O.D. Briggs V. The Chief Lands Officers Of Rivers State Of Nigeria & Ors (2005)
LAWGLOBAL HUB Lead Judgment Report
KUTIGI, J.S.C.
In the High Court of River State holden at Port Harcourt, the plaintiff claimed against the defendants jointly and severally as follows:-
“(a) A decree of specific performance constraining the 1st defendant to engross the deed as contained in paragraph 2 of the letter of renewal exhibit C, the plaintiff having perfected his obligation of payments of the necessary fees consequent to the engrossing of the deed.
(b) A declaration that the purported sale of the properly No. 9 Yenagoa Street, Diobu, Port Harcourt, also known as Plot 5 in Block 254, Oriji Layout, Diobu, Port Harcourt by the 2nd defendant to the 3rd defendant is null and void.
(c) N500,000.00 general damages for trespass to the property by the defendants jointly and severally.
(d) Rent for 35 rooms at N12.00 per room per month from 1/9/1986 until judgment is given from the 3rd defendant.”
Each defendant filed a separate statement of defence. After the filling and exchange of pleadings the case proceeded to trial. The plaintiff testified as the sole witness for himself. The 1st and 2nd defendants called no evidence but rested their cases on that of the plaintiff, while the 3rd defendant testified on his own behalf but called no witness. Counsel on both sides later addressed the court. They also in addition made written submissions.
In a reserved judgment the learned trial Judge refused the plaintiff’s claims for specific performance, declaration that the sale of the property by the 2nd defendant to the 3rd defendant was null and void, as well as damages for trespass. The plaintiff was however awarded a refund of rents collected from 35 rooms of the property at the rate of N12.00 per room per month from September 1986 to the date of judgment. He was also awarded additional N30,300.00 as compensation.
Dissatisfied with the judgment of the High Court, the plaintiff appealed to the Court of Appeal holden at Port Harcourt. The 3rd defendant also cross-appealed.
The issues before the Court of Appeal were clearly whether or not the plaintiff was entitled to the reliefs claimed by him and whether or not he (plaintiff) was also entitled to the compensation award of N30,300.00 as well as the arrears of rent.
The court of Appeal in a considered judgment allowed both the appeal and the cross-appeal as it relates to the payment of compensation only. It held that the plaintiff was entitled to the reliefs (except damages for trespass) claimed by him and granted him same. The cross-appeal of the 3rd defendant was also allowed and the compensation of N30,300.00 was set aside. For the purpose of clarity the Court of Appeal on pages 12 -13 of its lead judgment made the following orders –
“(1) An order of specific performance in favour of the appellant (meaning plaintiff) is to be carried out by the 1st and 2nd respondents (meaning defendants) by engrossing the deed of lease of plot 254 Orije layout, port Harcourt, otherwise known as 9 Yenagoa Street, Diobu, Port Harcourt is hereby decreed.
(2) The purported sale of the aforementioned property to the 3rd respondent (defendant) is null void and no property passed.
(3) A perpetual injunction is ordered against the 3rd respondent (defendant) or his agents from entering into that property.
(4) Cumulative rental collected by the 3rd respondent (defendant) for a period of 4 years commencing from September 1986 to September 1990, shall be payable to the appellant (plaintiff).
(5) The award of N30,300.00 as compensation is set aside. In that case the appeal of the 3rd respondent (defendant) on this head only succeeds.”
Still aggrieved by the decision of the Court of Appeal, the 3rd defendant has now further appealed to this court. His notice of appeal contained 5 grounds of appeal. Only the 3rd defendant and the plaintiff filed and exchanged briefs of argument in the appeal. At the hearing on 31/01/2005 the 3rd defendant/appellant was absent and not represented. He was therefore treated as having argued his appeal vide Order 6 rule 8(6) of the Supreme Court Rules, 1985. Chief Chris Uche learned Senior Advocate of Nigeria who appeared for the plaintiff/respondent adopted his brief and cited additional authorities of Ude v. Nwara 91993) 2 NWLR (Pt.278) 638 at 644 and Ogualaji v. A-G., Rivers State & Anor. (1997) 6 NWLR (pt.508) 209 at 224, 233. We were urged to follow these authorities and dismiss the appeal.
Learned counsel for the plaintiff/respondent has in his brief raised by way of preliminary objection, points of law to grounds 1, based purely on fats or on mixed law and facts. That for the grounds to be competent, the appellant needed leave of the Court of Appeal or of this court and which is lacking vide the provision of section 233 (3) of the Constitution. That grounds 1 & 4 are based on the contention that the Court of Appeal granted a declaration which was not an issue before it as well as ordered an injunction which was not claimed. The two grounds are therefore grounds of mixed law and fact. He said grounds 2,3 & 5 challenge evaluation, inference and conclusions reached by the Court of Appeal on dispute facts. They are at best therefore grounds of mixed law and facts. All the grounds of appeal therefore incompetent for want of leave. A number of cases were cited in support including-
Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484; Ajayi v. Omorogbe (1993) 6 NWLR (pt.301) 512; Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 NWLR (pt.126) 299; Oke v. Eke (1982) 12 SC 218.
The court was urged to strike out the grounds of appeal for incompetence.
The appellant in his reply brief however contented that although the plaintiff/respondent stated the correct principles of law relating to competency of the grounds of appeal, the said principles were not properly applied to the grounds of appeal herein. He said the objection is founded on a misconception of the decision in Ogbechie v. Onichie (supra) and other cases cited by the plaintiff/respondent in his brief. He said grounds 1 & 4 complain about the grant of prayers for a declaration and injunction by the Court of Appeal which were never sought in the trial court. These are grounds of law and therefore competent. That grounds 2, 3 & 5 complain about the inference drawn and conclusions reached on undisputed facts. They are therefore grounds of law and are competent. A number of case were cited in support including – Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; Bamgboye v. University of Ilorin (2001) FWLR (Pt.32) 12; Shanu v. Afribank (2001) 13 NWLR (Pt.684) 392, (2001) 10 SCNJ 1; Aderounmu v. Olowo (2000) 4 NWLR (Pt. 652) 253.
We were urged to dismiss the preliminary objection and hear the appeal on its merit.
It is certainly not the christening or labeling of a ground of appeal as a ground of law makes it one because it is not always easy to distinguish a ground of law simpliciter from a ground of mixed law and fact. What is therefore required is a thorough examination of the grounds of appeal together with the particulars, if any, to identify the real issue or complaint before taking a stand (see N.N.S. Co. Ltd v. Establishment Sima of Vaduz (1990) 7 NWLR (pt.164) 526. The court should thus focus on the question raised rather than on the form of the ground of appeal itself. Where the ground raises an issue of law based on accepted, undisputed or admitted facts it is a ground of law but where it is based on facts in dispute or unascertained, it is one of mixed law and fact. I shall be guided by these principles. A careful examination of the 5 grounds of appeal show that –
Ground 1
It essentially complains that the Court of Appeal wrongly interpreted the grounds of appeal before it when it held that the plaintiff appealed against the refusal of the trial court to grant a declaration and consequently granted the declaration which was not appealed or claimed by the plaintiff. To me this is a ground of law which required no leave. It is therefore competent.
Ground 2
This complains about inference or inferences drawn by the Court of Appeal from the document, exhibit A (the deed of assignment). This I believe is a ground of law. It is therefore competent.
Ground 3
Complains about the granting of an order of specific performance on wrong principles by the Court of Appeal and which order was never appealed.
Where the lower court reaches a conclusion which cannot reasonably be drawn from the facts as found, that would be a misconception of the law. So it is in this case. It is a ground of law and is valid.
Ground 4
This relates to the granting of an order of injunction against the 3rd defendant which was not claim and that the Court of Appeal failed in the performance of it’s a judicial duty when it so ordered. Clearly too this is a question of law. The ground is competent.
Ground 5
This is questioning the conclusions reached by the Court of Appeal based on the undisputed facts pertaining to the presence of the 3rd defendant in the disputed property and collecting rents therefrom. It is in my view a ground of law. It is competent.
Accordingly, the preliminary objection is overruled. It is dismissed.
I will now proceed to consider the appeal on the merit.
The 3rd defendant/appellant has submitted in his brief (3) issues for determination thus-
“(i) Whether the Court of Appeal was right to have held that the respondent’s (plaintiff) appeal before it contained a compliant against the refusal by the trial court to grant the respondent’s (plaintiff) claim for a declaration.
(ii) Whether having regard to the state of the pleadings and the issues joined between the parties as well as the evidence led, the Court of Appeal was right to have held that exhibit A, the deed of assignment, properly assigned the property in dispute to the respondent (plaintiff), and to have granted the reliefs of specific performance and payment or rents.
(iii) Whether the Court of Appeal was right in failing to consider and pronounce on the question of whether the plaintiff/respondent was entitled to claim for injunction in the v having made no such claim in the trial court.”
The three (3) issues will be considered separately. But before I do that I would first of all like to set out briefly the facts of the case as follows-
The plaintiff acquired the property in dispute by purchase from one John Iwejua. The said John Iwejua originally had a lease for seven years by the Government if Eastern Nigeria (see exhibit A). At the expiration of his lease thereof, John Iwejua was granted a renewal for another term.
The renewal could not be engrossed on exhibit A due to the civil war. After the civil war the River State Abandoned Property Authority released the property to the plaintiff as the owner thereof. He later applied to the Government of Rivers State for a renewal of the lease which was approved for a term of 99 years.
The 3rd defendant contended that the lease originally granted to John Iwejua had expired on 31/12/1963 and that the property had reverted to the Government. He said John Iwejua gad nothing to assign to the plaintiff on 10/4/1964 as he purported to do when the assignment was executed. That the property was properly sold to him by the 2nd defendant who had the reversionary interest vested in it when lease expired on 31/12/1963. The 3rd defendant also claimed that the plaintiff’s renewal of the lease for 99 years now cannot be engrossed in his favour as he did not satisfy the conditions precedent.
Issue (i) above is clearly to the effect that the plaintiff did not in the Court of Appeal complain against the refusal of the trial court to grant him a declaration that the sale by the 2nd defendant to the 3rd defendant was null and void. Issue (iii) also is similarly to the effect that the plaintiff in the High Court did not claim for an injunction and that the Court of Appeal was wrong to have made that order which was not sought for
The record shows on page 4 of the lead judgment of the Court of Appeal as follows-
“The appellant (plaintiff) framed two issues for determination and the issues are as follows-
‘(a) Was the plaintiff/appellant entitled to the grant of the reliefs sought for in the court below or not
That is to say for-
One specific performance declaration that the purported sale of the said property to Mr. Briggs is null and void.
The injunction and the damages for trespass, or in the alternative was the learned trial Judge right to award the sum of N30,300.00 as compensation instead of decreeing for specific performance and granting other reliefs”
Also on page 4 of the lead judgment is contained-
“Ground 1 complained of error in law in the failure or refusal of the court below to make an order of specific performance declaration and injunction.”
On page 12, the judgment reads-
“Having held that the 3rd respondent (defendant) has no business in the house under dispute, he or his agent is permanently restrained from entering into the property.”
It is thus not true as contended by the 3rd defendant/appellant that the plaintiff did not complain in the Court of Appeal about the failure of the trial court to declare the sale by the 2nd to 3rd defendant as null and void. He asked for it and he got it in the Court of Appeal even though the trial court refused it. It is true however that the plaintiff did not specifically seek for an order of injunction against the 3rd defendant in the court of trial. But that portion of the judgment quoted above clearly show that the injunction against the 3rd defendant was of a consequential nature. The plaintiff having been declared to be entitled to the property in dispute needs protection against the 3rd defendant who has lost and has now acquired the status of a trespasser. The order of injunction against the 3rd defendant was therefore a proper and necessary order. It is a consequential order which courts of law are entitled to make in appropriate case to protect their judgments or orders as in this case. It was a valid order.
Briefly on issue (ii). The law as applied to the facts as found by the courts in this case is very clear. The pleadings and evidence led thereon clearly shows that the deed of assignment (exhibit A) was validly executed before it was assignment to the plaintiff. It was no the basis of exhibit A that the Rivers State Abandoned property Authority released the property to the plaintiff on his return after the civil war. It was also on the same basis of exhibit A that the then Government of Eastern Nigeria also renewed the lease before it was assigned to the plaintiff. After the civil war the plaintiff applied to the Government of Rivers State for a renewal of the lease once more and an approval was given by the 1st defendant for 99 years. The consequential nature. Clearly found that the plaintiff’s story as to how he acquired the property from John Iwejua is true and acceptable. The 3rd defendant’s version was rejected.
The evidence which was accepted by the courts below is that when the original lease expired on 31/12/63, it was renewed by the lessee, Iwejua himself albeit a tenant at sufferance, before it was assigned to the plaintiff on 10/4/1964. The outbreak of the civil war caused the plaintiff to abandon his area. He returned after the civil war by which time the lease had expired. He applied for renewal and got approval. He was also then a tenant at sufferance of the property in question and entitled to full protection of the law until lawfully ejected or sued in Court (see Ude v. Nwara (supra); Ogualaji v. A-G., River State (supra). He was never ejected nor sued. He remained in possession. There was therefore right in the way it approached. The 3rd defendant/appellant has not been able to convince me that the legal approach was wrong. There was no evidence that the lease had expired and remained unrenewed, before it was assigned to the plaintiff as contended by the 3rd defendant/appellant herein. There was equally no evidence that Iwejua or the plaintiff was lawfully ejected from the property. Finally I do not think it lies in the mouth of the 3rd defendant/appellant to contend in court that the plaintiff is yet to fulfill the conditions for renewal of the lease and therefore not entitled to have his deed engrossed. That is Government’s or 1st defendant’s business, if I may say so. They (1st and 2nd defendants) gave no evidence. The plaintiff testified that he complied with the conditions in exhibit B and tendered receipts including exhibits C, D, E, G – G3 in proof thereof.
All the issues having been resolved against the 3rd defendant/appellant, the appeal completely fails. It is hereby dismissed with N10,000.00 costs against the 3rd defendant/appellant only.
SC.68/2000
