Mrs. R. A. Idakula V. Alh. Mohammed Adamu (2000)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A

This appeal is against the ruling of Oyetunde, J. of the Plateau State High Court holden at Jos in the motion No. PLD/J774m/99 within the suit No. PLD/774/95 wherein he granted the sole relief sought in the said motion in these terms:

“I hold that this is the property sold to the applicant and which the applicant paid for.The applicant is therefore entitled to the order of possession that he is seeking and the same is hereby granted. The applicant is hereby granted possession forthwith of one bungalow attached with boys quarters at No.15 along Miango Road, Jos”.

Aggrieved by the decision the defendant (as appellant) has appealed to this Court and raised 3 (three) grounds to meet it to wit:

1. “The learned trial Judge erred in law when he finally determined part of the substantive suit between the parties by his decision in the interlocutory application filed by the respondent.”

PARTICULARS

(a) By his amended statement of claim dated 19/6/98 and filed on the 22/6/98, the respondent in paragraph 14(c) claims as follows:-

“An order of this Honourable Court that the defendant delivers up the property situate( sic) and lying at plots 15/16 Miango Road, Jos, Plateau State, now being withheld by the defendant.”

(b) By his motion on notice dated and filed on the 7/7/99, the respondent prayed inter alia for:

(a)”An order that the defendant/respondent deliver up possession of a bungalow flat with boys quartres at No. 15 along Miango Road, Jos, to the plaintiff/applicant”.

(c) Both the prayer in motion paper and the third relief sought by the respondent in the main suit are the same and have one effect.

(d) That prayer sought by respondent and granted by the Honourable Court has the effect of a final judgment as it was not sought to be made nor was it made subject to or pending the determination of the substantive suit.

(e) By granting the prayer sought, the Honourable Court has, in an interlocutory proceeding, determined the third relief sought by the respondent in the main suit in respondent’s favour, without hearing evidence from either party and without the Appellant admitting the claim or submitting to judgment.

2. The learned trial Judge erred in law when he granted possession of the land and premises situate at No. 15 along Miango Road, Jos to the respondent when he had no jurisdiction to do so.

PARTICULARS

(a) The claim of the respondent is for mesne profit and possession of the land in issue from the appellant.

(b) The respective heads of claim fall with the original jurisdiction of the Plateau State District Court, by virtue of Edict No.4 of 1998, with right of appeal to the High Court.

3. The learned trial Judge erred in law when he granted the respondent the interlocutory order sought, when the claims of respondent are essentially monetary in terms and the respondent could be adequately compensated in monetary terms (as per his claim) at the end of the trial.

PARTICULARS

(a) The respondent claims N80,000.00 (Eighty Thousand Naira) only from the appellant, for use of the premises from 27/12/91 to the date he filed suit No. PLD/J774/95 and a further sum of N50,000.00 (Fifty Thousand Naira) only from the said date of filing till possession. He also claims order for possession.

(b) From the claim of respondent, he can be compensated in money terms for all the relevant period, hence it is improper in law to grant him interlocutory relief”.

The immediate genesis of the foregoing order was an application (i.e.PLD/J774m/99) dated 7/7/99 and filed by the plaintiff (now respondent herein) at the Court below praying for a relief in the terms of the said order. The said relief is set out thus:

(a) “An Order that the defendant/respondent deliver up possession of a bungalow flat with Boys Quarters at No.15 Miango Road, Jos, to the plaintiff/applicant”.

The application was supported by an affidavit of 13 (thirteen) paragraphs and the crucial paragraphs are as follows:

1. That by virtue of my position aforesaid, I am familiar with the facts of the case.
2. I know as of fact that on the 27th day of December, 1991, there was a public auction of the property of one Amos Bez Idakula in satisfaction of the Judgment debt in Suit No.PLD/J334/89.
3. I know as of fact that the said Amos Bez Idakula is now dead.
4. I know as of fact that the defendant/respondent in the present suit is the wife of the said Amos Bez ldakula.
5. I know as of fact that the honourable Court had substituted Amos Bez ldakula with Mrs. R. A. ldakula as defendant in this suit.
6. I know as of fact that at the public auction, hold on the 27th day of December, 1991, I purchased the defendant’s/respondent’ s property, being one bungalow flat with boys quarters at No. 15 along Miango Road, Jos.
7. I know as of fact that at the said public auction in suit No.PLD/J334/89 Dorcas Richards v. Amos Bez Idakula, I purchased the property at the cost of N100,000.00 (One hundred thousand Naira).
8. I know as of fact that I was issued a receipt by the Chief bailiff in Judicial form 29 of the Plateau State High Court of Justice, dated the 27th day of December, 1991. A photo copy of the said receipt is herein annexed and marked Exhibit ‘A’.
9. I know as of fact that after the sale to me of the defendant/respondent’s property aforesaid, the Chief Registrar through one R. A. Yilkes wrote a letter to the Director-General, Ministry of Lands, Survey and Town Planning, Jos, introducing me as the new owner of the said property. A photo copy of the said letter is herein annexed and marked as Exhibit ‘B’.
10. I know as of fact that the said property was sold to me by public auction. A photo copy of the notice of public auction is herein annexed and marked as Exhibit ‘C’.
11. That it will be in the interest of Justice to grant this application.

This application, it must be noted, an interlocutory one was taken within the substantive suit No. PLD/J774/98 still pending before the Court below between the parties in which the respondent (as the plaintiff) instituted an auction against one Amos Bez Idakula (the deceased husband of the appellant herein) claiming as per the amended statement of claim as follows:

“Whereof the plaintiff claims from the defendant as follows:-

(a) The plaintiff claims from the defendant the sum of N80,000.00 arrears of mesne profit for being in use and occupation of the property situate and lying at plots 15/16 Miango Road, Jos, Plateau State from the 27th day of December, 1991 to date of filing this suit.

(b) The plaintiff claims N50,000.00 from the date of filing this suit against the defendant until delivery thereof to the plaintiff, the property situate and lying at plots 15/16 Miango Road, Jos Plateau State for being in use and occupation of the said property.

(c) An order of this Honourable Court that the defendant delivers up the property situate and lying at plots 15/16 Miango Road, Jos, Plateau State, now being withheld by the defendant.

(d) The cost of filing this suit and any relief which the court considers appropriate”.

The history of this matter won’t be complete without stating briefly the background to a much earlier suit also between the parties, that is, suit No.PLD/J334/89: Dorcas Richards v. Amos Idakula. Sequel to the decision in that suit and in execution of the judgment thereof, the respondent purchased the property the subject matter of the suit at N100,000.00 in a public auction held on 27/12/91 conducted by the High Court to satisfy the judgment debt in the said suit. The facts of the matter for purposes of this judgment are sufficiently as depicted herein.

Pursuant to the rules of this Court parties filed and exchanged briefs of argument. The issues for determination in this appeal as formulated by the appellant are 3 (three) and they are set forth as follows:

(i) “Whether the learned trial Judge was right in making an order in an interlocutory application which has the effect of finally determining part of or one of the reliefs sought in the substantive suit? (Ground 1).

(ii) Whether in the circumstances of this case the learned trial Judge had jurisdiction to make the order he made on the application before him? (Ground 2).

(iii) Whether, given the fact that the claims of the respondent were essentially monetary, the trial Judge was right in law in making the orders he made? (Ground 3)”.

The respondent has also raised 3 issues for determination as follows:

1. Whether the appeal is competent?
2. Whether the learned trial Judge was right to make the order sought by the respondent in an interlocutory application?
3. Whether in the circumstances of this case, the learned trial Judge had jurisdiction?.

The respondent has, in addition, raised a preliminary objection challenging the competency of the appeal itself. In so doing, he has traversed the 3 (three) grounds of appeal filed by the appellant and joined issues as to their being errors in law alone and in consequence has put the competency of the appeal in issue. The appellant filed the appellant’s reply brief to contain the preliminary objection. The issues as formulated by both parties are identical.

Taking the issues for determination in the main appeal seriatim, that is to say, with issue No.1, the appellant having referred to paragraph 14(c) of the respondent’s amended statement of claim and the relief sought in the motion of 7/7/99 has contended that the effect of either of the reliefs was to deliver possession of the house and premises to the respondent and that the interlocutory order was a final order in its import as far as the relief sought was concerned and notably as it was not made to abide the decision in the substantive matter and therefore a grave error. See Alexander Marine Management and Ors. v. Koda International Ltd. (1999) 1 NWLR (Pt.585) 40 at 54 as per Opene, J.C.A.; Abdulkadir v. Musa (1999) NWLR (Pt.587) 440 at 358 as per Adamu, J.C.A.; Akapo v. Hakeem-Habeeb (1992) 7 SCNJ; (1992) 6 NWLR (Pt.247) 266 at 135 as per Kabiri-Whyte, J.S.C.; Okafor v. A.-G., Anambra State and Ors. (1992) 2 SCNJ 219; (1991) 6 NWLR (Pt.200) 659. He further argued that the transfer of possession of the property from the appellant to the respondent when the claim was pending and the respondent’s claim were not admitted was another serious error as it negated the status quo ante position of the parties as soon as the order was made. Queen and Ors. v. Adaroh and 1 Ors. (1999) 1 NWLR (Pt.586) 330 at 337 to 338 as per Akintan, J.S.C.

The appellant while deprecating the procedure adopted by the respondent to secure the order has opined that section 51 read together with sections 44-50 of the Sheriff and Civil Process Act, Cap. 407 1990 implied that the instant application should have been made in the same proceeding and in the same Court that granted the leave to levy execution on the judgment debtor’s immovable property as per the suit No. PLD/1334/89. That the application for possession as per suit No. PLD/l774m/99 should not have been made in the pendency of the suit No. PLD/J774/98 filed by the respondent.

On issue No.2: The appellant was also of the view that the Court below had no jurisdiction to make an order for possession in the said application as issue for the recovery of premises i.e. possession at the time the cause of action arose were vested in the Plateau State Rent Tribunal and referred to section 9 of the Plateau State Rent Control and Recovery of Premises Edict No.7 of 1995 applicable at the time of this action. He claimed that the High Court of Plateau State had no original jurisdiction but appellate jurisdiction in such matters. See Ihenacho v. Uzochukwu (1997) 1 SCNJ 117 at 128 (1997) 2 NWLR (Pt.487) 257 and Abdulkadir v. Musa (1999) 1 NWLR (Pt.587) 440 at 357. The proceedings were therefore a nullity.

On the 3rd issue: The appellant expressed the view that as the claims in the amended statement of claim sounded in monetary compensation that the Court below was in error to have granted the interlocutory order when monetary compensation would have otherwise satisfied the situation. See Queen v. Adaroh as per Oguntade, J.C.A., Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) 419 at as per Akintan at 338. See Onwuegbu v. Ibrahim (1997) 3 NWLR (Pt.491) 110 at 123 as per Oguntade, J.C.A., Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) 419 at 449 per Nnaemeka-Agu, J.S.C.

I now set forth the respondent’s perspectives of his case as per his brief in this matter starting in this regard with the preliminary objection.

The respondent’s objection has ranged i.e. the grounds of his objection under three headings and I have to deal with them in that order. Firstly, he has contended that all the grounds (3 of them) were not of law alone but at best of mixed law and facts and so required the leave of this Court or the Court below. And that, once no leave was obtained all the grounds being thereby incompetent could not sustain the appeal. And more importantly, that the issues distilled from the 3 (three) grounds would thereby be incompetent. Taking the three grounds seriatim, he remarked with regard to ground 1 (one) that the particulars raised questions of fact. He expressed the view that whether or not the reliefs sought in the motion paper and in the substantive suit have the same effect was also a question of fact. On ground 2 (two) he again remarked that whether the claim was for mesne profit and possession of the land in issue was also a question of fact. And as regard, ground 3 (three) he contended that whether or not the claims were essentially in monetary terms was again, a matter of fact. And referred and relied on the case of Commex Ltd. v. Nigeria Arab Bank Ltd. (1997) 4 SCNJ 38 at 47 (1997) 3 NWLR (Pt.496) 643.

While conceding that the appeal was anchored on an interlocutory order, he opined that as the appeal was filed without the requisite leave of court as provided in section 242(1) of the 1999 constitution that the grounds were incompetent.

Secondly, he raised the issue that the appellant having failed to comply with the precondition as stipulated in section 15(1) of the Court of Appeal Act, 1976 the appeal being against an interlocutory order that the whole appeal was incompetent. Also that the provisions of section 9 of Edict No.7 of 1995 was not available to the appellant to exploit in the circumstances.

Thirdly, he contended that grounds 2 and 3 were rather premature as the complaints raised therefrom were not encompassed by the ruling of 19/10/99 – that is to say, that the two grounds did not flow from the ruling, the subject-matter of this appeal and so the issues raised from the two grounds were incompetent. The respondent asked this court to strike out the appeal.

Arguing in the alternative, the respondent went further to consider the appeal on its merits.

On the 2nd issue, whether the court below was right to make the order sought by the respondent; he referred to section 51 of the Sheriffs and Civil Process Act, Cap. 407 to argue that the appellant was in possession at and after the sale of the property to the respondent and was caught by the provisions of section 51. He went on to distinguish the cases of Alexander Marine Management and 3 Ors. V. Koda International Ltd. (supra) and Abdulkadir v. Musa (supra) and Queen v. Adaroh (supra) referred to by the appellant as inapplicable to the instant case.

On the issue of jurisdiction he referred to Section 51(supra) and contended that the Court was seised of jurisdiction. He reiterated that the appellant misconceived the issue as one of recovery of possession under the Rent Control and Recovery of Premises Edict when the Court below acted under sections 44 to 51 of the Sheriffs and Civil Process Act, Cap. 407 and added that the Court below having found in the ruling that the respondent was the purchaser of the property rightly and competently granted the interlocutory order.

This Court was then asked to strike out the appeal as being incompetent or in the alternative dismiss it as unmeritorious.

In his response to the preliminary objection, the appellant has filed a reply brief relying on the Supreme Court’s decision in the case of Ogbechie v. Onochie (supra) and against the background of the overview of his overall response to the preliminary objection, he has stood his ground to contend that the respondent totally misconceived the purport of the three grounds hence the suggestion that they required leave pursuant to section 242 of the 1999 Constitution before filing the appeal. He was unequivocally of the view that, the appeal was as of right as per section 241(1)(b) of the 1999 Constitution. See also Attamah v. Anglican Bishop of the Niger (1999) 13 NWLR (Pt.633) 6 at 12; Transkomplet Nig. Ltd. v. Galadima (1999) 3 NWLR (Pt.596) 31 H-A. And that Section 15(1) of the Court of Appeal Act has no application to the matter.

Coming to the specifics, namely, as regards ground 1, the appellant has complained that in effect the interlocutory order of 19/10/99 had decided with finality the 3rd relief sought by the respondent in the substantive suit No.PLD/1774/98 – and he has construed the issue as a matter of law. And he also contended that in so far as the two reliefs were coterminous inter se in their import, their effects, that is to say, including the delivery of possession of the house and premises in issue to the respondent that the interlocutory order should not have been made to avoid prejudging the issues in the substantive matter. See Okafor v. A.- G., Anambra State and Ors. (1992) 2 SCNJ 219 at 239; (1991) 6NWLR (Pt.200) 659; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 at 323 as per Onu, J.S.C; Commex v. Nigeria Arab Bank (1997) 4 SCNJ 38 at 50 LL 20-21 (1997) 3 NWLR (Pt.496) 643.

On ground 2: The appellant has contended that paragraph (b) of the particulars was about the effect of the applicability of section 9 of the Plateau State Edict No.7 of 1995 to the claim for mesne profit and possession which according to him constituted an issue of law. See Bamgboye v. University of Ilorin (supra).

On the 3rd ground, the appellant’s contention amounts to this: Whether the instant interlocutory relief should have been granted where compensation would have otherwise served to mitigate the damages to be suffered by the respondent as his claims were set out abroadly in monetary terms and that the complaint was a matter of law?. He then urged this court to overrule the preliminary objection.

The preliminary objection was initiated to challenge the 3 (three) grounds of appeal as not being errors in law but at best of mixed law and facts and so they required leave of the Court below or of this Court under section 242(1) of the 1999 Constitution and that in the absence of any such leave they were incompetent grounds and by extension the appeal itself was thereby rendered incompetent. The appellant not conceding the point has maintained that the three grounds were errors in law and that they required no leave. To decide this point, one must necessarily have regard to sections 241 and 242(1) of the 1999 Constitution as well as the principles distilled from decided cases as the key to resolving the contention. The said provisions are set out as follows:

“Section 241: An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-

(a) final decisions in any civil OR criminal proceedings before the Federal High Court or a High Court sitting at first instance;

(b) Where the grounds of appeal involved questions of law alone, decisions in any civil OR criminal proceeding;

(c) decisions in any civil OR criminal proceedings on questions as to the interpretation OR application of this constitution;

(d) not applicable

(e) – do-

(f) – do-

Section 242(1): Subject to the provisions of section 241 of this Constitution an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or that High Court or the Court of Appeal”.

The foregoing provisions are in pari materia with the provisions of sections 220(1) and 221(1) of the 1979 Constitution which it must be noted have been given considerable attention by the courts. Their imports and implications have been dealt with exhaustively in the case of Harriman v. Harriman (1987) 2 NSCC (Vol.18) 930; (1987) 3 NWLR (pt.60) 244 at 936 as per Uwais, J.S.C (as he then was). Section 241 of the 1999 Constitution confers on an appellant right of appeal as of right on question of law alone but in section 242(1), it is with leave of the Court below or of this Court. However, the law is trite that where a lower Court is faced with the construction of any provision of any law in pari materia with one that has been construed by the Supreme Court, the lower Court has no option but to follow the principles laid down by the Supreme Court in its construction. See Unilag and Ors. v. Olaniyan (1985) 1 NSCC (Vo1.16) 98; (1985) 1 NWLR (pt.1) 156 as per Nnamanu, J.S.C. It follows that the decisions on the provisions of sections 220 and 221 under the 1979 Constitution as in Harriman v. Harriman (supra) are equally relevant and decisive in considering the implications of the provisions of section 241 and section 242 of the 1999 Constitution. So far, no reason has been advanced why I should deviate from abiding by earlier decisions of the Supreme Court on the provisions of these sections. If I may restructure the crux of the matter in this appeal, that is, by putting it in another form, the respondent is by the preliminary objection contesting inter alia that the 3 (three) grounds of appeal did not involve questions of law alone as provided under Section 241(b) of the 1999 Constitution and that as they were to come under section 242(1) of the said Constitution, that is under mixed law and facts they would require leave and that not having sought and obtained any leave from the Court below or this Court that the grounds were incompetent and so the appeal was equally afflicted by the incompetency. The provisions of Sections 241 and 242 have to be given their ordinary plain meaning vis-a-vis the said grounds of appeal. I now proceed to examine the 3 (three) grounds against the guide as laid down in such cases as Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484 at 491 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at744-5.

As regards grounds 1 (one) and its particulars, it seems to me that to ascertain the nature of its complaint, the relief sought in the amended statement of claim and the reliefs sought in the interlocutory application as well as their effect vis-a-vis the interlocutory order of the court below would have to be examined critically.

The 3rd relief sought in the amended statement of claim reads thus:

“An order of this Honorable Court that the defendant delivers up the property situate and lying at plots 15/16 Miango Road, Jos, Plateau State, now being withheld by the defendant”.

The only relief sought in the interlocutory application reads thus:

“An order that the defendant/respondent deliver up possession of a bungalow flat with boys quarters at No. 15 along Miango Road, Jos, to the plaintiff/applicant.

Generally, the determination of whether a ground of appeal is an error in law, I must emphasis, not being of mathematical nature with clear cut formulae has to rest squarely on the principles garnered from the decisions of higher courts which many a time are imprecise. This is so as the distinction between what is error in law and mixed law and facts could be very thin indeed, as exemplified by numerous cases that replete the law reports. However, having taken time to go through a few cases on this area of the subject-matter including the cases of Metal Construction W/A Ltd. v. Migliore (1990) 1 NWLR (Pt.126) 299; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718, 744-745; Commex v. Nigeria Arab Bank (1994) 4 SCNJ 38; (1997) 3 NWLR (Pt.496) 643 and Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484 at 491, what has emerged as a guide, in sum, is that a ground of appeal is an error in law not because it has been so tagged by the Appellant but because of the nature of complaint it encapsulates. In this regard, ground of appeal and their particulars, apart from their being read together, they have to be critically examined together. By so doing, matters pertaining to findings of fact or evaluation and exercise of discretion would have been eliminated. It is after such an exercise that it could with some measure of certainty be concluded that a ground is an error in law. The guide laid down by the Supreme Court is aptly reflected in the case of Ogbechie v. Onochie (supra) thus:

“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the ground reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine”.

Similarly also, in the case of Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744-5; Nnaemeka-Agu, J.S.C., in answer to the question – “when then is a ground of appeal that of law?” set out five particular classes to serve as guides with a rider that the categories of errors in law are not closed, thus:

(i) “It is an error in law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors; See O’Kelley v. Trusthouse Forte P.I.C. (1983) 3 All ER 468.

(ii) Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases, and inferences drawn there from are grounds of law; Ogbechie v. Onochie (supra) 491-492.

(iii) Where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts Edwards v. Bairstow (supra) at p.55; H. L. For many years, it has been recognised that inferences to be drawn from a set of proved or undisputed facts, as distinct from primary facts, are matters upon which an appellate court is as competent as the Court of trial; See Benmax v. Austin Motor Co. Ltd. (1955) All ER 326-327.

(iv) Where a tribunal states the law on a point wrongly, it commits an error in law.

(v) Lastly, I should mention one class of grounds of law which have the deceptive appearance of grounds of fact, id est, where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in a jury trial there would have been no evidence to go to the jury. Before a judge sitting with a jury could have left a case to the jury, there ought to have been more than a scintilla of evidence. So, for this rather historical reason, a ground of appeal complaining that there was no evidence, or no admissible evidence, upon which a decision or finding was based has always been regarded as a ground of law. See Odgers; On Pleading & Practice (20th Edn.) p.375; also the decision of the House of Lords in Edwards (Inspector of Taxes) v. Bairstow (supra) at p.53. In Ogbechie v. Onochie (supra) p. 491; para. 14 my Lords, Eze, J.S.C., citing with approval an article by C. T. Emery in Vol. 100 L.Q.R. held:

“If the tribunal purports to find that a particular event occurred although it is seized of no admissible evidence that the event did in fact occur, it is a question of law”.

Following the principles in the cases as set out in the above cases, I have deliberated extensively on the three grounds of appeal and I am left in no doubt whatsoever that speaking generally that the three grounds are errors in law. In particular, ground 1 (one) contemplates the construction of the 3rd relief as per the Amended Statement of Claim and the relief sought in the notice of motion i.e. the interlocutory application and the resultant interlocutory order of the court below. It is also crucial under ground one, to ascertain the effect of the interlocutory order against the contention that it totally pre-empted and prejudged the 3rd relief claimed in the respondent’s Amended Statement of Claim. Such an exercise does not of course involve questions of fact. All in all, therefore, ground 1 (one) is a matter of construction, clearly a matter of law.

The complaint as per ground 1 (one) is unquestionably one of law alone. See Nwadike v. Ibekwe (supra). Considerable time and space have been allotted to this issue of the distinction between errors in law and mixed law and fact. As to derail in distinguishing the two could mar the chances of an appeal.

As regard ground 2 – the respondent has taken the issue that it i.e. ground 2 is a matter of fact and has also alleged the attendant consequences for so classifying the ground. But having deciphered that the gravamen of the complaint in that the ground hinged on want of original jurisdiction in the court below to entertain the matter and the reference to Section 9 of the Edict No.7 of 1995 as having conferred exclusive original jurisdiction in the matter to the Plateau State Rent Tribunal, it has become crystal clear that the substantive issue in ground 2 for decision is one of jurisdiction which has always been a matter of law. Ground 2 has been shown conclusively to be an error in law. See Rabiu v.The State (1980) 8/11 SC 130 at 146-147; Mobil Oil (Nig.) Ltd. v. Federal Board of Inland Revenue (1977) 3 SC 97 at 142; Onyema v. Oputa (1987) 3 NWLR (Pt.60)259; Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 264; Oduye v. Nigeria Airways Ltd (1987) 2 NWLR (Pt.55) 126; Sule v. Nigerian Cotton Board (1985) 2 NWLR (pt.5) 17; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290. It is now the norm that issue of jurisdiction can be raised at any stage of the proceedings even in the Court of last resort. See Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55) 179. On ground 3 once again, the respondent has taken the stand that this ground is a question of fact in that whether or not the respondent’s claim sounded in monetary terms is a matter of fact. I think the respondent has totally missed the point as the nature of the complaint alleged in that ground was that where the claim was in damages as in this matter it would be improper to grant an interlocutory order, as an award of damages by the Court at the conclusion of the case would be sufficient to mitigate whatever greater inconvenience was suffered by the respondent. There can be no doubt that the complaint in the ground has raised question of law alone and so ground 3 in my view is an error in law.

In my judgment, therefore the three grounds raised by the appellant in this appeal are valid grounds of errors in law and are therefore competent grounds capable of sustaining the issues distilled for determination in the appeal. The appellant’s appeal to this Court being as of right under section 241(1) (b) of 1999 Constitution required no leave. See Lekwot v. Judicial Tribunal (supra); Agu v. Ayalogu (supra); Oba v. Egberongbe (1999) 8 NWLR (pt.615) 485.

In the last limb of the preliminary objection, the respondent has contended the question of the premature nature of the complaints in grounds 2 and 3 as not stemming from the ruling of 19/10/99. It is trite law that grounds of appeal must relate to the decision and attack the decision in a decisive manner. See Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156. In the foregoing paragraphs, I have demonstrated the complaints that underscored the two grounds. While ground 2 has raised the issue of original jurisdiction of the High Court to entertain the matter; ground 3 was concerned with the complaint on the impropriety of granting an interlocutory relief when the respondent’s claims sounded in monetary compensation and would otherwise be adequately compensated in damages. The two grounds, to my mind, are not merely nibbling away at the matter but have in law attacked the main pillars propping up the interlocutory order. Once they are eroded the order collapses. See Oba v. Egberongbe (supra).

The next limb of the preliminary objection has spoken in terms of non-compliance with section 15(1) of the Court of Appeal Act, 1976. In other words, that as the appeal was anchored on an interlocutory order of the court below that necessary leave of the Court below or this Court was not sought not obtained thus making the appeal incompetent. Having invoked section 15(1) in this regard and to make for closer examination of the provisions, section 15(1) is set forth hereunder:

“Where in the exercise by the High Court of a State or, as the case may be, by the Federal High Court of its original jurisdiction an interlocutory order or decision is made in the course of any suit or matter, appeal shall, by leave of that court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex-parte or by consent of the parties or relating to costs”.

Under this heading of the preliminary objection, the crucial question is whether the appellant was obliged to seek leave as contemplated under the provisions of section 15(1) as against the right to appeal as of right conferred by section 241 of the 1999 Constitution. As per the briefs of both parties to this appeal, it is conceded that the order being challenged in the appeal is an interlocutory order. Furthermore, whether an appeal is final or interlocutory has its ramifications not least the period within which an appeal is to be filed. Again, to determine whether an order is final or interlocutory has been lucidly disposed of in extenso in the case of Omonuwa v. Oshodin (1985)25/C1.; (1985) 2 NWLR (Pt.10) 924 at 3 as per Karibi-Whyte, J.S.C wherein he stated thus:

“All cases cited agree on the proposition that a decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties (and not merely an issue) in the case. Where only an issue is the subject-matter of an order or appeal the determination of that court which is a final decision on the issue or issues before it, which does not finally determine the rights of the parties, is in my respectful opinion interlocutory”.

Be it noted that to the extent that my observations on section 15(1) are materially crucial for resolving the narrow point at stake in this issue thus far would I attempt to go in this judgment. It is not in doubt that the provisions of section 15(1) required leave for an appeal to lie to this Court in an interlocutory order or decision. However, the provisions appear to run counter to the express provisions of section 241 of the 1999 Constitution also set herein before. While on the one hand, the provisions of section 241 appear to give an appellant a constitutional right of appeal albeit as of right in circumstances covered under the provisions of section 15(1) of the Court of Appeal Act, 1976 on the other hand section 15(1) seems to have stifled it by interposing a condition precedent of seeking leave of the court below or of this Court for an appeal to lie at all so that where leave was not obtained the appeal would be incompetent. The two provisions appear clear as to their respective effects. All the same, they raise serious conflicts interse. It is settled law that where any law is at variance with a constitutional provision, that law is to the extent of its inconsistency null and void.Before now the issue of section 15(1) as against section 220 of the 1979 Constitution in pari materia with section 241 of the 1999 Constitution has been canvassed in depth in numerous cases including Lekwo v. Judicial Tribunal (1993) 2 NWLR (Pt.276) 410; Oluwole v. L.S.D.P.C. (1983) 5 SC 1; State v. Omeh (1983) 5 SC 20; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 and Agu v. Ayalogu (1999) 4 NWLR (Pt.606) 205. The implication of the principle that seemed to have surged up from the cited cases is that an appeal as of right from the High Court to this Court against an interlocutory order or decision has to be founded on question of law alone or with leave of court as provided in section 242 of the 1999 Constitution. Particularly, I take solace in the decision in Agu v. Ayalogu (supra); decided since the promulgation of the 1999 Constitution and I am persuaded by the construction put in section 15(1) by the cited case which I find very helpful in resolving the matter in hand and I adopt it. Therefore, the appellant required no leave to file this appeal.

There is no doubt that Section 15(1) of the Court of Appeal Act of 1976 is inconsistent with the express provisions of S.241 of the 1999 Constitution and as held in Agu v. Ayalogu (supra) is null and void to the extent of its inconsistency and I agree. And I say no more on it for now. The preliminary objection as conceived in this matter having made its full cycle without achieving any impact is devoid of any merit whatever and accordingly, it is overruled.

Coming to the main appeal, expectedly, I am minded to deal first with issue No.2 that has alleged want of jurisdiction in Court below to entertain this matter. This is because, it is radically fundamental to the competency of the matter. Once it is shown that the Court below has no jurisdiction to hear and determine this matter the whole matter including the interlocutory order would collapse like a pack of cards. The appellant has appreciated this point; hence, he has argued that by S.9 of the Plateau State Edict No.7 of 1995 exclusive original jurisdiction for recovery of possession has been expressly conferred on the Rent Tribunal and that the Court below (vested with appellate jurisdiction only) lacked original jurisdiction to make the interlocutory order albeit at first instance. The respondent in his response has invoked S.51 of the Sheriffs and Civil Process Act, Cap 407 Laws of the Federation of Nigeria, 1990 as the applicable law. I have wondered why the resort to the 1990 Laws of the Federation in this matter when there is the Sheriffs and Civil Process Law of Northern Nigeria, 1963 applicable to Plateau State still extant. The only saving grace is that the two laws are otherwise identical and the sections also identically arranged.

The claim for recovery of possession under the Plateau State Rent Control and Recovery of Premises Law and the Claim for Recovery of possession via the route of section 51 of the Sheriffs and Civil Process Law, it must be emphasised, fall under different and distinct forms of action in civil proceedings. They have their peculiar features and characteristics which more or less run parallel to each other. To constitute a claim for the recovery of possession under the recovery of premises law the landlord as the plaintiff has need to allege the presence of certain factors to properly constitute his cause of action including, firstly, the relationship of Landlord and Tenant between the parties, secondly, the determination of the relationship howsoever caused, for instance by notice to quit; effluxion of time and thirdly, that the tenant was still holding over. The instant amended statement of claim neither alleged nor pleaded any of these factors. More importantly, there have to be in the claim solid averments of the relationship of landlord/tenant between the appellant and the respondent; – a sine qua non if the action was to succeed under the Recovery of Premises Law. Again, there was no averment in the pleadings that the appellant was otherwise holding over. The respondent’s action as constituted in the Amended Statement of Claim could not conceivably be pigeonholed into any of the reliefs under the Recovery of Premises Law.

On the other hand S.51 of the Sheriffs and Civil Process Law made specific provisions as to the mode of recovery of possession of property where the property was sold in enforcement of judgment debt and was still in the possession of the judgment debtor. Section 51 provides thus:-

“If the property sold shall consist of house, Land or other immovable property in possession of a judgment debtor or some person on his behalf or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property, the Court shall on the application of the purchaser, order delivery thereof to be made by putting the party to whom the house, land or immovable property may have been sold or any person whom he may appoint to receive delivery on his behalf in possession thereof and if need be, by removing any person who may refuse to vacate the same”.(italics for emphasis)

By the clear provisions of S.44-51 of the Sheriffs and Civil Process Law, a purchaser in this matter the respondent has to move the Court by way of an application for the recovery of possession of the property which invariably has to be made to the High Court and therefore other tribunals, including the instant rent tribunal haven’t the jurisdiction to entertain such an application. Again, such an application is usually initiated in the High Court where the judgment was originally obtained. See Ogunmade v. Fadayiro (1972) 8-9 SC 1. As has become evident the High Court has original jurisdiction in matters of recovery of possession of property under S.51 of the Sheriffs and Civil Process Law. Issue No.2 therefore appears to be founded on a misconception of the forms of action contemplated under S.51 (supra) and the Recovery of Premises Law. The appellant’s arguments in this appeal in this respect are baseless and off the tangent and this dispose of issue No.2 save to add that it is against the appellant.

As regards issue No.1: Simply put, the appellant’s complaint was that by granting the relief sought in the interlocutory application (the terms of which have been set out herein) whether the Court below has overreached itself by not only preempting and prejudging the relief as per paragraph 14(c) of the respondent’s amended statement of claim but also whether the order of the Court below made to that effect was a final order. In my view, it is too simplistic to reduce the issue to just that S.51 of the Sheriffs and Civil Process Law has enabled and has empowered the Court below to make the interlocutory order of 19/10/99 – the subject-matter of this controversy – in other words, that it made a competent order. Such an assertion has completely in my respectful view ignored the antecedent facts to the order made and furthermore it begs the question, whether in the pendency of the substantive suit No. PLD/J774/98 between the appellant and the respondent wherein pleadings have been filed and exchanged it was proper to hear and determine the application and also to make the order in such terms as to amount to a final order. One issue that has to be resolved rather expeditiously in this regard is whether the said reliefs are conterminous interse in their import and capable of the same effect that is to say causing the delivery of possession of the property situate at No. 15 Miango Road, Jos to the respondent. From a careful examination of the two said reliefs, it is clear that they are one and the same and the effect of either of the two reliefs was to bring about the delivery of possession of the property situate at No. 15 Miango Road, Jos to the respondent. The said order of the Court below is clear and the subject-matter to which it related is also clear, it requires no construction. See Union Bank of Nigeria v. Ozigi (1994) 3 NWLR (Pt.333) 385. In other words, the two reliefs are conterminous in every respect. The respondent notwithstanding his tepid support for the interlocutory application and the order and that both of them came within the ambit of the provisions of S.51 and therefore competent, has not seriously challenged any of the exceptions taken by the appellant against the interlocutory application and the order.

I therefore agree with the appellant where at p. 4, Paragraph 4.02 of his brief, he stated to the effect that both prayers in the motion paper and the relief sought in the substantive suit. i.e. paragraph 14(c) of the amended statement of claim were one and the same and have the same effect of delivery of possession of the house and premises in issue to the Respondent.

From the record, the substantive suit No. PLD/J774/98 had already reached the stage of hearing, pleadings having been exchanged. The respondent rather than get on with the diligent prosecution of the case chose to slot in the said interlocutory application for the recovery of possession of the subject-matter of this appeal without abandoning or discontinuing with the relief in paragraph 14(c) of the amended statement of claim. There is no doubt that an interlocutory application can be initiated at any stage of a matter and that the nature of an application may determine when it has to be made as delay may defeat it but it could have been a different sing-song here if the interlocutory application were sought to protect irreparable damage to the res or to the plaintiff’s rights or to protect the status quo, that is to preserve the original status pending the decision in the issue of the recovery of possession.

Further, as a matter of practice and procedure, an application for recovery of possession as the instant one should have been brought in suit. No. PLD/J334/95 wherein the judgment was obtained. In other words, the instant interlocutory application did not relate to the matter in suit No. PLD/J774/98 nor could be hoistered on it. The suit is yet to be determined.

One serious implication of granting the instant interlocutory order against the particular facts of this matter is preemption of the determination of the crucial issues raised as per paragraph 14(c) in the amended statement of claim. By pronouncing on it the way it did in the instant interlocutory order, the court below has declared the respondent entitled to the delivery of possession of the subject matter of this suit. This court has time without number cautioned trial courts against deciding issues properly joined on the pleadings in a substantive suit while deciding interlocutory applications. See Alex Order Marine Management and Ors. v. Koda International Ltd. (1999) 1 NWLR (Pt.585) 40 at 54; Abdulkadir v. Musa (1999) 1 NWLR (Pt.587) 440. Again the Courts have where the interlocutory order has the effect of subsisting beyond the final judgment not allowed such orders to continue. See Okafor and Ors. v. A.-G., Anambra State (1992) 2 SCNJ 219; (1991) 6 NWLR (Pt.200) 659 as per Omo, J.S.C. wherein he held thus:

“The law is that, every interlocutory order must terminate with the determination of the substantive case or appeal vide Adefulu v. Oyesile…. The making of an interlocutory application which persists beyond the substantive case is a grave error in law which cannot be allowed to continue. This appeal must succeed therefore on this issue.”

Quite clearly, the principle deducible from the foregoing excerpt of the judgment in the case of Okafor v. A.G., Anambra State (supra) comes to this: That the life of an interlocutory order should in no circumstance persist beyond the substantive case.

Even though such instant interlocutory order was within the competence of the Court below to make – a proposition which agrees in toto with my reasoning above, it was all the same, erroneously made as a final order. This is so because it (i.e. the interlocutory order) was not circumscribed in scope and operation to terminate with the judgment in the substantive matter. In actual fact in this matter, it was meant to persist beyond the judgment in the substantive matter and it is a grave error and is bound to suffer the fate that it cannot be allowed to continue. Moreso, as it prejudged the issue in paragraph 14(c) of the amended statement of claim without hearing the parties.

Before concluding this appeal, issue No.3 appears to me totally misconceived as it is not accurate to contend that the respondent’s claims were essentially monetary as one of the reliefs sought as per paragraph 14(c) of the amended statement of claim was for recovery of possession of the property the subject matter of this appeal and did not sound in money compensation. The principle in Queen v. Adaroh (supra) cannot as suggested by the appellant apply as the facts and circumstances in the instant matter and the cited case are completely dissimilar. In the cited case, the plaintiff claimed essentially in damages which could be quantified in terms of monetary compensation as against the instant matter where the respondent claimed inter alia for the recovery of possession of the property situate at No.15 Miango Road, Jos.

The appellant’s case in this respect does not deserve picking argument with, as it is baseless.

In the final analysis, the appeal having succeeded in the main issue determined, the appeal hereby succeeds. In this appeal, the interlocutory order of 19/10/99 is hereby set aside with costs of this appeal assessed and fixed at N3,000.00 in favour of the appellant.

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Other Citations: (2000)LCN/0760(CA)