out.
The learned counsel for the appellant submitted, on the first issue that the learned trial Judge having determined the nature of the tenancy at an interlocutory stage has effectively decided an issue for the main trial. It also, he further submitted, prejudices the defendant/appellant in the presentation of its case, having averred in the statement of defence that the defendant/appellant is a statutory tenant. The appellant’s counsel further said that the main and only defence is premised on the fact that the appellant is a statutory tenant entitled to quit notice under the Recovery of Premises Law. See SHELL DEVELOPMENT CO VS LAWSON-JACK (1998) 4 NWLR (pt.545) 249 at 278-279 paras H-B; ORJI VS ZARIA INDUSTRIES LTD (1992) 1 NWLR (pt 216) 124 at 141 H; AFRICAN PETROLEUM VS OWODUNNI (1991) 8 NWLR (pt. 210) 391 at 419 BC; PANASIAN AFRICAN CO LTD VS NICON (1982) 9 SC 1 at 13.
The learned counsel for the appellant further submitted that it is contradictory for the learned trial Judge to have decided that notices should be proved at the trial and yet hold that the appellants are contractual/tenant-at-sufferance at this stage without any evidence led thereon. He said by so doing the Judge has already decided the main issue before the actual trial commenced.
On the second issue, the learned counsel for the appellant argued that there is nothing in law called tenant-at-sufferance and that the appellant is a statutory tenant. This, he added is because when the contractual tenancy expired, the parties thereafter entered in to negotiations for a new lease and that made the appellant entitled to a prescribed notice before determining the tenancy under the Rent Control and Recovery of Premises Law of Lagos State 1994. See AFRICAN PETROLEUM VS OWODUNNI (supra); SULE VS NIGERIAN COTTON BOARD (1985) 2 NWLR (pt. 5) 17.
The learned counsel for the respondent however, submitted that the trial Judge did not hold that the appellant was a tenant at sufferance or at will but only commented in dismissing the preliminary objection that the issue of notices would be determined at the main trial. He said it is therefore misleading to say that the learned trial Judge pre-determined an issue for the main trial before hearing evidence.
The respondent’s counsel also contended that the appellant’s counsel had misconstrued the decision in A. P. v. OWODUNNI (supra). He said the law rather than the appellant dictates how notices are given, and moreover it is an issue to be determined at the trial.
On the second issue the respondent’s counsel submitted that the arguments of the appellant’s counsel are only appropriate before the lower court in the defence of the plaintiff/respondent’s claim on the merit.
It is pertinent, even at the risk of repetition, to reproduce the ruling delivered by the lower court on the preliminary objection on the 4th June 1999 by Akinsanya, J, which is the subject of this appeal. The single sentence ruling runs as follows:
“Ruling is delivered dismissing the defendant’s objection with N=500.00 cost to the plaintiff and against the defendant. The case is now set down for hearing for 29th and 30th September 1999. It is now adjourned.”
(Emphasis supplied)
The proceedings on the next adjourned date on 29th September 1999 were for stay of proceedings. (See page 78 of the Record). All the learned trial Judge did was the dismissal of the preliminary objection and ordering hearing of the case on the merit, though without giving reasons for the decision. However that does not form part of the grounds of appeal and cannot therefore be countenanced being a non-issue.
The core of the arguments or relevant question for determination, which cuts across the two issues raised in this appeal, is whether the learned trial Judge was right in dismissing the preliminary objection. A preliminary objection is normally raised either to challenge the jurisdiction of a court to hear and determine the case before it or the competence of the action.
It is an elementary principle of the law that jurisdiction of the court is determined by the plaintiffs claim as endorsed on the writ or the statement of claim. In the instant case the appellant did not challenge the court’s jurisdiction but rather the preliminary objection was based on failure of the respondent to serve him with notice to determine the tenancy. The law is equally trite that where the defendant seeks to terminate the suit in limine on any ground other than lack of jurisdiction, he must do so by application of the rules of court. The appellant in this case has neither challenged the jurisdiction of the trial court nor did it come under any rule of court to terminate the plaintiff/respondent’s suit in limine. Rather the basis of the objection being failure to serve notice is, at best, a defence to the plaintiffs claims. The Supreme Court in EGE SIDPPING AND TRADING IND VS TIGRIS INT’L CORP (1999) 14 NWLR (pt. 637) 70 at pp. 89-90 paras H-A held:
“Once there is jurisdiction in the court to adjudicate on a claim, a defendant/applicant can only determine the case in limine by application under the rules of court.”
It is difficult to see any good reason for the preliminary objection, which is apparently not even premised on the decision of the Court below.
One gets a very dim view of the purpose or purports of the defendant/appellant’s preliminary objection other than to merely waste valuable time. The two similar grounds of appeal have woefully failed.
It is rather sad that a period of about thirteen years, from the institution of the action in the court below in May 1995, have been wasted on frivolous preliminary objection. My conscience and sense of justice are strongly opposed to such delay tactics where one party hides under the guise of frivolous preliminary objection and deliberately blocks every avenue to the progress of the case and determination of the rights and obligations of the parties on the merits. It makes anything but sense for proceedings in a simple case of recovery of premises to stagnate for about thirteen years at preliminary stage. The appeal being devoid of substance is accordingly hereby dismissed and the ruling of the lower court dismissing the preliminary objection and ordering the hearing of the case on the merits is affirmed.
I award cost of N=30,000.00 to the respondent against the appellant.
Other Citations: (2007)LCN/2519(CA)
