In The Court of Appeal of Nigeria

On Thursday, the 27th day of March, 2003




JAMES OGENYI OGEBE   Justice of The Court of Appeal of Nigeria

SULEIMAN GALADIMA   Justice of The Court of Appeal of Nigeria

PIUS OLAYIWOLA ADEREMI   Justice of The Court of Appeal of Nigeria







GALADIMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Rhodes-Vivour, (J) of the Lagos High Court delivered on the 23rd January, 2001 striking out the suit No. ID/2374/2000 instituted by the plaintiffs on the grounds that the defendant was the agent of a disclosed principal.
The summary of the facts upon which the case of the appellants, who are the plaintiffs, is based is that the appellants as tenants in the building situate at 61 Marina Street and 143/145 Broad Street, Lagos had been making service charge payments to the respondent for the provision of certain essential services to the premises which they occupy. The services include electricity water,cleaning and security. For providing these services to the appellants the respondent charges a commission of 10% of the total amount collected as service charge.
It is the case of the appellants that the respondent has failed or neglected to provide adequate service commensurate to the sum of money paid by them as service charges which has caused severe damage to their business and as a result of which the said appellants decided jointly to provide the services by themselves. This the respondent had opposed. The appellants then claimed as follows:
“1. A declaration that the defendant being the agent of the plaintiffs in the provision of services to the building situate at 143/145 Broad Street, Lagos, the plaintiffs are entitled to an account of all monies collected by the defendant from them and how same has been disbursed.
2. An account of all monies collected by the defendant as service charges in respect of the building aforesaid within the last two years and how same was expended.
3. A declaration that the plaintiff having communicated to the defendant their decision to terminate agency (sic) relationship between them and the defendant for the limited purpose of collecting service charges and providing services for the building are entitled to undertake a collection service charges and provision of services to the said building themselves;
4. An order of perpetual injunction restraining the defendant from continuing to demand and collect service charges from the plaintiffs for the purpose of providing services to the building at No. 61/143/145 Broad Street, Lagos.
5. An order of perpetual injunction restraining the defendant whether by itself, servants, agents, privies or other whomsoever from taking any steps to evict any of the plaintiffs from the building aforesaid without compliance with the due process of law.
6. General damages in the sum of N10,000,000.00 (Ten million naira only).”
After being served with the writ of summons and statement of claim the defendant entered a conditional appearance and proceeded further to file a motion on notice praying for the following reliefs:
An order-
(i) Striking out the First Mortgage (Savings and Loans) Ltd. and Bridgestone Finance Limited sued as 3rd and 5th plaintiffs as they are no longer tenants in premises (the subject-matter of this suit) and they are not competent parties to this action.
(ii) The said plaintiffs have no cause of action against the defendant.
(iii) Striking out the suit in its entirety as the defendant is the agent of a disclosed principal (UNICO PENSION TRUST LIMITED)
It is noted that before this application could be heard, the  defendant again filed another motion to strike out the names of 1st, 2nd, 4th, 6th, 7th, 8th, 9th, 10th and 13th plaintiffs from the suit as their counsel was not instructed to institute this action. The plaintiffs’ counsel did not file any counter-affidavits to the two applications.
In the ruling delivered on 25/1/2001 the lower court held that the defendant was the agent of a disclosed principal and thus the principal is the proper party as the defendant and accordingly struck out the plaintiffs’ suit.
Dissatisfied with the ruling the plaintiffs filed a notice of appeal raising three grounds of appeal. Distilled from these grounds the appellants raised ONE issue in their brief of argument in following term:
The respondent also, on the other hand, identified a single issue thus:
“Whether the Learned Trial Judge was right to have struck out the appellants suit at the stage it did on the ground that the respondent is the agent of disclosed principal.”
From the issue formulated in their brief of argument, the appellants are unhappy with the procedure by which the competence of their action was challenged at the lower court by the respondent.
The respondent has argued in their brief that though the appellants have postulated their position of the law based on the provision of Order 23 of the Lagos State High Court (Civil Procedure) Rules, 1994, however, they did not canvass those points in the lower court so as to enable that court make a pronouncement on them. Reliance was placed on the case of Jov. v. Dom (1999) 9 NWLR (Pt. 620) 538 at p. 547 paras. B-C in support of this argument.
This is precisely what is contained in the notice of preliminary objection raised and argued in the respondent’s brief of argument. I agree with the learned counsel for the respondent that one of the issues raised and argued by the appellants for determination in this appeal relates to the first ground of appeal. It read thus:-
“1. The Learned Trial Judge erred in law in not striking out the defendant’s motion on notice dated 9th October, 2000 as the same was in effect demurrer which has been abolished in Order 23 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1994.”
In paragraphs 3.9 and 4.0 of the appellants’ brief they have clearly postulated their position and arguments based on the provisions of Order 23 of the Lagos State High Court (Civil Procedure) Rules of 1994. It is submitted by the appellants that by the nature of the relief sought by the respondent in its application the issue could only be raised under Order 23 rules 2 and 3, which oblige the respondent to raise the points in its statement of defence and thereupon request the court to set down the issues raised for trial if they are fundamental enough to dispose of the entire suit or under Order 23 rule 4 by which the statement of claim could be struck out for non-disclosure of a reasonable cause of action consequent upon which the entire action may be dismissed. It is therefore argued that since the respondent did not file any pleadings they could not proceed under Order 23 rule 2 and 3. However it is observed that this issue so raised in this appeal is on points not raised and canvassed in the court below which did not have any input or opportunity to make any pronouncement on them. Besides, leave of this court was never sought and obtained appellants should have confined themselves to the arguments taken at the lower court.
The apex court has held in Jov. v. Dom (supra) at p. 547 thus;
“It is true, question of law and jurisdiction can be raised at any time in the proceedings, but it is not on a free for all procedure. The court can raise a matter of law and Constitution at any time, but in doing so the two sides must be afforded the opportunity of addressing on it.
This basically goes to the spirit of fair hearing. It is for this reason that a party to an appeal that intends to raise a new issue or introduce a novel matter into an appeal must seek leave to do so.”

I must say that there are some obvious circumstances when points not canvassed at the trial court may be allowed to be raised on appeal. For instance, where the question involves substantial points of law, substantive or procedural; and where it appears plain that no further evidence could have been adduced. This court will allow the question to be raised and points taken to prevent miscarriage of justice. But leave must be sought and obtained from the appellate court. It will, however be refused leave where the  point sought to be raised for the first time introduces an entirely new case or line of defence different from the issue sought by the parties in the lower court. As I have observed in the instant case, the appellant did not seek and obtain leave for the purpose of raising the new issue now raised by it. I am bound to discountenance the issue so raised as there is nothing to sustain it. See Temco Eng. & Co. Ltd. v. S.B.N. Ltd. (1995) 5 NWLR (Pt. 397) 607; Adigun v. A.G., Oyo State (No.2) (I987) 2 NWLR (Pt. 56) 197.
I may still go further to consider the only issue raised by the appellants for which I observe that the arguments are not carefully set out in their brief. The issue queries the procedure by which the competence of the action was challenged at the lower court. The question is whether the Learned Trial Judge was right to have struck out the appellants’ suit on the ground that the respondent is the agent of a disclosed principal.
It is the appellants’ claim at the lower court in their action against the respondent that the said respondent was their agent and as their agent she owed them the duty to account for all monies paid to her for rendering services like the provision of water, cleaning and security services on the premises at 143/145, Broad Street, Lagos. It is not in dispute between the parties that the building is owned by UNICO PENSION TRUST LIMITED of NO.1-5 Odunlami Street, Lagos. See Exhibit A, the Tenancy Agreement Attached to the motion. It read thus:
THIS TENANCY AGREEMENT is made … day of … 19… BETWEEN UNICO PENSION TRUST LTD a company incorporated in Nigeria whose registered office is at Niger House 1-5 Odunlami Street, Lagos (hereinafter called the “Landlord” which expression  shall where the con admits include its successors-in-title and assigns) of the one part and JAZUKA INVESTMENTS LTD, whose registered address is at Plot 5, Block K, ISOLO INDUSTRIAL Estate, Isolo, Lagos (hereinafter called “The Tenant” which expression shall where the con so admits include his/her assigns heirs and personal legal representatives) of the other part.
1. The landlord is seised of all that property situate, being and known as suit 07 MCIver House, 143/ 145, Broad Street, Lagos ………
NOW IT IS HEREBY AGREED as follows: ……..
TO HOLD same unto the Tenant for a term of two years certain commencing from 1st day of December, 1997 to 30th day of November, 1999 at an annual rent of N242,000.00 payable two years in advance and service charge in the sum of N92,000.00 payable annually, the rent for two years in advance and services for the first term having been paid prior to the execution of these presents whereof the landlord hereby acknowledges …”
It is clear to me that this extract is the relevant part of the Tenancy Agreement in relation to the tenancy of the 3rd appellant.
It was produced and marked as exhibit ‘A’ in para. 3 of the affidavit in support of the motion for preservative and interim injunction, paragraphs 3 – 24 of the affidavit in support are all about the complaints of the appellants against the respondent who was alleged to have collected service charge from the appellant for provision of services they had paid for. Even a cursory glance through the allegations in the said affidavit in support of the motion would clearly show that there is no nexus between the appellants and this respondent. For an action to succeed “the parties to it must be shown to be the proper parties to whom right and obligations arising from cause of action attach”. See Ehidimhen v. Musa (2000) 8 NWLR (Pt. 669) 540.
From the averments in the statement of claim the affidavit in support of the application and the contents of exhibit ‘A’ it is clear to me that the proper parties have not been properly identified and brought before the court.
For a court to be competent and have jurisdiction over a matter it is necessary that, the condition that the proper parties brought must be identified and ought to be fulfilled: See Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341, (1962) All NLR 587.The question of proper parties, as an important issue, which would affect the jurisdiction of the court should be timeously raised and averred.
In paragraphs 1.8 – 2.6 of their brief of argument, the appellants did allege that the respondent was their agent in respect of the property covered in the tenancy agreement, exhibit ‘A’. It  was stated that UNICO PENSION TRUST LIMITED had collected certain service charges which they sought for a declaration and an order for account from it. However, in their statement of claim, the appellants have failed to aver how the respondent became the agent of the appellants. This failure makes it inappropriate to confer jurisdiction on the lower court. Besides, when the respondent brought an application before the lower court to strike out the appellants’ suit because the respondent is the agent of a disclosed principal, no counter-affidavit was filed by the appellants to controvert or challenge those facts in support of the respondent’s application.
It is now trite law that facts not controverted or challenged in an affidavit should be deemed duly admitted: See Onwuegbu v. Ibrahim (1997) 3 NWLR (Pt. 491) 110 at 119.
In my view, the respondent has diligently and promptly raised objection to the defect in the appellants’ action. They did not have to wait until the case is fought on the merit. The Learned Trial Judge was right to have struck out the suit at the time he did on the facts of the case. I find myself unable to subscribe to the view of the appellants that the procedure adopted by the respondent was wrong when they actually consented to the procedure: See Noibi v. Fikolati  (1987) 1 NWLR (Pt. 52)  619; Adebayo & Ors. v. Shonowo & Ors. (1969) 1 All NLR 176.
It would appear to me that the appellant did not complain about the resort to Order 14 rule 20 by the respondent, instead of Order 23 rule 4 and that the pleading ought to have been filed by the said respondent. This is my opinion, as I have observed effect the merit of their appeal.
On the whole this appeal lacks merit and it is dismissed. The appellants are to pay to the respondent costs assessed at N5,000.

OGEBE, J.C.A.: I read in advance the lead judgment of my learned brother, Galadima, JCA just delivered and I agree with his reasoning and conclusion.
The grounds of appeal and the sole issue formulated by the appellants did not arise from matters canvassed before the lower court and no leave was sought and obtained to raise new points on appeal. I therefore strike out the issue as not being properly before this court. Consequently, I strike out the appeal.
If I am wrong on that score, I also dismiss the appeal on the merit for the reasons given in the lead judgment. I abide by the order of costs.

ADEREMI, J.C.A.: I have been privileged with a preview of the judgment just delivered by my learned brother, Galadima, JCA in this appeal. I entirely agree with him that the appeal is devoid of merit and should be dismissed.
The facts giving rise to this appeal have been fully set out in the body of the leading judgment that I need not repeat them here.  Suffice it to say that the matter of proper parties not being before the court, which is an all important issue, strikes at the very foundation of the case. The respondent has rightly raised it in limine. It was correctly dealt with by the Trial Judge. I endorse the ruling of the trial Judge and I also dismiss the appeal while abiding with the order as to cost contained in the lead judgment.

Appeal dismissed.



Etigwe Uwa, Esq. (with him, A. Nwenze, Esq.)For Appellant



Lame Ogunlesi, Esq. (with him, O. Oshinowo)For Respondent


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