MR. GODDY ORURUO v. MR. SAMUEL EKE
(2019)LCN/13453(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of June, 2019
CA/E/497/2016
RATIO
COURTS: WHETHER COURTS ARE TO CONFINE THEMSELVES TO THE ISSUES RAISED BY THE PARTIES
Generally, a Court ought to confine itself to the issues raised by the parties in the determination of matters. However, where the issues are pluralized, or fragmented, or couched in such a manner as to obscure the crucial and real issues that would properly, adequately and finally determine the dispute, the Court would be entitled to distill such or other issues from the Grounds of Appeal filed. In such a situation, the Court of Appeal has the power and discretion to formulate issues from the Grounds of Appeal, which will determine the vital question between the parties. See KALU V UZOR (2006) 8 NWLR (PT. 981) 66.PER ABUBAKAR SADIQ UMAR, J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
MR. GODDY ORURUO Appellant(s)
AND
MR. SAMUEL EKE
(suing by his Attorney Chief Clement Umejiaku) Respondent(s)
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Enugu State High Court, Enugu Judicial Division, (sitting in its appellate jurisdiction) delivered by F.C. Obieze J. on the 30th day of July, 2009 wherein the judgment of the Magistrate Court, Enugu Magisterial District, delivered by L.E. Okibe Esq. on the 18th day of January, 2000 was affirmed.
BRIEF FACTS OF THE CASE
The case of the Appellant as stated in his statement of fact is that the Respondent sometimes in 1994 commenced an action in the Magistrate Court, Enugu Magisterial District through his Attorney against him claiming possession of one stall E5A No.11, Ogbete Main Market, Enugu. The Appellant went further to state that from the evidence of the Respondent?s Attorney, the stall in dispute originally belonged to Enugu North Local Government Council which was at first let to the Respondent, the use of which the Respondent continued paying stallage fees to the said Enugu North Local Government from 1987 to 1995.
It is also the case of the Appellant that the Respondent, who was a businessman, moved to Bauchi State in
1
1987, leaving the stall in care of his Attorney, one Mr. Clement Umejiaku and that shortly after the Respondent?s relocation, the said attorney, without authority from the Enugu North Local Government sublet the stall to him (the Appellant) making him pay rents for onward transmission to the Respondent.
The Appellant stated further that sometimes in 1991 after he took possession of the stall in dispute and continued paying rents to the Respondent through his Attorney, the authorities of the Enugu North Local Government threatened to eject him from the stall unless he formally applied for the stall to be allocated to him. Premised on this threat, the Appellant stated that he applied formally for the allocation of the stall to him vide Exhibit D1 and following the approval of his application, he paid development levy and non-refundable fee as shown in Exhibits D2 and D3 respectively. It is the case of the Appellant the he was thereafter issued with an allocation paper dated 14th August, 1991 and a Clearance Form which were tendered and admitted in evidence at the trial Magistrate Court as Exhibit D4 and D5 respectively. The Appellant went further to
2
state that he commenced paying stallage fees to Enugu North Local Government as evidenced in Exhibit D6 which is a bundle of 19 receipts tendered and admitted by the trial Magistrate Court and that he continued being in peaceable possession of the stall without breaching any of the covenants in Exhibit D4 (the allocation paper) up until the year 1994 when the Respondent commenced action at the trial Magistrate Court claiming possession of the stall.
The Respondent on the other hand stated that the Appellant was thrown out of the shop which he was occupying then by the owner and on humanitarian gesture, the Respondent allowed him to move into the stall in dispute pending when the Appellant would find a new one without his paying rent whatsoever. The Respondent stated further that the Appellant started occupying the stall but began hatching the plot to deprive the respondent of it and in actualizing this, went behind to fraudulently obtain an allocation from some unscrupulous members of the Enugu North Local Government authority in charge of administering market.
It is the case of the Respondent that he had earlier as the bona fide owner of the stall
3
obtained the real and original allocation from the genuine officials of the Enugu North Local Government over the stall and paid his rents accordingly.
At the conclusion of trial, the learned trial Magistrate at page 33 of the record held thus:
From the evidence before the Court, both the plaintiff and defendant are allotted of the same stall by the Enugu State Local Government. It is not in contention that plaintiff?s allocation come first, nor has the said allocation been revoked. It is trite law that when the Equities are equal the first in time prevails. The Enugu Local Government ought to have taken steps to effect (sic) the plaintiff from the said stall as required by law before allotting the same stall to the defendant. Defendant admitted he was a tenant of the plaintiff. He is estopped in law from denying the plaintiff?s right as his landlord. He cannot rely on the provisions of Section 15 (1) of notice I of 1987 Enugu Local Government market bye laws to avail his as this was brought in bad faith (mala fide). That provision can only avail the Enugu Local Government who put the plaintiff into possession.
The plaintiff
4
has accordingly proved his case on the balance of probabilities. He is entitled to judgment as follows: –
That the defendant gives up immediate possession of the said stall. Cost of #700 in favour of the Plaintiff and against the defendant.
The Appellant dissatisfied with the decision of the trial Magistrate Court appealed to the immediate Court below via a Notice of Appeal dated and filed on the 19th day of January, 2000. As evident from the record, the hearing of the appeal suffered from several setbacks, some which I think was due to the lack of diligence on part of parties and their counsel. Notwithstanding, parties adopted their addresses and the immediate Court below on the 30th day of July, 2009 delivered its considered judgment wherein it affirmed the judgment of the trial Magistrate Court and dismissed the appeal accordingly. See pages 256-257 of the record.
Once again, dissatisfied with the findings on the immediate Court below sitting in its appellate jurisdiction, the Appellant appealed to this Honourable Court vide a Notice of Appeal dated 10th day of July, 2012 and filed on the 18th day of November, 2013. The grounds upon
5
which the appeal is predicated without their particulars are:
GROUND ONE
The learned judge in the Court below erred in law when he held that the written address was filed out of time and thereby failed to consider he argument advanced in the said written address.
GROUND TWO
The learned in the Court below erred in law when he held that the Market No. E5A No. 11 belongs to the Respondent.
GROUND THREE
The learned Judge erred in law when he failed to consider the illegality of the contract which is the foundation of the claim of the Respondent.
In line with the rules of this Honourable Court, parties filed and exchanged their respective briefs of argument. By an Order of this Honourable Court made on the 14th day of November, 2018, the Appellant?s brief dated 26th day of January, 2017 and filed on the 29th day of January 2017 was deemed properly filed and served. The said brief was settled by UCHENNA E. OKAFOR ESQ. while the Respondent?s brief dated 28th day of May, 2019 and filed on the 30th day of May, 2018 subject to an Order of this Honourable Court made on the 14th
6
day of November, 2018 deeming the said brief as being properly filed and served. The Respondent?s brief was settled by CHIKE ANTHONY UKOH ESQ.
The appeal was heard on the 6th day of May, 2019 wherein parties adopted their respective briefs and made oral adumbrations in respect of their respective postures in the determination of this appeal. Learned counsel for the Appellant distilled the following issues for determination of this appeal to wit:
1. Whether the learned judge of the Court below was right in holding that the Appellant?s processes/ written address was filed late in the Court below thus failing to address the argument canvassed therein? {Distilled from Ground 1}
2. Whether the learned trial judge of the Court below was right in law when he upheld the judgment of the trial Court that the market stall No. E5A No. 11 Ogbete Main Market, Enugu belonged to the Respondent? {Distilled from Ground 2}
3. Whether the learned judge of the Court below was right when he failed to consider the illegality of the contract which is the foundation of the Respondent?s claim? {Distilled from Ground 3}
The learned
7
counsel to the Respondent on the other hand distilled two issues for the determination of this appeal to wit:
1. Was the Lower Court right in holding that the Appellant?s brief was not proper before it?
2. Was the Lower Court right in dismissing the appeal before it?
APPELLANTS ISSUE ONE
On this issue, learned counsel to the Appellant submitted that it is not in doubt that the judgment of the trial Magistrate Court was delivered on the 18th January, 2000 and that the Appellant dissatisfied with the judgment lodged an appeal against same vide a Notice of Appeal on the 19th January, 2000. Counsel submitted further that on the 25th January, 2001, the Appellant fulfilled all conditions of appeal and entered into a bond to prosecute the appeal by deposing the sum of N1,000.00 with the Registrar as assessed by the said Registrar of the trial Court.
It is the contention of counsel that despite the fact that the Appellant did fulfill all the conditions of Appeal, the Registrar of the trial Court failed, refused and/or neglected to transmit the records till 23rd January, 2007.
Counsel relied on the provisions of Order 53 Rule 3 (1), (2), (3), (4) and (5) of the High Court Civil Procedure Rules of Enugu State, 2006 ?
8
and submitted that the responsibility to transmit and ensure that the Record of Appeal is served on all parties to the appeal is that of the Registrar of the trial Court and not that of the Appellant. Counsel submitted further that the Respondent did not raise the issue of non-service of the Record of Appeal with the Registrar of the Court below, whose duty is to prepare, serve on parties and transmit the Record of appeal from the Registry of the lower Court to that of the immediate Court below. Counsel submitted further that the Respondent waited until he filed his written address wherein he raised the issue of non-service of the Record of Appeal on him and the purported filing on the Appellant?s written address, this according to counsel to the Appellant is a mark of gross tardiness on the part of the Respondent.
It is the contention of counsel to the Appellant that assuming but without conceding that the Record of Appeal was not served on the Respondent and also the Appellant?s written address was filed out of time, the Respondent has a duty to
9
raise the issue timeously and by way of motion on notice as provided by Order 53 Rule 5 of the Rules of the immediate Court below and that the Respondent only raised the issue very late in the day with the intention to take the Appellant by surprise.
Premised on the above, counsel went on to submit that the Courts have consistently held that an objection as to the irregularity should be taken at the commencement of the proceedings or at the time when the irregularity arises. He referred this Honourable Court to the case of ADEBAYO & ORS V. CHIEF SHONOWO ORS (1969) ALL NLR 176.
Counsel submitted that the decision of the lower Court in holding that ?this appeal for this singular reason is therefore, not properly before the Court? on the grounds that the Appellant did not regularize his processes all along until the Respondent raised in his written address, evidently betrayed his appreciation of the unadorned and plain trend of things, wherefore substantial justice is now preferred over technical justice. He referred this Honourable Court to OKE & ANOR V MIMIKO & ORS. (2013) LPELR-21368 (SC).
On the whole, he urged this
10
Honourable Court to resolve this issue in favour of the Appellant.
APPELLANTS ISSUE TWO
On this issue, counsel submitted that after the immediate lower Court held that the Appellant?s Appeal is not properly before the Court, the Court went ahead to state that ?Assuming the appeal is properly before the Court, but I doubt it, I will look at the merits of the main appeal.? Counsel submitted that despite the above, the Court did not look at the merits of the Appellant?s appeal having not considered the address of the Appellant before the lower Court, which the said address equates to a brief in this Court.
It is the contention of counsel that where the written address of the Appellant was not considered by the Court below, even when the Court has clearly ruled that it was going to consider the appeal on its merit amounts to a breach of fundamental right of the Appellant. Counsel referred this Court toIDAKWO V EJIGA (2002) 12 NWLR (PT. 783) PG 156 and submitted that an appeal is heard on the merits once the appellate Court has considered the issue or issues in controversy in the appeal and has taken a decision
11
either to confirm or set aside the decision of the lower Court.
Finally on this issue, counsel submitted that the judgment of the Court below upholding the finding of the trial Magistrate Court being a produce of misconception, denial
