MR. DAVID TYOKYAA ABARY v. ALHAJI SALISU TALLE & ANOR
(2016)LCN/8546(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of April, 2016
CA/J/52/2011
RATIO
ORDER: DO COURTS HAVE POWER TO VARY EXPARTE ORDERS
Judicial power resides in the Court upon the application of any party affected by any order made in an exparte application to vary or discharge it within seven days after service of it, or within such further time as the Court shall allow hence it was competent for Sirajo, J., to have, on the application of the respondent, varied the enrolled orders as shown in his decision of 4th November, 2010. However, when the principal claim is granted, the Court does not embark on a voyage of considering and granting an alternative relief as argued by the learned Counsel to the appellant in the brief of argument. See Nwangwa vs. Ubani (1997) 10 NWLR (Pt.526) 559 at 574-575; Agidigbi vs. Agidigbi (1996) 6 NWLR (Pt.454) 300 at 313-314 and UBN vs. Penny Mart Ltd. (1992) 5 NWLR (Pt.240) 228 at 241; Odutola Holdings Ltd. vs. Ladejobi (2006) 12 NWLR (Pt.994) 352 at 361; Newbreed Org. Ltd. vs. Erhomosele (2006) 5 NWLR (Pt.974) 544; X.S. (Nig.) Ltd. vs. Taisei (W.A.) Ltd. (2006) 15 NWLR (Pt.1003) 555 and Lufthansa Airlines vs. Odiese (2006) 7 NWLR (Pt.978) 85. PER JOSEPH TINE TUR, J.C.A.
JUSTICES:
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
MR. DAVID TYOKYAA ABARY – Appellant(s)
AND
1. ALHAJI SALISU TALLE
(For himself and on behalf of the family of Late Alhaji Talle Jibril)
2. MR. AUGUSTINE ORTIONWE – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The appellant was plaintiff in the High Court of Justice of Plateau State holden at Jos. The suit was instituted on 24th November, 2006 against the following persons and authorities: 1. Alhaji Salisu Talle (For himself and on behalf of the family of Alhaji Talle Jibril); 2. Persons unknown; 3. Ministry of Lands, Survey, and Town Planning, Plateau State and 4. Jos North Local Government Council. In the course of the proceedings Alhaji Salihu Talle died on 11th January, 2012 and was substituted by Alhaji Salisu Talle, the 1st respondent in this appeal. Paragraphs 1-13 of the statement of claim pleaded the following facts:
1. The plaintiff is a businessman residing at No.281A Alheri Street, Angwan Alheri in Jos North Local Government Area of Plateau State.
2. The 1st defendant is a businessman of No.29/11 Bauchi Road, Jos and is representative and head of the family of late Alhaji Talle Jibrin.
3. The 2nd defendants are persons real but whose identities and occupations are not known.
4. 3rd and 4th defendants are public
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authorities charged with responsibilities over land title, administration and other land matters over Jos North Local Government Area in the case of the 4th defendant and over Plateau State as a whole including the issuance of statutory Rights of Occupancy in the case of the 3rd defendant.
5. For himself and on behalf of the family of late Alhaji Talle Jibrin the 1st defendant offered to sell to the plaintiff who duly accepted to purchase the developed subject property located at and as No.281A Alheri Street, Angwan Alheri, Jos, in Jos North Local Government Area of Plateau State at the price of N1,500,000.00 (One Million, Five Hundred Thousand Naira), subsequently evidenced by a written Agreement of Sale made on 2nd August, 2006; notice of which he is hereby given to produce the original copy at the trial.
6. By the said Agreement of Sale and the several other memoranda over the purchase of the subject property evidencing same, made between the plaintiff and the 1st defendant, the plaintiff has been paying to and the 1st defendant had been collecting the consideration for the purchase from the plaintiff in installmental irrespective of the contents
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thereof.
7. By virtue of the said purchase the plaintiff who was hitherto a tenant thereat, was now put and continued in possession which coupled with the payments made by him to 1st defendant confer on him proprietary rights over the subject property which a Court of Equity will not ignore.
8. Notwithstanding the matters in paragraphs 5 to 7 above and elsewhere herein, the 1st defendant during the life of the agreement in paragraph 5 above and without the consent of the plaintiff, sent the 2nd defendants who are various real but unknown persons, on diverse dates, to come into and inspect the said subject property, and they came looking same over after the manner of prospective buyers, asserting that they were there on 1st defendants authority, but refusing to disclose their identities.
9. The actions of the 1st and 2nd defendant have excited the plaintiffs fears that 1st defendant intends to double sell the same subject property already sold to him, to the 2nd defendants and other privies, servants, and agents, who are negotiating, inspecting, and preparing to buy same.
10. The plaintiff further avers that 1st and 2nd
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defendants intend to approach the 3rd and 4th defendants thereafter to have title over the subject property transferred to, registered in favour of and generally invested upon the 2nd defendants, unless they are otherwise ordered by this Honourable Court.
11. The plaintiff also avers that the above actions of the 2nd and 3rd defendants will UNLAWFULLY infract-upon, abridge, and violate his rights, title and interest acquired bona fide under the transactions in paragraphs 5, 6 and 7 above and elsewhere herein which are still subsisting and inter-alia obstruct his right to a statutory right of occupancy over the subject property, and it is necessary to prevent these from occurring.
12. By reason of the matters in paragraph 8 above and elsewhere herein the 1st and 2nd defendants have trespassed over the plaintiffs property aforesaid at No.281A Alheri Street, Angwan Alheri, Jos, Jos North Local Government Area of Plateau State.
13. WHEREOF: The plaintiff claims:
(a) A declaration that the plaintiff is entitled to a statutory right of occupancy over the property located at and known as No.281A Alheri Street, Angwan Alheri, Jos in Jos
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North Local Government Area of Plateau State.
(b) An order of perpetual injunction retraining the defendant, their servants, privies, and agent from trespassing upon or dealing with the subject property No.281A Alheri Street, Angwan Alheri, Jos in Jos North Local Government Area of Plateau State contrary to the plaintiff???s rights, title and interest therein.
(c) General damages of N100,000.00 (One Hundred Thousand Naira) for trespass over the subject property.
(d) Costs.
The statement of claim was followed by a motion on notice brought pursuant to Order 33 Rules 1 and 2 of the Plateau State High Court (Civil Procedure) Rules, 1988Â praying for the following interlocutory remedies:
1. An order of interim injunction restraining the defendants/respondents whether by themselves, agents, servants and/or privies from trespassing into or carrying out any act(s) adverse to the interest of the plaintiff/applicants interest in the subject matter of this suit, property No.16T/281A Alheri Street, Alheri, Jos pending the determination of the Motion on Notice.
2. An order directing the tenants at the subject matter of
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this suit, No.16T/281A Alheri Street, Alheri, Jos to pay rents to the plaintiff/applicant as equitable owner or in the alternative as caretaker.
And such further or other order(s) as the Honourable Court may deem fit to make in the circumstance.
The motion was verified on a sworn affidavit by the appellant. On 26th April, 2007 P.D. Damulak, J. (as he then was) granted relief followed by the following enrolled orders:
It is hereby ordered that the application be and is accordingly granted as prayed and the following orders made:
1. The second defendant to be service to wit by pasting the writ of summons and all other Court processes relating to this at the premises of the High Court of Justice of Plateau State or delivery of some of his agent.
2. The defendants/respondents whether by themselves, agents, servants and/or privies are hereby restrained from trespassing into or carrying out any act(s) adversely to the interest of the plaintiff/applicants interest in the subject matter of this suit to wit property No.16T/281A Alheri, Jos pending the determination of the Motion on Notice.
3. The tenants of
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No.16T/281A Alheri, Jos are hereby directed to pay rents to the plaintiff/applicant, as its equitable or in the alternative as its caretaker.
The return date for the hearing of the Motion shall be the 14th day of May, 2007.
On 11th March, 2009 the respondents brought a motion on notice supported by affidavit pursuant to Order 8 Rule 11 of the High Court (Civil Procedure) Rules, 1988 praying for the following reliefs:
1. An order extending time within which the defendant/applicant shall apply to discharge the exparte order made on 26th day of April, 2007.
2. An order discharging the interim order of the Honourable Court dated the 26th of April, 2007 restraining the 2nd defendant/applicant either by himself, agents, servants or privies from carrying out any act adverse to the interest of the plaintiff/respondent.
3. And for such further or other order(s) the Court may deem fit to make in the circumstances.
The affidavit by Augustine Ortionwe, the 2nd defendant/applicant is as follows:
1. That I am the 2nd defendant/applicant in this suit.
2. That by virtue of my position above I am conversant
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with the facts deposed to herein.
3. That I purchased property No.AH16/281A Angwan Alheri Jos from the late Alh. Talle Jibril’s family through the 1st defendant/respondent Alhaji Salihu Talle on the 17th November, 2006 for and on behalf of the family.
4. That I paid the full price of N1.7m (One Million Seven Hundred Thousand Naira) was paid to the 1st defendant/respondent as the consideration for the sale.
5. That at the time of purchase the plaintiff/respondent was living in the property as a tenant.
6. That when I went to take over possession of the property the plaintiff/respondent who was a tenant to the 1st defendant called my friends and I trespassers.
7. That I am now the owner of the property known as No.AH16/281A lying and situate at Angwan Alheri, Jos.
8. That the 1st defendant/respondent informed me in his office at No.29/11 Bauchi Road, Jos on the 16th November, 2016 at about 2:00pm the facts of which I believe to be true as follows:
(a) That he entered into a sale agreement of property No.16T/281A Alheri Street, Jos with the plaintiff/respondent for the consideration of N1.5 (One Million Five Hundred
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Thousand Naira) on the 2nd August, 2006 on behalf of the late Alh. Jibril Talle family.
(b) That the said agreement referred to in paragraph (a) above categorically stated that full payment was to be made on or before the 30th September, 2006.
(c) That the plaintiff/respondent paid the sum of N120,000.00 (One Hundred and Twenty Thousand Naira) only on the 2nd August, 2006.
(d) That the plaintiff/respondent failed to pay the full purchase price on or before the 30th September, 2006 as agreed.
(e) That the plaintiff/respondent was only able to pay another sum of N300,000.00 (Three Hundred Thousand Naira) which is not the total consideration for the property on the 7th October, 2006.
(f) That time again had to be extended after a passionate plea by the plaintiff/respondent wherein he paid the sum of N240,000.00 (Two Hundred and Forty Thousand Naira) only on the 28th October, 2006.
(g) That time was of essence in respect of payment of the total sum of the full purchase price.
(h) That having failed to pay up the full purchase price the 1st defendant/respondent had no choice than to terminate the contract which he entered into on
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behalf of the Talles family, having failed severally to meet up time for payment as per the various agreements between the plaintiff/respondent and the 1st defendant/respondent.
9. That I know as a fact that at the time I purchase the property there was no contract between the plaintiff/respondent and the 1st defendant/respondent.
10. That I know as a fact that at the time the order was made all material facts were not disclose to the Court.
11. That the Court order dated the 26th day of April, 2007 is hereto annexed and mark as Exhibit A.
12. That I know as a fact that it will best serve the interest of justice if this application is granted.
13. That the plaintiff/respondent will not be prejudiced if this application is granted.
14. That I depose to this affidavit conscientiously believing its contents to be true and correct to the best of my knowledge and belief.
The decision of the Lower Court was rendered by M.I. Sirajo, J.. on 4th July, 2010 at page 165 lines 20 to page 166 lines 1-5 of the printed record:
Having thus held and having found that since the ex-parte order was made three and
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half-years ago the plaintiff who has been deriving bountiful benefits therefrom did not take step to file a Motion on Notice for interlocutory injunction, I have no hesitation in making an order setting aside the said ex-parte order of interim injunction. Accordingly, the interim order of injunction made by this Court, differently constituted, on 26th April, 2007 is hereby discharged.
In its place, I order that all the rents accruing from the property situate at No.16T/281A Alheri, Jos be paid by the tenants residing therein to the Chief Registrar of this Court and that the said rents be deposited in an interest yielding account pending the determination of the suit, at which time the money shall be paid to whoever wins the substantive suit.
Four grounds accompany the Notice of Appeal filed by the appellant on 15th November, 2010 followed by a brief of argument on 28th May, 2012. Two issues were formulated in the brief for determination as follows:
1. Whether principal and the alternative reliefs are conjunctively grantable in law? (Distilled from Grounds 1 and 4).
2. Whether trial Judge is duty bound to hear the
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plaintiff/applicants pending Motion first and whether failure to do so amount to a denial of fair hearing. (Distilled from Grounds 2 and 3).
The 1st respondents brief filed on 14th October, 2015 distilled the following issues for determination:
1. Whether the trial Judge erred in law when he granted the reliefs sought by the 2nd respondents as contained in the motion dated 29th July, 2009 (Distilled from Grounds 1 and 4).
2. Whether the appellant was denied the right to fair hearing when the Court heard the motion of 29th day of June, 2009 which the appellant fully participated in the proceedings without objection. (Distilled from grounds 2 and 3).
The 2nd respondent formulated the following issues for determination:
1. Was the learned trial Judge wrong in granting the 2nd respondents motion dated 29th July, 2009 in terms of the reliefs contained therein? (Grounds 1 and 4).
2. Did the assumption of jurisdiction by the Court below to hear and determine the 2nd respondents motion dated the 29th day of June, 2009 violate the appellants right to fair hearing? (Grounds 2
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and 3).
The briefs of argument by each Counsel were adopted when the appeal was heard on 8th February, 2016. The learned Counsel shall assume that I read the record of appeal and the briefs before arriving at the decision I shall now render. See Order 18 Rule 3(3) of the Court of Appeal Rules, 2011.
The Motion on Notice which the learned trial Judge held he could not see in the file is at page 36 of the printed record which I hereby reproduced:
BETWEEN:
MR. DAVID TYOKYAA ABARY – PLAINTIFF/APPLICANT
AND
1. ALHAJI SALIHU TALLE
(For himself and on behalf of the family of Late Alhaji Talle Jibril)
2. MR. AUGUSTINE ORTIONWE-DEFENDANTS/RESPONDENTS
3. MINISTRY OF LAND, SURVEY AND TOWN Â PLANNING, PLATEAU STATE
4. JOS NORTH LOCAL GOVERNMENT COUNCIL
MOTION ON NOTICE
PURSUANT TO ORDER 33 RULES 1 AND 2
TAKE NOTICE that this Honourable Court shall be moved on the 14th day of May, 2007 at the hour of 9 O’clock in the forenoon or so soon thereafter as Counsel on behalf of the plaintiff/applicant will be heard praying the Court for the following:
1. An order of interim
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injunction restraining the defendants/respondents whether by themselves, agents, servants and/or privies from trespassing into or carrying out any act(s) adverse to the interest of the plaintiff/applicants interest in the subject matter of this suit, property No.16T/281A Alheri Street, Alheri, Jos pending the determination of the Motion on Notice.
2. An order directing the tenants at the subject matter of this suit, No.16T/281A Alheri Street, Alheri, Jos to pay rents to the plaintiff/applicant as equitable owner or in the alternative as caretaker.
And such further or other order(s) as the Honourable Court may deem fit to make in the circumstance.
It is within the province of a learned trial Judge but not any of the parties to fix a date for the hearing of any pending motion be it exparte or on notice as the case may be. Where a learned trial Judge has not fixed a motion ex-parte or on Notice for hearing I do not think it is right to visit the sins of the learned trial Judge on any party.
Order 8 Rules 1-11 of the Plateau State High Court (Civil Procedure) Rules, 1988 provides as follows:
1(1) Interlocutory
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applications may be made at any stage of an action.
2(1) Whereby these Rules any application is authorized to be made to the Court or a Judge in Chambers or a Registrar, such application may be made by motion.
(2) The Registrar shall make up, for each day on which there are any motions to be heard, a motion list, on which he shall enter the names of each cause in which a motion is made, the party moving, and the terms of the order sought by him.
3. Every motion shall be supported by affidavit setting out the grounds on which the party moving intends to rely; and no affidavit shall be used at the hearing unless it is duly filed.
4. Where service of a motion is required by these rules or directed by the Court or Judge, such motion shall be served together with all affidavits on which the party moving intends to rely.
5. A motion may be heard at any time while the Court is sitting.
6. The hearing of any motion may from time to time be adjourned upon such terms as the Court may deem fit.
7(1) No motion shall be made without previous notice to the parties affected thereby.
(2) Notwithstanding paragraph (1), the Court, if
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satisfied that to delay the motion till after notice is given to the parties affected would entail irreparable damage or serious mischief to the party moving, may make an order ex-parte upon such terms as to costs or otherwise and subject to such undertakings, if any, as the justice of the case demands.
8. A motion ex-parte shall be supported by affidavit which, in addition to the requirements of Rule 3, shall state sufficient grounds why delay in granting the order sought would entail irreparable damage or serious mischief to the party moving.
9. Any party moving the Court ex-parte may support his motion by argument addressed to the Court on the facts put in evidence, and no party to the suit or proceedings, although present, other than the party moving, shall be entitled to be then heard.
10. Where a motion is made ex-parte, the Court may make, or refuse to make the order sought, or may grant an order to show cause why the order sought should not be made, or may direct the motion to be made on notice to the parties to be affected thereby.
11. Where an order is made on a motion ex-parte, any party affected by it may, within seven days
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after service of it, or within such further time as the Court shall allow, apply to the Court by motion to vary or discharge it; and the Court, on notice to the party obtaining the order, either may refuse to vary or discharge it, or may vary or discharge it with or without imposing terms as to costs or security, or otherwise, as seems just.
Judicial power resides in the Court upon the application of any party affected by any order made in an exparte application to vary or discharge it within seven days after service of it, or within such further time as the Court shall allow hence it was competent for Sirajo, J., to have, on the application of the respondent, varied the enrolled orders as shown in his decision of 4th November, 2010. However, when the principal claim is granted, the Court does not embark on a voyage of considering and granting an alternative relief as argued by the learned Counsel to the appellant in the brief of argument. See Nwangwa vs. Ubani (1997) 10 NWLR (Pt.526) 559 at 574-575; Agidigbi vs. Agidigbi (1996) 6 NWLR (Pt.454) 300 at 313-314 and UBN vs. Penny Mart Ltd. (1992) 5 NWLR (Pt.240) 228 at 241; Odutola Holdings Ltd. vs.
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Ladejobi (2006) 12 NWLR (Pt.994) 352 at 361; Newbreed Org. Ltd. vs. Erhomosele (2006) 5 NWLR (Pt.974) 544; X.S. (Nig.) Ltd. vs. Taisei (W.A.) Ltd. (2006) 15 NWLR (Pt.1003) 555 and Lufthansa Airlines vs. Odiese (2006) 7 NWLR (Pt.978) 85.
The learned trial Judge having discharged the exparte orders by Damulak, J., (as he then was) in favour of the appellant erred in law to have held at page 166 lines 1-5 of the printed record as follows:In its place, I order that all the rents accruing from the property situate at No.16T/281A Alheri, Jos be paid by the tenants residing therein to the Chief Registrar of this Court and that the said rents be deposited in an interest yielding account pending the determination of the suit, at which time the money shall be paid to whoever wins the substantive suit.
Accordingly, the above determination by the learned trial Judge is set aside. In considering what orders I should make I shall refer to Section 15 of the Court of Appeal Act, 2004 which provides as follows:
15. The Court of Appeal may, from time to time give such other directions as to the manner in which the Court below
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shall deal with the cause in accordance with the powers of that Court or ???order the case to be re-heard by a Court of competent jurisdiction.
The appeal has partly succeeded. I direct that the learned Chief Judge of Plateau State High Court of Justice re-assign the substantive suit to another judge of the State High Court for hearing and determination. The suit, filed since 24th November, 2006 should be accorded accelerated hearing. No order as to costs.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the judgment of my learned brother, Tur, JCA just delivered. I agree with his reasoning and conclusion. The appeal is partly allowed. I abide by all consequential orders made therein the lead judgment, inclusive of costs.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have read carefully the draft of the lead judgment just delivered by my learned brother, JOSEPH TINE TUR, JCA.
Having so very carefully done, I agree with his position, giving his reasoning and conclusions drawn therein.
In that regard, I abide by the orders made
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therein.
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Appearances:
For Appellant(s)
Mrs. C. K. Okoli, Esq. for 1st Respondent
S. O. Oyawole, Esq. with him, J. I. Okoro, Esq. and C. Anieto, Esq. for 2nd Respondent
For Respondent(s)
Appearances
For Appellant
AND
Mrs. C. K. Okoli, Esq. for 1st Respondent
S. O. Oyawole, Esq. with him, J. I. Okoro, Esq. and C. Anieto, Esq. for 2nd Respondent For Respondent
