MR. DAPO OYEWUNMI v. MR. CHARLES AFAMEFUNA CHUKWUEMEKA OFILI
(2016)LCN/9225(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of December, 2016
CA/L/967/2009
RATIO
ACTION: LOCUS STANDI; MEANING OF LOCUS STANDI
It is trite that locus standi is simply the standing to sue or legal capacity to sue, see A.G. KADUNA STATE v. HASSAN (1985) NWLR (Pt. 8) 483. The competence of a person has a corresponding effect on jurisdiction of the Court, see MOZIE v. MBAMALU (2006) 15 NWLR (Pt. 1003) 466. It is discerned from the writ of summons and statement of claim before the Court, see DISU v. AJILOWURA (2006) 7 S.C. (Pt. II) 1. PER YARGATA BYENCHIT NIMPAR, J.C.A.
WORDS AND PHRASES: MEANING OF FORFEITURE
Forfeiture is defined thus:
“It is a right which endears in the landlord and is aimed against a tenant who is in breach of the tenancy.” See PILLARS (NIG.) LTD v. MRS. HANNAH DESBORDE & ORS (2009) LPELR-8204(CA).
Forfeiture generally is the punishment annexed by law to the act of a tenant who misbehaves and acts contrary to the covenants entered into with his landlord. Some of the acts of misbehavior include:
(a) refusal to pay rent or tribute (b) refusal to provide services stipulated (c) use of land for a different purpose (d) denial of the title of the landlord. See IROAGBARA v. UFOMADU (2009) 11 NWLR (Pt. 1153) 587 and BELLO MUSA MAGAJI v. ALHAJI ISHOLA ARE OGELE (2012) LPLER-9476. PER YARGATA BYENCHIT NIMPAR, J.C.A.
COURT: DUTY OF COURT NOT TO MAKE A FINAL ORDER AT AN INTERLOCUTORY STAGE OF PROCEEDING
I therefore agree with the Appellant that the lower Court truncated the trial in an irregular manner with the order of forfeiture made at the wrong stage of the trial. The lower Court short-circuited the process and that is injurious to the outcome. Indeed, a Court is not allowed to make a final order at an interlocutory stage of a proceeding, see OKEKE & ORS v. OKOLI & ORS (1999) LPELR-CA/E/60/95 where the Court said thus:
“The trial judge should not have dealt a final devastating blow on the appellants case at the stage of an application to discharge interim injunction order as he did.”
The apex Court also cautioned Courts not to make final orders at an interlocutory stage of a trial in the case of AGIP (NIG.) LTD v. AGIP PETROLI INT’L (2010) LPELR- 250 (SC) thus:
A Court must be cautious in its judgment at an interlocutory stage not to make pronouncements or observations on the facts which appear to prejudice the main issue or issues in the proceedings yet to be concluded by the Court.
See also OJUKWU v. GOVERNOR, LAGOS (1986) 2 NWLR (Pt. 26) 39; IWEKA v. SCOA NIG. LTD (2000) 7 NWLR (Pt. 664) 325 and EZENFOR v. OKEKE (2000) 7 NWLR (Pt. 665) 363. PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
MR. DAPO OYEWUNMI Appellant(s)
AND
MR. CHARLES AFAMEFUNA CHUKWUEMEKA OFILI
(By his Attorney ABDULMALIK ORA EGBUNIKE Trading under the name and style of ORA EGBUNIKE AND ASSOCIATES) Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Lagos State High Court delivered on the 23rd September, 2009 by HON. JUSTICE Y. A. ADESANYA. Dissatisfied with the ruling, the Appellant filed an Amended Notice of Appeal dated 5th day of March 2015 filed on the same day setting out a sole ground of appeal which generated a sole issue for determination.
The Respondent took out an action against the Appellant by way of writ of summons supported by a statement of Claim seeking the following:
“WHEREOF the claimant claims against the Defendant as follows:
a. An Order that the Defendant gives vacant possession of the 3 bedroom detached house situate, lying and being at No. 7B, Hawksworth Road, Ikoyi Lagos State to the Claimant forthwith.
b. The sum of N200,000 for the renovation and repainting of the above mentioned property.
c. The sum of N166,667 being the mesne profit per month from 1st August 2007 until possession is finally given up by the Defendant.
d. The sum of N500,000.00 being the cost of this suit.”
The Appellant filed a Statement of defence denying
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liability and by paragraphs 9 and 10 he averred as follows:
“9. The Defendant states that the Claimant has no locus standi to maintain this action since he is neither the legal or beneficial owner of 7B Hawkeworth Road, Ikoyi, Lagos, the property in question neither is he an executive nor personal representative of the deceased owner of the property in question and at the trial of this suit the Defendant will request that this issue be set down as a preliminary issue to be decided by this Court before proceeding to trial.
10. Further to paragraph 9 above, the defendant states that the action is now statute barred even if brought by a lawful beneficiary executor, or personal representative since this action was brought on the 27th day of March 2008, more than 12 years after the cause of action arose and outside the prescribed statutory period of within which this suit ought to have been instituted to recover the property. Again at the trial of this suit, the defendant will request that this issue be set down as a preliminary issue to be decided by this Court before proceeding to trial.?
?Pursuant to those paragraphs, the Appellant
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filed a Preliminary objection supported by an affidavit in support, exhibits and a written address as required by the Rules of Court. The Respondent filed a counter affidavit accompanied by exhibits and a written address. Upon determination, the lower Court dismissed the objection and also declared that by challenging the title of the landlord, the Appellant has forfeited his tenancy and must therefore give up possession. Dissatisfied with the ruling, the Appellant filed this appeal challenging the lower Court’s ruling on a sole ground, which generated a sole issue for determination.
The Appellant’s Amended Brief settled Stephen Kola Balogun dated 24th June, 2010 filed on the same day and he also filed a Reply Brief dated and filed on the 7th November, 2016 but deemed 8/11/16.
Both briefs were adopted at the hearing of the appeal. The sole issue distilled by the Appellant states thus:
“Whether the learned trial judge erred in law when his lordship forfeited the Appellant’s lease and granted summary possession of 7B Hawksworth Road, Ikoyi, Lagos to the Respondent.”
?The Respondent’s Brief dated 14th day of March, 2016 settled by Dr.
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Onyechi Ikpeazu, OON, SAN was filed on the same day and it also formulated a sole issue thus:
“Whether having regard to the facts put in issue by the Appellant by his application to strike out, the learned trial Judge was correct when he found that the Appellant had forfeited the lease of No. 7B Hawksworth Road, Ikoyi, Lagos for which the Respondent was entitled to possession of the disputed property.”
?The Appellant in his reply on points of law objected to the issue distilled by the Respondent on the ground that it was not distilled from the sole ground of appeal. I have carefully considered the sole ground of appeal and the issue put forward by the Respondent and I do not see how it has departed from the sole ground of appeal. I agree that a Respondent who has not filed a cross appeal or a Respondent’s Notice to contend that the Ruling be affirmed on grounds other than those in the Ruling, cannot put forward an issue for determination not based on the ground(s) of appeal. When such happens, the issue must be discountenanced. But this is not so in this case. Be that as it may, after a careful reading of the ground of appeal, the issues distilled
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there from and the briefs of the parties, I find it expedient to adopt the issue put forward by the Appellant as the sole issue for determination in this appeal.
SOLE ISSUE
Whether the learned trial judge erred in law when his lordship forfeited the Appellant’s lease and granted summary possession of 7B Hawksworth Road, Ikoyi, Lagos to the Respondent.
Learned counsel to the Appellant submitted that the trial Court erred in granting an order for forfeiture of the lease and summary possession of the property in dispute, that not being a relief claimed by the Respondent, the lower Court only had jurisdiction to either strike out the suit or dismiss the preliminary objection. He referred to the cases of NIGERIAN AIRFORCE v. WING COMMANDER SHEKETE (2002) LPELR-3193 (SC), EKPENYONG & ORS v. NYONG & ANOR (1977) NSCC 28, UGO v. OBIEKWE (1989) 1 NWLR (Pt. 99) 566, AYANBOYE v. BALOGUN (1990) 5 NWLR (Pt. 151) 392, AKINBOBOLA v. PRISSON FISKO (NIG.) LTD (1991) 1 NWLR (Pt. 167) 270. Counsel further submitted that since the case of the Respondent in its statement of claim was for non-payment of arrears, the trial judge in forfeiting the lease and
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granting summary possession to the Respondent reformulated his case, thereby exceeding jurisdiction. He further submitted that though it was an interlocutory application before the Court, the trial judge delved into the substantive issue by granting those reliefs. He referred to LAWAL v. ELEKO & ORS (2010) LPELR-4426, PAVEX INTERNATIONAL COMPANY (NIG.) LTD v. I.B.W.A. (2000) 4 SC (Pt. II) 166 @ 216, OKOYA v. SANTILLI (1990) 2 NWLR (Pt. 131) 172, ISHAQ v. BELLO & ORS (2008) LPELR-4337, AKUMA INDUSTRIES LTD v. AYMAN ENTERPRISES LTD (1999) 13 NWLR (Pt. 633) 68, ORJI v. ZARIA INDUSTRIES LTD & ANOR (1992) 1 NWLR (Pt. 215) 124. Finally, the Appellant submitted that the trial judge was in error to have gone outside the Statement of Claim and used affidavit evidence to determine the preliminary objection challenging the Respondent’s locus standi, referred to A.G. ANAMBRA STATE v. A.G. FEDERATION (2007) LPELR-603, FAWEHINMI v. PRESIDENT FEDERAL REPUBLIC OF NIGERIA (2007) LPELR- 9005.
In response, the Respondent submitted that the Appellant raised his preliminary issues in his statement of defence before calling on the trial Court to set the issues
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down for determination. Respondent further submitted that in view of the circumstances of the case, the lower Court was right to have ruled that the Appellant forfeited the tenancy, referred toABEKE v. ODUNSI (2013) 13 NWLR (Pt. 1370) 1. He argued that the issues raised by the Appellant in the Preliminary Objection could not have been considered in isolation of the reliefs in the case, this being a procedure in lieu of demurrer, referred to Order 22 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004. In addition, the Respondent submitted that from the point that issues were joined in the pleadings of both parties the Appellant’s challenge of the Respondent’s title was evident. Respondent finally submitted that in line with the procedure in lieu of demurrer adopted by the trial Court, the trial Court can rely on the facts introduced in the determination of the application, relying on NWUKE v. ONYIKE (2013) LPELR-21238 (CA), AJAYI v. ADEBIYI (2012) 11 NWLR (Pt. 1310) 137, A.G. KWARA v. OLAWALE (1993) 1 NWLR (Pt. 272) 645.
?In reply to the submissions of the Respondent, the Appellant contended that the application in question being one
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challenging jurisdiction and not brought under Order 22 Rule 2 of the Lagos State High Court Rules, proceedings in lieu of demurrer cannot apply. That even if Order 22 Rule 2 is applicable, the forfeiture of the Appellant’s lease will not be justified because the Respondent never claimed such.
RESOLUTION
The preliminary objection which generated the ruling appealed against sought for the following prayers:
“1. AN ORDER dismissing this suit on the grounds that this Honourable Court lacks the jurisdiction to entertain the suit
2. And for such further order(s) as the Honourable Court may deem fit to make in the circumstances.”
The grounds upon which the application was based states thus:
a. The Claimant has no locus standi to institute the action since he is neither the legal or beneficial owner of 7B Hawksworth Road, Ikoyi, Lagos, the property in question neither is he an executor nor personal representative of the registered owner of the property in question.
b. The action is statute barred having been brought on the 27th of March, 2008, more than 12 years after the cause of action arose and outside the prescribed statutory
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period within which the said suit ought to have been instituted to recover the property.”
The lower Court lucidly determined that the Respondent has locus standi and the suit was not statute barred. It went on to find that because the Appellant challenged the title of his landlord, he must forfeit possession of the premises. The Respondent by the pleadings before the Court, particularly by paragraphs 3(a), (b), (c), (d) and 4((a), (b), (c) and (d) clearly averred to how he became the owner of the property in question and how the attorney was appointed. Also how the attorney exchanged communications with the Appellant on the issue of outstanding rent and the part payment made, which was acknowledged.
It is trite that locus standi is simply the standing to sue or legal capacity to sue, see A.G. KADUNA STATE v. HASSAN (1985) NWLR (Pt. 8) 483. The competence of a person has a corresponding effect on jurisdiction of the Court, see MOZIE v. MBAMALU (2006) 15 NWLR (Pt. 1003) 466. It is discerned from the writ of summons and statement of claim before the Court, see DISU v. AJILOWURA (2006) 7 S.C. (Pt. II) 1. Clearly, the Appellant is not challenging
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the ruling of the lower Court holding that the Respondent has locus standi. Thus, that aspect of the ruling stands.
The second leg is the aspect on statute bar. The Respondent also averred the correspondences between the Appellant and the Respondent’s attorney, to which the lower Court in a clear and comprehensible ruling held that the claim was not statute barred. This too was not challenged by the Appellant in the sole issue and hereby stands.
The part that is offensive is the finding that the Appellant should forfeit possession for challenging the title of his landlord. The Appellant’s contention is basically that even if the Court were to so find, it should be after trial and not to be made at a preliminary stage upon the Appellant’s application challenging the jurisdiction of the Court. He contended that the issue of forfeiture was not part of the objection. The question before us now is whether the lower Court made out a case for the parties in making the order of forfeiture? Before giving an answer, let me first say that I agree with the Appellant that a Court should not make a case for the parties and should not also decide on an issue
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suo motu.
Furthermore, the Court is bound by the pleadings before the Court.
Going by the affidavit in support of the Preliminary objection, the Appellant challenged the title of the Respondent which was coated and presented as lack of locus standi. From the record of appeal at page 90, there is a submission made to the Court contending that the Appellant has challenged the title of his landlord contrary to Section 152 of the Evidence Act (now Section 170 of the Evidence Act, 2011). Furthermore, at page 91, the Respondent urged the lower Court to hold that denial of the Respondent’s title means the Appellant has forfeited possession without the necessity of serving statutory notices. The Court granted the application. It is therefore wrong of the Appellant to allege that the issue of forfeiture was not before the lower Court. The issue was not part of the preliminary objection but it was raised by the Respondent in his oral reaction to the objection even though not a relief before the Court.
Section 152 of the Evidence Act provides thus:
?No tenant of immovable property,or person claiming through such tenant, shall during the
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continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning, of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such license was given.?
It is absolutely wrong and grave for a tenant to deny the title of his landlord. Such action attracts the severest of action which is forfeiture.
Forfeiture is defined thus:
“It is a right which endears in the landlord and is aimed against a tenant who is in breach of the tenancy.” See PILLARS (NIG.) LTD v. MRS. HANNAH DESBORDE & ORS (2009) LPELR-8204(CA).
Forfeiture generally is the punishment annexed by law to the act of a tenant who misbehaves and acts contrary to the covenants entered into with his landlord. Some of the acts of misbehavior include:
(a) refusal to pay rent or tribute (b) refusal to provide services stipulated (c) use of land for a different purpose (d) denial of the title of the landlord. See IROAGBARA v. UFOMADU (2009) 11 NWLR (Pt.
12
1153) 587 and BELLO MUSA MAGAJI v. ALHAJI ISHOLA ARE OGELE (2012) LPLER-9476.
It is trite that being a relief that a landlord can seek for in Court, it is expected that such a landlord must seek it as a relief in a claim. The Courts have held that the grant of an order of forfeiture is not automatic as the claimant must come to Court for such reliefs. See OBA AFOLAYAN ABIOYE v. FELIX ABIDOYE (2012) LPELR-1959. As required by the rules of Court, a relief must be established before it can be granted. It is not made as a matter of course but upon due procedure, see GOVERNOR OF OGUN STATE v. MR. ADEGBOYEGA ADEBOLA COKER (2007) LPELR-4217(CA) where the Court held that though a breach of a covenant in the lease is a ground for forfeiture, the grant of the order is not automatic as it has to follow procedure or it will fail. See also the case of AKINTOLA v. OYELADE (1993) LPELR-359 (SC) where the Court held thus:
“Where there is an act occasioning forfeiture, forfeiture is not automatic. The proper remedy for an overlord in such a case is to ask the Court to forfeit the interest of the tenant, and to make an order for possession.?
Appropriate steps
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must be followed. Adjudication is powered by due process otherwise a good case is destroyed by adoption of the wrong procedure. Fundamentally, the claimant must ask for forfeiture as a relief and until established, it will not be granted.
In this case, though the challenge of the landlord’s title over the premises is a good ground for forfeiture, the Court was too hasty in making the order when it was not part of the claim and was not determined in the normal course of trial. The stage at which the relief was granted was wrong and irregular. The stage the matter was is for the determination of the jurisdictional issue which arose on a twin set of issues of locus standi and statute of limitation. The Court should have just determined the challenge to jurisdiction and proceeded to trial. It would have been less offensive if at the end of trial, the Court makes such an order as a consequential order. It cannot be made midway in the trial. At the stage the objection failed, the necessary step to follow is that of trial.
?I must say that I find prayer one of the Respondents reliefs can ground an order of forfeiture if at the end of trial, it is found
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that the Appellant breached terms of his lease.
I therefore agree with the Appellant that the lower Court truncated the trial in an irregular manner with the order of forfeiture made at the wrong stage of the trial. The lower Court short-circuited the process and that is injurious to the outcome. Indeed, a Court is not allowed to make a final order at an interlocutory stage of a proceeding, see OKEKE & ORS v. OKOLI & ORS (1999) LPELR-CA/E/60/95 where the Court said thus:
“The trial judge should not have dealt a final devastating blow on the appellants case at the stage of an application to discharge interim injunction order as he did.”
The apex Court also cautioned Courts not to make final orders at an interlocutory stage of a trial in the case of AGIP (NIG.) LTD v. AGIP PETROLI INT’L (2010) LPELR- 250 (SC) thus:
?A Court must be cautious in its judgment at an interlocutory stage not to make pronouncements or observations on the facts which appear to prejudice the main issue or issues in the proceedings yet to be concluded by the Court.?
See also OJUKWU v. GOVERNOR, LAGOS (1986) 2 NWLR (Pt. 26) 39; IWEKA v.
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SCOA NIG. LTD (2000) 7 NWLR (Pt. 664) 325 and EZENFOR v. OKEKE (2000) 7 NWLR (Pt. 665) 363.
One might say the lower Court ended the entire claim at that stage and therefore, there were no proceedings pending but that argument is pedestrian because the Court has not pronounced on the reliefs before it. It has ruled on jurisdiction and dismissed the challenge to the locus standi of the Respondent. Having done so, the next stage is trial. It was too early for the Court to make a finding on forfeiture. It therefore erred and this has occasioned a miscarriage of justice. Consequently, I find for the Appellant. The appeal succeeds.
The order of forfeiture made was premature and is hereby set aside. The claim of the Respondent is hereby relisted and returned to the Lagos State High Court for trial before another judge on the merit. The Lagos State Chief Judge to reassign the file to another judge to hear the claim. An order of accelerated hearing is also made. Parties to bear their cost.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: By its ruling delivered on 23/9/2009 on the preliminary objection of the Appellant as Defendant challenging
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the locus standi of the Respondent as Claimant, over a property in which the Appellant was admittedly and indisputably a tenant, the Court below not only determined that the Respondent has the requisite locus standi to institute the proceedings against the Respondent, which is a correct decision, but also proceeded to brevu manu order forfeiture against the Appellant on grounds of having challenged the title of the Respondent his landlord.
Truly, though the issue of forfeiture or properly so called recovery of possession of the premises occupied by the Appellant was an issue properly submitted to the Court below for trial in the substantive suit, it was nowhere part of the preliminary objection of the Appellant on which the ruling of the Court below was based. It was a gratuitous order not based on any application by the Respondent at the stage of considering the preliminary objection of the Appellant. It was thus granted in error and ought to have awaited the hearing and final determination of the claim of the Respondent. A Court of law must at times refrain from making pronouncement or reaching decisions touching on the substantive claim before it at
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an interlocutory stage no matter how tempting such an option would have appeared to it. It is clearly an injudicious exercise of discretion by the Court below which is liable to be set aside in the interest of even handed justice to both parties. The Supreme Court has consistently cautioned Courts to avoid and refrain from making final order at an interlocutory stage of proceedings before the Court. Authorities on this point are legion. Suffice to refer to the following cases, namely: Globe Fishing Industries Ltd. v. Coker (1990) NWLR (Pt. 162) 265; where the Supreme Court per Olatawura, J.S.C., had poignantly stated inter alia thus:
?In the determination of any interlocutory application pending the trial of the substantive case, care should be taken not to make pronouncements which may prejudice the trial of the claims filled and still pending before the Court. To do otherwise is to prejudge the matter in respect of which evidence is still to be led.”
See also AGIP Nig. Ltd v. AGIP Petroli Int?l (2010) LPELR 250(SC); Ojukwu v. Governor, Lagos State (1956) 2 NWLR (Pt. 26) 39; Iweka v. SCOA Nig. Ltd. (2000) 7 NWLR (Pt. 661) 325; Ezenfor
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v. Okeke (2000) 7 NWLR (665) 363.
It is the light of the above few comments of mine and for the more comprehensive reasons marshalled out in the lead judgment just delivered by my lord, YARGATA BYENCHIT NIMPAR, J.C.A., a draft copy of which was availed to me in advance to preview and with which I am in complete agreement, that I too hold that the appeal has merit and ought to be allowed. I join my lord in allowing the appeal and shall abide by the consequential orders made in the lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: I agree.
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Appearances
O. A. MeseleFor Appellant
AND
Tobechukwu NwekeFor Respondent
