MR. JULIUS OBIDINNU v. MR. AKAN AKPAN UMOH (2016)

MR. JULIUS OBIDINNU v. MR. AKAN AKPAN UMOH

(2016)LCN/8092(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of January, 2016

CA/C/99/2013

RATIO

PRACTICE AND PROCEDURE: AWARD OF RELIEF; WHETHER THE COURT OUGHT TO GRANT TO A PARTY RELIEFS THEY HAVE NOT SOUGHT FOR

The party to whom the obligation was owed ought to have sought its compliance without prompting or assistance. It is now quite pedestrian that a Court ought not to play the role of Father Christmas by awarding or granting to parties reliefs they have not specifically sought for;Odofin v Agu (1992) LPELR-2225 (SC); AG, Abia State v AG, Federation (2006) 7 SC (PT 1) 51; Stowe v Benstowe (2012) LPELR-7838 (SC). per. ONYEKACHI AJA OTISI, J.C.A.

TORT: TORT OF TRESPASS: WHETHER A CLAIM IN TRESPASS TRESPASS IS BASED ENTIRELY ON EXCLUSIVE POSSESSION OF LAND, NOT NECESSARILY ON OWNERSHIP OF THE LAND

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

MR. JULIUS OBIDINNU Appellant(s)

AND

MR. AKAN AKPAN UMOH Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Cross River State, Calabar Division Coram Hon Justice Ikpi Okoi Itam, J., delivered on November 18, 2011, in which the learned Judge sitting in appellate jurisdiction, affirmed the decision of the Chief Magistrate’s Court, Calabar per His Worship, E. N. Okokon, Esq., which was delivered on September 22, 2010.

The facts leading to this appeal as presented by the Appellant are as follows: The Appellant is a tenant of the Respondent at the property known and addressed as No 82C, Goldie Street, Calabar. Although the said property was in 2000, uncompleted and uninhabitable, it attracted the interest of the Appellant, who approached the Respondent for permission to complete the property and, reside therein with his family. The Appellant alleged that the parties initially agreed that the Appellant should advance the Respondent the sum of N144,000.00 for the completion of the property, to be commuted into three years rent of N48,000.00 per annum. The Appellant paid this sum but it was not utilized by the Respondent as expected for the

completion of the structure. The Appellant averred that upon the request of the Respondent, he advanced a further sum of N240,000.00 to the Respondent for the same purpose. And this time it was agreed that the money shall be commuted to further rent at N60,000.00 per annum for four years. But, the Respondent diverted the funds into another project and did not complete the property. Sensing that he might lose his investments the way and manner the Respondent was going, the Appellant decided to personally undertake the completion of the house and forward the bill to the Respondent, which decision was accepted by the Respondent. And the Appellant proceeded to complete the property for which he presented a bill of N297,390.00. This amount was also converted into five years rent at the same N60,000.00 per annum in 2002. On June 5, 2002 the Appellant took possession of the premises.

Upon the computation of all the payments so far made, the Appellant had made a gross payment of N681,390.00, which he alleged was translated to rent for twelve years, beginning from 2002 to 2014. However, on February 12, 2007, Effiom Ironbar & Associates, wrote on behalf of

the Respondent to notify the Appellant that his tenancy had expired. This claim was not pursued when Mr. Ironbar was approached by the Appellant with the receipts of payments. On December 15, 2008 the Respondent went into the premises to harass the Appellant to vacate, contending that the tenancy had expired. When the Appellant insisted on the subsistence of the tenancy, the Respondent resorted to various means to ensure the Appellant vacated the premises. The Respondent, through the Magistrate Court, had a quit notice served on the Appellant, demanding that he deliver up possession of the property by September 30, 2009. The Appellant then instituted an action at the Chief Magistrate Court, Calabar presided over by E. N. Okokon, Esq. to determine the tenure of his tenancy and for an injunction restraining the Respondent and his agents from further harassment, and for general damages. While testifying, the Respondent incorporated a counterclaim for
1. Possession of the property;
2. Arrears of one year rent at N100, 000.00 per annum;
and;
3. Homage of N80, 000.00 at N10, 000.00 per annum for the eight years the Appellant has stayed in the

property.

In delivering his judgment on September 22, 2010, the learned trial Chief Magistrate held, inter alia, that ‘the tenancy between the parties is for 9 years only from 1/3/2002 – 28/2/2011’; page 68 of the Record of Appeal. The learned trial Magistrate then made the following orders:
1. That the Plaintiff should pay ‘to the Defendant the balance of N2,610.00 to balance up the sum of N540,000.00, covering rent for 9 years above stated’ (see page 36, lines 26 – 28 of the records of appeal); and
2. That the Plaintiff should pay ‘to the Defendant arrears of yearly N10, 000.00 from 2007 to 2010 amounting to N40, 000.00’ (see page 36, lines 29 -30 of the records of appeal).

?Dissatisfied with this decision, the Appellant appealed to the High Court sitting in Calabar and presided over by Hon. Justice Ikpi Okoi Itam. The learned Judge in a considered judgment delivered on November 18, 2011 upheld the decision of the learned trial Chief Magistrate and dismissed the appeal. Further aggrieved by the decision of the learned Judge, the Appellant invoked the appellate jurisdiction of this Court by Notice of Appeal filed on December 20, 2011. An

Amended Notice and Grounds of Appeal was filed on 29/11/20l3 and deemed on 24/3/2014 upon five grounds of appeal.

The parties exchanged Briefs of Argument, which were respectively adopted on 4/11/20l5 by M. I. Emori, Esq., for the Appellant; and by C. Anujulu, Esq., of Counsel for the Respondent. Out of the five grounds of appeal, learned Counsel for the Appellant, distilled four issues for determination, as follows:
1. Whether the tenancy between the Appellant and the Respondent cannot be said to be for a consecutive period of twelve years, starting from 15th June, 2002 and ending on 14th June, 2014. (Distilled from Grounds One and Two).
2. Whether the appellate High Court Judge was right when it held that the learned trial Magistrate could award to the Respondent a relief, which he did not claim and was not even supported by all the evidence adduced throughout the trial. (Distilled from Ground Three).
3. Whether the Court below was right when it awarded cost of N5,000.00 (five thousand Naira) only in favour of the Respondent for the action in the Magistrate Court when the Respondent had no cross-appeal against the no – cost award of

the learned trial Magistrate. (Distilled from Ground Four filed as an additional ground of appeal by leave of Court).
4. Whether the various acts of the Respondent either by himself or his agents of bumping into the premises to harass the Appellant and his family cannot be said to constitute trespass and if this Honourable Court so finds for the Appellant, whether it will not be proper to restrain the Respondent either by himself or his agents from further trespass and to award the appellant damages to assuage the inconveniences. (Distilled from Ground Five filed as an additional ground of appeal by leave of court).

For the Respondent, the sole issue for determination was formulated as follows:
Whether the trial Court properly evaluated the evidence adduced in this Suit, and upheld by the Court below, before arriving at its conclusion.

Having regard to the Briefs of the parties and the Record of Appeal, I am of the considered view that the issues formulated for determination by the Appellant comprehensively address the issues arising for determination in this appeal. I therefore adopt the said issues.

?The parties executed no formal

tenancy agreement. The Appellant had testified before the trial Chief Magistrate that the parties had agreed the rent should be N48,000.00 for which he paid N144,000.00 for three years. He was issued with a receipt, which said it was for three years rents. He said he also paid a further N240,000.00, which was translated into four years rent at N60,000.00, (Exhibit A). He said his rent continued from 3 years to 4 years to 5 years which sums up to 12 years, which would end in 2014, since he moved into the property in June 2002. The Appellant also testified that he expended an additional sum of N297,390.00 in fixing the house. Exhibit B was the receipt which he was issued with. On the alleged earlier payment of N144,000.00, the Appellant testified in chief that he had given Ironbar, Esq., who had written on behalf of the Respondent, all his relevant documents. He testified that:
“He asked me to tender all the docs(sic) in my possession concerning the building, he did this with a promise to study the case …When I got back he gave me my documents in an envelope and said that my rent had not yet expired and that he would get back to his client.”

?See

page 48 of the Record of Appeal.

The specific documents handed over to Mr Ironbar were not named. But the Appellant further testified that:
“I discovered when I received the Notice to Quit that the receipt of N144,000.00 is missing. I went back to that chambers and I discovered that there is no more business going on there. As a result, I have a photocopy of that document since the original was not seen.”

See pages 49 of the Record of Appeal. A photocopy of the said receipt was tendered as Exhibit F. The Respondent in evidence admitted that the Appellant had initially given him N144,000.00 toward completing the building and as representing three years rent. But regarding the authenticity of Exhibit F, he said:
“When he (plaintiff) saw people coming and willing to pay me N150,000 per year, the plaintiff the (sic) came and agreed to add additional N12,000 per year to make up N60,000 per year. The plaintiff gave me additional N96,000 being additional one-year rent and N36,000 for 3 years he earlier (sic) and so Exhibit F was torn and a fresh receipt in the sum of N240,000 was issued to the plaintiff. N144,000 plus N96,000 : N240,000.00…<br< p=””

</br<

The plaintiff gave me additional N297, 390 which I gave him a receipt being Exhibit B which was a total of N537,370.
With that sum of money the plaintiff was to stay for 7 years…
Where we had problem was where few remaining thing (sic) which would have taken about N60,000 to do, he (plaintiff) brought a bill of N297,000 and I disagreed with him on the ground that if I could use N240,000 to do all these things, the plaintiff cannot spend N297,000 on that small job. I decided to refund the N240,000 to him, he accepted to pay me N100,000 as additional rent per year and the N297,000 to cover additional 3 years, I now issued him with another receipt – calculating the old agreement of N60,000 per year for 4 years and N100,000 per year for 3 years, the total number of years was 7 years.”

See pages 52 – 53 of the Record of Appeal.

?Exhibit C is a letter written to the Respondent, through his Counsel, by learned Counsel to the Appellant. Both the Appellant and the Respondent, under cross examination (page 56 of the Record of Appeal) admitted the validity of the contents of Exhibit C. Under cross examination, the Respondent said as follows:<br< p=””

</br<

“Question: Look at Exhibit C, that is the letter plaintiff’s solicitor wrote to your Lawyer which has not been replied.
Answer: I am not aware
Question: You claim that it is the sum of N537,370.00 that the plaintiff(sic) Lawyer stated as expenditure on the premises and you adopt that sum.
Answer: Yes.
Question: So since some of the things you claim tallies with what the plaintiff’s Solicitor letter claims, this document can also be taken as yours.
Answer: Yes.”

The said Exhibit C, which was reproduced at pages 13 – 14 of the Record of Appeal, stated, inter alia, thus:
“It is the further instructions of our client that he committed the sum of N537,370.00 into the completion of the building and it was earlier agreed between him and your client that the rent per annum was N60,000.00 (Sixty thousand naira) only. That on calculating the number of years the N537,370.00 he spent would cover based on the agreed rent, they both arrived at nine years with N2,610.00 to be balanced by our client to give a round figure of N540,000.00.”

?Attached to Exhibit C was a copy of an unsigned tenancy agreement, which was attached for

execution. The commencement period of the tenancy was stated thereon to take effect from March 1, 2002 and terminate on February 28, 2011. By the said Agreement, the Appellant also agreed to give the Respondent a minimum of N10,000.00 in January of each year, commencing from 2007 as a token and gesture of loyalty to the Respondent until the determination of the tenancy. The Respondent had testified that this sum had not been paid to him at all by the Appellant.

?In my considered view, the learned trial Chief Magistrate rightly evaluated these pieces of evidence when he held at page 67 of the Record of Appeal thus:
?Defendant’s evidence tallies with Exhibit C in the sense that if we add the sum of N240,000 with additional sum of N297,390 expended by the plaintiff which is acknowledged by the Defendant in Exhibit ‘B’ shall give us the total sum of N537,390.00. In Exhibit C the plaintiff informed his counsel that he spent a total sum of N537,370.00 (sic) on the properly which he sought to be spread into rent for 9 years.
Therefore if the plaintiff had spent the following sums N144,000; N240,000 and N297,390; we would have the total sum of

N681,390 and he would have so informed his Lawyer when Exhibit C was written on 25/6/2002. This not being so, I believe the testimony of the Defendant that he actually tore receipt of N144,000 and issued Exhibit A in its place when additional N96,000 was paid. Therefore the evidence of the plaintiff in this regard is hereby rejected. The plaintiff from the evidence before me never paid a separate N240,000 in addition to N144,000.00.”

I cannot at all fault this finding and conclusion.

?The Respondent had testified that he gave the Appellant a copy of a tenancy agreement to sign but that the Appellant failed to sign it.
However, as rightly noted by the learned trial Chief Magistrate, the Respondent did not tender any copy of the alleged tenancy. The learned trial Chief Magistrate proceeded to examine the dates on the receipts as issued by the Respondent to the Appellant, as well as the date on the unsigned tenancy agreement annexed to Exhibit C, and held as follows at page 67 of the Record of Appeal:
“Exhibit C is a letter from plaintiff?s counsel attaching a copy of a tenancy agreement which was to commence on the 1st day of March, 2002

though the said tenancy agreement was not signed.
?Having not seen date convincing enough, this Court shall rely on Exhibit C and take the 1st of March 2002 to be the commencement date.”

The learned trial Chief Magistrate also relied on Exhibit C, as corroborated by Exhibit A, to hold that the agreed rent was N60, 000.00 per annum. He then concluded at page 68 of the Record of Appeal thus:
“It is the opinion of this Court that the tenancy between the parties is for a period of 9 years only from 1/3/2002 – 28/2/2011 as the plaintiff himself cannot blow hot and cold considering Exhibit C and the annxed(sic) agreement which was not signed.?

Again, I see no reason to disturb these findings and conclusions. Exhibit C and its annexure were written on the instructions of the Appellant. As already reproduced above, under cross examination the Respondent admitted the correctness of the said Exhibit C. The veracity of the statements contained therein cannot now be denied by the parties. I therefore resolve Issue No 1 raised by the Appellant against him and in favour of the Respondent.

?Upon conclusion of his judgment, the learned trial Chief

Magistrate stated as follows:
?However the plaintiff must respect what he instructed his Lawyer to put in black and white by doing the following:-
(1) Paying to the Defendant the balance sum of N2,610.00 to balance up the sum of N540,000 covering rent for 9 years above stated.
(2) Paying to the Defendant arrears of yearly N10,000 from 2007 to 2010 amounting to N40, 000.
Total sum of N42,620.00 to be paid to the Defendant.”

The Appellant contended that this amounted to an award by the learned trial Chief Magistrate when the Respondent did not counterclaim. The appellate High Court was of the view that this did not amount to the award of a relief that was not claimed but was merely a judicial reminder to the Appellant to comply with the terms of the agreement as indicated by the document, Exhibit C, which he tendered.

?The Respondent did not formally counterclaim. If the Appellant had failed to comply with the terms of their unwritten agreement, it was for the Respondent to claim for its enforcement. There was certainly no need for a judicial reminder from the learned trial Chief Magistrate for the Appellant to comply with an

obligation. The party to whom the obligation was owed ought to have sought its compliance without prompting or assistance.
It is now quite pedestrian that a Court ought not to play the role of Father Christmas by awarding or granting to parties reliefs they have not specifically sought for;Odofin v Agu (1992) LPELR-2225 (SC); AG, Abia State v AG, Federation (2006) 7 SC (PT 1) 51; Stowe v Benstowe (2012) LPELR-7838 (SC). It is upon this well-worn ground that Issue No 2 is resolved in favour of the Appellant.

Issue No 3 would also be resolved in favour of the Appellant on this same well-worn ground. The learned trial Chief Magistrate had unambiguously ordered, at page 69 of the Record of Appeal as follows:
‘No cost is awarded.”

The appellate High Court now ordered as follows:
“In conclusion…this instant appeal is…firmly dismissed with N10,000 costs against the Appellant in this Court, and N5,000.00 in the Court below.”

I must observe that I find this order very strange. Suffice it to say that if the lower trial Court did not see the need to award costs, and there was no cross-appeal against the failure to order costs, there was

no judicial reason for the appellate Court to now order costs in respect of proceedings in the Court below. Issue No 3 is resolved in favour of the Appellant.

It is trite law that a claim in trespass is based entirely on exclusive possession of land, not necessarily on ownership of the land; Iseru v Catholic Bishop, Warri Diocese (1997) LPELR-1543 (SC); Oyadare v Keji (2005) 1 SC (PT. 1) 19. The tenancy as found by the learned trial Judge was for a period of 9 years, commencing from March 1, 2002 and, to terminate on February 28, 2011. During this period, the Appellant as tenant in possession is entitled to maintain a claim in trespass against any stranger. In his testimony in chief at page 48 of the Record of Appeal, the Appellant said that:
?Between then (December, 2008) and May, 2009 I continued to play host to may(sic) strangers who come to my house with a lot of requests about how I am living in their brother’s house and I don’t want to pay rent. This is usually done in the view of the public.”

?He then claimed:
“…damages of N1 million for the embarrassment received from the Landlord (Defendant) his agents, family and

friends.”

The Appellant did not name any of these persons who had trespassed into his possession of the premises. No one was directly connected as acting as agent of the Respondent. I do not see how any responsibility can be laid at the foot of the Respondent upon such vague details.

The landlord of premises is not a stranger to the premises. Title to the premises rests in him. It is usual to have a tenant obliged to maintain the leased premises in good repair and for a landlord to, periodically and within lawful hours, check on the state of the said premises. The learned trial chief Magistrate rightly held at page 69 of the Record of Appeal thus:
“…the Defendant has the right to go into his premises during lawful hours of the day to inspect his property without any restraint…this Court can only restrain the Defendant if he enters the premises for any unlawful intention or act.”
Again, I cannot fault this conclusion. The landlord is in constructive possession of the premises. An action in trespass cannot therefore be maintained against him; Nwana v Federal Capital Development Authority (2004) 19 NSCQR 142, (2004) 13 NWLR (PT 889) 128;

Tanko v Kaduna North Local Government (2002) LPELR-12211(CA).
Issue No 4 is therefore resolved against the Appellant.

In all, this appeal succeeds in part. The decision of the learned trial Chief Magistrate that the tenancy of No 82C, Goldie Street, Calabar by the Appellant was from March 1, 2002 to terminate on February 28, 2011 at a rent of N60,000.00 is hereby affirmed. The tenancy of the Appellant therefore terminated on the said February 28, 2011. It is further ordered that the award of N42,620.00 in favour of the Respondent by the learned trial Chief Magistrate be and is hereby set aside. It is also ordered that the award of N5,000.00 costs for the lower Court against the Appellant by the appellate High Court be and is hereby set aside.
Parties shall bear their costs.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I have read before now the draft of the Judgment just delivered by my Learned brother Onyekachi Aja Otisi, JCA.

?Having treated all the issues meritoriously and arrived at the conclusion in allowing the appeal in part, I also adopt same as mine in allowing the appeal in part.

abide by the Orders as to cost.

Appearances

M.N.I. Emori, Esq.For Appellant

AND

C.A. Anujulu, Esq.For Respondent