ROBERT NWADIKE v. RIVERS STATE HOUSING AND PROPERTY DEVELOPMENT AUTHORITY & ORS
(2011)LCN/4686(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of July, 2011
CA/PH/276/2002
RATIO
GROUND OF APPEAL: EFFECT OF A GROUND OF APPEAL NOT COVERED BY AN ISSUE
It is settled law that any ground of appeal not covered by an issue is always deemed abandoned. The position of the appellate courts is that where there is no issue raised in any grounds of appeal, it is no more needed to consider same. See Akpobuyo Local Gov. v Duke (2001) FWLR (pt. 252) 138; Hussein v. Moh. (2005) 7 NWLR (Pt. 954) 393. PER ISTIFANUS THOMAS, J.C.A.
JUSTICES
ISTIFANUS THOMAS 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
ROBERT NWADIKE Appellant(s)
AND
RIVERS STATE HOUSING AND PROPERTY DEVELOPMENT AUTHORITY AND 4 ORS Respondent(s)
ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of N. Ndu, as he then was Judge, of Rivers State High Court delivered on 12th November, 1999 where in the plaintiff [but now to be simply referred to as the appellant] claims were dismiss in their entirety.
The appellant’s claim at the lower court are as follows:-
28 “[a] A declaration that there is a subsisting contract of sale of No. 54 Circular Road, otherwise called Block 13, 5th Street, Flat 6, Elekahia Housing Estate, Port Harcourt between the Plaintiff and the 1st Defendant sometime between 7th February, 1991 and 9th January, 1992.
[b] A declaration that the purported sale of the property No. 54 Circular Road, Elekahia Housing Estate Port Harcourt by the 1st Defendant to the 2a Defendant Mr. Innocent Wobidi is null, void and of no effect and afortiori.
[c] An Order for the 5th Defendant to produce and deliver in Court the sale agreement dated 1st February 1992 and registered as No. 64 at page 64 in volume 170 of the Lands Registry (made between the 1st Defendant on the one hand and 2nd Defendant on another hand) for cancellation.
[d] An Order of specific performance directing the 1st Defendant to accept the sum of N11,971.[eleven Thousand, Nine Hundred and Seventy-one Naira] being the outstanding balance of the contract of sale of the property No. 54 Circular Road, Elekahia Housing Estate, Port Harcourt from the Plaintiff as to issue the relevant papers of sale to the aforesaid plaintiff and 3rd, 4th and 5th Defendants to record the sale and register same in the Lands Registry at Port Harcourt.
[e] An injunction restraining the 1st, 3rd and 4th Defendants from issuing or causing to be issued a Certificate of Occupancy to the 2nd Defendant or treating the 2nd Defendant as the person entitled to statutory right of Occupancy over the property No.54 Circular Road, Elekahia Housing Estate, Port Harcourt and also restraining the 2nd Defendant from accepting a Certificate of Occupancy or facilitating the issuance of Certificate of Occupancy by the 1st, 2nd and 3rd Defendants or their agents or servants for himself and for his benefit.
[f] An injunction restraining the 5th Defendant from registering or causing to be registered any Certificate
[g] N5,000,000.00 (Five Million Naira] special and general damages against the 1st Defendant for The 1st defendant now the 1st respondent, was the River State Housing Authority that controlled housing estate properties and gave them out for rents and for sale to those who had interest to buy. The appellant came into the house in January, 1980, as a tenant, in Block 13, 5th Street, Flat 6 Elekahia Housing Estate, Port Harcourt. On November, 1989, the 1st defendant pasted a notice for cancellation and eviction for those with arrears of rent. The appellant was asked to pack out or pay the outstanding arrears. He paid the sum of N11,000 as arrears. The rent installmental payment was paid through one Mr. Luck Egbe who was the caretaker.
During proceedings at the lower court, the appellant testified to support his claim. He also called two other witnesses. The 1st respondent also called two witnesses who testified on behalf of the 1st respondent.
After close of the suit, the learned trial judge dismissed the appellants claim in its entirety. Dissatisfied with the decision, the appellant filed his notice of appeal on 22-11-1999 containing 3 grounds of appeal. As usual parties filed their respective briefs. Appellant’s Brief was filed on 17-03-2005 but deemed filed on 19-08-2006. The 2nd respondent’s brief was also filed on 23-03-2007, but the brief was deemed filed on 3-5-2007. The 3rd -5th respondents brief was filed on 14-01-2008 but deemed filed on 21-9-2010. The appellants reply brief to the 3rd – 5th Respondents’ was filed on 28-10-2010. The 1st respondent’s brief was filed on 3rd November, 2006.
The appellant raised two issues for determination and they read as follows:-
“1. Whether the lower court was correct when it held that the appellant was never offered the property for purchase and therefore was not a bona-fide purchaser of same.
2. Whether the 1st respondent could have validly sold the property to the 2nd respondent having regard to [a] the earlier sale made to the appellant’s landlord [b] the various receipts issued to the appellant showing installmental payments for the same property.”
The appellant’s argument on his first issue is that he was offered to pay N22,971.63 kobo for the property, but that the lower court failed to consider the installmental payments. Appellant is insisting that he was offered to buy the house in dispute by an authorized agent of the 1st respondent. Appellant referred to his evidence in Chief at pages 62, 64 that read as follows:
“In 1989, the Housing authority was ejecting occupants who are owing arrears of the purchase price. I told them I was a tenant. They said they knew only the owners, and they ejected me. When they ejected me, I was forced to pay the arrears was N3,000. I was issued receipt for the N2,000 and another for N1000. After that incident, I did not continue to regard Mr. Ahukana as my landlord…
Thereafter, the Housing Authority became my landlord… we met the chairman in his office. We discussed the sale, Agreement of the property. We agreed that the 1st respondent would sale it to me.
I agreed to buy it for N22,291.63k. the money was to be paid by installments of N2500 per annum. I made payment of N11,000 before filing this suit. These are the receipts some of the payments were made for me by Mr. Fyne-Country”.
The appellant was under cross-examination of his evidence and he said thus:
“It is not true that the 1st respondent never offered the building to me to purchases. I complained with the offer. The offer was made to me by the 1st defendants chairman Mr. Igiri to pay up the arrears of the said property and to apply for the said property…..
It was Mr. Braide and the Chairman of the 1st defendants that I met and they agreed with me that I clear arrears of the said property. I met them separately.
The appellant has contended that by the payment through installmental payment showing various receipts which were tendered as exhibits, he was paying to purchase. The appellant concluded his argument on 1st issue by saying that the trial judge did not evaluate and consider the facts he stated in his evidence. That the failure of the trial judge to evaluate had occasioned miscarriage of justice, and urged that the appeal be allowed and set aside the judges decision at the lower court and referred to the cases of Ekwealor vs. Obasi (1990) 2 NWLR (Pt.131) 231; Madaki v. The State (1996) 2 NWLR (Pt.429) 171.
On issues 2, the appellant contends that the 1st respondent’s sale of the land in dispute to Mr. Robert Nwadike was not valid in law, because, one Mr. Isaac Ahukana had earlier bought the same property but could pay the balance, and that for that reason, appellant was asked to pay the balance and purchase the property. The appellant has submitted that the 1st respondent could not resell the same property to another person and relies on the case of Obijuru v. Ozirus (1985) 2 NWLR (Pt.6) 167; Wakama v. Kalio (1991) 8 NWLR (pt.207) 123. Appellant has argued that the trial judge did not consider argument he made at the lower court. Appellant had at the lower court filed the five receipts given to him showing installment of payment of the rent he was asked to buy as original owner Isaac Ahukana could not pay the balance. Still learned counsel for the appellant has argued that by the receipts of the part payment, the appellant has an equitable estate and referred to the case of Savage v. Sarrough (1937) 13 NLR 141; Ogunbanbi vs. Abowabi (1951) 13 WACA 222. Appellant has urged the court to allow the appeal. On the part of the 1st respondent, the brief was filed on 26-01-2005 but deemed filed by the order of this court. The 1st respondent formulated a sole issue for determination and it reads thus:-
“whether from the state of pleadings, the evidence adduced at the trial and the proper interpretation of Exhibit “P” there exist an enforceable contract of he sale of the property in dispute between the appellant and the 1st respondent”.
On the 2nd respondent, the brief was filed on 23-03-2007 but deemed filed on 31-05-2007. The 2nd respondent made a notice of preliminary objection on appellant’s ground No.2 and has urged that ground 2 is incompetent and should be struck out as appellant has no argument on same. Counsel has raised a sole issue for determination it reads, thus:-
“Whether there is any substantial and credible evidence to warrant a finding that the 1st defendant has offered the property in dispute to the plaintiff but now the appellant as against the valid sale of the property existing between the 1st and 2nd defendant.”
On the part of the 3rd -5th respondents, their brief was filed on 14-10-2008 but deemed filed on 21-09-08. They also raised a sore issue that reads thus;
“whether from the facts of the case, there exist a contract of sale or contract to sale the property in dispute between the appellant and the 1st respondent,.
The appellant also filed a reply brief to the 3d – 5th respondents brief. It was filed on 28-10-10.
In my considered opinion, the trio respondent’s arguments will be treated together.
In the preliminary objection raised by the 1st respondent, the objection is that the appellant had complained that the sale agreement between the 1st and 2nd respondents is void since it required the consent of the Governor of River State by reason of the provisions of the Edict of the Rivers State which was never obtained. That the appellant has not formulated any issue covering grounds 2.
I have carefully considered the appellant’s 2nd ground of appeal, and I have not seen any issue on appellant’s ground 2. It is settled law that any ground of appeal not covered by an issue is always deemed abandoned.
The position of the appellate courts is that where there is no issue raised in any grounds of appeal, it is no more needed to consider same.
See Akpobuyo Local Gov. v Duke (2001) FWLR (pt. 252) 138; Hussein v. Moh. (2005) 7 NWLR (Pt. 954) 393. I therefore strike out the appellant’s ground 2 as there is no issue on same. The 1st respondent and the 2nd respondents preliminary objections on appellants’ ground 2 are hereby sustained.
The 1st respondent’s argument is that by the evidence of the appellant and his witness’ appellant was a mere tenant in the property in dispute to an outright owner, thus 1st respondent Rivers state Housing Authority when he paid only about N11,000.00 out of N22,971.631. Counsel referred to Exhibit P1 which contains the five installment payments as a tenant. The 1st respondent has argued that for a valid sale to be accepted, there must be parties, offer and acceptance as well as the consideration and certainty of the subject matter. Counsel referred to the case of Lequel Eng (Nig) Ltd v. Governor of Rivers State (2003) FWLR (Pt.147) 1058. The 1st respondent referred to the evidence of PW2 and PW3 whom the appellant called to support his claim and that the witnesses could not fully support the appellant’s, position. The 1st respondent has reasoned that the appellant could not prove the existence of enforceable contract between him and the 1st respondent. That there is no written agreement of the purported contract for sale. Counsel for 1st respondent referred to and relied on the case of Cohen v. Nessdale (1981) 3 All E.R. 1118, where it is stated that a contract for sale of land will need to be in writing.
The 2nd respondent’s argument is that, the appellant became confused because he first said he was a tenant to Lucky Egbe and then changed that, he became the tenant of his Landlord Mr. Isaac Ahukana, and thirdly, he became the tenant under 1st respondent. It is contended by the trio of the respondents that the appellant could not even summon the said Isaac A. Ahukana to testify as his landlord through whom he came to the property in dispute. Counsel for the 2nd respondent has urged that the appeal be dismissed as appellant could not prove the purported sale between him and the 1st respondent.
The 3rd-5th respondents is that the evidence of appellant and his two witnesses is that he was a tenant of three different persons in the property in dispute, and that two of the respective land lords were in areas of rent payment to the 1st respondent. That the appellant paid part of the arrears to forestall eviction which he was allowed to pay on sympathy.
I have carefully considered the totality of appellant’s brief and the trio of respondent’s briefs and arguments respectively. The appellant’s argument is that, the trial court did not properly evaluate his evidence as well as his two witnesses. I have read the judgment of the learned trial judge, and on page 123 of the record, the judge properly said as follows:-
“From the plaintiffs pleadings and evidence in support there of, when was the property offered to him to purchase? What was the selling price offered to him? And what was the terms of payment?”
Still at page 125 of the record the learned trial judge said
“of course from that alone, it is abundantly clear that no sound mind can believer the plaintiff when he said Mr. Fynecountry met Chief Igiri (pw3 and the latter agreed with him to purchase the property for the price of N22,971.63. In fact he worsened the credibility of his story under cross examination by 1st respondent’s counsel. He changed the version and said the offer made to him by Chief Igiri was to pay the arrears on the property and to apply to buy it. ”
His Lordship went further at same page 125 of the record that:-
“Pw2 Mr. Fynecountry said he did not know whether the arrears the plaintiff was to clear was the arrears of rent or for the purchase of the property and under cross-examination by counsel for 2nd respondent, Mr. Fynecountry said he was not there when the offer to buy the property was made to the plaintiff complaint”
“and as for Mr. Braide PW3, he said the Board must approve the sale of such property and that he was not aware if the Board approved a sale of such property to the plaintiff (appellant)…..
He agreed that the plaintiff was a mere tenant… so that, from the evidence given by the plaintiff and his witnesses, there is nothing upon which I can hold that the property was for one moment offered to the plaintiff to purchase.
An offer is a proposition made by one party called the offeror to another party, called the offered, clearly and precisely indicating the terms under which then offerror is willing to enter in contract with the offered”.
The above quoted findings of the trial judge can not be faulted as argued by the appellant. Infact, there is no more in doubt that the evidence of the appellant and PW2 and PW3, were effectively considered by the trial judge. From the judges decision, there is no error and there is no miscarriage of justice on the appellant.
The appellant had sought an order of specific performance to compel the 1st respondent to accept money from him, and this application was rejected at the trial court of which, I am in total agreement because there is no legal agreement of offer between the 1st respondent and the appellant. see case of Dodo v. Solanke (2000) 9 NWLR (Pt 986) FWLR 447; Union Bank v. Erigbuem (2003) FWLR (Pt.107) 1365.
In the final analysis, the appeal has no merit and is hereby dismissed. I affirm the decision of the learned trial Judge Ndu, as he then was. Costs of N60,000.00 [N30,000] to 2nd Respondent and N30,000.00 to 3rd -5th Respondents.
EJEMBI EKO, J.C.A.: My learned brother ISTIFANUS THOMAS, JCA made available to me, before now, the judgment just delivered. I am in complete agreement with his analyses of, and conclusions on, the issues in this appeal.
The appellant, as the plaintiff, had a burden of proof to discharge in order to be able to earn the judgment of the trial court. See sections 135 – 137 of the Evidence Act. He failed to discharge the burden of proving that the Rivers State Housing and Property Development Authority, 1st Respondent, had any contract with him for which he could proceed against them for specific performance of.
From the totality of the evidence before it and the trial court’s adroit use of the same, upon proper evaluation, the appellant can not complain that he suffered any miscarriage of justice. He did not prove his assertions.
I have nothing further to add to the lead judgment. I hereby adopt the said judgment including all the consequential orders therein, including the order dismissing the appeal and the order as to costs.
T. O. AWOTOYE, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother ISTIFANUS THOMAS J.C.A.
I agree that the appeal has no merit and also dismiss the appeal.
I abide the order on costs as made in the lead judgment.
Appearances
I. A. Adedipe (SAN)For Appellant
AND
Wilcox Abereton Esq.
G. O. A. Joseph Esq.
I. R. Minaciri (Mrs)For Respondent
