MOTOR TYRES SERVICES CO. LTD v. NASCO ESTATES CO. (NIG) LTD & ORS (2022)

MOTOR TYRES SERVICES CO. LTD v. NASCO ESTATES CO. (NIG) LTD & ORS

(2022)LCN/17138(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, February 17, 2022

CA/L/169/2009

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Between

MOTOR TYRES SERVICES COMPANY LIMITED APPELANT(S)

And

1. NASCO ESTATES COMPANY NIGERIA LIMITED 2. REV. DR. (MRS.) NKECHI ANAYO-ILOPUTAIFE 3. REV. FIDEL ADUAYE-ODIETE (For Themselves And On Behalf Of All Other Members Of Faith Revival Ministries Otherwise Known As Victory Christian Centre Or Faith Revival Ministries World Outreach) 4. THE INCORPORATED TRUSTEES OF FAITH REVIVAL MINISTRIES RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE COURTS CAN ENTERTAIN ACADEMIC ISSUES

In consequence, the issue two in this appeal is rendered academic in that it will be of no judicial utilitarian value to the parties herein. In the mind of the law, Courts are not cloaked with the vires to entertain an academic issue/suit no matter the jurisprudential content of the law involved in it. PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of High Court of Lagos, Ikeja Division, (hereinafter addressed as “the lower Court”), coram judice: Eniola F. Longe, J., in Suit No. ID/1536/1998, delivered on 25th October, 2001. Before the lower Court, the appellant and the second–fourth respondents were the defendants whilst the first respondent was the plaintiff.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. Sometime in 1978, the Federal Government of Nigeria leased a large expanse of land, situate and lying along Lagos-Badagry Express Road, Lagos, to the first respondent under certain terms and conditions on its usage. In October, 1981, the first respondent subleased part of the same land to the appellant under the same conditions in the headlease. In 1993, the appellant assigned the residue of its interest in the same portion of land to the trustees of the third appellant under the certain conditions. The first respondent alleged that in 1992, the second-fourth respondents entered the land in dispute, built buildings thereon and started using it for religious purpose contrary to the user covenant in the headlease. Sequel to that, the first respondent beseeched the lower Court, via a writ of summons filed on 1st July 1998, and tabled against the second–fourth respondents and the appellant the following reliefs:
1. A declaration that neither the Incorporated Trustees of the Faith Revival Ministries nor any member of the Faith Revival Ministries otherwise known as “Victory Christian Centre” or Faith Revival Ministries World Outreach” have any right title or interest in all that piece or parcel of land containing an area of approximately 4.861 Hectares (12.012 acres) situate lying and being along Lagos-Badagry Express Road and more particularly described and delineated with its dimensions and abuttals on Plan No. LAA/811/105 annexed to a deed of Sub-lease dated 12th day of October 1981 and registered as No. 34 at Page 34 in Volume 1830 in the Lands Registry in the Office at Lagos.
2. An order to recover possession of the aforementioned land from the Incorporated Trustees of Faith Revival Ministries and all other persons who are in occupation of the said 4.861 Hectares of land or any portion thereof.
3. An order of perpetual injunction to restrain all members of the aforementioned Faith Revival Ministries otherwise known as “Victory Christian Centre” or Faith Revival Ministries World Outreach” from entering or re-entering the said 4.861 Hectares of land or any portion thereof without the consent of the Plaintiff.

In reaction, the second–fourth respondents joined issue with the first respondent and denied liability by filing a statement of defence. In their defence, they are averred that the first respondent consented to the assignment of 1993 and that the land in dispute is not being used for religious purposes. Also, they raised the defence of laches, acquiescence, waiver and estoppel against the suit. Consequently, they counter-claimed as follows:
WHEREOF the Defendants claim for relief against the alleged forfeiture on such terms and cost as to do substantial justice to this counter-claim.

The appellant filed a statement of defence wherein it asserted that the first respondent was aware of the assignment and that the suit disclosed no reasonable cause of action. Following the discordant claims, the lower Court had a full-blown determination of the suit. In proof of the case, the first respondent fielded a single witness: PW1. In disproof of the case, the second–fourth respondents called two witnesses: DW1 and DW2. DW2 offered his evidence in an affidavit in lieu of oral evidence. In its defence of the case, the appellant called a sole witness who offered his evidence in an affidavit in lieu of oral evidence. Tons of documentary evidence were tendered before the Court. At the closure of evidence, the parties, through their respective counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 25th October, 2001, reflected at pages 275-292 of the record, the lower Court granted the first respondent’s claim.

The appellant was aggrieved by the decision. Hence, on 22nd November, 2001, the appellant lodged a 4–ground notice of appeal which is copied at pages 228-230 of the main record. Subsequently, the appellant, with the leave of this Court, filed a further amended notice of appeal on 26th September, 2019 but deemed properly filed on 17th February, 2020, hosting four grounds, wherein it prayed this Court for:
1. An order of this Honourable Court setting aside the finding of fact made by the Court below at page 17 of its Judgment (page 226 of the Record) to the effect that the 4th Respondent was an assign of the Appellant.
2. An order of this Honorable Court setting aside the pronouncement of the Court below at page 17 of its Judgment (page 226 of the record) to the effect that the Appellant is bound by the finding that the 4th Respondent acquired nothing from the Appellant.
3. An order of this Honourable Court setting aside the order of the learned trial Judge directing the 1st Respondent to recover possession of the land in dispute from the 4th Respondent and all persons in occupation thereof and substituting therefor, an order striking out Relief 2 of the Statement of Claim dated 1st July, 1998 and filed by the 1st Respondent at the Court below for want of jurisdiction.

Thereafter, the parties through their counsel, filed and exchanged their respective briefs of argument in line with the procedure regulating the hearing of civil appeals in this Court. The appeal was heard on 22nd November, 2021.

During its hearing, learned appellant’s counsel B.A. Sodipo, Esq., adopted the appellant’s amended brief of argument, filed on 26th September, 2019 and deemed properly filed on 17th February, 2020, and the appellant’s reply brief filed on 25th February, 2021 but deemed properly filed on 22nd November, 2021, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the first respondent, Michael Akinleye, Esq., adopted first respondent’s amended brief of argument, filed on 7th September, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it. Learned counsel for the second-fourth respondents, S.N. Agweh, SAN, informed the Court that they filed no brief of argument.

In the appellant’s amended brief of argument, learned counsel distilled two issues for determination to wit:
”Whether the learned trial Judge was right to have granted the 1st Respondent an order to recover possession of the land in dispute from the 4th Respondent and all other persons in occupation thereof, having regard to the 1st Respondent’s lack of locus standi to seek the aforesaid order in view of the Appellant’s valid and subsisting right to exclusive possession of the land in dispute by virtue of Exhibit 3”.

In the first respondent’s amended brief of argument, learned counsel crafted two issues for determination, namely:
”Having regards to the pleadings, case presented by parties and evidence at the trial Court whether the learned trial judge was assuming power/right when he granted the relief 2 for possession of the property as sought by the 1st Respondent in its originating process.
In view of the facts pleaded and reliefs sought by the 1st Respondent vis-a-vis the case of the Appellant before the trial Court, whether the trial Court was not right when it held that the 4th Respondent is an assign of the Appellant and that the Appellant was bound by the trial Court’s decision against the 4th Respondent.”

A close look at the two sets of issues shows that they are identical in substance, but for semantics. In fact, the first respondent’s issues can be conveniently subsumed under the appellant’s. Given this sameness, I will decide the appeal on the issues formulated by the appellant: the undisputed owner of the appeal.

Arguments on the issues:
Issue one
Learned appellant’s counsel submitted that the lower Court acknowledged that exhibit 3, the lease between the appellant and the first respondent was valid, existing and binding on the parties. He asserted that exhibit 3 conferred exclusive possession of the land in dispute on it and that the lower Court erred in law when it granted possession of it to the first respondent. He relied on Street v. Mountford (1985) 2 All ER 289; Megarry & Wade,The Law of Real Property, Charles Harpum, 6th edition, Sweet Maxwell, 2000 at pages 764, 761, 759-760,769; London and North West Ply Co. v. Buckmaster (1874) 10 Q.B. 70 at 76; FCTA v. Nwana (1998) 4 NWLR (Pt. 544) 73; Kukoyi v. Aina (1999) 10 NWLR (Pt. 624) 633. He explained that the covenant for quiet enjoyment of the land in dispute, contained in exhibit 3, was evidence exclusive possession.

​Learned counsel further submitted that the appellant, in its pleading, reserved its right under exhibit 3 on the ground of validity of assignment in exhibit 5-lease between it and fourth respondent. He claimed that on nullification of exhibit 5, the status quo, its right to exclusive possession in exhibit 3, was restored.

It was posited that since the exhibit 3 was valid and subsisting, the first respondent lacked the locus standi to sue for recovery of possession of the land in dispute. Learned counsel reasoned that the first respondent had no vested right to protect in terms of recovery of possession of the land in dispute. He cited A.G., Anambra State v. A.-G., Fed. (2007) 12 NWLR (Pt. 1047) 4; Adesanya v. President, FRN (1981) ANLR 1; Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669. He asserted that the lower Court should have relied on exhibit 3, the evidence to hold that the first respondent lacked the locus standi to seek for relief 2. He referred to E.T. & E.C. (Nig.) Ltd. V. Nevico Ltd. (2004) 3 NWLR (Pt. 860) 327. He added that the lack of locus standi deprived the lower Court the jurisdiction to grant relief 2. He stated that the appellant argued the issue one in its reply address but the lower Court did not refer to it during its evaluation of evidence.

On behalf of the first respondent, learned counsel contended that the appellant’s case before the lower Court was lack of interest in the land in dispute and it case before this Court is that the first respondent lacked locus standi to recover possession. He described its stand as making inconsistent cases which is contrary to the law. He relied on Dunalin Investment Ltd. v. BGL Plc (2016) 18 NWLR (Pt. 1544) 262; Agagaraga v. FRN (2007) 2 NWLR (Pt. 1019) 586; Oshoboja v. Amida (2009) 18 NWLR (Pt. 1172) 118. He explained that exhibit 3 was not in issue and the parties did not make any case on it before the lower Court. He reasoned that by the appellant’s pleading, it abandoned its right in exhibit 3. He classified its contention on exhibit 3 as an afterthought. He persisted that the appellant did not make a case of exclusive possession in the lower Court even when exhibit 3 was there. He described the appellant’s relief as an aberration and an indirect counter-claim which cannot be granted. He cited Garuba v. Kwara Investment Co. Ltd. (2005) 5 NWLR (Pt. 917) 160. He said that the first respondent’s first (principal) relief was based on the second–fourth respondents’ use of the land in dispute for purpose not specified in exhibits 2 and 3. He opined that the right to exclusive possession is subject to the covenant in the lease. He insisted that the land in dispute was being used for religious purpose which was outside the covenant in exhibits 2 and 3. He stated that the appellant admitted, in its pleading, a breach of the covenant to use and cannot claim reversionary interest. He took the view that the appellant’s admission of lack of interest was not qualified. He noted that the appellant did not make a counter claim for possession and something cannot be put on nothing. He referred to Skenconsult v. Ukey (1981) 1 SC6; Ojukwu v. Onyeador (1991) 7 NWLR (Pt. 203) 286. He observed that the appellant wrongly raised the issue in its reply address and the lower Court was right to ignore it. He cited Access Bank Plc v. Ugwuh (2013) LPELR-20735 (CA); Fagge v. Amadu (2015) LPELR-25920 (CA); IFC v. D.S.N.L. Offshore Ltd. (2008) 9 NWLR (Pt. 1093) 606. He explained that the first respondent did not reply to the issue not joined issue on it with the appellant. He concluded that the appellant is not consistent in presenting its case. He cited Yahaya v. Dankwanbo (2016) 7 NWLR (Pt. 1511) 284.

On points of law, learned appellant’s counsel posited that issue of lack of locus standi is an issue jurisdiction which can be raised anytime, in any manner, and even suo motu by the Court. He referred to Governing Council of NTI, Kaduna v. NASU (2018) LPELR-44557 (CA); Wema Securities and Finance Plc v. NAIC (2015) 16 NWLR (Pt. 1484) 93. He added that a Court can look at its record to determine locus standi. He cited B.B. Apugo & Sons Ltd. v. OH.MB (2016) 13 NWLR (Pt. 1529) 206.

Issue two.
Learned appellant’s counsel argued that with the lower Court having nullified exhibit 5, there was no evidence to hold that the fourth respondent was the appellant’s assign and it (the appellant) was bound by the finding that it acquired nothing. He described the finding as perverse. He urged the Court to interfer with it. He relied on Iwuoha v. Nigerian Postal Services Ltd. (2003) 8 NWLR (Pt. 822) 308; Odom v. PDP (2015) 2 MJSC (Pt.1) 1; Gilsod Associates Ltd. v. Association of Local Government of Nigeria (ALGON) (2011) LPELR-4197 (CA). He explained that the nullification of exhibit 5 could not affect the appellant’s pre-existing leasehold title in exhibit 3. He claimed that the fourth respondent’s lack of legal capacity to contract would only result in its not deriving nothing from exhibit 5. He maintained that the finding was an error of law which caused it a miscarriage of justice and perversion. He referred to Odom v. PDP (supra).

For the first respondent, learned counsel submitted that from exhibit 3, the appellant was an assign and a necessary party in the suit. He urged the Court to give literal meaning to exhibit 3. He relied on Fagbohun v. Iganna (2002) LPELR-20013 (CA). He asserted that the appellant admitted, in its pleading, that the fourth respondent was its assign. He added that from exhibit 5, the fourth respondent stepped into the position of the appeal in the land in dispute. He explained that the appellant allowed the fourth respondent to fight its battle and must be bound by such act of acquiescence. He cited Etiti v. Obibi (1976) LPELR-1174 (SC); Ige v. Farinde (1994) NWLR (Pt. 354) 42. He reasoned that a breach of covenant in a lease would entitle the lessor to make a claim for possession of land against the party in possession. He concluded that the finding was based on evidence and not perverse. He cited Egbe v. Adefarasin (1987) LPELR-1032 (SC).

On points of law, learned appellant’s counsel posited that there was no breach of covenant for use. He noted, in the alternative, that if there was, the proper claim should be forfeiture which the first respondent failed to claim. He stated that a nullification of exhibit 5, meant it never existed. He referred to Agundo v. Gberbo (1999) LPELR-6644 (CA); Saleh v. Monguno (2006) LPELR-2992 (SC). He insisted that the nullification of exhibit 5 effectively rendered the evidence on it non-existent. He cited Agundo v. Gberbo (supra); Saleh v. Monguno (supra).

Resolution of the issues.
It is important to place on record, perforce, that this appeal is a sister Appeal to appeal NO.CA/L/665/2008: Rev. Dr. (Mrs.) Nkechi Anayo-Ilupotaife & 2 Ors v. Nasco Estate Co. Ltd. & Anor. The appellant in this appeal is the second respondent therein. Both appeals trace their paternity to the judgment of the lower Court delivered on 25th October, 2001. I have determined that other appeal. I have juxtaposed the issues in the twin appeals. The issue one in this appeal is a mirror image of issue four in the other appeal. Both probe into the propriety of the lower Court’s assumption of jurisdiction over the first respondent’s suit, which parented both, when it lacked the locus standi to institute it. I had, after a thorough and anxious analyses found on issue four, in that appeal, that the lower Court was not clothed with the requisite jurisdiction to adjudicate over the suit on the footing of want of locus standi of the first respondent to institute it. I, ultimately, struck out the suit for being incompetent. Given the oneness of the two issues, it will serve the ends of justice and preserve the judicial time and space to import the resolution on the issue four in the other sister appeal. To this end, I adopt wholeheartedly my reasons and conclusions on that issue four in Appeal No. CA/L/665/2008 as my reasons and conclusions on this issue. In effect, I resolve the issue one in favour of the appellant and against the first respondent.

In consequence, the issue two in this appeal is rendered academic in that it will be of no judicial utilitarian value to the parties herein. In the mind of the law, Courts are not cloaked with the vires to entertain an academic issue/suit no matter the jurisprudential content of the law involved in it. In due obeisance to the law, I strike out issue two for being an incompetent academic issue.

On the whole, having resolved the live issue one in favour of the appellant, the fate of the appeal is obvious. It is imbued with merit. Consequently, I strike out Suit No. ID/1536/1998, filed by the first respondent, for being incompetent. The parties shall bear the respective costs they incurred in the prosecution and defence of the fruitful appeal.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother OBANDE FESTUS OGBUINYA JCA. I also allow the appeal and accordingly strike out suit No: ID/1536/1998. I abide by the consequential orders.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I had earlier carefully gone through the draft copy of the judgment written by my learned brother, OBANDE FESTUS OGBUINYA, JCA.

​This Appeal is a Sister Appeal to Appeal No CA/L/665/2008 and the fulcrum issue raised here has been thoroughly dealt with by my learned brother in that Appeal. I therefore align myself with the decision of my learned brother to adopt this Court’s decision on the issue as rightly done in that sister appeal to preserve the judicial time and in the overall interest of justice.
I also allow this Appeal and abide by the order made as to cost.

Appearances:

B. A. Sodipo, Esq. For Appellant(s)

Michael Akinleye, Esq. – for 1st Respondent.
S. N. Agweh, SAN, with him, O. Kutemi, Esq. – for 2nd – 4th Respondents. For Respondent(s)