Florence O. Olusanya V. Olufemi Olusanya (1983)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

We allowed this appeal on the 18th January, 1983 by setting aside the decision of the Federal Court of Appeal and restoring the decision of the trial court. I now give my reasons for agreeing with the judgment.

The appellant who is a full sister of the respondent commenced proceedings in the High Court of Lagos State sitting at Ikeja claiming against him –

a. N10,000 being damages for trespass committed on the plaintiff’s house and landed property at 25, Oloja Street, Bariga, Lagos State and

b. Perpetual injunction to restrain the defendant from further act of trespass and molestation.

Pleadings were ordered and delivered. The respondent set up a counter-claim in his statement of defence against the appellant as follows-

“(1) The sum of N10,000 being special and general damages for trespass and detinue committed by the plaintiff when she, her agents and or her servants on or about the 27th day of October, 1974 wrongfully and unlawfully entered on the parcel of land known as No.25 Oloja Street, Shomolu (which was then in the possession of the defendant) and damaged the defendant’s building thereon and at the same time and place carried away plaintiff’s (sic) goods itemised in exhibit “A”.

The defendant has made repeated demands for the return of the goods but the plaintiff has refused to return them.

The defendant hereby claims the return of the said goods or their value as stated below –

Particulars of Damages

i. Special Damages ….

ii. General Damages ….

TOTAL N10.000.00

2. Account of all monies and other properties (real and personal) of the deceased Stephen Idowu Olusanya (alias Anikilaya) which has got into the hands of the plaintiff and payment over to the defendant of whatever is found to be due to him (defendant).

The defendant is a beneficiary of the estate of the said Stephen Idowu Olusanya and the plaintiff is anexecutor de son tort in respect of the same estate.

3. Injunction restraining the plaintiff from further trespass whereupon the defendant says that the plaintiff’s action is misconceived and vexatious and should be dismissed.”

In a reserved judgment the learned trial judge (Cole J.) found for the plaintiff with respect to her claim for damages for trespass and for injunction and dismissed the defendant’s counterclaim in its entirety.

Being dissatisfied with the judgment the respondent appealed to the Federal Court of Appeal. Three original and six additional grounds of appeal were filed.

At the hearing of the appeal the original grounds were abandoned and they were struck out by the Federal Court of Appeal. The additional grounds which were argued read as follows –

1. That the decision is against the weight of evidence led at the trial and that the trial judge did not fully consider the case of the appellant.
2. That the learned trial judge erred in law in granting an injunction against the appellant in respect of ‘plaintiff’s house and landed property at 25, Oloja Street, by Adeshina Street, Bariga Lagos State’ when respondent only led evidence on trespass as to a flat in one of the buildings at 25, Oloja Street, Bariga.
3. That the learned trial judge erred in law in holding that the owner of land subject to a traditional lease need not take his tenant to court to forfeit his lease for failure to pay yearly rent.
4. That the learned trial judge erred in law and misdirected himself on the facts in holding that the Premises No. 25, Oloja Street, Bariga had been sold to respondent about 1971 when respondent in her evidence and conveyance exhibit ‘D’ showed that the land was bought by respondent in 1973.
5. That the learned trial judge erred in law in making use in his judgment documents which were not formally admitted in evidence i.e. exhibits x2, x3, x4, tendered for identification and leasehold agreement marked ‘REJECTED’
6. That the learned trial judge erred in law in relying on exhibits ‘0’ a document not 20 years old when the recitals contained therein were not duly proved as required by law.”

At the close of the arguments of counsel judgment was reserved by the Federal Court of Appeal. The lead judgment of that Court (with which the other Justices on the panel concurred) set out in full the arguments of both counsel in support of and against the appeal. The lead judgment then considered inter alia –

1. Whether the learned trial judge was right in holding that by virtue of a deed of conveyance the plaintiff had acquired a title or interest over the land which extinguished the leasehold interest and title of the original tenant of the land in dispute (i.e. Stephen Idowu Olusanya (deceased) who was her full brother.
2. Whether the trial judge was right in holding that if the deed of conveyance did not vest title or interest in the plaintiff the defendant failed to establish the customary law of Odogbolu which enabled him to succeed to the estate of Stephen Idowu Olusanya (deceased) and
3. Whether the plaintiff established forfeiture of the land in dispute to herself as pleaded in paragraph 5 of her statement of claim.

The lead judgment came to the conclusion that the trial court misdirected itself on all the above issues and therefore allowed the appeal.

It is from that decision that the appellant appealed to this Court. Three grounds of appeal were filed and argued before us. All the grounds complained that there was misdirection in law by the Federal Court of Appeal. As the particulars of the grounds contain the gist of the contention of Mr. Ajayi, learned counsel for the appellant, I propose to set them down in detail as follows:

“1. Misdirection in Law

The Federal Court of Appeal misdirected itself in law when it stated as follows:-

”The first point to decide is whether the learned trial judge was right in holding that by virtue of the deed of conveyance the respondent had acquired a title or interest over the land which extinguished the leasehold interest and title of Stephen Olusanya, the original tenant” when

i. The said point was not an issue raised in the appeal as the appellant did not, in any of the grounds of appeal filed, challenge the decision of the learned trial judge on that point

ii. by proceeding to re-open the said point the Federal Court of Appeal acted contrary to the principles laid down by the Supreme Court in Odiase v. Agho (1972) 1 All N.L.R. (Part 1) 170.

2. Misdirection in Law

The Federal Court of Appeal misdirected itself in law as to issue raised in the appeal when it stated as follows:-

“He (the learned trial judge) also found that if it did not, the defendant failed to establish the customary law of Odogbolu which enabled him to succeed to the estate of the deceased Stephen Olusanya. I must say that the learned trial judge was clearly in error on this point. The plaintiff herself admitted in her evidence when she said “if the late Idowu Olusanya had any property at his death it would be inherited by the defendant and myself because no child survived him” when

i. no ground of appeal challenging the decision of the learned trial judge was filed and in the result the said finding was not an issue raised in the appeal;

ii. by proceeding to re-open an issue upon which there was no appeal the Federal Court of Appeal acted contrary to principles laid down by the Supreme Court in Odiase v. Agho aforementioned;

iii. as the defendant did not plead Odogbolu customary law of succession, even an admission in evidence in relation there to in evidence (sic) by the plaintiff would not have entitled the Federal Court of Appeal to make a sustainable finding on that issue in favour of the defendant.

Misdirection in Law

The Federal Court of Appeal misdirected itself in law and failed to understand the full effect of paragraph 5 of the statement of claim when it held as follows:-

“Besides the important issue on the pleading was whether the plaintiff established forfeiture as pleaded in paragraph 5 of the statement of claim.

The evidence revealed there was no forfeiture” when

i. No complaint was made in the grounds of appeal against the judgment of the learned trial judge on the ground he erroneously held that plaintiff had established forfeiture;

ii. The question whether or not the plaintiff had established forfeiture was therefore not in issue in the appeal;

iii. The Federal Court of Appeal is not entitled to decide appeals on matters decided by the court below against which there is no complaint by the appellant;

iv. The Federal Court of Appeal failed to appreciate that the plaintiff was also saying in paragraph 5 of her pleading that her late brother voluntarily surrendered whatever interest he might still have had in the property following the rupture of his relationship with his landlords in respect of the land in dispute and that her late brother was willing to give up whatever interest he might have had so that the plaintiff could have a clear unencumbered freehold;

v. The Federal Court of Appeal erroneously attached the strict technical meaning to the word forfeiture in the plaintiff’s aforesaid pleading having regard to the fact that the ‘leasehold interest’ which the parties loosely stated that the deceased had in the land was admittedly neither a legal term of years nor a customary tenancy under Yoruba native law and custom but a nebulous ‘traditional’ lease to which no strict recognisable rules of tenure apply.

Mr. Ajayi contended further that the learned Justices of the Federal Court of Appeal based their decision on the points raised in the foregoing grounds of appeal even though the points were not part of the grounds of appeal before them nor raised by the defendant who was the appellant before them. He also stated that as the points were not raised suo motu by the learned Justices in the course of hearing the appeal counsel for both the appellant and the respondent did not have the opportunity of addressing them on the points. It was therefore submitted that the Federal Court of Appeal failed to be guided by the provisions of Order 7 rule 2 (6) of the Supreme Court Rules, 1961 (which were the Rules applicable to that Court when the appeal was heard by it) and the decision of this Court in Odiase & Anor. v Agho & Ors. (1972) 1 All N.L.R. (Part 1) 170.

I think there is substance in these submissions. I am satisfied, after close examination, that the judgment of the Federal Court of Appeal did not at all consider the complaints made in grounds 3, 4 and 5 but instead dealt with extraneous matters which were not raised either by counselor by the Court itself in the course of the proceedings before it. This is a serious departure from the provisions of Order 7 rule 2(6) of the Supreme Court Rules, 1961 which states:

“Notwithstanding the foregoing the Court in deciding the appeal shall not be confined to the grounds set out by the appellant:

Provided that the Court shall not if it allows the appeal rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.” (Italics mine).

It is abundantly clear from the judgment of the Federal Court of Appeal that these extraneous matters influenced the learned Justices in arriving at the decision to allow the appeal. This Court has said on a number of occasions that although an appeal court is entitled, in its discretion, to take points suo motu if it sees fit to do so, yet that discretion must be exercised sparingly and in exceptional circumstances only: Where the points are so taken the parties must be given the opportunity to address the appeal court before decision on the points is made by the appeal court – See Kuti & Anor. v. Jibowu & Anor. (1972) 1 All N.L. R. (Part II) p.180 at p.192; Salawu Ajao v Karimu Ashiru & Ors (1973) 1 All N.L.R. (Part II) p.51 at p.63; Atanda & Anor. v Lakanmi, (1974) 1 All N.L.R. (Part I) p.168 at p.178; and Kuti v Balogun (1978) 1 L.R.N. 353 at p.357.

Mr. Ajayi had taken pains to show in the appellant’s brief of argument how they would have met the points raised by the Federal Court of Appeal had the appellant been given the opportunity to address the Court. It is not, in my view, necessary to consider this aspect of counsel’s argument once we are satisfied that the Federal Court of Appeal misdirected itself in dealing with the points on its own without benefiting from counsel’s address. What remains to be considered is the effect of the misdirection and whether a miscarriage of justice had been occasioned.

As already mentioned the appeal before the Federal Court of Appeal was determined partly on points that were never canvassed by the parties. It is obvious therefore that a miscarriage of justice had been occasioned since the appeal was not determined solely on the points which the parties advanced.

Now learned counsel for the appellant had urged upon us not to order a retrial as was done in the case of Kuti v Balogun (supra). He drew a distinction between that case and the present case by contending that in the former the trial Chief Magistrate failed to consider evidence which was properly before him, while in the latter no such fault has been found. The appellant’s brief of argument dealt extensively with the grounds of appeal filed by the respondent (as appellant before

the Federal Court of Appeal) in order to show that that appeal could not have succeeded even if the court considered only the complaints made before it.

There is no doubt that the present case is not on all fours with Kuti v Balogun.

The irregularity which afflicts the instant case concerns the proceedings before the Federal Court of Appeal and not the trial court as was the case in Kuti v Balogun.

Therefore if we were to order a re-hearing of the present case such re-hearing would only take place before the Federal Court of Appeal and not the trial court on whose decision there is no complaint in this Court.

It is necessary to mention here that we did not benefit from any argument in reply by the respondent or his counsel Mr. T.O. Ajomale. This came about because the respondent’s counsel who was present in court when we adjourned the hearing of the appeal to the next day disrespectfully failed to appear in-spite of the service of a hearing notice upon him at our instance. The respondent was also absent throughout the proceedings. Furthermore no brief of argument in reply to the appellant’s brief was filed by or on behalf of the respondent.

By the provisions of Order 7 rule 26 of the Supreme Court Rules, 1977 our power to order a re-hearing is discretionary. The respondent, by his failure to be present in court, either in person or through representation by counsel, has failed to show sufficient interest in the outcome of the case. Since no request has been made for the case to be remitted to the Federal Court of Appeal for a re-hearing and we are not assured that the respondent (who was the appellant in that court) will prosecute the appeal in the event of our making such order; I am of the opinion that we should not exercise our power under Order 7 rule 26 to order a rehearing before the Federal Court of Appeal.

It was for all the foregoing reasons that I agreed that –

1. this appeal be allowed;
2. the decision of the Federal Court of Appeal be set- aside;
3. the decision of the High Court of Lagos State, Ikeja (per Cole J.) in suit No. LD/272/74 which was reversed by the Federal Court of Appeal be restored and
4. costs be awarded to the appellant against the respondent as follows –

N200.00 in the High Court, N350.00 in the Federal Court of Appeal and N300.00 in this Court.

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SC.84/1982