HIS LORDSHIP RT. REV. DR. LUCIUS UGORJI v. PRINCE B.B. APUGO
(2019)LCN/12604(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of January, 2019
CA/OW/226/2016
RATIO
JURISDICTION: THAT THE COURT CANNOT INTERFERE IN THE PARTIES CLAIM
“I am of the considered view that it is obvious from the submissions of the parties in the instant appeal which have been copiously highlighted above, that they are ad idem that a Court has no jurisdiction to grant parties a relief that has not been asked for or sought. The parties have cited many cases regarding this position of the law but as I consider how Tobi, JSC; conveyed the message in the case of ADETOUN OLADEJI (NIG) LTD V. NIGERIAN BREWERIES PLC (2007) LPELR 160 (SC), I will re-produce what his lordship said. It goes thus: – It is good law that parties, the owners of their cases, are in the best position to know their claims or reliefs and the Courts cannot go outside the claims or reliefs in search of other claims or reliefs not before them. The role of a Court of law is to adjudicate on claims or reliefs placed before it by the parties. A claim or relief is made at the trial Court and this is in the pleadings. The statement of claim contains the claim or relief. If the defendant has a counter-claim, this is contained in the statement of defence. The trial Judge goes into the pleadings and decides one way or the other. An appellate Court has to go into the record and decide only on the record. An appellate Court has no jurisdiction to go outside the record to search for possible claim or relief. See also the case of EZEONWU V. ONYECHI (1996) LPELR 1212 (SC).” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
HIS LORDSHIP RT. REV. DR. LUCIUS UGORJI
(Bishop of Umuahia Catholic Diocese) – Appellant(s)
AND
PRINCE B.B. APUGO – Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment):
The appeal is against the judgment delivered on 12/1/2016 by the High Court of Abia State presided over by Hon. Justice L. Abai (hereafter to be simply referred to as ?the lower Court ?and ?learned trial Judge? respectively). The Respondent (as Plaintiff) instituted the instant action against the Appellant (as Defendant) claiming the following reliefs: –
1. A Declaration that the Plaintiff is entitled to the statutory Right of Occupancy to, over and concerning that lot, piece and portion of land known as and called UZO UBI UMUOGELE OCHA situate and being at Nkata Ibeku. Umuahia, within the Court’s jurisdiction which is particularly delineated in survey plan No. HAS/IM/15/91 and measuring 4.4984 Hectares in Area.
2. A Declaration that the Agreement made between the Plaintiff and Defendant dated 16/12/91 concerning the said land, has become determined by reason of breaches of the terms thereof by the Defendant.
3. An Order of Court granting forfeiture of the donation of the said land against the Defendant.
4. An Order of perpetual injunction restraining the Defendant by himself through his servants, agents, successors in office, representatives by any name called from trespassing into the said land or preventing the Plaintiff in any manner whatsoever from exercising maximum acts of ownership over the land known as UZO UBIUMUOGELE OCHA situate at Nkata Ibeku Umuahia within the jurisdiction of this Honourable Court and covered by the Power of Attorney dated 16/6/1991.
5. Fifty Million Naira against the Defendant, being general damages suffered by the Plaintiff by reason of the said breaches.
After reviewing and evaluating the evidence (oral and documentary) placed before it by the parties and having also had the benefit of the written addresses of the parties, the lower court found in favour of the Respondent and entered judgment as follows: –
1. A declaration that the claimant is entitled to the statutory right of occupancy to, over and concerning that lot, piece and portion of land known as and called UZOUBIUMUOGELE OCHA situate and being at Nkata Ibeku, Umuahia within the court’s jurisdiction which is particularly delineated in Survey Plan No. IIAS/IM. I5/91 and measuring 4.4984 hectares in area.
2. The defendant is ordered to negotiate/liaise with the claimant within thirty days of this judgment to resolve issues pertaining to the grant.
3. That upon the failure of the defendant to do so within the stipulated time, an order of forfeiture will take effect against the Defendant and a perpetual injunction will come into force restraining the defendant, his servants, agents or successors by any name called from trespassing into the land covered by the Power of Attorney registered as 55 at page 55 in volume 9 of the Lands Registry.
4. The claimant is awarded general damages fixed at one million naira.
Being aggrieved with the judgment of the lower Court, the Appellant initiated the instant appeal by filing in the registry of the said Court on 8/2/2016, a notice of appeal dated 6/2/2016. The notice of appeal contains five grounds of appeal. An amended notice of appeal dated 1/12/2017 was subsequently filed on 4/12/2017. This was pursuant to the order of the Court made on the same date. The process contains 16 grounds of appeal and the grounds shorn of their respective particulars are hereby re-produced:-
GROUNDS OF APPEAL
GROUND ONE: ERROR IN LAW
The learned trial Judge erred in law when he made the order of forfeiture considering the fact that the document transferring title did not contain or create any condition for re-entry or forfeiture.
GROUND TWO: ERROR IN LAW
The learned trial Judge erred in law when it held that “I hold that title in the land has not passed to either the defendant or the Registered Trustees of the Roman Catholic Diocese of Umuahia”.
GROUND THREE: ERROR IN LAW
The learned trial Judge erred in law when it held that there is no credible evidence that the land in dispute was at any time (sic) transferred to the Incorporated Trustees of the Roman Catholic Diocese of Umuahia by the defendant and that the certificate of occupancy “Exhibit G” was not validly obtained.
GROUND FOUR: ERROR IN LAW
The learned trial Judge erred in law when he made an order for forfeiture of the land in dispute whereas the title in the land in dispute has long been transferred to a third party who has obtained a certificate of occupancy and was also not joined as a party.
GROUND FIVE: ERROR IN LAW
The learned trial Judge erred in law when he held that the Claimant/Respondent is entitled to statutory Right of Occupancy over and concerning the land in dispute whereas title in the land has been transferred to a third party who has obtained a certificate of occupancy and the said certificate of occupancy is still valid and subsisting haven not been set aside by the Court.
GROUND SIX: ERROR IN LAW
The trial Court erred in law when after holding thus:
The Claimant seeks forfeiture and an injunction. Though I find there has been a breach by the Defendant, I have considered the facts and circumstances of this case. The Defendant and indeed the Roman Catholic Church have been on the land a considerable length of time (since 1991) and has to the knowledge of the Claimant, developed it by establishing a Primary School and Skills Acquisition center thereon. I have also considered the evidence of the Claimant to the effect he did not bring this suit to repudiate the agreement, but due to the Defendants (sic) failure to comply with its terms. It is my view therefore that to grant the reliefs AS SOUGHT will be INEQUITABLE.
It proceeded to grant and (sic) unclaimed reliefs to the Respondent
GROUND SEVEN: ERROR IN LAW
The trial Court erred in law when in spite of not having the jurisdictional competence and power to do so, still granted the Respondent reliefs not sought in his suit.
GROUND EIGHT: ERROR IN LAW
The trial Court erred in law when after setting out in its judgment the 3 issues adopted at the pre-trial session it abandoned the issues in considering the case before it thereby occasioning miscarriage of justice.
GROUND NINE: ERROR IN LAW
The trial Court erred in law when it held thus:
It is the evidence before the Court that a certificate of occupancy over the land in dispute (Exhibit G) was awarded to the Incorporated Trustees of the Roman Catholic Diocese of Umuahia as far back as 31st December, 1991, barely two weeks after the grant was made by the Claimant. It is the Defendants (sic) evidence and pleadings that it was after the area in question was acquired by the Abia State Government that the certificate of occupancy registered as No 8 at page 8 in volume 36 (Exhibit G) was issued. It is also his pleadings and evidence that in exercise of his powers he transferred the land to the Incorporated Trustees of the Roman Catholic Diocese of Umuahia. He however did not lead any evidence to prove that the land the subject matter of this suit was ever acquired by the Abia State Government. There is no notice of acquisition before the Court. A consideration of Exhibit G1 a certified true copy of a letter written by the Defendant dated 17th October, 1991, two months before the grant by the Claimant and addressed to the then Military Administrator of Abia State shows that even before the Power of Attorney was granted by the Claimant, the Defendant had held out that the land upon which the skills acquisition center was to be erected (the land in dispute) belonged to the Catholic Church.
It is also to be noted that there is no credible evidence to prove that the land in dispute was at any time transferred to the Incorporated Trustees of the Roman Catholic Diocese of Umuahia by the Defendant. It appears clear that the certificate of occupancy Exhibit G was not validly obtained.
GROUND TEN: ERROR IN LAW
The trial Court erred in law when it granted the declaratory relief sought notwithstanding that the Abia State Government and the Incorporated Trustees of the Roman Catholic Diocese of Umuahia were not joined as parties in the suit.
GROUND ELEVEN: ERROR IN LAW
From the evidence before the Court which I believe, it is clear and I find as a fact that the Defendant did not abide by the clear conditions of Exhibit A as it relates to the award of scholarships and this resulted in a breach.
As stated earlier, exhibit A shows the intention of the Claimant was that the land be given on the condition that the Defendant award scholarships in the name contained in Exhibit A.
GROUND TWELVE: ERROR IN LAW
The trial Court erred in law when it held:
The grant by the Claimant in my view cannot be said to have been an outright or absolute grant. Title to the land therefore remains in the Claimant. I hold that title in the land has not passed to either the Defendant or the Registered Trustees of the Roman Catholic Diocese of Umuahia.
GROUND THIRTEEN: ERROR IN LAW
The trial Court erred in law when it held:
It was submitted by learned counsel for the Defendant Kelenna Ogbonna that there was no provision for re-entry in Exhibit A, and the Power of Attorney is irrevocable. A consideration of Exhibit A shows that is the position. However, it is my view that despite, its name, an Irrevocable Power of Attorney can be revoked in some situations. For instance, if the agent/donee acts in a manner contrary to the best interest of the donor. Simply using the word “irrevocable” in a document will not necessarily made (sic) the document irrevocable. The Court will look at the relationship and transaction between the parties to determine if the power was intended to be irrevocable. In the instant case, the parties agreed the grant was made subject to or on the condition that scholarships would be awarded from the 1992/93 school year. The law is that time is of essence where the parties have expressly made it so, or where the circumstances show it was intended to be of essence or where a definite time is fixed. See NWAOLISAH V NWABUFOH (2011) 46 (Pt 2) NSCQR 1124. In this case it was clearly stated as 1992/93 school year.
GROUND FOURTEEN: ERROR IN LAW
The trial Court erred in law when it (sic) thus:
Be that as it may, even though the skills acquisition center was only completed at the institution of this suit, and the Primary school only took off in 1997 or thereabouts, it is clear that the scholarships, if any, awarded in respect of the Primary school were not as agreed upon by the parties. It is my view that the Power of Attorney is Irrevocable (sic) as a result of the breach of the condition for its grant by the Defendant. The fact that the Claimants felt it necessary to prepare an addendum to cover the breaches and give more time which the Defendant refused to sign (Exhibit D) does not detract from the fact that the Claimant can in my view revoke the Power of Attorney granted. This suit was filed in December 2000, there is nothing to show that between 1998 and the date of filing anything was done by the Defendant to remedy these breaches. If the Defendant had complied with the terms of Exhibit A, it is clear that there would have been no need for this suit.
GROUND FIFTEEN: ERROR IN LAW
The learned trial Judge erred in law when it failed to properly construe and interpret Exhibit A.
GROUND SIXTEEN: ERROR IN LAW
The trial Court erred in law when it made perverse and prejudicial finding against the Appellant thus: The DW1 in his evidence claimed that scholarships were awarded but produced no evidence or record to support this. He who asserts must prove?.
GROUND SEVENTEEN: ERROR IN LAW
The trial Court erred in law when it relied on the evidence of CW1 in granting him reliefs claimed and unclaimed.
GROUND EIGHTEEN: ERROR IN LAW
The learned trial Judge erred in law in that having refused to grant relief 2 sought in the suit it has no power or competence to grant the Respondent any other relief.?
The reliefs sought by the Appellant are for this Court: (i) to allow the appeal; (ii) to set aside the decision of the trial Court including the orders contained therein; and (iii) to dismiss the Respondent?s suit.
The appeal was entertained on 1/11/2018 with learned leading Senior Counsel Dr. Livy Uzoukwu SAN in urging the Court to allow the appeal adopting and relying on the Appellant’s brief of argument dated 18/12/2016 and filed 19/12/2017 pursuant to the order of the Court made on 4/12/2017 as well as Appellant’s reply brief of argument dated 6/4/2018 and filed on the 10/4/2018 but deemed as properly filed on 28/5/2018.
In the same vein, S.C. Ifeanyi of counsel in urging the Court to dismiss the appeal adopted and relied on the amended brief of argument of the Respondent dated 19/1/2018 and filed on 22/1/2018.
The Appellant formulated four issues for the determination of the appeal in his brief of argument. The issues read thus: –
1. Whether the trial Court has the power and/or jurisdiction to grant reliefs not sought by the Respondent and some of which are contingent reliefs? (Grounds 6 and 7).
2. Whether the trial Court has the jurisdictional competence in deciding the issue of the validity of Exhibit G and title over the land covered by Exhibit G in the absence of the Abia State Government (the grantor of Exhibit G) and the Incorporated Trustees of the Roman Catholic Diocese of Umuahia (the beneficiary of Exhibit G) as parties thereto? (Grounds 2, 3, 4, 5, 9, 10 and 12).
3. Whether the trial Court after holding that “to grant the reliefs as sought will be inequitable” and having refused to grant the Respondent his relief 2 was not wrong in law to have granted any relief at all to the Respondent whether claimed, unclaimed or as reframed by the trial Court? (Ground 18).
4. Whether the trial Court was not in error when it held that the Respondent was entitled to a Statutory Right of Occupancy over the disputed land? (1, 8, 11, 13,14,15,16 and 17).?
Having engaged on an appraisal of the judgment of the lower Court, and having accused the Appellant of not taking advantage of the soft landing given to him by the granting of reliefs (b) and (c), but that he rather brought the instant appeal, the Respondent stated to the effect that he adopted issues 2, 3 and 4 as framed by the Appellant for the determination of the appeal, but that he was reframing Appellant’s issue 1 to read thus: –
“Whether reliefs 2 and 3 granted by the learned trial Judge in the judgment of the Court below dated 12th day of January 2016, are reliefs which the Court, qua Court of Justice and Law has power and/or jurisdiction to grant, within the con in which those reliefs were granted in this particular case”.
Suffice it to say that the appeal will be resolved on the issues formulated by the Appellant as the Respondent has sufficiently shown that the only issue formulated by the Appellant for the determination of the appeal that he has not adopted word for word (i.e. Appellant’s issue 1) has been responded to under his issue 1 as reframed or re-framed issue 1.
APPELLANT’S ISSUE 1 ‘WHETHER THE TRIAL COURT HAS THE POWER AND/OR JURISDICTION TO GRANT RELIEFS NOT SOUGHT BY THE RESPONDENT AND SOME OF WHICH ARE CONTINGENT RELIEFS’
The Appellant devoted the whole of paragraph 3 (i.e. 3.1 – 3.35 spanning eight pages) to this issue. The stance of the Appellant in the main is that it has long been settled that no Court has the jurisdiction to award any claim or relief not sought by a party in a case. That the lower Court failed to abide by this settled principle of law when it proceeded to award reliefs as reframed by it and reliefs not claimed by the Respondent and which were in the nature of contingent reliefs. That it is a fundamental principle of law that the Court and parties are bound by the reliefs sought by parties and should not add or reframe it before awarding them. The Appellant submitted to the effect that an examination of the reliefs sought by the Respondent and the 2nd relief awarded him by the lower Court, easily shows that the said relief 2, as awarded was not claimed by the Respondent.
That the 3rd relief awarded the Respondent by the lower Court is a fall out from the reframing of the 3rd and 4th reliefs sought in his statement of claim. That worse still, the reliefs awarded as relief 2 and relief 3 by the lower Court are contingent in nature. In other words, that the reliefs would take effect in the future upon the happening of a nebulous event not within the control of the lower Court and after the lower Court had delivered its judgment and had signed off. It is the stance of the Appellant that the two reliefs are contingent reliefs which are unknown to our civil jurisprudence and which the lower Court has no jurisdiction to award. To bring home the point, the Appellant embarked on a treatise or discourse of ‘contingent’ and ‘contingent claim’ as contained in the Black’s Law Dictionary, 6th Edition and having ventured various opinions, the Appellant stated thus: –
From the foregoing, we respectfully submit that apart from the said order being contingent and importing the character of uncertainty, the order is not enforceable. It is not a final order in so far as it left something to be done at a future date. Something to be done not even by the trial Court but by the parties. The judgment as it were, did not finally settle or determine the rights of the parties. It is neither conclusive in respect of the interests of the Respondent nor those of the Appellant. The judgment requires something to complete it or make it effectual. The order is vain. It is speculative in that the judgment is subordinated to something that exists in the realm of speculation.
Citing many cases including some decided by this Court and quoting copiously from the cases, the Appellant urged the Court to hold that the lower Court has no power or jurisdiction to grant the Respondent reliefs not sought by him and some of which are contingent reliefs. That issue 1 should be resolved in favour of the Appellant.
Dwelling on his re-framed issue 1, the Respondent submitted to the effect that there can be only one answer to Appellant’s issue 1 as framed by him, and that this is that as a general rule, a trial Court lacks the power and/or jurisdiction to grant reliefs not sought in a suit. It is however the stance of the Respondent that in this particular case, the lower Court did not grant him, any relief which he (Respondent) did not claim or ask for. That the lower Court granted the reliefs he asked for, but only offered the Appellant a discretion and indulgence to take certain steps to avoid the full consequence of the judgment, otherwise the judgment would take its full effect in terms of the reliefs prayed for by him (Respondent). Submitting that every principle of law has exceptions, and that the principle that a Court of law may not grant a relief not sought, has its exception, the Respondent stated to the effect that it was in the light of the relief for a declaration of statutory right of occupancy the lower Court granted and the finding of a breach made by the said Court, that the orders now complained of by the Appellant were made.
The Respondent also submitted that the lower Court in fact granted all the reliefs he sought in the instant action including general damages, and that the lower Court merely granted to the Appellant a safe landing by way of relief against forfeiture upon fulfillment of the terms set by the said Court. This is more so as it is not in doubt that the lower Court had the power and the jurisdiction to grant relief against forfeiture as all High Courts Laws in all the various jurisdictions in Nigeria have provisions for relief against forfeiture. That it would be standing the law on its head to say that the lower Court having decided to grant the Appellant a relief against forfeiture, granted a relief to the Respondent by so doing. It is the stance of the Respondent that there is nothing ambiguous in reliefs 2 and 3 granted by the lower Court given what they are about.
The Respondent submitted that reliefs 2 and 3 granted by the lower Court are reliefs which the said Court qua Court of justice and law has power and/or jurisdiction to grant, within the con in which those reliefs were granted in this particular case. That all the case law precedents cited and relied on by the Appellant are distinguishable having regard to the facts and circumstances of this particular case. That they all deal with instances when the Court granted a relief which gave to a
The claimant more than he claimed or gave him something he did not claim, or which did not flow from and is not incidental to the reliefs claimed by a party, or which is not an offshoot of or which does not draw its existence from the main claims of the party, or which cannot qualify as a consequential relief that is traceable and derivable from the reliefs claimed by a party in order to give effect to the judgment of the Court. That neither of reliefs 2 and 3 in the judgment of the lower Court as framed can be regarded as fresh relief because both are in the nature of a limitation conditionally placed on the ultimate reliefs granted to the Respondent, and in the nature of an indulgence granted to the Appellant, if he chose to take advantage of that indulgence. The Respondent stated that his re-framed issue 1, is the proper issue for determination and ought to be determined against the Appellant by a decision that reliefs 2 and 3 granted by the lower Court are in order. That in any case even if this Court should be of a contrary view, that will not be of any benefit to the Appellant in view of the other reliefs 1 and 5 also granted to the Respondent.
The Appellant responded as it were to Respondent?s re-framed issue 1, in his reply brief of argument. Therein, he maintained his stance that reliefs 2 and 3 are reliefs that the lower Court has no jurisdiction to grant as they are not traceable and derivable from the reliefs claimed by either of the parties in order to give effect to the judgment of the Court. That a Court cannot grant a new, independent or fresh relief completely outside and not related directly to the claims made by a party in a case. That consequently, it is settled that before a Court can grant a consequential relief not claimed by the party, it must be established as follows:
a. The relief must flow from the main relief(s); be an off shoot and draws existence from the main reliefs.
b. The relief must not be new, independent or fresh relief.
The Appellant submitted that the Respondent failed in his efforts to justify the grant by the lower Court of relief 2 and relief 3. That the Respondent also failed to show from which of the reliefs sought by the Respondent, that relief 2 as granted by the lower Court draws strength and life. That relief 2 is totally unrelated to any relief on record sought by the Respondent. That it is new and independent of any relief on record. That the Respondent failed to justify the abandonment by the lower Court of its adjudicatory jurisdiction to the parties before it as shown in the said relief 2 it granted. It is also the stance of the Appellant that the Respondent did not deny that relief 3 granted by the lower Court is a contingent relief which has no place in our jurisprudence.
That the Respondent clearly confirmed the contingent nature and character of the said reliefs 2 and 3 when he shockingly claimed that the lower Court “granted the reliefs asked by the Respondent, but only offered the Appellant a discretion and indulgence to take certain steps to avoid the full consequence of the judgment … ” That no party sought for the purported “discretion” and “indulgence” of the lower Court in the grant of the said reliefs. That there is no relationship whatsoever between relief 3 as sought by the Respondent and relief 3 as granted by the lower Court. That the lower Court has no power and indeed jurisdiction to grant a “discretion” or “indulgence” not sought by any party and not rooted in law and upon which it framed reliefs not prayed for by the Respondent and proceeded to grant him the said reliefs.
It is the stance of the Appellant that the Respondent was deliberately silent as to which of the five reliefs he claimed that the lower Court granted, that represented the relief 2 as sought in his statement of claim. That the Respondent sought for five reliefs as re-produced by the lower Court in its judgment but granted four reliefs. That none of the four reliefs the lower Court granted related in any way, form or shape to relief 2 sought by the Respondent. That in so far as the Respondent did not appeal against the refusal of the lower Court to grant him his relief 2, he cannot urge anything to the contrary of what is obvious on the face of the record. That it is strange to continue to insist that the said relief 2 sought by the Respondent in his statement of claim was granted when the record does not justify that claim.
I am of the considered view that it is obvious from the submissions of the parties in the instant appeal which have been copiously highlighted above, that they are ad idem that a Court has no jurisdiction to grant parties a relief that has not been asked for or sought. The parties have cited many cases regarding this position of the law but as I consider how Tobi, JSC; conveyed the message in the case of ADETOUN OLADEJI (NIG) LTD V. NIGERIAN BREWERIES PLC (2007) LPELR 160 (SC), I will re-produce what his lordship said. It goes thus: –
It is good law that parties, the owners of their cases, are in the best position to know their claims or reliefs and the Courts cannot go outside the claims or reliefs in search of other claims or reliefs not before them. The role of a Court of law is to adjudicate on claims or reliefs placed before it by the parties. A claim or relief is made at the trial Court and this is in the pleadings. The statement of claim contains the claim or relief. If the defendant has a counter-claim, this is contained in the statement of defence. The trial Judge goes into the pleadings and decides one way or the other. An appellate Court has to go into the record and decide only on the record. An appellate Court has no jurisdiction to go outside the record to search for possible claim or relief. See also the case of EZEONWU V. ONYECHI (1996) LPELR 1212 (SC).
I have painstakingly perused the pleadings of the parties, and I have not seen where the Appellant sought any relief or indulgence from the lower Court in respect of any of the claims of the Respondent by way of counter-claim or in any other manner. This in my considered view puts paid to the Respondent?s position that the lower Court granted or made orders for the benefit of the Appellant. If the lower Court did this, in the action of the Respondent and in granting the Respondent his claims, this means that the lower Court has turned itself into a Father Xmas. The position of the law is settled and it is that no Court has the jurisdiction to go about dishing out reliefs not claimed in an action by the parties. See the case of UNIJOS V. IKEGWUOHA (2013) LPELR ? 20233 (SC). The lower Court in my considered view would appear not to appreciate the fact that it was sitting as a Court of law and not as a mediation authority and that parties having joined issues it was duty bound to adjudicate on the matter before it dispassionately in the best tradition of the judiciary.
I therefore find it not only shocking as the Appellant said in his reply brief of argument, but also worrisome that the Respondent could portray the lower Court as having extended a largesse to the Appellant. Suffice it to say, that inasmuch as reliefs 2 and 3 as granted by the lower Court are dependent on each other or co-joined and as the two reliefs are glaringly contingent in nature, I find much merit in the position of the Appellant in respect of their issue 1 and the said issue is hereby resolved in favour of the Appellant and against the Respondent. This is notwithstanding the position of the Respondent that the resolution of the issue in favour of the Appellant would not advance his fortune in the appeal. This is a matter that would be determined at the end of the consideration of all the issues.
APPELLANT’S ISSUE 2 ‘WHETHER THE TRIAL COURT HAS THE JURISDICTIONAL COMPETENCE IN DECIDING THE ISSUE OF THE VALIDITY OF EXHIBIT G AND TITLE OVER THE LAND COVERED BY EXHIBIT G IN THE ABSENCE OF THE ABIA STATE GOVERNMENT (THE GRANTOR OF EXHIBIT G) AND THE INCORPORATED TRUSTEES OF THE ROMAN CATHOLIC DIOCESE OF UMUAHIA (THE BENEFICIARY OF EXHIBIT G) AS PARTIES THERETO’
Dwelling on this issue, the Appellant made copious submissions regarding his stance that the lower Court lacked the jurisdictional competence in deciding on the validity of Exhibit G and title over the land covered by Exhibit G in the absence of the Abia State Government (the grantor of Exhibit G) and the Incorporated Trustees of the Roman Catholic Diocese of Umuahia (the beneficiary of Exhibit G) as parties to the action. The Appellant in driving home his stance, made references to paragraphs of the pleadings of the parties which went to show that the issue in question could not be effectually resolved in the absence of the said parties. The Appellant referred to paragraph 29 of the Respondent’s deposition on page 166 of the record where he stated thus: –
‘I am entitled to all the reliefs sought in my Statement of Claim and will in addition, urge the Court to nullify the Defendant?s purported certificate of occupancy registered as No.8 in volume 36 of the lands registry at Umuahia on grounds of irregularity, misrepresentation and invalidity.’
It is the stance of the Appellant that the above relief was not sought in the statement of claim. This is despite the fact that the Respondent also tendered the certificate of occupancy he branded “a fake document” as Exhibit G. That on the face of Exhibit G, the holder of the right of occupancy shown thereof is the Incorporated Trustees of Roman Catholic Diocese of Umuahia. Having stated what are incontrovertible from the pleadings and evidence on record, the Appellant raised the question as to whether the lower Court could have completely and competently determined the issue of the entitlement of statutory right of occupancy over the land the subject of Exhibit A and Exhibit G in the absence of the Incorporated Trustees of the Roman Catholic of Diocese of Umuahia and the Abia State Government as parties, and answered the question that the said ‘persons’ are necessary parties and ought to have been joined as parties in the lower Court. Cases considered relevant were cited. The Appellant also made the point that the Respondent having sought two declaratory reliefs in his suit, he ought to have joined as parties in the action all those likely to be affected by the reliefs sought.
Having also brought to the fore other infractions which the Appellant believed the lower Court to have committed in dealing with the issue of certificate of occupancy, he ended up by submitting that the lower Court did not have the jurisdictional competence to take a decision that impacted gravely on the rights of parties not before it. This Court was urged to resolve issue 2 in favour of the Appellant.
Dwelling on this issue, it is the stance of the Respondent that there are so many non sequitur assumptions made by the Appellant in the framing of this issue. That every one of the assumptions is erroneous and not a proper issue arising from the pleadings or evidence. The Respondent claimed as follows: –
(i) That his suit from the pleadings and evidence, is based on contract between the Respondent and the Appellant. That contract is Exhibit A, a Power of Attorney made between the Respondent and the Appellant. No other party other than the Respondent and the Appellant can be proper parties to a dispute arising from the contract. That neither the Abia State Government nor Incorporated Trustees of the Roman Catholic Diocese of Umuahia is a party to Exhibit A and neither of them can be a party to a dispute arising from Exhibit A. Only parties to a contract can enforce the contract.
(ii) The Appellant did not testify at the lower Court. He called two witnesses both of whom gave evidence that immediately after the grant in Exhibit A, the Appellant transferred the property to the church. No documentary proof of any transfer was adduced by the witnesses. The learned trial Judge so found. Both witnesses also admitted that there is no record of any acquisition of the property in dispute by the Abia State Government. The submissions by the Appellant in aide (sic) of his issue 2 is therefore with respect non sequitur. There is therefore no basis to suggest that the Respondent suit should not stand unless Abia State Government or the Incorporated Trustees of the Roman Catholic Diocese of Umuahia were made parties.
(iii) There is no evidence that “Incorporated Trustees of the Roman Catholic Diocese of Umuahia”, is a legal entity, a juristic person capable of being sued. The Court cannot presume such a fact. It is not a fact which the Court of Appeal can take judicial notice of. Juristic capacity of any entity not being a natural person must be established by pleading and evidence. It is the stance of the Respondent that since the issue of non-joinder of the Incorporated Trustees of the Roman Catholic Diocese of Umuahia was not taken up at the lower Court, that Court had no opportunity to receive evidence and argument so as to decide the issue, including the issue whether the Roman Catholic Diocese of Umuahia is a juristic entity capable of being sued.
It is also the stance of the Respondent that the submission of the Appellant that the Respondent ought to have joined Abia State Government who purportedly issued Exhibit G and Incorporated Trustees of the Roman Catholic Diocese of Umuahia, is fatally flawed. This is because the Respondent did not base his case on Exhibit G. That it is the Appellant that is setting up Exhibit G and relying on it, to show that there was a valid transfer of the property in dispute to the entity called Incorporated Trustees of the Roman Catholic Diocese of Umuahia. That none of the authorities cited by the Appellant in support of this line of thought can avail the Appellant because such a line of thought had, at least once before, been floated at the Supreme Court’s altitude and was shot down decisively.
This Court was urged to hold that in the particular circumstances of this case, the Respondent carried no burden to join the Abia State Government or the Incorporated Trustees of the Roman Catholic Diocese of Umuahia as parties to this suit and that the lower Court had the jurisdictional competence to entertain the Respondent’s suit and to decide whether Exhibit G procured by, and relied on by the Appellant, is a valid encumbrance on the Respondent’s right derived from Exhibit A.
In his reply brief of argument, the Appellant responded to the submissions of the Respondent in respect of the non-joinder of the Abia State Government and the Incorporated Trustees of the Roman Catholic Diocese. His stance on the issue remained the same in the said reply.
For the purpose of resolving this issue, I have painstakingly perused the pleadings of the parties. The writ of summons and statement of claim are the first set of processes filed by the party initiating an action commenced by the filing of pleadings. One of the settled aims or purposes of a statement of claim is to convey the claim and the accompanying case of the plaintiff concisely to the defendant so that he can file a statement of defence, if need be. See CAPPA & D’ALBERTO LTD V. AKINTILO (2003) LPELR 829 (SC). It is the statement of claim and statement of defence and where one is filed, a reply to statement of defence, that circumscribe the issues in respect of which parties agree as well as those in respect of which they are not in agreement. Issues in controversy are joined in or on the pleadings and not on evidence adduced. Evidence adduced are to be used in resolving issue(s) in controversy so long as the said evidence is in line with facts pleaded in the pleadings. See the case of BAMGBOYE V. UNILORIN (1999) LPELR 737 (SC). I am of the considered view therefore that it is at the conception of a case and against the backdrop of the relevant facts which a plaintiff wishes the Court to resolve that informs a plaintiff of the proper parties to his action. In my respectful and considered view, this position would appear to have been appropriately captured in the case of AYORINDE V. ONI (2000) LPELR ? 684 (SC) wherein the Supreme Court per Karibi-Whyte said thus:
‘It is an elementary consideration in bringing actions that a writ of summons must not only state the name of a Plaintiff with legal capacity to bring the action, it must also contain the name of a defendant, with legal capacity to defend the action, and the claim against the defendant. In other words, the writ of summons shall state briefly and clearly the parties to the action, the subject matter of the claim and relief sought. There must be a dispute between the Plaintiff and the Defendant.
At the commencement of trial a properly constituted action must contain a plaintiff, a defendant and claim against the defendant. In Alhaji Aromire v. Awoyemi (1972) 1 All NLR (Pt.1) 101, it was held that it was improper to join as co-defendants to an action, persons against whom the plaintiff has no cause of action and against whom he has not made any claim.
I have said it hereinbefore that I have painstakingly perused the pleadings of the parties. It was the Respondent that first introduced the Government of Abia State into his case; ditto
the ‘Registered Trustees of the Roman Catholic Church’. He did this in paragraphs 12 and 14 of the statement of claim. The averments in the said paragraphs read thus: –
12. The land in dispute was never acquired by the State Government or Federal Government and no compensation was paid in respect thereof.
14. ‘Sometime in 1991 the Defendant sent delegations headed by one Rev. Father Anthony Ogbonna from Olokoro to the Plaintiff to sell the land in dispute to the Registered Trustees of the Roman Catholic Church to enable them establish a primary school and skills acquisition center.?
In his statement of defence, the Appellant responded directly or expressly to paragraph 12 of the statement of claim and disclosed therein that the land in dispute amongst others was acquired by the Abia State Government and that a certificate of occupancy registered as No. 8 at page 8 in volume 36 in the Lands Registry Umuahia, had been issued to the Incorporated Trustees of the Roman Catholic Diocese of Umuahia to whom he (Appellant) transferred the land in dispute. The Respondent filed a reply to the statement of defence. Therein, amongst others, the Respondent averred to the effect that the certificate of occupancy was fraudulently obtained; that the Incorporated Trustees of the Roman Catholic Diocese of Umuahia (if it exists in law) has never been in legal possession of the land in dispute; that Abia State Government never acquired the land in dispute and that he would put the Appellant to the strictest proof of the alleged acquisition. In concluding the reply, the Respondent very much aware of his reliefs before the lower Court as contained in his statement of claim stated thus: –
‘The plaintiff is entitled to all the reliefs sought in the statement of claim and will in addition, urge the Court to nullify the Defendant?s purported certificate of occupancy registered as No. 8 at page 8 in volume 36 of the Lands Registry at Umuahia on the grounds of fraud, misrepresentation and invalidity.’
It is in my considered view therefore indisputable that the Respondent was the party who for reasons best known to him introduced the issue of acquisition of the land in dispute by the Abia State Government into his own case. He is also the one that introduced the fact of the transfer of the land in dispute to another entity by the Appellant and indeed stated clearly that he would urge the lower Court to nullify the Defendant?s purported certificate of occupancy registered as No. 8 at page 8 in volume 36 of the Lands Registry at Umuahia on the grounds of fraud, misrepresentation and invalidity.
The Respondent relied on the case of OSHO V. FOREIGN FINANCE CORPORATION (1991) LPELR ? 2801 (SC) as having shot down the need to join the Government of Abia State despite the fact that the Respondent himself is the party that introduced the said Government into his case. I have read the Osho?s case (supra) thoroughly and I do not believe it set down the general principle that the acquiring authority under the Land Use Act need never be made a party in a case in which the act of the said acquiring authority is being challenged. It would appear that the Respondent having conceived that the Abia State Government committed some infraction regarding his cause of action and particularly having had the benefit of the statement of defence of the Appellant should have seen the good sense in joining the Government of Abia State. Even if the non-joinder of the Government of Abia State can be said to be one which the Court can overlook as the acquisition said to have been undertaken by the said Government in my considered view did not directly come into resolution in the instant case, I am of the considered view that the same cannot be said of the non-joinder of the Incorporated Trustees of the Roman Catholic Diocese of Umuahia, being the body which the Respondent had knowledge of as having been vested with title in respect of the land in dispute by virtue of the Certificate of Occupancy dated 31/12/1991 and registered as No. 8 at page 8 in Volume 36 of the Lands Registry Umuahia. This is so notwithstanding the fact that the holder of the said certificate of occupancy was at times referred to by the Respondent as the Registered Trustees of Roman Catholic Church. The Respondent cannot deny the fact of the proper name of the holder of the certificate of occupancy in question having regard to the Claimant?s List of Documents on pages 102-103 of the record and in which the certificate of occupancy is No. 7 therein. See also pages 128-131 of the record.
Without joining the said holder of the certificate of occupancy in respect of the land in dispute as a party, the Respondent who is seeking a declaration of entitlement to the land in dispute as covered by the said certificate of occupancy would appear to want to create a situation where there would be in existence two certificates of occupancy in respect of the same land. And it would appear that it is in the knowledge that this would create a situation of incongruity or absurdity that the lower Court having set out the fact that the ‘Incorporated Trustees of the Roman Catholic Diocese of Umuahia was granted a certificate of occupancy over the land in dispute on 31st December, 1991’ as one of the facts which are not in issue in the case, set out to pronounce on the validity of the said certificate of occupancy and invalidated the same in the absence of the holder.
I simply do not see how the Respondent can be said to be correct in his stance that the holder of the certificate of occupancy which the lower Court invalidated in the Respondent’s suit was not necessary as a party in the case. How the lower Court itself can be said to have been correct in invalidating the certificate of occupancy of an entity that was not before it equally baffles me. Suffice, it to say that the Incorporated Trustees of the Roman Catholic Diocese of Umuahia needed to have been made a party to the Respondent’s case irrespective of the Respondent’s cause of action particularly as the Respondent in his reply to the statement of defence had disclosed that he would urge the lower Court to nullify the Defendant’s purported certificate of occupancy while he ended up placing before the lower Court a certificate of occupancy in the name of the Incorporated Trustees of the Roman Catholic Diocese of Umuahia. I must however note that the authorities are clear that the non-joinder of a necessary party is not a jurisdictional issue that affects the competence of the Court to adjudicate on a matter. It is an irregularity which may lead to unfairness which may result in setting aside the decision on appeal. See the case of BELLO V. INEC (2010) LPELR 767 (SC) and the other cases applied therein.
Flowing from all that has been said before now, is that Appellant’s issue 2 is accordingly resolved in his favour given the fact of the non-joinder of the Incorporated Trustees of the Roman Catholic Diocese of Umuahia which I have found ought to have been joined as a party in the case. The effect of this non-joinder would be considered later in the judgment.
APPELLANT’S ISSUE 3 “WHETHER THE TRIAL COURT AFTER HOLDING THAT “TO GRANT THE RELIEFS AS SOUGHT WILL BE INEQUITABLE” AND HAVING REFUSED TO GRANT THE RESPONDENT HIS RELIEF 2 WAS NOT WRONG IN LAW TO HAVE GRANTED ANY RELIEF AT ALL TO THE RESPONDENT WHETHER CLAIMED, UNCLAIMED OR AS REFRAMED BY THE TRIAL COURT?
Dwelling on this issue, the Appellant predicated his arguments on two principal grounds, namely, the propriety or lawfulness of the lower Court awarding a declaratory relief to the Respondent after rightly finding that it would be inequitable to do so; and the second, whether the lower Court having not granted relief 2 which the Respondent sought in his suit, it could in law have rightly granted any other relief to the Respondent, the said relief 2 being the principal relief in the suit. The Appellant stated that the puzzle in the case is why the lower Court granted a declaratory relief or any relief at all to the Respondent after finding that it would be inequitable to do so? Doing this in the view of the Appellant was a summersault and the Appellant asked what could have led to this. To bring out this point clearly, the Appellant referred to the reasoning and finding of the lower Court on page 231 of the record and submitted that the said Court was wrong to have proceeded to grant claimed and unclaimed reliefs to the Respondent. It is the stance of the Appellant that whether in law or equity, the reliefs granted by the lower Court lacked justification.
Another puzzle raised by the Appellant is why the lower Court granted reliefs as claimed and as reframed to the Respondent after declining to grant the principal relief. The Appellant submitted that where in an action, a party claims several reliefs, the determination of which of them is the principal relief is important. That the principal relief is the main, chief, leading relief or the highest of the reliefs in rank, importance or degree. That where a principal relief is not granted, no other relief is grantable as all the other reliefs are considered to be consequential reliefs and draw life and sustenance from the principal relief.
That whatever position the principal relief occupies in the list of reliefs, whether as relief 1, 2 or 3, is not relevant as long as it is identified as the principal relief, its pre-eminence over other reliefs is assured. It is the stance of the Appellant that the last three reliefs claimed by the Respondent are clearly consequential and do not enjoy independent existence from reliefs 1 and 2. That as between reliefs 1 and 2, relief 2 is undoubtedly the principal relief because unless it is granted, relief 1 cannot be granted. This is because it is clear from the said relief 2 that unless it is granted, (that is to say that except a determination is made that the agreement entered between the Appellant and the Respondent as reflected in Exhibit A has been determined by “reason of breaches of the term” thereof by the Appellant), no other relief could be granted. That in other words, the grant of other reliefs are dependent on the resolution of relief 2 in favour of the Respondent. The Appellant submitted that the resolution of a principal relief however does not automatically mean that every other relief must be granted as other factors could come to play. But that once the principal relief collapses, it is inevitable that other reliefs predicated on it will also collapse.
Dwelling on the issue as to whether the lower Court granted the Respondent his relief 2, the Appellant submitted that it was obvious that the said Court did not. That what the lower Court granted as relief 2 is as follows. “The Defendant is ordered to negotiate/liaise with the claimant within thirty days of this judgment to resolve issues pertaining to the grant.” It is the stance of the Appellant that this is a vague, inchoate and nebulous relief that has no relationship or bearing to relief 2 sought in the suit by the Respondent. This is because while relief 2 in the suit asserts that the agreement between the Appellant and Respondent had been determined consequent upon the alleged breaches of the terms thereof, relief 2 as granted ordered the Appellant to negotiate/liaise with the Respondent to resolve issues pertaining to the grant. That the issues were neither articulated nor stated by the lower Court. That the lower Court abdicated its adjudicatory powers and surrendered them to the two parties before the Court. That it ordered the Appellant to move into an uncharted mine field as it were ?to negotiate/liaise” with the Respondent and “resolve issues” relating to the “grant”.
The Appellant submitted that the lower Court having not granted relief 2 as sought in the suit by the Respondent, in law is without powers or competence to grant any other relief sought by the Respondent. The Court was urged to resolve issue 3 in favour of the Appellant.
Dwelling on this issue, the Respondent submitted that the issue is based on wrong premises. The premise being that the lower Court refused to grant the Respondent his relief two. It is the stance of the Respondent that the lower Court actually found in favour of his issue 2. That the Appellant has found it convenient to lift the expression “to grant the reliefs as sought will be inequitable” out of the con in which it appeared in the judgment of the lower Court, to make it the basis of his issue 3. That in doing this, the Appellant did not even represent the lower Court properly and that the actual words of said Court can only be properly understood in the con of its judgment. It is the stance of the Respondent that the expression “it is my view therefore that to grant the relief as sought will be inequitable” was made by the lower Court when considering the reliefs for forfeiture and injunction sought by the Respondent. That the expression was merely the opinion of the lower Court based on its consideration of the “facts and circumstances of this case”. That the expression was the observation or remark by the lower Court on the facts of the case before it and cannot be part of the decision which followed thereafter. That the expression cannot therefore be used and relied on by the Appellant to challenge the validity of the ultimate decision of the lower Court. The Respondent submitted that Appellant?s issue 3 though ingeniously framed and argued, is upon close examination, disingenuous and nothing more than a display of forensic sophistry. That the lower Court had separately considered the Respondent’s claim for declaration of statutory right of occupancy and damages, before he went on to review the claims for forfeiture and injunction in the con of which he gave the opinion now latched onto by the Appellant.
It is the stance of the Appellant that it is pernicious to suggest, as the Appellant suggests in his Issue 3, that the use of the words “to grant the reliefs as sought will be inequitable” should warrant that the Respondent should not have been granted any relief at all, whether claimed, unclaimed or as reframed by the trial Court. That the Appellant even failed to appreciate that the expression “as sought” simply means ?without qualification” hence the lower Court went on to qualify the Respondent’s relief for forfeiture and injunction by handing a safe landing to the Appellant which should the Appellant fail to take advantage of, the full rigors of the law and the judgment would follow. This Court was urged to resolve issue 3 against the Appellant and hold that the lower Court was not wrong in law to have granted to the Respondent his claim for forfeiture and injunction with a safe landing for the Appellant, as reframed by the Court.
In his reply brief of argument, the Appellant responded to his issue 3 as argued by the Respondent. He reiterated his position as stated in his brief of argument and said to the effect that the Respondent engaged in a macabre dance and interpreted the finding in a misconceived, misplaced and misleading manner. It is his stance that if the reliefs granted to the Respondent, are to be subjected to interpretation, then on that score alone, it means that this Court ought to set them aside without more. This is because any relief granted by a Court should be clear, not vague and not subject to any speculation or interpretation in order to find out what the relief meant or sought to convey. That a Court is not expected to make an order which is uncertain or which is subject to different interpretation as to whether it meets the relief claimed. Nor has the Court a duty to engage in any semantics in the order it makes in an attempt to explain what the plaintiff intended to ask for and accordingly grant it. That the guiding rule is that the Court must not grant a party what it has not asked for in clear terms and sufficiently proved.
In my considered view there is no running away from the position of the Appellant that the second relief as contained in the reliefs set out in the statement of claim, is the principal relief upon which the fate of all the other reliefs claimed by the Respondent are predicated. The Appellant in my considered view sufficiently demonstrated this in his brief of argument and I do not think the Respondent argued to the contrary given his brief of argument which I read painstakingly and the submissions therein that have been highlighted above. There is no doubt having regard to the reliefs granted by the lower Court as set out on pages 231 and 232 of the record, that the said Court never granted the reliefs sought by the Respondent by reference (i.e. by saying that the reliefs claimed in the statement of claim by the Respondent are granted in terms or words to the same effect).
The lower Court as it has been demonstrated by the Appellant chose to re-couch within its mind and to grant the Respondent some of the reliefs claimed and relief 2 as set out in the statement of claim in a manner that majorly deviated vis-a-vis the reliefs claimed (and relief 2 in particular) which the Court did not show itself as having granted. It is not in doubt that the judgment of a Court should be self-explanatory and clear and not ambivalent. A judgment of a Court need not be subjected to complicated interpretation before what the Court has pronounced on can be appreciated or understood. The lower Court having regard to page 62 of the record would appear to have exposed its thought process that the instant case was one that would have been better resolved by ADR and it would appear that it is against this backdrop that the said Court approached adjudication in the case.
Hence the ambivalent manner in which it approached the resolution of the case and dished out reliefs in the case that it thought would be found satisfactory by both parties. It would appear that the lower Court does not appreciate that when parties are daggers drawn, it is not possible for the Court to maintain a middle course that the parties will find satisfactory. The lower Court should have decided the case on the basis of the facts and applied the law fairly and firmly. The lower Court clearly did not take this course hence it clearly did not grant the Respondent any relief knocking off the agreement which the Respondent sought for its determination in order to be entitled to any of the other reliefs, including the claim for damages allegedly flowing from the breaches in respect of the agreement in question. I do not think it would serve any useful purpose saying more except to say that having resolved Appellant’s issue 1 in its favour, the issue now under consideration cannot but be resolved otherwise.
Flowing from all that has been said is that Appellant?s issue 3 is resolved in his favour.
APPELLANT’S ISSUE 4 “WHETHER THE TRIAL COURT WAS NOT IN ERROR WHEN IT HELD THAT THE RESPONDENT WAS ENTITLED TO A STATUTORY RIGHT OF OCCUPANCY OVER THE DISPUTED LAND”
Dwelling on this issue the Appellant submitted that a resolution of any of issues 1-3, heretofore considered in his favour will lead to the success of the appeal hereof. Without prejudice to this stance, the Appellant proceeded to dwell on some other issues upon which the judgment of the lower Court is liable to be impeached.
Having referred to the issues as formulated by the parties at pre-trial session and the issues as the Court showed itself as resolving and the reason for doing so, the Appellant submitted that if the lower Court had appreciated the paramountcy of issue 1 of the issues arrived at, at the pre-trial session, and unequivocally resolved it as it was mandatorily bound to do, it could not have surrendered its jurisdiction and adjudicatory authority to the parties before it. That the lower Court was bound by the issues adopted during the pre-trial session and lacks the jurisdictional competence not to resolve all three issues adopted at the said pre-trial session in its judgment. That the grant of any relief or all the reliefs sought by the Respondent is squarely dependent on a positive resolution of issues 1 and 2 as adopted during the pre-trial session.
That the failure of the lower Court to adhere to the issues adopted during the pre-trial session and clearly resolve them led to a miscarriage of justice. Stating that the Respondent sought 2 declaratory reliefs and 3 consequential orders in his suit, the Appellant said that the law placed a heavy burden on the Respondent and that the Respondent did not discharge the burden having regard to the evidence placed before the lower Court. It is the stance of the Appellant that the Respondent’s case in the lower Court is unique in its inconsistencies and contradictions. That the Respondent would say something early in his cross-examination and contradict same later while still being cross-examined; that he would tender a document and then contradict the contents in his testimony. The Appellant highlighted some instances of contradictions. The Appellant submitted that with the avalanche of contradictory evidence led by the Respondent, the lower Court was in deep error to have accepted the evidence of the said Respondent and to have awarded him the reliefs he claimed, the ones he did not claim, and the ones as reframed by the said Court.
It is the stance of the Appellant that the lower Court erroneously held on page 229 of the record thus: –
“The grant by the Claimant in my view cannot be said to have been an outright or absolute grant. Title to the land therefore remains in the Claimant. I hold that title in the land has not passed to either the Defendant or the Registered Trustees of the Roman Catholic Diocese of Umuahia.”
This is because under the law and Exhibit A, the Appellant can transfer title to a third party or even to himself pursuant to Clause 5 page 4 of Exhibit A at page 297 of the record. That the party in Exhibit G and the party to whom the Appellant transferred the land in dispute, is the Incorporated Trustees of The Roman Catholic Diocese of Umuahia and not what is stated above. That the relevant authority being the Abia State Government confirmed the transfer by the issuance of Exhibit G. The Appellant also queried the finding by the lower Court that a power of attorney is not a document of title as it merely gives the donee the authority to stand in the position of the donor and do a thing she could lawfully do. It is the stance of the Appellant that while the issuance of a Power of Attorney does not by itself transfer the title or rights over the land to the donee, it is also the law that it does confer title after the donee may have utilized the Power of Attorney to convey the land to any person including himself and that will be alienation.
That the grant of Respondent’s relief 1 and the contingent reliefs 2 and 3 meant that the lower Court decreed rights of forfeiture and re-entry in favour of the Respondent and that no such rights were provided in Exhibit A. Having observed that the lower Court agreed that Exhibit A has no provision for re-entry, the Appellant submitted that the said Court however countermanded that finding and granted a relief in the nature of re-entry. It is the stance of the Appellant that there is no legal justification to grant the Respondent reliefs in the nature of forfeiture and re-entry into the land in dispute notwithstanding that they are contingent reliefs. That in the same vein, the Respondent is not entitled to the grant of a declaration to statutory right of occupancy. This Court was urged to resolve issue 4 in favour of the Appellant.
Dwelling on Appellant’s issue 4, as argued, the Respondent said the same is an obfuscatory masterpiece. That all manner of new arguments and issues not canvassed at the lower Court have been clustered into issue 4 without leave of Court. The Respondent submitted to the effect that an appeal is regarded as a continuation of the original suit rather than an inception of a new action. That because of this, parties are normally confined to their cases as pleaded in the Court of first instance and not allowed to make a new and different case on appeal. That they are not allowed to raise in an appeal new issues without the express leave of Court or to proffer new evidence without such leave.
That the only defence offered by the Appellant in his final address at the lower Court is that the Respondent has no remedy even though the Appellant admitted being in breach of Exhibit A because Exhibit A did not provide for any remedy in the event of its breach. That the Appellant has now in his issue 4 gone on a rampage as if he were rearguing his case completely before the Court below based on new issues which the lower Court had no opportunity to deal with or resolve and he is doing this without leave of this Court. Despite his observations, the Respondent, however submitted that the Appellant’s issue 4 ought to be determined against him. Amongst the reasons he gave are to the effect that it is false to suggest, as the Appellant did, that the lower Court failed to consider the issues adopted by the parties at the pre-trial session. That the first issue was whether the gift made to the Appellant by the Respondent had failed as a result of the Appellant’s breach of the conditions of the gift as contained in the Power of Attorney dated 16th December, 1991. That it is glaring that the lower Court considered this issue and came to the conclusions that the Appellant did not abide by the clear conditions of Exhibit A as it relates to the award of scholarship and this resulted in a breach.
That the lower Court also considered the second issue adopted at the pre-trial session as to whether the breach determined the contract between the parties and amounted to a ground for forfeiture of the donation made by the Respondent to the Appellant. That the conclusion of the said Court on the issue that an irrevocable power of attorney can be revoked in some situations. That the Court will look at the relationship and transaction between the parties to determine if the power was intended to be irrevocable and that in the instant case the parties agreed the grant was made subject to or on the condition that scholarships would be awarded from the 1992/93 school year.
That the lower Court also considered the third issue adopted by the parties at the pre-trial session which is whether the Respondent is entitled to the reliefs contained in the statement of claim and came to the conclusion that as Exhibit A shows that the intention of the claimant was that the land be given on the condition that the Appellant awards scholarship in the manner contained in Exhibit A, the grant by the claimant cannot be said to have been an outright or absolute grant. That title to the land therefore remains in the claimant and that title in the land had not passed to either the Defendant or the Registered Trustees of the Roman Catholic Diocese of Umuahia. That the claimant is the one entitled to a Statutory Right of Occupancy.
Dwelling on the entitlement of the Respondent to the judgment entered in his favour, it is the stance of the Respondent that the lower Court rightly entered judgment in the manner it did as the Appellant does not deny that he acted in total breach of the power of attorney. Exhibit A.
There is no doubt that the Appellant in arguing his ground 4 dovetailed into some other issues he had argued before in respect of some of his grounds of appeal. Indeed, he did this, in arguing all the issues he formulated, in that in arguing any given issue, he implanted or subsumed into the submissions, matters which were to be argued under some other issues that were to be argued later, or repeated arguments on issues already argued under some previous issues. Be that as it may.
The Appellant in arguing this issue at the onset submitted that the resolution of any of issues 1-3 in his favour should lead to the success of the appeal. While I do not share this view, I am however in no doubt that having resolved the three issues considered heretofore in favour of the Appellant the appeal cannot but otherwise succeed. This is particularly so as the resolution of issue two in favour of the Appellant has in my considered view shown that the Appellant has been caused a miscarriage of justice given the irregularity in the lower Court pronouncing or expressing any view in respect of the certificate of occupancy held by the Incorporated Trustees of the Roman Catholic Diocese of Umuahia in the absence of the said party as a party in the case.
Aside from this, the success of issue 3, must similarly portend the success of the instant appeal because as the lower Court did not grant the Respondent relief 2 as contained in the statement of claim, the said Court had no basis for granting any other relief sought by him (Respondent) in his case. And I cannot but add at this stage that the lower Court would have been going contrary to the evidence adduced before it by the Respondent if it had granted the said relief 2. This is against the backdrop of what is contained in the record to wit: ?I have also considered the evidence of the claimant to the effect that he did not bring this suit to repudiate the agreement, but due to the defendants (sic) failure to comply with its terms. No wonder that the lower Court having thrown up the inequitableness of granting the reliefs as sought by the Respondent and in the face of the obvious abandonment of his relief 2 by the Respondent, proceeded to do what it considered to be equitable by granting relief 2 in its judgment (which the Respondent obviously never asked for) and relief 3 (which it should not have granted in the first place given the declaration of the Respondent that he did not bring the action to repudiate the agreement) in a manner that made it very inchoate.
May, I also observe that the stance of the lower Court concerning what a power of attorney cannot do (i.e. not transfer title) majorly also contributed to the series of error it entered into in its judgment as eloquently demonstrated by the Appellant. The stance of the Appellant that the lower Court was wrong in respect of the position it took is in my considered view fortified by the case of IBRAHIM V. OBAJE (2017) LPELR ? 43749 (SC) wherein it was held to the effect that a power of attorney can pass title and that it passes title where the con so admits. The Respondent in the instant case having stated that, in pursuance of and in consideration of the above conditions as agreed upon by the parties, I the donor .. hereby donate to ‘absolutely as well as appoint him by (sic) true and lawful attorney’ in my considered view clearly passed his title to the donee of the power of attorney.
Flowing from all that has been said before now is that issue 4 must also be and is hereby resolved in favour of the Appellant.
In the final analysis, the appeal succeeds and is allowed given the success of all the issues formulated for its determination by the Appellant in favour of the said Appellant. Accordingly, the judgment of the lower Court appealed against is set aside and the claims/case of the Respondent dismissed.
Costs in the sum of N25.000.00 is awarded in favour of the Appellant and against the Respondent.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
RITA NOSAKHARE PEMU, J.C.A.: I had read in draft, the lead judgment just delivered by my Brother AYOBODE OLUJIMI LOKULO-SODIPE JCA.
I agree with his reasoning and conclusion.
I also allow the appeal.
The judgment Of the Court below is hereby set aside.
I abide by the consequential order made as to costs.
Appearances:
Dr. Livy Uzoukwu, SAN with him, C.K. Uba For Appellant(s)
S.C. Ifeanyi For Respondent(s)
