PRINCESS (MRS.) EMILIA OROK v. MRS. GLORY SAM DAVID ITAUMA & ANOR
(2011)LCN/4767(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of August, 2011
CA/C/33/2005
RATIO
DUTY OF COURT: DUTY OF A COURT TO CONFINE ITSELF TO THE RELIEFS CLAIMED BY THE PARTIES
In its adjudicatory role and in our adversarial system of justice courts have one main role and that is to decide the cases as formulated, presented and established by the parties themselves courts have no business going outside the claims or reliefs of the parties in granting reliefs to them. see Adetoun oladeji (Nig.) Ltd. v. Nigeria Breweries plc. (2007) All FWLR (pt. 357) 837, (2007) 5 NWLR (pt.1027) 415. courts therefore do not make a practice of granting a relief that the parties have not sought, see; Akinduro v. Alaya (2007) All FWLR (Pt. 381) 1652, (2007) 15 NWLR (pt. 1057) 312; Veepee Industry Ltd. v, cocoa Industry Ltd (2008) All FWLR (pt.425) 1667. It is thus fundamental and an elementary principle in the determination of actions before a court that the adjudicating body is bound to limit itself to the claim before it. see Dumez v. Nwakhoba (2009) 2 FWLR (pt.472) 4215. It is settled that the court is not a father christmas and has no business or jurisdiction to make an order which has not been pleaded or prayed for by a litigant. see Fabiyi v Adeniyi (200d) 5 SCNJ 1, (2000) 6 NWLR (pt. 662) 532; Elumeze v. Elumeze (1969) 1 All NLR 311. Thus, a court should not make a declaration in favour of a party on a matter which has not been pleaded by him. see Adesanya v. otuewu (1993) 1 NWLR (pt. 270) 414. Indeed, a party cannot in law be awarded what he has not claimed. See Ekwealor v. Obasi (1990) 2 NWLR (pr 131) 231; Akinbobola v. Plisson Fisko (Nig.) Ltd. (1991) 1 NWLR (pt. 167) 270; Onu v. Agu (1996) 5 NWLR (pt. 451 652. It is both legal and rogical, that whatever relief either interlocutory or main that is granted by a court to a party before it, must not be inconsistent with the claim of the said party. PER MASSOUD ABDULRAHMAN OREDOLA, JCA
RELIEF: WHETHER THE COURT CAN GRANT ANY RELIEF SOUGHT IN AN INTERLOCUTORY APPLICATION WHICH DOES NOT RELATE TO ANY OF THE RELIEFS CLAIMED IN THE SUBSTANTIVE CLAIM
it is trite law that the court normally should not grant a relief not sought by either of the parties. Thus, where a party seeks certain reliefs in an interlocutory application and such reliefs do not relate to any relief sought in the case the court will be inhibited and unable to grant any relief in the interim in that direction, which does not flow or is traceable to and linked with the reliefs claimed in the substantive claim without prior amendment of pleadings having been sought and granted. Thus, a court should confine itself to the terms of the reliefs sought – no more no less. See Salubi v. Nwariaju (2003) 7 NWLR (pt.819) 426. The supreme court in Arjay Ltd. v. A.M.S. Ltd. 92003) NWLR (pt.820) 577 referred with approval to the decision of the Court of Appeal in Balogun v. Wema Bank Plc (2000) 4 NWLR (Pt. 654) 65 21659 where it was held thus: “When a court is asked upon an interlocutory application to make an order, the court must satisfy itself that it has power to make, at the conclusion of hearing, the same order it is asked to make upon an interlocutory application.” PER MASSOUD ABDULRAHMAN OREDOLA, JCA
INTERFERENCE BY THE APPELLATE COURT: CIRCUMSTANCE WHERE THE APPELLATE COURT OUGHT TO INTERFERE WITH THE FINDINGS OF FACT OF THE TRIAL COURT
Where a trial court has failed to raise proper inference or findings from facts presented to it, the appellate court ought to overturn the erroneous conclusion of that court. see Royal Ade Nigeria Ltd. v. N. O. C. M. C. Plc (2004) All FWLR (pt. 213) 1760, (2004) 8 NWLR (pt.874) 206. Saleh v. bank of the North ltd. (2006) All FWLR (pt.310) 1600, (2006) 6 NWLR (pt.976) 316. PER MASSOUD ABDULRAHMAN OREDOLA, JCA
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
PRINCESS (MRS.) EMILIA OROK Appellant(s)
AND
1. MRS. GLORY SAM DAVID ITAUMA
2. THE PROBATE REGISTRAR, AKWA IBOM STATE Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, JCA (Delivering the Leading judgment): This appeal is against the decision of the High court of Akwa Ibom State holden at Eket contained in the ruling delivered on 31st July, 2002 in Suit No. HEK/78/97. On an interlocutory application by the plaintiff (now 1st respondent) on 4th March, 2002 brought by, way of motion on notice for the following reliefs.
“1. An order of court directing monthly the payment of a monthly maintenance allowance of
N500,000.00 from the Estate of late Chief Samuel David Itauma (deceased) by the 1st defendant/respondent or their agents/ privies to the plaintiff/applicant towards, the welfare and upkeep of the deceased’s child called Master Godwin Samuel David Itauma (an infant) .
2. An order of court directing that such monthly maintenance allowance shall be paid into this honourable Court by the defendants/respondents to be later signed for and collected by the plaintiff/applicant on behalf of the named infant.
3. And for such further or other order(s) as this honourable Court may deem fit to make in the circumstances.”
The said motion was duly taken and argued by the learned counsel for the respective parties. In the ruling of 31st Jury, 2002, the High court of Akwa Ibom state (hereinafter called the lower court) ordered that N61,325.00 (sixty one thousand, three hundred and twenty five naira) be paid by the 1st respondent thereat (now Appellant) or her agents on her behalf to the 1st respondent (plaintiff/applicant) as monthly maintenance of allowance for the welfare and upkeep of Master Godwin Samuel David Itauma with effect from the month of July, 2002.
The appellant (as 1st respondent) felt dissatisfied with the decision of the lower court and filed after seeking and obtaining leave of this court notice of appeal on 30th January, 2003 which contains two grounds of appeal, and with the leave of this court granted on 14th May, 2008, the appellant filed one additional ground of appeal. By the same order of 14h May, 2008, the appellant was granted an enlargement of the period within which to file appellant’s brief of argument while the brief dated 3rd July, 2006 but filed on 4th July, 2006 was deemed as property filed and served.
The 1st respondent as plaintiff had commenced suit No.HEK/78/97 through the writ of summons filed on 11th August 1997 for the reliefs endorsed thereon originally against the appellant and two others (the third defendant, the Administrator -General of Akwa Ibom state was later struck out). The reliefs were also stated in paragraph 16 of the statement of claim filed on 12rh November 1997 with leave of the trial court. Hearing of the suit commenced on 3rd day of December, 2001 with the evidence of the plaintiff as PW1 and continued on 5th March, 2002. Thereafter, it was adjourned to 6th March, 2002. Meanwhile the 1st respondent herein filed the motion, that culminated in this appeal on 4th March, 2002. The motion was moved on 22nd April, 2002 and the appellant replied on 14th May, 2002, and while the 1st respondent rejoined on 14th May, 2002. Ruling of the lower court as previously stated was delivered on 31st July, 2002.
In the appellant’s brief in this appear two issues were formulated for determination. They are:
“(1) whether the trial court had the jurisdiction to order the appellant to pay the sum of N6 1,325.00 (sixty Three one thousand and Hundred and Twenty Five Naira) monthly maintenance allowance for the welfare and upkeep of the deceased infant child called Master Godwin Samuel David Itauma when there was no monetary claim for the said child in the substantive suit.
(ii) Whether Samtex Limited alleged to be generating over N3,000,000.00 profit is part of the Estate of Late Samuel David Itauma (deceased) being administered by the 1st defendant/respondent/appellant.”
In his argument, the learned counsel for the appellant, M. D. Uyoh Esq. submitted that for a party to be entitled to a relief in an interlocutory application, such a relief must have been part of the claim in the substantive action, citing Ihunde v. Samson Roger, Nig. Ltd. (2000) FWLR (pt. 16) 2782;Efe Finance Holdings Ltd, v. osagie, okeke and otegbola & co. (2002)FWLR (pt. 6) 952.
He contended that the monetary claim made by the 1st respondent in the interlocutory application had no foundation in the reliefs sought by her in the substantive claim.
The learned counsel also submitted that the lower court had no jurisdiction to entertain the application since the payment of monthly allowance was not an issue before the court in the substantive action, citing Madukolu v. Nkemdilim (1962) ANLR 589, (1961) 2 NSCC 374. He submitted that the evidence of the applicant though unchallenged could not sustain the application, citing Martchem Industries Nig. Ltd. v. M. F. Kent West Africa Ltd. (2000) 22 NSCQR 1037 and Section 139 of Evidence Act. He argued that the applicant owed the duty of satisfying the trial court upon credible evidence based on positive fact that the appellant was in control of Samtex (Nig.) Ltd. that was said to be generating on a monthly basis the sum of “N3,000,000.00 profit with the letters of administration.”
He stated that Samtex (Nig.) Ltd., as a limited liability company was not covered by the letters of administration granted to the appellant and that the lower court misdirected itself in making its order because there was nothing before the court to substantiate the claim more so that the said company and one Anietie David Itauma alleged to be managing it were not parties to the suit and cannot be bound by any order made in respect thereof. He stated that there was no source from which the amount of N61,325.00 monthly awarded by the lower court would be realized and paid.
The respondents have failed to file any brief in this appeal. This implies in law that they are deemed to have accepted or conceded the issues raised and argued in the appellant’s brief of argument.
This however, does not translate to automatic success of the appeal as the same must be determined on the strength of the appellants complaints and arguments canvassed against the decision of the lower court in question. See John Holt Ventures Ltd. v. Oputa (1996) 9 NWLR (Pt. 470) 101; Sofolahan v. Folakan (1999) 10 NWLR (Pt. 621) 86.
At the lower court the applicant (now 1st respondent) filed an affidavit of 18 paragraphs in support of the motion while the appellant failed to file any counter affidavit to controvert, deny or challenge the facts contained in that affidavit. Such facts were rightly accepted by the court since they were deemed to have been conceded to by the appellant. See Attorney-General Anambra State v. Okeke (2002) FWLR (Pt.112) 175, (2002) 12 NWLR (Pt.782) 575; Best Vision Cent. v. UACNPDC Plc. (2003) 13 NWLR (Pt. 838) 594; Muobike v. Nwigwe (2000) 1 NWLR (Pt. 642) 620.
The appellant however relied on points of law in opposing the application and in the brief filed before this court the appellant has raised the issue that the monetary claim of the 1st respondent for N500,000.00 has no foundation in the substantive claim as formulated in the writ of summons and the statement of Claim and that it was not right for the lower court to have made such a monetary award by way of an interlocutory order.
A calm study of the claim of the 1st respondent in the substantive suit confirms the argument of the learned counsel for the appellant on this issue. The 1st respondents statement of claim on pages 19-26 of the record of appeal shows the reliefs sought in paragraph 16 (a,b,c,d,e,f and 7) to relate mainly to the 1st of administration earlier granted to the appellant which the 1st respondent sought the order to set aside as well as an order that she (1st respondent) be issued a letter of administration. The monetary claims, were in respect of N2,000,000.00, general damages for defamation and unlawful arrest and a total of N107,300.00 special damages as market cost or value of the cloth and personal property of the plaintiff allegedly removed from her room on 9th May, 1997. The monetary claim in the interlocutory application of the 1st respondent for n500,000.00 for maintenance of the child, has no root whatsoever in the substantive action, and therefore amounted to a fresh claim or relief which could not have been made or granted by way of an interlocutory application, and for this reason the award of N61,325.00 by the rower court on the 1st respondent’s interlocutory application was erroneous.
This issue may still be stretched further and the question be asked: ask whether the award of N61,325.00 to the 1st respondent ordered to be paid by the appellant from the estate of the deceased was not incongruous to the claim of the 1st respondent that the letter of administration issued to the appellant be set aside. At the stage of the interlocutory order of the lower court, the validity or otherwise of the issuance of the letter of administration to the appellant had not been determined, and it was therefore quite premature or incongrous to order the appellant to pay money to the plaintiff (1st respondent) from proceeds of the same estate, the administration of which she is challenging in the substantive action.
In its adjudicatory role and in our adversarial system of justice courts have one main role and that is to decide the cases as formulated, presented and established by the parties themselves courts have no business going outside the claims or reliefs of the parties in granting reliefs to them. see Adetoun oladeji (Nig.) Ltd. v. Nigeria Breweries plc. (2007) All FWLR (pt. 357) 837, (2007) 5 NWLR (pt.1027) 415. courts therefore do not make a practice of granting a relief that the parties have not sought, see; Akinduro v. Alaya (2007) All FWLR (Pt. 381) 1652, (2007) 15 NWLR (pt. 1057) 312; Veepee Industry Ltd. v, cocoa Industry Ltd (2008) All FWLR (pt.425) 1667. It is thus fundamental and an elementary principle in the determination of actions before a court that the adjudicating body is bound to limit itself to the claim before it. see Dumez v. Nwakhoba (2009) 2 FWLR (pt.472) 4215.
It is settled that the court is not a father christmas and has no business or jurisdiction to make an order which has not been pleaded or prayed for by a litigant. see Fabiyi v Adeniyi (200d) 5 SCNJ 1, (2000) 6 NWLR (pt. 662) 532; Elumeze v. Elumeze (1969) 1 All NLR 311. Thus, a court should not make a declaration in favour of a party on a matter which has not been pleaded by him. see Adesanya v. otuewu (1993) 1 NWLR (pt. 270) 414.
Indeed, a party cannot in law be awarded what he has not claimed.
See Ekwealor v. Obasi (1990) 2 NWLR (pr 131) 231; Akinbobola v. Plisson Fisko (Nig.) Ltd. (1991) 1 NWLR (pt. 167) 270; Onu v. Agu (1996) 5 NWLR (pt. 451 652. It is both legal and rogical, that whatever relief either interlocutory or main that is granted by a court to a party before it, must not be inconsistent with the claim of the said party.
In the instant case, the grant of the application by the trial court, could be likened and would be tantamount to shifting the goal shifting the posts and changing the rules of the game in the middle of the game. Let me restate that it is trite law that the court normally should not grant a relief not sought by either of the parties. Thus, where a party seeks certain reliefs in an interlocutory application and such reliefs do not relate to any relief sought in the case the court will be inhibited and unable to grant any relief in the interim in that direction, which does not flow or is traceable to and linked with the reliefs claimed in the substantive claim without prior amendment of pleadings having been sought and granted. Thus, a court should confine itself to the terms of the reliefs sought – no more no less. See Salubi v. Nwariaju (2003) 7 NWLR (pt.819) 426.
The supreme court in Arjay Ltd. v. A.M.S. Ltd. 92003) NWLR (pt.820) 577 referred with approval to the decision of the Court of Appeal in Balogun v. Wema Bank Plc (2000) 4 NWLR (Pt. 654) 65 21659 where it was held thus:
“When a court is asked upon an interlocutory application to make an order, the court must satisfy itself that it has power to make, at the conclusion of hearing, the same order it is asked to make upon an interlocutory application.”
The totality of the above findings is that the lower court did not even possess the jurisdiction to make the monetary award of N61, 325.00 even upon the substantive claim as such money was not claimed by the plaintiff (1st respondent) The award was therefore wrong in law and I resolve this issue in favour of the appellant.
The second issue in the appellants’ brief relates to the finding of the lower court that the estate of the late Chief Samuel David Itauma generated more them N3 Million a month which finding was based on paragraphs 11 and 12 of the affidavit in support of the motion. The learned trial judge had drawn his, conclusion from those two paragraphs which contain the following depositions:
“1. That my late husband Chief Samuel David Itauma died intestate leaving several properties in his estate among which is a limited liability company called SAMTEX NIGERIA LIMITED EKET, now managed by 1st defendant acting through one Anietie David Itauma a junior brother to the 1st defendant and my late husband.
2. That the 1st defendant/respondent makes a profit of over Three Million naira (N3Million) alone from the business of Samtex Nigeria Limited, Eket, each month and that all that money is managed by the 1st defendant acting through one Anietie David Itauma.”
The above facts were not supported with details of the earnings from tire estate generally and particularly the details of the earning from SAMTEX NIG. LIMITED which could have amounted to a princely sum of N3Million a month. It is equally important that Samtex Nig. Ltd. being a limited liability company has its own legal and juristic (though artificial) personality outside that of the appellant and was therefore entitled to be given an opportunity of being heard before a finding that it was capable of generating and indeed does generate such an amount per month could be rightly made, That finding was (and still is) not property based upon evidence presented before the court and therefore perverse.
Where a trial court has failed to raise proper inference or findings from facts presented to it, the appellate court ought to overturn the erroneous conclusion of that court. see Royal Ade Nigeria Ltd. v. N. O. C. M. C. Plc (2004) All FWLR (pt. 213) 1760, (2004) 8 NWLR (pt.874) 206. Saleh v. bank of the North ltd. (2006) All FWLR (pt.310) 1600, (2006) 6 NWLR (pt.976) 316.I also resolve this issue in favour of the appellant. Consequent upon the foregoing, I find merit in this appeal and it is allowed. The ruling of the lower court delivered on 31st July, 2002 in suit No. HEK/78/79 is set hereby aside. I make no order as too costs.
KUMAI BAYANG AKAAH, J.C.A.: I read in draft the leading judgment of my learned brother, Oredola, JCA. I agree that there is merit in the appeal and I also allow it.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read before now the lead judgment of my learned brother, Massoud Abdulrahman Oredola, JCA. I totally agree that this appeal has merit and it is allowed. The ruling of the lower court is set aside. I make no order as to costs.
Appearances
NCHE ACHUMBA ESQ. (MISS)For Appellant
AND
ABSENT AND UNREPRESENTED.For Respondent
