Alhaji Musa Omo Eleja V. Josiah Aiyedun Bangudu (1994)
LawGlobal-Hub Lead Judgment Report
MAHMUD MOHAMMED, J.C.A.
The dispute between the parties in this appeal started in 1984 when the appellant sued the respondent in the Ilorin High Court. The Suit No. KWS/26/84 was determined on 16th October 1987 when Ibiwoye. J. in his judgment dismissed the claim of the appellant. Not satisfied with that decision, the appellant appealed to this Court.
The appellant’s appeal No. CA/K/65/88 was partially successful when this Court in its judgment of 27th April, 1989 allowed the appeal in part in that some of the appellant’s claims were allowed while the dismissal of the other claims of the appellant by the lower court were upheld. About one year after the decision of this Court of 27th April, 1989, the appellant again by a writ of summons dated 23rd April, 1990 filed another action against the respondent at the Ilorin High Court claiming the following reliefs:
A. Possession of the house situate at Sokoto Road Ilorin, leased by the plaintiff to the defendant on 19th of December, 1988 for a period of 3 years only.
B. Arrears of rent from June, 1989 till judgment is delivered at the rate of N1,080.00 per annum.
C. Mense profit from now until the date of judgment in this suit, at the rate of N1.080.00 per annum.
The case went through full trial before Ajayi, J. who in her judgment delivered on 12th December, 1991 allowed the appellant’s claims for arrears of rent under paragraphs Band C but dismissed his claim for possession of the house at Sokoto Road Ilorin leased to the respondent in the following words:-
“I also hold that because the quit notice do not comply with CAP 115, sections 2 and 7 the claim for possession of the premises fails and it is accordingly dismissed.”
It is against this decision of the lower court that the appellant again appealed to this Court upon filing his notice of appeal containing a single ground of appeal which reads-
“The learned trial Judge of the High Court of Justice. Ilorin, erred in law and came to a wrong decision by holding thus:-
‘I also hold that because the quit notices do not comply with CAP 115, sections 2 and 7 the claim for possession of the premises fails and it is accordingly dismissed’.
PARTICULARS OF ERRORS
- Where the plaintiff’s evidence in respect of the notices to quit showed that the proper procedure was not adopted, the court ought not to have dismissed the case.
- Where the plaintiff in a case fails to discharge the burden of proof bestowed upon him as in this case, the proper order to make is that of a non-suit or striking out and not dismissal of the case.
- Where an order of dismissal of a case is made by a court of law as in this case, there is a total bar to the aggrieved party’s right to relitigation upon the same matter or issues which engenders injustice and foul play.
- The effect of the order of the trial court reversed the judgment of the Court of Appeal.”
From this lone ground of appeal which is only complaining against the order of the lower court dismissing the appellant’s claim for possession, the learned counsel for the appellant quite rightly, in my view, identified only one issue for the determination of the appeal. The issue is whether the learned trial Judge was right in dismissing the appellant’s claim for possession. However, learned counsel to the respondent in ‘his brief has identified the following 3 issues from the single ground of appeal filed by the appellant. These issues are:-
- Whether Exhibits 1 and 2 were valid Quit Notices to warrant the granting of the appellant’s prayers for possession.
- whether the learned trial Judge was right in dismissing the suit and whether the learned trial Judge rightly exercised his discretion in dismissing the suit.
- Considering the earlier suit NO.KWS/26/84 and appeal No. CA/K/65/88 (both unreported) whether the appellant’s claim against the respondent is not barred by legal doctrine of Estoppel per Rem Judicatam.
It is pertinent to observe that, issues, 1 and 3 formulated by the respondent do not arise or relate to the only single ground of appeal filed by the appellant. The question of whether the quit notices Exhibits 1 and 2 are valid does not arise from the appellant’s ground of appeal which in effect had conceded that the quit notices were invalid. The appellant’s appeal is only challenging the correct order to be made by the trial court upon finding that the quit notices were invalid. Similarly, the respondent had raised the issue of estoppel per rem judicata in the 3rd issue with clearly does not flow from the ground of appeal. Therefore only issue No.2 identified by the respondent in the respondent’s brief is traceable to the appellant’s ground of appeal.
It is trite that this Court should ordinarily confine itself to the grounds of appeal filed and canvassed before it and to the issues that naturally arise out of those grounds of appeal. Any question or issue for determination which has no reference or relevance to any ground of appeal, should not be considered by the appellate court. Western Steel Works Ltd v. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt.49) 284. In the determination of this appeal therefore, I shall have to ignore the respondent’s issues I and 3 together with all the arguments in their support in the respondents brief as the 2 issues do not arise from the lone ground of appeal filed by the appellant. In any case, it is for the appellant to put forward the foundation of the issues for determination in an appeal in his grounds of appeal.
It is not opened to the respondent to depart from those grounds, or ignore some of them, or add his own. He can only, without departing from the grounds, formulate issues with a slant favourable to his case. In formulating of issues, a respondent can only add to grounds of complaint by the appellant if he had filed a cross-appeal or a respondent’s notice. See Rapheal Agu v. C.O. Ikewibe (1991) 3 NWLR (Pt.180) 385 at 416. Therefore in the present appeal, the issues of the invalidity of the quit notices and of Estoppel per rem Judicatam raised in the respondent’s brief not having been derived from the lone ground of appeal, could only have been entertained by this Court in this appeal if the respondent had filed a cross-appeal or respondent’s notice against the decision of the lower court. In the absence of such cross-appeal or respondent’s notice, the issues 1 and 3 raised in the respondent’s brief which for the reasons given are not relevant for the determination of this appeal are hereby ignored together with all the arguments in support of the issue in the respondent’s brief for being in-competent.
On the only issue identified for the determination of this appeal, namely:-
“Whether the learned trial Judge was right in dismissing the appellant’s claim for possession”.
Learned counsel to the appellant had submitted that the learned trial Judge having found that the quit notices Exhibits 1 and 2 being a precondition for instituting an action for recovery of possession under sections 2 and 7 of the Recovery of Premises Law CAP 115 of the Laws of Northern Nigeria applicable in Kwara State were invalid, should have struck out the claim of the appellant and not to have dismissed it. Counsel relied on a number of authorities including Osunrinde & Ors v. Ajamogun & ors (1992) 7 SCNJ 79 at 83: (1992) 6 NWLR (Pt.246) 136 and urged this Court to allow this appeal by entering a verdict of striking out the appellant’s claim so as to allow him to relitigate the same claim on the merit at the lower court. Learned counsel for the respondent on his part had maintained that the claim of the appellant was heard on the merits at the lower court and for the reason the order of dismissal of the appellant’s claim made by that learned trial Judge was quite in order on the authority of a number of decisions of the Supreme Court including Iyaji v. Eyigebe (1987) 3 NWLR (Pt.61) 523. Counsel therefore urged this Court to dismiss the appeal.
From the facts of this case relating to the claim of the appellant for possession of the premises at Sokoto Road Ilorin leased by the appellant to the respondent, the learned trial Judge found that the 2 quit notices issued to the respondent prior to the commencement of the action for the recovery of the premises were invalid not having satisfied the requirements of sections 2 and 7 of the Recovery of Premises Law CAP 115. The question is what is the correct order the trial Judge should have made in the circumstances of this case. Is it an order of dismissal or an order striking out the appellant’s claim or an order of non-suit? On when an order of dismissal should be made, Coker, J.S.C. (as he then was) had this to say in Ejiofor v. Onyekwe & Ors. (1972) 1 All NLR (Pt.2) page 527 at 536 –
“An order of dismissal operates as an estoppel per ram judicatam and ipso facto bars the losing party for all times from relitigating the same subject-matter. A finding that such a party is entitled to some though not ascertained portions of the land in dispute is not consistent with an order of dismissal. If a plaintiff fails in toto to prove his case, an order of dismissal should normally follows.”
This decision was cited with approval by Obaseki, J.S.C. (as he then was) in Okpaloka v. Umeh (1976) 9 -10 SC 269 at 299.
In the present case, the learned trial Judge found the respondent liable to pay the appellant arrears of rent no doubt based on the lease agreement between the parties by which the respondent occupied the premises at Sokoto Road, Ilorin, the appellant’s claim to the possession which the trial court dismissed. The claims of the appellant at the trial court did not fail in toto to justify the order of dismissal of claim of the appellant to recover possession of his own house leased to the respondent. To allow the order of the lower court to stand would no doubt result in the appellant being prevented from having access to the courts again to recover his own property. The resultant injustice is quite clear. The position of the law in this respect is that where the failure of a plaintiff to prove his case is due to a technical hitch, as in the present case, and the evidence adduced shows that the plaintiff is entitled to his claim or part of it and that the defendant is not entitled to judgment, the proper order to make is that of non-suit. See Ejiofor v. Onyekwe & ors (supra). In the present case, it is quite clear that the appellant lost his claim for possession not through his own fault but through the exuberance of his own counsel who issued invalid quit notices to the respondent. It is of fundamental importance in the administration of justice that the court should not allow its judicial role as an impartial and unbiased arbiter to be diverted from the path of justice by the conduct of an inaptitude counsel. The court has its primary role of doing justice between the parties before it. A Judge should therefore not sit unconcerned, watching where ignorance, inadvertence of forget fullness of counsel is likely to result in injustice. In such circumstances, a Judge is under a duty to correct the error leading to such injustice if this will not result in injustice to the other side. In the instant case, if the learned trial Judge had averted her mind to the effect of an order of dismissal of the appellant’s claim to recover his own house from a tenant, she would have non-suited him or strike out the claim rather than dismiss it because the order of non-suit or striking out would allow the appellant to relitigate on the claim for possession and also such orders would not have led to any injustice to the respondent who is not owner of the house.
Now looking at this appeal through another spectacle, the order of the lower court dismissing the appellant’s claim for possession was made not because the appellant had failed to prove his claim against the respondent but because the two quit notices issued by his counsel to the respondent bring a precondition under the law for of possession, were invalid. The claim of the appellant therefore having failed for non-compliance with the requirement of the service of valid quit notices under Section 2 and 7 of the Recovery of Premises Law CAP 115 of the Laws of Northern Nigeria as applicable in Kwara State, his claim should have been struck out for being incompetent and not simply dismissed. This is because in the circumstances, the service of valid quit notices under the law being a precondition for the recovery of possession, the claim of the appellant at the trial court was not brought by the due process of the law and upon fulfilment of any condition precedent to the exercise of jurisdiction having regard to the case of Madukolu & Ors v. Nkemdilim & Ors (1962) 1 All NLR 587. Indeed the Supreme Court had held in the case of Sule v. Nigeria Cotton Board (1985) 2 NWLR (Pt.5) page 17 at 36- 37 that in cases of recovery of possession such as the instant case, the service of the notice of intention to recover premises on the tenant is a condition precedent to the exercise of jurisdiction. In other words, in the absence of service of valid quit notice under the law, the claim of the appellant for the recovery of possession was not properly constituted and on the authority of Ekpere v. Aforije (1972) 3 SC 113, the appellant’s claim should have been struck out so as to afford him the opportunity of bringing a new action after complying with the requirement of serving valid quit notices. In the result, I hold that this appeal certainly has merit. Accordingly, the appeal succeeds and it is hereby allowed. The judgment of the trial court of 12th December, 1991 dismissing the appellant’s claim is hereby set aside. In its place, a judgment striking out the appellant’s claim is hereby substituted.
The appellant is entitle to costs assessed at N1,000.00.
Other Citations: (1994)LCN/0215(CA)
