REGISTERED TRUSTEES OF THE CHURCH OF GOD MISSION INTERNATIONAL INC v. PEDRO ELEMA & ANOR (2019)

REGISTERED TRUSTEES OF THE CHURCH OF GOD MISSION INTERNATIONAL INC v. PEDRO ELEMA & ANOR

(2019)LCN/12822(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of March, 2019

CA/B/126/2009

RATIO

ACTION: FAILURE TO OBTAIN LEAVE FOR A REPRESENTATIVE ACTION

“Put bluntly, failure to obtain leave to sue in a representative capacity does not vitiate the competence of a case commenced in a representative capacity. See Mrs. Ape Salisu & 12 Ors. v. Alhaji Lateef Odumade & Anor. (2010) 6 NWLR (Pt. 1190) 228 and Akunwata Ogbogu Mbanefo v. Nwakibie Henry Molokwu & 6 Ors. (2014) 6 NWLR (Pt.1403) 377.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

ACTION: WAYS TO REJECT A REPRESENTATIVE ACTION

“By the way of a reminder, in the case of Chief Elijah Isikpo Ikpuku & 5 Ors. v. Chief Promise Ikpuku & 3 Ors. (1991) 5 NWLR (Pt.193) 571 at 585 per Kolawole, JCA, the Court of Appeal stated the procedure for objecting to a representative action as follows:
In Wiri & Ors. v. Uche & Ors. (1980) 12 NSCC 1 at p. 5, Idigbe, J.S.C., stated the position thus:
The law on this matter is this! (1) if the defendant (appellant) desire to question the authority of the plaintiffs (respondents) to sue on behalf of (i.e in the name of) the Umuagbai community it is not open for the defendants to raise the objection by way of defence but they should: (a) at an early stage of the proceedings, move the Court to strike out the name of the community as plaintiffs, see Russian Commercial & Industrial Bank v. Comptoir DEscompte De Mulhouse (1925) A.C. 112 for comparative situation or (b) by counter affidavit filed at the time of the hearing of the application for order for leave to sue in a representative capacity endeavour to prevent the order from being made; and (2) although the Court may have granted leave for the plaintiff (respondent) to prosecute their claim in a representative capacity it is still open to the Court, at the end of the trial after a review of the evidence to find as a fact that respondents were not authorised to prosecute for the community”.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

COURT AND PROCEDURE: FAILURE OF THE TRIAL COURT TO GIVE JUDGMENT

“The law is now firmly settled that failure per se by a trial Court to deliver its decision within ninety days of conclusion of evidence and addresses of counsel would not render an otherwise competent decision or judgment invalid. See Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377; Eseigbe v. Agholor (1990) 7 NWLR (Pt. 161) 234; Veritas Insurance Co. Ltd. v. Citi Trust Investment Ltd. (1993) 3 NWLR (pt. 281) 349; Kalu v. Igwe (2002) 5 NWLR (Pt. 761) 678 and Atungwu v. Ochekwu (2013) 14 NWLR (Pt. 1375) 605.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

INTERPRETATION: MEANING OF ADMINISTRATOR

“Administrator in legal terms and having regard to the facts of this case, means A person appointed by the Court to manage the assets and liabilities of an inestate decedent Blacks Law Dictionary, Deluxe Ninth Edition, page 52. In plain language, administrator means somebody appointed by a Court to manage the estate of a deceased person Encarta World English Dictionary, page 21.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

LAND LAW: CLAIM OF TITLE TO LAND

“The law is settled and it is that a plaintiff, who makes a claim for trespass and injunction in respect of land, has put his title in issue. See Abotche Kponuglo v. Kodadja (1933) 2 WACA 24; Okorie v. Udom (1960) 5 FSC 162; Ogunde v. Ojomu (1972) 4 SC 105 and Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745. In the case of Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562 at 580, per Iguh, JSC; the Supreme Court held that:
whenever a claim for trespass is coupled with a claim for an injunction, the title of the parties to the land in dispute is automatically put in issue.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

JUSTICE

CHIOMA EGONDU NWOSU-IHEME justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN justice of The Court of Appeal of Nigeria

Between

REGISTERED TRUSTEES OF THE CHURCH OF GOD MISSION INTERNATIONAL INCAppellant(s)

AND

1. PEDRO ELEMA
2. IVIE ELEMA
(Administration of Estate of late Chief Felix Owen Elema)Respondent(s)

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.(Delivering the Leading Judgment):

The respondents were the plaintiffs in Suit No. B/454/1991 instituted in the High Court of Edo State, Benin Judicial Division, holden at Benin City. In paragraph 30 of their further amended statement of claim, the respondents claimed against the defendant, now the appellant, as follows:

WHEREFOR the plaintiffs claim against the defendant is for:-

(a) 5,000,000.00 being general damages for trespass committed by the defendants when sometimes in 1988, the defendant wrongfully and maliciously broke and entered the land of the plaintiffs as shown in the litigation survey plan No. ISO/BD/1779/91 filed in this action which land is lying and situate at Elema Quarters bordering Irhirhi/Ugiokhuen village area, Benin City and erected a structure without the consent and authority of the plaintiffs.

(b) In spite of repeated and consistent warnings from the plaintiffs, the defendant have continued and persisted in their acts of trespass.

(c) An injunction to restrain perpetually, the defendants, their servants, agents and privies or otherwise howsoever from committing further or other acts of trespass on the land of the plaintiffs.

Or in the alternative

1. Declaration that the plaintiffs are entitled to compensation in respect of the land in dispute and which parcel of land is delineated and described in survey plan No. ISO/BD/1779/91 filed along with the statement of claim in this action.

2. Declaration that the plaintiffs are entitled to 25% of the total spot assessment as contained in the report of the Estate Valuers pleaded in the statement of claim.

3. An order directing the defendant to pay the sum of 53,240,000.00 (Fifty three million, two hundred and forty thousand Naira) to the plaintiffs as compensation for the parcel of land.

The appellant counterclaimed in paragraph 28 of its 1st further amended statement of defence and counterclaim as follows:

(a) A declaration that defendants are the true owners under Bini Customary Land Law of all that piece or parcel of land described in pink in their Litigation Survey Plan to be filed in this action.

(b) Defendants are entitled to issuance of a Certificate of Occupancy thereof.

(c) Order that plaintiffs refund forthwith the N475,000.00 (and interest hereon from date of collection till judgment) at 20% per annum to the defendants as more illegally and fraudulently received.

The trial Court heard the parties and their witnesses and, after the addresses of learned counsel, delivered a reserved judgment on the 15th day of February, 2007 in which it awarded the sum of 350,000.00 as general damages for trespass by the appellant in favour of the respondents. The Court also granted an injunction perpetually restraining the appellant from further acts of trespass. This appeal is against the said decision.

In the amended appellants brief filed on 02/06/2016, five issues were distilled for determination as follows:

ISSUE 1

Whether the judgment in this case is not a nullity in the face of the face that it was delivered well outside the three months statutorily period stipulated by the Constitution of the Federal Republic of Nigeria 1999. This issue was distilled from ground 1 of the grounds of appeal.

ISSUE 2

Whether the Court below was right in granting reliefs that where not asked for by the plaintiffs. This issue is distilled from ground 2 of the grounds of appeal.

ISSUE 3

Whether the trial Court was right in assuming jurisdiction in this case when the plaintiff(s) who purportedly sued in a representative capacity did not apply to the Court to sue in a representative capacity and therefore no leave was granted them to sue in that capacity. This issue is distilled from ground 3 of the grounds of appeal.

ISSUE 4

Whether or not the learned trial Judge was right when he held that the respondent has the requisite locus standi to maintain this action having regard to the facts and circumstances of this case. This issue is distilled from grounds 4 and 6 of the additional grounds of appeal.

ISSUE 5

Whether or not the learned trial Judge was right when he held that even if the 2nd plaintiff is the only one interested in the prosecution of the case, he is perfectly entitled to continue the prosecution of the same. This issue is distilled from ground 5 and 7 of the additional grounds of appeal.

The respondents filed an amended brief on 19/09/2016, in which they raised and argued a preliminary objection and also formulated the following four issues for determination:-

(A) Whether the delivery of judgment by the trial Court three months after the conclusion of evidence and final address occasioned any miscarriage of justice to the appellant?

(B) Whether the learned trial judge in his judgment awarded to the respondent what they did not claim?

(C) Whether the respondents action is a representative action that requires the leave of Court? If the answer to the above is in the affirmative, whether the non-obtaining of leave vitiates the respondents action?

(D) Whether the learned trial judge rightly held that the late Friday Elema (The original, 2nd respondent in this appeal) had the requisite locus standi to prosecute the suit before the lower Court alone.?

PRELIMINARY OBJECTION
On page 6 of their brief, the amended respondents raised the following preliminary objection:-
The respondent shall during the hearing of the appeal by way of preliminary objection contend

A. That there is no validly filed amended notice of appeal upon which the appellants amended brief of argument filed on the 2/6/2016 is based

B. The additional grounds of appeal Nos. 4 to 7 contained in the amended notice of appeal which is not validly before this Court and from which issues 4 and 5 argued in the appellants amended brief were formulated arise from the ruling of the lower Court delivered on the 20/6/1995 and the appellant did not seek and obtain the leave of this Court of Appeal out of time against the interlocutory ruling of the lower Court delivered on the 20/6/1995.

Arguments on the above preliminary objection span pages 6 to 11 of the amended respondents brief.

When this matter was heard on the 17th day of January, 2019, learned counsel did not make any reference to the respondents preliminary objection before the appeal was argued. Therefore, this preliminary objection is liable to be struck out for being abandoned. The law is that any preliminary objection not argued or moved before the hearing of an appeal is deemed abandoned. See Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166; Tiza v. Begha (2005) 33 WRN 158; Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 372 and Fayemi v. Oni (2010) 17 NWLR (Pt. 1222) 326.

SUBSTANTIVE APPEAL
The appellants notice of appeal is on pages 160 to 162 of the record of appeal and it contains only the following three (3) grounds:

GROUND 1
The judgment is a nullity and should be officially so declared.

PARTICULARS
The judgment was delivered more than 6 months after counsel addressed Court thereby breaking the constitutional provision of giving judgment within 3 months of address. Counsel delivered their address on 3rd of August 2006 and judgment was delivered 5/2/07.

GROUND II
The trial judge erred in law in awarding to the plaintiffs what they did not claim.

PARTICULARS
Nowhere in their pleadings or in their evidence did the plaintiffs ask for title to the land in dispute. The judge basing her award of title to the land in dispute on some other decisions reached in other Courts is a grievous error in law.

GROUND III
The learned trial judge erred in law by assuming jurisdiction in this case.

PARTICULARS
The Court would have no jurisdiction in a representative action such as this when the plaintiffs did not apply for leave to sue in a representative capacity and such leave was not granted. There is copious evidence before the Court and on the face of the processes filed that this action was brought in a representative capacity. 2nd plaintiff/respondent said that much under cross-examination.
They were suing on behalf of themselves and the beneficiaries and the 2nd plaintiff in evidence agreed.

The above notice of appeal was not amended and the amended appellants brief is supposedly based on it. The fourth and fifth issues identified by the learned counsel for the appellant, which issues have been reproduced earlier in this judgment, do not relate to any of the three grounds in the appellants notice of appeal and these issues are liable to be struck out. The law is certain that an issue articulated in a brief must arise from or relate to a ground of appeal. Where an issue cannot be related to or tied to any ground of appeal, such an issue is incompetent and it should be struck out. See Attorney-General. Bendel State & Ors. v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646; Rear Admiral Francis Agbiti v. The Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175 and Dr. Roy Ugo v. Augustina Ugo (2017) 18 NWLR (Pt. 1597) 218.

Issues 4 and 5 framed by the appellant are hereby struck out for being incompetent.

I adopt the surviving three issues as formulated by the appellant to determine this appeal.

Although, both Issues 1 and 3 align with jurisdiction, Issue 3 which borders on foundational jurisdiction, since it goes to the competence of the suit itself, will be taken and treated first.

ISSUE NO. 3
Whether the trial Court was right in assuming jurisdiction in this case when the plaintiff(s) who purportedly sued in a representative capacity did not apply to the Court to sue in a representative capacity and therefore no leave was granted them to sue in that capacity.

Learned counsel for the appellant relied on the case of Ojoh v. Kamalu (2006) 1 NWLR (Pt. 301) 939 and argued that:

It is settled law that a beneficiary of an estate can proceed to protect the estate against a third party, who is trespassing on the property belonging to the estate.

However, where an action is instituted on behalf of the estate, a single beneficiary cannot insist on the prosecution of a case as is the situation where the entire beneficiaries of the estate have decided to settle. Thus, where it has not been shown that the family or communal land has been partitioned, individual members of the family or community has no distinct interest in the land.

He referred to exhibit Q, which was made on 23/12/1994 after the commencement of the suit, and contended that since the estate has been settled, the 2nd plaintiff could not proceed with the case for his personal interest and This will defeat the purpose and interest of the Administrators in initially commencing this suit. To buttress his argument, learned counsel referred the Court to the cases of Ikpuku v. Ikpuku (1991) 5 NWLR (Pt.193) 571.

According to the learned counsel for the appellant, the 2nd plaintiff/respondent could not legally sue without leave of Court and authority of the beneficiaries of the Estate of Felix Elema. He submitted that more fundamental is the failure of the Plaintiffs to seek and secure the leave of Court to sue in representative capacity. And when capacity is thus challenged, plaintiff must show he sought and obtained leave. This is not the case here.

The learned counsel for the respondents disagreed with the appellant and submitted that the endorsement on the writ of summons shows that the action was initiated by the respondents (as plaintiffs) at the lower Court as administrators of an estate and not a representative action for and on behalf of any person.

In the alternative, learned counsel for the respondents argued that in a representative action failure to obtain leave or order of Court would not rob the trial Court of its jurisdiction to entertain same. To support this argument, he referred to the cases of Mbanefo v. Molokwu (2014) 1-2 SC (Pt. II) 137 and Salisu v. Odumade (2010) 2 SCNJ 257.
The appellant based his arguments, in respect of this issue, substantially on exhibit Q.

To be brief, the trial Court dealt extensively on exhibit Q on pages 143 to 146 of the record of appeal and held/or concluded, inter alia, as follows:

Exhibit Q was a mere attempt to settle this matter out of Court. There is no substantiated or convincing evidence before me to prove the defendants contention that this case has been settled amicably or that the Administrators of the Estate, the plaintiffs are no more interested in the prosecution of this suit. Exhibit Q can therefore not be used as a weapon to deprive the 2nd plaintiff the right to continue the prosecution of this case as one of the administrators of the estate especially as there was no attempt by the 1st plaintiff to move the Court to strike out his name or any disgruntled member to seek to withdraw this suit from Court.

The above decision of the trial Court, especially that exhibit Q was a mere attempt to settle this matter out of Court, has not been appealed against. The law is that a finding of fact not appealed against is deemed to have been accepted as true. See Obasi v. Onwuka (1987) 3 NWLR (Pt.61) 364; Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; Adejumo v. Olawaiye (2014) 12 NWLR (Pt. 1421) 252; Nyesom v. Peterside (2016) 1 NWLR (Pt. 1492) 71 and Col. Mohammed Sambo Dasuki v. Federal Republic of Nigeria (2018) 10 NWLR (Pt. 1627) 320.

Therefore, the appellant, having accepted that exhibit Q was no more than an attempt to settle the matter out of Court, cannot use the same exhibit as the basis or pillar of objection to the jurisdiction of the trial Court on the ground that the respondents did not obtain leave to institute their action in a representative capacity.

By the way of a reminder, in the case of Chief Elijah Isikpo Ikpuku & 5 Ors. v. Chief Promise Ikpuku & 3 Ors. (1991) 5 NWLR (Pt.193) 571 at 585 per Kolawole, JCA, the Court of Appeal stated the procedure for objecting to a representative action as follows:
In Wiri & Ors. v. Uche & Ors. (1980) 12 NSCC 1 at p. 5, Idigbe, J.S.C., stated the position thus:
The law on this matter is this!
(1) if the defendant (appellant) desire to question the authority of the plaintiffs (respondents) to sue on behalf of (i.e in the name of) the Umuagbai community it is not open for the defendants to raise the objection by way of defence but they should:
(a) at an early stage of the proceedings, move the Court to strike out the name of the community as plaintiffs, see Russian Commercial & Industrial Bank v. Comptoir DEscompte De Mulhouse (1925) A.C. 112 for comparative situation or (b) by counter affidavit filed at the time of the hearing of the application for order for leave to sue in a representative capacity endeavour to prevent the order from being made; and

(2) although the Court may have granted leave for the plaintiff (respondent) to prosecute their claim in a representative capacity it is still open to the Court, at the end of the trial after a review of the evidence to find as a fact that respondents were not authorised to prosecute for the community”.

The procedure specified above has not been followed by the appellant and he cannot competently complain about the respondents representative capacity in this case.

The respondents stated the capacity in which they instituted their suit by describing themselves as Administrators of Estate of Late Chief Felix Owen Elema and no more. By this endorsement, the respondents did not commence their action in a representative capacity but ex facie in their capacity as Administrators of the Estate of late Chief Felix Owen Elema. Administrator in legal terms and having regard to the facts of this case, means A person appointed by the Court to manage the assets and liabilities of an inestate decedent Blacks Law Dictionary, Deluxe Ninth Edition, page 52. In plain language, administrator means somebody appointed by a Court to manage the estate of a deceased person Encarta World English Dictionary, page 21.

The appellants, being the legal managers of the estate of late Chief Felix Owen Elema have the legal capacity, ab initio, to institute their action in the capacity they did in this case.

Assuming that the respondents took out their action or claim in a representative capacity without seeking and obtaining leave, the action would still be competent and valid. Since their capacity has been duly reflected in their writ of summons and statement of claim, they are presumed to have been given leave to sue in that capacity. See Alhaji Chief Yekini Otapo v. Chief R. O. Sunmonu & 9 Ors. (1987) 2 NWLR (Pt.58) 587 at 603 per Obaseki, JSC; where the Supreme Court stated as follows:

Even if an order for leave is not specifically sought, it will be presumed that leave to sue in that capacity was given if the title and the statement of claim reflects that capacity and the suit was prosecuted in that capacity to judgment and judgment was given for or against the plaintiff in that capacity.

Put bluntly, failure to obtain leave to sue in a representative capacity does not vitiate the competence of a case commenced in a representative capacity. See Mrs. Ape Salisu & 12 Ors. v. Alhaji Lateef Odumade & Anor. (2010) 6 NWLR (Pt. 1190) 228 and Akunwata Ogbogu Mbanefo v. Nwakibie Henry Molokwu & 6 Ors. (2014) 6 NWLR (Pt.1403) 377.

For all the reasons given on this issue, I resolve that, having regard to capacity expressed in the title of the respondents, the trial Court rightly assumed jurisdiction to entertain and determine the respondents action.

ISSUE NO. 1
Whether the judgment in this case is not a nullity in the face of the face that it was delivered well outside the three months statutorily period stipulated by the Constitution of the Federal Republic of Nigeria 1999.
Learned counsel for the appellant referred to pages 88 to 113 and 124 to 150 of the record of appeal and stated the

learned counsels addresses were delivered on 03/08/2006 but the judgment of the trial Court was delivered on 05/02/2007 clearly more than six months later. He argued that by Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the trial Court ought to have delivered its judgment in writing not later than 90 days after the conclusion of addresses. He submitted that the judgment of the trial Court is a nullity because it was delivered more than 90 days after the conclusion of addresses. In support of this submission, learned counsel referred the Court to the cases of Oto v. Adojo (2003) 7 NWLR (Pt.820) 636; Nworie v. A.G; Ogun State (2002) 8 NWLR (Pt. 770) 557; NIIT, Zaria v. Dange (2008) 9 NWLR (Pt. 1091) 127; Ifezue v. Mbadugha (1984) 1 SCNLR 427; Anyaoke v. Adi (1985) 1 NWLR (Pt. 2) 342; Taylor v. Methodist Church (1986) 4 NWLR (Pt. 34) 136; Gafari v. Johnson (1984) 5 NWLR (Pt.39) 66 and Rossek v. ACB (1993) 8 NWLR (Pt.312) 383.

In urging the Court to resolve this issue in favour of the appellant, learned senior counsel submitted as follows: the failure of the learned trial judge to deliver the judgment within three months is fatal and in addition, her failure to so inform the National Judicial Council breached the law as laid down in many judicial authorities covering the point.

The learned counsel for the respondents, on the other hand, opined that since the appellant has not shown that it suffered any miscarriage of justice, as a result of the barely three (3) months between the adoption of the parties written addresses and the delivery of judgment, the lapse of time would not vitiate the judgment of the trial Court. In support of this submission, learned counsel referred to the cases of Atungwu v. Ochekwu (2013) 7 SC (Pt.II) 42 and Jinadu v. Esurombi-Aro (2005) All FWLR (Pt. 251) 349.

Learned counsel relied on the case of Akoma v. Obi Osenwokwu (2014) 5-6 SC (Pt. IV) 1 at 33, per Onnoghen, JSC (as he then was) and submitted that:-
Section 294(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) has been held by the Supreme Court to be a purely administrative provision meant to enable the National Judicial Council discipline erring judicial officers and has nothing to do with the validity of judgments delivered by Courts of competent jurisdiction.

Section 294 sub-sections (1) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provide as follows:

294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.

294(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of Subsection (1) of this section, the person presiding at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.

In this case, the record of appeal shows that evidence and final addresses of the parties were concluded on the 3rd day of August, 2006 but the trial Court delivered its decision on the 5th day of February, 2007. The period of time between the 3rd day of August, 2006 and the 5th day of February, 2007 is clearly more than the ninety days prescribed by Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) for the trial Court to deliver its decision.

I wish to state immediately, that Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) should not be taken and read in isolation. It should be read with Subsection (5) of the section which provides as follows:

294(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
The appellants complaint in this case is that, without more, the decision of the trial Court was delivered outside the ninety days stipulated by the Constitution. He has not complained that the failure or inability of the trial Court to deliver its decision has occasioned any miscarriage of justice.

The law is now firmly settled that failure per se by a trial Court to deliver its decision within ninety days of conclusion of evidence and addresses of counsel would not render an otherwise competent decision or judgment invalid. See Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377; Eseigbe v. Agholor (1990) 7 NWLR (Pt. 161) 234; Veritas Insurance Co. Ltd. v. Citi Trust Investment Ltd. (1993) 3 NWLR (pt. 281) 349; Kalu v. Igwe (2002) 5 NWLR (Pt. 761) 678 and Atungwu v. Ochekwu (2013) 14 NWLR (Pt. 1375) 605.
In the case of Savannah Bank of Nig. Ltd. v. Starite Industries Overseas Corporation (2009) 8 NWLR (Pt.1144) 491 at 502, per Onnoghen, JSC (as he then was) the Supreme Court, whilst considering the provisions of Section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979 which are in pari materia with Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) stated as follows:

It is clear from the above provision a judgment given without compliance with the provisions of Section 258 (1) of the 1979 Constitution remains void except the appellate Court seised with the matter on appeal or for review is satisfied that the party complaining has suffered a miscarriage of justice by virtue of the non-compliance. In other words, the appellant, whose only issue against the decision of the lower Court, as in the instant case, is non-compliance with the provisions of Section 258 (1) supra must go further to establish the fact that the non-compliance occasioned a miscarriage of justice to him, otherwise the appellate Court should not disturb the judgment of the lower Court.

With specific reference to Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), in Cotecna International Ltd. v. Churchgate Nig. Ltd. (2010) 18 NWLR (Pt. 1225) 346 at 387, per Galadima, JSC; the Supreme Court held thus:

However, Section 294(1) of the 1999 Constitution provides that a written judgment of every Court established under the Constitution shall be delivered not later than ninety days after the conclusion of evidence and final address.

By virtue of Subsection 5 of Section 294 of the Constitution, this Court is enjoined not to set aside the judgment of the trial Court solely on the ground that it was delivered outside the ninety days period after final address, unless the party complaining has suffered a miscarriage of justice.

For a decision or judgment to be rendered invalid and set aside on the ground that it was not delivered within the time stipulated by Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the failure or noncompliance must be demonstrated or shown to have occasioned a miscarriage of justice. For example, where the delay is such that the trial Court lost memory of the witnesses who testified and their demeanour, especially where the assessment or evaluation of evidence borders on the credibility of the witnesses, in justice would have been occasioned and the decision would be liable to be set aside.

In this case, the evidence before the trial Court was substantially documentary and the trial Court, in the absence of evidence or facts to the contrary, did not lose track of the case when it delivered its decision about six months after the conclusion of evidence and addresses.

The learned counsel for the appellant also stated that the learned trial Court did not inform the National Judicial Council of its failure to deliver his decision within the time specified by Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). I think that this complaint has no legal foundation because there is nothing on the record of appeal showing whether or not the learned trial Judge informed the National Judicial Council of his failure to deliver his decision within time. The law is that a Court, including an appellate Court, has a duty not to speculate on anything. To indulge in speculation is tantamount to a descent by the Court into conjecture or supposition, which is a mere guesswork not anchored on any facts before it. No court is permitted to adjudicate cases, causes or matters on the basis of mere conjecture, guesswork or speculation. See Overseas Construction Co. Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407; Ivienagbor v. Bazuaye (1999) 9 NWLR (Pt.620) 552; ACB Plc v. Emostrade Limited (2002) 8 NWLR (Pt. 770) 501; Ejezie v. Anuwu (2008) 12 NWLR (Pt. 1101) 446 and Olabisi Olakunle v. The State (2018) 6 NWLR (Pt. 1614) 91.

Assuming that the appellants complaint that the learned trial Judge breached the provision of Section 294(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is competent, the matter has been settled by the Supreme Court that the provision of Section 294(6) of the Constitution is merely directive and not mandatory as it is intended for the discipline of affected judicial officers and not to vitiate otherwise valid decisions of our Courts. See Dennis Akoma & Anor. v. Obi Osenwokwu & 2 Ors. (2014) 11 NWLR (Pt. 1419) 462 at 496, per Onnoghen, JSC (as he then was); where the Supreme Court stated as follows:

I hold the considered view that the above submission is misconceived as the provision of Sub-section (6) of Section 294 of the 1999 Constitution is directive in nature not mandatory and it is crafted for administrative convenience for the purpose of discipline of the judicial officer(s) concerned, where appropriate. It has nothing to do with the validity of the judgment concerned which validity depends on appellant satisfying the appellate Court that the inordinate delay has resulted in a miscarriage of justice.

In any case, I agree with the submission of learned counsel for the respondents that the issue of not informing the National Judicial Council, by the learned trial Judge of his failure to deliver his decision within time, does not arise from the appellants grounds of appeal, which have been reproduced earlier in this judgment. The law is trite that an issue raised by a party must arise from or relate to the appellants grounds of appeal. See A.G; Bendel State v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646; State v. Dr. Olu Onagoruwa (1992) 2 NWLR (Pt. 221) 33; David Amadi v. A.G. Imo State (2017) 11 NWLR (Pt. 1575) 92 and Dr. Roy Ugo v. Augustina Ugo (2017) 18 NWLR (Pt. 1597) 218.

For all the reasons given above, I resolve this issue against the appellant and in favour of the respondents.

ISSUE NO. 2
Whether the Court below was right in granting reliefs that where not asked for by the plaintiffs.
Prince A.Y. Dirisu, learned counsel who settled the appellants brief, contended that the respondents did not ask the Court for a declaration of title to the land and the trial Court ought not to grant a relief not sought. On his submission that the Court has no jurisdiction to grant a relief not sought by a party, learned counsel cited and relied on the cases of Bhojsons v. Daniel-Kalio (2006) 5 NWLR (Pt. 973) 330; Hali v. Atiku (1999) 5 NWLR (Pt. 602) 186; Lufthausa Airlines v. Odiase (2006) 7 NWLR (Pt. 978) 34; Ativie v. Kabelmetal (Nig.) Ltd. (2008) 10 NWLR (Pt.1095) 399 and Ani v. Nna (1996) 4 NWLR (Pt. 440) 101.

In urging the Court to resolve this issue in favour of the appellant, learned counsel concluded as follows:
Nowhere did the plaintiffs/respondents ask the Court for a declaration of title to the land. Their reliefs are explicit with the exception of the second one which is no relief at all.

It was therefore wrong in law for the learned trial judge to import the doctrine Quid Quid Plantatur Solo Solo Cedit as she did and saying that they are owners of the land. They did not so claim. Their second relief is no relief at all.

While their third relief has been overtaken by events. They accepted the defendant has built up the land-in-dispute. Of course the defendant claimed the land as their own as per counter-claim. The 3rd relief of the plaintiff cannot stand as the law does not grant injunction to restrain an already completed act. See the cases of John Holt (Nig.) Ltd. v. Hawung (1963) 2 SCNLR 303; Chiekweilo v. Nwali (1988) 8 NWLR (Pt. 560) 114, 116, R2: Ochudo v. Oseni (1998) 13 NWLR (Pt. 580) 103, 109, R9.

Chief V. E. Otomiewo, learned counsel who settled the respondents brief, argued that the reliefs granted by the trial Court were within the reliefs claimed because:

It is trite law that where a party is claiming for damages for trespass coupled with a claim for injunction, the title of the party is already put in issue, particularly where the appellant by its counter-claim before the lower Court was also claiming for declaration of title to the land as can be gleaned from its counter-claim.

In support of the above submission, learned counsel for the respondents referred to the case of Olaniyan v. Fatoki (2013) 7 S.C. (Pt.II) 96 at 118.

The general rule is that a Court has no vires to award or grant a party a relief not sought by the party. There is a plethora of decisions of the Supreme Court and this Court on this settled principle of law. For example, see Ekpenyong v. Nyong (1975) NSCC (Vol. 9) 28; Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192; Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257; Agbanelo v. UBN (Nig.) Ltd. (2000) 7 NWLR (Pt. 666) 534; Joe Golday Co. Ltd v. Co-operative Development Bank PLC (2003) 5 NWLR (Pt. 814) 586 and Standard (Nig.) Engineering Co. Ltd. v. Nigerian Bank for Commerce & Industry (2006) 43 WRN 47 at 70 72, per Ogbuagu, JSC.

The reliefs granted by the trial Court, in this case, are on pages 158-159 of the record of appeal where the Court decided as follows:
In the sum, judgment is hereby entered in favour of the plaintiffs as follows:

(a) 350,000.00 being general damages for trespass committed by the Defendant when sometime in 1988, the Defendant wrongfully and maliciously broke and entered the land of plaintiff as shown in the litigation survey plan No. 150/BD/1779/91 filed in this action which land is lying and situate at Elema quarters bordering Irhirhi/Uguiokhuen Village area, Benin City and erected structures thereon without consent and authority of the plaintiffs.

(b) An injunction to restrain perpetually, the defendant, its servants, agents and privies or otherwise howsoever, from committing further or other acts of trespass on the land hereby adjudged to be owned by the plaintiffs.

The above reliefs granted by the trial Court fall squarely within the reliefs claimed and sought by the respondents in paragraph 30 of their further amended statement of claim.

If the appellants complaint is that it is wrong for the trial Court to have stated, as it did, that the defendant wrongly and maliciously entered the land of plaintiff (sic) and the land hereby adjudge to be owned by the plaintiffs (emphasis supplied by me); the complaint would still not be justified because whilst deciding whether or not the appellant trespassed on the land in issue, the Court found as a fact that the land belongs to the respondents.

The finding of the trial Court that the land is owned by the respondents is proper because, by the nature of the respondents claim, the title of the parties to the land was made an issue. The respondents claim was for trespass and an injunction and the respondents thereby put their title in issue.

The law is settled and it is that a plaintiff, who makes a claim for trespass and injunction in respect of land, has put his title in issue. See Abotche Kponuglo v. Kodadja (1933) 2 WACA 24; Okorie v. Udom (1960) 5 FSC 162; Ogunde v. Ojomu (1972) 4 SC 105 and Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745. In the case of Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562 at 580, per Iguh, JSC; the Supreme Court held that:
whenever a claim for trespass is coupled with a claim for an injunction, the title of the parties to the land in dispute is automatically put in issue.

Without more, I resolve this issue against the appellant and in favour of the respondents.

CONCLUSION

I find no merit in this appeal, since all the live issues have been resolved against the appellant. Accordingly, the appeal fails and it is hereby dismissed.

The judgment of the trial Court delivered in Suit No. B/454/1991 on the 15th day of February, 2007 per T. Akomolafe-Wilson, J; (as he then was, now JCA) is hereby affirmed.

The sum of 200,000.00 (two hundred thousand naira only) is hereby awarded as costs in favour of the respondents and against the appellant.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I was served with a draft copy of the lead Judgment prepared by my learned brother M.A.A. ADUMEIN, JCA in this appeal. His lordship has ably and admirably treated all the salient issues canvassed by Learned Counsel to the parties in this appeal before arriving at his conclusion. I am in entire agreement with his reasoning and the conclusion he arrived at that this appeal is unmeritorious and should be dismissed. I abide by the order as to costs made by ADUMEIN JCA in the lead Judgment.

PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA.

On issue one, Learned Senior Counsel for the Appellant argued that failure of the Learned Jurist of the lower Court to deliver Judgment within the 3 months statutory period and also failure to inform the National Judicial Council breached the law and rendered the judgment a nullity. Counsel for the Respondent on the other hand sought to counter that argument stating that the Appellant has not shown that it suffered any miscarriage of justice as a result the three months delay thereafter and that the Judgment of the lower Court would not be vitiated.

I am in total agreement with the submission that it is no Longer the law that none delivery of Judgments later than 3 months after the conclusion of evidence arid final address of Counsel automatically renders the Judgment a nullity. See FEMI SOETAN & ORS V. STELIZ LTD & ANOR. (2010) LPELR 9051.

In sum, I too resolve this issue in favour of the Respondent and in addition I am also in agreement with the reasoning and conclusions involving all other issues in this discourse.

From the totality of all of the above summation and I am of the view that this appeal lacks merit and I dismiss it accordingly.

The Judgment of the lower Court delivered in Suit No. B/454/1991 on the 15th day of February 2007 is affirmed. I abide by the order as to costs in the lead Judgment of N200,000.00 in favour of the Respondent against the Appellant.

Appeal dismissed.

Appearances:

Mrs. H. I. AgbonkonkonFor Appellant(s)

Chief V.E. Otomiewo with him, Miss E.E. Otomiewo and Miss O.E. UmukoroFor Respondent(s)