FINIMA VENTURES LIMITED & ANOR v. CHIEF YOUNG S. TOBIN & ORS
(2011)LCN/4402(CA)
RATIO
LEASE: MEANING OF THE TERM “LEASE”; WHERE THERE IS A DISPUTE OVER WHO SHOULD COLLECT RENT PAYABLE OVER A PIECE OF LAND UNDER A LEASE, WHETHER A PERSON OTHER THAN THE PURPORTED LANDLORD TO THE LEASE AGREEMENT CAN LAY CLAIM TO THE RENT
Lease, as I understand it, is a contract whereby the land owner allows another, the lessee or tenant, to use his land for a period of time specified in return for rent. As it was held in ARCHIBONG v. ITA (2004) 2 NWLR [pt.858] 590 by the supreme court, the landlord owns the land, while the tenant is entitled to use and occupy the land subject to payment of rent and good behaviour. Where therefore there is a dispute over who should collect rent payable over a piece of land the parties to such dispute assert some interest in the title to the land that entitles each of them to claim or partake in the disputed rent. A person other than the purported “landlord” can not lawfully lay any claim to rent. PER EJEMBI EKO, J.C.A
GROUND OF APPEAL: EFFECT OF A GROUND OF APPEAL COMPLAINING THAT A DECISION IS WRONG BOTH IN LAW AND ON FACTS AT THE SAME TIME
It is trite that a ground complaining that a decision is wrong both in law and on facts at the same time is defective. PER EJEMBI EKO, J.C.A
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2011
EJEMBI EKO, J.C.A (Delivering the Leading Judgment): The Ruling of the Rivers State High Court (Coram: Obie Daniel-Kafio, J) that prompted these two appeals, filed on 23rd March, 1999, was delivered on 9th March, 1999. It was a ruling on an interlocutory application filed on 3rd July, 1997, about 14 years ago. It sought only one prayer, to wit:
An order directing the 1st Defendant to pay into a domiciliary (ESCROW) Account, in the name of the Assistant Chief Registrar Litigation, High Court of Rivers State, with any reputable commercial Bank in Port Harcourt, the sum of $360,000 (Three hundred and sixty United State Dollars) due for payment as agreed with the Finima Community and such other sum as may become due as rent for the land, subject matter in this suit pending the determination of this suit.
I have no way of knowing whether the said suit, No PHC/860/96 filed on 24th July, 1996, is still pending, or that it has since been determined. The Plaintiff in that suit, now the 1st set of Respondents, had the following claims –
“(1) A declaration that title to land in Finima vests directly on the three houses that make up Finima namely: KONIBO-YE-AWANTA [TOBIN) HOUSE EBOUYO-OMUSO (BROWN) HOUSE and ATTONI HOUSE who are entitled to customary right of occupancy.
(2) A declaration that title to the land to be leased and used by TSIO Nigeria limited in Finima Bonny, is vested on the three Houses in Finima mentioned above. The piece or parcel of land is described by a survey plan to be filed with the statement of claim.
(3) A declaration that Finima Ventures Limited does not have title to any land in Finima and can not therefore cede such land either directly or any bogus power of attorney.
(4) A declaration that under Ibani Custom only the Amayanabo of Bonny can be styled as paramount Ruler (King) and every other house has one seat only in the Bonny council of chiefs.
(5) An injunction restraining TSKJ Nigeria limited, their agents, privies, solicitors or any other person no matter how else described, from purporting to lease, acquire or pay any money or monies to any person for the lease or acquisition of any centimeter of land in Finima land without the concurrence of the three families afore-mentioned in Finima and consent of the Amayanabo of Bonny.
(6) An injunction restraining TSKI Nigeria Limited, through its servants, agents or any person howsoever described from executing any lease agreement or any form of alienation of any land in Finima or give effect to any such purported alienation without the concurrence of the three families afore-mentioned and consent of the Amayanabo of Bonny.”
In the application dubbed as one to preserve the res in the suit the Plaintiff, as the applicant, had averred inter alia
“3. That Finima Community is made up of three Houses, namely: Bouye-Omuso (Brown) House, Konibo-ye-Awanta (Tobin) House and Attoni House.
8. That it was in the course of negotiations between myself, Tobin House solicitors OKEY WALI & COMPANY, Solicitors for TSKJ, Serena David Dokubo & Co and Mr. George Etomi, that I became aware that an agreement had already been prepared, for the land to be leased by Bouye (Brown) House to the 1st Defendant through Finima ventures with Tobin and Attoni Houses getting financial benefits only. This arrangement, I discovered, had been concluded before the 22d of July, 1996 and I had no idea of this as nobody ever mentioned that to me.
9. That Tobin House promptly filed this suit to stop the 1st Defendant from going to the land and later a motion for injunction restraining the 1st defendant from going on the land, as well as restraining them from paying any amount of money to any body in respect of use of this land under reference or any other where in Finima.
10. That the 1st defendant had signed an agreement with the Brown House to pay money to Brown House alone, for the lease of land belonging to the entire Finima community, which is subject of litigation in this suit.
11. That is this money or any part of it is paid out to the brown House or any sundry persons during the pendency of this suit, there is the likelihood of the said sum disbursed and distributed beyond any possibility of recovery.”
TSKJ Nigeria Limited, the 1st Defendant in the said suit is now one of the cross-Appellants. They were the main contractors to Nigeria LNG Ltd, entrusted with the task of building the Liquidified Natural Gas plant at Finima, Bonny. TSKJ NIG LTD, in furtherance of that purpose, wanted to take a four year lease, with an option to renew for an additional year, “over a parcel of land in Finima, situate along the Airstrip Road, for use as a base Camp'” This is contained in Exhibit ‘A’, the letter written by M/S Serena David Dokubo & co to the Head of the Tobin House (chief Young Tobin – the Plaintiff). The letter states further that chief of Bouye Omuso (Brown) House had been intimated of TSKJ’s intention that in view of our understanding that the Finima community comprises three Houses, the Bouye-omuso(Brown) House, Tobin House and Attoni House, we thought it desirable that you likewise be intimated. We are doing same for the Attoni House.
TSKJ NIG Ltd, through Otonye LLeweuyn Davies, filed counter affidavit on 9th July, 1997 wherein it is stated –
4. That the amount of $360,000 in respect of which the Plaintiff/Applicant is seeking an order of court represents the rent purportedly due under the agreement between the 1st Defendant/Respondent and the Bouye-Omuso (Brown) House of Finima.
5. That although the Plaintiff/Applicant is not party to the said agreement, he is seeking to reap benefits therefrom.
7. That as a matter of fact, the sum is not yet due and owing by virtue of the invocation by the 1st Defendant/Respondent of Clause (IV) of Schedule ‘A’ of the agreement, providing for the suspension of payment in the event of adverse their third-party claims. A copy of the 08/08/96 sent to the Brown House following the institution of this suit is herewith annexed and marked Exhibit “TSKJ.1”
9. Granting the relief sought by the Plaintiff/Applicant would have the effect of compelling the 1st Defendant/Respondent to by the agreement and denying it the exercise of an option conferred on it by the said agreement, all at the instance of a person who is a stranger to that agreement.
10. That the circumstances under which the 1st Defendant/Respondent entered into an agreement with Bouye-Omuso (Brown) House, are as follows –
a. That sometime in May, 1996, the 1st Defendant/Respondent became interested in acquiring a lease of land in Finima for the purpose of building a Labour Camp for its personnel.
b. That the 1st Defendant/Respondent identified the piece of land in question, and after investigations which involved the perusal of two high court judgments – PHC/174/72 CHIEF S.O. TOBIN & ORS v. CHIEF ISREAL I. BROWN & ORS; and PHC/29/74, the 1st Defendant/Respondent felt satisfied in dealing with the Bouye-Omuso (Brown) House of Finima, Bonny, in respect of the land.
c. In the course of negotiations for the land, the 1st Defendant/Respondent expressed its inclination to the Brown House, to have the other Houses in Finima also participate in the proceeds, where upon, the Brown House signified their willingness to so do, provided, according to them they would not be required to compromise their right to be the ones to alienate the land.
11. That in view of all the aforesaid, the 1st Defendant/Respondent has no intention of paying the lease money to anybody unless and until the issue of ownership of the land is effectually resolved.
This counter affidavit filed on behalf of TSKJ, particularly paragraph 10(c) thereof, influenced the learned trial Judge to holding at page 154 of the Record that “the 1st Defendant/Respondent acknowledged some interest of the applicant in land in Finima.” The learned trial Judge was short of saying that TSKJ had instigated this suit for the ulterior purpose of its invoking, to its benefit, the clause on suspension of payment in event of any dispute over title to the land pending the resolution of the dispute. At the same page 154 of the Record the learned trial Judge stated further-
Let me, in conclusion, say that the 1st Defendant acknowledged that there are 3 Houses in Finima. The letter of its solicitors, Serena David Dokibo & co, dated 12th June, 1996, Exhibit ‘A’ to the application 1st quite on this. Inspite of this acknowledgment, 1st Defendant entered into an agreement with only one of the three Houses. The stage was thus set for a conflict, It does not require a genius to figure out that one or another or both of the Houses left out in the cold will complain. When one of them did the expected by suing, presto! Out came the 1st defendant, brandishing a clause in the agreement which says in the event of a suit, payment under the agreement will be suspecded. That way the 1st defendant keeps the land and keeps the rent it should pay also. Talk about eating ones cake and having it. Justice, in my view, demands that the 1st defendant should not get away with it.
Neither the Appellants nor the cross-Appellants, TSKJ and another, made any complaint about this indictment of TSKJ by trial court’ It is trite that findings or conclusions of the lower court not appealed are taken as acceptable to the parties. No party, including the appellant, can question such findings or conclusions whether right or wrong. See AMAYO v. THE STATE (2002) FWLR [pt.91] 1571; USANI v. DUKE (2006) ALL FWLR [pt.340] 1093; IJALE v. LEVENTIS (1959) 4 FSC 108. 112.
The Notice of Appeal of Finima Ventures Ltd & 2 ors has three grounds of appeal, out of which the Appellants formulated two issues, namely –
3.1 whether the Ruling of the trial Judge dated 9th March, 1999 should not be faulted having regard to the errors of omission, commission and conflicts in the ruling leading to then on recognition of order 24 of the Rivers State High court Rules 1987 and the non cognizance of exhibits ‘C’ and ‘D’ of the counter-Affidavit of the 3rd to 5th Defendant/appellant dated 21/4/97 and Exhibit ‘B’ annexed to the counter-affidavit of Defendants/Appellants dated 31st July, 1997 among others.
3.2 What is the ‘Res’ to be preserved in this suit- is it the land in Finima as contained in the writ of summons dated 25th July, 1996 by the plaintiff/respondent; or the fund (rent) as contained in the plaintiff/respondent’s motion dated 2/7/97 and filed on 3/7/97.
ISSUE 3.1
Appellant’s contention is that Exhibit ‘C’ and ‘D’, previous judgments or proceedings respectively of Rivers state High court and the Federal court of Appeal were before the learned trial Judge vide the counter affidavit of Bara Brown, 3rd Defendant/Appellant, filed on 21st April 1997. The counter affidavit together with all exhibits thereto, including the judgment of O. Inko-Tariah, J in the suit no PHC/174/72 and the proceeding of the Federal court of Appeal in appear no FCA/E/60/80 wherein the appear of chief Sam I. Tobin & ors against chief Israel. Brown & ors was withdrawn and dismissed on 15th February, 1983, are contained at pages 7a – q of the Record of Appear. The counter affidavit and the submissions of counsel however refer consistently to suit no PHC/172/74. Exhibit ‘C’ bears the number PHC/174/72.. Suits nos PHC/172/74 and PHC/174/77 have not been shown to be one and the same thing.
The point had been made by the Appellants that the court can look at its own records and that the learned trial Judge was in error when it denied that Exhibits ‘C’ and ‘D’ were in the records before him.
Appellants further contends that the purpose of introducing Exhibits .C’ and ‘D’ “in this case is for the court to determine whether the plea of estoppel per rem judicatam did not apply in this case where the issues, the subject matter of the two earlier judgments and the present suit and the parties are the same.” The cases of OSHODI & ORS v. EYIFUM (2003) 3 NSCQR 320 at 340; ARO v. FABOLUE (1995) 1 SCNLR 158; ULGBA & ORS v. SILLO & ORS (1973) ALL NLR 53; IKON ITO v. OKO UDO EKPE (2000) 1 SCNQR 315 at 327 were cited to adumbrate the point.
It is further the submission of the Appellants that a plea of res judicata is a bar to any further action; that in this case a great deal of crucial issues were presented by way of affidavits and “that the trial Judge was in error – in deciding such crucial and weighty issues on affidavits rather than evidence viva voce. See AMAWO & ALAKA v. A.G. NORTH CENTRAL STATE (1973) ALL NLR 398 at 604. see also WOLUCHEM v. WOKOMA (1974) ALL NLR 543 at 545 .” I am perplexed here by this submission. I have not seen from the Record where the issue of any previous judgments operating as estoppel per re judicatam was pleaded in any statement of defence in this suit. I have not seen, from the ruling appealed, where the trial Judge decided “such crucial and weighty issues (of res judicata) on affidavits rather than viva voce” evidence.
This issue 3.1 is not an omnibus issue that accommodates all manners of complaints, as the Appellants seem to think. It seems to have been distilled from grounds (a) & (b) in the notice of appeal at pages 166 – 168 of the Record. The proper issue from these grounds would be whether the trial Judge was right in refusing/failing to take cognizance of Exhibits ‘C’, ‘D’, and ‘H’ to the counter affidavits of 21st April, 1997, 31st July, 1997 and 20th March, 1998. The three issues formulated by the plaintiff/ 1st Respondent do not address the complaints in Appellants grounds (a) and (b). Rather, they are –
1. whether the reliefs and orders made emanated/flow from the writ of summons.
2. Whether the plaintiffs/applicant have any right which they wee seeking to protect.
3. Whether the order made by the learned trial judge was indeed what was sought by the plaintiff.
The 1st and 2nd Defendants/Respondents have issue 3.2 which is –
Whether or not the failure of the learned trial Judge to avert his mind to Exhibit ‘C’ and ‘D’ in the 3rd Defendant’s counter affidavit dated 21st April, 1987, which he erroneously held were not before him, did not amount to a miscarriage of justice having regard to the weighty pronouncements made by him in that regard.
I have read all the briefs in respect of this issue founded on the failure of the learned to have considered Exhibits ‘B’, ‘C’ ‘D’ and ‘H’.
Their effect, as submitted by the Appellants, is that the plaintiffs/Respondents are estopped from bringing the instant suit to dispute the title of the Appellants to the piece of land they leased to TSKJ NIG LTD to be used as base camp.
Lest it be forgotten, the motion in which the Ruling, the subject of this appeal was made, merely prays that the first tranche of the rent, that is $360,000 US be paid into an escrow account held in the name of a third party the Assistant Chief Registrar (Litigation) of the trial court, pending when all disputes as to the title to the land had been resolved. It can not be denied that a dispute exists. The Plaintiffs/Respondents claim that the title to the land leased to TSKJ in Finima, Bonny for their base camp vests in all the 3 houses of Finima jointly and not merely on Bouye-Omuso (Brown) House. No survey plan has been exhibited to show that the parcel of land claimed in this suit and those parcels of land covered by the previous judgments or orders in Exhibits ‘B’, ‘C’, ‘D’, and ‘H’ are the same for the successful plea of res judicata. As I stated earlier, the Record does not show that the defence of res judicata had been formally pleaded in any statement of defence. The burden of proving the plea of estoppel per rem judicatam rests on the party pleading it by dint of sections 135 – 137 of the Evidence Act.
The issue for now, in this application for an order that the $360,000 be paid into an escrow account, is whether the Applicants have disclosed any interest in the money. In the supporting affidavit, paragraphs 10 and 11 thereof the Applicants, that is the Plaintiffs/Respondents, posit that the rent belongs “to the entire Finima Community” since the land in dispute also belongs “to the entire Finima community.” Paragraph 2 of the counter Affidavit of Bara Brown, on behalf of the 3rd Defendant Appellant, at page 10 of the Record seems to suggest the interest of the entire Finima community to this money as suggested by the Plaintiffs/Respondents. The said paragraph states inter alia that –
The 3rd Defendant (i.e. Finima ventures Ltd) is merely a vehicular means for the administration and disbursing of funds realized by the said bouye-Omuso (Brown) House on behalf of the Finima community see also paragraph 5 of the same counter Affidavit to the effect that Finima Ventures Ltd “represents all indigenes of Finima and is a vehicular instrument designed to make accrued benefits for Finima to get to every body.” The learned trial Judge, therefore, can not be faulted in his finding at page 154 of the Record that
The subject land in matter of this action is essentially title to Finima. The Applicant [i.e. Plaintiff/Respondent] says Tobin noise is one of the owners of land in Finima. The 1st defendant/respondent acknowledged the interest of applicant in Finima. The 3 – 5th defendants (i.e. the appellants) also recognize Tobin House in Finima but regard it as a mere sub-House. whatever be the case, I am quite satisfied that robin House has an interest in the subject matter of this suit.
The learned trial Judge had though goofed that the previous judgments, alluded to by the Appellants, were not exhibited; he however came to the right conclusion that the plaintiffs/Respondents had interest in the subject matter to warrant their bringing the application to preserve the rent.
ISSUE 3.2
The issue raised by the Appellants is whether the res, as upheld by the trial Judge, can be said to be within the purview of the particulars of claim, as contained in the Plaintiff/Respondent’s writ of summons filed on 24th July, 1996. Appellants seem to think that the learned trial Judge was in error when he held that –
– what is sought to be preserved is not the subject matter of this suit the land itself but rather, question a which arises from it – rent. since the issue of rent, which the sum of $360,000 is, is a question which arises from the subject matter in dispute, I have no hesitation in holding that, this court can make a preservation order as prayed.
For the Plaintiffs/Respondents it is submitted that the learned trial Judge was right in making “an order preserving the monies due for lease of land, title over which and right to receive monies over which were subject matters of the pending suit before him.” All they are saying, in my view, is that the right to, or interest in, the lease is incidental to the disputed title to the land leased out to TSKJ.
Title to land and the right to lease same out and collect rents therefrom are intertwined. Lease, as I understand it, is a contract whereby the land owner allows another, the lessee or tenant, to use his land for a period of time specified in return for rent. As it was held in ARCHIBONG v. ITA (2004) 2 NWLR [pt.858] 590 by the supreme court, the landlord owns the land, while the tenant is entitled to use and occupy the land subject to payment of rent and good behaviour. Where therefore there is a dispute over who should collect rent payable over a piece of land the parties to such dispute assert some interest in the title to the land that entitles each of them to claim or partake in the disputed rent. A person other than the purported “landlord” can not lawfully lay any claim to rent.
The TSKJ group is of the opinion, and rightly too, that title to the demised land is disputed between the Plaintiffs/Respondents and the Appellants. They add that this is the kind of dispute anticipated by the lease agreement, Exhibit TSKJ 2, to warrant TSKJ’s invocation of the suspension of rent payment clause.
I have no doubt that the sum of $360,000, as rent for the disputed land, is an incident of the title to the disputed land. It is therefore a res in the suit that a preservation order can be rightly made in respect thereof. And as held by Nsofor JCA:
By virtue of the provisions of section 5 of the Rivers State High court (Civil Procedure) Rules Edict No 3 of 1987 and Order 33 rule 2(3) of the Rivers State High Court (Civil Procedure) Rules, 1987, the court may in an interlocutory or interim proceeding where the right of any party to a specific fund is in dispute in an action, on the application of the party, order the fund to be paid into court or otherwise.
HART v. TSKJ NIGERIA LIMTIED (1998) 12 NWLR [pt.578] 372 at 395E 396G. See also AKAPO V. HAKEEM-HABEEB (1992) 6 NWLR [pt.247] 266.
Not withstanding the perversity of the learned trial Judge that Exhibits ‘B’, ‘C’, ‘D’, and ‘H’, alluded to in the Counter-Affidavits of the Defendants/Appellants to sustain their assertion that there were previous judgments/orders over the disputed land, were not attached to the said counter affidavits; in my judgment, this appeal lacks substance.
The notice of appeal in the cross-appeal has four grounds of appeal. They are, shorn of their particulars –
The learned trial judge erred in law when on the issue of the previous judgment been (sic) relied upon by the defendants/appellants he made an about turn from his earlier considered ruling on the issue, to the prejudice of the Defendants/Appellants.
2. The learned trial judge in law and on the facts when he granted the application to pay the sum of $360,000 into a bank Account when from the facts the Plaintiff/Respondent had no legal right to the res to be preserved.
3. The learned trial Judge erred in law in granting the plaintiff’s application to preserve the sum of $360,000 when the said plaintiff did not in the suit make any pecuniary claim.
4. The learned trial judge erred in law and on the facts when he granted then (sic) application for the deposit of the sum of $360,000 in a bank account when in fact there was no such sum due and payable.
From these 4 grounds the Cross-Appellants formulated two issues for determination. That is –
3.1 whether or not the plaintiff/Applicant has any legal interest in the res sought to be preserved in the order made by the learned trial Judge having regard to Exhibit TSKJ 2 verified by the further Counter Affidavit
3.2 Whether or not the failure of the learned trial Judge to avert his mind to Exhibits ‘C’ and ‘D’ in 3rd Defendant’s counter Affidavit dated 21st April, 1987, which he erroneously held were not before him, did not amount to a miscarriage of justice having regard to the weighty pronouncements made by him in that regard.
Grounds 2 and 4, above reproduced, are, to me, incompetent as they, each, complain at the same time about errors “in law and on the facts.” It is trite that a ground complaining that a decision is wrong both in law and on facts at the same time is defective. Be that as it may, the two issues are apparently formulated from grounds 2 and 1 respectively. From the records there was no counter affidavit dated 21st April, 1987 in the proceedings giving rise to this Cross Appeal. That could not be for the suit itself was filed in July 1996, while the application, the ruling in which is the subject of this cross appeal, was filed in 1997. There is a similar gaffe in the 2nd set of Respondents’ Brief in the Cross-Appeal, particularly in issue no 1 therein. I think both issues refer to the 3rd Defendant’s Counter-Affidavit filed on and dated 21st April, 1997 at pages 7A – 7Q of the Record.
I have commented on this Cross-Appellants issue 3.2, which is issue 1 formulated by the 2nd set of Respondents, in the substantive appeal. My position remains that it was perverse for the learned trial Judge to state in the Ruling that “the judgment upon which the applicant’s rights were challenged was however not exhibited in any of the Defendant’s Counter-Affidavits failure to do this is lack of proof.” Exhibits ‘C’ and ‘D’ were duly exhibited in the Counter Affidavit of the 3rd Defendant filed on 21st April, 1997. I note however that paragraph 7(i) purports that Exhibit ‘C’ is the judgment in the suit no PHC/172/74; whereas the judgment attached at page 7F – L is the judgment in the suit no PHC/174/72. The two are not the same. This error on the part of the trial Judge does not materially affect the substance of the ruling in the application. I adopt my earlier stance on this in the substantive appeal. Accordingly, I resolve the issue against the Cross Appellant.
Cross-Appellant’s issue 3.1 is also the lone issue in the Plaintiff/Cross-Respondent’s lone issue. It is also issue 2 in the Brief of the 2nd set of Respondents. It is the same issue I resolved against the Appellants in the substantive appeal, where I held, in agreement with the trial Judge, that the right to, or interest in, the lease is incidental to the land in dispute which had been purportedly leased to TSKJ’ the Cross-Appellant. Let me, by way of analogy, add that facts which, though not in issue, are so connected with the fact in issue as to form part of the same transaction, are relevant under section 7 of the Evidence Act. So also is the dispute over the lease or rent, which though is not directly in issue in the substantive suit but which is so connected with the title to the disputed land that it has become relevant and connected to the main issues in the suit. By their Exhibit TSKJ 2, the lease agreement which has the following clause:
The lessor as beneficial owner in possession has authorized Finima ventures Limited to enter into
negotiations with the lessee regarding the property being the subject matter of this transaction with the intent that all payments respecting same be made to and through the said company for the benefit of the entire Finima community as agreed the TSKJ, the cross-Appellants, are estopped from asserting that the Plaintiffs/Respondents have no interest in the lease or the rent accruing therefrom. I resolve this issue, also, against the cross-Appellants’ on the whole I find no merit in the cross-Appeal.
In awarding costs in the cross-appeal I take into consideration the observation of the learned trial Judge at page 154 of the Record to the effect that it is the mischief of the TSKJ LIMITED that is the mother of all the restiveness of the other parties in the suit.
Accordingly, I hereby award N50,000.00 in favour of each set of respondents in the appellants.
M. DATTIJO MUHAMMAD (OFR), J.C.A: I had a preview of the lead judgment of my learned brother Eko JCA in respect of this Appeal and the cross Appeal.
I adopt the reasoning and conclusions therein to dismiss both appeals for lacking in merit. I abide by the consequential orders made by his lordship including the order on costs.
T.O. AWOTOYE, J.C.A.: I have had the privilege of reading the draft of the judgment just delivered by my learned brother EJEMBI EKO JCA.
This is an appeal in respect of the preservative order made by Obie Daniel-Kalio J, on 9/3/1999 in suit No. PHC/860/96.
The plaintiff in the said suit claimed inter alia as per claim 5 as endorsed on the writ of summons thus:
“An injunction restraining TSKJ Nigeria Limited, their agents, privies solicitors or any other person no matter how else described, from purporting to base, acquire or pay any money or monies to any person for the lease or acquisition of any centimeter of lend in Finima Land without the concurrence of the three families aforementioned in FINIMA and consent of the Amayanabo of Bonny.”
The plaintiff later filed an application on 3/7/97 praying as follows:-
“1. An order directing the 1st Defendant to pay into a Domiciliary (ESCROW) Account, in the name of the Assistant Chief Registrar Litigation, High Court of Rivers State with any Reputable Commercial Bank in Port Harcourt, the sum of $360,000 (Three Hundred and sixty Thousand United State Dollars) due for Payment as agreed with the Finima Community and such other sums as may become due as rent for the land, subject matter in this suit pending the determination of this suit.
2. Any further order or orders as this Honourable Court may deem fit to make in the circumstances.”
paragraphs 8 -11 of the supporting affidavit to the application provided the reaction for the prayers. They read:-
“8. That it was in the course of negotiations between myself Tobin House solicitors OKEY WALI & COMPANY, solicitors for TSKJ, Serena David Dokubo & Co. and Mr. George Etomi, that I became aware that an agreement had already been prepared, for the land to be leased by Bouye (BROWN) House to the 1st Defendant through Finima Ventures with Tobin and Attoni House setting Financial benefits only. This arrangement, I discovered, had been concluded before the 22nd of July and I had no idea of this as nobody ever mentioned that to me.
9. That Tobin house promptly filed this suit to stop the 1st Defendant from going to the land and later a motion for injunction restraining the 1st Defendant from going on the land, as well as restraining them from paying any amount of money to anybody in respect of the use of this land under reference or any other anywhere in Finima.
10. That the 1st Defendant had signed an Agreement with the Brown house to pay money to Blown House alone, for the lease of land belonging to entire Finima Community, which is subject of Litigation in this suit.
11. That if this money or any part of it is paid out to the Brown House or any Sundry Persons during the Pendency of this suit, there is the likelihood of the said sum disbursed and distributed beyond any possibility of recovery.”
In opposition the 1st defendant in its counter-affidavit filed on 9/7/97 in paragraphs 4 – 9 stated.
“4. That the amount of $360,000,00 in respect of which the Plaintiff/Applicant is seeking an order of court represents the amount Purportedly due under the agreement between the 1st Defendant/Respondent and the Buoye-Omuso(Brown) House of Finima.
5. That although the Plaintiff/Applicant is not a Party to the said agreement’ he is seeking to reap benefits thereform.
6. That the impression held by the Plaintiff/Applicant to the effect that the sum of US$360,000,00 is due to be Paid erroneous.
That as a matter of fact, that sum is not yet due and owing by virtue of the invocation by the 1st
Defendant/Respondent of Clause
(iv) of Schedule “A” of the agreement, Providing for the suspension of payment in the event of adverse third-party claims. A copy of the Notice of Suspension of payment dated 08/08/96 sent to the Brown House following the institution of this suit is herewith annexed and marked Exhibit “TSKJ”.
8. That apart from that, the said agreement contains a clause conferring upon the 1st Defendant/Respondent the option to terminate the Lease Agreement after the initial four years.
9. That granting the relief sought by the Plaintiff/Applicant would have the effect of compelling the 1st Defendant/respondent to perform an obligation from which it is excused by the agreement and denying it the exercise of an option conferred on it by the said agreement, all at the instance of a Person who is a stranger to that agreement.”
After hearing arguments on the application, the trial judge decided as follows:
“I am quite satisfied that I ought to grant learned this application.
Accordingly, it is ordered as follows:-
“The first defendant be and it hereby ordered to pay into a domiciliary (ESCROW) account in the name of the Assistant chief Registrar, Litigation High Court of Rivers State with any reputable Commercial Bank in port Harcourt the sum of $360,000.00 (Three Hundred and sixty Thousand United State Dollars) due for payment as agreed with the Finima Community and such other Sums as may be due as rent for the land subject-matter in this suit pending the determination of this suit.”
It is against the above decision that the appellants filed their appeals.
I have gone through the brief of arguments filed by the parties. The issue in this appeal in my respectful view can be briefly put thus-
“Whether or not the decision of the learned trial judge was in the interest of justice and lawful in the circumstances of the case.”
There is no doubt that the trial court had powers under ORDER 33 Rule 2(3)of the High Court Civil Procedure Rules of Rivers State of 1987 to make preservative orders as to fund.
Order 33 Rule 2 (3) reads:-
“Where the right of any Party to a specific fund is in dispute in an action the court may on the application of the party, order the fund to be paid into court or otherwise secured.”
Tobi JCA, (as he then was) in EMERAYI v. CHIEKWE (1996) 7 NWLR (pt. 462) page 536 at 540 had this to say on preservative order.
“A preservation order is founded an equity. Therefore the judge must be satisfied that it is equitable to make the order sought. The Judge will consider whether from the facts of the case it is in the interest of justice to make the order sought. And in that regard the balance of convenience principle will be available to the judge to invoke one way or the other.”
The plaintiff’s claim as per the writ of summons is simply put that the 1st defendant should not pay any rent to FINIMA VENTURES in respect of any land in FINIMA because the title to the said land vested in the three houses that make up FTNIMA namely:- KINIBO-YE-AWANTA TOBIN HOUSE, BOUYO-OMUSO (BROWN) HOUSE AND ATTONI HOUSE.
The application of the plaintiff, is therefore that the sum of $360,000.00, due as rent from 1st defendant to Brown House alone in respect of FINIMA land be paid into court pending the final determination of this action.
This in my respectful view is fair to all sides. At this stage the rights of the parties are yet to be determined.
Pleadings are yet to be filed. The plaintiffs however must show a prima facie case on the processes filed which they did on the writ of summons and the various affidavits filed.
It is the security of the fund that is paramount at this stage in order not to foist a situation of helplessness on the trial court should the fund became inaccessible after trial.
I resolve the sole issue as formulated by me in favour of the Respondent. It is for the above reasons and for the fuller reasons given in the lead judgment that I hold that this appeal as well as the cross-appeal lack merit.
They are accordingly dismissed I abide by the order as to costs as assessed by my learned brother in the lead judgment.
Appearances
D.E. Hansen, Esq.For Appellant
AND
S.W. west for Respondent/cross-Appellant.
O. D. Abdulkareem for plaintiffs/Respondents.
D. Tella Attoni with I.G. Harry (Mrs.) & F.S. Anokwuru (Miss for 2nd set of Respondent)For Respondent
