FREDERICK S. ALASIA v. PROF. J.D. OKOH & 6 ORS.
(2011)LCN/4383(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of May, 2011
CA/PH/205/2006
RATIO
EVALUATION OF EVIDENCE: WHICH COURT HAS THE DUTY TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE THERE TO, WHERE CREDIBILITY OF WITNESS IS AND NOT IN ISSUE
It is trite that where credibility is a factor in the exercise, evaluation of relevant and material evidence before the court and the ascription of probative value to such evidence is the primary function of the trial court that had the advantage of seeing, hearing and assessing the witnesses as they testified. Where however credibility is not an issue as in the instant case where the evidence which informs the lower court’s decision is substantially documentary, both the trial and Appellate courts are equally placed to evaluate the evidence on the basis of which a decision is arrived at. PER MUSA DATTIJO MUHAMMAD, J.C.A
INTERFERENCE WITH THE EVALUATION OF EVIDENCE: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL BE JUSTIFIED TO INTERVENE IN THE EVALUATION OF EVIDENCE
…where the trial court failed to properly evaluate available evidence and has arrived at a perverse decision, the appellate court will be justified to intervene by re-evaluating the evidence thereby remedying the injustice that has been occasioned. Thus, where the trial court has unquestionably evaluated the evidence and appraised the facts, it excludes the appellate court from interfering and substituting its own views on the evidence for the views of the trial court. See Adebayo v. Adysek (2004) 4 NWLR (pt. 862) 44 Ojokolobo v. Alamu (1993) 9 NWLR (Pt.565) 226, Sha v. Kwan (2000) 5 SC (pt.1) 24 and Fagbenro v. Arobadi (2006) 7 NWLR (pt.978) 174. PER MUSA DATTIJO MUHAMMAD, J.C.A
CIVIL CASES: ON WHAT BASIS ARE CIVIL CASES DECIDED AND WHETHER IT IS THE NUMBER OF WITNESSES CALLED BY A PARTY THAT DETERMINES THE WEIGHT OF THE PARTY’S EVIDENCE
Civil cases are decided on the balance of probabilities or preponderance of evidence. In determining this category of cases, the trial court puts the totality of the evidence adduced by parties, that of the plaintiff on one side of the imaginary scale and that of the defendant on the other, weighing both, deciding whose evidence weighs more. The court then prefers the heavier of the two. We must remember that it is always the quality of evidence rather than the number of witnesses called by a party that determines the weight of the party’s evidence. see otusile v. Maiduguri Metro council (2004) 4 NWLR (pt.863) 290, Agbi v. Ogbeh (2006) 11 NWLR (pt.990) 65 and Bashaya v. State (1998) 5 NWLR (pT.550) 351. PER MUSA DATTIJO MUHAMMAD, J.C.A
JURISDICTION: CONSEQUENCE OF THE LACK OF JURISDICTION OF A COURT ON THE PROCEEDINGS
Jurisdiction of a court is a radical and crucial issue because if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity abinitio no matter how well conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but extrinsic to the entire process of adjudication. Absence of jurisdiction is irreparable in law. See Umanah v. Attah (2000) 17 NWLR (Pt.1009) 503 Madukolu v. Nkemdilim (1962) l ALL NLR 587 SC, skenconsult v. Ukey (1981) 1 SC 6 and Daplanlong v. Dariye (2007) 8 NWLR (PT. 1035) 332. PER MUSA DATTIJO MUHAMMAD, J.C.A
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
FREDERICK S. ALASIA Appellant(s)
AND
PROF. J.D. OKOH & 6 ORS. Respondent(s)
MUSA DATTIJO MUHAMMAD, J.C.A (delivering the Leading Judgment): This is an appeal against the decision bf the Rivers State High Court in its judgment dated 29th October 2005 in suit no. PHC/1492/98 wherein plaintiff’s claim was dismissed. The plaintiff had claimed against the defendants the following reliefs:
“(a) A declaration that the eviction of the plaintiff from his official residence on 17th September, 1998 at No. 7 Praia Crescent Ali Cape Verde University of Port Harcourt is unlawful, malicious null and void.
(b) The sum of N60,000,000. (Sixty million naira) for general and punitive damages for trespass at plaintiffs aforesaid residence and the looting of his furniture, money and other belongings.
(d) Perpetual injunction restraining the Defendants, their agents, Servants or privies form interfering with the plaintiffs members of his family’s occupation of his aforesaid residence or from unlawfully evicting him. Perpetual injunction restraining the 1st and 5th defendants from using any security agency including the Nigeria Police, solders, S.S.S Operation Flush, internal security in harassing, intimidating, arresting or detaining the plaintiff or any member of his family.
Pleadings were filed and exchanged. In their amended statement of defence dated 10th June 1999, the defendants denied all the facts contained in plaintiffs statement of claim. Either party called three witnesses to prove its case.
plaintiff’s case is that the defendants forcefully and unlawfully evicted him and his family from his residence. This was on 17th September 1998. The residential quarters belong to the port Harcourt University. The defendants, the plaintiff averred, acted by themselves vandalizing and damaging his properties in the process. Plaintiff asserted that the defendants unilaterally threw him out of the residence without any authorization by the University.
Defendants case, on the other hand, is that plaintiffs employment with the Port Harcourt University having been properly terminated he was, by the University’s regulations on the provision of quarters, required to vacate his official residence at No.7 Praia Crescent Ali Cape Verde at the University within a month. The plaintiff, inspite of repeated demands by the University, refused to vacate the quarters. Consequently, the University authorized a token taking over of the premises by padlocking its entrance.
In a well considered judgment the lower court, after a full trial including addresses of counsel, dismissed the plaintiff’s case. He has appealed against that judgment on a notice dated and filed on 22nd October 2005 containing ten grounds.
In compliance with the rules of the court, parties have filed and exchanged briefs of arguments which include the Appellant’s reply brief. The five issues formulated at paragraph 3.0 to 3.5 of the Appellants brief read thus:
“3.1 Whether the learned trial judge was not in error when she held that the defence led its evidence through the 1st, 2nd and 4th Defendants … and Exhibit B2 confirmed the eviction by University authorized officers.
3.2 Whether the learned trial judge considered or evaluated the evidence of the parties adequately, properly or at all, before reaching her conclusion;
3.3 whether the learned trial judge was right when she held that Exhibit A (the order of court of co-ordinate jurisdiction nullifying the purported termination of the plaintiff s employment) was not a final order of nullity upon a final determination of a contested matter or main suit, and had no nexus with the present suit.
3.4 Whether general damagees need be specifically pleaded and strictly proved in a case of unlawful and forceful eviction.
3.5 Whether or not the judgment in this case is not against the weight of evidence.”
The Respondents in the appeal have formulated four issues for the determination of the appeal thus:
“1. Whether the learned trial Judge was wrong when she held that the eviction of the Appellant was by the authorized officers of the University.
2. whether the learned trial Judge was wrong when she held that Exhibit A is not a final order of nullity.
3. Whether the trial Judge gave due and adequate evaluation of the evidence before reaching her conclusion.
4. Whether the Appellant was entitled to the award of general damages?”
Looking at the two sets of issues it does appear that they are proliferate and prolix. Appellant’s real complaint pertains the lower court’s evaluation of evidence and its decision resulting from the improper exercise. Appellant’s five issues and all the arguments under the issues querry the lower court’s conclusions from the pleadings and evidence of parties. The appeal shall be determined from this overriding perspective.
In arguing the appeal, learned Appellant counsel submits that the lower court instead of evaluating the evidence placed before it only made a summary of it. The court’s failure to make appropriate analysis of the evidence and proffer reasons for the acceptance or rejection of which evidence facilitated miscarriage of justice. Summarizing the evidence of parties, it is contended, does not allow for proper collation and effective use of the imaginary scale for the discovery of whose case is weightier.
Secondly, argues Appellant counsel, the rule of pleading being that parties are bound by theirs, the evidence the defendants gave, including Exhibit B2 on the authorization by the university of the forceful eviction of the Appellant, in the light of the averment in paragraph 23 of amended statement of defence, goes to no issue. The evidence is at variance with the pleading that the university did not authorize appellants forceful eviction but rather a token taking over by placing a padlock on the entrance of the premises. The lower court s findings at pages 111 lines 3-13, 112 lines 15-17 and 112 lines 22-24 and 203 lines 16-18 that took into consideration such evidence that is at variance with pleadings of the defendants/respondents are perverse. Learned counsel supports his submissions with the decision in Awara v. Alalibo (2003) FWLR (Pt.144) 415 and S.FF Ltd. V. S.G.B (NIG.) Ltd (2003) FWLR (Pt.186) 693 at 702.
Learned Appellant counsel further contends that by virtue of Exhibit A that nullified the purported termination of Appellant’s employment, Appellant remains entitled to retain his official residence. If however that fact is discountenanced, appellant, it is argued, is at worst a licensee and being in exclusive possession of the premises has the right to sue in trespass. Reliance has been placed by counsel on Clerk and Lindsell on torts, fifteenth edition at page 1124 article 22:39 and Salau v. Araba (2004) ALL FWLR (Pt.204) 88 at 117.
It is also argued that the lower court lacks the jurisdiction to review Exhibit A an order of the same High Court. What the court should have done, but failed to is to give effect to the order that nullified the termination of Appellant’s employment. Exhibit A remains binding as same is yet to be set-aside. Learned Appellant counsel urges that this court gives effect to it. He cites and relies on Agbi v. ogbeh (2003) FWLR (Pt.169) 1245 at 1279, Uloma Investors (Nig.) Ltd v. Suleman (2003) FWLR (Pt.169) 1186 AT 1193; and N.D.I.C V. Okem Ent. Ltd. (2004) ALL FWLR (pt.210) 1176 at 1258.
Finally, Appellant argues that he needs not specifically plead and prove the general damages he claims as the damages flow directly from the fact of the wrong he complains of. Indeed, learned counsel contends, unlawful eviction being a specie of the tort of trespass to property is actionable per se. In any event, his claim for general damages should not be defeated just because it has been lumped together with items of special damages. Once trespass has been established, the award of damages, counsel submits, is mandatory. In support of these submissions he refers us to: New Nigerian Bank Plc. V. Denclag Ltd. (2004) ALL FWIR (pt. 228) 606 at 653, AG Bender v. Aideyan (2003) FWLR (Pt.187) 886 at 903 AND Yau v. Dikwwa (2001) FWLR (Pt.62) 1987 at 2009. On the whole learned Appellant counsel relies on obulor v. oboro (2001) FWLR (Pt. 47) AT 1010 and urges that the lower court’s decision that does not evolve from the legal evidence before it be reviewed and the appeal allowed. Responding, learned respondent’s counsel submits that appellant’s real complaint in the appeal is as to the lower court’s twin findings that the quarters in which the appellant was staying is owned by the Port Harcourt University that also has the reversionary rights and that appellant’s eviction was carried out by the relevant officers of the university not in their personal capacity but under the university’s authority. It is Appellant’s burden to establish that in evicting him these officers had not been authorized and that they had acted on their own. Besides, Appellant has the added burden of satisfying the court what entitles him to retain his official quarters after the termination of his employment with the University given the University’s regulations on the provision of such quarters.
From the evidence available to the court, it is argued; the University is shown to be entitled to evict the Appellant, a licensee who has refused to give up possession of his residence inspite of the termination of his employment. Having failed to prove what right he has in retaining the property after the determination of his employment, he cannot succeed against his employer in trespass. Respondents put reliance on F.C.D.A v. Nwanna (1998) 4 NWLR (Pt. 544) 73 at 78 and Chukwumah v. S.P.D.C (1999) 4 NWLR (Pt. 289) 512.
Exhibit ‘A’, a court order for the arrest of the 1st and 2nd Defendants following an oral application the appellant sought to rely on, respondent’s counsel argue, does not avail him. The lower court, on the authority of Akinbobota v. Fiske (1991) 1 NWLR (PT. 16) 270 at 279 and Rossek v. ACB Limited (1993) 8 NWLR (pt. 312) 982, contends counsel, is right to have reviewed, the order and discountenanced same.
In further response, learned counsel submits that Appellant’s entitlement to damages must flow from the wrong he establishes his adversary has caused him. In granting damages to a claimant, a court exercises its discretion. The lower court, respondent’s counsel argues, has not been shown by the Appellant, to have exercised its discretionary powers wrongly. This court, for all these, submits counsel, cannot interfere with the court’s correct exercise of its discretionary powers. Learned respondent counsel buttresses his submissions by relying on Adunga v. Odumeru (2001) 2 NWLR (PT. 696) 124, Adeogun Ekunrin (2003) 2 NWLR (pt. 856) 52 at 72-73and Dahru v. Kamale (2005) NWLR (Pt. 929) 8 at 53.
Concluding, learned respondent counsel submits that evaluation of evidence entails consideration of the totality of the evidence adduced at the trial and measuring that of each side to find out whose is heavier. It is the exclusive duty of the trial court to evaluate evidence and decide between the evidence of the feuding sides which to prefer. Appellant having failed to show that the trial court’s findings are perverse, having occasioned miscarriage of justice cannot be indulged. Learned counsel urges that the real issue be resolved against the appellant and in keeping with the decisions in Mogaji v. Odofin (1978) 3-4 SC 1 and FBN Plc. v. Mainasara (2002) 2 NWLR (Pt.909) 42 at 65, dismiss the appeal.
Appellant questions the use to which the lower court put the evidence adduced by parties. He quarrels with the probative value the court ascribed particularly to exhibits A and B a lapse learned Appellant counsel contends has led the court to arrive at a perverse decision.
It is trite that where credibility is a factor in the exercise, evaluation of relevant and material evidence before the court and the ascription of probative value to such evidence is the primary function of the trial court that had the advantage of seeing, hearing and assessing the witnesses as they testified. Where however credibility is not an issue as in the instant case where the evidence which informs the lower court’s decision is substantially documentary, both the trial and Appellate courts are equally placed to evaluate the evidence on the basis of which a decision is arrived at. Again, where the trial court failed to properly evaluate available evidence and has arrived at a perverse decision, the appellate court will be justified to intervene by re-evaluating the evidence thereby remedying the injustice that has been occasioned. Thus, where the trial court has unquestionably evaluated the evidence and appraised the facts, it excludes the appellate court from interfering and substituting its own views on the evidence for the views of the trial court. See Adebayo v. Adysek (2004) 4 NWLR (pt. 862) 44 Ojokolobo v. Alamu (1993) 9 NWLR (Pt.565) 226, Sha v. Kwan (2000) 5 SC (pt.1) 24 and Fagbenro v. Arobadi (2006) 7 NWLR (pt.978) 174.
Now, has the trial court properly evaluated the evidence the parties led or has it not done so properly to justify the intervention of this court?. Let me state yet another principle before attempting an answer to this very important question.
Civil cases are decided on the balance of probabilities or preponderance of evidence. In determining this category of cases, the trial court puts the totality of the evidence adduced by parties, that of the plaintiff on one side of the imaginary scale and that of the defendant on the other, weighing both, deciding whose evidence weighs more. The court then prefers the heavier of the two. We must remember that it is always the quality of evidence rather than the number of witnesses called by a party that determines the weight of the party’s evidence.
see otusile v. Maiduguri Metro council (2004) 4 NWLR (pt.863) 290, Agbi v. Ogbeh (2006) 11 NWLR (pt.990) 65 and Bashaya v. State (1998) 5 NWLR (pT.550) 351.
An examination of the lower court’s decision against the background of the pleadings and material evidence of parties would enable us determine whether or not it has properly evaluated the relevant evidence.
Appellant’s case is as contained in his further amended statement of claim more particularly paragraphs 1, 2, 3, 4, 5, 6, 7, 11 and 14 which are hereunder reproduced for ease of reference:
“1. The plaintiff is a staff of the University of Port Harcourt and a member of the Governing Council of the University.
2. The 1st, 2nd, 3rd and 5th Defendants ore staff of the University of Port Harcourt.
3. The 5th defendant is the vice-chancellor of University of Port Harcourt white the 1st defendant is the Deputy vice-chancellor Academic.
4. The 4th defendant is a student of the University of Port Harcourt had was used as a thug by the 1st to 5th defendants with his fellow thugs to forcefully and unlawfully eject the plaintiff and his family from their No. 7 Praia Crescent residence in Ali Cape Verde, University. They were assisted by the 2nd and 3rd defendants.
5. The 1st to 5th defendants unlawfully and forcefully ejected the plaintiff and his family in violation of the restraining orders of the Port Harcourt High Court, a copy of which order was pasted beside the main entrance of plaintiff aforesaid residence.
6. That the 4th respondent and his thugs with the connivance of the 1st 2nd 3rd, and 5th defendant stole sundry goods and money belonging to the plaintiff. The plaintiff will rely on the photographs of the damage to his premises as well as his belongings and furniture destroyed and thrown outside during the trial of these suits.
7. the plaintiff had prior to the 17th of September, 1998 when he was unlawfully ejected sent a written petition to the commissioner of Police in the company of Celestine Omehia Esq. informing the police that there was a plan to unlawfully and forcefully eject him by the 5th defendant who had caused a notice of ejection to be served on him.
11. The plaintiff has been harassed, intimidated and humiliated by the defendants particularly the 5th defendant who would continue to do so except if they are restrained by this Honourable Court.
14. The plaintiff shall rely at the trial of this suit on a letter dated October 6th 2000 (with the attached documents thereto), written by the vice Chancellor of University of Port Harcourt to the Commissioner of Police, Rivers State and copied to the plaintiff as well as further letters dated 18/10/2000 for clarifications on the issues between the plaintiff and Uniport, Respondents joined issues with the Appellant in paragraph 2,3,4,6,17,15,16,17,18, 19 and 21 of their emended statement same, for their relevance are hereunder supplied:
“2. The plaintiff is no more a member of staff of University of Port Harcourt, his appointment having been terminated on the 16th of July 1998. The letter of termination dated 15/7/98 and ref. UPH/REG/SS.1245 will be relied upon. Notice is hereby given for the plaintiff to produce the original copy.
3. The defendants admit paragraphs 2 and 3 of statement of claim.
4. The defendants deny paragraphs 4 of the statement of claim.
6. The defendants deny paragraph 6 of the statement of claim and it is averred that the defendants did not use thugs and neither stole any good as alleged therein.
14. in further response to the plaintiffs claims the defendants over that the plaintiff was entitled to official residence when he was a staff of the University of Port Harcourt.
15. The defendants aver that the university of Port Harcourt owns the premises, No. 7 Praia Crescent (west)Ali Cape Verde University of Port Harcourt.
16. The defendants aver that the said promise was allocated to the plaintiff by the university of Port Harcourt in March 1992. The Defendant shall rely on the letter of allocation dated 9/3/92 Ref.UPH/REG/HU/10.4. Notice is hereby given to the plaintiff to produce the original document.
17. The defendants aver that Mr. Ogbegbe (3rd Defendant) is the Housing officer responsible for maintenance, and superintendence of all University Staff Quarters.
18. the defendants aver that part of the duties of Mr. Ogbegbe is to take over vacant stall quarters.
19. The defendants aver that the plaintiffs appointment was terminated by the University on the 16th of July 1998. Notice is hereby given to the plaintiff to produce the original document.
21. The defendants aver that consequent upon the termination of his appointment on 16/7/98 the plaintiff was to vacate the said quarters within a month thereafter. The defendants will rely on the regulations particularly clause 11 (v) thereof.”
Paragraph 3 of appellant’s reply to respondent’s amended statement of defence is also hereunder reproduced for its relevance:
“As to paragraph 2 thereof, plaintiff repeats paragraph 1 of the claim. The purported termination of plaintiffs employment on 16th July, Via letter of same date referenced UPH/REG/55.1246 was declared null and void by an order of this Honourable High Court(Court 12) granted on 28th July, 1998 in suit No. PHC/264/97.
The said order shall be relied on at the trial.”
From the foregoing pleadings’ parties appear to have joined issues on the legality or otherwise of Appellant’s eviction from his official residence. Whereas it is appellant’s case that though the respondents are servants of the University of port Harcourt, they lacked their principal’s authority in evicting him. They acted unilaterally and on their own. It is his case also that with his employment with the University having been restored by virtue of exhibits A and B, his forceful eviction is unlawful.
Respondents assert that appellant’s employment having been determined, the university’s Regulations on the provision of and occupation of official quarters, exhibit J, entitle the University to evict and appellant’s eviction was authorized by the University.
Both sides relied substantially on documentary evidence to prove their respective cases. Exhibit A, a court order in suit No.PHC/264/9, allegedly nullifying the termination of appellant’s employment with the University is one of the exhibits tendered by the appellant through the three witnesses including himself who testified in proof of his case. Exhibit B is the other important document the appellant further relies on in proof of this fact.
Through the three witnesses called by the respondents’ exhibits D, E and J were admitted in evidence. Exhibit D is the letter of allocation of residential quarters to the appellant issued pursuant to exhibit J the University’s regulations governing maters in respect of official residential quarters. Paragraphs 11 (v) and (vii) of exhibit J Provide:
“(v) Staff will be required to vacate their quarters three months after retirement, three months after payment of retirement benefits, one month after dismissal or termination of appointment.
(vii) In every case where a staff member refuses to vacate his quarters as stipulated in these guidelines he shall forcefully be ejected by the appropriate University Authorities”. (underlining supplied for emphasis)
Exhibit E is the letter terminating Appellants employment with the university effective 16th July 1998 and is the same as exhibit F. The oral evidence of both sides also revolves largely around these documents and the lower court, in my firm and considered view, rightly found there is hardly any dispute. Indeed outside the facts established by the documentary evidence, proof of those other facts has been dispensed with since the averments of one in respect of the facts have been admitted by the other. See sutianu v. Animashaun (2000) 14 NWLR (pt. 688) 650 and Adeye v. Adesanya (2001) 6 NWLR (Pt. 708) 1.
The court at page 201 of the record in deciding whether the declaration relief the appellant seeks as to his eviction from his official residence on 17 September 1998 being unlawful, malicious, null and void rightly insists that he discharges the onus the law places on him by establishing to its satisfaction that he is in exclusive lawful possession of the property and that he has the right to its undisturbed enjoyment against the defendants. The court then goes after the evidence placed before it firstly thus:
“The evidence before this court that is not disputed is that the premises in question belong to the University of Port Harcourt and by virtue of the plaintiff being o staff was allocated to him via exhibit D by the University through its Housing officer in 1992. By exhibit J, the guidelines for vacation of the University quarters is 3 months after retirement and after payment of retirement benefits or one month after dismissal or termination of appointment. See page 9 of exhibit J paragraph v and same page I paragraphs (vii) in every case where a staff fails or refuse to vacate his quarters as stipulated in these guidelines he shall be force fully ejected by appropriate Authorities…..
It is not in dispute that by exhibit E the plaintiff s appointment was terminated on 16th July 1998.”
The court continues its examination of the evidence for and against the appellant’s first relief when it specifically dwelt on exhibits A and B. The appellant relies on the two to establish the fact of the termination of his employment with the university as conveyed in exhibit E being nullified by a competent law court and/or revisited by the University itself. The court found both documents unavailing to the appellant.
On exhibit A the court held at page s 201-202 thus:
“Exhibit A is a court order made on oral application for an order to issue warrant of arrest on the 1st and 2nd defendant thereon. It reads and I quote Paragraphs 3 and 4:
‘3. It is also declared that even though it is clear that the alleged termination of employment of Plaintiffs/applicant is null and void.
4. It is further declared that until the defendant/respondent obey the earlier order of showing cause, I do not see how I can hear a motion on their behalf before me.’
From the foregoing and the golden rule on interpretation it cannot be construed to mean that the termination described as alleged is a final order of nullity made at the final hearing of a matter contested by both parties or upon determination of a main suit. It also has no nexus with present suit PHC/1492/98 the Parties are not the same as in Exhibit A… exhibit A is related to contempt proceedings” (underlining supplied for emphasis)
On exhibit B the lower court held at page 202 of the record thus:
“Exhibit B on its part is dated 6th October 2000 after the commencement of suit PHC/1492/98…. Exhibit B is from another vice chancellor after the cause of action in this suit arose and it has the effect to void the action of his predecessor in office who is sued as 5th defendant in this suit.”
on the relationship between the defendants and the University of Port Harcourt the lower court’s finding at page 203 of the record is:
“It is in evidence that all the defendants on record are staff of the University of Port Harcourt an agent (sic) of the federal Government and a creation by statute. The evidence led both by them and the plaintiff referred to them in their official capacity. Exhibit F, B, J are all captioned in the official letterhead of the University of Port Harcourt….. Every action was taken acting under the authority of the University through its officer’s viz-a-viz vice the chancellor, Deputy vice chancellor. Security Officer, Housing Officer, Admin Officer etc. Nothing appeared to have been done ….in a personal capacity save for the writ of summons and processes filed which referred to the defendants in their personal capacity….. There is no piece of evidence before the court that the premises subject matter of this suit is claimed or is sought to be possessed by any of the defendants in their personal capacity.”
From all the foregoing findings the lower court inferred as follows:
“As it were the premises in question belongs to the University of Port Harcourt, the allocation to the plaintiff is governed by the regulations of the University exhibit J. Exhibit E terminated the Plaintiff’s employment, exhibit F buttressed same, exhibit B2 confirmed the eviction by university authorized officers forcefully as plaintiff refused to vacate his quarters as stipulated on the guidelines clause 11(v) at page 9 which states the reversionary rights of the University of Port Harcourt. The plaintiff in his evidence under cross examination accepted and confirmed that 1st, 2nd, 3rd and 5th defendants were not at the scene”
It is in the light of all the foregoing findings and inferences that the lower court concluded at page 204 of the record as follows:
“In the totality therefore, this arm of claim fails wholly and I dismiss it.
On the 2nd arm of claim of N60, million, this is not substantiated by credible evidence as damages must be specifically pleaded and not given to speculation. Also plaintiff didn’t lead evidence particularly what was damaged by whom and the moment. This arm fails and I dismiss it. This action having been taken out in the personal capacity of the defendants and not established, the other two arms of claim, 3 and 4 lack merit and I also dismiss it. … ….. The plaintiff has failed to prove his case on balance of probability. I have no option but to dismiss this suit with N10,000 costs awarded to the 1st, 2nd, 3rd 4th and 5th defendants'”(underlining supplied for emphasis)
The instant appeal querries the lower court’s foregoing decision arrived at on the basis of the findings also captured above. The lower court, it is contended, did not make these findings and eventual decision from the findings after properly evaluating the evidence led by the parties on the basis of their pleadings.
Ex-facie these findings and decision, appellant’s complaint clearly remains without any justification. I shall come back to this in due course. For now, our attention must be drawn to the very profound aspect of the lower court’s judgment purportedly appealed against. It is worth the while to reproduce it at this stage from page 204 of the record of appeal. It reads:
“The University of Port Harcourt being an agent of the federal Government, this action should have been taken out at the federal High court that has exclusive jurisdiction.” (underlining for emphasis)
It is significant to note that the lower court’s jurisdiction was made an issue by both counsels in their final addresses.
The foregoing aspect of the judgment persists until set-aside. On the authority of Agusiobo v. Okagbue (2001) 15 NWLR (PT.737) 502 and AG Federation v. AIC Ltd. (2000) 10 NWLR (PT 675) 295, since no appeal has been lodged against this portion of the lower court’s judgment’ the principle is that rightly or it decision endures. The lower court has exercised jurisdiction it does not have. The court says so in its very judgment.
Jurisdiction of a court is a radical and crucial issue because if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity abinitio no matter how well conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but extrinsic to the entire process of adjudication. Absence of jurisdiction is irreparable in law. See Umanah v. Attah (2000) 17 NWLR (Pt.1009) 503 Madukolu v. Nkemdilim (1962) l ALL NLR 587 SC, skenconsult v. Ukey (1981) 1 SC 6 and Daplanlong v. Dariye (2007) 8 NWLR (PT. 1035) 332.
In the case at hand the decision of the lower court which proceeded without the necessary jurisdiction is ab initio a nullity. S.241 of the 1999 constitution which creates appellant’s right of appeal does so in relation to the lower court’s valid decision. The right of appeal as so donated does not abound against nullities. The instant appeal being against a decision that is a nullity is incompetent. I so hold. I shall all the same consider the appeal on its merit in case of a further appeal and I am adjudged wrong in the finding as to its competence. see Ifeanyi chukwu Ltd v. solel Boneh Ltd. (2000) FWLR (Pt.27) 2046 at 2074 and Adah v. NYSC (2004) 13 NWIR (Pt. 891) 639 at 650.
We must recall what facts ceased to be in issue between the parties herein given the state of their pleadings. These include the fact that 1st, 2nd, 3rd and 5th respondents are staff and servants of the University of Port Harcourt. It remains in issue though whether the termination of the appellant’s employment as conveyed by exhibit E has been nullified by exhibit A, a court order, and/or withdrawn by virtue of exhibit B, a letter from the office of the University’s vice chancellor subsequent to the eviction of the appellant. As the lower court correctly found too, the fact that the house the appellant was evicted from is owned and allocated to him vide exhibit D by the University ceases to be in dispute as well. Exhibit J is the regulations governing the provision of quarters which in clause 11 (v) and (vii) states the University’s reversionary rights and empowers the University to forcefully recover possession through appropriate University authorities.
I agree with learned respondent counsel that on the authority of Chuwunah v. Shell petroleum development co. Ltd. (1993) 55 SCNJ 1 FCDA v. Nwana (supra) the appellant who was permitted to occupy the University’s official residential quarters sequel to his employment is a licensee and the University is entitled to recover possession on the determination of the employment. Most significant, however, is the fact that the appellant and the University are parties to exhibit J and a court of law is duty bound to enforce the lawful agreement parties voluntarily entered into see: Oyeneyin v. Akinkugbe (2001) 1 NWLR (PT. 693) 40 and Pand Bisbilder (Nig) Ltd v. FBN Ltd (2000) 1 NWLR (PT.642) 684.
The university’s right to evict the appellant accrues, pursuant to exhibit J, on the determination of appellant’s employment. The fact of his dismissal from the University’s employment is as contained in exhibit D. The lower court’s findings on exhibits A and B are unassailable, Appellant seeks to rely on exhibit A a court’s order that does not, as asserted, nullify the termination of his employment with the University’ And exhibit B that comes into being after the eviction of the appellant cannot logically avail him. As at the time appellant was evicted, the right has endured to the University to effect the eviction by virtue of paragraph 11(v) and (vii) of exhibit J through its authorized officers. Appellant has not established those that carried out his eviction. At the end of the trial one question that persisted and remains unanswered even now is whether indeed the respondents herein are the persons who carried out appellant’s eviction.
Appellant’s testimony under cross examination shows clearly that respondents were not at the premises at the time of the event. Had such evidence been supplied by the appellant, whose burden it is to, the suit he instituted against the “servants” of a disclosed principal certainly would be unmaintainable. See Orji v. Anyaso (2000) 2 NWLR (PT. 643) 1 and Okafor v. Ezenwa (2002) FWLR (pt. 121) 1837.
The decision of the lower court that clearly draws from such a thorough consideration of the evidence led by parties against the background of their pleadings cannot be interfered with. It must persist. Appellant has not linked whatever damages he suffered in the course of his being ejected with the respondents. Had he done so, being the servants of the University, a disclosed principal, that has the right pursuant to exhibit J, to forcefully eject the appellant, would again remain without enforceable remedy even against the University.
I resolve the 2nd, 3rd and 4th issues, those formulated in the respondents brief, which are preferred in my determination of the appeal, against the appellant. I resolve the 1st issue in appellant’s favour. The lower court that held that appellant had failed to establish the presence of the respondents at his residence when he was being evicted is certainly in error to hold that the same respondents as authorized officers of the University effected appellant’s eviction.
But this victory takes the appellant nowhere. It is phyrric since it does not positively impact on his fortune in the appeal. The appeal completely lacks merit.
It is accordingly dismissed. I award N50,000 costs against the appellant in favour of the respondents.
EJEMBI EKO, J.C.A.: The appellant herein was permitted to occupy the residential premises at No. 7 Praia Crescent cape Verde by University of Port Harcourt. The property is owned by University of Port Harcourt.
Upon determination of his employment the appellant held over the premises. As a dismissed officer appellant held the premises as a licensee of the University.
There is no doubt whatsoever that the University of Port Harcourt is entitled to recover the premises from the appellant as a licensee. Even if the appellant’s dismissal had been nullified, the University was still entitled to recover its premises from him as a licensee. He was entitled to be evicted there from as a licensee, as he failed or refused to peaceably surrender the premises.
My learned brother, M. D. Muhammad (OFR), JCA has adroitly dealt with the issues in appeal and resolved them in the lead judgment. I have nothing further to add. I hereby adopt the said judgment and abide by the orders made therein including order dismissing the appeal and the costs awarded.
T. O. AWOTOYE J.C.A. I have had the preview of the lead judgment just delivered by my learned brother M. D. MUHAMMAD (OFR) JCA. I am in complete agreement with the reasonings and conclusion therein.
The learned trial judge in his own judgment stated that the matter should have been heard by the Federal High Court which had exclusive jurisdiction on it. In other words he knew that the judgment delivered by him on 29/9/2005 was a nullity having been given without jurisdiction. See page 204 of record of appeal. The learned trial judge and indeed any of the High Courts including the Federal High Court have the inherent jurisdiction to set aside such a judgment since it is, in any case, a nullity. See TOMTEC NIG. LTD V. FHA 40 NSQR (2009) 566 at 594. The appellant ought to have approached any of the courts below for this instead of pursuing this appeal. A reinstitution of the case before the Federal High Court with a prayer for setting aside the judgment of Rivers State High Court in PHC/1492/98. Frederick Alasia V. Professor Okoh and other would have in my respectful view been in order.
After going through the record of proceedings the briefs filed by learned counsel and the draft of the lead judgment just delivered, I also hold that this appeal lacks merit and dismiss it accordingly.
I abide by the costs as assessed in the lead judgment.
Appearances
Chude OkodikeFor Appellant
AND
B.M. Wifa SAN With L.C. Wifa And T.M. KobanoFor Respondent
