MNYIM & ORS v. THE REGISTERED TRUSTEES ASSEMBLIES OF GOD NIGERIA
(2021)LCN/15075(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Wednesday, March 31, 2021
CA/MK/36/2018
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
- REVEREND ANDREW MNYIM 2. REVEREND JAMES ABUR 3. REVEREND GENESIS ALEJE 4. REVEREND LAWRENCE ASIKA 5. REVEREND MATTHEW IGWE APPELANT(S)
And
THE REGISTERED TRUSTEES ASSEMBLIES OF GOD NIGERIA RESPONDENT(S)
RATIO
WHO IS A CONTRACTUAL TENANT
Per NNAEMEKA-AGU, J.S.C. at page 21, paras. B-D in the case of AFRICAN PETROLEUM LIMITED V. J.K. OWODUNNI (1991) LPELR-213 (SC) opined thus: “…A tenant who enters upon premises by reason of a contract with the landlord is a contractual tenant. Such a tenant holds an Estate which is subject to the terms and condition of the grant. Once that tenancy comes to an end by effluxion of time or otherwise and the tenant holds over without the Will or agreement of the landlord, he becomes a tenant at sufferance. This is strictly a common law concept”. It should be noted that, the hallmark of a contractual tenant are basically exclusive occupation of the demised premises, payment of rent and certainty of term. See AFRICAN PETROLEUM LIMITED V. J.K. OWODUNNI supra. PER IGNATIUS IGWE AGUBE, J.C.A.
POSITION OF THE LAW ON THE PROCEDURE TO BE ADOPTED BY A LANDLORD DESIRING TO RECOVER POSSESSION OF PREMISES
The procedure for the recovery of premises in the case of a purely Landlord and Tenant relationship appears very simple but, it is nonetheless technical. Once there is a lapse or mistake in the steps to be taken by a landlord in attempting to evict a tenant, the latter takes advantage of the lapses and holds on to the premises as in the instant case. This procedure is provided for, under the various laws governing tenancy relationship in the various States as well as the Federal Capital Territory, Abuja. The Supreme Court in IHENACHO V. UZOCHUKWU (1997) 2 NWLR (PT. 487) 257 AT 269-270 gave a synopsis of the procedure as follows: “A landlord desiring to recover possession of premises let to his tenant shall firstly: unless the tenancy has already expired, determines the tenancy by services of the appropriate Notices to Quit. On the determination of the tenancy, he shall serve the tenant with the statutory 7 days’ Notice of his intention to recover possession of the premises. Thereafter, the landlord shall file his action in Court and may only proceed to recover possession of the premises according to law in terms of the judgment of the Court in the action.” PER IGNATIUS IGWE AGUBE, J.C.A.
NATURE OF TENANCY AT SUFFERANCE
The Apex Court per OGUNTADE, J.S.C. at page 39, paras. A-F in the case of O.D. BRIGGS V. THE CHIEF LANDS OFFICER OF RIVER STATE OF NIGERIA & ORS (2005) LPELR-805 (SC) opined that: “…the learned author of Halsbury’s Laws of England, 4th Edition, Volume 27 (1) at paragraph 176 page 163 writes: ‘176, Nature of tenancy at sufferance’. A person who enters on land by lawful title and after his title has ended, continues in possession without statutory authority and without obtaining the consent of the person then entitled, is said to be a tenant at sufferance, as distinct from tenant at Will who is in possession with the landlord’s consent. This is so whatever the tenant’s original estate, whether he was tenant for years, or the subtenant at sufferance arises by implication of the law and may not be created by contract between the parties. A tenancy at sufferance does not arise upon the holding over by one whose title was created by act of law, and there can be no tenancy at sufferance against the Crown. In these cases, the person holding over is a mere trespasser. But it seems that, on the death of the tenant at sufferance, the like tenancy will continue in favour of a person claiming under him. A release from the landlord to the tenant at sufferance does not operate to enlarge the tenant’s estate.” PER IGNATIUS IGWE AGUBE, J.C.A.
NATURE OF THE ORIGINATING SUMMONS PROCEEDINGS
The nature of Originating Summons has been very well enunciated in a number of legal authorities. It is a means of commencing an action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or Deed, Will, Contract or other Document or other questions of law or in circumstances where there is no likelihood of any facts to be disputed. In general terms, it is used for non-contentious matters i.e., those actions where the facts are not likely to be in dispute. See DIRECTOR, STATE SECURITY SERVICE V. AGBAKOBA (1999) 3 NWLR (PT. 595) 314; DIN V. A.G OF THE FEDERATION (1986) 1 NWLR (PT. 17); KEYAMO V. HOUSE OF ASSEMBLY LAGOS STATE & ORS (2002) 18 NWLR (PT. 799) 605 and FAMFA OIL LIMITED V. ATTORNEY GENERAL OF THE FEDERATION (2003) 18 NWLR (PT. 852) 453. The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a Deed, Will or other written instrument. The procedure is applicable where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties to the suit. In DOHERTY V. DOHERTY (1968) NMLR 241, it was held that, in matters where facts are not in issue, the Originating Summons which must be supported by an Affidavit of the facts must be taken out and will become operative once a Judge in Chambers has signed it, thus, giving direction for the service and in OBA OSUNBADE V. OBA OYEWUNMI 30 NSCQR 434 at 499, the Supreme Court per OGBUAGU J.S.C. said: “It is now firmly settled that, an Originating Summons is an unusual method of commencing proceeding in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable to make use of this procedure for hostile proceedings where the facts are in dispute. See INAKOJU V. ADELEKE (2007) CLR 1 (F) (SC), (2007) 2 MJ.S.C.1; PETER-PAM V. MOHAMMED (2008) CLR 5 (I) (SC), (2008) 9 MJ.S.C. 117, FGN V. ZEBRA ENERGY (NIG.) LIMITED (2002) CLR 12 (A) (SC) (2003) 1 MJ.S.C. 3.” PER IGNATIUS IGWE AGUBE, J.C.A.
CONSEQUENCE OF NON-COMPLIANCE WITH DUE PROCESS OF LAW WHEN COMMENCING AN ACTION
It is settled that, where the law merely stipulates certain conditions to be met before an action can be instituted in Court and there is a willful and persistent refusal to comply with those conditions as in the instant case, the effect would be nothing other than void standing in Court because, due process was not followed. The 7th Edition of the Black’s Law Dictionary defines due process to mean; the conduct of legal proceedings in accordance with the laid down rules and principles for the protection and enforcement of private rights, including notices and right to fair hearing before a Court of law or Tribunal can be said to have jurisdiction to determine the suit. The law lord of the Apogee Court in KENTE VS. ISHAKU (2017) LPELR-42077 (SC) it opined that: “It is trite law that a defective Originating Process cannot activate the jurisdiction of the Court. A valid Originating Process is the requirement of the law for the commencement of proceedings before the Court. It cannot be over-emphasized that unless action is initiated in accordance with due process of law, if commenced already would only amount to a nullity”. Still on the same score, another distinguished erudite Law Lord of the Apex Court per FABIYI, J.S.C. at page 16, paras. D-E in ELDER O.O. OKEREKE V. KALU JAMES (2012) LPELR-9347 (SC) opined thus: “…the initiating process of the Appeal was not at one with due process of the law. The case must come before the Court initiated by due process of law and fulfillment of any condition precedent to activate the Court’s competence and afortiori jurisdiction. See MADUKOLU & ORS V. NKEMDILIM (1962) NSCC 374 AT 399-380.” PER IGNATIUS IGWE AGUBE, J.C.A.
IGNATIUS IGWE AGUBE, J.C.A. (Delivering The Leading Judgment): This Appeal emanates from the decision of the High Court of Benue State, Holden at Makurdi and delivered per His Lordship, Hon. Justice Adam Onum on the 12th day of July, 2017 whereof he found merit in the prayers of the Plaintiff, now Respondent, and ordered that the 1st to 5th Defendants now Appellants vacate the premises/residence they hold of the Plaintiff/Respondent without her consent. Dissatisfied by the decision of the High Court, the Appellants by a Notice of Appeal dated and filed on the 14th July, 2017 and predicated on seven (7) Grounds, appealed to this Court upon the Grounds set out hereunder without their respective particulars.
“GROUNDS OF APPEAL:
GROUND ONE:
The Trial Judge erred in law when he assumed jurisdiction over a case which was premature.
GROUND TWO:
The Trial Judge erred in law when he assumed jurisdiction and gave judgment in favour of the Respondent in an Originating Summons containing contentious matters or where the facts are in dispute and required evidence, and this therefore, occasioned a miscarriage of justice.
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GROUND THREE:
The Trial Court misdirected itself on facts and law regarding paragraph 22 of Appellants’ Counter-Affidavit which he quoted thus: “That the crisis in Assemblies of God, Nigeria, has polarized the Makurdi District so much so that members of the Ministry in the Churches, the 2nd, 3rd, and 4th Defendants as well as myself Pastor, who are loyal to the said rebel group have left the Churches and have started their own Churches.” When it held that “The language of this deposition appears ambiguous, if not confusing. It is however safe for me to construe it to also mean that some members of the Church including the 2nd, 3rd, 4th and 5th Defendants have left the Church. This supports the case of the Plaintiff that the Defendants are no longer members of the Church.”
GROUND FOUR:
The lower Court erred in law when it failed to consider and pronounce on all the issues properly raised before it and this occasioned a gross miscarriage of justice.
GROUND FIVE:
The trial Court erred in law and facts when it held that it did not see any authority on the part of any of the Defendants to continue to remain in
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occupation of the respective premises that they hold of the Church and ordered the 1st – 4th Appellants to vacate the said premises within 7 days and the 5th Appellant to vacate within 14 days.
GROUND SIX:
The judgment is against the weight of evidence adduced before the Court.
GROUND SEVEN:
Further Grounds of Appeal will be filed on the receipt of the Record of proceedings.
RELIEFS SOUGHT FROM THE COURT OF APPEAL:
(1) An order allowing the Appeal.
(2) An order setting aside the judgment of the lower Court delivered on the 12th day of July, 2017.
(3) An order dismissing the Respondent’s (Plaintiff) suit against the Appellants (Defendants).
(4) AND such order or other orders as this Court may deem fit to make in the circumstances.”
STATEMENT OF FACTS
The Plaintiff/Respondent herein commenced this suit by way of Originating Motion dated and filed on the 20th April, 2017 pursuant to Order 52 Rule 2 of the High Court of Benue State (Civil Procedure) Rules, 2007 whereof he was heard praying for the following Reliefs jointly and severally against the Defendants/Appellants inter alia:
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“1. An Order for possession against the 1st Defendant, of ALL THAT property lying and situate at HUDCO Quarters, High Level, Makurdi, which serves as the Makurdi District Secretariat of the Plaintiff, and was occupied by the 1st Defendant without the consent or licence of the Plaintiff.
2. An Order for possession against the 2nd Defendant of the Pastor’s Residence and Office, located at the Assemblies of God Church Nigeria, No. 44 Benue Crescent, Wadata, Makurdi which the 2nd Defendant occupied without the consent or licence of the Plaintiff.
3. An Order for possession against the 3rd Defendant of the Pastor’s Residence and Office located on the Assemblies of God Church Nigeria, property at Awe Street, Wurukum, Makurdi, which was occupied without the consent or licence of the Plaintiff.
4. An Order for possession against the 4th Defendant for the Pastor’s Office and Residence located at the Assemblies of God Church, Nigeria premises located in the Assemblies of God Church behind Joe Best Bakery, North Bank, Makurdi, which was occupied by the 4th Defendant without the consent or licence of the Plaintiff.
5. An Order
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for possession against the 5th Defendant for the Pastor’s Residence and Office located at the Assemblies of God Church Nigeria’s property at Km. 4 Gboko Road, Makurdi, which was occupied without the consent or licence of the Plaintiff.”
See page 8 of the Records.
The Originating Motion was supported by a Verifying Affidavit of Twenty-Four (24) paragraphs deposed to by Reverend Jossy Tiger. See pages 5 to 8 of the Records. Annexed to the Verifying Affidavit in Support of the Originating Motion were 8 (Eight) documents marked Exhibits “1”, “2”, “3”, “4”, “5”, “6”, “7” and “8”. See pages 9-28 of Records and a Written Address in Support of the Application. See pages 36 to 37 of the Record of Appeal.
Upon being served with the Plaintiff/Respondent’s Originating processes and the attached Exhibits, T.Y. Ornguga, Esq. entered a Memorandum of Conditional Appearance for the 3rd Defendant/Appellant filed on the 11th of May, 2017. The learned Counsel to the Plaintiff/Respondent at the Trial Court thereafter filed a Motion Exparte dated
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11th May, 2017 same day with a Verifying Affidavit of 6 (Six) paragraphs deposed to by Faith Kwaghdoo Anume pursuant to Order 7 Rule 5(1) and (2) of the Benue State High Court (Civil Procedure) Rules, 2007 praying for the following: –
“1. AN ORDER of this Honourable Court directing that Suit No. MHC/193/2017 be served on the 1st, 2nd, 4th and 5th Defendants/Respondents herein by substituted means, to wit: by pasting as follows:
(a) That 1st Defendant be served by pasting the Originating processes at the main door/entrance of the 1st Defendant’s Residence at Assemblies of God Nigeria, Jumbo Street, Nyiman, Makurdi.
(b) That the 2nd Defendant be served by pasting the Originating processes at the main door/entrance of Assemblies of God Nigeria, No. 44 Benue Crescent, Wadata, Makurdi.
(c) That the 4th Defendant be served by pasting the Originating processes at the main door/entrance of Assemblies of God Nigeria, opposite Joe Best Bakery, North Bank, Makurdi.
(d) That the 5th Defendant be served by pasting the Originating processes at the main door/entrance of Assemblies of God Nigeria, Km.4, Makurdi-Gboko Road, Opposite NKST,
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Ama, Terwase Agbadu, Makurdi.
AND for such further Order or Orders that this Honourable Court may deem fit to make in the circumstances of this case.”
See pages 31 to 35 of the Records.
On the 11th day of May, 2017 A.J. Ogbo, Esq., the learned Counsel to the Plaintiff/Respondent moved the Motion Exparte and was granted on the following terms: –
“The Motion is granted as prayed on the face of the Motion paper. Accordingly, the 1st Defendant in the Suit No. MHC/193/2017 shall be served by pasting all processes therein at the main entrance door of his Residence which is along Jumbo Street in Nyiman area of Makurdi. The 2nd, 4th and 5th Defendants shall each be served with all processes in the said suit by pasting at the main entrance door of their respecting address, which are Assemblies of God Church.
(1) No. 44 Benue Crescent, Wadata, Makurdi (2) Opposite Joe Best Bakery, North Bank, Makurdi, and (3) Km.4 Gboko Road, Opposite NKST Ama, Terwase Agbadu, Makurdi, respectively.”
Upon being served with the Plaintiff/Respondent’s Originating processes and the attached Exhibits, T.Y. Ornguga, Esq., the Counsel
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representing the 3rd Defendant/Appellant filed a Motion on Notice No. MHC/1159M/2017 dated 30th May, 2017 and filed on 31st May, 2017 with a supporting Affidavit of 6 (Six) paragraphs deposed to by Samuel Yoosu (the Litigation Secretary in the Law Firm of Ayia, Ayia George and Co.) and a Written Address, Pursuant to Order 39(1) of the Benue State High Court (Civil Procedure) Rules, 2007. See pages 39 to 44 of the Records.
The said Motion on Notice (MHC/1159M/2017) came up for hearing on 5th day of June, 2017 and the learned Trial Judge granted the prayers of the 3rd Defendant/Appellant. (See page 219, lines 15 to 28 of the Records). Thereafter, the 1st – 5th Defendants/Appellants’ filed a Counter-Affidavit of 35 paragraphs on the 31st May, 2017 deposed to by Reverend Matthew Igwe. Accompanying the Counter-Affidavit was a Written Address and Documents marked Exhibits “1” – “6”. See pages 45 to 51 of the Records.
The Plaintiff/Respondent herein filed Further Affidavit of 5 (five) paragraphs on 5th June, 2017, deposed to by Faith Kwaghdoo Anume (the Litigation Secretary in the Law Firm of M/S. A.J. Ogbo &
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Co.) which was accompanied with documents marked Exhibits “A”, “B” “C”, “D” and “E”. See pages 195 to 199 of the Records.
At the hearing of the substantive suit, the learned Counsel to the respective parties proffered arguments and the case was adjourned to the 27th day of June, 2017 for Ruling. Unfortunately, the Court did not sit on that day, rather, the Court sat on the 12th day of June, 2017 and delivered the Ruling which was in favour of the Plaintiff, now Respondent. Dissatisfied with the decision of the Trial Court, the Appellants appealed to this Court by a Notice of Appeal dated and filed on the 14th July, 2017.
The Record of Appeal was transmitted and entered into this Court on the 17th day of September, 2018, whereof the Appellants filed an Application dated 4th April, 2018 seeking for leave to raise fresh issue which was granted as prayed on the 17th day of July, 2018. On the 14th December, 2018, the learned Counsel to the Appellants further filed an Application dated 12th December, 2018 for the regularization of their Brief of Argument. The said Application was granted as
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prayed on the 18th day of March, 2019. In the Appellants’ Brief of Argument settled by G.I. Enebeli, Esq. dated and filed on the 14th day of December, 2018, five (5) issues were distilled for determination as reproduced hereunder:
“(i) Whether the lower Court had jurisdiction to hear and determine the suit as it did in the absence of issuance of statutory notices by the Respondents (Distilled from Ground 1 of the Notice of Appeal).
(ii) Whether the Trial Judge was right when he determined this suit in favour of the Respondents, initiated by an Originating Summons when the facts are in dispute and or contentious (Distilled from Ground 2 of the Notice of Appeal).
(iii) Whether the Trial Court was right when he gave judgment based on paragraph 22 of the Counter-Affidavit and concluded that the Appellants were no longer members of the Church, without recourse to Exhibit “6” and make findings on the issues of suspension/excommunication (Distilled from Ground 3 of the Notice of Appeal).
(iv) Whether the Trial Judge was not in error when he failed to make findings on material and important issues of facts raised before
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the Court (Distilled from Ground 4 of the Notice of Appeal).
(v) Whether the Trial Judge was right when he ordered 1st to 4th Appellant to vacate the said premises within 14 days (sic) (7 days?) and the 1st Applicant (sic) (appellant?) to vacate within 14 days for an alleged lack of authority to remain in the premises (Distilled from Ground 5 of the Notice of Appeal).”
It would be recalled that the learned Counsel to the Appellants abandoned Grounds 6 and 7 of the Notice of Appeal and accordingly no issue was distilled therefrom. Thereafter, the learned Counsel to the Plaintiff/Respondent filed an Application on 14th day of March, 2018 which was predicated on 6 (Six) Grounds and supported with a verifying Affidavit deposed to by Rev. Jossy Tiger (the Resident Pastor of the Plaintiff/Respondent) pursuant to Order 4 Rule 6 and Order 6 Rules 1 and 4 of the Court of Appeal Rules and under the Inherent Powers of this Honourable Court praying for: “(1). An Order of interlocutory injunction restraining the Appellants/Respondents, as well as the party sought to be joined to this Motion for the purpose of this Application to desist, stop, or
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in any other way from convening any purported Council Meeting in the name or symbol of Assemblies of God, Makurdi District in Makurdi, or any other location for the same or similar purpose, until the determination of Appeal No.CA/MK/36/2018 pending before this Honourable Court. (2) An Order restraining the 6th Respondent who is sought to be joined to this Motion from visiting Benue State for purpose of conducting, supervising or participating in the purported Council Meeting of the Makurdi District of Assemblies of God Nigeria or any gathering of that nature pending the determination of Appeal No.CA/MK/36/2018 before this Honourable Court.” The Application was granted on the 18th day of March, 2019.
Conversely, upon the receipt of the Appellants’ Brief of Argument, the Respondents in their Brief of Argument filed on the 31st day of September, 2019, and settled by P.E. Ochuokpa, Esq., distilled two issues for determination to wit:
“1. Whether the learned Trial Court had jurisdiction under Order 52 of the High Court (Civil Procedure) Rules, 2007 to entertain the subject matter of this suit?”
2. Whether the evaluation and
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review of evidence by the learned Trial Court can be faulted?”
The learned Counsel to the Appellants upon receipt of the Respondent’s Brief, on 15th March, 2019 filed the Appellants’ Reply Brief on Points of Law.
ARGUMENT OF THE LEARNED COUNSEL TO THE APPELLANTS ON ISSUE NUMBER 1 (ONE):
“WHETHER THE LOWER COURT HAD JURISDICTION TO HEAR AND DETERMINE THE SUIT AS IT DID IN THE ABSENCE OF ISSUANCE OF STATUTORY NOTICES BY THE RESPONDENTS (DISTILLED FROM GROUND 1 OF THE NOTICE OF APPEAL).”
On this issue, which is weaved to ground one, the learned Counsel for the Appellants commenced their argument by submitting that the Respondent, by the evidence adduced before the lower Court, failed to prove that the Appellants entered the premises of the Assemblies of God Church, Nigeria without the consent or licence of the Respondent and are therefore squatters.
It was the argument of the learned Counsel to the Appellants that, the procedure under Order 52 of the Benue State High Court (Civil Procedure) Rules, 2007 in which the Respondent initiated suit No. MHC/193/2017 against the Appellants is improper, and therefore
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rendered the suit incompetent on the following reasons:
(i) The Originating Summons procedure under Order 52 (supra) adopted by the Respondent in bringing this action at the lower Court was improper in the circumstances of the case.
(ii) The proceedings under Order 52 are to be used for possession of landed property occupied by squatters.
(iii) The Appellants are not squatters but contractual tenants.
It was their further argument as they insist that, all the five reliefs at page 3 of the Records against the Appellants are for possession of Pastor’s Offices and/or Residential premises, occupied by the Appellants who the Respondent alleges have been dismissed as Pastors in the Respondent’s Church at Makurdi. It was also his submission that the supporting Affidavit shows that the Appellants are in occupation of their respective Offices/Residential premises by virtue of their Offices as (Presbyters cum District Officers) and as Pastors of their respective branches of the Respondent’s Church in Makurdi by virtue of their positions and duties.
The learned Counsel for the Appellants contended that, by Exhibits
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“4”, “5”, “6”, “7” and “8”, the Appellants were served demand letters through their Solicitor, A.J. Ogbo, Esq. by Rev. John-Whyte Ede, Rev. Hyacinth Ucha and Rev. Jossy Tiger to hand over all properties of Assemblies of God Nigeria to Rev. Jossy Tiger because they (Appellants) have been excommunicated as Pastors in the Respondent’s Church at Makurdi. See pages 14 to 28 of the Records; Exhibits “4” to “8” and paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the Supporting Affidavit at pages 6 to 8 of the Records.
They contended that, in respect of paragraphs 10 and 13 of the Respondent’s Affidavit in support of the Originating Summons which avers that because the 1st and 2nd Appellants were in possession of the Respondent’s properties/premises, they were directed to hand over the said properties by virtue of Exhibits “2” and “3” (Letters of excommunication, suspension and/or dismissal); this means that they were occupying the said offices, premises cum properties with the consent or licence of the Respondent and are not
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squatters and that Exhibits “4” to “8” serve as Notices to the Appellants to handover the properties under their occupation and control to one Rev. Jossy Tiger within seven days. According to the learned Counsel for the Appellants, it is quite clear from the evidence on record that the Appellants are in possession of the various properties occupied by them by virtue of their Offices and positions with the consent, authority and permission of the Respondent which explains why the letters of demand to handover or, deliver possession of the premises of Assemblies of God Church was directed to them through Rev. Jossy Tiger.
It was their submission that, from the above background and evidence on record, this Court is urged to hold without hesitation that the Appellants are contractual tenants and therefore, the procedure adopted in initiating the suit now on Appeal was improper and had grossly affected the competence of the Trial Court to hear the suit. Accordingly, they contended that, under Common Law, by virtue of the lawful entry and occupation of the said Offices/Residential Premises, the Appellants could only be regarded
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as tenants at sufferance after their alleged dismissal or excommunication on the pretence but not conceding that they have been dismissed as Pastors of Assemblies of God, Nigeria.
Still on this issue, they contended that as Statutory/Protected Tenants, the appropriate procedure for the Appellants’ ejection or the recovery of the various premises/properties claimed in the Respondent’s suit from them would be an action filed separately for recovery of Residential Premises pursuant to the Rent Control and Recovery of Residential Premises Law, Laws of Benue State Cap.145. and not Order 52 of Benue State High Court (Civil Procedure) Rules, 2007. Sections 18, 19, 20 and 21 of the Rent Control and Recovery of Residential Premises Law of Benue State and African Petroleum Ltd. vs. Owodunni (1991) 8 NWLR (Pt.210) page 391 Ratio 4 at page 396, particularly at page 413, paras. A-B were cited and relied upon in so submitting.
It was their submission on the above that, in law, there is no difference between a tenant at sufferance and a statutory tenant except in one respect as they referred us to A.P. vs. Owodunni (supra) Ratio 10 at pages 397-398
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(particularly at page 413 paras. G-H) in further submitting that the Appellants are entitled to be served Notice(s) to Quit and Notices of Owner’s Intention to Apply to Court to Recover Possession as prescribed by law. This, according to the learned Counsel must be in an action for recovery of premises and when the Appellants refused to give up possession voluntarily. Sections 18, 19, 20 and 21 of the Rent Control and Recovery of Residential Premises Law, Laws of Benue State, 2007 Cap.145 were relied upon for this submission.
Placing reliance on A.P. vs. Owoduni’s case (supra); which according to the learned Counsel, the facts and circumstances are similar to the facts of the Plaintiff/Respondent’s case except that in the A.P. Ltd’s case, the Plaintiff brought the suit (now on Appeal), under Order 52 of the Benue State High Court (Civil Procedure) Rules, 2007; a procedure meant for possession of landed properties occupied by squatters or without the owner’s consent. Therefore, they submitted that the procedure under Order 52 for summary of possession of landed property occupied by squatter or without owner’s consent
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adopted by the Plaintiff/Respondent in commencing the suit is inappropriate in view of the facts and circumstances of the case and that, the improper procedure adopted by the Plaintiff/Respondent in commencing the suit affected the competence of the suit and the jurisdiction of the Trial Court to hear same.
Accordingly, it was their final submission on issue one that the entire proceedings in the Plaintiff/Respondent’s suit at the High Court amounted to a nullity. Madukolu vs. Nkemdilim (1962) 2 SCNLR page 34 (1962) 1 All NLR 587 at page 594 was relied upon in submitting that the Plaintiff/Respondent’s suit commenced under Order 52 was not initiated by due process of law, having not been brought under the appropriate procedure. Secondly, the condition precedent (giving of Notices to Quit and Owner’s Intention to Recover Possession) was not done by the Plaintiff/Respondent before bringing the action for recovery of possession. Therefore, in his view, the Plaintiff/Respondent ought to have commenced the action under the procedure for recovery of premises; having not done so, the entire proceedings is fatal, defective and should be declared
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a nullity as they urged this Court to so hold. Emeka vs. Okoroafor (2017) 11 NWLR (Pt.1577) page 410 ratios 9 and 10 at pages 429 and 430 pp.478 paras. B-D, 478 paras. C-F referred.
ARGUMENT OF THE LEARNED COUNSEL TO THE APPELLANTS ON ISSUE NUMBER 2 (TWO):
“WHETHER THE TRIAL JUDGE WAS RIGHT WHEN HE DETERMINED THIS SUIT IN FAVOUR OF THE RESPONDENTS, INITIATED BY AN ORIGINATING SUMMONS WHEN THE FACTS ARE IN DISPUTE AND OR CONTENTIOUS? (DISTILLED FROM GROUND 2 OF THE NOTICE OF APPEAL).”
In canvassing this issue which is related to ground two, the learned Counsel for the Appellants argued that the Trial Judge erred in law when he gave judgment to the Respondent through Originating Summons when the facts in the case were contentious and disputable without resorting to oral evidence to hear the parties and from the Affidavit and the Counter-Affidavit, evidence filed by parties shows that the following facts were in dispute:
(i) The Respondent alleged that Exhibit “1” attached to the Counter-Affidavit is the valid Certificate of Incorporation of the Registered Trustees of Assemblies of God, Nigeria.
(ii) That the
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1st Appellant is still a member, Minister, District Superintendent of the Makurdi District as well as General Secretary of Assemblies of God, Nigeria.
(iii) That the 2nd, 3rd and 4th Appellants then (Defendants) as well as 5th Appellant (5th Defendant) are not suspended Ministers of Assemblies of God, Nigeria.
(iv) That Exhibits “2” and “3” attached to the Supporting Affidavit do not emanate from the General Council of the Assemblies of God, Nigeria, as can be gleaned from pages 45, 46 and 47 of the Records.
(v) Whether the Appellants’ suspension and excommunication were right or wrong.
(vi) Whether the Appellants had the Ministry’s consent or licence to occupy the properties of the Ministry.
(vii) Whether the Appellants were squatters to warrant the commencement of this action under Order 52 of the Rules of the Trial Court.
Consequently, they relied on the authorities of Doherty vs. Doherty (1968) NMLR 24; S.A.I. Ossai vs. Isaac Wakwah & Ors. (2006) LPELR-SC.388/2001; Oba Adegboyega Adeyelu II & Ors. vs. Oba Jimoh Oladunni Oyewunmi & Ors. (2007) LPELR-SC.79/2002 in submitting
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that where there is a dispute as to facts or evidence in respect to the suit, Originating Summons should not be accepted.
Again, they referred us to the authorities of Ebba vs. Ogodo (1984) 1 SCNLR page 372, Akintoye vs. Eyiyola (1968) NMLR 92; Iriri vs. Erhurhobara (1991) 2 NWLR (Pt.173) page 252; Woluchem vs. Gudi (1981) 5 SC 291; Nwokoro vs. Nwosu (1994) 4 NWLR (Pt.337) at 172; Unilag. Vs. M.I. Aigoro, to buttress the above submission.
In the light of the above disputed facts and evidence enumerated, the learned Counsel to the Appellants insisted that it was “ambiguous and confusing”, as the Trial Judge was wrong when he pronounced on the merit of the case by giving judgment against the Appellants instead of ordering for pleadings.
Consequently, they urged this Court to resolve issue two in favour of the Appellants by allowing the Appeal.
ARGUMENT OF THE LEARNED COUNSEL TO THE APPELLANTS ON ISSUE NUMBER 3 (THREE):
“WHETHER THE TRIAL COURT WAS RIGHT WHEN HE GAVE JUDGMENT BASED ON PARAGRAPH 22 OF THE COUNTER-AFFIDAVIT AND CONCLUDED THAT THE APPELLANTS WERE NO LONGER MEMBERS OF THE CHURCH, WITHOUT RECOURSE TO
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EXHIBIT “6” AND MAKE FINDINGS ON THE ISSUES OF SUSPENSION/EXCOMMUNICATION? (DISTILLED FROM GROUND 3 OF THE NOTICE OF APPEAL).”
On this issue which is tied to ground three (3), the learned Counsel for the Appellants contended that the Trial Court misdirected itself on facts and law regarding paragraph 22 of the Appellants’ Counter-Affidavit by virtue of Exhibit “6” and failed to appreciate the facts therein and that for easy reference, paragraph 22 of the Counter-Affidavit reproduced by the Trial Judge can be found at pages 48 and 221 of the Records.
It was the contention of the learned Counsel for the Appellants that the Trial Judge failed to appreciate the facts stated in paragraphs 8, 9, 10 and 34 and Exhibits “2” and “6” which were attached to the Counter-Affidavit. Pages 46, 50 of the Records referred.
On the same score, they submitted that the issue raised by Exhibits “2” and “6” attached to the Counter-Affidavit was not considered or pronounced upon by the Trial Judge. Also they maintained, the evidence stated in paragraphs 8, 9, 10, 22 and 34 of the
23
Counter-Affidavit indicate that the Appellants are still members of the Assemblies of God, Nigeria, since the General Council of Assemblies of God, Nigeria has not suspended and/or excommunicated them.
They further submitted that when a party files an issue to a Court for determination, that Court must make a pronouncement on the issue, except where the issue is subsumed in another issue. Adebayo vs. A.G. Ogun State (2008) 5 SCM 1 at 10 referred.
On another score, the learned Counsel to the Appellants argued that the issue of suspension or excommunication and staying on the Respondent’s Church properties with licence or consent was not pronounced upon and for a Judge to produce a judgment which is fair and just on a case put up by two or more contending parties as in this case, the Court must duly consider the evidence canvassed by all the parties before him, ascribe probative value to it, make definite findings of fact, apply the relevant laws and come to some conclusion on the case before him. Abubakar & Anor. vs. Joseph & Anor. (2008) 9 SCM 1 at 36-37 referred.
Predicated on the above, they submitted that the Appellate Court will
24
interfere with the evaluation of evidence of a Trial Court where such evaluation is perverse as they refer this Court to Lagga vs. Sarhuna (2008) 9 SCM 68 at 84. They were also of the view that from the facts stated in paragraphs 1 to 33 of the Counter-Affidavit, it is clear that the Appellants are tenants of the Respondent and are not squatters more so, as they have not been suspended or excommunicated by the General Council of the Assemblies of God, Nigeria.
In view of the above contention, it was their submission that where the issues relate to inference to be drawn from the facts proved, the Appellate Court is in a good position as the Trial Court to do same for an Appellate Court can reverse a finding of fact if in its opinion, it does not support the evidence adduced. Sokwa vs. Kpongbo (2008) 12 SCM (Pt.1) 188 at 198; Oyewole vs. Akande & Anor. (2009) 7 SCNJ 225 at 242 referred.
Finally, on this issue, it was their further submission that the trial Court failed to make findings on the issue as to whether the Appellants were squatters, in lawful occupation or tenants with or without consent or licence from the Landlord/Respondent and
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that instead, the Court below approached the evidence called by the parties wrongly, therefore the Appellate Court will have no other alternative than to allow this Appeal. Olagunju vs. Adesoye (2009) 4 SCNJ 96 at 127 referred.
In the light of the above, the learned Counsel for the Appellants further submitted on this issue that there are enough facts and evidence that the Trial Court misconceived this case and consequently reached a conclusion in a misconceived manner, therefore they urged this Court to resolve issue three in favour of the Appellants by setting aside the judgment in Suit No. MHC/193/2017 dated 12th July, 2017 which is a product of misconception on the authority of Federal Ministry of Health vs. Comet Shipping Agencies Ltd. (2009) 4 SCNJ 173 at 194 to 195.
ARGUMENT OF LEARNED COUNSEL TO THE APPELLANT ON ISSUE NUMBER 4 (FOUR):
“WHETHER THE TRIAL JUDGE WAS NOT IN ERROR WHEN HE FAILED TO MAKE FINDINGS ON MATERIAL AND IMPORTANT ISSUES OF FACTS RAISED BEFORE THE COURT? (DISTILLED FROM GROUND 4 OF THE NOTICE OF APPEAL).”
On this issue, which is distilled from ground four, the learned Counsel for the Appellants
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adopted the arguments and submissions on issue three and further contended that the Trial Court failed to consider and pronounce on all the issues raised before the Court and thereby occasioned a gross miscarriage of justice to the Appellants.
It was their further contention that by Exhibit “6” attached to the Counter-Affidavit, the lower Court failed to pronounce on the effect of the case filed on 3/3/2017 at Enugu challenging the suspension and excommunication of the Appellants from Assemblies of God Church, Nigeria on the present suit. Again, they argued that Exhibits “2”, “4” and “6” bother on the propriety or otherwise of the suspension and excommunication of the Appellants from the Church and Paragraphs 14 and 15 of the Counter-Affidavit are to the effect that the purported suspension/excommunication were carried out during the subsistence of Exhibit “2” attached to the Counter-Affidavit and therefore, a nullity as it was made mala fide but that the Trial Court failed to evaluate the facts/evidence enumerated in paragraph 6.6 above or pronounce on them.
The learned Counsel for the
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Appellants submitted that the Trial Judge jettisoned vital and unchallenged evidence stated in paragraphs 8, 9, 10, 14, and 15 of the Counter-Affidavit and Exhibits “2”, “4” and “6” and that by the said evidence it is not in doubt that the Appellants are tenants of the Respondent, Assemblies of God, Nigeria and not squatters as they entered their Churches and Residential premises owned by the Church with their consent. Therefore, Order 52 Rule 2 of the High Court of Benue State (Civil Procedure) Rules, Originating Summons dealing with summary proceedings for possession of landed property occupied by squatters or without the owner’s consent is not applicable in this case.
Accordingly, they urged this Court to resolve issue four in favour of the Appellants by allowing this Appeal and setting aside the judgment of the lower Court delivered on 12th July, 2017 against the Appellants.
ARGUMENT OF THE LEARNED COUNSEL TO THE APPELLANTS ON ISSUE NUMBER 5 (FIVE):
“WHETHER THE TRIAL JUDGE WAS RIGHT WHEN HE ORDERED 1ST TO 4TH APPELLANTS TO VACATE THE SAID PREMISES WITHIN 14 DAYS (SIC) (7 DAYS?) AND THE 1ST
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APPLICANT (SIC) (APPELLANT?) TO VACATE WITHIN 14 DAYS FOR AN ALLEGED LACK OF AUTHORITY TO REMAIN IN THE PREMISES (DISTILLED FROM GROUND 5 OF THE NOTICE OF APPEAL).”
On this issue, which is related to ground 5. The learned Counsel for the Appellants contended that, the Defendants were Pastors and District Officers (employees) of the Respondent’s Church. And that they occupied premises of the Plaintiff by virtue of their positions and/or Officers. And they have been dismissed as Pastors in the Respondent’s Church and accordingly directed to handover the premises occupied by them. Demand Notices were subsequently given to them to deliver possession of the respective premises held of the Respondent by them. Their refusal to deliver possession of the respective premises was the cause of action in the suit which culminated in this Appeal.
Consequently, they submitted that from the case presented by the Respondent at the Trial Court, the Appellants were tenants of the Respondent who were in occupation of their respective premises by virtue of their Offices and positions in the Church and to further strengthen their case, they relied on the
29
authorities of A.P. Ltd. vs. Owodunni supra and Mrs. Ibiyemi Oduye vs. Nigeria Airway Limited (1989) 2 NWLR (Pt.55) page 126 at Ratio 24 page 130.
The learned Counsel for the Appellants submitted on the above that unless a protected or statutory tenant willingly gives up possession voluntarily, possession can only be wrested from him by an order for possession made against him by Court after due notices have been served on him as required by law. A.P. Ltd. vs. Owodunni (supra) Ratio 13 at page 398 pp. page 413 paras. E-F referred.
Again, it was their argument that by virtue of Sections 18, 19, 20 and 21 of the Rent Control and Recovery of Residential Premises Law, Laws of Benue State, 2007, a Notice to Quit and a Notice of Owner’s Intention to recover possession from a tenant holding over possession is a condition precedent for a valid action for recovery of possession or ejection of the tenant. Oduye vs. Nigeria Airways Ltd. (supra) was again cited in submitting that failure to serve correct and proper Notice to Quit and Notice of Owner’s Intention to Recover Possession is fatal to any claim for recovery of possession of a residential
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premise and so the claim must fail. A.P. Ltd. vs. Owodunni (supra) Ratio 31 at page 404 at pages 416-417 paras referred.
The learned Counsel for the Appellants contended that in the Respondent’s case, no notice as prescribed by law was issued or served on the Appellants and from the circumstances of the suit at the Trial High Court, there is no doubt that the suit was premature and robs the Trial Court of the necessary jurisdiction to hear the case and that, the condition precedent for commencing such an action has not been fulfilled. Madukolu vs. Nkemdilim (1962) 2 SCNLR page 314; Emeka vs. Okoroafor (2017) 11 NWLR (Pt.1577) page 401 Ratio 10 at page 430, at page 478 paras. C-F referred. Therefore, from the foregoing reasons, submissions and judicial authorities, the learned Counsel for the Appellants respectfully pray this Honourable Court to allow this Appeal and strike out the Respondent Suit No. MHC/193/2017 for being incompetent.
They further submitted that even if the Appellants have left the Respondent’s Church and now on their own (as erroneously conceived by the learned Trial Judge in misconception of paragraph 22 of the
31
Appellants’ Counter-Affidavit), the Appellants, except they voluntarily give up possession of the respective premises held over by them, are entitled to be given the requisite Quit Notice and Notice of Owner’s Intention to Recover Possession and that the Respondent’s suit, having been commenced without these notices is premature, as the condition precedent for commencing an action for recovery of premises have not been fulfilled.
In concluding their argument, the learned Counsel to the Appellants submitted that the failure of the Respondent to serve the Statutory Pre-action Notices before the commencement of the action rendered such action incompetent and the Court would lack jurisdiction to entertain same. Accordingly, the learned Counsel to the Appellants maintained that, from the evidence adduced before the Court, the Appellants are tenants and not squatters and as such Order 52 Rule 2 of the High Court of Benue State (Civil Procedure) Rules, 2007 is not applicable in this case.
ARGUMENT OF THE LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER 1 (ONE):
“WHETHER THE LEARNED TRIAL COURT HAD JURISDICTION
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UNDER ORDER 52 OF THE HIGH COURT (CIVIL PROCEDURE RULES), 2007, TO ENTERTAIN THE SUBJECT MATTER OF THIS SUIT?”
On this issue, which combines issues (i) and (ii) of the Appellants’ joint issues, the learned Counsel, in canvassing the Respondent’s 1ssue 1 contended that, it is not correct for the Appellants to rely on the Benue State Rent Control and Recovery of Residential Premises Edict, 1977 Cap.145, Laws of Benue State, in an allegation that the Appellants were not served with Notices before they were summoned before the Trial Court. They explained that the Benue State Rent Control and Recovery of Residential Premises Law was signed into law by the Governor of Benue State, to address disputes between landlords and tenants and payment of rent which is an essential ingredient of landlord and tenancy relationship is lacking in this case. According to learned Counsel, the relationship between the Respondent and the Appellants cannot be called as a tenancy relationship, as argued by them.
It was the argument of the learned Counsel to the Respondent that the present case was filed, at the Benue State High Court pursuant to the High Court of Benue State (Civil
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Procedure) Rules, 2007 and the learned Trial Court had jurisdiction to entertain the matter at the High Court as she rightly did and there is no evidence that the Appellants were paying rents as tenants of the Respondent. He maintained that the correspondences that were made by the Respondent to the Appellants were sufficient Notices served on the Appellants. Therefore, in the view of the learned Counsel to the Respondent, the argument that the Appellants were not served with Notices can be seen at pages 14 to 28 and pages 202 to 204 of the Records.
It was the further argument of the learned Counsel to the Respondent that, although, they did not oppose the grant of the Appellant’s Application that was argued for three Additional Grounds via Motion dated 4th April, 2018 and granted on 17th July, 2018, however, the issues canvassed on the three (3) Grounds of Appeal were not raised for the lower Court as they refer this Court to the case of Fadiora v. Gbadebo (1978) NSSC 121 referred to at (P. 424, paras F- G).
The learned Counsel for the Respondent argued that issues (i) and (ii) distilled from grounds 1 and 2 of the Amended Grounds of Appeal were the
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basis on which the fresh issues were raised by the Appellants in their Brief of Argument, without the benefit of an input by the Trial Court and that the case cited above is apposite on this point. Arguing further, the learned Counsel to the Respondent posited that the Appellants were not only adequately informed of their punishments, they were also requested to surrender the properties of the Respondent in their possession to the Respondent or her agents, a request which the Appellants have bluntly refused to comply with.
Again, it was contended that the Honourable High Court is empowered under Order 52 of the Benue State High Court (Civil Procedure) Rules, 2007, to entertain proceedings for possession of landed properties that are occupied by squatters without the owner’s consent. The proceedings leading to the Appeal herein, is allowed to be brought by Originating Summons (Civil Form 38), therefore Order 52 of the High Court (Civil Procedure) Rules, 2007, cannot be subjected to the Rent Control and Recovery of Residential Premises Edict, 1977, Cap.145. It was further argued that the relationship between the Appellants and the Respondent is not that of
35
landlord and tenant but that, the jurisdiction of Rent Tribunal as created by the Governor of Benue State is limited to tenancy relationship which payment of rent is involved. This case he asserted, is distinguishable from the recovery of premises law which the Appellants have erroneously relied upon and the Appellants have laboured by making reference to outstanding pronouncement by Superior Courts of our land to support their argument.
On another score, the learned Counsel for the Respondent contended that, the Appellants as members of the Presbytery, cease to be members upon the decision that was made at the Head Office of the Respondent on the excommunication of the 1st Appellant, followed with the suspension of the 2nd to 5th Appellants and that, until that period, they were members of the Makurdi District Management, known as “the Presbytery” in that capacity, hence, they participated as members of Makurdi District of the Respondent and that the National Leadership of the Respondent which is based at Enugu, thereafter, constituted a committee that traveled from Enugu to Makurdi District Office, where they met with the entire membership of the Makurdi District.
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It was their argument that the Makurdi District Presbytery was dissolved, and a 14 man Caretaker Committee was inaugurated to run the affairs of the Makurdi District and the Head Office of the Respondent equally donated Powers of Attorney to some of the Caretaker Committee members, and ensured the recovery of properties belonging to the Respondent that were in the possession of the Appellants. It was submitted that the Caretaker Committee went into action by engaging Mr. A. J. Ogbo, Esq., as a Solicitor to handle the assignment on behalf of the Respondent and that the solicitor proceeded to serve all the Appellants with Notices and directed them to vacate and handover the respective properties in their possessions, pages 14 to 28 of the Records referred.
It was their further argument that the proof of service on each of the Appellants can be seen at pages 204 to 205 of the Records and it was only the 2nd Appellant who responded to the Notice of Counsel’s letter. Therefore, they submitted that the Appellants were given adequate Notices dated September, 2015 in view of their punishment including the order mandating them to vacate
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and give possession of all properties that were in their possession. Pages 12 and 13 of the Records refer.
ARGUMENT OF THE LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER 2 (TWO):
“WHETHER THE EVALUATION AND REVIEW OF EVIDENCE BY THE LEARNED TRIAL COURT CAN BE FAULTED?”
On this issue, the learned Counsel for the Respondent contended that, from the facts of this case, as can be seen from the records, the attitude of the Appellants disclose that they are trespassers. He maintained that although, the learned Trial Court was civil in the use of words by refraining from calling the Appellants out-rightly as trespassers; the facts on record before the learned Trial Court are herein referred. In particular, reference was made to page 9 of the Record of Appeal which is a copy of the Certificate of Incorporation of the Respondent, as a legal personality, to contend that the Respondent has the power to own Churches, Pastorates and other properties movable and immovable. Further reference was made to paragraph 24, 25, 26, 27, 28 and 29 of the Counter-Affidavit at pages 54 to 55 of the Records where the Appellants merely asserted that the
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houses they were occupying were built for them by the members of their various local Churches; this again is a deliberate falsehood.
The learned Counsel for the Respondent argued that the Appellants were forcefully occupying the properties and their attempt to challenge the Certificate of Incorporation of the Respondent was rebuffed by the Respondent, and the Trial Court also accepted the evidence of the Respondent when it was found as of fact at page 221 of the Records and the Corporate Affairs Commission (CAC), the authority for issuing Certificates also defended the genuineness and the legality of the Certificate. Ekweozor vs. Reg. Trustees A.C.N (Pt.1434 (2014) 16 NWLR 433-640, particularly (P. 466 Paras. E. G) referred.
It was the argument of the learned Counsel for the Respondent that the effect of a grant of Certificate of Incorporation to Trustees can be gleaned from Section 679 (3) of the Companies and Allied Matters Act and the authority of Ekweozor vs. Reg. Trustees A.C.N. part 1434 (2014) 16 NWLR 433-640, particularly (P.466 paras. E-G.) (supra) and that the learned Trial Court rightly relied on Exhibit “1” at page 56 of the Records as
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the basis for their claim to the various properties.
It was their further contention that the Appellants were posted to various stations and given accommodations and other materials, for efficiency of Church administration, providing houses at premises of the Churches, and other properties that would enhance their work. This was the policy of the Respondent in all her establishment throughout the 36 States in Nigeria and that the Appellants became trespassers the moment they were served with Notices to surrender possession which they bluntly refused to adhere.
According to the learned Counsel for the Respondent, the 3rd, 4th and 5th Appellants were given their accommodations by virtue of them being Ministers with the Respondent. However, their refusal to give-up possessions of the various material properties belonging to the Respondent, long after the Respondent demanded for her properties points to the fact that they were trespassers; The 1st and 2nd Appellants however have a different story on how they occupied the offices, houses and other properties of the Respondent. This is stated in paragraphs 5 and 10 of the Affidavit in Support of the
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Originating Summons, and also pages 5-6 of the Records.
Again, they argued that the above was not challenged by the Appellants as the 1st to 5th Defendants/Appellant’s Counter-Affidavit, did not deny the facts stated in paragraphs 5 and 10 of the Affidavit supporting the Originating Summons. Best Vision Construction Limited vs. U. A. C. N. P. D. C Plc (2003) 13 NWLR (Pt.838) 594 Ratio 8 was cited in support of the above argument.
Consequently, it was their submission that, the facts stated against the Appellants in the 24 paragraphs Affidavit, and the Further Affidavit of 5 paragraphs at pages 2 to 8 of the Records, and the Further Affidavit at pages 195 to 199 of the Records, are clear and uncontroverted and that the learned Trial Court, perused through the Affidavit of the Respondent, the Further Affidavit and the Counter-Affidavit together with documents accompanying their processes and upon a careful and exhaustive consideration of the totality of the documents filed before her, arrived at the conclusion that was made.
It was their further submission that the decision of his Lordship at the lower Court cannot be faulted, having regards to
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the evidence before her as the Counter-Affidavit of the Appellants at the lower Court were replete with the problems of one Rev. Paul Emeka of the National Church, at the Headquarters, Enugu, where he began a futile journey from the High Court of Justice Enugu, the Court of Appeal Enugu, and, the Supreme Court of Nigeria, challenging his excommunication from the Respondent and the Supreme Court set aside the decision of the High Court of Justice Enugu and ordered that the parties be returned to the status quo-ante.
The learned Counsel for the Respondent contended that the said Rev. Paul Emeka then resorted to unleashing mayhem on the loyal members of the Church and that the Appellants herein were some of the followers of Rev. Paul Emeka whose assignments were to recruit thugs and miscreants to disrupt the Churches in Makurdi and its environs and that the Appellate Court has a duty to look at the totality of the decision in determining whether the Trial Judge gave reasons for his belief or not.
It was their contention that, the learned Trial Court demonstrated a good grasp of the facts and law by identifying the only valid issue before her, and
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resolved same in favour of the Respondent and that the Court of Appeal should not interfere with the appraisal or evaluation of evidence before the trial Court. Alibe vs. Yaro (2002) FWLR (Pt. 115) 793 C. A, Agbeje vs. Ajibola (2002) FWLR (Pt. 92) 1677 S.C referred.
Flowing from the above, the learned Counsel for the Respondent argued that, the Appellants have a wrong notion about the findings of the learned Trial Court on the indication that they were wrong but on the contrary, it was their submission that the learned Trial Court was right to have given paragraph 22 of the Counter-Affidavit a resounding interpretation which cannot be faulted, as the said paragraph of the Counter-Affidavit is a clear admission that (1) they were loyal to a rebel group and have left the Churches and started their own Churches. (2) That they were loyal to the ordained leader of the Ministry, Rev. Paul Emeka, whom they owe allegiance to.
Accordingly, they contended that in evaluating the judgment of the Trial Court, what an Appellate Court ought to consider is whether the decision of the lower Court was right or not; whether his reasons are right. Hence, if the
43
decision is right and only the reasons are wrong, an Appellate Court will not interfere with the decision, as what matters is whether a correct conclusion has been reached. Ukejianya vs. Uchendu (1950) 13 WACA 45; Lebile vs. Regd. Trustees C & SCN 13 NSCQR 19 Ratio 5.
Still on the above score, it was their argument that there was no material contradiction between the Affidavit of the Respondent and the Counter-Affidavit of the Appellants that would warrant the learned Trial Court to call for oral evidence and that all the juridical authorities on this point do not support the strange argument of the Appellants as the Appellants have not drawn the attention of this Honourable Court to any point of material contradiction that would warrant their call for oral evidence.
On the above, they submitted that, since cost follows an event, the cost awarded against the Appellants to vacate and give possession of the properties to the Respondent was correct as it was a magnanimous gesture shown by the Respondent not to seek for financial damages, however, this gesture was taken for granted by the Appellants.
Again, it was their contention that, the
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Registrar of the Trial Court included the judgment of the High Court of Enugu and that of the Supreme Court in the Records transmitted to this Honourable Court but deliberately left out the Record of the Court of Appeal which sat at Enugu on Appeal No.CA/E/10/2015, with the judgment delivered on 14th April, 2015 and that this was the only proceeding in the entire dispute that had comprehensively resolved all issues against Rev. Paul Emeka. The Appeal has 21 Grounds and was presided over by Justice Emmanuel Akomaye Agim J.C.A., as he then was, who brilliantly reviewed the entire issues that gave rise to that Appeal and resolved all the issues against Rev. Paul Emeka. The said judgment consisted of 110 pages, and is lucid, capacious and well researched, it was finally submitted.
RESOLUTION OF ISSUES
Having carefully read the entire Records and the arguments of parties, I notice that the issue of jurisdiction was raised by the Appellants premised on the indication that they were not served with Statutory Notices from the Respondent. Since the issue of jurisdiction is fundamental and cardinal in any proceedings, be it civil or criminal, it is
45
imperative that proper attention and due diligence be accorded to it because, failure to do so would render the entire proceedings, if held, a nullity. But before I proceed, let me quickly say that, while the Appellants distilled five (5) issues for determination, the Respondent on the other hand, distilled two (2) issues for the determination of this Appeal. Howbeit, in deciding this Appeal, the jurisdictional issue would prominently rank first in their order of determination.
RESOLUTION ON THE ISSUE OF JURISDICTION:
“WHETHER THE LOWER COURT HAD JURISDICTION TO HEAR AND DETERMINE THE SUIT AS SHE DID IN THE ABSENCE OF ISSUANCE OF STATUTORY NOTICES BY THE RESPONDENTS’?
I have given very serious thoughts to the submissions of Counsel on both sides and I have read the records of Appeal scrupulously. There is no doubt that if the Appellants were tenants of the Respondent as a matter of law, they ought to have been served with a Notices to Quit and Notices of Owner’s Intention to Recover Possession and not demand letters to handover the demised premises to the Respondent as the law does not contemplate substitute for Notice to Quit
46
or Notice of Owner’s Intention to Recover Possession to be a letter of demand. I have also observed the manner in which the Appellants vehemently argued in their Brief that the Originating Summons procedure under Order 52 of the Benue State High Court (Civil Procedure) Rules, 2007 adopted by the Respondent in bringing this action at the lower Court was improper in the circumstances of the case and that, since they were contractual tenants, they ought to have been served with Notices to Quit and Notices of Owner’s Intention to Recover Possession.
Per NNAEMEKA-AGU, J.S.C. at page 21, paras. B-D in the case of AFRICAN PETROLEUM LIMITED V. J.K. OWODUNNI (1991) LPELR-213 (SC) opined thus:
“…A tenant who enters upon premises by reason of a contract with the landlord is a contractual tenant. Such a tenant holds an Estate which is subject to the terms and condition of the grant. Once that tenancy comes to an end by effluxion of time or otherwise and the tenant holds over without the Will or agreement of the landlord, he becomes a tenant at sufferance. This is strictly a common law concept”.
It should be noted that, the
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hallmark of a contractual tenant are basically exclusive occupation of the demised premises, payment of rent and certainty of term. See AFRICAN PETROLEUM LIMITED V. J.K. OWODUNNI supra. However, there is no doubt that from the facts and circumstances of the instant case, the Appellants were only in exclusive possession of the claimed premises of the Respondent by virtue of their positions and duties as Pastors of the respective branches of the Assemblies of God Church in Nigeria. This was the background of their lawful entry into the said premises of the Respondent.
The procedure for the recovery of premises in the case of a purely Landlord and Tenant relationship appears very simple but, it is nonetheless technical. Once there is a lapse or mistake in the steps to be taken by a landlord in attempting to evict a tenant, the latter takes advantage of the lapses and holds on to the premises as in the instant case. This procedure is provided for, under the various laws governing tenancy relationship in the various States as well as the Federal Capital Territory, Abuja. The Supreme Court in IHENACHO V. UZOCHUKWU (1997) 2 NWLR (PT. 487) 257 AT 269-270 gave a
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synopsis of the procedure as follows:
“A landlord desiring to recover possession of premises let to his tenant shall firstly: unless the tenancy has already expired, determines the tenancy by services of the appropriate Notices to Quit. On the determination of the tenancy, he shall serve the tenant with the statutory 7 days’ Notice of his intention to recover possession of the premises. Thereafter, the landlord shall file his action in Court and may only proceed to recover possession of the premises according to law in terms of the judgment of the Court in the action.”
Wherefore, it is a truism that under the common law, by virtue of any lawful entry and occupation of the said offices/residential premises, the Appellants could only be regarded as tenants at sufferance after their alleged dismissal or excommunication from the Assemblies of God Church, Nigeria. It suffices to say that as statutory protected tenants, the appropriate procedure for the Appellants’ ejection or the recovery of the various premises/properties belonging to the Respondent should be the Rent Control and Recovery of Residential Premises Law, Laws of Benue
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State Cap. 145 and not Order 52 of the Benue State High Court (Civil Procedure) Rule, 2007.
The Apex Court per OGUNTADE, J.S.C. at page 39, paras. A-F in the case of O.D. BRIGGS V. THE CHIEF LANDS OFFICER OF RIVER STATE OF NIGERIA & ORS (2005) LPELR-805 (SC) opined that:
“…the learned author of Halsbury’s Laws of England, 4th Edition, Volume 27 (1) at paragraph 176 page 163 writes: ‘176, Nature of tenancy at sufferance’. A person who enters on land by lawful title and after his title has ended, continues in possession without statutory authority and without obtaining the consent of the person then entitled, is said to be a tenant at sufferance, as distinct from tenant at Will who is in possession with the landlord’s consent. This is so whatever the tenant’s original estate, whether he was tenant for years, or the subtenant at sufferance arises by implication of the law and may not be created by contract between the parties. A tenancy at sufferance does not arise upon the holding over by one whose title was created by act of law, and there can be no tenancy at sufferance against the Crown. In these cases,
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the person holding over is a mere trespasser. But it seems that, on the death of the tenant at sufferance, the like tenancy will continue in favour of a person claiming under him. A release from the landlord to the tenant at sufferance does not operate to enlarge the tenant’s estate.”
In the light of the above authorities, there is a weighty logical concinnity or coherence that the Appellants were entitled to be served with Notices to Quit and Notices of Owner’s Intention to Recover Possession as prescribed by law for contractual tenants in the event that they refused to give up possession voluntarily. Following the parameter set out in AFRICAN PETROLEUM LIMITED V. J.K. OWODUNNI; supra, the Appellants were meant to be served with the aforementioned Notices pursuant to Sections 18, 19, 20 and 21 as spelt out under the Rent Control and Recovery of Residential Premises Law, Laws of Benue State Cap. 145 and not to commence the process of recovery under Order 52 of the Benue State High Court (Civil Procedure) Rule, 2007.
The rationale is that, Order 52 of the Benue State High Court Civil Rules deals with Originating Summons for none
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contentious matters. Howbeit, even though the matter appears not to be contentious in the eyes of the Respondent, the rightful procedure to be applied ought not to be by way of Originating Summons.
The nature of Originating Summons has been very well enunciated in a number of legal authorities. It is a means of commencing an action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or Deed, Will, Contract or other Document or other questions of law or in circumstances where there is no likelihood of any facts to be disputed. In general terms, it is used for non-contentious matters i.e., those actions where the facts are not likely to be in dispute. See DIRECTOR, STATE SECURITY SERVICE V. AGBAKOBA (1999) 3 NWLR (PT. 595) 314; DIN V. A.G OF THE FEDERATION (1986) 1 NWLR (PT. 17); KEYAMO V. HOUSE OF ASSEMBLY LAGOS STATE & ORS (2002) 18 NWLR (PT. 799) 605 and FAMFA OIL LIMITED V. ATTORNEY GENERAL OF THE FEDERATION (2003) 18 NWLR (PT. 852) 453.
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The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a Deed, Will or other written instrument. The procedure is applicable where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties to the suit. In DOHERTY V. DOHERTY (1968) NMLR 241, it was held that, in matters where facts are not in issue, the Originating Summons which must be supported by an Affidavit of the facts must be taken out and will become operative once a Judge in Chambers has signed it, thus, giving direction for the service and in OBA OSUNBADE V. OBA OYEWUNMI 30 NSCQR 434 at 499, the Supreme Court per OGBUAGU J.S.C. said:
“It is now firmly settled that, an Originating Summons is an unusual method of commencing proceeding in the High Court and it is confined to cases where special statutory provisions exist for its application. It is not advisable to make use of this procedure for hostile proceedings where the facts are in dispute. See INAKOJU V. ADELEKE (2007) CLR 1 (F) (SC), (2007) 2 MJ.S.C.1; PETER-PAM V. MOHAMMED (2008) CLR 5
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(I) (SC), (2008) 9 MJ.S.C. 117, FGN V. ZEBRA ENERGY (NIG.) LIMITED (2002) CLR 12 (A) (SC) (2003) 1 MJ.S.C. 3.”
As can be gleaned above, the commencement of the suit under Order 52 of the Benue State High Court Civil Procedure Rules as done by the Plaintiff (now Respondent) on the belief that the facts were non-contentious, was erroneous and solely his thought, but not what the law provides.
To my mind, unless it is waived or condoned by the Appellants, requirement of pre-action Notices does not admit any exception, curtailment or substitution in the manner canvassed by the learned Counsel to the Respondent herein that the Demand Letters to Handover the Properties/Premises to one Rev. Jossy Tiger suffice as Notices. The essence of Notices to Quit and that of Owner’s Intention to Recover Possession is to lay bare to the Appellants, the nature of a contemplated action against them so as to afford them the opportunity of either sourcing for an alternative accommodation, or to vacate the premises/property. The letter of demand howbeit, may contain some material resemblance to that of the required Notices, yet it has no jurisprudential flavor in
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as much as tenancy is concerned. It is a condition precedent to institute an action where the statute creating it expressly prescribes it and being a condition precedent, it must be complied with, to cloth an action with validity or competence. It is settled that, where the law merely stipulates certain conditions to be met before an action can be instituted in Court and there is a willful and persistent refusal to comply with those conditions as in the instant case, the effect would be nothing other than void standing in Court because, due process was not followed.
The 7th Edition of the Black’s Law Dictionary defines due process to mean; the conduct of legal proceedings in accordance with the laid down rules and principles for the protection and enforcement of private rights, including notices and right to fair hearing before a Court of law or Tribunal can be said to have jurisdiction to determine the suit. The law lord of the Apogee Court in KENTE VS. ISHAKU (2017) LPELR-42077 (SC) it opined that:
“It is trite law that a defective Originating Process cannot activate the jurisdiction of the Court. A valid Originating Process is the
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requirement of the law for the commencement of proceedings before the Court. It cannot be over-emphasized that unless action is initiated in accordance with due process of law, if commenced already would only amount to a nullity”.
Still on the same score, another distinguished erudite Law Lord of the Apex Court per FABIYI, J.S.C. at page 16, paras. D-E in ELDER O.O. OKEREKE V. KALU JAMES (2012) LPELR-9347 (SC) opined thus:
“…the initiating process of the Appeal was not at one with due process of the law. The case must come before the Court initiated by due process of law and fulfillment of any condition precedent to activate the Court’s competence and afortiori jurisdiction. See MADUKOLU & ORS V. NKEMDILIM (1962) NSCC 374 AT 399-380.”
Flowing from the above, I cannot agree less with the reasoning of the learned Counsel for the Appellants that the improper procedure adopted by the Respondent in commencing the suit, affected its competency and the jurisdiction of the trial Court to hear same. Consequently, I am of the firm view and not in the slightest doubt that failure of the Respondent to serve the
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Appellants with the statutory pre-action Notices before the commencement of the action rendered her action incompetent and further strip the trial Court of its jurisdiction to hear and determined the issue. This issue is resolved in favour of the Appellants against the Respondent.
Accordingly, the judgment delivered by Honourable Justice Adam Onum on the 12th day of July, 2017 is hereby struck out for want of jurisdiction.
In the event that I am wrong in holding that the lower Court lacks jurisdictional competency in the determination of the suit, the other issues which bother on the evaluation of evidence shall be determined on merit for purposes of completeness and I shall adopt the Respondent’s issue 2 and subsume there-under the Appellants’ 4 issues for the determination of this Appeal.
RESOLUTION OF ISSUE NUMBER 2 OF THE RESPONDENT TOGETHER WITH ISSUES NUMBER 2, 3, 4 AND 5 OF THE APPELLANTS:
“WHETHER THE EVALUATION AND REVIEW OF EVIDENCE BY THE LEARNED TRIAL COURT CAN BE FAULTED?”
On whether the suit initiated by the Respondent by way of Originating Summons was right. The nature of Originating Summons
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has been very well enunciated in a number of legal authorities and as said earlier while resolving issue Number 1 (one), it is a means of commencing an action adopted in cases where the facts are not in dispute or there is no likelihood of their being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or Deed, Will, Contract or other Document or other questions of law or in circumstances where there is no likelihood of any facts to be disputed. In general terms, it is used for non-contentious matters i.e., those actions where the facts are not likely to be in dispute. See DIRECTOR, STATE SECURITY SERVICE V. AGBAKOBA (1999) 3 NWLR (PT. 595) 314; DIN V. A.G OF THE FEDERATION (1986) 1 NWLR (PT. 17); KEYAMO V. HOUSE OF ASSEMBLY LAGOS STATE & ORS (2002) 18 NWLR (PT. 799) 605 and FAMFA OIL LIMITED V. ATTORNEY GENERAL OF THE FEDERATION (2003) 18 NWLR (PT. 852) 453.
In the instant case, the Counter-Affidavit evidence filed by the Appellants reveals that, the matter was contentious. Paragraph 7 thereof for instance, states that contrary to
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paragraph 4 of the supporting Affidavit of the Respondent, Exhibit “1” attached thereto is not a valid copy of the Certificate of Incorporation of the Registered Trustees of Assemblies of God, Nigeria. That the valid Certificate of Incorporation of the Registered Trustees of Assemblies of God, Nigeria is the Certificate that includes the name Rev. Prof. Paul Emeka, the General Superintendent of Assemblies of God, Nigeria. Paragraph 9 states that the 1st Appellant is still a member, Minister, District Superintendent of the Makurdi District as well as General Secretary of Assemblies of God, Nigeria and that the General Counsel of Assemblies of God, Nigeria has not suspended or excommunicated him. Paragraph 10 divulge that, the 2nd, 3rd and 4th Appellants then (Defendants) as well as 5th Appellant (5th Defendant) are not suspended Ministers of Assemblies of God, Nigeria.
Again, Exhibits “2” and “3” attached to the Supporting Affidavit of the Respondent did not emanate from the General Council of the Assemblies of God, Nigeria, see pages 45, 46 and 47 of the Records and whether the Appellants were squatters to warrant the
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commencement of this action under Order 52 of the Benue State High Court Civil Procedure Rules.
The Supreme Court in DOHERTY VS. DOHERTY (supra) held that, where there is a dispute as to facts or evidence in respect to the suit, Originating Summons should not be accepted. In S.A.I. OSSAI VS. ISAAC WAKWAH & ORS. (2006) LPELR-SC.388/2001; the issue for determination was; whether a matter where there is a dispute or likelihood of dispute can be commenced by Originating Summons, per OGUNTADE, J.S.C., PAGE 27 PARA. D; stated thus: –
“It is in my view well settled that, a civil suit should not be commenced by Originating Summons where there is a dispute or likelihood of a dispute on facts. See Doherty vs. Doherty (1968) NMLR 24 at 242; National Bank of Nigeria Ltd. & Anor. vs. Lady Alakija & Anor. (1978) 9-10 SC 59 at 71.”
In OBA ADEBOYEGA ADEYELU II & ORS. VS. OBA JIMOH OLADUNNI OYEWUNMI & ORS. (2007) LPELR-SC.79/2002 per AKINTAN, J.S.C., AT PAGE.16 PARAS. F-G; stated:
“The law is well settled that, where there are disputed facts, such action could not be initiated by Originating Summons. I believe and hold
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that the proper Order a Trial Court should make where it finds that the action before it was wrongly commenced by way of Originating Summons is to order pleadings and not to dismiss such action or pronounce on the merit of the case.”
As can be gleaned from the records, it is crystal clear that the suit before the lower Court was contentious in nature and was not required by law to be commenced by way of Originating Summons. The facts were clearly in dispute and the proceedings hostile. Consequently, it has been repeatedly said by the Supreme Court that, where the facts as contained in the Affidavit is sufficiently controverted, the Judge may order for Pleadings or call for oral evidence to resolve the issue in controversy. This was the reasoning of the Court in EKASA V. ALSCON PLC (2014) 16 NWLR (1434) 542. The Supreme Court in ADEYELU V. AJAGUNGBADE (2007) 14 NWLR (PT. 1053) 1 held that:
“Where a party wrongly commences an action by Originating Summons, the trial Court need not strike out the action but should order for Pleadings to be filed so that the matter may proceed for hearing.”
In OBA ADEBOYEGA ADEYELU II & ORS. VS. OBA JIMOH OLADUNNI OYEWUNMI & ORS.
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(2007) LPELR-SC.79/2002, per Akintan, J.S.C., p.16 paras. F-G; stated:
“The law is well settled that, where there are disputed facts such action could not be initiated by Originating Summons. I believe and hold that the proper Order a Trial Court should make where it finds that the action before it was wrongly commenced by way of Writ of Summons is to order pleadings and not to dismiss such action or pronounce on the merit of the case.”
See EBBA VS. OGODO (1984) 1 SCNLR PAGE 372, AKINTOYE VS. EYIYOLA (1968) NMLR 92; IRIRI VS. ERHURHOBARA (1991) 2 NWLR (PT.173) PAGE 252; WOLUCHEM VS. GUDI (1981) 5 SC 291; NWOKORO VS. NWOSU (1994) 4 NWLR (PT.337) AT 172; UNILAG. VS. M.I. AIGORO.
From the totality of the evidence adduced by parties, it is glaring that the lower Court can be faulted over and over again for pronouncing on the merit of the case without ordering for Pleadings, or for oral evidence to be called by the parties for the resolution of the conflicts in the averments of parties in their respective Affidavit and Counter-Affidavit. Accordingly, it is my considered view that, whenever facts deposed
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to in Affidavit are controverted by the adverse party in a suit commenced by way of Originating Summons, the Court is not bound to strike out the matter or make bold pronouncement on the merit. The Court is expected to order for Pleadings and call for oral evidence to harness its determination. This issue is resolved in favour of the Appellants.
On whether the trial Court was right when he gave judgment based on Paragraph 22 of the Counter-Affidavit and concluded that the Appellants were no longer members of the Church without recourse to Exhibit 6; in total obeisance to the admonition of the Apex Court, it has been repeatedly held times without number that the lower Court should at all times pronounce as a general rule on all issues properly placed before it for determination. This was the reasoning of the Court per UWAIFO, J.S.C. in case of BRAWAL SHIPPING (NIG.) LTD. V. ONWADIKE CO. LTD. (2000) 5 SCNJ 508. Following the precedent established by the Apex Court, this Court has always echoed that, it is the duty of every Court to pronounce on every issue properly placed before her for consideration.
A cursory look at the Records reveals the trueness of
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the submissions of the learned Counsel for the Appellants that, the issues raised in Exhibits 2 and 6 attached to the Counter-Affidavit and the evidence stated in paragraphs 8, 9, 10, 22 and 34 of the same Counter-Affidavit were not pronounced upon or considered. Exhibit 2 is an order of injunction obtained in Suit Number E/202M/2014 dated 16th April, 2014 against Rev. Dr. Chidi Okoroafor & 8 others. Exhibit 6 is the Writ of Summons in Suit Number E/97/2017 dated 3rd March, 2017. Accordingly, from the facts deposed to in Paragraphs 8, 9 and 10 which for purposes of clarity I reproduce hereunder.
“8. The General Council of Assemblies of God, Nigeria is the highest decision making body of the Ministry.
9. That the 1st Defendant is still a member, Minister, District Superintendent of the Makurdi District as well as the General Secretary of the Assemblies of God, Nigeria that the General Council of Assemblies of God, Nigeria has not suspended and/or excommunicated him.
10. That the 2nd, 3rd and 4th Defendants as well as me are not suspended Ministers of Assemblies of God, Nigeria. That the General Council of the Ministry has not suspended us”.
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The law is settled that, when a party submits an issue to a Court for determination, that Court must make a pronouncement on the issue, except where the issue is subsumed in another issue. See ADEBAYO VS. A.G. OGUN STATE (2008) 5 SCM 1 AT 10.
In the light of the foregoing, after perusing through the judgment/records, I have no atom of doubt as it is crystal that the lower Court failed to evaluate and pronounce on some of the issues placed before her, particularly the issues raised in the Counter-Affidavit as stated supra. Consequently, it is my considered view that, it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve all issues amicably to avoid the raising of brow eye of error in law. Thus, as a matter of fact, where a Court fails to do so without a valid reason, then it has certainly failed in its duty of which the post effect is usually an error in law because, the omission constitutes a denial of fair hearing as in the instant case.
The above position of the law notwithstanding, the trial Court was right to have construed the intent of paragraph 22 of the Appellants’
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Counter-Affidavit by giving it a literal meaning. The said paragraph of the Counter-Affidavit is a clear admission that (1) they were loyal to a rebel group and have left the Church to start their own. (2) That they were loyal to the ordained leader of the Ministry, Rev. Paul Emeka, to whom they owe allegiance. These were clear admissions made by the Appellants which contradict the other facts stated in their Counter-Affidavit. However, the gist of this issue is that the totality of the evidence presented before the lower Court were not properly evaluated. This issue is resolved in favour of the Appellants
On whether the trial Court was right when he ordered all the Appellants to vacate the said premises within 14 days for an alleged lack of authority to remain in the premises; In the light of the peculiar facts of this case, I am not in the slightest doubt that from the alleged suspension and dismissal of the Appellants from the Assemblies of God Nigeria, ordinarily they ought to have vacated the premises but the question I consider pressing or clamant to pose is, whether the Appellants were in lawful occupation to be appellated as tenants?
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Section 40 (i) of the Rent Control and Recovery of Residential Premises Law provides that, unless the content otherwise requires, tenant includes a sub-tenant or any person occupying any premises whether on payment of rent or otherwise but does not include a person occupying premises under a bonafide claim to be the owner of the premises. Therefore, the qualification for becoming a tenant under the law is lawful occupation. This was the reasoning of the Apex Court per ARIWOOLA, J.S.C. at pages 23-24, paras. C-A in the case of DR. MICHEAL EMUAKPOR ABEKE V. BARRISTER A. A. ODUNSI & ANOR (2013) LPELR-20640 (SC). From the case presented by the Respondent at the Trial Court, the Appellants were tenants of the Respondent who were in lawful occupation of their respective premises by virtue of their Offices and positions in the Church. This fact has never been rebutted, as the Respondent graciously acknowledged same in paragraph 2.17 of his Brief of Argument when he stated inter alia:
“The Appellants were posted to various stations and given accommodation and other materials for efficiency of Church administration, providing houses at premises of the Churches, and other
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properties that would enhance their work…”
As can be gleaned from the above, there is no dubiety or doubt that the Respondent’s admission strongly supports the law with regard to who a tenant is. Per NGWUTA, J.S.C. (of blessed memory) at pages 16-17, paras. F-A in MR. KWASI KARIKARI ADUSEI & ANOR V. MR. TOYIN ADEBAYO (2012) LPELR-7844 (SC) held that:
“On admissions, this Court held: “Another principle deeply enshrined in our jurisprudence is that admissions made do not require to be proved for the simple reason, among others that ‘out of the abundance of the heart the mouth speaketh’ and that no better proof is required than that which an adversary wholly and voluntarily owns up.” See CHIEF CHUKWUEMEKA ODUMEGWU OJUKWU V. DR. EDWIN ONWUDIWE & ORS (1984) 2 SC 15 AT 38 Per ANIAGOLU, J.S.C.”
Section 123 of the Evidence Act 2011 equally stipulates that:
“No facts need to be proved in any civil proceeding which the party to the proceedings or their agent agrees to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or
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which by any rule or Pleading in force at the time they are deemed to have been admitted by their pleadings; provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.”
It is trite law and now fully settled that, whatever fact that is admitted, needs no further proof. Such fact is deemed established. In other words, any admitted facts, or fact not disputed or not specifically denied, need no further proof and will be deemed established. Withal, in A.P. LTD. VS. OWODUNNI (supra), the Supreme Court defined a tenant thus: –
“The definition of a tenant is very wide and includes all persons who occupy premises lawfully. Whether a person pays regular rent, subsidized rent or indeed no rent, is immaterial. The qualification for becoming a tenant under the law is lawful occupation. Hence, when the initial occupation of premises is lawful, the occupier, even if holding over becomes a protected tenant qua the landlord;”
per ESO, J.S.C. (as he then was) in the case of MRS. IBIYEMI ODUYE VS. NIGERIA AIRWAYS LIMITED (1989) 2 NWLR (PT.55) PAGE 126 AT RATIO 24 PAGE 130 opined thus:
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“In other words, when a person occupies premises lawfully, he becomes a protected tenant qua a statute arising from statute creating statutory tenancy. It would not matter whether he pays regular rents, subsidized rent, or, indeed, no rent, what is necessary is lawful occupation. It applies to public servants, as well as parastatals, domestic servants, as well as people paying commercial rent…”
It is an elementary principle of law that unless a protected or statutory tenant willingly gives up possession voluntarily, possession can only be wrested from him by an order for possession made against him by the Court after due Notices have been served on him as required by law. See the case of A.P. LTD. VS. OWODUNNI (supra) where the Supreme Court succinctly held that: –
“Unless he decides to give up possession voluntarily, possession of the premises can only be wrested from a statutory tenant if the Court makes an order for possession against him after due Notices to quit and of intention to apply for possession as prescribed for contractual tenants who hold an identical quantum of tenancy as him.”
Accordingly, from
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the galore of authorities cited and by virtue of Sections 18, 19, 20 and 21 of the Rent Control and Recovery of Residential Premises Law, Laws of Benue State, 2007, a Notice to quit and a Notice of Owner’s Intention to Recover Possession from a tenant holding over possession is a condition precedent for a valid action for recovery of possession or ejection of the tenant. By so doing, failure to serve the Appellants correct and proper Notices as required by law is fatal to any claim for recovery of possession of a residential premises.
As can be gleaned from the Records, the prescription of the law was not followed as the Respondent tenaciously failed repeatedly to furnish the Appellants with the appropriate Notices, thereby, rendering the entire proceedings a nullity as eminently affirmed in the case of MADUKOLU VS. NKEMDILIM (supra) where the Apex Court set out the conditions for the assumption of jurisdiction which of prima significance, is the third as it relates to this Appeal that the case must come before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of its jurisdiction.
It is my
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considered view, with the greatest respect predicated on the parameter set out in IHEANACHO V. UZOCHUKWU (supra) that since the Appellants are deemed tenants, subject to the prescription of the law under the Rent Control and Recovery of Residential Premises Law, Laws of Benue State Cap. 145, the recovery of the premises they occupied lawfully can only be determine by the issuance of the relevant and appropriate Notices and nothing pretentious. This issue is resolved in favour of the Appellants.
In conclusion, from the facts and circumstances of this Appeal, it is glaring that the Appellants were tenants of the Respondent and not squatters. Section 64 of the Landlord and Tenant Law of Benue State set or established a paradigm which must be adhered to quell a contentious matter of this magnitude. It does not depend solely on the Will of the Respondent but on the recommendation prescribed by the law. Section 64 supra bestows on the Appellants, the appellation of tenants at sufferance whom the law delineates as persons who entered into possession of property by virtue of a lawful title and wrongfully continues in possession without the assent or dissent of the
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person next entitled to such property or reversion.
The feature of a tenant at sufferance is sacrosanct as the Respondent cannot substitute the position of the law for something else. The Appellants by virtue of their position as Ministers of the Assemblies of God Nigeria, entered into the premises lawfully by the consent and permission of the Respondent of which by law, are entitled to be served with the prescribed Notices. The failure of the Respondent to serve on the Appellants the appropriate Notices which is a condition precedent for the commencement of the suit at the trial Court deprived the Court of the jurisdiction to hear and determine the suit.
However, since I have considered both the jurisdictional issue and the merits of the case, this Appeal is therefore meritorious and same is accordingly allowed. The judgment of the learned Trial Judge delivered per His Lordship, Hon. Justice Adam Onum on the 12th day of July, 2017 is hereby set aside. I make no order as to cost.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I was privileged to read in advance, a copy of the lead judgment just delivered by my learned brother Ignatius Igwe Agube, PJCA.
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I totally agree with the reasoning and conclusion reached therein. I abide by the consequential orders as made in the judgment. The judgment of the trial Court delivered on 12th July, 2017 by His Lordship Hon. Justice Adam Onum is hereby set aside and with no cost.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was availed the opportunity of reading in draft, the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, J.C.A. and I agree with the reasoning and resolution therein.
My learned brother in a concise way, resolved all the issues settled for determination and I have nothing more to add. I also allow the appeal and abide by the other orders made therein.
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Appearances:
- I. Enebeli, Esq. For Appellant(s)
- E. Ikwe, Esq. with him, S. O. Ode, Esq. and J. O. Adoga, Esq. For Respondent(s)