MARTHA UDUSEGBE V. JULIUS TUGBA
(2010)LCN/3961(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of July, 2010
CA/B/80/1998
RATIO
GROUND OF APPEAL: WHETHER FORMULATED ISSUES FOR DETERMINATION IN AN APPEAL MUST ARISE FROM THE GROUNDS OF APPEAL; EFFECT OF A GROUND OF APPEAL FROM WHICH NO ISSUES IN AN APPEAL IS DISTILLED FROM
Authorities abound that issues formulated must arise from grounds of appeal. It is the grounds of appeal that should be contracted to form issues for determination. Consequently, once issues are not formulated from the grounds of appeal, the consequence are that the grounds are deemed abandoned. See SPARKLING BREWRIES V. U.B.N. LTD (2001) 15 NWLR Pt 737) 615; IBRAHIM V. MUHAMMED (2003) 6 NWLR (Pt 817) 615, see also WAEC V. ADEJAYI (2008) NWLR Pt 1092 at 270. PER GEORGE OLADEINDE SHOREMI, (J.C.A)
ISSUES FOR DETERMINATION: WHETHER A RESPONDENT WHO HAS NOT CROSS-APPEALED OR FILED A RESPONDENT NOTICE CAN NOT FORMULATE ISSUE DIFFERENT FROM THAT FORMULATED BY THE APPELLANT
…it has been decided also that a Respondent who has not cross-appealed or filed a Respondent notice can not formulate issue different from that formulated by the Appellant. Thus a Respondent can not formulate issues outside the grounds of appeal’ See EIGBE V. N.U.T. (2003) 5 NWLR Pt 1081 at 604. PER GEORGE OLADEINDE SHOREMI, (J.C.A)
ISSUES FOR DETERMINATION: WHETHER THE COURTS CAN SUO MOTU FORMULATE ISSUES FOR DETERMINATION
The Supreme Court in the case of ADOGUN V. FASHOGBON (2008) 17 NWLR Pt 1115 Page 187 paras A-F has this to say I quote:- “The rules do not provide that the courts can suo motu formulate issues for determination, viewed from this angle, the position taken by the supreme court in Nwokoro v. Onuma (supra) is valid and unassailable. That apart, it does not appear that the formulation of issues by the court is consistent with the principle of fair hearing. There could, however, be compelling circumstances where the court should formulate issues for determination. In such circumstances, the principles of fair hearing and in particular, the natural justice rule of audi alterram partem demand that the parties be heard on the proposed issues by the court for the determination of the appeal. Generally, the court takes the decision to formulate issues for determination of his appeal at the stage of writing judgment. In order to avoid delay in the writing of judgment, it is suggested that the court takes the decision before the appeal is heard. PER GEORGE OLADEINDE SHOREMI, (J.C.A)
TENANCY: WHETHER A TENANT WHO DOES NOT ACKNOWLEDGE THE TITLE OF HIS LANDLORD IS NOT ENTITLED TO QUIT NOTICE FROM THE SAID LANDLORD
It was in MAKINDE V. AKINWALE (2000) 1 SCNJ 101 at 111 that the Supreme Court stated the law thus – “In land case where the tenant turn round not only to dispute the ownership of the title holders but went out of their way to claim title they forfeit right as tenant and their possession of the land”. Also in ETAKHAME V. OSEMOBOR (Supra) it was held that: “A tenant who does not acknowledge the title of his landlord is not entitled to quit notice from the said landlord”. See also ODUTOLA V. SAMUEL & ORS (1956) 1 FSC 76 at 77 the court has this to say – “Further more, the first two respondents who claimed to be on the premises as joint owner and mother of the 2nd respondent do not come within the definition of “tenant” in the recovery of Premises Ordnance and they clearly are not entitled to any notice to quit under the Ordnance. With regard to the 3rd to 7th respondents, they denied ownership of the appellant and claimed to be tenants not of the appellant but of the 2nd respondent and her brother. They did not recognize the appellant as their landlord and the appellant did not regard them as his tenants. In the circumstance, it was impossible for the appellant to have given them the statutory notice which would describe him as the landlord of the respondents, a relationship which was not recognized or acknowledged on both sides”. PER GEORGE OLADEINDE SHOREMI, (J.C.A)
TENANT: MEANING OF THE WORD “TENANT” AS CONTAINED IN SECTION 2(1) OF THE RECOVERY OF PREMISES LAW CAP 142 LAWS OF BENDEL STATE OF NIGERIA
Section 2(1) of the Recovery of Premises Law cap 142 Laws of Bendel state of Nigeria as applicable to Delta state where the word “tenant” is defined thus: “tenant” include any person occupying premises whether on payment of rent or otherwise but does not include a person occupying premises under a bona fide claim to be the owner of the premises”. PER GEORGE OLADEINDE SHOREMI, (J.C.A)
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
MARTHA UDUSEGBE – Appellant(s)
AND
JULIUS TUGBA – Respondent(s)
GEORGE OLADEINDE SHOREMI, (J.C.A) (Delivering the Leading Judgment): This matter which has now culminated in this court was commenced by the Plaintiff now Respondent at the High Court of Warri Judicial Division where by Suit No. W/111/91 the Plaintiff claimed as follows:
“Wherefore, the Plaintiff claims against the Defendant as follows-
i) Possession of the said part of Plaintiffs piece of land measuring 35ft x 100ft.
ii) A declaration that the 1st Defendant having denied the Plaintiff’s title to the aforementioned piece of land let to her by the Plaintiff forfeits her tenancy therein
iii) Permanent injunction restraining the defendants, their agents, Privies or servants from further entering the said land, or any part thereof and/or constructing or building any structures, permanent or temporary, on any part thereof.
iv) Mesne profit at the rate of N250.00 (two hundred and fifty Naira) per month from the month of November, 1991 until possession is given.
DATED this 20th day of May, 1992.
The case of the Respondent as Plaintiff in the lower court is that the Plaintiff is the owner and landlord of the undeveloped plot of land known as plot 48, Block L111, Igbudu Market, Warri, a place within the jurisdiction of the lower court. The Plaintiff became vested with title to the piece or parcel of land in dispute vide a Deed of Assignment dated 9th January, 1989 and registered as No. 18 at page 18 in Volume 763 at the Lands Registry, in the office in Benin City now Asaba.
The Plaintiff/Respondent let part of the aforesaid piece or parcel of land to the 1st defendant (appellant herein), the 1st defendant paid rent for one year in respect of the portion of the land let to her. The rent receipt is Exhibit C in the proceedings in the lower court.
The defendant/appellant however denies the title of the respondent as the owner/landlord. The defendant/appellant’s case is that she acquired the residue of the interest/ title to the land from the respondent.
The Plaintiff/respondent’s statement of claim is at pages 2(b) – 3 of the records. The amended statement of defence of the defendant/appellant is at pages 13-24 of the records.
The Plaintiff (now respondent) called three witnesses who testified.
The defendant (now appellant) testified and also called four witnesses who testified as DW2, DW3 and DW4 respectively. Their evidence are set out at pages 10, 11 and 27 -31.
The counsel to the parties addressed the lower court at the conclusion of evidence. The addresses are pages 31- 32 of the record. The lower court delivered its judgment on the 14th day of December 1994. The judgment is at pages 33- 40 of the record.
The learned trial Judge after consideration of the facts, law and address of both counsel gave judgment in favour of the Respondent in the following terms: I quote –
“In view of the reliance placed on Exhibits Band C by both parties, I consider it necessary at this stage to reproduce both documents at least for the sake of clarity.
“Exhibit C is headed Johnson Tugba & Sons. 29, Nelson William Street, Warri. Cash receipt No- 105, 9/11/90. Received from Martha Udusegbe the sum of Three Thousand Naira being rent for an area of 35′ x 100′ at Igbudu Market. Exhibit B is dated 16/11/90 and addressed to the Town Planning Officer. Town Planning Office, Warri. Dear Sir. I Johnson Tugba of 29, Nelson William Street, Warri, Owner of Plot B of plot 4 block L111 of Igbudu Scheme, do hereby put you on notice that I have rented part of my plot to Madam Martha Ewamire Udusegbe of Umolo in Olomu clan in Ughelli Local Government Area. Thank you for your usual co-operation. Yours faithfully, Johnson Tugba”.
It is clear that the documents described the transaction as that of renting the land to the 1st defendant and not that of sale or assignment. Both parties relied heavily on both documents. It cannot be said that the defendant, she is a lawyer did not know the difference between renting and sale. I accordingly find as a fact that the transaction between the Plaintiff and the 1st defendant was that the plaintiff let part of his land close to the Igbudu Market to the 1st defendant at a rent of N250.00 per month. I also find as a fact that the N3,000.00 paid by the 1st defendant to the plaintiff was rent for one year paid in advance. I also find as a fact that at the expiration of the one year on 30/11/91, the 1st defendant refused to pay any further rents. The refusal by the 1st defendant to pay any further rents in my view, terminated the tenancy. Thus at the expiration of the first one year rent on 30/11/91, the 1st defendant became a trespasser on the land. The plaintiff’s claim for possession therefore succeeds.
With regard to the claim for forfeiture I hold that the evidence in support of this arm of the claim is not sufficient to enable me to grant it.
By reason of all the foregoing, I hold that the plaintiff has substantially proved his case and he is therefore entitled to judgment. Judgment is accordingly entered for the plaintiff against the 1st defendant only as per items (i), (iii) and (iv) of paragraph 38 of the statement of claim”.
Dissatisfied by the judgment the Appellant filed 4 grounds of appeal as at page 47-50 of the Record. I need not quote them for reasons I shall give later in this judgment. In line with the Rule of this court brief of argument were exchanged and when the appeal came up for hearing the Appellant who appeared in person adopted and relied on her brief of argument dated 24/10/07 but deemed filed on 10/1/08. She urged the court to allow the appeal.
Mr. Ekponda of learned counsel to the Respondent adopted and relied on her brief of argument dated 30/1/09 but deemed properly filed and served on 4/3/09 and she urged the court to dismiss the appeal as it lacks merit.
The Appellant in an inelegantly prepared brief distilled 3 issues viz;
ISSUE 1
Whether the learned trial Judge properly directed himself in law that having dismissed the Plaintiffs Claims in Reliefs {11} for Forfeiure, The Court was not competently seized of the Requisite jurisdiction to go on to award the claim for possession having regard to the State of Pleadings which shows that the Plaintiff did not serve the Mandatory Statutory notices of owner’s intention to recover possession of the Land on the Appellant?
ISSUE II
Whether the learned trial Judge properly directed himself in law in awarding the Respondent’s claims in Reliefs {111} for injunction having regard to the Appellant’s unexpired interest on the land and the Licences/Approval granted to the Appellant to develop and make improvement on the Land by the Town Planning Authority on the Express Authorization of the Plaintiff?
ISSUE 3
Whether the learned trial Judge properly Ascribed probative value to the Documentary Evidence by awarding the Respondent’s claims in Reliefs {4} for Mesne profit having regard to the Burden of Proof and the case put up by the defence and the absence of duration of tenure let in the receipt Exhibit “C” when the defendant is not the maker of the Documents?
As I have said earlier that I need not quote the grounds of Appeal the reasons being that the Appellant in distilling issues arising for determination did not tie any of the issues to any of the ground. Authorities abound that issues formulated must arise from grounds of appeal. It is the grounds of appeal that should be contracted to form issues for determination.
Consequently, once issues are not formulated from the grounds of appeal, the consequence are that the grounds are deemed abandoned. See SPARKLING BREWRIES V. U.B.N. LTD (2001) 15 NWLR Pt 737) 615; IBRAHIM V. MUHAMMED (2003) 6 NWLR (Pt 817) 615, see also WAEC V. ADEJAYI (2008) NWLR Pt 1092 at 270.
The Respondent also formulated issues not also tied to any of the grounds of appeal and it has been decided also that a Respondent who has not cross-appealed or filed a Respondent notice can not formulate issue different from that formulated by the Appellant. Thus a Respondent can not formulate issues outside the grounds of appeal’ See EIGBE V. N.U.T. (2003) 5 NWLR Pt 1081 at 604.
From the above it is now pertinent that I should formulate issues that will decide the appeal one way or the other. The Supreme Court in the case of ADOGUN V. FASHOGBON (2008) 17 NWLR Pt 1115 Page 187 paras A-F has this to say I quote:-
“The rules do not provide that the courts can suo motu formulate issues for determination, viewed from this angle, the position taken by the supreme court in Nwokoro v. Onuma (supra) is valid and unassailable. That apart, it does not appear that the formulation of issues by the court is consistent with the principle of fair hearing. There could, however, be compelling circumstances where the court should formulate issues for determination. In such circumstances, the principles of fair hearing and in particular, the natural justice rule of audi alterram partem demand that the parties be heard on the proposed issues by the court for the determination of the appeal. Generally, the court takes the decision to formulate issues for determination of his appeal at the stage of writing judgment. In order to avoid delay in the writing of judgment, it is suggested that the court takes the decision before the appeal is heard.
In such a situation, the proposed issues by the court will be exposed for reaction by counsel. This could be a hybrid solution to the fairly difficult problem. It is necessary to mention that the courts can resort to the formulation of issues as a last resort. It will be an abuse of the judicial process for the Justices to formulate issues for determination merely because they do not agree with those formulated by the parties. The appeal is not theirs. Not even the response to the appeal. They belong to the appellant and the respondent respectively. There must be a compelling cause, so much so that justice will not be done to the appeal if issues are not formulated by the court. It is not a routine power but an inherent power which should be exercised judicially and judiciously. There is need to mention that the mind of the Justice must be free at the time he formulates the issues, in the sense that he does not take any side in the appeal at that stage. This is a matter which is beyond the determination of another Justice. The justice, the owner of his conscience, is the best Judge, and let him exercise it properly. I have taken the trouble to go into the available jurisprudence because of its vexed nature”.
From the above guideline I will now proceed to formulate 2 issues for determination –
(1) was the court competent to adjudicate on the matter/claim before it when the respondent had not complied with the condition precedent in commencing action for recovery of premises (Grounds 1 & 2 of the amended grounds of appeal)
(2) From the facts of the case on record was the trial Judge Right in giving judgment to the Respondent as he did? (Ground 3), of the amended ground of appeal.
I must say that this will be in line with the argument of both the Appellant and the Respondent. The Appellant in her brief relied heavily on the Recovery of Premises Law Cap 142 Law of Bendel State of Nigeria 1976 as applicable to Delta State. She argued that by its Section 7, 18 and 10 of the said provision a Landlord who decides to recover possession of land is mandated to give appropriate statutory notice of his intention to re-possesses the land. She also argued that the interest of the tenant shall have ended or shall have been duly determined by a written notice to quit and the tenant or occupant shall neglect or refuse to quit and deliver possession before a valid notice can be served on the person so neglecting to quit the land.
He argued that the Respondent commenced action in court on 6/5/91 whereas exhibit C was issued on 9/11/90 to that effect there was a residue of six months unexhausted rent of the purported 1 year rent paid in advance. She relied on the following cases to buttress her argument KHADUAH TINOLA & 5 ORS v. MISS ARET EFFIONG OKON (1966) LLR 149; SHITU V. NBONU (1995) 4 NWLR (Pt 3S9) Page 341. She argued that she was not a trespasser. She argued that the learned trial Judge did not pay any attention to the case of the Appellant and this is fatal to the case of the Respondent. She said the Appellant tendered Exhibit ‘A’, ‘B’, ‘C’, ‘H’, ‘H1’, ‘H3’, and asserted that the Respondent relinquished his entire interest in 1/2, of the plot and that she was the owner in possession of her development therein. She further contended that jurisdiction being the life wire or blood stream of any litigation the issue can be taken at any time of the proceedings. IYWEV V ULI (1999) 13 NWLR 9 Pt 634) page 189.
She then urged the court to invoke its powers under S.16 of the Court of Appeal Act.
The Respondent on his own referred the court to the pleadings of the Appellant paragraph 4,6(ii) (iii), 14 amongst others of the amended statement of defence of the Appellant. Paragraph 4 reads thus-
“1st Defendant denies and states that the Plaintiff is not the owner of a piece of land known as plot 48 Block L111 Igbudu, Warri within the Jurisdiction of this Honourable court measuring 597,857 square meters but he is only owner of 1/2 of the said land as the Plaintiff parted with 35ft x 100ft of the said land to the 1st Defendant in November, 1990”.
We referred to exhibit F which does not support the claim of the Appellant of ownership/title to the land in dispute. He argued that in all of the above, it is clear that the Appellant unequivocally denied the title of the Respondent as landlord to the land in dispute therefore the Appellant is not entitled to the issuance and/or service of statutory notices necessary for the recovery of possession by a landlord from his tenant.
He referred to the case of ETAKHAME V. OSEMOBOR (1991) 6 NWLR (Pt 196) 170 at 177; OGUN V. AKINYELU (2004) 12 SCNJ 196 at 198; ODUTOLA V SAMUEL & ORS (1956) 1 FSC 76 at77- He argued that the Appellant can not now build her case on a different factual basis different from the agreed basis on which the case was fought in the lower court. He relied on the following cases MAT HOLDINGS LTD. V. U.B.A. PLC (2003) FWLR (Pt 183) 146 at 158; ABALOGU V. SPDC LTD (2003) FWLR Pt 171 1627 at 1648.
He further submitted that in the light of the reliefs sought the case of the Respondent at the lower court borders on ownership and possession and occupation of the land. It is not merely a case of recovery of possession with the contemplation of Recovery of Premises Law which is applicable to tenancy cases. In the light of the above the Respondent urged the court to dismiss the appeal of the Appellant.
Let me not waste any time in saying that the Appellant contested the case right from the time when the agreement was to be signed and completed by her on the ground that she bought the unexpired residue of the land in dispute from the Respondent. Let me call in Aid here Exhibit F wherein the Appellant stated thus:
“Our client has also instructed us to deny most vehemently that the N3,00.00 (Three Thousand Naira) paid by her to your client is not payment for twelve months rent in advance at monthly rent of N2500.00 as stated in your letter. Rather, our client asserts most positively, unequivocally, succinctly and without mincing words that the sum of (N3,000,00) Three Thousand Naira she paid lo your client and for which your client duly issued a receipt referred to in your said letter, was infact payment for the REMAINDER OF RESIDUE of the 90 year, (ninety years) TERM on the said plot at Igbudu market which your client holds of the Bendel State Government.”
The evidence of the Appellant also show to be that of owner rather than a tenant when she testified thus I quote –
“When the Plaintiff was harassing my tenant I had to cause a photograph of notice placed there by the Plaintiff to be taken. When I removed the sign board, the Plaintiff caused the 2nd Defendant to be arrested”.
Page 30 lines 21-23 of Record
It was in MAKINDE V. AKINWALE (2000) 1 SCNJ 101 at 111 that the Supreme Court stated the law thus –
“In land case where the tenant turn round not only to dispute the ownership of the title holders but went out of their way to claim title they forfeit right as tenant and their possession of the land”.
Also in ETAKHAME V. OSEMOBOR (Supra) it was held that:
“A tenant who does not acknowledge the title of his landlord is not entitled to quit notice from the said landlord”.
See also ODUTOLA V. SAMUEL & ORS (1956) 1 FSC 76 at 77 the court has this to say –
“Further more, the first two respondents who claimed to be on the premises as joint owner and mother of the 2nd respondent do not come within the definition of “tenant” in the recovery of Premises Ordnance and they clearly are not entitled to any notice to quit under the Ordnance. With regard to the 3rd to 7th respondents, they denied ownership of the appellant and claimed to be tenants not of the appellant but of the 2nd respondent and her brother. They did not recognize the appellant as their landlord and the appellant did not regard them as his tenants. In the circumstance, it was impossible for the appellant to have given them the statutory notice which would describe him as the landlord of the respondents, a relationship which was not recognized or acknowledged on both sides”.
Also in the case of OKETADE V. ADEWUNMI (2010) 8 NWLR Pt 1195, 63 at Pp75 the Supreme Court held as follows: I quote –
“A landlord has an unfettered legal right to terminate a tenancy upon giving adequate notice. This is because the property is his and he can at any time retrieve it subject to the conditions of the tenancy agreement. Once he abides by the provisions of the tenancy agreement, the tenant has no choice than to vacate possession. What usually brings problems between a landlord and a tenant is the giving of adequate notice. What constitutes adequate notice is spelt out in the lease or tenancy agreement. In other words, the landlord must give the tenant the quit notice as provided in the tenancy agreement. If the tenant refuses to quit, a court of law can, on an action by the landlord, force him out of the premises. In the instant case, it was unfair, inequitable and not in good conscience for the respondents, as landlords, to be denied possession or recovery of possession of their premises for fifteen years. The appellant was ordered to vacate the premises on 31st May, 1994 and he employed the processes of the court to stay on the premises for fifteen years for no just cause.
The Appellant fought her case on the ground that she was the owner of the land in dispute but on appeal says she is a tenant. The Appellant can not approbate and reprobate. In ADESOLA v. ABIDOYE (2001) 2 WRN 39 at 77 the Supreme Court held thus-
“Where the parties expressly or by implication agree on the factual issue and the case has been fought on the basis of those agreed factual issues, none of them should be permitted on appeal to build his case on a different factual basis or as if the factual aspect remains at large”-
Before coming into conclusion let me call in aid Section 2(1) of the Recovery of Premises Law cap 142 Laws of Bendel state of Nigeria as applicable to Delta state where the word “tenant” is defined thus:
“tenant” include any person occupying premises whether on payment of rent or otherwise but does not include a person occupying premises under a bona fide claim to be the owner of the premises”.
From the above consideration of this appeal the trial court was right in assuming jurisdiction over the matter. The Appellant’s complaint is misconceived and therefore can not sustain the appeal. The issue as formulated is resolved in favour of the Respondent.
On Issue 2 – The argument of the Appellant on this issue is again based on her being a tenant and not a claimant. However, the Appellant argued that there is no evidence on which the trial Judge based his judgment including the award of the Respondent’s claim in Relief (a) i.e. Mesne profit She argued that Exhibit C on which the learned trial Judge relied on the award is blank of duration. The trial Judge in his summing up concluded thus:
“The refusal by 1st Defendant (i.e. Appellant) to pay any further rent in my view terminated the tenancy. Thus at the expiration of the 1st year rent on 30/11/91 the 1st Defendant became a trespasser on the rand. The plaintiffs claim for possession therefore succeeds”
The Appellant earlier argued that at the time the action was commenced she had an unexpired six months. This is a misconception as the purported agreement which was said to have commenced on 30/11/09 expired on 30/11/91, the writ as shown on record was taken out on 27/4/92.
I have no reason to set aside the award. In conclusion I hold that the decision of the learned trial Judge is not perverse as he had carefully dealt with the case.
The appeal of the Appellant therefore fails as it is unmeritorious. The judgment delivered by the High Court of Warri on l4/12/94 is hereby affirmed. I order no cost.
AMINA A. AUGIE, J.C.A: I have read before now the lead Judgment just delivered by my learned brother, Shoremi, JCA, and I agree with his reasoning and conclusion. It is settled that findings of a trial Court are entitled to respect by this court when it is clear that it performed its primary duty of evaluating and ascribing probative values to the evidence before it properly – see Admin. Gen. Delta State v. Ogogo (2006) 2 NWLR (pt. 964) 366 & Trade Bank Plc v. Yisi (Nig.) Ltd (2006) 1 NWLR (pt. 960) 101.
In this case, there is no question that the lower Court evaluated the evidence before it properly. The Appellant has clearly failed to show that its decision was perverse in any way, and the end result is that I also dismiss the appeal as lacking in merit. I abide by the consequential orders in the lead Judgment including the order as to no cost.
CHIOMA EGONDU NWOSU-IHEME (Ph. D) J.C.A: I have read before now the Judgment of my learned brother GEORGE OLADEINDE SHOREMI JCA. I agree that the appeal is unmeritorious. It is accordingly dismissed. The Judgment of the High court of Delta state Warri Division is accordingly affirmed. I also make no order as to costs.
Appearances
Mrs. M. UdusegbeFor Appellant
AND
B.D. Ekpuda Esq.For Respondent
