Moshood Adelakun V. Nurudeen Oruku (2006) LLJR-CA
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
In the High Court of Lagos State, in the Ikeja Judicial Division, the plaintiff endorsed his writ of summons dated and sealed on 22nd day of November, 1996. The plaintiff’s claim which went to trial eventually on the statement of claim is as follows –
“Whereof the plaintiff claiming against the defendant as follows-
(1) An immediate possession of properties (sic) Nos. 12 and 44, Obafemi Awolowo Way Ikeja, Lagos which properties (sic) had been unlawfully and illegally occupied by the defendant.
(2) The sum of N394,700 (…) being the amount due and payable to the plaintiff from the defendant for the use and occupation of the two premises since 1st April, 1990 to date.
Particulars of Claim
(i) Amount due and payable to the plaintiff for the use and occupation of 44 Obafemi Awolowo Way, Ikeja for the period 1st January, 1991 to December, 1992 N14,200.
(ii) Amount due to the plaintiff on 44, Obafemi Awolowo Way, Ikeja from 1st January, 1992 to November 1996 at the rate of N60,000 per annum N235,000.
(iii) Amount due to the plaintiff on 12, Obafemi Awolowo Way, Ikeja from the defendant for the use and occupation of same for the period of 1st January of 1992 to November 1996 at the rate of N30,000 per annum. N147,500 Total N396,700.00.
The plaintiff shall further claim for the use and occupation of the premises at the rate of N64,000.00 per annum for premises No. 44, Obafemi Awolowo Way, Ikeja, Lagos and N30,000.00 per annum for premises No. 12 Obafemi Awolowo Way, Ikeja from the commencement of this action until the defendant finally vacates the premises.”
The defendant joined issues with the plaintiff by his statement of defence dated 31st January, 1997.
The two parties testified in support of their respective positions and each called two witnesses. Several documentary evidence tendered and marked exhibits P1-P20D were put in evidence by the parties. And at the close of the evidence by both parties, written addresses ordered by the learned trial Judge were submitted. Learned trial Judge, in a reserved and considered judgment found as follows-
“In the premises and for all of these reasons, I find for the plaintiff herein and his claim succeed in its entirety.
I grant to the plaintiff therefore –
(1) Immediate possession of the property at Nos. 12 and 44 Obafemi Awolowo Way, Ikeja which properties (sic) have been unlawfully and illegally occupied by the defendant.
(2) I award to the plaintiff against the defendant the total sum of N396,700.00 as damages for use and occupation of both premises 1/4/90 – 30/11/96 made up as follows-
(a) Amount due for use and occupation of No. 44 Obafemi Awolowo Way, Ikeja for Period of 1/1/92 – 30/12/92 N14,000.00
(b) . Amount due for use and occupation of No.44 Obafemi Awolowo Way; Ikeja for period of 1/1/93 – 30/12/93 at N60,000 per annum N235,000.00
(c) Amount due for use and occupation of No. 12 Obafemi Awolowo Way, Ikeja, for period of 1/1/92 – 30/11/96 at N30,000.00 per annum N147,500.00
Total N396,700.00
(3) I award to the plaintiff for use and occupation of both premises at the rate of N60,000 per annum for premises No. 44 Obafemi Awolowo Way, Ikeja and N30,000 per annum for premises No. 12 Obafemi Awolowo Way, Ikeja from 1/12/96 until the defendant finally vacates both premises.”
There was order of N25,000.00 costs.
The defendant (hereinafter referred to as the appellant) was unhappy and dissatisfied with the judgment. Being aggrieved, appealed to this court. I cannot locate the notice of appeal filed by the appellant. There are however two notices of appeal dated respectively 18th September, 2000 and 28th September, 2000 at pages 251-255 and 259-262. They are exhibited to affidavits and none of them bore evidence of filing, whether within or outside the time prescribed by law for bringing the appeal.
The appellant succeeded in obtaining leave to file an amended notice of appeal dated 31/1/04 on 14 July, 2004. There is no evidence of competent notice of appeal being exhibited to the application for leave to amend the notice of appeal.
Be that as it may, the amended notice of appeal contains 6 grounds of appeal. The proprietary or otherwise of some of the grounds of appeal will be discussed later in this judgment.
Parties filed and exchanged briefs of argument at appellant’s and respondent’s briefs. In the appellant’s brief, immediately under issues for determination, learned senior counsel for appellant stated as follows –
“2.00 The appellant has filed amended notice of appeal containing five grounds”
The appellant filed two amended notices of appeal respectively on 19th February, 2004 along with his brief of argument and on 26th July, 2004 several months after he settled his brief of argument. The competence of the brief filed before the notice of appeal was filed was not put in issue by the respondent. But each of the amended notices of appeal before the court contains six and not five grounds of appeal contrary to the assertion of the learned senior counsel for appellant. There is no indication before me which of the six grounds of appeal is the unwanted one.
Appellant formulated five issues for determination in this appeal as follows –
“2.01 Whether the plaintiff proved his locus standi to institute this action.
2.02 Whether the plaintiff/respondent was entitled to recover possession of the properties (sic) Nos. 12 and 44, Obafemi Awolowo Way, Ikeja, Lagos State.
2.03 Whether the award of damages for use and occupation was wrong in the circumstances.
2.04 Whether the costs of twenty-five thousand Naira was excessive.”
Respondent, on his part, framed these three issues as calling for determination.
(i) Whether by endorsement on the plaintiff’s writ of summons and statement of claim, a claim for possession arising from landlord/tenant relationship had arisen.
(ii) Has the plaintiff no locus standi to institute suit No. ID/3326/96.
(iii) Whether the award of damages for use and occupation in the circumstances of the plaintiff’s case is not proper and appropriate.”
Learned counsel for appellant, although did not relate the grounds of appeal to the issues framed by him nevertheless while arguing the respective issues he denoted the ground or grounds of appeal from which the issues derived. On the other hand, learned counsel for respondent did not relate his formulation to the grounds of appeal but attempted to align them with appellant’s identification of issues. In this connection, respondent stated as follows-
“It is apt to state that issue No.1 in the appellant’s brief which is issue No.2 in the respondent’s brief, while issue No.2 in the appellant’s brief is the same with issue No. 1 in the respondent’s brief and issue No.3 in the appellant’s brief is also the same with issue No.3 in the respondent’s brief.”
This respondent ignored appellant’s issue for dealing with question of excessive costs by his failure to react or proffer an answer to that issue in his own brief.
Appellant’s first issue derives from ground 2 of the amended notice of appeal. The issue herein is similar to the respondent’s issue two. It is questioning the standing of the respondent to bring the action. It is respectfully doubtful if this issue is available to the appellant at this stage of the proceedings. The respondent in both his writ of summons and statement of claim did not leave appellant in doubt of the capacity in which he was bringing the action. In spite of this, the appellant did not raise a finger against the suit throughout the hearing in the court below. It is now that the appellant is foisting on the respondent and the court the issue of the standing of the respondent to institute the action. I agree with the learned counsel for respondent that the appellant’s ground 2 raised fresh issue. Fresh issue cannot be raised and without first seeking and obtaining leave of either this court or the court below to tender or canvass argument in its support. A ground or grounds of appeal raising fresh issue without requisite leave is incompetent. It is not sufficient to seek leave to file additional ground or grounds of appeal or to amend the notice of appeal. Leave to raise and argue a fresh issue must be expressly sought and obtained irrespective of leave to file additional ground of appeal or amend the notice of appeal. See Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt.7) 393, Kurfi v. Mohammed (1993) 2 NWLR (Pt.277) 602 and Aladetoyinbo v. Adewumi (1990) 6 NWLR (Pt.154) 98. Consequently, ground 2 of the amended notice of appeal is incompetent and is struck out along with appellant first issue, deriving therefrom, on account that it raised issue that was not raised and canvassed before the learned trial Judge, who equally had no chance to express his opinion thereon.
Respectfully, issue 2 which derived from grounds 1 and 3 of the amended notice of appeal equally raises fresh issue. The respondent in his writ of summons, statement of claim and the evidence adduced at the trial in the court below clearly sought possession of property situated or located at 12 and 44, Obafemi Awolowo Way, Ikeja, Lagos as property unlawfully and illegally occupied by the defendant. He, in addition, claimed a specified sum of N396,700.00 as special damage for use and occupation of the two property. The respondent never put forward a case of landlord and tenant at the trial court. He was very clear, unequivocal and unambiguous in his claim before the trial court. It is for the appellant who claims to be the respondent’s tenant to prove the existence of such relationship.
The appellant never challenged the respondent’s suit on the basis of failure of service of statutory notice on him at the trial court or court below to enable the court below express its opinion on it.
This is a fresh issue which in my respectful opinion cannot be raised as a matter of course. Where a party seeks to raise for the first time on appeal an issue that was not canvassed at the trial court, an express leave to raise and tender argument in support of such point must be sought and obtained before it can be properly canvassed and argued.
Merely seeking leave to file and argue additional ground of appeal is not enough where fresh point which was not canvassed at the trial is to be raised on appeal for the first time. It is my respectful view that the hurdle is not surmounted or obviated by seeking and obtaining amendment of the notice of appeal. See Lebile v. Registered Trustees of Cherubim and Seraphim Church (2003) 2 NWLR (Pt.804) 399,422; Okenwa v. Mil. Govt. Imo State (1996) 6 NWLR (Pt.455) 394, (1996) 6 SCNJ 221; Obioha v. Duru (1994) 10 SCNJ 48, (1994) 8 NWLR (Pt.365) 631; Adio v. State (1986) 2 NWLR (Pt.24) 581, 588; Ajuwon & Ors. v. Madam Alimotu Adeoti (1990) 2 NWLR (Pt.132) 271, 296. In the absence of leave sought and obtained specifically to raise fresh point, I find grounds 1 and 3 of the amended notice of appeal incompetent. I strike them out for incompetence.
For the same reason, issue 2 to which they are related is also struck out.
Appellant’s next issue is his issue 3 which derives from grounds 4 and 6 of the amended notice of appeal. This issue was again argued along with the issue of respondent’s standing raised in ground 2 of the amended notice. The issue raised in ground 2 of the appellant’s ground of appeal was argued as issue 1 which had been struck out. The issue of respondent’s locus standi having been ruled incompetent cannot be argued along with issue raised by the third appellant’s issue. The issue is therefore rendered incompetent by relating a competent and incompetent grounds of appeal to it. It is more than settled that where an incompetent ground is related with a competent ground to an issue and argument tendered in support, such issue is rendered bad because it is not the function of the court to separate argument tendered in support of the good ground related to the issue from those of the defective ground: Korede v. Adedokun (2001) 15 NWLR (Pt.736) 483; Bereyin & Ors. v. Gbobo (1989) 1 NWLR (pt.97) 372, 380 and Nwadike & Ors. v. Ibekwe & Ors. (1987) 4 NWLR (Pt.67) 718; (1987) 11-12 SCNJ 72,102; Agbaje v. Younan (1974) 13 WSCA 6; Geosource (Nig.) Ltd. v. Biragbara (1997) 5 NWLR (Pt.506) 607, 616. The issue for deriving from a competent and incompetent grounds of appeal and argument canvassed and tendered together in its support, will be struck out. And I accordingly do so.
It is observed, however, that the issue was dealt with in paragraph 5.00. Sub-paragraphs 5.00-5.02 were devoted to the question of award of damages for use and occupation of the two properties. Sub-paragraph 5.03 questions the locus standi of the respondent to institute the action. In the circumstance, I intend to treat first part purely for academic purpose.
In this connections, learned counsel for appellant contended that the trial Judge made award of damages for use and occupation solely on the strength of the plaintiff’s testimony. Learned senior counsel then read the reasoning of the learned trial Judge thus
“To justify this increase in the annual value of the plaintiff tendered exhibit P3, a tenancy agreement between him and his tenant which shows that the tenant paid to him 1995 the sum of N85,000.00 in respect of a floor of the premises situate at No.4, Idowu Lane, Ikeja which explained as commensurate with No. 44, Obafemi Awolowo Way. He also stated that premises commensurate with No. 12, Obafemi Awolowo Way go for N30,000.00 per floor per annum.”
This evidence was not controverted by the defendant and the authorities enjoin me to accept same.
Thereafter, learned senior counsel, in the appellant’s brief, submitted that the learned trial Judge erred in law when he relied on the testimony of the plaintiff who had an interest to serve to make the award for damages for use and occupation. Learned senior counsel failed to refer the court to the law which learned trial Judge infringed for awarding damages solely on the testimony of the respondent. This is a civil case in which the burden of proof is always on the preponderance of evidence or balance of probability. The acceptance of the only evidence of the respondent on the point by the learned trial Judge is unassailable. The appellant gave evidence on the quantum of damages. The evidence was uncontradicted and undiscredited by the defendant, appellant who had ample opportunity to do so. Where evidence given by a party to any proceedings or his witness is not challenged by the opposite party who has opportunity to do so, the courts have been disposed to act on such uncontroverted and unchallenged evidence: Boshali v. Allied Commercial Exporters Ltd. (1961) 2 SCNLR 322, 1961 All NLR; Odulaja v. Haddad (1973) 11 SC. 357, Omoregbe v. Lawani (1980) 3-4 SC. 108, 117; Oguma v. International Bank for West Africa (1988) 1 NWLR (Pt.73) 658, 682; Imana v. Robinson (1979) 3-4 SC. 1, 8-10. A mere ipsi dicit of a witness may preponderate in favour of the plaintiff if the defendant fails to lead such credible evidence so as to tilt the scale in his favour if it is to avert judgment being given to the other party: Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt.5) 116.
However, the proposition that when evidence is uncontroverted and unchallenged, it must be accepted in proof of the issue in contest only holds good when the unchallenged and the uncontradicted evidence itself is credible. Nsirim v. Omuna Const. Co. (Nig.) Ltd. (1994) 1 NWLR (Pt.318) 1, 23. There was no challenge of the evidence adduced by the respondent on the rent payable on similar property in the neighbourhood nor effort made to discredit the witness under cross-examination. The appellant having failed to demonstrate that the evidence relied upon was not credible or that the finding was perverse the finding of the learned trial Judge was high and dry.
Learned counsel for appellant rather casually or lackadaisically further observed that it was worth mentioning that no expert was called to testify on the annual rental value of the premises. He failed to make reference to the authority which demands that an expert evidence should be adduced in the circumstance of this cas. There is no law enjoining that an expert witness should be called by the plaintiff and there is no magic wand in the testimony of an expert whose opinion could be rejected if it is not credible. A court is not bound to accept and act upon an expert opinion which is not in accord with commonsense.
A court is, however, bound to accept and act on an expert evidence if available and is unchallenged and uncontradicted. See Seismograph Services (Nig.) Ltd. v. Ogbeni (1976) 1 NMLR 290 and Seismograph Services (Nig.) Ltd. v. Akporovo (1974) 6 SC. 119, 136. The non-calling of expert witness in no manner respectfully derogated from the respondent’s case.
On the extent of damages, the evidence given in proof of the loss could have been challenged and was not so challenged by the appellant who had the opportunity to do so; the lower court was right to have acted on the best evidence before it. See Boshali v. Allied Commercial Exporters Ltd. (1961) ALL NLR 913, (1961) 2 SCNLR 322 evidence of 6d profit per yard was held as sufficient proof of his loss of profit. In Doobay & Ors. v. Mohabeer (1967) 2 All ER (PC) 760, 765 evidence that “the cost of the installation was 1,500 dollars including installation” was found sufficient proof of damages. In the circumstance, the evidence adduced by the respondent was sufficient proof of the damages in the absence of any other evidence to the contrary emanating from the appellant.
This issue fails and is dismissed had it not been struck out.
On the appellant’s issue 4 which derived from ground 5 of the amended notice of appeal, learned counsel for appellant read what the learned trial Judge stated before awarding costs of N25,000.00 and submitted that the reason advanced for awarding the costs of N25,000.00 to the plaintiff could not be justified. He argued that costs are based on the number of appearances at the trial court and out of pocket expenses and that the learned counsel for respondent gave a vague number of appearances. Learned counsel respectfully but firmly submitted that the award of N25,000.00 is unreasonable in the circumstances.
Learned counsel for respondent, in the respondent’s brief, was ominously silent on the complaint of the appellant against the measure of costs awarded to his client in the court below on account of being excessive.
The only material placed before the learned trial Judge on his invitation to counsel to address him thereon went as follows –
“Ayeni – This is a 1996 case. Out of pocket expenses N2,105. There have been countless appearances. I ask for N50,000.00
Awosanya – I ask the court not to award costs. It has been honestly fought. Both parties have incurred expenses. I urge the court not to award costs.
Court – This case has spanned almost 4 years. Costs assessed at N25,000.00 is awarded to the plaintiff.”
When the learned counsel for the plaintiff, respondent herein, gave the number of appearance as “countless” which is now stigmatised as vague by learned counsel for appellant maintained a studied silence. The conduct of the appellant’s learned counsel is intended to accept the assertion of the learned counsel for respondent at the trial. See Rex v. J. Afolabi Lagos (1941) 7 WACA 123, 132 otherwise learned counsel for appellant should have contended to the contrary.
In the absence of any other evidence to the contrary, the trial court was bound to accept that there was a large number of appearances.
To contend that the appearances were countless is a mere hyperbole which means no more than a deliberate exaggeration used for an effect.
Costs normally follow the event. A successful party in any event is entitled to his costs. Again, costs is a matter for the discretion of the trial court and an appellate court will not interfere with it unless it is excessive or unreasonable. An appellate court will not interfere with exercise of discretion of a lower court merely because it would have exercised it otherwise. Learned counsel for appellant has not shown that the number of appearances in the court below did not justify the costs awarded. He was in court and was offered the opportunity to contradict his learned friend on appearances which he has rightly conceded to be relevant to determination of the costs to be awarded and he chose to be mute. I cannot say that the costs of N25,000.00 is excessive in view of the falling rate of our national currency.
Lastly, respondent submitted that the appeal itself was incompetent on account of the parties to this appeal being radically different from the parties at the court below. At the lower court, in suit No.ID/3326/96, the parties were Mr. Nurudeen Oruku (for himself and on behalf of the estate of late Alhaji Chief Jimoh Oruku deceased and Mr. MoshoodA delakun (trading under the name and style Adelac Nigeria Company). In the appeal before this court, the parties are Moshood Adelakun and Nurudeen Oruku. There is substance in this objection which goes to the root of the appeal an provides good reason why the appeal should not be heard. It would be observed that the appellant was sued at the lower court as Moshood Adelakun (trading under the name and style Adelac Nigeria Company, while the respondent brought the action in a representative capacity for himself and the estate of late Chief Jimoh Oruku deceased. The appeal brought portrays a proceedings between only two individuals and not as originally constituted at the lower court.
The change was done on purpose. The purpose was not far fetched. The parties were deliberately adulterated to sustain the appellant’s first issue which challenges the standing of the named defendant who is now being portrayed solely as respondent to the appeal. This appeal, to my mind, is not predicated upon nor arose from the plaintiff’s suit at the trial court nor any other suit.
Improperly constituted action such as the instant appeal should be struck out -Ekpere & Ors. v. Aforije & Ors. (1972) 1 All NLR (Pt.1) 220, 225, Lewis JSC said –
“Now, as to Chief Williams’ first point, as we have already indicated, in our view it was absolutely clear both on the claim as formulated in the writ and in the statement of claim that the plaintiffs were seeking to obtain declarations that the Jesse Clan, as such had no interest in the land in dispute as it was Mosogan Village Community land and had no right accordingly to deal with the land on behalf of the Jesse Clan through its representatives when they made the lease (exhibit JU1) and that that lease should therefore be declared null and void. That being so we do not understand why the plaintiffs saw fit, when bringing the action, not to make Jesse Clan through appropriate representatives, a defendant to the action.”
By this, the Supreme Court upheld the contention of Chief Williams that “the action was entirely wrongly constituted as the relief sought was against Jesse Clan yet the Jesse Clan, as such, was never made a party to the action”. In the result the court ordered that the suit be struck out with costs. The appeal is not properly constituted in view of the change in the constitution of both appellant and respondent from the status in which they appeared in the court below. The appeal could have been struck out if requisite notice had been given. Without the notice of respondent’s intention to rely on a preliminary objection on why the appeal should not be heard, this court lacks jurisdiction to act on it.
The appellant did not file appellant’s reply brief to meet this objection as well as those raised against appellant’s issues 2.01, 2.02 and 2.03. The challenge to the competence of the appeal in its entirety is cogent and substantial. It would have afforded good and valid ground for striking out the appeal in toto, if the objection were properly raised. But the present objection is improperly inchoate for the reasons I have given in this judgment.
The objection to be validly brought must be brought in compliance with the provisions of Order 3 rule 15(1) of the Court of Appeal Rules, 2002. This sub-rule requires a respondent intending to rely on a preliminary objection to the hearing of an appeal to give the appellant’s three clear days notice of his intention to rely on objection before the hearing. Order 3 rule 15(1) reads as follows-
“15(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registrar within the same time.”
The respondent herein failed to comply with the provisions of Order 3 rule 15(1). It did not give notice of his intention to rely on a preliminary objection three clear days before the hearing of the appeal nor at any other time. Canvassing and tendering argument in support of a preliminary objection which was never raised is clearly in breach of the manifest intendments of the relevant sub-rules. It is needless to further emphasise that rules of court are made to be obeyed and not to be breach. The words “and shall file such notice … with the registrar” implies that a filing fee would be payable. In the present circumstance, no filing fee appears to have been paid for the notice.
The fee paid was for filing the respondent’s brief only. There is no evidence of giving the notice not to talk of filing the notice of intention of the respondent to rely on a preliminary objection that the appeal should not be heard. In the absence of notice and payment of filing fee there can be no notice to canvass. The effect is that he has no such objection. See Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252.
The appeal lacks merit and is dismissed. The decision of the learned trial Judge is affirmed with costs assessed at N 10,000.00 to the respondent and against the appellant.
Other Citations:(2006)LCN/1873(CA)
