MR. JOSEPH UWAECHINA v. REV. DR. CHRISTIAN OKEKE
(2014)LCN/7456(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of September, 2014
CA/E/369/2010
RATIO
COURT: POWER OF THE COURT; WHETHER A COURT LACKS POWER TO GRANT TO A PARTY A RELIEF OR REMEDY WHICH HE DID NOT CLAIM
An appeal will no doubt be allowed in circumstances where a Court grants to a party a relief which was not sought or claimed by him. The Courts are only bound to adjudicate over specific issues as joined by the parties hence a court lacks power to grant to a party a relief or remedy which he did not claim see:- Atire v. Kabelmental Ltd (2008) 10 NWLR (Pt. 1095) 399 or (2008) 5-6 SC (Pt. II) 17; Ndulue v. Ibezim (2002) 72 NWLR (Pt. 780) 139; Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81. per. SAIDU TANKO HUSSAINI, J.C.A.
COURT: POWER OF THE COURT; THE POWER OF THE COURT TO MAKE CONSEQUENTIAL ORDER AND WHAT IS A CONSEQUENTIAL ORDER
The power to make consequential order is inherent and Courts should not in my view hesitate to invoke those powers whenever there is the need to do so in the interest of justice. See; Musa Iyayi v. Eyigebe (1987) NWLR (Pt. 61) 523 (1987) 75 SCNJ 148. A consequential order is one which flow directly and naturally from the decision or order of Court made on the issues in litigation and inevitably consequent upon it. See: Akapo v. Hakeen-Habeeb (1992) NWLR (Pt. 247) 266. per. SAIDU TANKO HUSSAINI, J.C.A.
JUSTICES
MASSOUD ABDURAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
MR. JOSEPH UWAECHINA – Appellant(s)
AND
REV. DR. CHRISTIAN OKEKE – Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal was heard as uncontested case. The Appellant had filed his brief of argument dated the 21st January 2011. The Respondent defaulted in filing his brief of argument.
Sequel to the application made dated the 13/7/2011 and filed on the 19/7/2011 this court on hearing that application, granted to the appellant, the desired leave to hear the appeal based only on the brief of argument filed by him. This order of Court was handed down in this Court on the 3rd June 2013.
The appeal to this court is against the decision of the High Court of Anambra State, Aguata Judicial Division (hereinafter called “the Court below”) sitting on appeal against the decision of the Customary Court Igbo-Ukwu.
The Court below, upon hearing argument of Counsel or parties therein, in a reserved judgment delivered on 30th January 2007 simply allowed the appeal brought to it without more. It is against that judgment the present appeal to this Court was lodged vide the Notice of Appeal dated 25/6/2007 and filed on the 27/6/2007, containing 3 (three) Ground as reflected at pages 86-87 of the Record of Appeal;
On the 26/6/2014 when the appeal finally came up in this Court for hearing, Learned Counsel was on hand to argue the appeal. Kate Eyiuche Esq., of Learned Counsel, adopted appellant’s brief of argument wherein 3 (three) issues were formulated as arising from the 3 (three) Grounds of appeal thus:-
1. Whether the lower court was right in merely stating in its decision thus “appeal is hereby allowed” without any other consequential order being made.
2. Whether the lower Court was right in allowing the appeal on the reason that the trial customary court awarded defendant (appellant herein) declaratory relief not claimed by it by way of counter-claim.
3. Whether the lower court was right in not considering other issues for determination in the appeal simply because of what it termed fundamental error by the trial customary Court.
In arguing this appeal in relation to issue No. 1, learned Counsel referred to the judgment of the Court below as merely allowing the appeal without any Consequential order being made. He says the judgment was to this extent inchoate and same should be set aside.
Learned counsel’s further submission in relation to issue No. 2 is that the Court below failed to consider certain vital issues. He gave a list of those vital issues at page 4 of his brief of argument and itemized (a) – (e). He concluded that if the Court below had given consideration to those issues it would not simply have allowed the appeal the way it did.
In relation to issue No. 3 it was argued that the Court below failed to make pronouncements on certain findings of fact which the trial court had made and also over issue raised in the appeal before it for determination. This failure according to Learned Counsel renders the decision at the Court below as preserve. Learned Counsel finally urged this Court to order the restoration of the judgment of the customary court, Igboukwu or in the alternative to dismiss Plaintiff’s case.
The Respondent before this Court was the Plaintiff at the trial Court. The genesis of the case leading to this appeal can be traced to Igboukwu Customary Court, the trial Court. Plaintiff s claim at the trial Court is at page 6 of the Record of Appeal particularly items 7 (a)-(b) of the claim at the same page 6 of the record wherein, the Plaintiff claims the following 2 (two) reliefs viz:-
1. That he is entitled to customary Right occupancy over the parcel of land know and called “ANA IKPALA NA ANAKWE” situated at Ngo village Igboukwu.
2. An order of injunction preventing the defendants his agents, servant or privies from further entry into the said land.
The plaintiff opened his case and gave evidence. He called 2(two) other witnesses Messrs Ichie Eznwa S. C. Nwosu and Thomas Okeke, whose evidence was taken as PW1 and PW2 respectively. Plaintiff at the hearing further tendered documents which the Court also admitted in evidence. At the close of Plaintiff’s (respondent) case the defendant, the appellant herein opened his defence. He gave evidence and called other witnesses.
The trial Court in the review of evidence after paying inspection visit to locus in quo, made some significant findings of fact at pages 45-47 of the Record and eventually delivered its Judgment granting customary right of Occupancy to the defendant (Appellant). The Court further restrained the Plaintiff (Respondent) by an order of perpetual injunction over the land in dispute.
I want to pause here for a while to emphasize just one point and that is the Plaintiff was, who lost out at the trial Court while the defendant who never filed any claim or enter counter claim was granted and awarded all the reliefs the Plaintiff had sought in his claim.
The scenario presented above no doubt informed the appeal being lodged at the High Court by the Plaintiff vide the Notice of Appeal and additional Ground of appeal filed by him. See pages 44 and 48-51 respectively. The High court or the court below upon hearing the appeal brought to it did not hesitate but dispatched and disposed of that appeal with utmost alacrity in view of what the Court described as “fundamental and incurable error” in the proceedings or judgment of the trial Court.
The Court below had this to say in this regard at page 101 – 102 of the Record of Appeal.
“……The trial court must never give to be defendant what he did not claim. By giving judgment in favour of the defendant when the defendant neither counter-claimed nor asked for judgment, the Igboukwu customary court committed a fundamental and incurable error. That error was tantamount to gross miscarriage of justice and the only option open to this court is to allow the appeal…….”
An appeal will no doubt be allowed in circumstances where a Court grants to a party a relief which was not sought or claimed by him. The Courts are only bound to adjudicate over specific issues as joined by the parties hence a court lacks power to grant to a part a relief or remedy which he did not claim see:- Atire v. Kabelmental Ltd (2008) 10 NWLR (Pt. 1095) 399 or (2008) 5-6 SC (Pt. II) 17; Ndulue v. Ibezim (2002) 72 NWLR (Pt. 780) 139; Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81.
I am not unmindful of the submission of the learned appellant’s counsel to the contrary who in his brief has argued that what appear in the judgment of the trial court as an order granting certain reliefs in favour of defendant was in fact a reiteration of earlier decision of Court of coordinate jurisdiction who made those awards or grant.
The Proceedings of the trial Court leading to judgment is before this court at pages 1-45 of the Record of Appeal. I have read same particularly, page 44, the judgment aspect of the proceedings of the trial Court. The trial court did not say neither did it indicate in the said judgment that the exercise being carried out by it was mere reiteration of earlier decisions of other Courts relative to the land in dispute. It is Counsel who introduced that into the argument.
While I acknowledge the authority cited by the Learned Counsel in Olanibi v. Ohara (2006) 10 NWLR (Pt. 1037) 635 and the decision of the apex Court in Musa Iyayi v. Eyigbe (1987) 7 SCNJ 148 that in dealing with appeals from Area or Customary Courts, the appellate Court is required to consider the entire records of Proceedings of those Courts so as to decipher the claim of those courts but this should not in my view be used as an avenue to read meaning into such records for what they do not convey.
The question in this instant appeal is the propriety or otherwise of the appellate decision of the court below in allowing the appeal simpliciter in the face of some unresolved claims or issues presented to the Court below sitting on appeal in terms of the complaints in the Notice of Appeal and the additional Grounds of Appeal. Excepting Ground 1 and perhaps Ground 2 of the additional Grounds of Appeal, the appellate decision of the Court below did not address issues raised or covered by Grounds 3, 4, 5, 6, 7, 8 and 9 in the additional Grounds of appeal. See pages 48-51 of the Record of Appeal. The complaint under ground 8 in particular, of the additional Ground of appeal is a complaint of lack of fair hearing. In the same vain the Court below made no pronouncement on the finding of fact of the Judgment of the trial court as they relate to findings No. 2, 3, 4, 5, 6, 8, 9, and 10 all of which put together would suggest that the Respondent as plaintiff at the trial court was unable to discharge the burden on him of proof of his title to the land in dispute. That is one aspect.
The Court below having allowed the Appeal brought to it as it did the need also arose for the same Court to make certain pronouncements on the fate of the judgment delivered at the trial Court. Certain specific orders needed to be put in place relative to the Judgment appealed against as for instance whether or not the said judgment was “affirmed” or “set aside” or any of such orders arising naturally from the appeal being allowed. Failure to do that will of course, as in this instant appeal, render the decision of the Court below as inconclusive and inchoate and the same can be set aside on that account.
The power to make consequential order is inherent and Courts should not in my view hesitate to invoke those powers whenever there is the need to do so in the interest of justice. See; Musa Iyayi v. Eyigebe (1987) NWLR (Pt. 61) 523 (1987) 75 SCNJ 148. A consequential order is one which flow directly and naturally from the decision or order of Court made on the issues in litigation and inevitably consequent upon it. See: Akapo v. Hakeen-Habeeb (1992) NWLR (Pt. 247) 266.
The Court below did neither of these, may be because it was either too much in a hurry or the Court found fulfillment in the lone issue addressed by it which the Court described was “fundamental”.
An issue is fundamental when the determination of same is capable of disposing other issues over which the Court was called upon to decide, otherwise it is not.
In allowing the appeal as it did, the court below considered issue arising only from Ground 1 of the additional Grounds of Appeal at page 48 of the record of appeal.
Beside Ground 1 of the additional Grounds of appeal, there are several other Grounds of Appeal, the survival of which is not dependent on the additional Ground 1. The Court below ought to have adverted its mind to those Grounds and address issues arising therein but it failed to do so.
In the light of my discourse as in this Judgment the appeal is allowed as issues 1 and 3 are hereby resolved in favour of the appellant while issue No. 2 is answered in the affirmative: In effect the appellate decision or judgment delivered at the High Court Justice, Aguata Judicial Division holden at Ekwulobia on 31/1/2007 per Hon. Justice C. O. Amaechi is hereby set aside.
I order the rehearing of the said appeal at the same High Court, now differently constituted. Parties to bear own cost.
That is the Order and Judgment.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read while in draft, the lead judgment just delivered by my learned brother, Justice Saidu Tanko Husaini, JCA. I agree with his analysis of the issues raised in this appeal coupled with his reasoning and conclusion reached therein, to the effect that the appeal has merit and should be allowed. I also allow this appeal and endorse the consequential orders made in the said lead judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview the judgment just delivered by my learned brother SAIDU TANKO HUSAINI, J.C.A. I agree with the reasoning and conclusions therein. I abide by the orders therein.
Appearances
C. C. Ezwkwem (with Kate Eyiuche and I. C. Adagharara)For Appellant
AND
B. C. Uzuegbu (with Amaka Uzuegbu (Mrs.))For Respondent
