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GEORGE & ORS v. ISA & ORS (2022)

GEORGE & ORS v. ISA & ORS

(2022)LCN/16728(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Wednesday, February 23, 2022

CA/K/278/2015

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

1. SUNDAY GEORGE 2. SANI ABUBAKAR 3. MR. ANDREW F. OCHIBO 4. BOFOLAHAN F. OKE 5. MILICENT EBOFU 6. VICTORIA EGBO 7. ESTHER OKEY DUGWU 8. ABDURRAHMAN ABDULLAHI 9. AISHA A. HARUNA 10. CATHERINE O. IBE 11. MR. ERNEST ODALONU 12. AISHA ALHASSAN 13. RUBEN ELDWINE 14. MRS. H. A. IWUCHUKWU 15. MALLAM SULEIMAN JIMOH 16. CHRISTOPHER OKONJI 17. SULEIMAN OVADA 18. MR. J. O. ADEWOLE 19. SAMUEL ODEH 20. MRS. W. H. YUSUF 21. MRS. AISHA HASSAN APPELANT(S)

And

1. YAU ISA 2. DR. ONAH 3. M. MAINASARA 4. M. U. HUSSAINI 5. D. D. EFFIONG 6. N. A. MUTUM 7. MR. BAMIKEFE 8. AMINU BAYI 9. ALTO GARBA 10. BADARU LAWAN 11. CHUKWUMA MBAGWU 12. MR. OMOTOSHO 13. BALARABE BADAMASI 14. D. I. GUSAU 15. ENGR. ISA SUFI 16. MRS. YAKUBU RESPONDENT(S)

 

RATIO

WHETHER OR NOT IT IS THE CLAIM OF THE CLAIMANT THAT DETERMINES THE JURISDICTION OF THE COURT

The law is trite that it is the claim of the plaintiff that the Court has to concern itself with, in determining its jurisdiction to hear a case, not the wishful thinking of the defendant. See the case of Adeyemi & Ors Vs Opeyori (1976) LPELR-171 (SC): “At the risk of over-emphasizing the principles, we repeat that it is a fundamental principle of law that, it is the claim of the plaintiff which determines the jurisdiction of a Court entertaining the same, this is because only too often this point is lost sight of by the Courts of trial…” Idigbe, JSC
See also Ekweozor & Ors Vs Reg. Trustees of the Saviours Apostolic Church of Nigeria ​(2020) LPELR-49568 (SC), where it was held:
“… the jurisdiction of a Court including the trial Court is determined by the plaintiff’s claim as disclosed in the writ of summons and/or endorsed in the statement of claim. However, when evidence has been taken before the raising of the issue of jurisdiction, the Court may refer to any part thereof necessary. In this instance, a reference to the plaintiff’s pleadings becomes necessary to clarify any grey areas. See Tukur v Government of Gongola State (NO. 2) (1989) 4 NWLR (Pt. 117) P. 517; Mustapha v Governor, Lagos State (1987) 2 NWLR (Pt.58) 539; Attorney General Kwara State v Olawale (1993) 1 NWLR (Pt. 272) 645; Adeyemi v Opeyori (1976) 9 – 10 SC 31.” Per PETER-ODILI, JSC. PER MBABA, J.C.A.

WHETHER OR NOT A FINDING OR DECISION NOT APPEALED AGAINST REMAINS BINDING AND CONCLUSIVE

We have also stated, repeatedly, that where no appeal is raised against the findings and/or decision of a Court, the same remains binding and conclusive. See the case of Opara Vs Dowel Shlumberger Nig. Ltd & Anor (2006) 2746 (SC):
“It is also settled law that where a party fails to appeal against a finding of the trial Court or the Court of Appeal, he cannot be heard to question the finding on appeal to the Supreme Court, the essence of an appeal being to have an opportunity to have one’s suit re-examined before a higher Court. In effect, the failure of the appellant to appeal against the decision of the trial Court refusing an order of specific performance is that that decision remains binding and conclusive between the parties – see Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1 at 4. In Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 at 139-140, it was held by this Court that where the trial Court makes a finding of fact on a specific issue before it, such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the finding of fact and it cannot be covered under the omnibus ground of appeal.” Per ONNOGHEN, JSC
See also the case of Daniel Vs FRN (2015) LPELR-24733 (SC):
It is also interesting to note that the appellant did not appeal against the finding and holding by the Court below that from the record, the learned trial Judge did not fulfill the statutory condition precedent under Section 218 of the Criminal Procedure Act. The implication of this is that he is satisfied with the said finding and therefore bound by the said finding and holding. The appellant can then not be heard to now complain that the Court below did not take decision on the issue of discretion under Section 218. It is too late, to say the least, for him to now complain about that issue. See Uwazurike & Anor v. Nwachukwu & Anor (2012) 12 SCM (Pt.2) 534.” Per ARIWOOLA, JSC.
PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the  High Court of Kano State in Appeal No. H/C/43A/2012, delivered on 30/6/2015, in its appellate jurisdiction, wherein the learned trial Judges Hon. Justice R. A. Mahmoud and Hon. Justice Mohd Yahaya, affirmed the decision of the learned Senior Magistrate, Auwal Yusuf Sulaiman in the case no. KA/482/2011, and dismissed the appeal.

Appellants had instituted action at the Federal High Court, by writ of summons in Suit No. FHC/K/CS/96/2007 wherein Appellants (as plaintiffs) had sought the following reliefs against defendants (including benefactors of the Respondents herein):
(1) A declaration that the plaintiffs are direct tenants of Nigeria Telecommunications Ltd (NITEL)
(2) A declaration that the negligence, refusal and failure of the 1st Defendant to notify the plaintiffs and offer them the opportunity to bid and purchase the premises they occupy is wrongful, inequitable and unlawful.
(3) A declaration that the plaintiffs are entitled to an opportunity to bid for the premises they occupy just as all other occupants of NITEL staff quarters in Nigeria were offered.
(4) An order directing the Defendants to offer for sale to the plaintiffs the premises they (plaintiffs) occupy in the said junior staff quarters, block 1-5 of the NITEL Management Training Center Staff Quarters, Kano.
(5) An injunction restraining the defendants, their agents, privies and representatives from ejecting the plaintiffs from the said blocks 1-5 junior staff quarters of the NITEL Management Training Centre Staff Quarters, Kano, pending the determination of the suit.
(6) The cost of instituting and prosecuting this suit.

The suit was filed on 26/11/2007. Despite the pendency of the said suit, the Respondents who were favoured to get the quarters instituted a fresh action at the Rent Tribunal in 2008 against the Appellants, rather than canvass their position in the Federal High Court case.

The said suit at the Rent Tribunal was later transferred to the Senior Magistrates Court, and it sought the ejection of the Appellants from the said premises in dispute. Upon being served with ejection processes at the Rent Tribunal, Appellants filed an application at the Federal High Court, to join the Respondents herein, to the pending suit at the Federal High Court. That Application was filed on 24/1/2008. Counsel said that notwithstanding the application for joinder, the Respondents took advantage of the absence of the then Presiding Judge of the Federal High Court (Justice Shehu Yahaya) due to ill health, and continued their case at the Senior Magistrate’s Court, and the Senior Magistrate granted their application and ordered, the ejection of the Appellants from the disputed premises.

Appellants being aggrieved filed an appeal against the decision of the said Senior Magistrate, seeking nullification of the judgment, for the trial Court lacking the jurisdiction to entertain a matter, already pending at the Federal High Court, on the same subject matter. After hearing the Appeal, the High Court of Kano State, in its appellate jurisdiction, affirmed the decision of the Senior Magistrate and dismissed the Appellants’ Appeal, saying:
“We have carefully considered the submission of counsel to all parties before us and the Records of Appeal. We observed that the learned counsel for the Appellants did not prove how the trial Magistrate acted without jurisdiction. The only document relied upon by the appellant to support his case that there was pending case at the Federal High Court, before the present case was filed at Magistrate Court, is an annexure which was marked as Exhibit C.
Annexure ‘C’ is a process filed at Federal High Court, Kano, dated 12th March, 2009, it contains an application to strike out the case between one Sunday George and Ors Vs Otunba Olusola & Ors, for want of diligent prosecution and the case was struck out. There was no claim stated in the process. The claim of the appellant, as contained in the record, which was filed before the rent tribunal on the 10th December, 2007(sic). The Tribunal then was the Court that had the jurisdiction. The claim in the writ was for recovery of possession of a residential premises. Later the case was transferred to the trial magistrate when the Rent Tribunal was abolished. The case commenced at the Magistrate in 2011 as per the printed record and the judgment was entered on the 11/7/2012, three years after the case at the Federal High Court was struck out.
The Respondent rightly said that jurisdiction of Courts are determined by the claim of the plaintiff, the claim of the respondents was for recovery of residential premises, as per the record, which is within the jurisdiction of the lower Court, while they could not show what was the claim at the Federal High Court, to enable us determine whether the claim is the same with the claim at the Magistrate Court. We therefore uphold the submission of the respondents’ counsel in this regard. Therefore, we hold that this appeal lacks merit and we accordingly dismissed (sic) it.” (See pages 78-79 of the Records of Appeal).

That is the decision Appellants appealed against, as per the Notice of Appeal, filed on 18/8/2015 (on pages 83-85 of the Records of Appeal), which disclosed a single ground of Appeal. Appellants filed their brief on 19/3/2021 which was deemed duly filed on 12/7/2021. They distilled the following issue for the determination of the Appeal:
“Whether, given the pre-existence of the suit at the Federal High Court and the subject matter of this suit, the proceedings of the trial Magistrate Court in this suit are not a nullity for lack of jurisdiction.”

The Respondents filed their Brief of Arguments on 5/7/2021 and distilled the following issue for the determination of the Appeal:
“Whether in view of the claims of the Respondents, to recover vacant possession of their properties occupied by the Appellant as Tenants before the Chief Magistrate Court No. 26 Kano, in case No. KA/C/82/2011, the Presiding Chief Magistrate Court had the requisite jurisdiction to determine the matter and whether the decision of the Kano State High Court Appellate Division, dismissing the Appellants’ Appeal can be faulted?”

Arguing the Appeal, Victor D. Odjemu, Esq., submitted that the lower Court was wrong to hold for the Respondents, that the trial Senior Magistrate was right to eject the Appellants; he said that considering the fact that Appellants earlier suit at the Federal High Court was pending over the same subject matter in dispute, the Senior Magistrate had no jurisdiction to entertain the suit of the Respondents, that what was before the Federal High Court touched on a Receivership and involved a Federal Agency (NITEL), and operation of the Companies and Allied Matters Act, as well as claims for declaratory reliefs and injunction, which the Federal High Court had exclusive jurisdiction on. He relied on Section 251(1)(c) and (v) of the 1999 Constitution (as amended) and on decided cases on jurisdiction, including Adesigbin Vs Military Gov. of Lagos State (2017) 10 NWLR (Pt. 1574) 442 at 45, FUT Minna Vs Olutayo (2018) 7 NWLR – (Pt 1617) 176 at 193 and Madukolu Vs Nkemdilim (1962) SCNLR 341.

Counsel added that Appellants, having already instituted the case in 2007, at the Federal High Court, claiming entitlement to purchase the properties in dispute, the Kano State Magistrate’s Court had no jurisdiction to entertain an action for reliefs, claiming ownership of the disputed property from the same receivers, who sought to eject the Appellants. Counsel said that the Respondents, ought to have canvassed whatever position they wanted in the pending Federal High Court suit. He further relied on the case of Ezenwaji Vs UNN (2017) 18 NWLR (PT. 1598) 485 at 573, on how to deal with issue of jurisdiction, as a threshold matter.

He urged us to resolve the issue for Appellant and allow the appeal.

The Respondents’ Counsel, Salisu Sule, Esq., answered the issue for determination in the affirmative, saying that the learned Appellate High Court was right to dismiss Appellants’ Appeal, that the trial Senior Magistrate had the requisite jurisdiction to determine the case. Counsel said that, by law, it is the claims of the plaintiffs, as placed before the Court, that determine the jurisdiction of the Court to hear a case; that at the trial Court, the claim was for recovery of residential premises from the Appellants, that the lower Court, in its appellate jurisdiction, decided rightly, when it held:
“The Respondent rightly said that jurisdiction of Courts are determined by the claim of the plaintiff, the claim of the respondents was for recovery of residential premises as per the records which is within the jurisdiction of the lower Court, while they could not show what was the claim at the Federal High Court to enable us determine whether the claim is the same with the claim at the Magistrate.”

Counsel relied on the case of Adeyemi Vs Opeyori (1976) 1 SC, 31 as the locus classicus on the determination of whether a Court has requisite jurisdiction to do a case. He also cited the case of Elapano Vs Dawodu (2000) 27 NSCQR 318 at 376, Counsel said that there was no doubt that the claims of the respondent at the Senior Magistrate Court, concerned wholly the recovery of vacant possession of their premises – Blocks 1-5 of the NITEL Management Training Center Staff Quarters, in Kano, where Appellants resided as tenants of Respondents, Counsel said that all the requisite notices for the recovery of possession of the property had been duly served on the Appellants, that Appellants had raised a preliminary objection challenging the jurisdiction of the trial Magistrate and same was dismissed, before the case was heard on the merits, and judgment delivered in favour of the Respondents.

Counsel said that the Federal High Court Suit No. FHC/K/CS/96/2007 had been struck out for want of diligent prosecution, as per the motion filed on 12/3/2009.

He urged us to resolve the issue against the Appellant and to dismiss the appeal.

RESOLUTION OF THE ISSUE
I adopt the issue as distilled by the Respondents’ Counsel, for the determination of this appeal, but as modified, herein:
“Whether the lower Court (in its appellate jurisdiction) was right to hold that, in view of the claims of the Respondents to recover vacant possession of their properties occupied by the Appellants, as Tenants, the learned trial senior magistrate had jurisdiction to determine the matter, in the circumstances of this case.”

The facts of this case show that Appellants were staff of NITEL, which ran into liquidation and for which a receiver was appointed by the Government for its privatization. Appellants were occupiers of the junior staff quarters of NITEL at the Management Training Centre Block 1-5, thereof. Appellants expected their respective blocks/flats to be sold to them, upon the boarding of the properties and so took out the suit at the Federal High Court (FHC/K/CS/96/2007, against the NITEL and the Receiver, namely Otunba Olusola Adekanola (Liquidator MITEL/MTEL Staff Pension Fund) (2) NITEL/MTEL STAFF PENSION FUND and (3) BUREAU OF PUBLIC ENTERPRISES. 

In the suit, Appellants sought the reliefs earlier expressed in this judgment. The Respondents in the suit FCH/K/CS/2007 had rather favoured the Respondents in this Appeal with rights over the said premises and quarters. While the said suit was pending, the Respondents in this appeal dragged the Appellants to the Rent Tribunal to recover the properties Appellants occupied from them. The Senior Magistrate which later assumed the powers of the Rent Tribunal, determined the suit in favour of the Respondents herein and ejected the Appellants. And that was after the application raised by the Appellants, challenging the jurisdiction of the learned Senior Magistrate, had failed. The decision of the learned Senior Magistrate was upheld by the lower Court, on appeal.

What I consider very intriguing for the determination of this appeal, is the attitude of Appellants to the finding of the lower Court on the said suit no. FHC/K/CS/96/2007 at the Federal High Court, which Appellants relied on as the ground for seeking to set aside the judgment of the Senior Magistrate. (Appellants had argued that the said Federal High Court case was pending before Respondents took out the case at the Rent Tribunal (an Inferior Court) and that the claim at the Federal High Court, was on the same subject matter-contest over the premises in contention). The appellate lower Court had held that the learned senior Magistrate had jurisdiction to entertain the claim of the Respondents, which was for recovery of residential premises and that the Federal High Court suit, which Appellants founded on, had been struck out and was no longer pending; that the case at the Magistrate’s Court commenced in 2011 and the judgment was entered on 11/7/2012, three years after the case at the Federal High Court was struck out. (See pages 77-78 of the Records of Appeal).

I have not seen anywhere Appellants appealed against these basic findings of fact and holding of the Appellate lower Court, as the issue raised by Appellants for the determination of this Appeal, still questioned: “whether given the pre-existence of the suit at the Federal High Court and the subject matter of that suit, the proceedings of the trial Magistrate Court in this suit are not a nullity for lack of jurisdiction.”

The issue by Appellants amounted to raising the same complaint which was before the Appellate High Court, and which was duly resolved by that Court. Of course, there was evidence on page 40 of the Records of Appeal, that the Federal High Court, had on 12/3/2009, struck out the Suit No. FHC/K/CS/96/2007 for non-diligent prosecution, with cost of ₦10,000.

As earlier stated, Appellants never raised any appeal (or ground of appeal) against those settled facts, that the Federal High Court had been struck out, before the trial Magistrate heard and determined the claims of Respondents for recovery of residential premises. There was also no challenge of the jurisdiction of the trial senior Magistrate, considering the subject matter of the Respondents’ Claim Recovery of Residential Premises.

The law is trite that it is the claim of the plaintiff that the Court has to concern itself with, in determining its jurisdiction to hear a case, not the wishful thinking of the defendant. See the case of Adeyemi & Ors Vs Opeyori (1976) LPELR-171 (SC):
“At the risk of over-emphasizing the principles, we repeat that it is a fundamental principle of law that, it is the claim of the plaintiff which determines the jurisdiction of a Court entertaining the same, this is because only too often this point is lost sight of by the Courts of trial…” Idigbe, JSC
See also Ekweozor & Ors Vs Reg. Trustees of the Saviours Apostolic Church of Nigeria ​(2020) LPELR-49568 (SC), where it was held:
“… the jurisdiction of a Court including the trial Court is determined by the plaintiff’s claim as disclosed in the writ of summons and/or endorsed in the statement of claim. However, when evidence has been taken before the raising of the issue of jurisdiction, the Court may refer to any part thereof necessary. In this instance, a reference to the plaintiff’s pleadings becomes necessary to clarify any grey areas. See Tukur v Government of Gongola State (NO. 2) (1989) 4 NWLR (Pt. 117) P. 517; Mustapha v Governor, Lagos State (1987) 2 NWLR (Pt.58) 539; Attorney General Kwara State v Olawale (1993) 1 NWLR (Pt. 272) 645; Adeyemi v Opeyori (1976) 9 – 10 SC 31.” Per PETER-ODILI, JSC

We have also stated, repeatedly, that where no appeal is raised against the findings and/or decision of a Court, the same remains binding and conclusive. See the case of Opara Vs Dowel Shlumberger Nig. Ltd & Anor (2006) 2746 (SC):
“It is also settled law that where a party fails to appeal against a finding of the trial Court or the Court of Appeal, he cannot be heard to question the finding on appeal to the Supreme Court, the essence of an appeal being to have an opportunity to have one’s suit re-examined before a higher Court. In effect, the failure of the appellant to appeal against the decision of the trial Court refusing an order of specific performance is that that decision remains binding and conclusive between the parties – see Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1 at 4. In Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 at 139-140, it was held by this Court that where the trial Court makes a finding of fact on a specific issue before it, such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the finding of fact and it cannot be covered under the omnibus ground of appeal.” Per ONNOGHEN, JSC
See also the case of Daniel Vs FRN (2015) LPELR-24733 (SC):
It is also interesting to note that the appellant did not appeal against the finding and holding by the Court below that from the record, the learned trial Judge did not fulfill the statutory condition precedent under Section 218 of the Criminal Procedure Act. The implication of this is that he is satisfied with the said finding and therefore bound by the said finding and holding. The appellant can then not be heard to now complain that the Court below did not take decision on the issue of discretion under Section 218. It is too late, to say the least, for him to now complain about that issue. See Uwazurike & Anor v. Nwachukwu & Anor (2012) 12 SCM (Pt.2) 534.” Per ARIWOOLA, JSC.

I cannot therefore find any merit in this appeal and it is accordingly dismissed.

Parties to bear their respective costs.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother, ITA G. MBABA, J.C.A. I am in complete agreement with his reasoning and conclusion. I also find no merit in the appeal and hereby dismiss it.

I abide by the order as to costs as contained in the lead judgment.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, ITA G. MBABA and I am in complete agreement with the reasoning and conclusion reached therein that this appeal lacks merit. It is accordingly dismissed. I also abide by all other consequential orders as contained in the lead judgment.

Appearances:

Victor O. Odjemu, Esq. For Appellant(s)

Salisu Sule, Esq. For Respondent(s)