Federal Housing Authority & Anor V Mr. A.A. Kalejaiye (2010)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C

The respondent as plaintiff sued the appellant as defendant in the Lagos High Court for the sum of N39, 340,800 as special and general damages for trespass and an order of injunction to restrain the 1st defendant from:

(a) Committing acts of trespass to the plaintiffs property being a house situate at House 9, “A” close, 7th Avenue, Festac Town, Lagos.

(b) Committing any further acts preventing the plaintiff from exercising his legal right of ownership over the said property of remaining on the said premises unlawfully.

The parties filed and exchanged pleadings. The defendants filed separate pleadings but did not appear in court to defend the case.

The plaintiff gave evidence and closed his case in June, 1997. After two adjournments at the instance of the defendants the learned trial Judge closed the case and reserved judgment since it was clear that the defendants were not defending the case. Before the close of the case learned counsel for the defendant cross-examined the plaintiff extensively.

In a judgment delivered by the learned trial judge on the 19th of March 1998 judgment was entered for the plaintiff as follows:

“In sum, I am satisfied that the plaintiff has proved his case by his uncontroverted evidence. He is entitled to judgment against both defendants. I accordingly find the two Defendants liable for trespass by going into the plaintiffs house, ejecting him therefrom and depriving him of possession of it. There will be judgment for the plaintiff for damages in the sum of N5,000 for trespass and a further sum of N9,557,300 being value of the plaintiffs property taken away by the 1st defendant and not returned to him.”

Finally, the learned trial Judge restrained the defendants from:

“(1) Committing further acts of trespass to the plaintiffs property, House No.9 ‘A’ Close 7th Avenue, Festac Town, Lagos.

(2) Committing further acts of preventing the plaintiffs from exercising his legal rights of ownership over the said property, House No. 9 ‘A’ Close, 7th Avenue, Festac Town, Lagos, or remaining on the said house unlawfully.

The defendants claim to have been aware of this judgment on the 24th of April, 1998 ie over a month after it was delivered. On the 27th of April, 1998 the defendants applied to set aside the judgment.

In a Ruling delivered on the 22nd of July, 1998 the learned trial Judge refused to set aside the Judgment and dismissed the application. On the 17th of November, 1998 the defendant sought for extension of time within which to seek leave to file Notice of Appeal. He withdraw the application and on the 27th of March, 2001 he filed an application before the Court of Appeal praying for the following Orders:

1. An order extending the time within which to seek leave to appeal against the judgment delivered by his Lordship Hon. Justice A.O. Silva on the 19th day of March, 1998
2. An order extending the time to file Notice of Appeal against the said judgment.
3. An Order granting leave to the applicants to appeal against the judgment delivered on the 19th day of March, 1998 by his Lordship Hon. Justice A.O. Silva.
4. An order deeming the Notice of Appeal already filed and served as duly filed and served.

In a considered Ruling delivered on the 9th of May, 2002, the Lagos Division of the Court of Appeal (Coram: Oguntade, Aderemi, Chukwumah- Eneh JJCA as they then were) found the application to be unmeritorious and dismissed it with costs of N4,000 to the respondent.

This appeal is against that Ruling. In accordance with order 6 Rules 5(1) (a) and (2) briefs were filed and exchanged by counsel. The appellants’ brief was filed on the 23rd of July, 2002 while the respondent’s brief was filed on the 12th of January 2006. The appellants filed a Reply brief on the 28th of October, 2008.

The appellants formulated two issues as arising for determination in the appeal:

1. Whether the Court of Appeal Lagos was right in refusing to hold that the Notice and Grounds of Appeal found at pages 13-15 of the Records disclosed arguable grounds of Appeal.
2. Whether the Court of Appeal Lagos Division was right in holding that no good and sufficient reason was adduced accounting for delay in filing the Notice and Grounds of Appeal to warrant an extension of time.

The respondent, on the other hand, formulated four issues which are:

1. Whether the court of Appeal Lagos was right in refusing to grant the defendants/applicants order extending the time within which to seek leave to appeal against the judgment delivered by his Lordship Hon. Justice A.O. Silva on the 19th of March, 1998.
2. Whether that Court of Appeal in Lagos was right in its Ruling that the defendants/applicants failed to explain away their inordinate delay to take necessary procedural steps to file Notice of Appeal having regard to the fact that application to set aside Judgment of the High Court was delivered on the 22nd July, 1998.
3. Whether the plaintiff/respondents claim of damages for trespass came under the purview of Section 230(1) (a), Section 250 (1) of 1979 Constitution as amended by Decree 107 of 1993 which transferred jurisdiction of such claim to the Federal Court and if it did, whether the applicants raised jurisdiction in their pleadings in the trial court.
4. Whether considering the totality of the proceedings before the trial court, the appellants were afforded a fair hearing.

This Court and the Court of Appeal are free to adopt or even formulate issues that in its view would determine the real grievance in an appeal.

This appeal is not an appeal against the judgment of Silva J. Delivered on the 19th of March, 1998, This is an appeal against the refusal of the Court of Appeal to allow the appellant to appeal from that judgment. Issue 4 formulated by the respondent asks the question/ whether the appellant was afforded fair hearing. This issue is completely irrelevant in this appeal.

In my view the appellants issues 1 and 2 and the respondents issue 3 on jurisdiction would be considered in this appeal, I now reproduce the issues as they would be examined.

Issue 1

Whether the Court of Appeal was right in holding that no good and sufficient reason was adduced accounting for delay in filing the Notice and Ground of Appeal to warrant extension of time.

Issue 2

Whether the Court of Appeal was right in refusing to hold that the Notice and Ground of Appeal disclosed arguable Grounds of Appeal.

Issue 3

Whether the trial court lacked jurisdiction to hear the respondent claims.

At the hearing of the appeal on the 27th of September 2010, learned counsel for the appellants, MR. C. EKEMEZIE adopted both appellants briefs filed on the 23rd of July, 2002 and 28th of October 2008 and urged us to allow the appeal. MR. K. OGUNLANA, learned counsel for the respondent adopted his brief filed on the 12th January 2008. Both counsel said nothing in amplification of their briefs.

The judgment of the trial court delivered on the 19th march, 1998 is a final decision.

By the clear provisions of Section 241 (1) (a) of the Constitution a right of appeal is conferred on a dissatisfied party to appeal to the Court of Appeal on any ground, be it pure Law, mixed Law and fact or facts see: Total International Ltd v. Anogboro 1994 4NWLR pt.337 p.147 where, as in this case the time for appealing had expired the dissatisfied party no longer has a constitutional right of appeal. He could only file a valid appeal if the judges of the Court of Appeal exercise their discretion in his favour by extending time to enable him appeal.

This court is concerned with whether the Court of Appeal was correct, bearing in mind that the granting or dismissing of the application is one within the Judges’ discretion, and this court will not interfere unless it can be shown that this discretion has not been exercised judicially and judiciously. That is to say the exercise of discretion must be with sufficient, correct and convincing reason, and not the judge acting as he likes.

In his brief learned counsel for the appellant observed that the reason for delay was that counsel pursued setting aside the judgment, instead of appealing the judgment, contending that it was an error or mistake of counsel. He submitted that, that is a good reason or ground for the delay in filing appeal on time. Reference was made to Iroegbu v. Okwordu 1990 NWLR pt.159 p. 649.

In further submissions learned counsel argued that the grounds of appeal show arguable grounds of appeal and grounds 1 and 2 are hinged on the jurisdiction of the State High Court to hear and determine the suit. He observed that the 1st appellant being a Federal Agency is covered by Section 230 (1) (S) of the 1979 Constitution as amended by Decree No. 107 of 1993 contending that the Federal Housing Authority cannot be impleaded before a State High Court, submitting that if a State High Court sits and tries the 1st appellant, as is the case here the proceedings amounts to a nullity for lack of jurisdiction by virtue of Section 230 (1) of the 1979 Constitution as amended by Decree 107 of 1993 which vests jurisdiction exclusively to the Federal High Court. Relying on Baclays Bank Ltd v. Central Bank of Nigeria 1976 5SC p,175.

A.G of Lagos v. Dosunmu 1989 3NWLR pt.111 p.552. He urged us to hold that jurisdiction is both arguable and a good ground for extension of time to appeal to be granted.

Learned counsel for the respondent observed that the appellants did not show sufficient reason to explain the delay to appeal and no good, substantial and arguable grounds of appeal were filed. On jurisdiction he argued that the respondents claims do not come under the purview of Section 230(1)(a) of the 1979 Constitution, He urged us to dismiss the appeal.

Order 2 Rule 31 of the Supreme Court Rules provides for enlargement of time to appeal or/and to seek leave to appeal. The important factors to be taken into consideration before granting or refusing an application for extension of time within which to appeal are:

(a) Good and substantial reasons for failure to appeal within the prescribed period; and

(b) Grounds of appeal which prima facie show good cause why the appeal should be heard.

An applicant must show by affidavit evidence good and substantial reasons for failure to appeal within the prescribed period and the proposed Notice of Appeal must contain grounds of appeal which prima facie show good cause why the appeal should be heard. An applicant need not show that his grounds of appeal must succeed on appeal. He is only to show that they are arguable. See. Ibodo v. Enarofia 1980 5-7SC p.42. Kotoye v. Saraki 1995 5 NWLR pt.395 p. 256. Both factors (a) and (b) above must co-exist for the application to succeed. See Mobil Oil v. Aqadaigho 1988 2NWLR pt.77 p.383.

Oba v. Eqberongbe 1999 8 NWLR pt.615 p.485.

In dismissing the application on the issue of delay in filing the appeal the Court of Appeal had this to say after examining relevant extracts of the affidavit in supports….

“.. .What more the ruling on the application to setting aside was delivered on the 22nd of July 1998. The present application was brought on 27th march, 2001. Undoubtedly the time lapse is too long. That there is non-compliance with the Law prescribing time to file a Notice of Appeal is beyond any doubt in this case … I say that this application is not worthy of further consideration,

The paragraphs of the affidavit in support which the appellant relied to explain the delay and which were examined by the Court of Appeal are paragraphs 5,6,7,8,9,10 and 11. They read thus:

5. That the Lagos High Court entered Judgment for the plaintiff on the 19th of March 1998 for non-attendance of the trial by the applicants.
6. That the 2nd appellant has no knowledge of the trial date and judgment until the 24th day of April 1998 after the judgment had long been entered.
7. That the second applicant then applied to the High Court to set aside the judgment on the 27th day of April 1998 and Ruling was delivered on the 22no of July, 1998,
8. That the court did not grant the application to set aside the judgment,
9. That the applicant have the intention of appealing to the Court of Appeal, against the judgment of the High Court.
10. That there are serious fundamental issues of Law to be heard on appeal and the appeal has a good ground of success.
11. That the delay in filing the appeal on time was caused by the hearing and ruling on the motion to set aside the judgment which took time in which the time limited for filing the appeal lapsed.

Judgment was delivered on 19/3/98. Appellant became aware of the Judgment on 24/4/98. Appellant applied to set aside the judgment on 27/4/98. Application to set aside judgment was refused and dismissed in 22/7/98. As at 22/7/98 the three months prescribed by Law to appeal had since run out. According to the appellants he was unable to appeal within three months after 19/3/98 because he was trying to get the judgment set aside, an error, or mistake by counsel who ought to have appealed immediately he became aware of the Judgment. The Court of Appeal was not impressed. I agree with the Court of Appeal. This is what that court had to say:

“…The option to appeal against the judgment delivered on 19/3/98 was very much open to the applicant as at 27/4/98 when he elected instead to bring an application to set that judgment aside …

The above is founded in Equity that once an election is made it cannot be recalled. See Pitman v. Gum Ewing 1991 AC p. 217.

Furthermore the appellant never bothered to explain why the application was brought on 27th of March, 2001, over two years after his application to set aside the judgment was dismissed on 22nd July 1998. Since no credible excuse in given for the delay no indulgence can be granted.

The Court of Appeal did not consider the grounds of appeal. This could be explained in that since the reasons for the delay are not credible, there was no need to consider grounds of appeal, as both must co-exist before the application can be successful. The appellant raised the issue of jurisdiction of the learned trial judge to hear the case in his proposed Notice of Appeal and in this appeal. Indeed in Wilbahi haulage Ltd v. Anambra Motor Manufacturinq Co. (Anamco) Ltd 2OO9 FWLR pt.485 p 1790.. I said that:

“It is only where a ground of appeal complains of jurisdiction and it appears so, that the court would no longer consider the reason for delay and would grant the application if no good reason was advanced to explain the delay.”

The issue of jurisdiction can be raised for the first time in any court and at any stage of the proceedings and in the Supreme Court for the first time. See Usman Dan Fodio University v. Kraus Thompson Organisation Ltd 2001, 15 NWLR pt. 736 p. 305.

The issue of jurisdiction is fundamental, in that where a court has no jurisdiction to hear and determine a claim, and it proceeds to hear the claim the entire proceedings and judgment would be an exercise in futility, a waste of precious judicial time, and a nullity.

Consequently before a court can claim jurisdiction in any matter it must –

(a) Be properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another;

(b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(c) The case comes by due process of Law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See A.G Anambra State v. A.G Federation 1993 6NWLR pt.302 p. 700 Sea Trucks Ltd v. Anigboro 2001 1SC pt.1 p.56

Once the issue of jurisdiction is raised in these circumstances it is the duty of the court to examine it to see if it’s a spurious or genuine ground.

The grounds that touch on jurisdiction reads:

GROUNDS 1

The Court of Appeal erred in Law when it held thus:

In conclusion the result of all I have said is that this application is unmeritorious. It is accordingly dismissed.

PARTICULARS OF ERROR

(a) The Appellants had raised a fundamental issue challenging the jurisdiction of the High Court to hear and determine the case, which the appellants were seeking to challenge in the proposed Appeal before the Court of Appeal. See Shell Petroleum Dev Co. Ltd v. Abel Isaih and ors 2001 FWLR pt.56 p.608.

(b) …

(c) …

(d) …

GROUNDS 2

The Court of Appeal erred in Law when it held as follows:

“What are the materials needed to persuade the court to exercise its discretion They are: (1) the reasons for not filing the Notice of Appeal within the time prescribed by the law…(2) whether there has been undue delay.

PARTICULARS OF ERROR

(a) …

(b) …

(c) The proposed Notice of and grounds of Appeal before the Court of Appeal raised the issue of whether the High Court of Lagos State had jurisdiction.

(d) …

In the briefs of counsel, arguments were advanced on whether the Lagos State High Court had jurisdiction to hear the respondents claims in view of the provisions of Section 230 (1) (S) of the 1979 Constitution, which according to learned counsel for the appellants is within the exclusive jurisdiction of the Federal High Court because the 1st appellant is a Federal Government Agency and so cannot be impleaded in a state High Court.

Now, on reading a ground of appeal and its particulars the adverse party must be left in no doubt as to what the complaint of the appellant is. A ground of appeal and its particulars go together. Where the particulars in support of the ground are not related to the ground the ground is incompetent, See Hambe v. Hueze 2001 SC p.26.

Aderounmu v. Olowu 2001 2SCNJ p. 180.

Ground 1 Particular (a) and Ground 2 Particular (c) mention jurisdiction, but the Grounds do not raise the issue of jurisdiction. The particulars are independent of the grounds. They are in no way related to the grounds and a discerning counsel would be in grave doubt after reading both grounds and their particulars to know what the complaint of the appellant really is.

It should have been obvious to counsel that a complaint that a case was conducted and judgment delivered without jurisdiction cannot be entertained on appeal except the said judgment is on appeal or there is an appeal against the trial judge assuming jurisdiction. The appeal before the court of Appeal and this court is against the refusal of the court of Appeal to allow the appellant appeal against the judgment of the High Court. Raising the issue of jurisdiction in such circumstances is a clear attempt by counsel to hoodwink this court into considering an issue of jurisdiction on a judgment that is not on appeal. That explains why there is no relationship between the Grounds of Appeal and its particulars. The judgment remains inviolate for all time.

I find no merit in the appeal. The appeal fails and it is hereby dismissed.

The Ruling together with the order on costs by the court below are hereby affirmed, and the appellant shall pay the respondent costs in this appeal fixed at N50, 000.00 (Fifty thousand Naira).

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SC.198/2002