MICHAEL RESTAURANT NIGERIA LIMITED v. EKO HOTELS LIMITED & ORS
(2019)LCN/13546(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of June, 2019
CA/L/745/2009
RATIO
TRESPASS: ILLEGAL OCCUPATION ALSO AMOUNTS TO TRESPASS
It is trite that any illegal occupation is trespass of the property, see ONAGORUWA v AKINREMI (SUPRA); SPDC (NIG) LTD v EKWEMS (2009) 4 NWLR (PT 1131) CA 229; ADAMU v GULAK (2013) LPELR 20844 CA all point to the point that the unlawful occupation is unlawful entry which is trespass.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
TRESPASS: A TRESPASSER CANNOT CLAIM TO BE IN POSSESSION BY MERE ACT OF ENTRY
In EKPAN & ANOR v UYO & ANOR (1986) LPELR – 1085 (SC), the apex Court held thus;
“A trespasser cannot claim to be in possession by mere act of entry and clearly a plaintiff in lawful possession still remains in possession despite a purported eviction by a trespasser.”
per OBASEKI, J.S.C (P. 35, PARA. A) PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
MICHAEL RESTAURANT (NIGERIA) LIMITED Appellant(s)
AND
1. EKO HOTELS LIMITED
2. MRS. OMOBOLANLE OLUSOGA
3. MRS. OLUWASEYI AKINMOLODUN Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgement of the High Court of Lagos, by Hon Justice E. A. LUFADEJU (MRS) delivered on 25th April 2008. The Appellant was 1st defendant while the 1st Respondent was the claimant and 2nd and 3rd Respondents were the 4th and 5th Defendants respectively at the lower Court.
The plaintiffs claim at the lower Court was for;
a) A declaration that the Defendants are in unlawful possession and/or occupation of the Plaintiff?s property at Plot 1411, Adetokunbo Ademola Street, Victoria Island, Lagos registered under Title No LO 7478 at the Lagos Lands Registry.
b) An account of all rents and profits collected or made by the 2nd Defendant in unlawfully letting out the aforesaid property at Plot 1411, Adetokunbo Ademola Street, Victoria Island, Lagos to the 1st Defendant and others since August, 1998 and an order compelling the 2nd Defendant to pay over to the Plaintiff the sums so found to be collected.
?c) An order of perpetual injunction restraining the 2nd Defendant from intermeddling in or purporting to exercise any
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powers or rights whether as lessor or otherwise in respect of the said property at Plot 1411, Adetokunbo Ademola Street, Victoria Island, Lagos and restraining the 1st Defendant from restructuring, reconstructing or otherwise altering the structure and/or user of the building of the said premises.
d) Possession of the said premises at Plot 1411, Adetokunbo Ademola Street, Victoria Island, Lagos with an annual rental value of N3,000,000.00 (Three Million Naira)
The summary of the case is that the 1st Respondent as plaintiff obtained an injunction ex-parte against the Respondents and after hearing parties and visit to locus in quo, the Court vacated the order of interim injunction and ordered on 3rd November, 2000, that the plaintiff should pay his rent into Court in the name of the Chief Registrar of Court till the determination of the Court
The lower Court after trial delivered judgement in favour of the plaintiff and being dissatisfied, the 1st defendant appealed this judgement via a notice of appeal dated 8th May, 2008 on three grounds.
The parties exchanged briefs; the Appellant was filed on 18/3/11 deemed on 13/1/14 filed by
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Adedapo M. Sobowale, Esq., of Sobowale & Co., wherein he distilled two issues;
1. Was the learned trial judge wrong in her decision that the Appellant was a tresspasser in respect of the property situate at Plot 1411, Adetokunboh Ademola Street Victoria Island Lagos, in the light of the overwhelming oral and documentary evidence before it and the ruling of Bode Rhodes Vivour J (as he then was) of 3rd November, 2000 which found that the Appellant was in lawful occupation of the property and ordered it to pay its subsequent rents to the Chief Registrar of The High Court Lagos
2. Was the learned trial judge right in holding that the appellant was not in lawful occupation of the property situate at Plot 1411, Adetokunbo Ademola Street, Victoria Island Lagos and therefore not entitled to statutory notices under the law for the recovery of the property by the 1st respondent or whosoever
While 1st Respondent was filed on 12/6/15 by Nduka Ikeyi, Esq., Sam Orgi, Esq., Ugonna Ogbuagu, Esq of Ikeyi & Arifayan. While the Learned Silk O. Shasore SAN led the team during adoption and raised a preliminary objection and distilled a sole issue for
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determination;
Whether the trial Court was right in its conclusion that the Appellant was a trespasser in respect of the property.”
During adoption Oluwatosin Adisa, Esq., appeared for the 2nd and 3rd Respondent. The Appellant was absent at the proceedings of 30th May, 2019, the Court was satisfied with the hearing notice which was served through counsel and the Appellant?s brief was deemed argued by virtue of Order 19 (10) (2) of the Court of Appeal Rules 2016.
While the 1st Respondent adopted his brief as arguments in the appeal and urged the Court to dismiss the appeal.
The 2nd and 3rd Respondents did not file any brief but informed the Court that they had entered a consent judgement in a sister appeal on 30th April, 2019 wherein they conceded title to the 1st Respondent.
The Appellant in his brief had pointed out that issue 1 relates to ground 1 and issue 2 relates to ground 2.
APPELLANT ARGUMENTS
Counsel submitted in Issue 1 that the lower Court failed to properly consider the oral, documentary as well as the ruling of RHODES ?VIVOUR, J (as he then was) delivered on 3/11/2000 before declaring
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him a trespasser.
He stated how he got into the disputed property and referred to paragraphed 2, 3, 4 – 13 of the Statement of Defence, that it was contractual lease with Mogbeyi Sagay SAN via his estate agents; Messers Jide Taiwo & Co. He contended that his occupation was recognized and reinforced by the ruling of Bode Rhodes ? Vivour, J. Furthermore, that in the amended statement of claim and witness statement the Company Secretary of 1st Respondent acknowledged that he is not a trespasser.
He contended that he had no contract with Eko Hotels and that he paid rents to Mogbeyi Sagay SAN, and the said Sagay acted under a power of attorney donated to him by Jivat Kishnani, he referred to paragraph 6 of the statement of defence dated 1/2/2000 to which Eko Hotels was not a party. And therefore there was no implied tenancy relationship between them. He referred to a host of cases; UBA v FOLARIN (2003) 7 NWLR (PT 818)18 ? 26; L.S.D.P.C & ORS v NIG LAND & SEA FOODS LTD (1992) 5 NWLR (PT 244) 653 @ 655 SC; AFRICA PETROLEUM LTD v OWODUNNI (1991) 8 NWLR (PT 210) 391.
?
He submitted on the whole, that the issue be resolved in favour
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of the Appellant.
Issue 2, deals with the misdirection in holding that the Appellant is not in lawful Occupation of the property, he relied on 2, 3, 4 – 13 of the Statement of defence filed at the lower Court, paragraph 2 of 1st Respondents Amended Statement of Defence dated 1st December, 2000 filed by Mogbeyi Sagay S.A.N at 6a – 6f, and posit that having been established that the occupation is lawful, the tenant will be entitled to be given statutory notices under the law for the recovery of possession of the said property by the 1st Respondent or by whosoever. He stated that the 1st Respondent did not adduce oral and documentary evidence at the trial, that the tenancy was determined, he referred to paragraph 2 of the 1st Respondents Amended Statement of Claim and paragraph 3 of the 1st Respondents Witness Statement on Oath. That the steps to recovery of premises in Nigeria was not followed, he referred to ELEJA v BANGUDU (1994) 3 NWLR (PT 334) 534 @ 536; SULE v NIGERIAN COTTON BOARD (Supra).
Appellant drew the attention of this Court to Section 7 of the Recovery of Rent Premises Law, 1973 Lagos state that sets out procedure for
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recovery of premises, he cited CHIEF C.I.F.OLANIYAN v CHIEF M. O. SHOKUNBI (1997) 6 NWLR (PT 509) 447 @ 450 to this effect he argued that the sole witness for the 1st Respondent said nothing was served. He further stated that he does not owe any rent therefore there is no valid reason to eject him as the 1st Respondent never was in occupation of the premises.
He urged that the issue be resolved in his favour.
The Appellant contended that the appeal be allowed and orders of the lower Court be set aside accordingly.
1ST RESPONDENTS ARGUMENTS
The 1st Respondent raised a preliminary objection on the competence of some of the grounds of appeal and issues raised there from. He submitted that grounds 2 & 3 of the grounds are incompetent and are liable to struck out because they do not arise from the judgement appealed against, and that ground 3 has been abandoned.
The 1st Respondent?s counsel posit that ground 2 does not state the page of the quotation in the judgement and that there is no such quotation in the judgement and that it has been misrepresented and it may be referring to page 248, paragraph 3 of the records
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(judgement) wherein the Court ordered possession.
Learned silk posit that the Appellant is not their tenant and they are the registered owner which leaves the Appellant hanging without a base and therefore, there is no tenancy upon which to issue the requisite notices.
He contended that a valid ground ought to show the error in the conclusion of the lower Court?s decision and particulars of the misdirection should show that the lower Court embarked upon inquiry whether a land lord and tenant relationship existed between the 1st Respondent and the Appellant, he relied on ASOGWA v PDP (2012) 12 KLR (PT 321) 411 55; NDULUE v OJIAKOR (2013) 2 KLR (PT 324) 771.
On ground 3 he submitted that no issue for determination was formulated on it and that its deemed abandoned, he cited FMC IDO EKITI v OLAJIDE (2011) 11 NWLR (PT 1258) 256; ADERIBIGBE v ABIDOYE (2009) 10 NWLR (PT 1150) SC. 592.
RESOLUTION
The notice of appeal is at page 249 of the record and it has 2 grounds together with the omnibus ground.
The ground 2 is reproduced herein;
The learned trial judge misdirected herself in holding that the 1st
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Defendant/appellant was a trespasser and not a lawful tenant to be entitled to be given statutory notices by the claimant prior to the determination of its tenancy and/or occupation of the property or for the recovery of the property by the claimant.”
On the record at page 248 of the judgement is thus;
The 1st defendant who confirms that the claimant is not their landlord i.e in their written address is a trespasser and had only become a tenant by Court order pending the determination of this suit while ordered to pay their rents to Court and this they have done this for nine years.
Since there is no contractual relationship of landlord and Tenant between the claimant and 1st Defendant, then the issue of Notice to quit does not arise.
The claimant as the registered owner is entitled to possession.”
Both quotations are different and represents different things therefore, I agree with the 1st Respondent?s submission that ground 2 is a misrepresentation and therefore does not flow from the judgement, it flowed from the written address of the 1st defendant/appellant and is liable to be struck
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out. In KINGSMAN MERCHANT CO NIG LTD v ECO BANK (2017) LPELR – 42924 (CA) it was held that;
“It is no doubt the settled position of the law that issues for determination of an appeal must flow from the grounds of appeal. Against this position of the law, it would appear indisputable that the issues formulated for the determination of the appeal by the Appellant flow from the grounds of appeal. The requirement of the law that an issue for the determination of an appeal must flow from the ground or grounds of appeal is however not the only thing necessary in an appeal. It is also a prerequisite of the law that for an issue or issues to be apt or appropriate for the determination of an appeal it/they must be such that will result in the setting aside of the judgment appealed against upon its or their resolution. In this regard see the case of DANIEL TAYAR TRANS ENT. NIG. CO. LTD V. BUSARI (2011) LPELR – 923(SC) where the Supreme Court dwelling on the source of issues for determination of an appeal, and what needs to be done for an issue arising from a ground of appeal to be relevant said per Onnoghen, JSC; (as he then was) thus: – “It is now settled law that
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appeals in this Court, and also in the Court of Appeal, are now argued on the issues formulated by counsel as arising from the ground(s) of appeal…… On the other hand, the grounds of appeal from which issues are formulated attack the defects in the ratio decidendi of the judgment appealed against. However, for an issue or issues arising from the grounds of appeal to be relevant, its resolution in favour of the appellant ought to result in the setting aside of the judgment concerned, else it is an exercise in futility as it is not every error committed by a lower Court that would lead to the judgment being set aside. It is therefore settled law that a resolution of a properly formulated issue based on a ground or grounds of appeal which attack the ratio decidendi of the case, will affect the fortunes of the appeal one way or the other since an issue is a question, usually a proposition of law or fact in dispute or combination of both between the parties, necessary for determination of which will affect the result of the appeal……”
per LOKULO SODIPE, J.C.A (PP. 17-18, PARAS. A-F) On the other hand, their particulars do not reveal the
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error in the finding conclusion of the lower Court when they had admitted that they were not the tenants of the 1st respondent and had no relationship with them it was left clear to find that the appellants had no basis for occupation having adjudged them the rightful owner. The ground does not relate or arise directly from the judgment.
The ground and issues formulated from them which is issue 2 are struck out.
Ground 3 is that;
The judgement is against the weight of evidence before the Court.
Its trite that where no issue is formulated against a ground that ground is deemed abandoned. In EL SALEM (IG) LTD v ODEH & ANOR (2018) LPELR ? 44450 (CA);
“…. It is trite that an issue for determination in an appeal must flow from the grounds of appeal filed. Where any issue for determination in an appeal is not related to or based on a ground or grounds of appeal, it is incompetent, and liable to be struck out. A respondent who did not file a cross appeal is at liberty to adopt the appellant’s issues or frame his issues, but in so doing, he must confine himself to the appellant’s grounds of appeal. See OPARA VS S.P.D.C.N. LTD
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(2015) 14 NWLR (PART 1479) 307 AT 338 PARAGRAPHS C – D; OKECHUKWU VS I.N.E.C (2014) 17 NWLR (PART 1436) 255 AT 287 PARAGRAPH C – D AND OKERE VS GOVERNOR OF OYO STATE (2012) 12 NWLR (PART 1314) 240. In the instant case both issues one and two raised by the 1st respondent were based on grounds 2, 3, 4 and 5 of the appellant’s grounds of appeal. Both issues are therefore competent.”
per HASSAN, J.C.A (PP. 8-9, PARAS. D-C)
Therefore ground 3 and issue 2 are struck out.
The preliminary Objection succeeds and it is upheld.
RESOLUTION OF APPEAL
Having struck out issue 2 & 3 upon which ground 2 is based, the appeal shall be decided on issue 1 alone, while taking into consideration the Respondents’ sole issue which is slightly different.
The facts before the Court are largely undisputed; it is the application that is in issue. This appeal is better appreciated when the root cause are laid bare from the evidence on ground.
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The property in dispute was originally owned by the estate of late Chief J. A. Laleye who leased a term of 16 years in 1976 to Hemnani Ram, by the administrators who transferred his unexpired
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interest to Jivat Kishani and further extended the said interest to 2004 and one Mogbeyi Sagay SAN was Attorney to Jivat Kishani in respect of the property, he let the property to the Appellant for a term of 2 years from 1st Jan, 2000 – 31st December, 2001. See Exhibit G2, G4 & G5. Also see evidence of 2nd & 3rd Respondents at page 166 of the record and the cross examination of DW2. The 1st Respondent came into the picture through the failed bank Tribunal, who transferred same to it, in setting off debts of the NDIC liquidator of Nation – wide bank. See Exhibit B & C Instrument of Transfer and CTC of Enrolled Order of Failed Bank Tribunal. The property has been pledged as collateral for loan by Forbirem limited for a N10 million loan from Nationwide Bank Plc but defaulted. The term of lease to Jivat Kishani having expired the property was transferred to Forbirem by the administrator of the estate of Laleye, see page 167 of the records. The 2nd & 3rd Respondents had contended that they did not grant an extension on the lease; the cross examination of DW2 who had registered its title and was now superseded by the title of Eko Hotels limited which
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has a Court backing and has been duly registered. This has not been set aside till date.
In the light of the evidence adduced, would it be said that the Appellant?s occupation was on a faulty premise whereby the term had expired and Jivat kishani and his attorney Mogbeyi Sagay SAN had no authority to transact on the property, as at 1989 to sublease part to Appellant, the term of lease having been cancelled with the certificate of the late J.A. Laleye in 19/5/1989 and transferred to Forbirem Ltd, see Exhibit D land certificate of 18/10/1974.
The Appellant, had no authority to occupy the property even though initial rent was paid and is being paid to Court, it was makes no difference to its illegal status. It is trite that any illegal occupation is trespass of the property, see ONAGORUWA v AKINREMI (SUPRA); SPDC (NIG) LTD v EKWEMS (2009) 4 NWLR (PT 1131) CA 229; ADAMU v GULAK (2013) LPELR 20844 CA all point to the point that the unlawful occupation is unlawful entry which is trespass. As at the time the Appellant came into the property, Mogbeyi Sagay SAN had no authority to convey what was not available.?
The Appellant had added weight to this,
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when in evidence in chief at page 163 line 3, the evidence of the chief accountant of the 1st Defendant/Appellant, categorically stated that the 1st Respondent was not his land lord. Then who is his landlord? The answer to the above will definitely solve the question. His landlord is Jivat Kishani through his Attorney Mogbeyi Sagay S.A.N who as earlier said lacked the original owners authority. Therefore, they cannot be the lawful landlord of the property; there cannot be two landlords for one property.
The authentic owner is the registered title owner, Eko Hotel and therefore the Appellant is a trespasser.
The 2nd and 3rd Respondents had informed the Court that they had conceded title to the 1st Respondent in a sister case that leaves the 1st Respondent with the clear title.
I must comment on the implication of the ruling of RHODES VIVOUR, J of 3/11/2000, it is based on an interlocutory injunction application pending the determination of the substantive suit, it does not amount to a blanket order, it is an interim order to preserve the ?res? the use and status quo of the property. An order of interlocutory injunction granted
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pending the determination of substantive suit cannot be held to be a decision that finally decides the rights of the parties. See; ODUTOLA HOLDINGS LTD v LADEJOBI (2006) 12 NWLR (PT 994) 321.
I cannot help but agree with the 1st Respondent?s submission that the recognition of the Appellant as a lawful occupant at the trial stage amounts to a decision in the substantive suit which the law frowns against. The Appellant cannot in law be regarded as a lawful occupant in the light of the evidence adduced and cannot be a tenant under the law.
In EKPAN & ANOR v UYO & ANOR (1986) LPELR – 1085 (SC), the apex Court held thus;
“A trespasser cannot claim to be in possession by mere act of entry and clearly a plaintiff in lawful possession still remains in possession despite a purported eviction by a trespasser.”
per OBASEKI, J.S.C (P. 35, PARA. A)
In the light of the above, the lower Court was right in its conclusion that the Appellant was a trespasser in respect of the property, the conclusion is unimpeachable.
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The appeal lack merit and fails, it is hereby dismissed. The judgement of the Lagos state High Court, per Hon Justice
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E. A. LUFADEJU (MRS) delivered on 25th April, 2008 is hereby affirmed.
Cost of N300, 000 is awarded to the 1st Respondent
MOHAMMED LAWAL GARBA, J.C.A.: I agree
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the lead judgment of my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA, and I agree with the said judgment that the appeal be dismissed as it lacks merit.
?I do not have anything useful to add, and I abide with the order made as to costs in favour of the Respondent.
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Appearances:
Appellant not representedFor Appellant(s)
O. Shasere, SAN with him, F.A. Salu (Miss) and B. Mayaki for Respondent.
Oluwatosin Adisa for 2nd and 3rd Respondents.For Respondent(s)
Appearances
Appellant not representedFor Appellant
AND
O. Shasere, SAN with him, F.A. Salu (Miss) and B. Mayaki for Respondent.
Oluwatosin Adisa for 2nd and 3rd Respondents.For Respondent
