IDAM v. NLPC PENSION FUND ADMINISTRATORS & ANOR (2021)

IDAM v. NLPC PENSION FUND ADMINISTRATORS & ANOR

(2021)LCN/15104(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, March 16, 2021

CA/L/89/2016

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

MRS. OGBONNE IDAM APPELANT(S)

And

NLPC PENSION FUND ADMINISTRATORS 2. WEST AFRICAN EXAMINATION COUNCIL RESPONDENT(S)

RATIO

WHETHER AN APPEAL IS A CONTINUATION OF THE MATTER THAT WAS HEARD AT THE LOWER COURT

It is trite that an appeal is a continuation of the matter that was heard at the lower Court; Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC); FBN v. Agbara (2020) LPELR-50632(SC); PDP v. Umeh (2017) LPELR-42023(SC). Before the appellate Court, the continuation of the matter is by way of a rehearing predicated on complaints arising from the decision of the lower Court; Abubakar & Ors v. Nasamu & Ors (2012) LPELR-7826(SC). One implication of this principle is that no fresh issue that has not been canvassed before the lower Court and on which there is a decision of the lower Court, can be raised on appeal, without leave of Court. Such issue to be raised must be relevant and no further evidence is necessary. This is because the law does not want the party to take unnecessary advantage against the adverse party on appeal and that the party applying to raise the new issue must satisfy the Court that it is proper to do so; Stirling Civil Engineering (Nigeria) Ltd v. Yahaya (2005) LPELR-3118(SC). Eze v. Unijos (2017) LPELR-42345(SC). Where the party fails to secure the permission of the Court, which is the whole essence of the leave, he cannot raise the fresh issue; Dagaci Of Dere & Ors v. Dagaci Of Ebwa & Ors (2006) LPELR-911(SC). An exception to this rule is when the fresh issue deals with a complaint on jurisdiction, which even the Court can raise suo motu; Corporate Ideal Insurance Limited v. Ajaokuta Steel Company Limited & Ors (2014) LPELR-22255(SC). PER ONYEKACHI AJA OTISI, J.C.A.

WHETHER ISSUES OF FACT CAN BE RAISED BY ADDRESS OF COUNSEL

Issues of fact can only properly be raised on the pleadings, not by a counsel’s final address; Buraimoh v. Bamgbose (1989) LPELR-818(SC). Therefore, an issue which was not raised by the pleadings and on which evidence was not led, cannot be raised by address of Counsel. The Respondent’s Counsel rightly submitted that address of Counsel cannot substitute for evidence; Oduwole v. West (2010) LPELR-2263(SC), (2010) 10 NWLR (PT 1203) 598. PER ONYEKACHI AJA OTISI, J.C.A.

WHETHER A FACT MUST EITHER BE SPECIFICALLY DENIED OR DENIED BY IMPLICATION

It is trite that the plaintiff’s averments of facts must be met by the defendant frontally and categorically. The rules of pleadings do not allow the defendant to be hedgy or evasive in his answers to the facts averred by the plaintiff. It is the position of the law that a fact is deemed admitted if neither specifically denied nor denied by implication, having regard to other facts averred in the pleadings; Owosho v. Dada (supra), (1984) LPELR-2857(SC); Odiba v. Azege (1998) LPELR-2215(SC). PER ONYEKACHI AJA OTISI, J.C.A.

WHETHER ADMITTED FACTS NEED NO FURTHER PROOF

It is trite that facts admitted need no further proof; Ehinlanwo v. Oke (2008) LPELR-1054(SC); Owosho v. Dada (supra); Olofu v. Itodo (2010) LPELR-2585(SC). See also Section 123 of the Evidence Act 2011. PER ONYEKACHI AJA OTISI, J.C.A.

POSITION OF THE LAW ON CAPACITY TO SUE AND BE SUED

…there is no doubt that the law is settled that only natural or artificial persons with the requisite juristic personality can initiate legal actions or be proceeded against in such an action to be sued in Courts of law; Ataguba & Co v. Gura (Nig.) Ltd. (2005) LPELR-584(SC); (2005) 2 SC (PT 1), 101 Agbonmagbe Bank Ltd v. General Manager G.B. Ollivant Ltd. and Anor (1961) 1 All NLR 116. As a general principle of law, when either of the parties is not a legal person, either natural or artificial, then the capacity or competence to initiate or defend the action as the case may be, would be absent and the action is liable to be struck out for being incompetent; Agbonmagbe Bank Ltd. v. Gen. Manager, G.B. Ollivant Ltd, (supra); Akpan & Ors v. Umoren & Ors (2012) LPELR-7909(CA). This issue can first be raised on appeal, for the simple reason that it impacts on the jurisdiction of the trial Court to entertain the suit at all. Juristic or legal personality can only be donated by the enabling law. This can either be the Constitution or a Statute. If the enabling law provides for a particular name by way of juristic or legal personality, a party must sue or be sued in that name, and not in any other name; The Registered Trustees of The Airline Operators of Nigeria v. Nigerian Airspace Management Agency (2014) LPELR-22372(SC). Now, it is an elementary principle that a plaintiff must be accorded legal recognition before the question of standing to sue can arise; Socio-Political Research Development v. Ministry of FCT & Ors (2018) LPELR-45708(SC). The plaintiff must have legal personality before a consideration of whether or not he has the locus standi to take the action. The term “locus standi” denotes the legal capacity to institute proceedings in a Court of law and is used interchangeably with terms like “standing” or “title to sue”. It is the right or competence to initiate proceedings in a Court of law for redress or assertion of a right enforceable at law. The plaintiff or the plaintiffs must have sufficient interest or legal right in the subject matter of the dispute; Ladejobi & Ors v. Oguntayo & Ors (2004) LPELR-1734(SC). It is in the statement of claim that the personal interest of the claimant to institute the action must be revealed. Where the statement of claim discloses no such personal interest, the claimant would have no locus standi to institute the action; Yesufu v. Govr. Edo State (2001) 6 S.C. 56; Oloriode v. Oyebi (1954) LPELR-2591(SC); A. G. Adamawa State v. A.G. Federation (2005) 12 S.C. (Pt.11) 133; UBA Plc v. BTL Industries Ltd (2006) 12 S.C. 6. However, where there is more than one plaintiff, the name of the party without locus standi must be struck out and the suit will proceed with the competent parties; Ashiki & Ors v. Abubakar & Ors (2018) LPELR-45895(CA). PER ONYEKACHI AJA OTISI, J.C.A.

MEANING OF THE EXPRESSION “MESNE PROFITS”; DIFFERENCES BETWEEN MENSE PROFIT AND RENT

Clarifying the meaning and nature of mesne profit, the Law Lord, Oputa, J.S.C. in Debs & Ors v. Cenico Nigeria Ltd (supra), (1986) LPELR-934(SC) at pages 7 – 8, said: “To begin with, it is necessary to have a clear idea of what mesne profits are. In Bramwell v. Bramwell (1942) 1 K.B. 370; (1942) 1 ALL ELR. 137 at p.13S, Goddard, L.J. described the expression “mesne profits” as “only another term for damages for trespass arising from the particular relationship of landlord and tenant”. The expression “mesne profits” simply means intermediate profits – that is, profits accruing between two points of time that is between the date when the Defendant ceased to hold the premises as a tenant and the date he gives up possession. Rent is different from mesne profits. Rent is liquidated, mesne profits are not. Rent is operative during the subsistence of the tenancy, while mesne profits start to run when the tenancy expires and the tenant holds over. The action for mesne profits does not lie unless either the landlord has recovered possession, or the tenant’s interest in the land has come to an end, or his claim is joined with a claim for possession.” See also: A.P. v. Owodunni (1991) LPELR-213(SC); Ayinke v. Lawal (supra), (1994) LPELR-680(SC); Abeke v. Odunsi & Anor (supra), (2013) LPELR-20640(SC). Mesne profits are generally calculated on the yearly value of the premises; Debs & Ors v. Cenico Nigeria Ltd (supra); Ayinke v. Lawal (supra). PER ONYEKACHI AJA OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal lodged against the judgment of the High Court of Lagos State Coram Emeya, J. (the lower Court) delivered on May 5, 2015, wherein the claims of the Respondents as claimants were granted while the counter-claim of the Appellant was dismissed.

The facts leading to this appeal can be summarized in this manner: The Appellant was a staff of the 2nd Respondent, employed in 1983. The 1st Respondent was appointed by the 2nd Respondent as a Pension Fund Administrator for its staff, and its duties included management of all the assets of the 2nd Respondent. The Appellant remained in the employment of the 2nd Respondent until the termination of her employment on 19/7/2005. Aggrieved by the termination of her employment, the Appellant lodged on administrative appeal to the Council of the 2nd Respondent. Upon a consideration of her appeal, the termination of her employment was commuted to retirement on 7/4/2006. The 2nd Appellant had allocated official accommodation situate at No. 18, Sobo Arobiodu Street, Ikeja G.R.A., Lagos, to the Appellant in 2004. Upon the termination of her

employment in 2005 and commutation of the termination to retirement in 2006, the Appellant was required to vacate the said official quarters. The Appellant however refused to either vacate the said property or pay rent in respect of the property. Statutory Notice to Quit dated 31/12/2009 was served on her, but the Appellant failed to either deliver the keys to the Flat or to pay rent thereon. The Respondents commenced action at the lower Court against the Appellant seeking the following reliefs, pages 3-5 of the Record of Appeal:
(i) Possession of the 4-bedrooms flat situate at No. 18, Sobo Arobiodu Street, Ikeja GRA, Lagos State.
(ii) Mesne profit/damages for use and occupation from the 1st day of August 2005 at the rate of N100,000.00 (One Hundred Thousand Naira Only) per month until possession of the property is given up by the Defendant.
(iii) The particulars of claim are as per the attached Statement of Claim.

The Appellant filed a Statement of Defence and Counterclaim, pages 23 – 32 of the Record of Appeal. The case of the Appellant was that the issue of termination of her employment was yet to be conclusively decided, and

that as a result, she was still in the employment of the 2nd Respondent. For this reason, that she could not be asked to give up possession of the said flat. She counterclaimed seeking these reliefs:
1. A withdrawal of its letters termed “Termination of Appointment and Retirement from Service”.
2. An injunction restraining the claimants from ejecting the defendant from its official quarters pending the determination of this suit.
3. A reinstatement of the defendant as an employee of the 2nd claimant.
4. Payment of all arrears of salary from June, 2005 to the date of reinstate (sic) with all promotions due the defendant.

At the conclusion of hearing, the lower Court delivered judgment in favour of the Respondents on 4/5/2015. Dissatisfied with the decision of the lower Court, the Appellant lodged this appeal by Notice of Appeal filed on 7/5/2015 on five grounds of appeal, pages 369 – 372 of the Record of Appeal.

The parties filed Briefs of Argument. The Appellant’s Brief was filed on 24/2/2016 but deemed properly filed and served on 18/1/2017. The Respondents’ Brief was filed on 21/2/2017. The

Appellant’s Reply Brief was filed 10/3/2017. The Briefs were respectively adopted on 18/1/2021 by Bukola Houston – Agun, Esq., for the Appellant, and by Ayodeji Awobiyide, Esq., for Respondents. While the Appellant sought the Court to allow the appeal and set aside judgment of the lower Court, the Respondents sought to have the appeal dismissed. The Respondents also sought resolved, as a preliminary issue:
Whether the Appellant’s Brief dated and filed on 24th February, 2016 but deemed properly filed and served on 18th January, 2017 is competent.

The objection of the Respondents to the Appellant’s Brief was that the issues distilled for determination therein were not tied to any ground of appeal. Issues for determination, to be competent, must flow from a ground of appeal, relying on Madumere v. Okafor (1996) 4 NWLR (PT 445) 637 at 644; Salzgitter Stahl GMBH v. Aridi Ind. Ltd (1996) 7 NWLR (PT 459) 192 at 200; and Dieli v. Iwuno (1996) 4 NWLR (PT 445) 622 at 633. The Court was urged to declare the Appellant’s Brief incompetent and the appeal be dismissed.

In the Reply Brief, the Appellant submitted that all issues

framed for determination were distilled from the grounds of appeal. The Court was urged to examine the grounds of appeal against the issues raised to come to the decision that the Appellant’s Brief was competent.

Resolution of Preliminary Issue
There are established rules and principles that govern formulation of issues for determination of an appeal. Fundamentally, for issues for determination in an appeal to be competent, they must flow from the grounds of appeal; Akpan v. Bob (2010) LPELR-376(SC); Nwankwo v. Yar’Adua (2010) LPELR-2109(SC); Ukiri v. Geco-Prakla (Nig) Ltd (2010) LPELR-334(SC); Idika & Ors v. Erisi & Ors (1988) 2 NWLR (PT 78) 563. An issue for determination in an appeal must be formulated from a ground of appeal which in itself represents the broad outline of the complaint against the decision being challenged. The purpose of a ground of appeal is to define the complaint against the decision being appealed against. Issues for determination cannot therefore be at large, but must fall within the purview of the grounds of appeal filed. It cannot be overemphasized that competent issues for determination must be based

on, be related to or arise from the grounds of appeal. Any issue not formulated or distilled from a ground of appeal is incompetent, and, must be struck out; Okonobor & Ors v. Edegbe & Sons Transport Co. Ltd (2010) LPELR-2488(SC); Olowosago v. Adebanjo (1988) 9 SC 87; Drexel Energy and Natural Resources Ltd v. Trans International Bank Ltd (2008) 18 NWLR (PT 1119) 388.

As rightly observed by the Respondents’ Counsel, the five issues distilled for determination of this appeal by the Appellant were not tied to any of the five grounds of appeal. Counsel have always been admonished to marry the issues raised for determination to the ground or grounds of appeal; Akpan v. FRN (2011) LPELR-3956(CA); Yussuf v. Ilori (2007) LPELR-5137(CA); Ukwuoma v. Okafor (2016) LPELR-41505(CA); Daisi v. IGP (2019) LPELR-47897(CA). This paints a clear picture of the appeal and obviates the need for the respondent and the Court to examine the grounds of appeal vis-a-vis the issues raised for determination in order to ascertain that the issues have been distilled from the grounds of appeal or otherwise, and also ascertain whether any ground of appeal has been abandoned.

If this admonition had been adhered to by learned Counsel for the Appellant, there would have been no need for this objection.
The point must, however, be made that the extant COA Rules do not prescribe that issues for determination in an appeal must be tied to the grounds in briefs of parties, on pain of a sanction. Thus, where an appellant has failed to tie his issues to the grounds of appeal, as is the convention or practice, the current attitude of the appellate Courts appears to be one of liberality; Agodi v. Anyanwu (2014) LPELR-23746(CA); Ukwuoma v. Okafor (supra); Daisi v. IGP (supra). In Otu v. ACB International Bank Plc (2008) LPELR-2827(SC), the Supreme Court, per Tobi, J.S.C. said, page 13:
“Issues are formulated from grounds of appeal and if they are based on valid grounds of appeal, an appellate Court must consider them.”
Therefore, while failure to adhere strictly to the practice may not be penalized, the Court is bound to ensure that the issues formulated for determination of an appeal are in fact related to or arise from the grounds of appeal. In that light, this Court now resounds the demand that counsel should tie

issues for determination to the grounds of appeal in order to remove the additional burden of doing so on the Court. That said, I shall proceed to examine the issues formulated by the Appellant for determination of this appeal against the grounds of appeal in order to ensure the competence of the issues.
The preliminary issue raised by the Respondents therefore is overruled and hereby dismissed.

Substantive Appeal
The Appellant distilled five Issues for determination of this appeal:
1. Whether the trial Court was right in law when it ordered the defendant (Appellant) to pay the sum of N100,000.00 (one hundred thousand Naira only) per month as mesne profit from July 2006 until possession is given up, without looking critically at when the statutory notices were issued, how mesne profit should be calculated and when it should start running.
2. Whether the Statutory notices issued for possession of the property the subject matter of this suit dated 31st December, 2009 and 15th July, 2010 respectively are competent in law.
3. Whether the 2nd claimant (2nd Respondent) is entitled to recover possession of the said property from the

defendant, while the defendant is still in the employment of the 2nd claimant.
4. Whether an appointee without a power of attorney can sue in law.
5. Whether the trial Court was right in making pronouncement on the employment status of the defendant when it is clear it had no jurisdiction so to do.

For the Respondents, two Issues were formulated:
i. Whether learned trial Judge rightly or wrongly entered judgment in favour of the Respondents for possession of the disputed property and payment of mesne profit by the Appellant at the rate of N100,000 per month with effect from July, 2006 until possession is delivered.
ii. Whether the learned trial Judge rightly exercised jurisdiction over the Appellant’s counter-claim having record to the fact that it was Appellant who approached the Court below with the counter-claim.

The issues formulated by the Appellant, were distilled from the grounds of appeal, but the issues, as framed, are quite unwieldy. The issues in controversy are however subsumed in the Issues as formulated by the Respondents. Issues 1, 2, 3 and 4 as framed by the Appellant are subsumed in the Respondents’

Issue 1; while Issue 5 is subsumed in the Respondents’ Issue 2. I shall therefore adopt the issues as formulated by the Respondents for the determination of this appeal.

Arguments
Issue 1.
The Appellant contended that the learned trial Judge was wrong to have ordered the Appellant to pay the sum of N100,000.00 as mesne profit from July 2006 until possession is given up, without looking critically at when the statutory notices were issued, how mesne profit should be calculated and when it should start running. The Notice to Quit issued on the Appellant, was dated 31/12/2009 and expired on 30/6/2010. Mesne profit was supposed to start running from July, 2010 till possession is given up and not from July, 2006. Since no notice of increment of rent was given to the Appellant, mesne profit was supposed to have been calculated based on her existing rent as an employee of 2nd Respondent which was N150,000.00 per annum. The decisions in Dr. Michael Emuakpor Abeke v. Barrister A. A. Odunsi & Anor (2013) LPELR-20640(SC); Ahmed Debs & Ors v. Cenico Nigeria Ltd (1986) NWLR (PT.32) 846; LPELR 183/1984; Bramwell v. Bramwell (1942) 1 KB 370

(1942) 1 ALL ELR 137 at 138; Mr. Jerry Ibekwe v. Mr. Nelson Nweke (2013) LPELR-22021 (CA) were cited and relied on.

Mesne profits are awarded in place of rents, where the tenant remains in possession after the tenancy agreement has run out or been duly determined; relying on Obijiaku v. Offiah (1995) 7 NWLR (PT 570) 523; Udi v. Izedonimwen (1990) 2 NWLR (PT.132) 357; Osawaru v. Ezeiruka (1978) 6-7 SC 135 at 139. On circumstances in which a claim for mesne profits can be maintained, reliance was placed on the case of Dr. Michael Emuakpor Abeke v. Barrister A. A. Odunsi & Anor (supra); Omotosho v. Oloriegbe (1988)4 NWLR (PT.87) 225; Ayinde v. Lawal & Ors (1994) 7 NWLR (PT 356) 263 to submit that mesne profit would not start running until the tenancy has duly been determined according to law, but that the Appellant was still in lawful occupation of the said property as an employee of the 2nd Respondent.

It was further contended that the Appellant’s tenancy was not duly determined according to law, considering the inconsistencies in the statutory notices served on her. The Appellant was served with a Notice to Quit dated 31/12/2009 and a Notice

of Owner’s intention to Recover Possession dated 15/7/2010, both issued by Oladipo, Awoeyo & Partners; Estate Surveyors, who were described thereon as Estate Managers to the Appellant’s Landlord NLPCFA/WAEC. It was contended that on the face of the two notices, there were so many ambiguities. That it would be difficult to know exactly what NLPCPFA/WAEC meant as a Landlord. Statutory Notices ought to be clear and unambiguous. Any defect, deficiency, irregularity, mistake, omission or deviation however slight or trivial made in relation to the issue or service, content or form of any statutory notice renders such notices invalid and any action, act or suit taken on the basis of such an invalid notice is a nullity.

It was argued that NLPCFA/WAEC was not known as a Landlord to the Appellant. The property was allocated to the Appellant by her Employer, West Africa Examination Council, who was the 2nd claimant at the lower Court and the 2nd Respondent in this matter, and to whom she paid the sum of N150,000.00 as rent.

It was further submitted that NLPCPFA/WAEC was not a juristic person that can issue statutory notice. The 1st Respondent

had never acted as a landlord to the Appellant. It was posited that the 1st Respondent could at best be an agent, but that it did not issue the statutory Notices. Rather, the statutory notices were issued on behalf of the Respondents by one Oladipo, Awoeyo & Partners. It was therefore in contention whether or not a valid Notice to Quit was issued. The decisions in Otegbade v. Adekoya (1962) 2 ALL NLR 52; Kelani v. Jones (1996) L.L.R. 77; Adubiaran v. Etti (1962) L.L.R 104 were cited and relied on.

Counsel for the Appellant posed the question whether NLPCPFA/WAEC can be taken as names of the landlords? The 1st Respondent was a pension fund administrator and not a landlord to the Appellant. The provisions of Section 44 and 45 of Part VIII page P4-20 of the Pension Reform Act, Laws of Federation of Nigeria Vol. 13 were cited. Counsel argued that even if the 1st Respondent had an equitable interest in the property in issue, it still cannot give notice to quit, citing Oyeledun v. Shomoye (1960) WNLR 126. The 1st Respondent was not the Appellant’s landlord and the Appellant had never paid any rent to the said 1st Respondent. It was submitted that the

notices were therefore incompetent.

The Appellant got into possession of the said property while in the employment of the 2nd Respondent. The Respondents instituted the action to recover possession of the said property while the issues between the Appellant and the 2nd Respondent were still unresolved. The Appellant had protested her retirement vehemently by various channels. It was her contention that she was not notified in writing of the nature of the misconduct for which she was to be disciplined, nor was she given an opportunity to defend herself or to put questions to the witnesses presented. There was need to prove the criminal allegations against her, citing Olanrewaju v. Afribank Plc (2001) FWLR PT 72 Ratio 2 (incomplete citation); Garba v. Unimaid (1986)1 NWLR (PT 18) 550; Olaniyan v. Unilag (1985) 2 NWLR (PT 9) 599. Counsel posited that on this basis, the 2nd Respondent should not have instituted an action for recovery of possession as there was a nexus between the said property and the Appellant’s employment, relying on Ejide v. Abode (1959) SCNLR 32.

It was also argued that the Respondents did not prove to the lower Court that the 1st

Respondent or the Estate Managers who issued the statutory notices on the Appellant had interest or title in the said property. There was no power of Attorney given to the 1st Respondent nor was there a letter of Authority given to the Estate Managers to issue and serve Statutory Notices on behalf of the Landlord. An appointee without a power of attorney cannot institute as action against anybody in law. The 1st Respondent did not have the competence, interest or standing to commence an action against the Appellant having failed to present to the lower Court authentic interest in the property of the 2nd Respondent.

For the Respondents, the evidence led before the lower Court was relied on. On the contentions against the competence of the statutory notices served on the Appellant, the holding of the learned trial Judge that the Appellant did not deny receiving notice from WAEC, the Appellant’s Landlord, which was the 2nd claimant in the lower Court was relied on. The Appellant did not challenge WAEC’s locus as her Landlord to institute the action for recovery of possession. The presence of WAEC alone as a claimant in the Lower Court was

sufficient to sustain the action as one or more proper claimants makes an action to be properly constituted even if the other claimants have no locus standi.

The notices to quit and of intention to recover possession had the name of WAEC on them. The names were disjointed thereon with a slash (/) in between the names of the 1st Respondent and 2nd Respondent to show that either of them could sue as Landlord in its name. It was submitted that there was no ambiguity in the statutory notices issued and served on the Appellant as to the identity of her Landlord. Parties did not join issues on the ambiguity or invalidity of the two notices as no such issue was raised in the Statement of Defence/Counter-claim. The Appellant was now estopped from raising the issue of ambiguity of the notices. Further, that the issue of ambiguity was only raised at the stage of final written addresses, which was not a substitute for evidence and pleadings. An address not based on pleadings and evidence is liable to be ignored, relying on Eze v. Okoloagu (2010) 3 NWLR (PT. 1180) 183 at 212; Okeji v. Olokoba (2000) 4 NWLR (PT. 654) 513 at 529.

It was further submitted that a

tenant is estopped from denying the title of his/her Landlord. The Appellant, who was no longer an employee of the 2nd Respondent was not entitled to know the internal workings of the 2nd Respondent as to be informed of the fact of 1st Respondent’s appointment by the 2nd Respondent. Section 45(b) of the Pension Reform Act, Cap. P4 Laws of the Federation 2004 allowed the 1st Respondent to invest and manage pension funds and assets in accordance with the provisions of the Act. The property, subject of this appeal, was one of the assets being managed jointly by the Respondents in line with the provisions of the Pension Reform Act.

The Respondents by paragraphs 12 and 13 of their Statement of Claim put the issuance and service of the Statutory Notice in issue. In response to the said paragraphs, the Appellant in paragraph 6 of her Statement of Defence put up an evasive denial, which in law amounts to an admission, relying on Olale v. Ekwelendu (1989) 4 NWLR (PT.115) 126 at 360; Balonwu v. Obi (2007) 5 NWLR (PT. 1028) 488 at 537; Okonkwo v. CCB (Nig) Plc (2003) 8 NWLR (PT. 822) 347 at 418. Having admitted that notices were issued on behalf of 1st and 2nd

Respondents, the Appellant was estopped from raising issue of ambiguity of the notices or locus standi of the 1st Respondent. Reliance was placed on Section 123 of the Evidence Act, 2011, and judicial pronouncements in decisions that included: Iga & Ors v. Amakiri & Ors (1976) 11 NSCC 610 at 616; Gwabro v. Gwabro (1998) 4 NWLR (PT.544) 60 at 70; Ude v. Nwara (1993) 2 NWLR (Part 278) 638 at 662.

On the Appellant’s contention that the 1st Respondent as an appointee of the 2nd Respondent cannot sue without a power of attorney, it was submitted that Section 13 of the Rent Control and Recovery of Residential Premises Law of Lagos State, 2003 allows Agents and Legal Practitioners to issue notice to quit and notice of owner’s intention to recover possession of property in case where such notices are not issued by the Landlord. Where the language of the Statute is clear, it is improper to import into the Statute ideas not contained in the statute, nothing is to be added or taken away from such statute, relying on Egbue v. Araka (1996) 2 NWLR (PT.433) 688 at 706; I.B.W.A. v. Imano (Nig) Ltd (1988) 3 NWLR (PT.85) 633 at 660. The Court was urged to

hold that the two notices were valid and proper notices. Counsel further submitted that where, as in this case, the action was instituted in the name of the Landlord and the notices are tendered by a witness called by the Landlord, it constitutes sufficient evidence that the notices were issued with the knowledge and consent of the Landlord.

On the argument that the Appellant’s Landlord was 2nd Respondent, which allocated the property to her in the course of her employment as an employee, and that NLPCPFA/WAEC was unknown to her as her Landlord, it was submitted that the property had been allocated to the Appellant as her staff quarters by the 2nd Respondent, then the sole owner of the property. The 2nd Respondent later appointed 1st Respondent as her pension fund administrator as a result of which the 1st Respondent was expected to manage the assets of 2nd Respondent, which included the property in dispute. The 1st Respondent had acquired joint interest in the property at the time the action was instituted, hence the Suit at the lower Court was commenced on behalf of the 1st and 2nd Respondents. The 1st Respondent had sufficient standing to sue for

the recovery of the said property from the Appellant. The Appellant did not frontally deny the above averments in the statement of defence, and also failed to challenge the documentary evidence tendered by CW1 in support of the pleaded facts. Averments not denied are deemed admitted, citing Sodipo v. Ogidan (2008) 4 NWLR (Pt.1077) 342 at 367-368; Owosho v. Dada (1984) 7 SC 149 at 163-164. The Court was urged to affirm the findings of the lower Court and hold that the Respondents’ Statutory Notices served on the Appellant were good, proper and valid.

On the issue of mesne profit, it was submitted that the issue of when mesne profit would begin to run did not arise for determination in the lower Court. This issue cannot therefore raised on appeal. The Court was urged to discountenance the arguments of the Appellant thereon, relying on Odom v. PDP (2015) 6 NWLR (PT 1456) 527 at 569; Atakpa v. Ebetor (2015) 3 NWLR (PT 1447) 549.

In the alternative, it was argued that the evidence of CW1 on the annual rental value of the property being N1, 200,000.00 and mesne profit being N100, 000.00 per month as well as the contents of Exhibit CW5, which was

tendered by CW1 were not challenged by the Appellant. Exhibit CW1 was the Appellant’s Letter of Termination dated 19/7/2005, wherein Appellant was requested to surrender all Company property in her possession. Notwithstanding Exhibit CW1, the Appellant failed to deliver up possession of the said property. Consequently, the Appellant was served with another letter dated 5/10/2006, Exhibit CW 7, again requesting her to vacate the said property.

The oral and documentary evidence of CW1 in respect of the award of mesne profit was unchallenged by Appellant’s Counsel under cross-examination. It was submitted that the authorities cited by the Appellant in her brief of argument further solidify the finding of learned trial Judge that the Respondents were entitled to Mesne Profit from the Appellant. The Appellant was allocated the staff quarters on 31/1/2003 but she ceased to be an employee of the 2nd Respondent when her employment was terminated on 19/7/2005. The termination was commuted to retirement on 7/4/2006 following Appellant’s plea to the Council of the 2nd Respondent. Learned trial Judge found that the Appellant ceased to be a Tenant of

the Respondents from July 2006, a period of 3 months after her termination was commuted to retirement. It was contended that the Appellant, who was yet to deliver up vacant possession of the said property and appurtenance, wrongfully retained possession of the property from the Respondents and that the Respondents were entitled to an award of mesne profit from July, 2006 until possession is delivered by the Appellant. Reliance was placed on the following cases; Ibile Holding Ltd v. P.D.S.S. (2002) 16 NWLR (Pt.792) 117 at 133; Agbamu v. Ofili (2004) 5 NWLR (PT. 867) 540 at 571, 572. The Court was urged to resolve this issue in favour of the Respondents.

In the Reply Brief, the Appellant rehashed most of earlier arguments, and raised questions that, at best, are speculative. This is not the purpose of a reply brief by the provisions of Order 19 Rule 5(1) of the Court of Appeal Rules, 2016. A reply brief does not provide a fresh window for an appellant to reargue or rehash submissions already made in the appellant’s brief. I shall therefore discountenance irrelevant portions of the Reply Brief.

Resolution
It is trite that an appeal is a

continuation of the matter that was heard at the lower Court; Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC); FBN v. Agbara (2020) LPELR-50632(SC); PDP v. Umeh (2017) LPELR-42023(SC). Before the appellate Court, the continuation of the matter is by way of a rehearing predicated on complaints arising from the decision of the lower Court; Abubakar & Ors v. Nasamu & Ors (2012) LPELR-7826(SC). One implication of this principle is that no fresh issue that has not been canvassed before the lower Court and on which there is a decision of the lower Court, can be raised on appeal, without leave of Court. Such issue to be raised must be relevant and no further evidence is necessary. This is because the law does not want the party to take unnecessary advantage against the adverse party on appeal and that the party applying to raise the new issue must satisfy the Court that it is proper to do so; Stirling Civil Engineering (Nigeria) Ltd v. Yahaya (2005) LPELR-3118(SC). Eze v. Unijos (2017) LPELR-42345(SC). Where the party fails to secure the permission of the Court, which is the whole essence of the leave, he cannot raise the fresh issue;

Dagaci Of Dere & Ors v. Dagaci Of Ebwa & Ors (2006) LPELR-911(SC). An exception to this rule is when the fresh issue deals with a complaint on jurisdiction, which even the Court can raise suo motu; Corporate Ideal Insurance Limited v. Ajaokuta Steel Company Limited & Ors (2014) LPELR-22255(SC).

The matter before the lower Court was fought on the pleadings. Issues of fact can only properly be raised on the pleadings, not by a counsel’s final address; Buraimoh v. Bamgbose (1989) LPELR-818(SC). Therefore, an issue which was not raised by the pleadings and on which evidence was not led, cannot be raised by address of Counsel. The Respondent’s Counsel rightly submitted that address of Counsel cannot substitute for evidence; Oduwole v. West (2010) LPELR-2263(SC), (2010) 10 NWLR (PT 1203) 598.
The Statutory Notice to Quit was issued on the Appellant by:
Oladipo, Awoeyo & Partners, Estate Manager to your Landlord NLPC PFA/WAEC.

Contrary to the submissions for the Appellant, the records reveal that in the lower Court, the Appellant did not plead or at all testify regarding any confusion as to who her landlord was or who

it was that served her with a notice to quit. In paragraphs 10, 11, 12 and 13 of the Statement of Claim, the Respondents pleaded, pages 3 – 4 of the Record of Appeal:
10. The Claimants avers(sic) that the Defendant refused to deliver up possession despite the service of a Statutory Notice to quit dated 31st December, 2009 on the (sic) her by the Estate Managers to the Claimants. The Claimants hereby plead the said Notice.
11. The Claimants further aver that the Statutory Notices expired on the 30th day of June, 2010. The Defendant was thereafter served with a 7 day Notice of Owners intention to recover possession of the flat. The Claimants hereby plead the 7 days’ Notice served on the Defendant by the Claimants’ Estate Manager.
12. The Defendant in spite of the service of the Statutory Notices failed, refused, neglected to deliver up possession of the flat but still detains same from the Claimants.
13. The Claimants aver that when the Defendant receive the said Notices, the Defendant rather than deliver up possession instructed the Law Firm of Falana & Falana to write a Letter dated 27th July, 2010 to the

Claimant’s Agent wherein the Defendant acknowledged the receipt of the 7 days’ Notice but deliberately refused to deliver up possession on the pretext that the Public Complaints Commission and the 2nd Claimant are currently engaging in discussions which the Claimants denied.

In response to Respondents’ categorical assertions in the Statement of Claim on service on her of the Statutory Notices to Quit, the Appellant’s languid response in paragraph 6 of her Statement of Defence, pages 23 – 24 of the Record of Appeal, was simply:
“The Appellant will neither deny nor admit paragraphs 8, 9, 10, 11, 12 and 13 of the statement of claim…”

Odiba v. Azege (1998) LPELR-2215(SC). I agree with the Respondents that the averment of the Appellant was in effect an admission.
The Appellant received the Notices and had no misperception as to who served her with the said Notices. Further, there was no contention as to the legal personality of the issuers of the Notice to Quit, being NLPC PFA/WAEC or as to the locus standi of the issuers. I shall return to this point anon.
It is trite that facts admitted need no further proof; Ehinlanwo v. Oke (2008) LPELR-1054(SC); Owosho v. Dada (supra); Olofu v. Itodo (2010) LPELR-2585(SC). See also Section 123 of the Evidence Act 2011.

Notwithstanding, there is no doubt that the law is settled that only natural or artificial persons with the requisite juristic personality can initiate legal actions or be proceeded against in such an action to be sued in Courts of law; Ataguba & Co v. Gura (Nig.) Ltd. (2005) LPELR-584(SC); (2005) 2 SC (PT 1), 101 Agbonmagbe Bank Ltd v. General Manager G.B. Ollivant Ltd. and Anor (1961) 1 All NLR 116. As a general principle of law, when either of the parties is not a legal person, either natural or artificial, then the capacity or

competence to initiate or defend the action as the case may be, would be absent and the action is liable to be struck out for being incompetent; Agbonmagbe Bank Ltd. v. Gen. Manager, G.B. Ollivant Ltd, (supra); Akpan & Ors v. Umoren & Ors (2012) LPELR-7909(CA). This issue can first be raised on appeal, for the simple reason that it impacts on the jurisdiction of the trial Court to entertain the suit at all.
Juristic or legal personality can only be donated by the enabling law. This can either be the Constitution or a Statute. If the enabling law provides for a particular name by way of juristic or legal personality, a party must sue or be sued in that name, and not in any other name; The Registered Trustees of The Airline Operators of Nigeria v. Nigerian Airspace Management Agency (2014) LPELR-22372(SC).
Now, it is an elementary principle that a plaintiff must be accorded legal recognition before the question of standing to sue can arise; Socio-Political Research Development v. Ministry of FCT & Ors (2018) LPELR-45708(SC). The plaintiff must have legal personality before a consideration of whether or not he has the locus standi to take

the action.

The term “locus standi” denotes the legal capacity to institute proceedings in a Court of law and is used interchangeably with terms like “standing” or “title to sue”. It is the right or competence to initiate proceedings in a Court of law for redress or assertion of a right enforceable at law. The plaintiff or the plaintiffs must have sufficient interest or legal right in the subject matter of the dispute; Ladejobi & Ors v. Oguntayo & Ors (2004) LPELR-1734(SC).

It is in the statement of claim that the personal interest of the claimant to institute the action must be revealed. Where the statement of claim discloses no such personal interest, the claimant would have no locus standi to institute the action; Yesufu v. Govr. Edo State (2001) 6 S.C. 56; Oloriode v. Oyebi (1954) LPELR-2591(SC); A. G. Adamawa State v. A.G. Federation (2005) 12 S.C. (Pt.11) 133; UBA Plc v. BTL Industries Ltd (2006) 12 S.C. 6.

However, where there is more than one plaintiff, the name of the party without locus standi must be struck out and the suit will proceed with the competent parties; Ashiki & Ors v. Abubakar & Ors (2018) LPELR-45895(CA).

The Statutory Notices were issued by: Oladipo, Awoeyo & Partners, Estate Manager to your Landlord NLPC PFA/WAEC. By the provisions of Section 13 of the Rent Control and Recovery of Residential Premises Law of Lagos State, 2003, the landlord or his agent on behalf of the landlord, may issue notice to quit and notice of owner’s intention to recover possession of property. The bodies on whose behalf the Statutory Notices were issued were: NLPC PFA/WAEC, which signified that two different bodies were involved, regardless of the use of acronyms. NLPC PFA and WAEC were acronyms for the 1st and 2nd Respondents herein. The legal personality of either the 1st or the 2nd Respondents was not disproved. In any event, it is the position of the law that a suit in the name of a juristic person and non-juristic person may be bad but it need not fail, for the name of the non-juristic person wrongly joined could be struck out retaining the juristic person and sustaining the suit; Pfizer Incorporated & Anor v. Mohammed (2013) LPELR-22354(CA). This, however, is not the case here. The Respondents were juristic persons.

The learned trial Judge held, page 350 of the Record of Appeal:
“On the issue of possession, the Defendant/Counter-Claimant has not denied receiving the statutory Notice to Quit and the Notice of Owner’s Intention to Recover Possession and she has admitted that she paid her rent last in 2004 to WAEC who is her landlord.
The argument of the defence however is that the Notices are incompetent because they were served by the Estate Managers of the Landlord. But the Claimants’ Witness, John Ogunkorede, confirmed the appointment of Oladipo, Awoeyo & Partners as the Estate Managers of the Claimants.
The law allows ‘Agent’ and legal Practitioners to issue statutory notice where such notices are not issued by the landlord. Since therefore, it has been established that these statutory notices received by the Defendant were issued on behalf of the Claimants. I held they are good, proper and valid in law and the 1st Claimant has the locus standi to bring an action for recovery of possession.”

The evidence of CW1 was that the 1st Respondent was appointed the Pension Fund Administrator to the 2nd Respondent. Exhibits CW1 and CW2

were the 1st Respondent’s appointment letter and their acceptance dated 26/10/2006 and 27/10/2006 respectively. By this appointment, the 1st Respondent was required to manage the assets of the 2nd Respondent, which included its residential staff quarters in issue. Under cross examination, this evidence was not challenged. Indeed, when asked the interest of the 1st Respondent in the property in issue, under cross examination, CW1 responded that the 1st Respondent was in charge and that the 1st Respondent had a Power of Attorney from the 2nd Respondent, the properties of the 2nd Respondent were given to the 1st Respondent to maintain the pension fund, pages 276 and 277 of the Record of Appeal. An attorney is literally, someone who is legally appointed to transact business on another’s behalf; Merriam-Webster Dictionary, 2021. However, the 1st Respondent did not simply bring this action as the attorney of the 1st Respondent. The 1st Respondent was the co-plaintiff of the 2nd Respondent at the lower Court. Exhibits CW1 and CW2, as well as the unchallenged evidence of CW1, all validate the authority and interest of the 1st Respondent in the property in

issue. The Appellant had admitted under cross examination that the 2nd Respondent was her landlord, page 280 of the Record of Appeal. The 1st and 2nd Respondents therefore had the locus standi to issue the Statutory Notices on the Appellant through their agent and to institute the instant action. I therefore see no reason to disturb the findings and conclusion of the learned trial Judge, reproduced above, on this issue.

The learned trial Judge held that the Respondents were entitled to their claim for the possession of the 4 Bedroom flat situated at No 18, Sobo Arobiodu Street, Ikeja GRA, Lagos, and that the Appellant was liable to pay mesne profit at the rate of N100, 000.00 per month from 1/7/2006 until possession of the property is delivered by the Appellant. The contention of the Appellant was that the order to pay the sum of N100,000.00 as mesne profit from July 2006 until possession is given up was wrong. Appellant’s Counsel had argued that the order was contrary to how mesne profit should be calculated and when it should start running. For the Respondent, it was submitted that the issue of when mesne profit should start to run did not arise

for determination at the lower Court. It was now being raised as a new issue on appeal, which the Appellant cannot competently do. In the alternative, it was argued that the learned trial Judge was right in awarding mesne profit in favour of the Respondents, relying on the oral and documentary evidence adduced by the Respondents. In his Reply Brief, the Appellant’s Counsel submitted that the issue of mesne profit was not a new issue as it was claimed by the Respondents in the lower Court.

Now, the Respondents did claim mesne profit before the lower Court. In paragraphs 14, 15 and 17 of the Statement of Claim, they pleaded, page 8 of the Record of Appeal:
14. That the Defendant is obliged to pay the Claimants mesne profit/damages for use and occupation from 1st day of August 2005 after cessation of her employment with the 2nd Claimant at the rate of N100,000.00 per month until vacant possession is given up.
15. Mesne profit/Damages, use and occupation rate on the property is in the sum of N100, 000.00 per month.
17. The Annual Rental Value of the said Flat is N1.2 million (one million two hundred thousand Naira).

CW1 testified in line with their pleadings. In her Statement of Defence, the Appellant did not refute the annual rental value of the property at all. Rather, she denied paragraphs 14 and 15 but pleaded that her rent, which was paid up to December, 2004 was N150, 000.00.

while mesne profits start to run when the tenancy expires and the tenant holds over.
The action for mesne profits does not lie unless either the landlord has recovered possession, or the tenant’s interest in the land has come to an end, or his claim is joined with a claim for possession.”
See also: A.P. v. Owodunni (1991) LPELR-213(SC); Ayinke v. Lawal (supra), (1994) LPELR-680(SC); Abeke v. Odunsi & Anor (supra), (2013) LPELR-20640(SC). Mesne profits are generally calculated on the yearly value of the premises; Debs & Ors v. Cenico Nigeria Ltd (supra); Ayinke v. Lawal (supra).

It was common ground that the Appellant was assigned the premises in issue as staff quarters by the 2nd Respondent. While the case for the Respondents was that after her employment was determined, she was expected to vacate the premises thereafter for other serving staff. Her refusal to vacate led to the present action. On her part, the case of the Appellant was that her employment had not been conclusively determined. She put up a spirited fight to challenge the fairness of her compulsory retirement, which process was ongoing. She therefore saw herself as

entitled to remain in possession since her status as staff of the 2nd Respondent had not been conclusively determined. The question now is whether the Appellant was entitled to remain as a tenant in the premises pending the determination of her petition against her compulsory retirement.

It is important to note that issues surrounding her compulsory retirement were considered by the trial Court under the Counterclaim of the Appellant. The learned trial Judge dismissed the Counterclaim and held that the Appellant ceased to be an employee of the 2nd Respondent from the month of April, 2006, page 357 of the Record of Appeal. In other words, from April, 2006, she was no longer a staff of the 2nd Respondent and entitled to be assigned staff quarters. I shall return to this point below.

The trial Court made allowance for three months grace to vacate the premises and ordered mesne profit to commence from July, 2006. Upon a consideration of the principles on which mesne profit can be calculated and awarded, having regard to established judicial pronouncements as afore cited, I see no reason to fault the decision of the learned trial Judge. The evidence of

CW1 on the annual rental value of the premises was not at all challenged. The annual rental value had absolutely nothing to do with whatever rent the Appellant was paying as a staff of the 2nd Respondent, who had been officially assigned the premises in issue.
All considered, I resolve this Issue against the Appellant and in favour of the Respondents.

Issue 2
The Appellant contended that the National Industrial Court has been vested with exclusive jurisdiction on all labour, employment and related matters following the enactment of the Constitution (Third Alteration) Act 2010 and as such all labour, employment and allied matters pending before State High Courts across Nigeria were required to be transferred to the National Industrial Court. Section 24(3) of the National Industrial Court Act, 2006 had been relied on by State High Courts in other matters to transfer labour matters pending before them to the National Industrial Court.

It was submitted that the lower Court, being a State High Court, had no jurisdiction to decide on the employment of the Appellant.

The case of Echelunkwo John O. & 90 Ors v. Igbo Etiti Local Government Area (2013) 7 NWLR (PT 1352) 1 (CA) was cited and relied on. The lower Court ought to have ordered the transfer of the issue of employment to the National Industrial Court and deal with the issue before it which was that of recovery of possession. The Court was urged to allow the appeal and set aside the judgment of the lower Court.

For the Respondent, the issue of employment of the Appellant was presented to the lower Court for adjudication by her Counterclaim. The Appellant led evidence in respect of the Counter-Claim and canvassed arguments in support thereof. She then urged the lower Court to grant the reliefs sought in the Counter-Claim. The lower Court evaluated the evidence thereon and dismissed the Counterclaim. Counsel for Respondents submitted that the Appellant who urged the lower Court to grant the reliefs sought in the Counterclaim is estopped from making a 180 degree turn and canvassing a different argument from that made at the lower Court by challenging the jurisdiction of the lower Court to entertain the same Counterclaim. Counsel raised the query of whether the Appellant would have challenged the jurisdiction of the lower Court to

entertain the Counter-Claim if the Counter-Claim had succeeded. He submitted that a party must be consistent in the presentation of its case through the hierarchy of our Courts. The Appellant was not at liberty to approbate and reprobate, changing positions at the trial and appellate Court. Reliance was placed on the following authorities: Oshoboja v. Amida (2003) 18 NWLR (Pt.1172) 188 at 213; Bawa v. Balarage (1999) 6 NWLR (Pt.605) 61 at 68.

Counsel further posited that even if the arguments canvassed by the Appellant that the lower Court was not possessed of jurisdiction to entertain the Appellant’s Counter-claim was conceded, there was now a decision of the National Industrial Court, Lagos Division, upon a fresh action, Suit No NICN/LA/201/2015 Mrs Ogbonne Idam v. West African Examinations Council, filed by the Appellant after the Judgment of the lower Court now on appeal, claiming the same relief sought in the Counter-claim. The 2nd Respondent by Notice of Preliminary Objection challenged the competence of the said Suit. In a considered ruling delivered on 1/3/2016, the said National Industrial Court, Lagos Judicial Division Coram O. O. Oyewumi

dismissed the Appellant’s suit for want of jurisdiction. In the light of that decision, the Appellant cannot approach the National Industrial Court for the reliefs set out in the Counter-claim. The lower Court, the State High Court, had properly exercised its jurisdiction to entertain the Counter-claim and dismissed same.

The suit was commenced by the Respondents pursuant to the Rent Control and Recovery of Premises Law of Lagos State. In the process of deciding the case, Appellant as Defendant raised the issue of her still being in employment of the 2nd Respondent. Appellant’s claim, which was tangential to the substantive suit for the recovery of premises, arose in the course of determining the Respondents’ claim. By virtue of Section 286 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, a State High Court can exercise jurisdiction over Federal cause which arise in the course of determining a case within its jurisdiction. The Court was urged to resolve this issue in favour of the Respondents.

Resolution
It must be recalled that this suit was commenced by the Respondents pursuant to the Rent

Control and Recovery of Premises Law of Lagos State. The Appellant as defendant filed her Statement of Defence and counterclaim in which she averred that she was still in employment of the 2nd Respondent and was entitled to remain in possession. The lower Court evaluated the evidence presented and dismissed the counterclaim. Now on appeal, the Appellant has in volte-face attacked the jurisdiction of the lower Court before which she had presented her case.

The position of the law, as rightly submitted by the Respondents’ Counsel is that a party is to be consistent with his case, and not shift ground with each Court in the judicial hierarchy. He would not be allowed to take one stance in the trial Court then take another stance one on appeal; Ajide v. Kelani (1985) 3 NWLR (Pt 12) 248, (1985) LPELR-302(SC); Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC); Asaboro & Anor v. Pan Ocean Oil Corporation Nigeria Limited & Anor (2017) LPELR-41558(SC).

However, I am not unmindful of the fact that jurisdiction is always a threshold issue, which can be raised at any time, even on appeal; Adetayo v. Ademola (2010)

LPELR-155(SC); Adah v. N.Y.S.C. (2004) 19 NSCQR 220; Utih v. Onoyivwe (1991) 1 SCNJ 25; Petrojessica Enterprises Ltd v. Leventis Technical Company Ltd (1992) LPELR-2915 (SC); Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518 S.C.

It is also the position of the law that jurisdiction cannot be conferred on the Court by the parties; Uwagba v. FRN (2009) LPELR-3443(SC); Gafar v. The Government of Kwara State (2007) LPELR-8073(SC). Therefore, the fact that parties in an action fought the case on the erroneous basis that the Court had jurisdiction to entertain the suit, when it did not, the party cannot be estopped from subsequently taking the contrary position. Jurisdiction cannot be acquired by consent of the parties, nor can it be enlarged by estoppel; Shitta-Bey v. Attorney-Gen. for the Federation (1998) LPELR-3055(SC), (1998) 10 NWLR (Pt 570) 392; Adesola v. Abidoye & Anor (1999) LPELR-153(SC).

Where a Court proceeds to hear a matter, without jurisdiction, the proceedings, no matter how well conducted, as well as every order or decision arising therefrom, amount to a nullity; ex nihilo nihil fit; Odom v. PDP (supra), (2015) LPELR-24351(SC); Oloba v. Akereja

(1988) LPELR-2583(SC), (1988) 3 NWLR (Pt.84) 508. Therefore, where a Court finds that it has no jurisdiction to hear a matter, it must strike out the suit; Sylva v. INEC (2015) LPELR-24447(SC).

However, I really fail to see how this entire argument on jurisdiction advances this appeal in favour of the Appellant. The main suit was commenced by the Respondents pursuant to the Rent Control and Recovery of Premises Law of Lagos State for recovery of possession and mesne profit. The reliefs sought by the Respondents were well positioned within the jurisdiction of the lower Court to adjudicate upon. The Appellant in her Counterclaim sought the following orders, pages 23 – 32 of the Record of Appeal:
5. A withdrawal of its letters termed “Termination of Appointment and Retirement from Service”.
6. An injunction restraining the claimants from ejecting the defendant from its official quarters pending the determination of this suit.
7. A reinstatement of the defendant as an employee of the 2nd claimant.
8. Payment of all arrears of salary from June, 2005 to the date of reinstate (sic) with all promotions due the defendant.

It is well settled that a counterclaim is a separate, independent and distinct action in which the counterclaimant must prove his counterclaim to obtain judgment thereon; Usman v. Garke (2003) LPELR-3431(SC); Ogli Oko Memorial Farms Ltd & Anor v. NACB Ltd (2008) LPELR-2306(SC); Jeric (Nig) Ltd v. UBN Plc (2000) LPELR-1607(SC). The separate and independent nature is borne out of the fact that it allows the defendant maintain action against the plaintiff as profitably as in a separate suit. It is a weapon of defence that enables the defendant to enforce a claim against the plaintiff as effectively as an independent action; Oroja & Ors v. Adeniyi & Ors (2017) LPELR-41985(SC).

If the reliefs sought in a counterclaim are within the jurisdiction of the trial Court, then the trial Court can hear the counterclaim and its decision thereon would not amount to a nullity. On the other hand, if the reliefs sought in the counterclaim are not within the jurisdiction of the trial Court, the counterclaim would be struck out. If already heard by the trial Court, then the proceedings and any orders made pursuant thereto would amount to a nullity

and be of no effect.
Therefore, if the orders made by the lower Court on the counterclaim were made sans jurisdiction, those orders would amount to null orders. However, the null orders would not, by any means, affect the competent orders made on the substantive suit by the lower Court. Therefore, the fact that the lower Court had no jurisdiction to hear and determine the counterclaim of the Appellant, which queried the status of the Appellant’s employment with the 2nd Respondent, does not affect the decision of the lower Court on the substantive suit filed by the Respondents.

Further, I agree with the Respondent’s Counsel that the provisions of Section 286 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, enable the lower Court to exercise jurisdiction over a Federal cause in the circumstance of this case. For these reasons, Issue 2 is resolved against the Appellant.

This appeal is completely without merit. It fails and is hereby dismissed. The decision of the lower Court delivered on 4/5/2015 is affirmed.
It is further ordered that parties are to bear their costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the thorough judgment prepared by my learned brother, ONYEKACHI AJA OTISI, J.C.A., with nothing useful to add.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

Bukola Houston-Agun, Esq. For Appellant(s)

Ayodeji Awobiyide, Esq. For Respondent(s)