Emeka Nwana V. Federal Capital Development Authority & Ors (2004)
LAWGLOBAL HUB Lead Judgment Report
TOBI, J.S.C.
The appellant was a Principal Technical Officer with the 1st respondent. He was allocated a 2 bedroom flat at Area 2, section 1, Block 41, flat 2, Garki, Abuja. On 11th April, 1989 his appointment was terminated. Following the termination, the 1st respondent and other persons acting on its behalf as agents and servants entered the house and took possession of same. The appellant was thereby deprived of the use and enjoyment of the premises. He claimed that his properties were damaged in the process.
He filed an action at the High Court of Justice, Federal Capital Territory. He claimed for N250,000.00 exemplary damages. Parties gave evidence at the trial. The learned trial Judge gave judgment in favour of the appellant. He awarded him NI20,268.00 special damages for trespass committed on the premises and goods.
Dissatisfied, the respondents appealed to the Court of Appeal as appellants. That court overturned the decision of the learned trial Judge. In allowing the appeal, the court dealt with an area of law. It is the position of the common law in respect of a licensee’s right over estate in property. Salami, JCA, delivered the leading judgment. Relying on Dr. Chukwumah v. Shell Petroleum Development Company of Nigeria Limited (1993) 4 NWLR (Pt. 289) 512, Salami, JCA, said at page 88 of the record:
“I am bound by the decision of the Supreme Court which says that at common law a licensee has no estate in a property and can for that reason not sue his employer in trespass. The respondent’s claim is baseless. I also dismiss it. I allow the appeal and set aside the decision of the court below.”
Dissatisfied, the respondent, as appellant, has come to this court. As usual, briefs were filed and exchanged. The appellant formulated two issues for determination as follows:
“2.1 Whether Chukwumah v. Shell Petroleum Development Company of Nigeria Limited (1993) 4 NWLR (Pt. 289) 512 truly decided that at common law a licensee has no estate in a property and can for that reason not sue his employer in trespass.
2.2 Whether the Court of Appeal was right to have formulated an issue suo motu and based its judgment on same without calling on the parties to address the court on the issue.”
It would seem to me that the respondents have adopted the issues formulated by the appellant. I say so because the position is not clear. The two issues formulated by the appellant are on page 1 of his brief. Respondents say in their brief that they will “answer the two issues contained on pages 3 to 8”. While the respondents did not say pages 3 to 8 of what document, I have taken the trouble to look at all the processes including the record of proceedings but I cannot place my hands on the issues formulated on any “pages 3 to 8”. In the circumstances, I take it that the respondents adopt the two issues formulated by the appellant.
Learned counsel for the appellant submitted on issue No. 1 that the case of Chukwumah v. Shell Petroleum Development Company of Nigeria Limited (supra) is inapplicable, as the statement by Karibi- Whyte, JSC, relied upon by the Court of Appeal is an obiter dictum which is not binding on this court. Quoting the ratio of the case in the leading judgment of Ogundare, JSC, learned counsel cited the following cases as deciding similar point: Foreign Finance Corporation v. Lagos State Development and Property Corporation (1991) 4 NWLR (Pt. 184) 157, (1991) 5 SCNJ 54; Military Governor of Lagos State v. Chief Ojukwu (1986) 1 NWLR (Pt. 18) 621; Ihenacho v. Uzochukwu (1997) 2 NWLR (Pt. 487) 257, (1997) 1 SCNJ 117 at 128; Eliochin (Nig.) Limited v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 and Calabar East Co-operative v. Ikot (1999) 14 NWLR (Pt. 638) 225, (1999) 12 SCNJ 326 at 337.
On issue No.2, learned counsel, reacting to the conclusion of the Court of Appeal that issue No.3 was formulated from ground 4, submitted that ground 4 of the respondents grounds of appeal at the Court of Appeal was on fact not law. The issues formulated therein complained of interpretation placed on the allocation letter by the court of first instance, learned counsel maintained. He argued that there is no way that the issue formulated by the Court of Appeal based on the interpretation of provision of the Recovery of Premises Act can be derived from issue No.3 and or ground 4 of the respondents brief.
It was the submission of counsel that where a court formulates an issue suo motu the parties must react to it. He cited Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250, (1999) 12 SCNJ 259 at 273; Umaru v. Abdul-Mutallabi (1998) 11 NWLR (Pt. 573) 247, (1998) 7 SCNJ 203 at 220 and Irom v. Okimba (1998) 3 NWLR (Pt. 540) 19, (1998) 2 SCNJ 1 at 5. Counsel urged the court to ignore totally the judgment of the Court of Appeal based on issues not raised by either of the parties.
Learned counsel for the respondents, Mr. P.Y. Okala, Director, Legal Services, Federal Capital Development Authority, submitted that the case of Chukwumah v. Shell Petroleum Development of Nigeria Limited (supra) is relevant as it decided that at common law, a licensee has no estate in a property and can for that reason not sue his employer in trespass. He submitted that the statement of law by Karibi- Whyte, JSC, is not his opinion but a principle rooted deeply in our legal system. Counsel submitted that the appellant is a licensee. He cited Oyekoya v. GB Olivant (Nig.) Ltd. (1969) NSCC (Vol. 6) 69 and Mobil Oil (Nig.) Ltd. v. Johnson (1961) 1 All NLR 93 at 101, (1961) 1 SCNLR 157.
On issue No.2, learned counsel submitted that the issue raised borders on technicality and urged the court to pursue justice. He cited Akunyili v. Ejidike (1996) 5 NWLR (Pt. 449) 381 at 390. He also submitted that a party cannot be allowed to take advantage of a benefit from his initial wrong. He cited Solanke v. Abed (1962) 1 SCNLR 371, (1962) NSCC (Vol. 2) 160 at 161. He urged the court to dismiss the appeal.
The fulcrum of this appeal is the decision of this court in Dr. Chukwumah v. Shell Petroleum Development Company of Nigeria Limited (supra). Let me state the facts of the case in full, particularly because of the submission of counsel for the appellant that the case is not applicable. The appellant, a medical practitioner, was offered employment by the respondent in October 1975. His appointment was subsequently confirmed making him a member of the respondent’s Contributory Pension Fund and entitled to other benefits enjoyed by the other employees of the company. While in the respondent’s employment, the appellant was residing with his family in a house provided by the respondent within the respondent’s premises at Warri. By a letter dated 18th August, 1981, the appellant’s appointment was terminated with effect from the date of the letter. The company also gave him a month’s notice to vacate the house in its premises. Aggrieved by the letter of termination, the appellant sued inter alia for compensation, damages and injunction restraining the respondents from disturbing his possession of the premises.
As the appellant failed in the High Court and the Court of Appeal, he came to the Supreme Court. The Supreme Court allowed the appeal in part. The Court did not allow the issue for determination in this appeal and it is the issue of possession of the premises.
On the issue, Karibi- Whyte, JSC, in his concurring judgment citing the English case of Torbett v. Faulkner (1952) 2 TLR 659 with approval, said at page 566:
“Appellant in the instant case has no interest in the land even during his occupation of the premises. The licence to remain is automatically revoked on his retirement or for any cause ceasing to be employed. He cannot therefore be a tenant for the purposes of the housing arrangement made by respondent for its employees … It are well settled law that a licensee cannot maintain an action in trespass against a landlord. There is therefore no legal base for the claim in trespass. The court below was right to have dismissed the claim.”
The Court of Appeal relied on the above. Salami, JCA, pungently said at page 87:
“The case applicable is the case of Dr. Ben. O. Chukwumah v. Shell Petroleum Development Company Nigeria Limited (1993) 4 NWLR (Pt. 289) 512. In that case, the leading judgment of Ogundare, JSC, found the appellant to be a licensee just as the respondent in the instant appeal had been found to be a licensee whose occupation was for and on behalf of his employer. The other justices who sat on appeal including Bello, CJN, except Karibi-Whyte, JSC, did not discuss the issue. But Karibi-Whyte, JSC, in his own judgment not only did he find that the appellant was a servant whose occupation of the premises was subservient and necessary to the services which was his duty to render to the master he went to hold that he has no estate nor property whatsoever in the premises concerned save that of physical possession … I am bound by the decision of the Supreme Court which says that at common law a licensee has no estate in a property and can for that reason not sue his employer in trespass.”
Learned counsel for the appellant made two submissions in respect of the concurring judgment of Karibi- Whyte, JSC. The first one is that being a concurring judgment, this court should not attach much to it. With respect, I am not carried along by counsel in this submission. A concurring judgment, in my humble view, has equal weight with or as a leading judgment. A concurring judgment complements, edifies and adds to the leading judgment. It could at times be an improvement of the leading judgment when the justices add to it certain aspects which the writer of the leading judgment did not remember to deal with. In so far as a concurring judgment performs some or all the above functions, it has equal force with or as the leading judgment in so far as the principles of stare decisis are concerned.
However a concurring judgment is not expected to deviate from the leading judgment. A concurring judgment, as the name implies, must be in agreement with the leading judgment. A concurring judgment which does its own thing in its own way outside the leading judgment is not a concurring judgment but a dissenting judgment.
The mere fact that a concurring judgment mentioned in a positive and correct way what is not contained in the leading judgment does not make it wear the appellation of dissenting judgment. In so far as what is contained there is relevant to the issues in the matter, the judgment is acceptable as a concurring judgment. The next issue raised by learned counsel on the concurring judgment of Karibi-Whyte, JSC, is that it is an obiter. An obiter is a Judge’s passing remarks which have nothing to do with the live issues for determination in the matter. It is the statement of the judge by the way. In the principles of stare decisis, an obiter is not binding. Unlike ratio it has no binding force but it has a persuasive force. See Yusuf v. Egbe (1987) 2 NWLR (Pt. 56) 341.
It is however good law that an obiter of the Supreme Court, could with time, and repeated a number of times, assume the status of a ratio decidendi. See Maclean v. lnlaks Ltd. (1980) 8-11 SC 1; Agbai v. Okogbue (1991) 7 NWLR (Pt. 204) 391; Bamgboye v. University of Ilorin (1991) 8 NWLR (Pt. 207) 1.
But that is not the issue before us. The issue before us is whether counsel is correct in saying that what Karibi-Whyte, JSC, said in Dr. Chukwumah is obiter One of the issues was trespass to the house in the respondent’s premises at Warri. As a matter of fact the main issue like in this appeal, was whether the appellant was a tenant or a licensee in the premises which he occupied at No. 4 Benue Road, Oguru Residential Area, Warri. The appellant sued when the respondent dispossessed him of the house. Like in this appeal he sued for trespass and damages.
It is in the light of the above that Karibi- Whyte, JSC, said what he said above. Can what Karibi- Whyte, JSC, said be an obiter dictum I think not. It is a clear ratio decidendi. The issue of trespass was involved which called for damages which the appellant claimed. Perhaps the point I am struggling to make will be clearer if I reproduce the third relief:
“3. The plaintiff also claims the sum of N100,000.00 (one hundred thousand naira) being damages for trespass in that the defendant on 17th September, 1981 invaded the residence of the plaintiff situate at 4 Benue Road, Oguru, Warri vi et armis, which at all material times is occupied and is in possession of plaintiff and therein disconnected the electric power and water supply to the premises to the inconvenience of the plaintiff and generally committed sundry, wanton acts of trespass and annoyance in the said premises in the bid improperly and unlawfully to oust the plaintiff from possession.”
I must say straightaway that the facts of Dr. Chukwumah and those of the present case are generally similar. Both appellants were employees of the respondents. Both are licensees. In both cases, the respondents, their employers, terminated their appointments. Again, in both cases, after the termination of the appointments, the respondents, the employers, forcibly took possession. Can we say seriously that the Court of Appeal was wrong in following Dr. Chukwumah in this case I think not. In my view, the Court of Appeal was perfectly right in following the decision in Dr. Chukwumah.
Let me now take the issue in respect of the Court of Appeal raising issue suo motu.Order 6 of the Court of Appeal Rules does not provide for the formulation of issues by the court. See Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22;Anie v. Chief Uzorka (1993) 8 NWLR (Pt. 309) 1; Ugo v. Obiekwe (1989) 1NWLR (Pt. 99) 566; Adediran v. Interland Transport Limited (1991) 9 NWLR (Pt. 214) 155.
But in Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139, the Supreme Court approved the formulation of issues by the court. Karibi-Whyte, JSC, said at page 159:
“The court below was free either to adopt the issues so formulated by learned counselor to formulate such issues that are consistent with the grounds of appeal filed by the appellant. It is in the observance of this principle in pursuit of the proper administration of justice that the court below considered an appropriate formulation of the issue consistent with the grounds of appeal filed when it was observed that although the grounds of appeal were inelegantly drafted, the complaints therein were clear and not misleading.”
See also Erhahon v. Erhahon (1997) 6 NWLR (Pt. 510) 667.
In Federal Republic of Nigeria v. Alhaji Anache In Re: Chief Olafisoye (2004) 4 NWLR (Pt. 864) 580 at 642, (2004) 1 SCNJ 1, I said at page 25:
Although Order 6 of the Supreme Court Rules does not provide that the court can suo motu formulate issues for determination, there could be compelling situations when there will be need for such an exercise. If such situations arise, there may be need to get the reaction of counsel, which could be brought to their notice during the hearing of the appeal. That will go in a big way to comply with the fair hearing principles in our law.”
The issue formulated by the Court of Appeal reads:
“The only issue in this appeal, is whether the learned trial Judge rightly found that the respondent could not be ejected without faithful compliance with the provisions of Recovery of Premises Act.”
A party who complains about the formulation of issue or issues by the court must say what injustice has been done to him by such formulation. In the absence of such evidence, an appellate court cannot reverse the decision of the lower court. The formulation of the issue by the court must result in miscarriage of justice for this court to intervene in favour of the appellant. I have carefully examined the issue formulated by the court and I do not see the injustice done to the appellant.
In sum, this appeal fails and it is dismissed. I award N10,000.00 costs to the respondents.
SC.169/1999
