ISTIFANUS v. MAREM
(2022)LCN/16915(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, April 29, 2022
CA/ABJ/CV/953/2021
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
MRS. GRACE ISTIFANUS APPELANT(S)
And
MRS. MARIA MAGAYAKI MAREM RESPONDENT(S)
RATIO
WHETHER OR NOT A COURT CAN SET ASIDE ITS DECISION OR THAT OF A COURT OF COORDINATE JURISDICTION MADE ON THE MERITS
Granted, a lower Court can distinguish the decision of a superior or higher Court, but that does not by any stretch of imagination mean that the lower Court can affirm the decision of a superior Court, much less a Court of coordinate jurisdiction. That is unheard of, and doing so would be akin to turning both the law and common sense on their respective heads.
This Court had reason to state in EDO STATE HOUSE OF ASSEMBLY V AGBEBAKU (2015) LPELR-45059-CA that: “The general position of the law is that a Court cannot set aside its decision or the decision of a Court of coordinate jurisdiction made on the merits. However, the Court has inherent power to set aside its decision when same are later found to be a nullity, obtained by fraud or mistakenly given under the impression of parties’ consent… ” PER MUSTAPHA, J.C.A.
WHETHER OR NOT JUDGES OF THE HIGH COURT HAVE EQUAL POWERS
The law is settled that the Judges of the High Court have equal powers and are of coordinate jurisdiction; see Section 270 of the 1999 Constitution, as amended. A Court of coordinate jurisdiction has no constitutional power to sit as an appellate Court in another case to review or affirm a decision or order made by another Court of the same hierarchy. See GANI V AG LAGOS STATE NO. 1 (1989) 3 NWLR (PT. 112) 707, 774, the Supreme Court held:
“The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary is proved. It seems to me that even if the decision of the superior Court is a nullity, the only proper way of challenging such decision must be by an application before the very Court which tried the case or by an application to the appropriate appellate Court… “PER MUSTAPHA, J.C.A.
THE DIFFERENCE BETWEEN A PARTY WHO IS INTERESTED IN THE OUTCOME OF A SUIT AND ONE WHO HAS NO CLAIM OR RELIEF SOUGHT
On the question of whether Mr. Andrew Magayaki is a necessary party or not, it is important to make a distinction between a party who is merely interested in the outcome of the suit against whom there can be no claim or relief sought. See GUDA V. KITTA (1999) 12 NWLR (PT.629) 21; AROMIRE V. AWOYEMI (1972) 2 SC 1 and a necessary party, against who there can be a claim or relief, and who would be irreparably prejudiced if he is not joined in the action. See ODUOLA V. COKER (1981) 5 SC 197. While the former cannot be joined as a defendant, the latter who is a necessary party is entitled to be joined. See also OKAFOR V. NNAIFE (1973) 3 SC 85. PER MUSTAPHA, J.C.A.
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of the Federal Capital Territory, Abuja, delivered by Hon Justices K. N. Ogbonayya on the 5th of November, 2021
By an originating summons filed on the 11th of November, 2016, the Respondent approached the High Court of the Federal Capital Territory seeking the interpretation of the judgment of a Court of coordinate jurisdiction as follows:
1. Whether by virtue of the judgment Court No. 11, Apo Abuja by Hon. Justice Sylvanus C. Oriji on the 25th of April, 2013 on page 19 para. 2 where he states thus “Flowing from the decision of the Court in respect of questions 1 & 2, it is my respectful view and I so hold that the 1st defendant cannot sell the trust property without the consent of the plaintiff. It must be borne in mind that an equitable interest “has all the characteristics of a legal interest except that it cannot be enforced against a bonafide purchaser for value of a legal estate.” See page 40 of the book: Principles of Equity by M. I. Jegede”. The purported sale of the bungalow by the plaintiff’s husband to the defendant should not be declared null and void and whether the Plaintiff is not entitled to be in custody of the original letter of allocation of her property i.e Plot 17A (Old 605A). Bamako Street, Wuse Zone 1, Abuja dated 26th September, 2005 and the receipt of payment dated 24/10/05 and 23/2/06.
2. Whether by virtue of the judgment of Court No 11, Apo Abuja by Hon. Justice Sylvanus C. Oriji on the 25th of April, 2013 on page 22 para, 2 where he said” In Folashade v. Duroshola (1961) 1 All NLR & referred to at page 48 of the said book, the Federal Supreme Court reiterated that where an estate is affected by an equitable interest, a subsequent purchase for value will not be affected by the equitable interest, a subsequent purchase for value will not be affected by that equitable interest provided he obtained legal estate, he gave value for the property and he has no notice of the equitable interest at the time he gave the consideration. No doubt this principle is inapplicable to the present case as the 2nd defendant did not acquire a legal interest in the property. For a purchaser of an equitable interest for value without notice of a prior equity, as in the instant case, the temporal order of priorities will apply namely; Qui prior est tempore, poitorest jure (i.e. he who is fist is stronger in law). Therefore, the equitable right or interest of the plaintiff in the said property will have priority over the equitable right or interest of the 2nd defendant: (being the defendant in this suit). The Plaintiff is not entitled to be in possession or custody of the original title documents of the said property i.e Plot 17A (Old 605A) Bamako Street, Wuse Zone 1, Abuja and commensurate damages paid to her for the detention of same.
3. Whether by virtue of the judgment of Court No. 11, Apo Abuja by Hon. Justice Sylvanus C. Oriji on the 25th of April, 2013, it is legal for the Defendant to hold and retain the original letter of allocation dated 26th day of September, 2005 belonging to the Plaintiff and the original receipt of first and second installments dated 24/10/05 and 23/2/06. For Plot 17A (Old 605A), Bamako Street, Wuse Zone 1, Abuja belonging to the Plaintiff.
In anticipation of favorable answers, the Respondent claimed the following reliefs:
1. A DECLARATION that pursuant to the judgment of Hon. Justice Sylvanus C. Oriji on the 25th of April, 2013, the Plaintiff is entitled to be in custody and hold the original title documents, i.e original letter of Offer dated 26th of September, 2005 and the original Ad hoc Committees receipts of first and second installment payments dated 24/10/05 and 23/2/06 of Plot 17A (Old 605A) Bamako Street, Wuse Zone 1, Abuja.
2. AN ORDER directing the Defendant to surrender and handover the original title document i.e original title document dated 26th of September, 2005 and the original receipt of the 1st and 2nd installment payments dated 24/10/05 and 23/2/06 of plot 17A (Old 6054), Bamako Street, Wuse Zone 1, Abuja.
3. The sum of N10,000,000 (Ten Million Naira) damages for detinue of the said documents the possession of which the defendant has retained since 1st of August, 2007.
Upon receipt of the originating process, the appellant filed a notice of preliminary objection challenging the jurisdiction of the lower Court to entertain the suit urging the lower Court to dismiss same.
After the exchange of relevant processes between the parties the matter was heard, and ruling delivered on the 5th of November, 2021, striking out the preliminary objection of the appellant, granting reliefs 1 and 2, while refusing to grant relief 3.
Dissatisfied, the appellant filed a notice of appeal dated and filed on the 8th of November, 2021. The grounds of appeal shorn of their particulars are as follows:
GROUND OF APPEAL
GROUND 1
The learned trial judge erred in law and acted without jurisdiction when she reviewed and interpreted a judgment of a Court of coordinate jurisdiction thus occasioning a grave miscarriage of justice.
GROUND 2:
The learned trial judge erred in law when she failed to make specific findings of fact on the issued raised by the Appellant in its notice of preliminary objection.
GROUND 3:
The learned trial Judge erred in law and occasioned a grave miscarriage of justice on the Appellant when she granted relief 1 and 2 of the respondent’s originating summons without considering the counter affidavit and exhibits relied upon by the Appellant.
GROUND 4:
The learned trial judge erred in law and occasioned a grave miscarriage of justice when she held thus “I also hold that in the event that the Defendant fails to handover the title document to the Plaintiff within 21 days from the delivery of this Judgment, she shall be liable to pay a default sum of N5,000 (Five Thousand Naira) daily. “
GROUND 5:
The lower Court erred in law by descending into the arena of conflict when she set out an entirely different question for determination from the one sought by the Plaintiff.
GROUND 6:
Judgment was against the weight of evidence.
The notice of appeal was filed within time on the 8th of November, 2021, the record of appeal was transmitted on the 3rd of December, 2021 and the supplementary record on the 16th of February, 2022 but deemed properly filed on the 24th of February, 2022.
From the said grounds, the following issues were formulated on behalf of the Appellant in the brief settled by Ishaku Balarabe Muhammad Esq., within time on the 19th of January, and adopted by Isaac Okpanachi Esq., of counsel for the Respondent in the brief filed 16th February, 2022:
ISSUES FOR DETERMINATION
1. Whether the lower Court has the power to entertain the claims of the respondent and exercise judicial powers thereon. (Grounds 1 and 2)
2. Whether the orders made by the learned trial judge is a proper exercise of judicial powers having regards to the evidence before the lower Court. (Grounds 3 and 4)
ISSUE ONE:
Whether the lower Court has the power to entertain the claims of the respondent and exercise judicial powers thereon. (Grounds 1 and 2)
It is submitted that a careful reading of the questions for determination as endorsed on the originating summons, the reliefs sought and the affidavit in support of the originating summons is an invitation to interpret and sit on appeal over the decision of the Court presided by Hon. Justice S. Orijo in suit No FCT/HC/CV/103/2007, a Court of coordinate jurisdiction.
That the action is in breach of the law, rules and procedure in order to obtain amore favorable or further orders in addition to the one made in favour of the respondent in suit No FCT/HC/CV/103/2007; learned counsel referred the Court to COLE V JIBUNOH (2016) 4 NWLR part 1503 page 499.
It is further submitted for the appellant that the questions and the reliefs sought were an invitation to the lower Court to sit on appeal over the judgment of a Court of coordinate jurisdiction. That if a judgment does not meet the claim of a party, the option is to appeal and not to approach a Court of coordinate jurisdiction to modify the judgment with a view to obtaining a more favorable decision; the Court was referred to OKOYE V NC & FC LTD (1991)6 NWLR part 199 page 501 and HYDROWORKS LTD V RIMI LOCAL GOVT. (2002)1 NWLR part 749 page 564.
That also the failure of the respondent to join the 1st defendant, Mr. Andrew Magayaki Marem rendered the suit incompetent, because all the reliefs and orders were against the said husband; a necessary party being a person whose presence is essential for the effectual determination of issues before the Court; learned counsel referred the Court to ADC V BELLO (2017) 1 NWLR part 112 and OKWU V UMEH (2016) 4 NWLR part 1501 page 120.
It is submitted in response that the appellant’s definition of the word ‘affirm’ is too narrow, and that it loses sight of the principle of stare decisis; learned counsel referred the Court to ODUNEYE V FRN (2014) 13 NWLR part 1425 page 545.
That also the appellant misunderstood the position of the law, because if a High Court can distinguish an appellate Court decision, and refuse to follow it, it can distinguish or affirm the decision of a Court of coordinate jurisdiction.
Learned counsel also contended that they do not have to join Mr. Andrew Magayaki because they do not seek any relief against him.
RESOLUTION OF ISSUE ONE:
It is very important from the onset to make clarifications, without much ado. The word ‘affirm’ in legal parlance refers to the power or authority of a Court, usually of superior status or jurisdiction, to place a stamp of approval on the decision of a lower Court before it. Stripped of the legalese, the word simply means, ‘support’ or ‘uphold’. Whichever way one looks at it, the word is not synonymous with distinguish, as suggested by learned counsel for the Respondent.
Granted, a lower Court can distinguish the decision of a superior or higher Court, but that does not by any stretch of imagination mean that the lower Court can affirm the decision of a superior Court, much less a Court of coordinate jurisdiction. That is unheard of, and doing so would be akin to turning both the law and common sense on their respective heads.
This Court had reason to state in EDO STATE HOUSE OF ASSEMBLY V AGBEBAKU (2015) LPELR-45059-CA that:
“The general position of the law is that a Court cannot set aside its decision or the decision of a Court of coordinate jurisdiction made on the merits. However, the Court has inherent power to set aside its decision when same are later found to be a nullity, obtained by fraud or mistakenly given under the impression of parties’ consent… “
There is no indication of fraud or mistaken impression of parties’ consent to give a stamp of approval to the decision of the lower Court in this case.
A careful analysis of the questions for determination, as endorsed on the originating summons, the reliefs sought and the affidavit in support of the originating summons would reveal an invitation to interpret and sit on appeal over the decision of Hon Justice S. Orijo in FCT/HC/CV/103/2007.
The course of least resistance for the Respondent would have been to appeal the decision, instead of having it affirmed by a Court of coordinate jurisdiction. The law is settled that the Judges of the High Court have equal powers and are of coordinate jurisdiction; see Section 270 of the 1999 Constitution, as amended. A Court of coordinate jurisdiction has no constitutional power to sit as an appellate Court in another case to review or affirm a decision or order made by another Court of the same hierarchy. See GANI V AG LAGOS STATE NO. 1 (1989) 3 NWLR (PT. 112) 707, 774, the Supreme Court held:
“The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary is proved. It seems to me that even if the decision of the superior Court is a nullity, the only proper way of challenging such decision must be by an application before the very Court which tried the case or by an application to the appropriate appellate Court… “
On the question of whether Mr. Andrew Magayaki is a necessary party or not, it is important to make a distinction between a party who is merely interested in the outcome of the suit against whom there can be no claim or relief sought. See GUDA V. KITTA (1999) 12 NWLR (PT.629) 21; AROMIRE V. AWOYEMI (1972) 2 SC 1 and a necessary party, against who there can be a claim or relief, and who would be irreparably prejudiced if he is not joined in the action. See ODUOLA V. COKER (1981) 5 SC 197. While the former cannot be joined as a defendant, the latter who is a necessary party is entitled to be joined. See also OKAFOR V. NNAIFE (1973) 3 SC 85.
It is for these reasons that I now resolve this issue in favour of the Appellant against the Respondent.
The resolution of this issue ought to have been the end of it all as far as the determination of this appeal is concerned, because the net result is that the lower Court has no jurisdiction to affirm the decision of a Court of coordinate jurisdiction; having said that, I am not unaware of the fact that this Court is the penultimate Court in the land, and is enjoined by the apex Court in deserving cases, even where it comes to the conclusion that the suit upon which the judgment appealed against is incompetent or entertained without jurisdiction, still endeavor to consider the issues relating to the merit of the case as placed before it by the parties. It is thus in deference to this that I shall now proceed to consider the merit of this appeal without prejudice to the finding of lack of jurisdiction already made against the Respondent in this appeal.
ISSUE TWO:
Whether the orders made by the learned trial judge is a proper exercise of judicial powers having regards to the evidence before the lower Court. (Grounds 3 and 4)
It is submitted for the Appellant that from the reliefs and the observations of the lower Court, it appears that there was joint ownership between the respondent and her husband pursuant to the transfer of title by the respondent’s husband to the appellant and that the appellant is entitled to hold unto the title document as a lien over the failure of the respondent’s husband to liquidate the judgment sum; learned counsel referred the Court to AFRO TECH SERVICES LTD V MIA & SONS LTD (2000) 15 NWLR part 692 730.
That the trial Court relied solely on the respondent’s affidavit in support of the originating summons to determine this appeal, but failed to evaluate the appellant’s exhibits and counter-affidavit in opposition to the originating summons, thus occasioning a miscarriage of justice; learned counsel referred the Court to CHRISTLEB PLC V MAJEKODUNMI (2011) 5 NWLR part 1240.
That also the lower Court went beyond the respondent’s claim when it ordered the defendant to pay the sum of N5000 every day she retains the document in her possession within 21 days, because the relief was not sought; and also that it is not within the powers of the lower Court to grant reliefs not sought under the guise of alternative or consequential orders. See AKAPO V HAKEEM HABEEB (1992) 6 NWLR part 247.
It is submitted in response that the reliefs referred to by learned counsel to the appellant in this head were reliefs sought by the respondent in Suit No FCT/HC/CV/103/2007 decided by Hon Justice S. C. Oriji and not the reliefs claimed in Suit No FCT/HC/CV/2362/2018 decided by Hon Justice K. N. Ogbonayya on the 5th of November, 2021, which is on appeal here. That the arguments should be struck out as a result.
That Hon. Justice S. C. Oriji clearly stated that the appellant acquired no interest in the property and that the suit which determined ownership of the property is Suit No FCT/HC/CV/103/2007 which was decided on the 25th of April, 2013, and the appellant has not appealed that judgment, the judgment on appeal before this Court having not decided the ownership of the property, as such this Court cannot be expected to decide an issue not on appeal before it.
It is further submitted for the respondent that the claim that the lower Court decided the case relying only on the affidavit of the claimant is far from the truth, because the lower Court reviewed the appellant’s notice of preliminary objection as well as the plaintiff’s counter-claim and the respondent’s reply before rendering its judgment.
RESOLUTION OF ISSUE TWO:
On careful scrutiny, one cannot help but agree with learned counsel for the respondent that the reliefs referred to in paragraphs 5.3 to 5.15 are reliefs sought by the respondent in suit no FCT/HC/CV/103/2007 decided by Hon. justice S.C. Oriji on the 25th of April, 2013 and not the reliefs claimed in suit no. FCT/HC/CV/2362/2018 decided by Hon. Justice K. N. Ogbonayya on the 5th of November, 2021, which is on appeal before this Court.
The contention of learned counsel to the respondent is correct to the extent that there is some level of confusion in this regard; and in the circumstances issue two has become mute, it serves no utilitarian purpose, it is waste of valuable time discussing it, because the arguments are unrelated to the judgment in question.
With regard to whether the appellant acquired legal interest to the property in dispute, on account of the purported sale by the respondent and her husband to the Appellant as joint owners, it should be noted that the appellant has not appealed suit number, FCT/HC/CV/103/2007 which determined the ownership of the property, that being so this Court cannot determine an issue not on appeal before it.
It is not charitable to accuse the lower Court of deciding the matter on the basis of the affidavit of the claimant only, because as rightly pointed out, the Court at pages 14 to 20 of the supplementary record of appeal reviewed the appellant’s notice of preliminary objection; at pages 20 to 26 it reviewed the plaintiff’s counter-affidavit and at pages 26 to 39 referred to both affidavits and submissions of counsel before rendering its judgment at pages 50 to 58 after reviewing the entirety of the plaintiff’s case and the Appellant’s case. There is clearly no miscarriage in the decision of the lower Court.
It is for these reasons that I now resolve this issue in favour of the Respondent, against the Appellant.
Even though the two issues for determination are split between the Appellant and the Respondent, with an issue resolved in favour of each party, the appeal succeeds, because the threshold issue is issue number one, resolved in favour of the Appellant, against the Respondent.
The ruling of the High Court of the Federal Capital Territory delivered on the 5th of November, 2021 by Hon, Justice Ogbonayya is hereby set aside.
PETER OLABISI IGE, J.C.A.: I had the opportunity of reading in advance the draft judgment of my learned brother – MOHAMMED MUSTAPHA, JCA.
I agree with his reasoning and conclusion as contained in the leading judgment.
The ruling of the High Court of the Federal Capital Territory delivered on the 5th of November, 2021 by Hon. Justice K. N. Ogbonayya is also set aside by me.
HAMMA AKAWU BARKA, J.C.A.: I was privileged to have read in draft the judgment of my learned brother, Mohammed Mustapha JCA before now.
The reasoning and the conclusions arrived at is agreeable to me, and the determinant issue i.e issue one having been resolved in favour of the appellant, the appeal succeeds and the ruling delivered on the 5th November, 2021 by the lower Court is hereby set aside. I abide on orders made on cost.
Appearances:
Isyaku Balarabe Muhammad, Esq., with him, M. A. Dada For Appellant(s)
O. S. Oyakhire-ifijeh For Respondent(s)
