EHIGIATOR v. OBAZEE (2021)

EHIGIATOR v. OBAZEE

(2021)LCN/15150(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/B/97/2014

Before Our Lordships:

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

MADAM JULIET EHIGIATOR APPELANT(S)

And

1. JAMES NOSAKHARE OBAZEE (SUBSTITUTED FOR LATE CHIEF D. OBAZEE ARIEHOR) RESPONDENT(S)

RATIO

IMPORTANCE OF FORMALLY MOVING A PRELIMINARY OBJECTION

The position of this Court and indeed the Supreme Court as stated in several decisions is that a formal moving of an objection to the appeal is mandatory even where the argument on it is incorporated in the brief of argument and replied to by the Appellant. In fact, in this case, the Respondent did not even incorporate the argument on the objection in the Respondent’s brief. Consequently, the notice of objection filed on the 6th May 2020 is deemed abandoned and it is hereby discountenanced vide the cases of NSEFIK (SINCE DEAD) & ORS. VS. MUNA & ORS. (2013) LPELR-21862 (SC), REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA VS. NAMA (2014) LPELR-2237 (SC), ABUNUHU NIG. LTD & ANOR. VS. FAREAST MERCHANTILE CO. LTD (2009) LPELR-3580 and EZEALA & ORS. VS. UGAH & ORS. (2019) LPELR- 46904. PER BALKISU BELLO ALIYU, J.C.A.

WHETHER GROUND(S) OF APPEAL MUST RELATE TO AND CONSTITUTE A CHALLENGE TO THE RATIO OF THE DECISION APPEALED AGAINST.

It is a settled general principle of law that ground(s) of appeal must relate to and constitute a challenge to the ratio of the decision appealed against. The only exception is where the ground of appeal challenges the jurisdiction of the Court and that is not the case here. Any ground of appeal that does not arise or flow from the judgment appealed against is incompetent and liable to be struck out. See KRK HOLDINGS (NIG.) LTD VS. FBN & ANOR. (2016) LPELR- 41463 (SC), YUSUF & ANOR. VS. STATE (2019) LPELR- 46945 (SC). AGUGUO VS. PDP & ORS. (2013) LPELR- 22052 (CA) DYERIS VS. MOBIL OIL NIG. PLC (2009) LPELR-8914 (CA). PER BALKISU BELLO ALIYU, J.C.A.

DEFINITION OF AN INTERLOCUTORY APPLICATION

In the case of EKEMEZIE VS. IFEANACHO & ORS (2019) LPELR-46518 (SC), the Apex Court adopted with approval the definition of what an “interlocutory” decision illustrated by Cotton, L.J. in the English case of GILBERT VS. ENDEAN (1878) 9 CH. 259, thus: Those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping things in status quo till the rights can be declared, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted as to what is to be done in the progress of the cause, for the purpose of enabling the Court ultimately to decide upon the right of the parties. PER BALKISU BELLO ALIYU, J.C.A.

WHETHER LEAVE MUST BE OBTAINED BEFORE AN APPEAL CAN BE FILED TO QUESTION AN INTERLOCUTORY DECISION ON THE EXERCISE OF DISCRETION

It is the law that an appeal seeking to question an interlocutory decision on the exercise of discretion must be by leave of Court. See DESTRA INVESTMENT LTD. VS. FRN & ANOR. (2018) LPELR-43883 (SC), per AKAAHS, J.S.C. at page 8, paragraph D-F holding thus: “The lower Court was right when it found that the decision of the trial Court is a discretionary one and an appeal querying an interlocutory decision on exercise of discretion must be by leave which was not sought before it was filed notwithstanding the fact that it took the point suo motu without inviting counsel to address it on the point. No miscarriage of justice has been occasioned by this action of resolving the issue suo motu. The appeal is incompetent and liable to be struck out.” PER BALKISU BELLO ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is said to be against the judgment of the Edo State High Court holden in Benin City (trial Court) that was delivered on the 17th June 2013 in respect of the suit No. B/307/2001 filed by the Respondent being the Plaintiff against the Appellant herein as the Defendant. The suit was commenced before the trial Court vide an amended writ of summons filed on the 5th June 2006 (page 10 to 11 of the record of appeal) and a 2nd amended statement of claim filed on the 18th January 2012. The Respondent claimed against the Appellant the following reliefs:
1. A declaration that as against the Defendant and any other person claiming through or under her, the Plaintiff herein is the person best entitled to apply for and to obtain a statutory right of occupancy under the Land Use Act in respect of that parcel of land measuring 90 feet by 120 feet lying situate and known as No 1, Osaigbovomwan Street (New Road), off Ewah Road, Benin City within the jurisdiction of this Honourable Court.
2. The sum of N2, 000, 000 (Two million naira) being damages for trespass to the said Land in that without

the knowledge, consent and/or permission of the plaintiff, the defendant on or about 16th January 1997 addressed a letter to the Chairman Oredo Local Government applying for a licence to operate an abattoir on the said land and which approval for same was given on the 26th February 1997 in flagrant abuse of the Plaintiff’s right to possession of the said land.
3. Perpetual injunction restraining the Defendant by herself, servants, agents and privies from further acts of trespass on the said parcel of land.

The case of the Respondent before the trial Court was that his late father Chief Dickson Obazee-Ariehor was the owner of a parcel of land known as No. 1, Osaigbovomwan Street (New Road) Off Ewa Road, Benin City. As a land mark, there was a big rubber tree on the land which was used as a shade that the late Chief Obazee-Ariehor planted many crops and exercised rights of ownership and possession on the land over the years. He came to own the land in 1953 through an application and the approval of same given by the Oba of Benin who was the competent authority over communal lands and interests prior to the coming in to force of the Land Use Act in

After the grant of the land to him, the late chief cleared the land and was in possession of it until sometimes in December 1996 when some unknown persons trespassed into the land, felled the rubber tree and destroyed the crops he planted thereon. He later found that one Nosa Osadolor (alias Afro) was the trespasser and he filed suit No: B/50/97 at the High Court of Benin from which he also obtained an order of injunction and form 128 against Nosa Osadolor.However, upon further investigation, it was discovered that it was the Appellant that actually trespassed on the land and consequently, he discontinued the suit No: B/50/97 against Nosa. Subsequently, he discovered that the Appellant who was Nosa’s sister from the same mother had written a letter dated 16th January 1997 to the Chairman of Oredo Local Government Council applying for a license to operate a private abattoir on the land in dispute. Following the Appellant’s application, the officials of the local government council carried out inspection of the land and recommended approval of the application for a private abattoir on the land. The local Government council granted the approval to the

Appellant to operate a private abattoir on the disputed land vide its letter reference No: AB.49/VOL. 11/246 dated 26th February 1997. The late chief Obazee-Ariehor challenged the Appellant but she persisted in the trespass upon which he filed this suit seeking the orders reproduced supra. Upon the death of Chief Obazee-Ariehor, he was substituted by the present Respondent in the suit.

In response to the suit, the Appellant filed a statement of defence, copied on pages 7 to 9 of the record of appeal denying the claims of the Respondent. She asserted that the disputed land belonged to her mother Madam Comfort, who built a mud house on the land a long time ago and that her mother transferred the land to her over which she has been having undisturbed possession of. That indeed her mother before her also had undisturbed ownership of the land for several years and was never challenged by the Respondent’s late father. She denied trespassing into the disputed land and asserted that the Respondent’s claim was baseless and vexatious.

The matter went to trial and the Respondent testified and called two other witnesses and tendered documents including the Oba

of Benin Letter of grant dated 12th September 1953 as the root of his title to the disputed land. On her part, the Appellant who was at various times during the trial, represented by different counsel did not call evidence to support her pleadings. The Respondent closed his case on the 4th July 2012 and the Court adjourned the case to 27th September 2012 for defence or for address. See page 41 of the main record of appeal.

On that 27th September 2012, the Appellant was absent and no counsel represented her so there was no defence and the Respondent’s counsel proceeded to make his final address. It was while the Counsel was making oral address that one Mrs. F. E. Onegbede announced appearance for the Defendant and informed the trial Court that she has just been briefed to represent the Appellant. She applied for adjournment “to enable us file our statement of Defence.” The Respondent’s counsel whose final address was interrupted opposed the application for adjournment on the following grounds:
1. The counsel has not formally entered appearance (notice of change of counsel not filed).
2. It was not correct that the counsel has just been

briefed on that date because on the 4/6/2012 her principal Mr. Isenalumbe was in Court and he told the Respondent’s counsel that he has been briefed to represent the Appellant in April or May of that year but he was yet to file notice of change of counsel but he would do that before the next adjourned date. He has not done so.
3. There is already a statement of defence filed by the counsel of the Appellant on the 26/3/2002 by Afolabi Esq. on behalf of the Appellant before he filed a notice of withdrawal from the case on the 3/6/2008 and since then the Appellant did not brief another counsel to that date.
4. The Appellant was present on the last adjourned date (4/6/2012) and on all previous adjourned dates hearing notices were served on her.

The Respondent opposed that application and urged the trial Court to refuse the application for adjournment and allow him conclude his final address. Mrs. Onegbede did not contest the grounds of objection raised by the Respondent’s counsel, but only urged the trial Court to grant the adjournment in the interest of justice. The learned trial Judge delivered a bench ruling refusing the Appellant’s oral

application for adjournment. He allowed the Respondent’s counsel conclude his address and adjourned the case for judgment. See page 44 of the main record of appeal.

But before the judgment was delivered, the Appellant filed a motion on notice on the 22/4/2013 praying the trial Court for the following orders:
1. An order granting leave to the Defendant/Applicant to re-open her case, having been closed by the order of this Honourable Court as a result of the default of appearance by the Defendant at the trial.
2. An order of this Honourable directing the Defendant/Applicant to re-open her case, having earlier been closed, in order for her to adduce evidence in support of her pleadings.

On the 17th June 2013, the learned trial Judge delivered the Court’s ruling refusing and dismissing the Appellant’s application. The ruling can be found in pages 52 to 53 of the main record of appeal. It was after delivering the ruling on the application of Appellant of 22/4/2013 that the trial Court delivered the judgment and held that:
Consequently, I hereby enter judgment for the Claimant against the Defendant and I declare that the Claimant as

against the Defendant is the person best entitled to apply for and to obtain a statutory Right of occupancy under the Land Use Act in respect of that parcel of land measuring 90 feet by 120 feet lying and situate and known as No. 1, Osaigbovomwan Street, New Road Ewah Road, Benin City.

The trial Court also granted perpetual injunction against the Appellant and awarded N2million in damages for trespass against her.

In her notice of appeal filed on the 26th June 2013 (page 65 to 67 of record of appeal), the Appellant stated that:
TAKE NOTICE that the defendant being dissatisfied with the whole decision of his Lordship contained in the judgment dated 17th June 2013 in suit No. B/307/2001 does hereby appeal to the Court of Appeal sitting in Benin Division upon grounds set out in paragraph 3 and will at the hearing of the appeal seek the relief(s) set out in paragraph 4. (Underlining supplied)

The grounds set out and relied upon by the Appellant are that:
1. The learned trial Judge erred in law when he dismissed the Defendant/Appellant’s motion on notice dated 22nd April 2013 to re-open her case to adduce evidence in support of her

statement of defence.
2. The learned trial Judge erred in law when he disallowed or shut out the defendant from adducing evidence on her statement of defence thereby depriving the Appellant of her constitutional right to fair hearing.

Upon the above grounds of appeal, the Appellant prayed this Court for the grant of the following reliefs:
a) An order setting aside the judgment of the learned trial Judge delivered on the 17th June 2013 at the High Court of Justice, No. 10 Benin City.
b) An order of the Court of Appeal re-opening the appellant’s case at the trial Court (High Court of Justice sitting in Benin).
c) An order remitting the case to the High Court of Benin for trial before another learned trial Judge of the Edo State High Court Judiciary sitting in Benin.

There is no prayer against the ruling of the trial Court in respect of the Appellant’s application of 22nd April 2013 mentioned in the grounds of appeal.

In the Appellant’s brief of argument settled by Nicholas Edomwande Esq. and filed on the 16th October 2017, the learned counsel distilled the following two issues for the determination of the appeal from the

two grounds of appeal supra:
1. Whether in the circumstances of this case, the learned trial Judge was not in error when he dismissed the defendant/appellant motion on notice dated 22nd April 2013 to re-open her case to adduce evidence in support of her statement of defence. (Ground 1 of appeal).
2. Whether the procedure whereby a substantial part of the case up to judgment on the merits in the case was conducted in the absence of the defendant/appellant or counsel on her behalf infringed the rules of fair hearing. (Ground 2 of appeal).

There is no issue raised against the judgment of the trial Court which the Appellant said she was appealing against supra. In opposing the appeal, the Respondent filed his brief of argument on the 30th January 2018 deemed properly filed and served on the 26th February 2019. The said brief was settled by Sir Steve Odigie Esq. of S. O. Odigie & Co. Law Firm and he adopted the two issues proposed by the Appellant already reproduced supra for the determination of the appeal. The Appellant’s reply brief to the Respondent’s brief was filed on the 19th November 2020.

The appeal was called for hearing on the

17th February 2021 and the counsel on both sides adopted their respective briefs of argument in support and in opposition to the appeal. While the Appellant’s learned counsel relying on the Appellant’s brief and Reply brief urged the Court to allow the appeal and set aside the judgment of the trial Court, the Respondent prayed that the Appeal be dismissed and the trial Court’s judgment affirmed.

It is observed that though the Respondent filed a notice of Preliminary objection on the 6th May 2020, to which he attached a written address in support, he did not indicate any interest in pursuing the objection or seek and obtain the Court’s leave to argue the said preliminary objection during the oral hearing of the appeal. The position of this Court and indeed the Supreme Court as stated in several decisions is that a formal moving of an objection to the appeal is mandatory even where the argument on it is incorporated in the brief of argument and replied to by the Appellant. In fact, in this case, the Respondent did not even incorporate the argument on the objection in the Respondent’s brief. Consequently, the notice of objection filed on the 6th May 2020 is

deemed abandoned and it is hereby discountenanced vide the cases of NSEFIK (SINCE DEAD) & ORS. VS. MUNA & ORS. (2013) LPELR-21862 (SC), REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA VS. NAMA (2014) LPELR-2237 (SC), ABUNUHU NIG. LTD & ANOR. VS. FAREAST MERCHANTILE CO. LTD (2009) LPELR-3580 and EZEALA & ORS. VS. UGAH & ORS. (2019) LPELR- 46904.

On the appeal itself, it is clear as noted supra that from the grounds contained in the notice of appeal and the issues couched therefrom there is no complaint or challenge whatsoever against the judgment of the trial Court delivered on the 17th June 2013.

and DYERIS VS. MOBIL OIL NIG. PLC (2009) LPELR-8914 (CA).

Moreover, the ruling of 17th June 2013 in respect of the application to re-open the case is an interlocutory ruling, seeking the exercise of discretion of the trial Court. In the case of EKEMEZIE VS. IFEANACHO & ORS (2019) LPELR-46518 (SC), the Apex Court adopted with approval the definition of what an “interlocutory” decision illustrated by Cotton, L.J. in the English case of GILBERT VS. ENDEAN (1878) 9 CH. 259, thus:
Those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping things in status quo till the rights can be declared, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted as to what is to be done in the progress of the cause, for the purpose of enabling the Court ultimately to decide upon the right of the parties.

I have no doubt in my mind that the ruling of the trial Court of 17th June 2013 in respect of the application of the Appellant filed on the 22nd April 2013 was an interlocutory decision which

did not decide the final rights of the parties in the suit. The trial Court merely refused to exercise its discretion to re-open the case for the Appellant to call witnesses.

It is the law that an appeal seeking to question an interlocutory decision on the exercise of discretion must be by leave of Court. See DESTRA INVESTMENT LTD. VS. FRN & ANOR. (2018) LPELR-43883 (SC), per AKAAHS, J.S.C. at page 8, paragraph D-F holding thus:
“The lower Court was right when it found that the decision of the trial Court is a discretionary one and an appeal querying an interlocutory decision on exercise of discretion must be by leave which was not sought before it was filed notwithstanding the fact that it took the point suo motu without inviting counsel to address it on the point. No miscarriage of justice has been occasioned by this action of resolving the issue suo motu. The appeal is incompetent and liable to be struck out.”
In addition to the fact that the Notice of Appeal told lies against itself in appealing against the “entire decision in the judgment dated 17th June 2013” when grounds contained therein did not arise from any of the ratio of the

decision in that judgment, the Appellant complained against interlocutory decision of “dismissal of motion of 22/4/2013.” There is no record showing that the Appellant sought the leave of the lower Court or this Court before filing this appeal in clear contravention of Section 242 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. The law is trite that failure to obtain leave where it is required and necessary such as in appeals against interlocutory decisions of the trial Court, renders the notice of appeal and the appeal invalid and incompetent. An incompetent originating process, robs the Court of jurisdiction to entertain an appeal.

My Lords, I am not unmindful of the fact that I am raising the competence of the notice of this appeal at the stage of writing this judgment, but I rely on the cases of DESTRA INVESTMENT LTD. VS. FRN & ANOR. (supra) and JAPHET VS. STATE (2016) 6 NWLR (PT. 1509) 602 at 615, parag. H where Fabiyi, J.S.C. discountenance the argument of the counsel for the Appellant that failure of this Court to recall counsel to address it on the issue of incompetence of grounds of appeal infringes the Appellant’s

right to fair hearing. His Lordship held that:
The learned counsel for the Appellant attempted to cling to the right of fair hearing, same was to no avail. The appeal must be on ground before issue relating to fair hearing can be thrown into the air as a ‘joker’.

An incompetent ground of appeal of appeal robs this Court of the jurisdiction to determine the appeal since the appeal is not before us by due process.

Upon all I stated supra, I find this appeal is incompetent and it is hereby struck out by me. I award cost of N100,000.00 (One hundred thousand naira) against the Appellant in favor of the Respondent.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, Aliyu, JCA, which has just been delivered. I agree that the appeal is incompetent. The appeal is expressed in the notice of appeal to be against the judgment of the trial Court but the grounds of appeal are against the ruling of the trial Court dismissing appellant’s application for leave to re-open her case. There is a fatal disconnect between the decision appealed against and the grounds of appeal. See the case of Ikweki V Ebele

(2005) 127 LRCN 1231, 1255 or (2005) 11 NWLR (Pt.936) 397.
I therefore join my learned brother in striking out the appeal.

ABIMBOLA OSARUGUE OBASEKI–ADEJUMO, J.C.A.: I have had the benefit of reading in draft the leading judgment: the reasoning and conclusions therein just delivered by my learned brother BALKISU BELLO ALIYU, JCA and I agree with him.
I fully adopt the eloquent elaborate reasons so well set out in the lead judgment as mine and I have nothing more to add.
I abide by all consequential order(s) in the lead judgment.

Appearances:

ENOMA OSAIKHUIWU, ESQ. WITH HIM, G. O. OVIAWE (MRS.) AND F. O. OGBEIDE, ESQ. For Appellant(s)

E. OBAKPOLOR, ESQ. WITH HIM, B. O. SAIKI ESQ. AND E. O. AKEREDOLU, ESQ. For Respondent(s)