OKWUDILI OKONTA & ANOR v. CHIEF (BARRISTER) IKENNA EGBUNA
(2019)LCN/12838(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/E/123/2014
RATIO
ACTION: A CLAIM FOR INJUNCTION
“A claim for injunction is not necessarily dependent on declaration of title. This is because the law is settled that a claim for injunction does not automatically fail because a claim for declaration for title fails. SeeOJIAKO & ANOR V. EWURU & ORS (1995) LPELR-2373 (SC) AT 27 (A-B). In ADEWOLE V. DADA (2003) LPELR-162 (SC) AT 8-9 (C-A), the Supreme Court per KUTIGI, J.S.C held that: ‘It is settled law that a claim for trespass as in this case, is not dependent on the claim for a declaration of title because the issues to be decided on the claim for trespass are whether the plaintiff has established his actual possession of the land and the defendant trespassed on it, as was done in this case. These are separate and independent issues from that in a claim for a declaration of title (see for example OLUWI V. ENIOLA (1967) NMLR 339.'” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
APPEAL: RIGHT TO APPEAL
“The right of appeal from a decision of High Court of a State to the Court of Appeal being a constitutional right cannot be lightly denied or fettered. See OBIKOYA V. WEMA BANK LTD (1989) LPELR-2176 (SC) AT 38 (C-D)” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
1. OKWUDILI OKONTA
2. OKILI AGWUOBI
(For themselves and on behalf of Umuya-Nwanne sub-family of Umueze in Umuohonolisa in Ogbetiti Village Odekpe) Appellant(s)
AND
CHIEF (BARRISTER) IKENNA EGBUNA Respondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment):
The respondent herein instituted suit no. O/135/2010 in the High Court of Anambra State and claimed the following reliefs against the appellants:
(a) A declaration that the plaintiff is a person entitled to a certificate of occupancy for the piece and parcel of land (One acre) which is shown in the dispute plan No. E. E. O/AND 002. 2010 made by a registered surveyor E.E Okafor filed along with summons in this suit.
(b) An order of Court ordering the defendants to refund to the plaintiff the sum of N6, 400,000.00 (Six Million, Four Hundred Thousand Naira Only) being the present value of the 8 plots of land paid by the plaintiff to the defendants at the rate of N800,000.00 (Eight Hundred Thousand Naira Only) per plot.
(c) An order of perpetual injunction restraining the defendants, their servants, agents and privies from ever coming into the 8 plots or one acre of land they sold to the plaintiff which is more particularly shown in dispute plan No. E.E O/AND 002/2010.
Upon service of the Court processes on the appellants herein, they filed a notice of preliminary objection to the hearing of the suit and prayed the Court to dismiss the suit on the grounds that:
(a) It has disclosed no reasonable cause of action.
(b) Relief No. 30(b) is also statute-barred for having been brought in contravention of Sections 12(c) and 20(1) (a), Actions Law. Cap 3 Laws of Anambra State, 1991.
(c) It is an abuse of the process of the Court.
The Court below in its ruling delivered by N.C. Umeadi J. on 12/11/2010 dismissed the preliminary objection for lacking in merit. Being dissatisfied, the appellants filed an appeal no. CA/E/04/2011 against that ruling. The Court of Appeal in its unanimous judgment delivered on 8/5/2013 held that:
It is clear from the writ of summons and statement of claim that the suit at the trial Court was filed over 6 years after the respondent demanded for the refund and the appellant failed to do so. Clearly the action was statute barred. Such a claim is not maintainable after the limitation period of 6 years has expired.
In the light of my holding that the statement of claim disclosed a cause of action for the claim of specific performance and an injunction, I am not inclined to hold that the action is an abuse of Court process. I therefore resolve issue No 3 in favour of the respondent.
On the whole this appeal partly succeeds. I hold that the statement of claim does not disclose a cause for the claim in paragraph 30 (a) for a declaration that the plaintiff is entitled to a certificate of occupancy of the suit land and that the claim in paragraph 30 (b) for an order that the defendants refund to the plaintiff the sum N6,400,000, the present value of 8 plots of land is statute barred. The claims for these reliefs are hereby dismissed. The statement of claim discloses a cause of action for the remedy of perpetual injunction to restrain the defendants from entering the suit land. It is maintainable.
After the judgment of the Court of Appeal, the appellants filed a motion on notice on 18/6 2013 at the Court below wherein they prayed the Court for an order dismissing the suit for want of jurisdiction on the grounds that:
“1. The action as presently constituted is irregular and incompetent for want of a principal claim.
2. Injunction being an ancillary and a subsidiary claim cannot stand on its own and found an action.
3. It is not maintainable in law and is thereby an abuse of the process of the Court.
The appellant filed a notice of preliminary objection to the above motion on 12/7/2013. The grounds of the objection are:
a. The Court of Appeal Enugu Division in Appeal No. CA/E/04/2011 annexed to this preliminary objection as exhibit I at pages 13 and 14 of the lead judgment made two specific findings to wit:
i. In the light of my holding that the statement of claim disclosed a cause of action for the claim of specific performance and an injunction, I am not inclined to hold that the action is an abuse of Court process.
I therefore resolve issue No. 3 in favour of the respondent.
ii. The statement of claim disclose a cause of action for the remedy of perpetual injunction to restrain the defendants from entering the suit land. It is maintainable. I make no order as to cost.
B. The only option open to the defendants/appellants/respondents is to appeal to the Supreme Court as this Court lacks the competence to review a decision of the Court of Appeal.
A. The defendants/appellants/respondents suppressed the fact that the plaintiff has a motion for the amendment of the statement of claim and an amended statement of claim in the Court’s file dated the 6th January 2011 but filed on 7th January 2011, over 2 years before the filing of this application.
The appellants’ motion and the preliminary objection thereto were heard together. In its ruling delivered by A.O Okuma J. on 19/2/2014, the Court below upheld the respondent’s preliminary objection and struck out the appellants motion. The Court held that:
Having read the arguments offered by both counsel, it is the considered view of this honourable Court that since the Court of Appeal had in suit No. CA/E/04/2011 delivered on the 8th day of May 2013 in this case held that the plaintiff?s statement of claim discloses a cause of action for the remedy of perpetual injunction, it will be inappropriate and unprocedural for the defendants to now apply to this lower Court to declare that there is no cause of action in the same suit.
Should the defendants feel that the decision of the Court of Appeal that this suit disclosed a cause of action is faulty or wrong or made erroneously, the option open to the defendants is to appeal against the decision to the Supreme Court and get the wrong of the Court of Appeal corrected or to apply to the Court of Appeal to set aside its judgment or decision made in error.
The appellants are dissatisfied with the ruling. They filed a notice of appeal containing three (3) grounds of appeal against the judgment on 26/2/14. The grounds of appeal without their particulars are as follows:
GROUNDS OF APPEAL
A. MISDIRECTION IN LAW
The learned trial judge failed or neglected to appreciate and direct himself that the appellants’ motion on notice dated the 18th day of June 2013 was a direct and frontal assault on the respondent’s claim as it then stood, that is, in the face of the Court of Appeal judgment on 8th May 2013, and not the judgment itself and this led him to wrongfully strike out that Appellants’ motion without considering it on its merits.
B. ERROR IN LAW
The learned trial judge erred in law by neglecting or failing to consider on its merits, the appellants’ motion on notice of 18th June, 2013 challenging his jurisdiction to entertain the respondent?s sole claim of perpetual injunction, thereby occasioning grievous injustice to the appellants.
C. ERROR IN LAW
The learned trial judge erred in law in neglecting or failing to strike out or dismiss the respondent?s claim as it then stood, as an ancillary claim or relief without a principal relief on the well established principle of law that something cannot stand or rest on nothing.
The appellants’ brief of argument was filed on 20/3/14. The respondent’s brief was filed on 3/5/17 and deemed as properly filed and served on 22/6/2017. The respondent also filed a notice of preliminary objection to the appeal wherein he prayed this Court to strike out this appeal. The argument in support of the objection is incorporated in the respondent’s brief. The appellants filed appellants’ reply brief of argument.
The grounds upon which the respondent’s preliminary objection is predicated are that:
1. This Court has delivered judgment on the subject matter of this appeal on 8/5/2013 in appeal no. CA/E/04/2011 OKWUDILI OKONTA & ORS. V. CHIEF (BARRISTER) IKENNA EGBUNA.
2. The appellants’ notice of appeal is argumentative and therefore incompetent.
On ground 1, it is the contention of the respondent that this Court having held in its judgment delivered in appeal no. CA/E/04/2011 that the statement of claim disclosed a cause of action for the claim of specific performance and injunction, cannot again determine the issue of whether the suit is properly constituted on the ground that the claim for injunction is an ancillary relief. He submitted that once this Court has delivered its judgment and decided an issue, any party aggrieved by the judgment has no other option than to proceed to the Supreme Court. He referred to Section 233(1) of the Constitution.
On ground 2 of the objection, it is the contention of the respondent that grounds A and C of the appeal are argumentative. On the definition of ‘Argument’ he referred to Blacks Law Dictionary, 9th Edition Page 121. He urged the Court to strike out the notice of appeal.
In response to ground 1 of the preliminary objection, the appellants’ counsel submitted that a claim for specific performance may, when joined with one for perpetual injunction found an action but a claim for the former was not before the Court as at the time the motion to dismiss the suit for want of jurisdiction was filed on 18/6/2013. He further submitted that what this Court decided in CA/E/04/2011 was that the claim for perpetual injunction was not an abuse of the process of the Court, the Court did not decide that standing alone, the claim for perpetual injunction can found and sustain an action or clothe the Court with the necessary jurisdiction to entertain the claim.
On ground 2, the appellants’ counsel submitted that grounds A and C of the appeal are neither argumentative nor narrative, all that is contained in the particulars of those grounds are the reasons for the complaints on those grounds of appeal. On what a ground of appeal should contain, counsel referred to METAL CONSTRUCTION W.A. LTD V. MIGLIORE: IN RE OGUNDARE (1990) 1 NWLR (PT. 126) 299. ABDULLAHI V. OBA (1998) 6 NWLR (PT.554) 420. He urged the Court to dismiss the preliminary objection.
RESOLUTION:
Order 10 Rule 1 of the Court of Appeal Rules, 2016 allows a respondent to raise a preliminary objection to the hearing of an appeal. The purpose of a preliminary objection is to put an end to an appeal which is incompetent or fundamentally defective in limine so as to save the judicial time of the Court. See GENERAL ELECTRIC COMPANY V. HARRY AYOADE AKANDE & ORS. (2010) LPELR-9356 (SC) AT 34-35 (F-A). ONI & ANOR V. FAYEMI & ORS (2013) LPELR-20671 (SC) AT 14. HUSSENI & ANOR. V. MOHAMMED & ORS (2014) LPELR-24216 (SC) AT 17 (D-F). OLAGBAJU & ANOR V. ABASS (2011) LPELR-3721 (CA) AT 8 (A-D).
Ground 1 of the objection is that this Court has delivered judgment on the subject of this appeal. The respondent is of the view that the subject of this appeal is whether or not the statement of claim discloses a cause of action. That view is not correct. The subject of this appeal is the ruling delivered by the Court below on 19/2/2014 by which the Court declined to entertain the motion to dismiss the suit for want of jurisdiction on the ground that the issue being raised has already been decided by this Court. By virtue of Sections 240 – 245 of the Constitution, this Court subject to the provisions of the Constitution is vested with the jurisdiction to hear and determine appeals from decisions of the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a Court martial or other tribunals as may be prescribed by an Act of the National Assembly.
The right of appeal from a decision of High Court of a State to the Court of Appeal being a constitutional right cannot be lightly denied or fettered. See OBIKOYA V. WEMA BANK LTD (1989) LPELR-2176 (SC) AT 38 (C-D). The appellants have rightly exercised their constitutional right of appeal in respect of the ruling delivered by the Court below on 19/2/2014 by which the Court declined to entertain the motion to dismiss the suit for want of jurisdiction. Ground 1 of the objection to the appeal and respondent’s submissions in support in my view relate to the merit of the appeal and not on any defect or incompetency in the appeal. It is an issue that ought to be raised on the merit of the appeal not as a preliminary objection.
I have considered grounds A and C of the appeal. I do not agree with the respondent that those grounds of appeal are argumentative. Order 7 Rules (2) and (3) of the Court of Appeal Rules, 2016 provides that:
(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.?
Ground A of the appeal alleged misdirection in law. Grounds B and C alleged errors in law. The appellants merely stated the particulars and the nature of misdirection as required of them by the rules of this Court. The particulars do not contain any argument or narration. The preliminary objection has no merit, it is hereby dismissed.
The appellants formulated two issues for determination. The issues are:
(1) Whether the learned trial judge who was ordinarily duty bound to appreciate the purport of all applications brought before him and judicially consider them, did not misdirect himself by imagining or supposing that the Appellants? motion on jurisdiction was a complaint against the Court of Appeal judgment of 08-05-13 as a result of which he failed or neglected to consider the appellants’ application.
(2) Whether, considering the appellants? motion on notice on its merits as the learned trial judge ought to, but failed to do, it would not be found, having due regard to the fact that the respondent?s sole claim of injunction could not found and sustain an action, that he lacked the jurisdiction to entertain it.
The respondent formulated a sole issue for determination. The issue is:
Whether the objection of the appellants to the jurisdiction of the trial Court on this second occasion is not based on a foundation of misrepresentation.
I have considered the issues formulated by both parties along with the grounds of appeal. The issues thrown up for determination in this appeal are
(1) Whether the Court below was right in refusing to consider the appellants’ motion.
(2) Whether the appellants’ motion has merit.
The two issues shall be considered together. Counsel contended that notwithstanding their agreement and satisfaction with the judgment of this Court that the statement of claim disclosed a cause of action for the claim of specific performance and injunction, the claim for specific performance was not before the Court below or this Court, therefore, all what the Court said about specific performance were mere obiter and unenforceable or appealable. He referred to N.D.P. v. I.N.E.C (2013) ALL F.W.L.R (PT.709) 1185 AT 12109(A). He submitted that the pronouncement of this Court is necessary and the Court below ought to have proceeded to determine the motion on its merit.
The contention of the respondent is that since this Court has decided that the statement of claim disclosed a cause of action for specific performance and that the claim for perpetual injunction is maintainable, the only option opened to the appellants was to appeal as this Court cannot sit on appeal over its own judgment or reconsider an issue already decided.
RESOLUTION:
Both parties agreed that on 8/5/2013 this Court delivered its judgment in appeal No. CA/E/04/2011 in respect of appellants? appeal filed against the ruling of P.C Umeadi, J. delivered on 12/11/2010. Both parties also agreed that none of the parties appealed against the judgment. In that judgment, this Court per E.A. Agim, JCA made the following specific findings and pronouncements:
(1) At page 123 (18) of the additional record:
The respondent by virtue of the sale agreement, the complete payment of the purchase price and his possession of the land has an equitable title to the right of occupancy of the land which entitles him to claim for the equitable relief of Specific performance compelling the appellants to specifically perform their obligation under the agreement by executing the deed of assignment. As this Court held in ADEWUYI & ORS. V. ODUKWE (2000) LPELR-6875, it is settled law that payment of purchase price coupled with being in possession confers equitable title which enables a purchaser in possession to call for a document of title where applicable. Such title as acquired is capable of defeating the claim of subsequent purchasers or other adverse dealing with the land by the vendor.
(2) At pages 123 (19), 123(20):
Since the facts of the statement of claim show the equitable title of the respondent to the right of occupancy of the suit land, his lawful possession of the suit land and the threat to his said equitable right and interference with his possession of the land, a cause of action for the remedy of injunction to protect his equitable right and possession of the suit land is disclosed.
(3) At page 123 (23):
In the light of my holding that the statement of claim disclosed a cause of action for the claim of specific performance and an injunction, I am not inclined to hold that the action is an abuse of Court process. I therefore resolve issue no.3 in favour of the respondent.
(4) At pages 123 (23), 123(24):
The statement of claim discloses a cause of action for the remedy of perpetual injunction to restrain the defendants from entering the suit land. It is maintainable.
The above pronouncements of the Court relate to the live issues before the Court. One of such issues was whether the statement of clam disclosed a cause of action which issue was answered in the affirmative by this Court. Another issue was whether a cause of action for injunction is disclosed by the statement of claim. That issue was also answered in the affirmative.
A claim for injunction is not necessarily dependent on declaration of title. This is because the law is settled that a claim for injunction does not automatically fail because a claim for declaration for title fails. SeeOJIAKO & ANOR V. EWURU & ORS (1995) LPELR-2373 (SC) AT 27 (A-B). In ADEWOLE V. DADA (2003) LPELR-162 (SC) AT 8-9 (C-A), the Supreme Court per KUTIGI, J.S.C held that:
“It is settled law that a claim for trespass as in this case, is not dependent on the claim for a declaration of title because the issues to be decided on the claim for trespass are whether the plaintiff has established his actual possession of the land and the defendant trespassed on it, as was done in this case. These are separate and independent issues from that in a claim for a declaration of title (see for example OLUWI V. ENIOLA (1967) NMLR 339.”
The case of NWADIOGBU & ANOR. V. NNADOZIE & ANOR. (2001) 12 NWLR (PT. 727) 315; (2001) FWLR (PT. 61) 1625 which the defendant’s counsel said is on all fours with this case is not correct. The facts are completely different in the two cases. In that case the plaintiff did not only fail to prove title to the land in dispute, he also failed to prove that he was in exclusive possession. In the present case the plaintiff has exclusive possession.
The law is equally settled that a claim for an injunction is not necessarily to fail after a claim for a declaration of title fails provided the area of the land in respect of which an injunction is sought is clearly defined.
In the instant case, this Court made a specific finding that the respondent has acquired an equitable title to the land and is in possession of the 8 plots of land. Where his possession is in any way disturbed, he is entitled to seek a relief of injunction to protect his possession. In the circumstances of this case, the relief of perpetual injunction is not an ancillary claim. Whether an equitable remedy of injunction stands on its own or as ancillary to other reliefs largely depends on the facts and circumstances of the particulars case. The appellants’ motion is an invitation to the Court to re-open an issue on which this Court has made a definite pronouncement. This Court having made a specific finding that the claim for injunction is maintainable, the Court below rightly refused to re-open the issue.
Apart from the fact that this Court has made a specific pronouncement that a cause of action for injunction to protect the respondent’s possession is disclosed and is maintainable, the respondent filed a motion for leave to amend his statement of claim and to deem the amended statement of claim filed on 6/1/2011 as properly filed and served. The pendency of the motion was brought to the attention of the Court on 24/1/11. The motion has not been heard till date. The motion which led to the ruling from which this appeal emanated was filed on 18/6/2013. Apart from the fact that the motion for leave to amend the statement of claim was filed long before the appellants? motion, the law is settled that where there are two adverse applications before the Court, one aiming to destroy the case and the other seeking to give it life, the Court has a duty to give priority to the application seeking to save the case in order to do substantial justice. See A.G. of the FEDERATION V. I.C.A.N. & ORS (2002) LPELR-11099 (CA) AT 19 (C-F). ENUKEME V. MAZI (2014) LPELR-23540 (CA) AT 30-31 (C-A). OBI V. OGUNBIYI (2012) LPELR-7984 (CA) AT 25 (B-G). OLUMESAN V. OGUNDEPO (1996) LPELR-2625 (SC) AT 17-18 (F-B). In the instant case, the Court ought to have exercised its discretion to hear the motion seeking an order to amend the statement of claim first. The exercise of that discretion would have put paid to the controversy in this appeal.
In the face of the findings and pronouncement of this Court and the pending application for amendment of the statement of claim, the appellants’ motion had no slight chance of success on the merit. It is not only a vexatious application, it is one solely aimed at scuttling the hearing and determination of the case on merit. The Court below was on a firm ground when it upheld the objection to the appellant?s motion. This appeal totally lacks merit. It is hereby dismissed. The ruling delivered by A.O Okuma, J. on 19/12/2014 in respect of motion no. O/135/2010 is hereby affirmed. There shall be N100,000:00 costs in favour of the respondent against the appellants.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead judgment prepared by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA dismissing this appeal as totally lacking merit, as the Appellant is in the wrong jurisdiction.
The reason is as stated in the lead Judgment, that the issue of contention is one on which this Court had earlier made a definite pronouncement between the same parties.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Misitura Omodere Bolaji-Yusuff, JCA just delivered.
After a close consideration of the issues, submissions and arguments of counsel, I agree that the Appellant’s motion is an invitation to the Court to re-open an issue in which this Court has made a definite pronouncement.
It is therefore wrong and negates the tenets of justice for the Appellants to surreptitiously invite this Honourable Court to sit on a matter already decided by it in Appeal No. CA/E/04/2011.
If the Appellants feel aggrieved with the decision of this Honourable Court as earlier decided, the proper thing for them to do is to ventilate their grievances in the apex Court as they are empowered to do by virtue of Section 233(1) Of the Constitution of the Federal Republic of Nigeria, 1999 and not come through the back door of this Honourable Court with a matter that had already been thrown out through the front doors. This Court refuses such invitation and therefore closes all its doors on this matter.
The trial Court was therefore in order when it refused the application of the Appellants filed on 18th June, 2013 wherein they prayed the Court for an order dismissing the suit for want of jurisdiction.
I am of the considered opinion that appeals such as the instant appeal, which seeks to vex justice and waste judicial time and energy should attract heavy cost because the energy dissipated in deciding this appeal could have been reasonably expended on other matters considering the influx of appeals to this Honourable Court on a daily basis.
For the above reasons and of course the detailed ones adumbrated in the lead judgment, I too feel that the appeal is totally lacking in merit. Same is equally dismissed and I endorse the consequential order contained in the lead judgment.
Appearances:
A. A. OnonyeFor Appellant(s)
Respondent appears in personFor Respondent(s)
