Okwuchukwu Chukwujekwu & Anor V. Edwin Anazodo & Anor (2016)
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ITA NOSAKHARE PEMU, J.C.A.
This is an appeal against the Judgment of Hon. Justice M. I. Onochie delivered on the 20th day of July 2012 at the Anambra State High Court, holden at Nnewi.
SYNOPSIS OF FACTS
By Writ of Summons and in Paragraph 17(a) of the Statement of Claim filed by the Plaintiffs (Respondents in this Appeal) on the 21st of July 2010, they claim against the Defendants (Appellants in this Appeal) the following:
a) DECLARATION that the Agreement entered into between the Plaintiffs’ father and Defendant on the 3rd day of June 1973 has been frustrated by the Construction of the Onitsha Owerri road as a result of which the building erected by reason of the agreement was demolished by the Federal Ministry of Works.
b) N4,000,000,00 (Four million naira) being general damages for trespass committed by the Defendants on the Plaintiffs land at Ogwugwuezeana Ibolo Oraifite and their erection by fence of a building therein.
c) Perpetual INJUNCTION restraining the Defendants, their servant, agents or privies from trespass or further trespass into the said land.
d) Any
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other relief the honourable Court may deem fit to make according to the circumstances of this case.
FACTS RELEVANT TO THE APPEAL
By an agreement entered into by the father of the Respondents on the one part, and the Appellants on the other part, the Respondents’ father provided his parcel of land situate and being at Ogwugwuezeana Ibolo Oraifite, for the Appellants to erect six (6) commercial shops and six (6) stores plus bathrooms, kitchen and latrine. The agreement further provided that upon completion, the building will be divided into two, the Respondents’ father taking the commercial shops and three stores, while the Appellants will take three commercial shops and three stores. The Appellants were to retain their three shops and three stores forever.
The parties enjoyed their respective buildings after completion, until the death of the Respondents’ father.
At the dualisation of the Onitsha-Owerri Federal Highway, the Federal Ministry of Works served a demolition notice on the Appellants and the Respondents because the buildings were affected by the said dualisation exercise, and consequent upon the notice of demolition, the
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construction Company which was constructing the road demolished the building.
It is alleged that the Appellants then proceeded to erect a structure on another portion of the Respondents’ land.
The Appellants contend that after the demolition of their structure, and payment of compensation to them by the Government, they were entitled to erect another building, pursuant to the 1973 agreement.
All efforts to stop the Appellants from further building on the Respondents land failed.
The Plaintiffs (Respondents) contends that the agreement entered into between the defendants and their father, has now been frustrated by the destruction of the subject matter of the contract, and that the Appellants having received compensation from C.C.C. Construction Company Ltd, no longer has any interest in the said land.
At the trial, the 1st Plaintiff and the 2nd Defendant testified. Exhibits were tendered by both sides and on the 30th of July 2012, the learned trial Judge found for the Plaintiffs (Respondents in this Appeal).
The Appellants are dissatisfied with the Judgment and have appealed it.
The Appellants filed a
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Notice of Appeal on the 2nd of August 2012.
The Appellants filed their Brief of Argument on the 22nd of January 2013. It is deemed filed on the 4th of March 2015, and same is settled by Hon. Barr. Linus A. Mbaso KSQ. They also filed a Reply brief on the 3rd of October 2012 but deemed filed on the 4th of March 2015.
The Respondents brief of Argument was filed on the 18th of September 2013, but same was deemed filed on the 4th of March 2015. It is settled by Ike Obeta, Esq.
On the 20th of April 2016, learned Counsel for the parties adopted their respective briefs of argument.
The Appellants had distilled three (3) Issues for determination from the Grounds of Appeal. They are
a) “Whether in the over-all circumstances and facts of this case the lower Court was right to have held that the contract of 3rd June 1973 between the parties was frustrated by the dualisation exercise of the Onitsha-Owerri Road; and if the answer to this is in the negative, was the Judgment delivered under the circumstances and facts of this case not perverse, null and void and of no effects.
b) Whether the Court below was justified in
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supplying SUO MOTU the MATERIAL evidence CONCERNING PLAN of the site in his Judgment when such evidence was neither adduced, nor introduced by any of the parties during the trial, and was the Judgment predicated on such erroneous assumption not perverse, null and void and of no effect.
c) Whether in the over-all facts and circumstances of this case and the contents and contexts still of the 3rd June 1973 agreement there still remained any term of the contract to be performed by the parties and if the answer to this is in the negative, was the lower Court right or justified in holding that the appellant’s interest was extinguished by the compensation paid to both parties as to declare the contract frustrated.
d) Whether the Court was right to have grated the claim of the plaintiff whose action was to eject the 2nd defendant (Builders) from the premises under the erroneous assumption that the contract had been frustrated and since the effect was to run contrary to the terms of the contract binding both parties, was the judgment not prejudicial, perverse, null and void of no effect and was the decision not clearly against the weight of evidence before
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the Court?
The Respondents on their part distilled two (2) issues determination, and they are
a) “Whether from the facts and circumstances of this case, the contract entered into between the Respondents’ father and the Appellants in June 1973 had not been frustrated by the demolition of the building erected on the Respondents as a result of the dualisation of the Onitsha-Owerri Federal Highway.
b) Whether the lower Court was not justified to have entered judgment in favour of the Respondents”.
It seems to me that the issues for determination proffered by the Respondents is an adoption of the Appellants Issues for determination.
I shall consider this appeal based therefore on the Appellants issues for determination.
Let me quickly observe here that even though the Respondents had in Paragraph 3.00-3.03. Pages 34 of his brief of Argument attempted to bring forth a preliminary objection, he had not hitherto put the adverse party on notice of the Preliminary Objection, neither did they tell Court on the date Court adopted his brief that they filed any notice of Preliminary Objection. The Result is that the
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Notice of Preliminary Objection is hereby discountenanced in law.
Before I consider the Issues for determination, a cursory look at the Grounds of appeal filed by the Appellants show some irregularity. Particularly with respect to Grounds 2, 3 and 4 pages 121-122 of the Record of Appeal.
I shall consider this promptly to see if this appeal as it is, is competent or not.
Ground 2 stipulates thus
“MISDIRECTION”
“The Erudite trial Judge misdirected himself when he failed or neglected to hold that the contract of 3rd June 1973 was completed after the parties had shared out the subject matter of the contract and each party therefore held, own, possess and made lawful user of its share of three stores with the kitchens and toilets each before the demolition order was served on the parties and the compensation was paid to both the Plaintiffs and defendants equally and there was not further contractual obligation to be performed”.
Remarkably is that there was no “particular of misdirection” stated in support of this Ground.
Ground three ERROR OF LAW
“The Honourable Trial Judge being
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oblivious of the fact that the second defendant both in his pleadings and at the witness box made it an issue that dualisation did not take all the subject matter of the 3rd June 1973 agreement and that the Plaintiff made no defence about that and held that the entire premises was involved and hereby fell into an error and delivered a perverse Judgment”.
Ground four WEIGHT OF EVIDENCE
“The trial Court did not properly appreciate the evidence adduced before it hence the Court failed to realize that the evidence does not and cannot support the judgment”.
The Principles of law regarding couching of Grounds of Appeal are trite:
Order 6Â of the Court of Appeal Rules, 2011 deals with Notice and Grounds of Appeal.
Sub Rule 2 of Rule 2 thereof stipulates that where a Ground of appeal alleges misdirection or error in law, the particulars and the notice of the misdirection or error shall be clearly stated.
Rule 3 thereof stipulates that
“Any Ground which is vague is general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is
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against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the respondent”.
Applyng these rules to Ground 2, it is evident that the Appellants failed to proffer the particulars and nature of the misdirection in this Ground. This makes this Ground benefit of merit and I so hold as it contravenes the express provisions of Order 6 Rule 2 (3) of the Court of Appeal Rules 2011.
With Regard to Ground 3 It is evident that this Ground is vague, argumentative and indeed narrative. It contravenes the provisions of Order 6 Rule 3 (2) and (3) of the Court of Appeal rules 2011. This Ground did not state whether the error was in LAW or FACT. Again this Ground is found wanting.
With Regard to Ground No 4, it simply says “WEIGHT OF EVIDENCE” No particulars were proffered. It is vague and obtrusive.
Where a Ground of Appeal fails to meet the requirements of the provisions of Order 6 Rule 2 of the Court of Appeal Rules, that ground must be struck out.
AKIWIWU MOTORS LTD & ANOR v. DR. BABATUNDE
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SONGONUGA (1984) A.N.L.R. 309. Ratio 1.
SILENCER & EXHAUST PIPES & CO. v. FARAH (1998) 12 NWLR (Pt. 579) 624 at 626-627.
NATIONAL INVESTMENT & PROPERTIES CO. LTD v. THOMPSON ORGANISATION LTD & ORS (1969) A.N.C.R. 134 Ratio 1.
Failure of Counsel to file proper Grounds of Appeal which are not vague, nebulous or verbuous does not amount to technicality, but it goes to the very root of the Appeal. This is because the Notice and Grounds of appeal is the originating process in the Appeal and should put the Court of Appeal and indeed the adverse party notice in clear terms of the matter appealed. The vision of the Court and the adverse party must not be beclouded.
This is not an issue of visiting the sin’s of Counsel on the client.
Decidedly, Grounds of Appeal are competent when inter alia they have not breached the rules of Court. UNITY BANK PLC v. DENCLAG LIMITED (2012) 18 NWLR (Pt. 1332) 293 @ 323. Para ce
ADDAX PET V DEV. CO. (NIG.) LTD v DUKE (2010) 8 NWLR (Pt 1196) 278, NWABUEZEV NWORA (2005) 8 NWLR (Pt. 926) 1.
In ASR CO. LTD v. O.O. BIOSAH & CO. LTD (1997) 11 NWLR (Pt. 527)
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145, it was held inter alia that
“Arguments and narratives do not improve the Ground of Appeal, rather, they become verbose, which verbosity tends to becloud the issue arising from the ground and render it complex.”
Grounds 2, 3 and 4 are in my view ones that are not competent Grounds in law and are liable to be struck out, and they are hereby struck out accordingly.
The Appellants are therefore left with Ground One, to be considered in this Appeal. It says
GROUND ONE ERROR IN LAW
“The Eminent trial Judge by holding that the contract of 2nd June 1973 by the parties was frustrated by the demolition Order of the Federal Ministry of Works to pave way for the dualisation of the Onitsha-Owerri Road erred in law and handed down a perverse judgment.”
I must say that the Appellants, in couching his Issues for determination, did not tie them to the Grounds of Appeal. But a cursory look at the issues for determination, it seems to me that it is Issue No. 1 that is tried to Ground No 1. Grounds Nos. 2, 3 and 4 having been struck out, Issues Nos. 2 and 3 must reasonably be struck out, as in my view, they
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seem to flow from Grounds 2, 3 and 4 of the grounds of Appeal. Accordingly, Issues 2 and 3 of the Appellants Issues for determination are hereby struck out.
In considering the only Ground left i.e. Ground One, the vital document to perverse is the Agreement between the parties of the 3rd day of June 1973.
Indeed a painstaking look at the said Agreement shows in clause 4 which has this to say
“On completion of the building, the six shops and the six stores as well as out houses and conveniences shall be shared equally between both parties and the Builders shall retain their own three shops and three stores for ever that is in perpetuity.”
The builders are therefore by this terms to retain their own three shops and three stores for ever.
In his Judgment the learned trial Judge posited as follows:-
“By the terms of Exhibit “A” the defendants were to remain in occupation of three shops and three stores rent free in perpetuity. The building constructed by the defendants on the plaintiffs land in consideration of which the defendants were entitled to occupy three shops and three stores has been demolished as a result
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of the dualisation of the Onitsha-Owerri Federal Highway.”
He went on
“It is therefore my view that notwithstanding the fact that the defendants have carried out their obligations in Exhibit “A” there are still covenants in Exhibit “A” binding on the plaintiffs capable of enforcement by the defendants. The evidence before this Court shows that the parties were duly compensated for the structure build on the land the subject matter of Exhibit “A”. The frustrating event in this case was not induced by the plaintiffs. It was not contemplated by the parties at the time they signed Exhibit “A”. The obligations of the parties under Exhibit “A” can no longer be enforced owing to the destruction of the subject matter of the agreement. It is my view that the agreement reached by the parties in Exhibit “A” has been frustrated by the destruction of the subject matter of the lease”.
The term “FRUSTRATION OF CONTACT” means the premature determination of an agreement between the parties lawfully entered into, and in course of operation of the time of its premature determination, owing to the occurrence of an intervening event, or change of
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circumstance, so fundamental as to be regarded by law both as striking at the root of the agreement, and as entirely beyond what was contemplated by the parties, when they entered into the agreement MAZIN ENG. LTD v. TOWER ALUMINIUM (1993) 5 NWLR (Pt. 295) 526.
The parties in this appeal are agreed that there was a binding contract between them regarding the land upon which the builder was to develop on behalf of both parties.
After the completion of the two sets of three bedroom flats and three shops, they both took their respective shares.
They, at the time of the execution of the contract, could not have contemplated that government would embark on a dualisation exercise at Oraifite, that would amount to the demolition of the building.
The Federal Ministry of Works paid the sum of N3,584,250.00 (Three million, Five hundred and eighty-four thousand, Two hundred and fifty naira) to the appellants and the Respondents, as compensation for the demolition.
That was the end of that contract. Indeed the contract become frustrated by these events. There was nothing left for the Appellants to hold in
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perpetuity.
They had no right to trespass on the Respondents land, by erecting a structure on another portion of the Respondents’ land which was not part of the Agreement entered into by the parties.
The Agreement entered into by the parties of 3rd day of June 1973 had by operation of law been frustrated by the construction of the Onitsha-Owerri Road as a result of which the building enacted by reason of the agreement, was demolished by the Federal Ministry of Works.
In answer to the Issue No. 1 of the Appellants issues for determination which remains the only issue, the lower Court was right to have held that the contract of 3rd June 1973 between the parties was frustrated by the dualisation exercise of the Onitsha-Owerri Road.
This issue is resolved in favour of the Respondents and against the Appellant.
The Appeal is dismissed and the Judgment of Hon. Justice M. I. Onochie, delivered on the 30th day of July 2012 in Suit No. HN/70/2010 at the High Court of Anambra State, Nnewi Judicial Division is hereby affirmed.
Parties to bear their respective costs.
Other Citations: (2016)LCN/8724(CA)
