MAREM v. ISTIFANUS
(2022)LCN/17062(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, April 29, 2022
CA/A/530/2018
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
MR. ANDREW MAGAYAKI MAREM APPELANT(S)
And
MRS. GRACE ISTIFANUS RESPONDENT(S)
RATIO
WHETHER OR NOT PARTIES CAN FORMULATE ISSUES FOR DETERMINATION FROM GROUNDS OF APPEAL
Parties are not only expected to formulate issues from the grounds of appeal but also to indicate from which of the grounds such issues are formulated. Appeals are not argued on the grounds of appeal, but on the issues which are formulated from the grounds of appeal. The primary objective of formulating issues for determination in an appeal is to fix and clearly delimit the questions to be decided by the Court in the appeal. Therefore, once the parties have identified the issues for determination from the grounds of appeal, counsel cannot base their arguments on the grounds of appeal. That being so, issues for determination must arise from the grounds of appeal filed, and therefore arguments in support of the issues must be traced to the issues and the grounds of appeal from which such issues were framed. The corollary of the above is that, an appeal can only be determined on the issues arising from the grounds of appeal.
It follows that, any argument on an issue not covered by the ground of appeal is liable to be discountenanced. Arguments of counsel must therefore, as of necessity, be confined to the issues formulated for determination, and which issues must necessarily flow from the grounds of appeal; See ADELAJA V. FANOIKI (1990) 2 NWLR (PT.131) P.137 AT 148; FATUNBI V. OLANLOYE (2004) 6-7 S.C. P.68; JOSEPH SALIBA V. RODA YASSIN (2002) 3 S.C.M P.96; MR. SUNDAY ADEGBITE TAIWO V. SERAH ADEGBORO & 2 ORS (2011) 5 S.C. (PT. II) P.179 AND REAR ADMIRAL FRANCIS ECHIE AGBITI V. THE NIGERIAN NAVY (2011) 1-2 S.C. (PT. III) P.144. PER MUSTAPHA, J.CA.
A Court of concurrent or coordinate jurisdiction can set aside the judgment or order of another Court in the circumstances where; a. The writ or application was not served on the other party, or b. The action was tainted with fraud or the Court lacks jurisdiction to entertain the action. In such a case, the judgment or order given becomes null and void, thus liable to be set aside. See the cases of; CHIEF EMMANUEL BELLO VS INEC & ANOR (2010) LPELR-767SC; and WITT AND BUSCH LTD VS DALE POWER SYSTEM PLC (2007) LPELR-3499 SC. PER MUSTAPHA, J.CA.
THE POSITION OF LAW ON A RESPONDENT’S BRIEF OF ARGUEMENT
Be that as it may, it is very important to point out, for the avoidance of doubt, that it is the law that the Respondent’s brief of argument shall answer all material facts of substance contained in the Appellants’ brief of argument and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. Failure of the Respondent to specifically answer the issues raised by the Appellant is fatal to the Respondent as they are deemed admitted and conceded to by the Respondent; See DANA Ltd vs. Oluwadare (2006) 39 WRN 121. The effect of failure to respond to issues raised in the Appellant’s brief of argument is that the Respondent has conceded to issues raised by the Appellant; see EIGBE VS. N.U.T (2008) 24 WRN 110 AND INAKOJU VS. ADELEKE (2008) 130 WRN 1. PER MUSTAPHA, J.CA.
THE POSITION OF LAW WHERE A CONTRACT IS SAID TO BE FRUSTRATED
A contract is said to be frustrated, when the intervening event is beyond the control of either party to make the performance of the contract impossible. There has to be proof by the Appellant, who claims frustration, that it was impossible for him to ensure performance of the contract of sale. See TOTAL (NIG) PLC v. AKINPELU (2004) 17 NWLR (PT. 903) 509 and AIICO INSURANCE PLC v. ADDAX PETROLEUM COMPANY LTD (2015) 6 NWLR (PT. 1456) 597.
There is no frustration in this case because prior to the sale, the Appellant knew that he did not possess exclusive ownership of the property sought to be disposed. Further, as rightly submitted for the Respondent, this was not pleaded anywhere. It is trite law that parties are bound by their pleadings; See RAMONU ATOLAGBE V. KOREDE OLAYEMI SHORUN (1985) 1 NWLR (Pt.2) 350 AT 365, paras. D-E. Pleadings define and delimit the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them. It is designed to bring the parties to an issue on which the Court adjudicates between them. A party is bound by his pleadings and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleaded. See ALHAJI KARIMU LEMOMU & ORS. V. HADJI NOAHS ALLI-BALOGUN & ORS. (1975) 1 ALL N.L.R. 30 AT P.40. PER MUSTAPHA, J.CA.
WHETHER OR NOT ARGUMENTS CONTAINED IN A LITIGANT’S BRIEF ARE ESSENTIAL FOR THE PURPOSE OF A JUDICIOUS DETERMINATION OF AN APPEAL IN COURT
The issue was inelegantly couched, and argued in such a way that it is difficult to make head or tail of the submissions, be that as it may, it is an elementary point to state here that arguments contained in litigant’s brief are essential for the purpose of a judicious determination of an appeal before the Court; see DIBIAMAKA v. OSAKWE (1989) NWLR (PT 107) 101; (1989) ALL NLR 472; (1989) LPELR-940 (SC) at P. 10 paras. D-E. where it was held:
“…A bad brief is a great disservice to the case the lawyer desperately wants to present and is thus of no assistance to the Court or even to counsel who, not understanding his own case, cannot put same across; See also my opinion in LASTMA v ESEZOBO (2015) LPELR-25003 (CA) at pp. 4-50; CHIMA OGBONNAYA v FIRST BANK OF NIGERIA PLC (2015) LPELR 24731 at p. 17…”
An inelegant brief is still a brief that must be considered, the fact that a brief of argument is poorly written would not discharge the Court of its obligation under the law to do substantial justice to the parties in respect of an appeal before it; see: OBIORA v OSELE (1989) 1 NWLR (Pt 97) 279 at 300; AKPAN v THE STATE (1992) 6 NWLR (PT 248) 439 at 466, 471-472; TUKUR v GOVT OF TARABA STATE (1997) 6 NWLR (PT 510) 549; OMOJASOLA v PILSSON FISKO (NIG.) LTD (1990) 5 NWLR (PT 151) 434. PER MUSTAPHA, J.CA.
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the Federal Capital Territory, Abuja, presided by Hon Justice A. S. Umar delivered on the 27th of September, 2017.
The Respondent instituted an action by a writ of summons dated and filed on the 4th of June, 2013 claiming the following reliefs against the Appellant:
1.2. A Declaration that the Defendant fraudulently deceived and misled the Plaintiff into believing that the defendant paid for and owned the House known as Block 17A (Old 605A) Bamako Street Wuse Zone 1 Abuja FCT, sold by the Federal Government during the sale of government houses by the Federal Capital Territory Administration which he fraudulently sold to the Plaintiff at N11,000,000.00 (Eleven Million Naira) and collected full value.
1.3. A Declaration that the defendant fraudulently converted the money of the plaintiff in the sum of N11,000,000.00 (Eleven Million Naira) only into his personal use and fraudulently instituted suit No: FCT/HC/CV/103/2007 with his wife as plaintiff and him as Defendant.
1.4 An Order directing the Plaintiff to take possession and use for her own benefit the three bedroom flat Bungalow, otherwise known as and called Block 39, 53 Road FHA Supreme Court Quarters, Phase IV Kubwa, Abuja FCT being a House bought at the rate of 4,300,00.00 (Four Million Three Hundred Thousand Naira) only with part of the money fraudulently converted from the plaintiff by the defendant,
1.5. An Order Directing the Defendant to pay the balance of N6,700,000.00 (Six Million Seven Hundred Thousand Naira) only being the remaining balance of the money converted from the Plaintiff by the Defendant with 20% interest on the money from 17/8/2007 till judgment is delivered and 15% interest till judgment sum is liquidated.
1.6. In the Alternative to relief 3 and 4
1.7. An Order directing the defendant to pay the plaintiff the sum of N45,000,000.00 (Forty Five Million Naira) only being the current worth of the property (Block 17A (Old 605A) Bamako Street Wuse Zone 1, Abuja.)
1.8. An Order directing the Defendant to pay the sum of N3,000,000.00 (Three Million Naira) only to the Plaintiff as general damages for breach of contract and for the severe embarrassment suffered by the plaintiff as a result of the action of the defendant.
1.9. An Order Directing the defendant to pay the sum of N3,525,000.00 (Three Million Five Hindered and Twenty Five Thousand Naira) only to the Plaintiff being the amount expended by the Plaintiff in engaging lawyer to prosecute her case for her.
1.10. An Order Directing the Defendant to render account of rent collected on block 39, 53 Road FHA Supreme Court Quarters Phase IV Kubwa Abuja from 14th September, 2007 to when judgment is given (We refer to page 8-10 of the records)
Dissatisfied with the judgment of the lower Court the Appellant appealed by a notice of appeal filed on the 24th of November, 2017. The grounds of appeal shorn of their respective particulars are as follows:
GROUNDS OF APPEAL
GROUND 1:
ERROR IN LAW:
The learned trial Court erred in law and therefore came to a wrong conclusion when it indirectly sat on appeal or reviewed the judgment in SUIT NO: FCT/HC/CV/103/2007 between MRS. MARIAMÄGAYAKI MAREM (Plaintiff) and (1) MR. ANDREW MAGAYAKI MAREM (2) MRS. GRACE ISTIFANUS (Defendants) delivered by Hon. Justice Sylvanus C Oriji of the FCT High Court, a Court of coordinate jurisdiction.
GROUND II:
ERROR IN LAW:
The learned trial Court erred in law and therefore came to a wrong conclusion when it held that Court nullification of the transaction between the Plaintiff and the Defendant does not qualify as frustration.
GROUND III:
ERROR IN LAW:
The learned trial Court erred in law and came to a wrong conclusion when it held that the Defendant never believed he had the right to sell the property Block 17A (Old 605A) Bamako Street, Wuse Zonel, Abuja, Fcr.
GROUND IV:
ERROR IN LAW:
The learned trial Court erred in law and came to a wrong conclusion when it held that the Plaintiff’s payment for the property Block 17A (Old 605A) Bamako Street, Wuse Zone 1, Abuja, FCT Was in error.
GROUND V:
ERROR IN LAW:
The learned trial Court erred in law and came to a wrong conclusion when it held that the Defendant’s failure to file a defence to the wife’s suit against him and the Plaintiff amounts to a clandestine attitude and support for the wife and abandonment of the Plaintiff to her fate.
From the onset, it is important to note that at the last sitting of the Court learned counsel for the Appellant filed a notice of withdrawal of appearance; the Court ordered that the Appellant be served personally. The Appellant was indeed served at his address at No 17A Bamako Street, Wuse Zone 1.
The Appellant’s brief already filed was adopted as argued in his absence, pursuant to Order 19 Rule 9 (4) of the Rules of this Court 2022.
From the grounds of appeal filed, the following issues were formulated on behalf of the Appellant in the brief settled by Charles H. T. Uhegbu Esq., filed on 5th of June, 2020 but deemed properly filed on the 24th February, 2022:
ISSUES FOR DETERMINATION:
1. Whether the lower Court had the jurisdiction to hear and determine the case in SUIT NO: FCT/HC/CV/3427/13 having been heard and determined by another Court of co-ordinate jurisdiction in SUIT NO: FCT/HC/CV/103/2007?
2. Whether Honourable Justice A. S. Umar in SUIT NO: FCT/HC/CV/3427/13 did not sit on appeal over the judgment of Honourable Justice Sylvanus C Oriji in SUIT NO: FCT/HC/CV/103/2007?
3. Whether a Court’s nullification of a sale does not amount to the frustration of the transaction?
4. Whether the head of a family should disbelieve himself of having no right to sell his property wherein he lives with his family?
5. Whether the buying of the house by the Respondent in spite of her having knowledge of a “caveat emptor” notice was an error instead of a deliberate act?
6. Whether the failure of the Appellant to file a defence amounts to the abandonment of the Respondent to her fate?
In response, Ishaku Balarabe Muhammad Esq., of counsel for the Respondent adopted issue three of the Appellant as the sole issue for determination in the brief filed on the 23rd of December, 2020 and completely ignored the other issues raised by the Appellant.
The Respondent filed a preliminary objection which is argued in the Respondent’s brief from pages 6 to 12. I will determine the preliminary objection first before going into the substance of the appeal.
PRELIMINARY OBJECTION:
It is submitted that the Appellant did not indicate from which ground he formulated each of the six issues; that it is not the duty of the Court to determine wherefrom the issues are formulated, and that this failure has afflicted the issues with incompetence; learned counsel referred the Court to MAGIT V UNIVERSITY OF MAKURDI (2006) ALL FWLR part 298 page 1313 and IWUOHA V NIPOST LTD (2003) 8 NWLR part 822 page 308.
That also, the Appellant did not seek extension of time to file his brief, time for doing so having elapsed; the record having been compiled and transmitted on the 28th of March, 2020, the Appellant’s brief was not filed within 45 days as required by law. The consequence of this failure is that the appeal be dismissed; learned counsel referred to KRAUS-THOMSON ORGANISATION V N.I.P.S. (2004) 17 NWLR part 901 page 44 and OGBU V URUM (1981) LPELR-2290-SC.
Learned counsel further submitted that grounds one, two, four, five and six of the notice of appeal are incompetent and liable to be struck out; he referred the Court to MEKWUNYE V EMIRATE AIRLINES (2019) 9 NWLR part 1677 and ORIANZI V A.R. RIVERS STATE (2017) 6 NWLR part 1561 page 224; it is also contended that grounds 1, 2, 4, 5 and 6 should be struck out because the issues were not raised, tried and considered at trial; MRS ENO OKON EKPUK V MRS BASSY ITA OKON (2002) 5 NWLR part 760.
That issues 1, 2, 4, 5 and 6 were not raised at the lower Court, and leave of this Court was not obtained before they were argued, the effect of which it is contended makes them liable to be struck out.
It is submitted in response that all the issues formulated by the Appellant are properly distilled from the grounds of appeal; that issue one bothers on jurisdiction, because the Appellant raised the issue of jurisdiction at trial when he raised the issue of res judicata.
That issue two is not a fresh issue but arose from the lower Court’s reference to and review of the judgment of a coordinate Court, and it is from ground one; and also that issue 4 is from ground 11, arising from the lower Court’s holding that exclusive possession of the property in dispute.
Learned counsel submits that issue five is ground 4 and arose from the trial Court’s reference to payment for the house by the Respondent to the Appellant as a mistake, as such it is not a fresh issue; and issue six on the other hand is from ground five, and arose from the Court’s reference to the Appellant being left heartlessly to his fate.
RESOLUTION OF PRELIMINARY OBJECTION:
Parties are not only expected to formulate issues from the grounds of appeal but also to indicate from which of the grounds such issues are formulated. Appeals are not argued on the grounds of appeal, but on the issues which are formulated from the grounds of appeal. The primary objective of formulating issues for determination in an appeal is to fix and clearly delimit the questions to be decided by the Court in the appeal. Therefore, once the parties have identified the issues for determination from the grounds of appeal, counsel cannot base their arguments on the grounds of appeal. That being so, issues for determination must arise from the grounds of appeal filed, and therefore arguments in support of the issues must be traced to the issues and the grounds of appeal from which such issues were framed. The corollary of the above is that, an appeal can only be determined on the issues arising from the grounds of appeal.
It follows that, any argument on an issue not covered by the ground of appeal is liable to be discountenanced. Arguments of counsel must therefore, as of necessity, be confined to the issues formulated for determination, and which issues must necessarily flow from the grounds of appeal; See ADELAJA V. FANOIKI (1990) 2 NWLR (PT.131) P.137 AT 148; FATUNBI V. OLANLOYE (2004) 6-7 S.C. P.68; JOSEPH SALIBA V. RODA YASSIN (2002) 3 S.C.M P.96; MR. SUNDAY ADEGBITE TAIWO V. SERAH ADEGBORO & 2 ORS (2011) 5 S.C. (PT. II) P.179 AND REAR ADMIRAL FRANCIS ECHIE AGBITI V. THE NIGERIAN NAVY (2011) 1-2 S.C. (PT. III) P.144.
While it is very important for counsel to relate issues to grounds, failure to do so can hardly elicit the striking out of such issues without giving considerable thought to the justice of the case. Courts are much more refined in their approach to failings in this regard. They are guided by the interest of justice. On the other hand, Courts are not so lenient where counsel proliferates issues or raises issues from abandoned grounds. All said, the interest of justice will not be served by striking off issues simply for failure to identify the grounds from which they arose.
On the issue of whether the Appellant’s brief was filed out of time; this Court fails to see the logic in responding to the brief if it was indeed incompetent. In any case on the face of it, fees appear to have been paid on the process and the fact that the Respondent has filed his brief in response means he has acquiesced. Most importantly, this Court deemed the Appellant’s brief as properly filed on the 24th of February, 2022. That settles this issue.
In regard to the relationship of the issues to the ground, I am in agreement with learned counsel for the Appellant that clearly issue one is from ground one; issue two is from ground one; issue four is from 11; five from ground 4 and issue six is from ground 5.
It is for these reasons that I now dismiss the preliminary objection without much ado.
SUBSTANTIVE APPEAL:
ISSUE ONE:
Whether the lower Court had the jurisdiction to hear and determine the case in SUIT NO: FCT/HC/CV/3427/13 having been heard and determined by another Court of co-ordinate jurisdiction in SUIT NO: FCT/HC/CV/103/2007?
It is submitted for the Appellant while referring extensively to NWORGU V NJOKU (2001) 14 NWLR part 734 page 539, that justice S. C Oriji had adjudicated on this matter and delivered a judgment in FCT/HC/CV/103/2007, yet the Respondent failed to appeal and instead filed a fresh suit before Justice A. S. Umar also of the FCT High Court, who heard and delivered his judgment in FCT/HC/CV/3427/2013.
That the parties and the subject matter are the same and the Courts are of coordinate jurisdiction, and the issue of lack of jurisdiction was actually raised in a preliminary objection but the objection was dismissed. Learned counsel urged the Court to dismiss this appeal for this reason.
RESOLUTION OF ISSUE ONE:
The learned counsel for the Respondent chose to ignore and not respond to this issue. I do not understand the logic or sense in learned counsel to the Respondent’s arrogance in completely ignoring issues raised by the Appellant and simply choosing one issue to respond to.
Be that as it may, it is very important to point out, for the avoidance of doubt, that it is the law that the Respondent’s brief of argument shall answer all material facts of substance contained in the Appellants’ brief of argument and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. Failure of the Respondent to specifically answer the issues raised by the Appellant is fatal to the Respondent as they are deemed admitted and conceded to by the Respondent; See DANA Ltd vs. Oluwadare (2006) 39 WRN 121. The effect of failure to respond to issues raised in the Appellant’s brief of argument is that the Respondent has conceded to issues raised by the Appellant; see EIGBE VS. N.U.T (2008) 24 WRN 110 AND INAKOJU VS. ADELEKE (2008) 130 WRN 1.
Having said that, it is important to note that merely filing a suit before another Court does not necessarily invalidate that suit, even if they are Courts of coordinate jurisdiction, especially where there is nothing to show, that the subject matter and the parties are exactly the same.
In the suit before Hon Justice S. C Orji, i.e. FCT/HC/CV/103/2007 the parties are, Mrs. Maria Magayaki Marem, as plaintiff and Mr. Andrew Magayaki Marem and Mrs. Grace Istifanus, as defendants; and the reliefs sought are:
1. A declaration that the 1st defendant is estopped from selling block 16, flat 1, Bamako Street, Wuse zone 1, Abuja is family property.
2. A declaration that block 26, flat 1, Bamako Street, Wuse Zone 1, Abuja cannot be sold without the consent of the plaintiff.
3. A perpetual injunction restraining the defendants, by themselves, their agents, servants and privies from selling or attempting to sell block 16, flat 1, Bamako Street, Wuse zone 1, Abuja without the consent of the plaintiff.
On the other hand, in suit No FCT/HC/CV/3427/13, presided by Hon Justice A. S. Umar, the parties are only Mrs. Grace Istifanus, as plaintiff and Mr. Andrew Magayaki Marem, as defendant.
Clearly from this, the parties are not the same, and once the parties are not the same the issue of res judicata cannot succeed. ln NWANERI V. ORUWA 1959 4 FS.C. 132, the Supreme Court held:
“It is well known that before this doctrine can operate, it must be shown that the parties, issues and subject matter were the same in the previous case as those in the action in which the plea of res judicata is raised, ” See also Nkanu v. Onun (1977)5 SC 13 and Ekpoke v. Usilo (1978)6-7 SC 187.”
Furthermore, the reliefs sought in this subsequent suit before Hon Justice Umar are:
1. A declaration that the defendant fraudulently deceived and misled the Plaintiff into the believing that the defendant paid for and owned the house known as Block 1794 (Old 605A) Bamako Street, Wuse Zone 1 Abuja FCT, sold by the Federal Government during the sale of, government houses by the Federal Capital Territory Administration which he fraudulently sold to the Plaintiff at N11,000,000.00 (Eleven Million Naira only) and collected full value.
2. A declaration that the defendant fraudulently converted the money of the Plaintiff in the sum of Eleven Million Naira (N11,000,000.00) into his personal use and fraudulently instituted suit No. FCT/HC/CV/103/2007 with his wife as plaintiff and himself as the 1st defendant.
3. An Order directing the Plaintiff to take possession and use for his own benefit the three bedroom flat bungalow, otherwise known as and called Block 39, 53 Road FHA Supreme Court Quarter, Phase IV Kubwa Abuja FCT, being a house bought at the rate of N4,300,000.00 (Four Million Three Hundred Thousand Naira only) with part of the money fraudulently converted from the plaintiff by the defendant.
4. An Order directing the defendant to pay the balance of N6,700,000.00 (Six Million Seven Hundred Thousand Naira only) being the remaining balance of the money converted from the Plaintiff by the defendant with 20% interest on the money from 17/8/2007 till judgment is delivered and 15% interest till judgment sum is liquidated.
In the alternative
1. An Order directing the defendant to pay the plaintiff the sum of N45,000,000.00 only (Forty-Five Million) being the current worth of property (Block 17A (Old 605A) Bamako Street Wuse Zone 1 Abuja FCT),
2. An Order directing the defendant to pay the sum of N3,000,000 (Three Million Naira only) to Plaintiff as general damages for breach of contract and for the severe embarrassment suffered by the Plaintiff as a result of the action of the defendant.
3. An Order directing the defendant to pay the sum of N3,525,000.00 (Three Million Five Hundred and Twenty Five Thousand Naira) only to the plaintiff being the amount expended by the Plaintiff in engaging lawyers to prosecute her case for her.
4. An Order directing the defendant to render account of rent collected on Block 39, 53 Road FHA Supreme Court Quarters phase IV Kubwa Abuja from 14th September 2007 till judgment is given.
It is clear from these also that the reliefs sought in this case and the suit earlier filed are different; It is settled that before the doctrine of res judicata can operate, it must be shown that the parties, issues, and subject matter were the same in the previous case as those in the action in which the plea of res judicata is raised; see LADIMEJI & ANR V SALAMI & ORS (1998) LPELR-1735-SC; that not being the case; It is for these reasons that I now resolve this issue in favour of the Appellant against the Respondent.
ISSUE TWO:
Whether Honourable Justice A. S Umar in SUIT NO: FCT/HC/CV/3427/13 did not sit on appeal over the judgment of Honourable Justice Sylvanus C Oriji in SUIT NO: FCT/HC/CV/103/2007?
It is submitted for the Appellant that Hon. Justice A. S. Umar in FCT/ HC/CV/3427/13 sat on appeal over the decision of S. C. Oriji in SFCT/HC/CV/103/2007 because he quoted from the decision before arriving at a conclusion, that the Respondent took the case from a Court of coordinate jurisdiction to another Court of coordinate jurisdiction.
RESOLUTION OF ISSUE TWO:
A convenient starting point in the resolution of this issue is an examination of instances where a Court can set aside the order of another Court of concurrent jurisdiction.
A Court of concurrent or coordinate jurisdiction can set aside the judgment or order of another Court in the circumstances where; a. The writ or application was not served on the other party, or b. The action was tainted with fraud or the Court lacks jurisdiction to entertain the action. In such a case, the judgment or order given becomes null and void, thus liable to be set aside. See the cases of; CHIEF EMMANUEL BELLO VS INEC & ANOR (2010) LPELR-767SC; WITT AND BUSCH LTD VS DALE POWER SYSTEM PLC (2007) LPELR-3499 SC.
In the instant case, the Appellant’s contention is that the lower Court merely quoted certain portions of the other Court’s decision before arriving at its own.
Notwithstanding the failure of the Respondent to respond to this issue, the mere reference to a decision of another Court does not, and cannot be said to amount to sitting on appeal over that decision, after all the Court did not set aside any orders or representation made by the other Court; see UTUK V OFFICIAL LIQUIDATOR (2008) LPELR-4323-CA. It is for these reasons the issue is resolved in favour of the Respondent, against the Appellant.
ISSUE THREE:
Whether a Court’s nullification of sale does not amount to the frustration of the transaction.
It is submitted for the Appellant while referring to MORGAN V MANSER (1947) 2 A.E.R 66, UNGER V PRESTON CORPORATION (1942) 1 A.E.R 200 and SAKA V IJUH (2010) 4 NWLR part 1184 page 405 frustration of a contract arises when an event occurs through no fault of either party to the agreement, which fundamentally alters it, and it is not in the contemplation of the parties, such that they could not make provision for it, in such a situation both parties to the contract would be discharged.
That in the instant case, the Appellant did not envisage the challenge to his attempt to sell the property; and also that the trial Court was in error to have held that sale was frustrated. The judgment nullifying the sale of the property thus amounts to frustration. He urged this Court to set aside the judgment of the lower Court and affirm the earlier judgment of Justice S.C. Oriji.
It is submitted for the Respondent in response that the FCT High Court in suit No FCT/HC/CV/103/2007 presided by Hon justice S. Oriji did not in its judgment of the 25th April, 2013 annul the sale of the property in dispute between the Appellant and the Respondent; and also that there was no move by the Appellant to provide the Respondent with an alternative house as claimed.
That a contract discharged by frustration would be brought to an end by the operation of the law, irrespective of the wishes of the parties; learned counsel referred to A. G. RIVERS V A. G FEDRATION (2012) 52 part 1 NSCQR page 481; and that the defence of frustration does not avail the Appellants.
It is further submitted that having failed to plead frustration in his statement of defence the Appellant has no right to raise it in his address at trial; learned counsel referred the Court to ABRAHAM V OLORUNFUNMI (1991) 1 NWLR part 165.
RESOLUTION OF ISSUE THREE:
What amounts to frustration is not so much in dispute between the parties, what is in dispute is whether the case at hand qualifies for one i.e. whether the requirements of the doctrine of frustration are met.
A contract is said to be frustrated, when the intervening event is beyond the control of either party to make the performance of the contract impossible. There has to be proof by the Appellant, who claims frustration, that it was impossible for him to ensure performance of the contract of sale. See TOTAL (NIG) PLC v. AKINPELU (2004) 17 NWLR (PT. 903) 509 and AIICO INSURANCE PLC v. ADDAX PETROLEUM COMPANY LTD (2015) 6 NWLR (PT. 1456) 597.
There is no frustration in this case because prior to the sale, the Appellant knew that he did not possess exclusive ownership of the property sought to be disposed. Further, as rightly submitted for the Respondent, this was not pleaded anywhere. It is trite law that parties are bound by their pleadings; See RAMONU ATOLAGBE V. KOREDE OLAYEMI SHORUN (1985) 1 NWLR (Pt.2) 350 AT 365, paras. D-E. Pleadings define and delimit the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them. It is designed to bring the parties to an issue on which the Court adjudicates between them. A party is bound by his pleadings and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleaded. See ALHAJI KARIMU LEMOMU & ORS. V. HADJI NOAHS ALLI-BALOGUN & ORS. (1975) 1 ALL N.L.R. 30 AT P.40.
The so called “legal battle” between the Appellant and his wife cannot qualify as frustration, because whatever ‘battle’ they had, it was about established rights and obligations, and not some unforeseen, beyond control circumstances.
It is for these reasons that I now resolve this issue in favour of the Respondent, against the Appellant.
ISSUE FOUR:
Whether the head of a family should disbelieve himself of having no right to sell his property wherein he lives with his family?
It is submitted for the Appellant that from the Appellant’s affidavit, deposed after his wife challenged the sale of the property, the deponent believed he had power to sell the property; and that within the same period the Appellant filed a petition for annulment of his marriage, all in a bid to support the Respondent in her travails.
That this shows the Appellant had the power to sell the property in dispute, and he took serious steps in favour of the Respondent during the transaction.
RESOLUTION OF ISSUE FOUR:
The issue was inelegantly couched, and argued in such a way that it is difficult to make head or tail of the submissions, be that as it may, it is an elementary point to state here that arguments contained in litigant’s brief are essential for the purpose of a judicious determination of an appeal before the Court; see DIBIAMAKA v. OSAKWE (1989) NWLR (PT 107) 101; (1989) ALL NLR 472; (1989) LPELR-940 (SC) at P. 10 paras. D-E. where it was held:
“…A bad brief is a great disservice to the case the lawyer desperately wants to present and is thus of no assistance to the Court or even to counsel who, not understanding his own case, cannot put same across; See also my opinion in LASTMA v ESEZOBO (2015) LPELR-25003 (CA) at pp. 4-50; CHIMA OGBONNAYA v FIRST BANK OF NIGERIA PLC (2015) LPELR 24731 at p. 17…”
An inelegant brief is still a brief that must be considered, the fact that a brief of argument is poorly written would not discharge the Court of its obligation under the law to do substantial justice to the parties in respect of an appeal before it; see: OBIORA v OSELE (1989) 1 NWLR (Pt 97) 279 at 300; AKPAN v THE STATE (1992) 6 NWLR (PT 248) 439 at 466, 471-472; TUKUR v GOVT OF TARABA STATE (1997) 6 NWLR (PT 510) 549; OMOJASOLA v PILSSON FISKO (NIG.) LTD (1990) 5 NWLR (PT 151) 434.
It is in this spirit that I now try to decipher what the arguments on this issue try to convey.
I do not think it matters one way or the other whether the Appellant tried to help the Respondent or not. What matters is, did he have the authority to sell the house or not? The answer to that is No. The suggestion that the Appellant took serious steps in favour of the Respondent, believing that he had the power to sell in itself is an admission of his shortcomings. Even if he were the head of the family, the law is that he cannot unilaterally sell what belongs to the family in the hope of somehow delivering a valid title to the Respondent whom he so desperately wants to assist; see EKPENDU V. ERIKA (1959) SCNLR 186, (1959) 4 FSC 79; ALSO ESAN V. FARO 12 WACA 135 AND ALLI V. IKUSEBIALA (1985) INWLR (PT. 4) 630.
For these reasons, the issue is resolved in favour of the Respondent, against the Appellant.
ISSUE FIVE:
Whether the buying of the house by the Respondent in spite of her having knowledge of a caveat emptor notice was an error instead of a deliberate act.
It is submitted for the Appellant that the finding by the trial Court that the purchase of the house with full knowledge of the caveat by the Appellant’s wife was an error, is wrong, because it was more of a deliberate act, especially in view of the fact that the Appellant’s wife personally met the Respondent and told her that the house is not for sale, and warned her not to transact any business with the Appellant; learned counsel referred the Court to IMANA V ROBINSON (1979) NSC 1.
That the Respondent decided to take a chance, and the trial Court was wrong to refer to that as an error instead of a deliberate action, learned counsel referred to MOHAMMED V KLARGESTER NIG. LTD (2002) 7 SCNJ 443.
RESOLUTION OF ISSUE FIVE:
“Caveat emptor”, in plain language simply means, let the buyer beware. It is a Latin maxim requiring persons dealing with property. The risk of encumbrances is on any purchaser who by the maxim is required to satisfy himself by undertaking a full investigation of title before completing his purchase. A purchaser would be entitled to plead absence of notice only if he had made the necessary inquiries in regard of the property and still found nothing to indicate any equitable interest.
In this case, there was even a direct and personal warning by the wife of the Appellant to the Respondent, not to purchase the house, but the Respondent still proceeded to take the risk. The Respondent should bear the brunt of the blatant risk she took. The trial Court was wrong to have classified it as an error in the circumstances. Accordingly, the issue is resolved in favour of the Appellant, against the Respondent.
ISSUE SIX:
Whether the failure of the Appellant to file a defence amounts to abandonment of the Respondent to her fate.
It is submitted that the failure of the Appellant to file a defence when his wife filed a suit against him and the Respondent before Hon Justice S.C. Oriji does not amount to an abandonment of the Respondent; especially as he gave the Respondent all the necessary support needed to enable her win the case.
That the Appellant made things difficult for his wife by filing a divorce and handing over documents of the property to the Respondent, while at the same time deposing to an affidavit in support of the Respondent.
That it was wrong therefore for the trial Court to hold that Appellant abandoned the Respondent to her fate, because the Appellant was incapable of prosecuting his defense as a result of ill health; learned counsel referred the Court ADMINISTRATORS OF THE ESTATE OF GEN SANI ABATCHA V SAMUEL DAVID EKE-SPIFF & 2 ORS (2009) 7 NWLR part 1139 page 97.
RESOLUTION OF ISSUE SIX:
I do not see how the Appellant’s failure to file a defence makes any difference to the fortunes of the Respondent in this whole saga; the Respondent has to sink or swim on the strength of her case, and it matters little whether she got any help from the Appellant. Cases are won or lost by parties on their respective strengths and not necessarily on the help they get from sympathizers.
Accordingly, this issue is resolved in favour of the Respondent, against the Appellant.
Even though issues one and five were resolved in favour of the Appellant, none of the two issues is a threshold issue, accordingly, the appeal fails for lack of merit and it is dismissed. Judgment of the lower Court is hereby affirmed.
Parties to bear their respective costs.
PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance, the draft judgment of my Learned Brother MOHAMMED MUSTAPHA JCA.
I agree with his reasoning and conclusion contained in the leading judgment that the appeal lacks merit and is dismissed. The judgment of the trial Court is affirmed.
I abide by consequential Order as to costs.
HAMMA AKAWU BARKA, J.C.A.: My learned brother made available to me in draft the judgment just delivered in draft.
Having also studied the grounds of appeal, the record of proceedings and the submissions of learned counsel on the issues agitated upon, I align myself to the reasoning and the conclusion reached in respect of the preliminary objection as well as the six issues, to the conclusions that the appeal is lacking in merit and therefore dismiss the same. I make no order as to cost.
Appearances:
…For Appellant(s)
Isyaku Balarabe Muhammad with him M. A. Dada. For Respondent(s)