KWARA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED v. MR. MADAHUNSI OLUYEMI & ANOR
(2019)LCN/12688(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of February, 2019
CA/IL/52A/2016
RATIO
COURT AND PROCEDURE: WHETHER THE COURT CAN MAKE DECISION ON ACADEMIC EXERCISE
“…have consistently held in a plethora of authorities (decisions) regarding the circumstances that constitute academic exercise and the attitude of the Courts thereto. Most particularly, in the case of OGBONNA VS. PRESIDENT FRN (1997) 5 NWLR (Pt. 504) 281, this Court aptly held, Per Uwaifo, JSC (as the Learned Lord then was): If no purpose will be served by an action or appeal or any issue raised in it other than its mere academic interest the Court will not entertain it The Law is that it is an essential quality of a suit or an appeal fit to be disposed of by a Court that there should exist between the parties a matter in actual controversy which the Court undertakes to decide as a living issue. Moreover, a Court deals only with live issues and steers clear of those that are academic. But there cannot be said to a live issue in a litigation if what is presented to the Court for a decision, when decided, cannot affect the parties in any way. See also AG FED. VS. ANPP (2003) 12 SC (Pt. 11) 146 @ 170; (2003) 18 NWLR (Pt. 821) 182 @ 215; MAMMAN VS. SALAUDEEN (2005) 18 NWLR (Pt. 958)478 @ 500; AC VS. INEC (2007) 18 NWLR (Pt. 1065) 50.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICE
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
KWARA INVESTMENT AND PROPERTY DEVELOPMENT CO. LTDAppellant(s)
AND
1. MR. MADAHUNSI OLUYEMI
2. IBRAHIM SAAD Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Deliveringthe Leading Judgment):
The present appeal is against the judgment of the Kwara State High Court delivered on October 7, 2015 in suit NO. KWS/31/07. By the judgment in question, the Court below, Coram M.A. Folayan, J; granted relief (i) of the Appellant and dismissed the rest of the reliefs ii, iii, iv, v and vi. There by granting the counter claim of the 1st Respondent.
BACKGROUND FACTS
The instant action was commenced vide a writ of summons by the Appellant on May 3, 2007 in the Court below. By paragraph 23 of the Amended statement of claim dated 20/03/2014 but filed on 21/03/2014 thereof, the Appellant claimed against the 1st Respondent the following reliefs:
i. A Declaration that the sublease agreement of 1980 still subsists and Defendant is bound by the terms and conditions stated therein.
ii. A Declaration that the claimant is entitled to the reversion of possession of House 15, Kano Road, Adewole Estate, Ilorin, the Defendant having put same to use other than as contained in the subleased agreement of 1980.
iii. A Declaration that by putting into use House15, Kano Road, Adewole Estate, Ilorin, in a manner not conforming with the terms and condition under the sublease agreement of 1980, the Defendant has breached his agreement with Claimant.
iv. An Order of forfeiture of House 15, Kano Road, Adewole Estate, Ilorin against the Defendant.
v. An Order giving of possession of House 15, Kano Road Adewole Estate, Ilorin to the Claimant.
vi. The Cost of this suit including the lawyers professional fee. See pages 199 205 of the Record.
Consequent upon the order of the Court below granted on February 25, 2013, the 2nd Respondent was joined in the suit as a third party. Pleadings were filed and duly exchanged by the respective parties. The suit proceeded to trial. At the conclusion of which, the Court below delivered the vexed judgment on the said October 7, 2015 to the conclusive effect:
In conclusion I hold that the claimant was able to establish only the 1st claim which asked for a(i) Declaration that the sublease agreement of 1980 still subsists and defendant is bound by the terms and conditions stated therein.
The other heads of the claimant fail because the claims forrevocation and reversion of the property back to the claimant has not been proved. I therefore dismiss the claimant claims (ii), (iii), (iv), (v) and (vi) and found in favour of the claimant only claim (i).
On the counter claim, for the elaborate discussion and reasons given in the body of this judgment, the counter claims of the defendant succeed and the judgment is given in favour of counter claimant as per the claims in (a), (b), (c), (d), (f) and (g) of the counter claim. As for the claim of 200,000,000.00 (Two Hundred Million Naira) general damage against the claimant and 3rd party jointly and severally, I hold that the counter claimant is not entitled to the general damages judging from the circumstances of this case. That head of the counter Claim fails and it is hereby dismissed.
The 3rd party was joined so that he can be bound by the judgment of this case, I hereby hold that this judgment is binding on the 3rd party in this case.
The original notice of appeal, filed on 13/10/17, was the basis of the Additional record of appeal deemed transmitted to this Court on 19/9/18. Likewise, the Amended notice of appeal dated 17/9/18 was deemedproperly filed on 19/9/18.
On November 29, 2018, when the appeal came up for hearing, the Learned Counsel adopted their respective briefs of argument, thus resulting in reserving judgment. Most particularly, the Appellants unpaginated brief, filed on 10/10/18, actually spans a total of 26 pages. At pages 6 7 thereof, three issues have been raised for determination:
1. Whether the Learned Trial Judge properly evaluate (Sic) the totality of the material evidences (Sic) placed before it by the parties before arriving at its decision contained in the judgment delivered on 7th day of October 2015 [Distilled from Grounds 1 and 2 of the Amended Notice of Appeal].
2. Whether the Learned Trial Judge was right to have held that the decision of the Court of Appeal as contained in Exhibit 19 ordering the case de novo automatically nullified the militating processes including Exhibits 21, 22, 23 and 24. [Distilled from Ground 3 of the Amended Notice of Appeal].
3. Whether the Learned Trial Judge, having failed to properly considered (Sic), on the merit, the parties case as presented before it, was right to have found in favour of the 1st Respondents counter claims (a), (b), (c), (e), (f) and (g) in its Judgment. [Distilled from Grounds 4 and 5 of the Amended Notice of Appeal].
The issue 1 is extensively argued at pages 7 16 of the Appellants brief. In a nutshell, it is submitted that the Court below did not properly evaluate the totality of the material evidence placed by the parties before arriving at the vexed decision thereof in question. Further submitted, that in the instant case, the Court below woefully failed to holistically evaluate all the pieces of evidence adduced before it. Thus, the Court is invited to re-evaluate the evidence placed before the Court below and do justice.
It was argued, that the Court completely ignored and refused to consider the content of the Deed of sub-lease dated November 28, 1980, forming part of Exhibit D1, and instead heaped the entire body of the judgment on Exhibit 1 to find in favour of the 1st Respondent.
Allegedly, the various clauses that the Court below failed to consider include: clause 5(1) and (2) of Exhibit 1; clause 3(3) of the deed of sub-lease, dated November 28, 1980 forming part of Exhibit D1.
It was argued, that the Court below failed to appreciate the fact that the relationship between the Appellant and the 1st Respondent was that of sub-lesser and sub-lessee. That both parties herein were ad idem with respect to this. However, the Court below completely ignored and refused to consider the content of the sub-lease, Exhibit D thereby resulting in a miscarriage of justice. Reliance is placed by the Appellant on the case of ADEGBOLA VS. INSIGHI COMM. LTD (2017) ALL FWLR (Pt. 896) 1833 @ 1850 paragraphs C E to the effect that the purports of standard clauses in lease agreement is to protect the reversionary interest of a lesser.
Further argued, that the failure of the Court below to call the parties to address it on the legal issue raised suo motu by it is a big blow on the known legal principal and procedure and fundamental to the entire judgment. See EGBUCHU VS. CMB PLC (2016) ALL FNLR (Pt. 832) 1705 @ 1717 & 1719; GTB VS. OGWEZZY NDIKA (2017) ALL FWLR (Pt. 914) 1050 @ 1056 E F.
The Court is urged to re-evaluate the evidence in the case, and set aside the vexed judgment of the Court below.
The issue 2 isargued at pages 16 -19 of the said brief, to the effect that the Court below was wrong to have held that the decision of the Court of Appeal (Exhibit 19) ordering the case de novo automatically nullified the initiating processes including Exhibits 21, 22, 23 and 24. Allegedly, by so doing, the Court below has committed a serious blunder. See BANKOLE VS. BANKOLE (2013) ALL FWLR (Pt. 693) 2049 @ 2057 paragraph a, in regard to the meaning of order for retrial i.e. de novo.
Further submitted, that the failure and omission of the Court below to properly evaluate the evidence has fundamentally rendered the vexed Judgment perverse. The Court is urged to resolve the issue 2 in favour of the Appellant and set aside the vexed judgment.
The issue 3 has been extensively canvassed at pages 19 25 of the brief, to the effect that the Court below has failed to properly consider, on the merits the parties case as presented before it and wrongly found in favour of the 1st Respondents counter claims (a) (g) in the vexed judgment.
It was submitted, that the 1st Respondent had never established any credible evidence to justifyhis entitlement to the counter claims erroneously granted thereto.
Further submitted, that a counter claim is an independent action that stands on its own thus must be proved independent of the statement of claim. See FELIX GEORGE & CO. LTD VS. AFINOTAN (2015) ALL FWLR (Pt. 778) 920 @ 953; VINCENT BELLO VS. MAGNUSON EWEKA ll(1981) 1 SC 101; et al.
It was argued, that contrary to the established principle of law on the onus of proof, the Court below erroneously granted the counter claim based on the various unwarranted reasoning challenged in issues 1 and 2 above. The Court is urged to so hold, that the Court below erred in law and occasioned miscarriage of justice to the Appellant when it granted the 1st respondents claims (a) (g) as contained in the counter claim thereof on the basis of the improperly evaluated evidence.
Conclusively, the Court is once again urged upon to allow the appeal, set aside the vexed judgment of the Court below, and accordingly grant the Appellants claims.
Contrariwise, the 1st Respondents brief was filed on 16/11/18. Spans a total of 24 pages.
At page 4 of the said brief, the 1stRespondent has deemed it expedient to formulate two issues for determination, VIZ:
1. Whether the learned Trial Judge did not properly evaluate the evidence placed before it (Sic) by the parties in arriving at his decision to make the decision perverse.
This issue answers issues one and two of the issues formulated by the Appellants in its Brief of Arguments.
2. Whether the learned Trial Judge was wrong to have granted the 1st Respondents reliefs in the counter claim before it (Sic).
This issue answers issue three of the issues formulated by the Appellant in its Brief of Arguments.
The issue one is extensively argued at pages 4 18 of the said brief, to the effect that the Court below thoroughly considered all exhibits including Exhibits 1 and D1, in arriving at the vexed decision thereof at pages 497 515 of the record of appeal. And that it was upon the strength of the consideration and thorough examination of the exhibits that the Court below arrived at the decision that founded the grant of the Appellants relief was that Exhibit 1 was binding on the 1st Respondent.
Conclusively, the Court isurged to hold that the Court below properly evaluated the evidence before arriving at the finding thereof in the judgment, and accordingly resolve the first issue against the Appellant.
The issue 2 is canvassed at pages 18 -22 of the said brief, to the effect that the Court below was right in its findings, on the preponderance of evidence given for and against the counter claims, to have found and concluded that those documents were part of what the 2nd Respondent saw in the file but ignored and thus cannot claim to be a buyer for value without notice.
The Court is urged upon to uphold the findings and decision of the Court below, and resolve the issue 2 against the Appellant.
Conclusively, the Court is urged upon to discountenance all the submissions of the Appellant, uphold the decision of the Court below, and accordingly dismiss the appeal.
I have accorded an ample regard upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-a-vis the record of appeal, as a whole. It ought to be pointed at this point in time, that the instant appeal (CA/IL/52A/2016) is a sister to the appeal NO.CA/IL/52/2016 in which judgment has just been delivered dismissing the appeal. Interestingly, the parties and subject matter in both appeals are exactly the same. Most interestingly, both appeals are in respect of exactly the same judgment delivered by Hon. Justice M. A. Folayan, in suit NO. KWS/31/07 on the said October 7, 2015. Not surprisingly the present Appellant was granted leave by the Court to rely on the record of appeal in appeal NO. CA/IL/52/2016 earlier transmitted on 12/07/2016 but deemed properly transmitted on 01/02/2017.
Hence, having amply considered the very obvious fact that judgment has just a moment ago been delivered dismissing the main appeal (CA/IL/52/2016) and thereby upholding the vexed judgment of the said Kwara State High Court in suit NO. KWS/31/2007 regarding the respective parties therein, it would amount to embarking upon a sheer academic exercise for me to proceed to determine the issue in this appeal on the merits. Thus, there is every cogent reason for me to appreciate and hold that the instant appeal has become overtaken by event and rendered nugatory.
Thus, ought tobe struck out. The Apex Court, and indeed the Court of Appeal, have consistently held in a plethora of authorities (decisions) regarding the circumstances that constitute academic exercise and the attitude of the Courts thereto. Most particularly, in the case of OGBONNA VS. PRESIDENT FRN (1997) 5 NWLR (Pt. 504) 281, this Court aptly held, Per Uwaifo, JSC (as the Learned Lord then was):
If no purpose will be served by an action or appeal or any issue raised in it other than its mere academic interest the Court will not entertain it The Law is that it is an essential quality of a suit or an appeal fit to be disposed of by a Court that there should exist between the parties a matter in actual controversy which the Court undertakes to decide as a living issue. Moreover, a Court deals only with live issues and steers clear of those that are academic. But there cannot be said to a live issue in a litigation if what is presented to the Court for a decision, when decided, cannot affect the parties in any way.
See alsoAG FED. VS. ANPP (2003) 12 SC (Pt. 11) 146 @ 170; (2003) 18 NWLR (Pt. 821) 182 @ 215; MAMMAN VS. SALAUDEEN (2005) 18 NWLR (Pt. 958)478 @ 500; AC VS. INEC (2007) 18 NWLR (Pt. 1065) 50.
Accordingly, the instant appeal (CA/IL/52A/2016) is hereby struck out. Parties shall bear their respective costs of Litigation.
HAMMA AKAWU BARKA, J.C.A.: My Lord Ibrahim Mohammed Musa Saulawa JCA, obliged me with the draft of the lead judgment just delivered. I am entirely in agreement with the reasoning and conclusion therein. I also strike out the instant appeal and abide on order as to costs made in the lead Judgment.
BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother Ibrahim Mohammed Musa Saulawa JCA just delivered. I agree that this appeal being a sister appeal to the appeal NO: CA/IL/52/2016- Ibrahim Sa’ad Vs. Kwara Investment and Property Development Company Limited & Anoron which judgment was earlier on delivered, has made it otiose. It has been overtaken by events. In the circumstance, this appeal is also struck out by me. Parties shall bear their respective costs.
Appearances:
A. Abdulsalam, Esq. holden brief for A. A. Mohammed Ibrahim, Esq.For Appellant(s)
Tosin Samuel Alawode, Esq. with him, A. Olarewaju, Esq., A. A. Daibu, Esq., S. A. Daibu, Esq and A. Olufade for 1st Respondent.
L. A. La-Kadri, Esq. with him, A. O. Mohammed, Esq. A. T. Ahmed, Esq. and B. M. Bakare for the 2nd Respondent
For Respondent(s)
