MR. LAWRENCE OZU & ANOR v. MR. SIMON ABIDI (2013)

MR. LAWRENCE OZU & ANOR v. MR. SIMON ABIDI

(2013)LCN/6613(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of December, 2013

CA/PH/184/2012

RATIO

WHETHER A NOTICE OF APPEAL FILED WITHOUT DUE PAYMENT OF FILING FEE IN FULL MAY RENDER THE APPEAL INCOMPETENT

Payment of filing fees gives validity to the process or notice of appeal: OGLI OKO MEMORIAL FARMS LTD & ANOR v. NACB LTD (2008) 12 NWLR [Pt.1098] 412 SC; MOYOSORE v. GOVERNOR, KWARA STATE (2012) 5 NWLR [pt.1292] 242 CA.
We have held in a number of cases including ENGR. IBEABUCHI v. IKPOKPO (CA/PH/406/2009 of 16th January, 2013); FIDELIS MGBENWA & ORS. v. KINGSLEY NNAGU (CA/PH/515/2009 of 22nd January, 2013) relying on ONWUGBUFOR v. OKOYE (1996) 1 NWLR [pt.424] 252 SC; ABIA TRANSCORP. v. QUORUM CONSORTIUM LTD (2009) 9 NWLR [Pt.1145] 1 SC etc; that payment of filing fee is a condition precedent for bringing an appeal and that a notice of appeal filed without payment of filing fee in full at the close of the period stipulated for bringing the appeal renders the appeal incompetent.

JUSTICES

M. L. TSAMIYA Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

1. MR. LAWRENCE OZU
(SUBSTITUTED BY MR. AYIBANOAH LAWRENCE OZU)
2. MR. SAMUEL OKECHUKWU AGONSI Appellant(s)

AND

MR. SIMON ABIDI Respondent(s)

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): The Respondent as the claimant in the suit no PHC/428/1992, sought the following reliefs at the Rivers state High Court:
1. A declaration that by virtue of a sale agreement entered into between the claimant and the Rivers state Housing and property Development Authority dated 09/06/1992 and registered as No. 77 at page 77 in volume 154 of the Lands Registry Port Harcourt the claimant is the person entitled to the statutory right of occupancy in and over all that piece of land lying in and being a portion of the claimants larger piece or parcel of land known as and municipally referred to as No.39 Lumumba street Mile 2 Diobu, Port Harcourt within the jurisdiction of this Court.

2. N5,000,000.00 (Five Million Naira) being special and general damages for trespass in that on or about the 20th day of February 1992 the defendants in continuing act of trespass wrongly and unlawfully broke and entered upon the said piece or parcel of land which has been and is still in the peaceable possession of the claimant, damaged survey pillars and fencing blocks therein belonging to the claimant without the consent or authority of the claimant.

3. He claimed by his third arm of claim an order of perpetual injunction restraining the defendants by themselves or servants, agents and privies from interfering with the claimants title rights and interest in and over the said land in dispute.
Upon considering the pleadings and evidence of the parties, and the final addresses in the matter the court below (coram: D.W. Okocha, J) granted the following reliefs at pages 352 – 353 of the Records of Appeal
1. Relief 1 succeeds.
2. The claim for special damages succeeds as claimed. I award N100,000.00 as general damages.
3. Relief 3 is granted as prayed for an order of perpetual injunction.
4. I award N20,000.00 as costs for this suit against the defendants jointly and severally.

In coming to the conclusion allowing the claims of the Claimant the learned trial Judge made the following findings inter alia at pages 351 – 352 of the Records:
“The claimant presented in a logical order the root of his title to the land in dispute how he derived title from Rivers State Housing and Property Development Authority who in turn had acquired in turn had acquired the property known as No. 39 Lumumba street as an abandoned property and the Rivers State Government paid compensation to the original owner Mr. Walter Okonkwo.
The claimant applied and was offered the property and by a sales agreement Exhibit ‘C’ which on completion of purchase price ownership was transferred to him. Exhibit ‘J’ evidenced this. Exhibit ‘C’ described the land in question and contained a survey plan showing the boundaries and the co-ordinates of the said land.
The Defence did not rebut this fact by credible evidence that the property was not an abandoned property acquired by Rivers State Government and said to the claimant through the Housing and Property Development Authority an agency of the Rivers state Government.
The claimant through his witnesses CW.2 and CW.3 was able to establish by credible evidence that there is no property known as No.41B Lumumba Street Mile 2 Diobu Port Harcourt rather the said 41B Lumumba Street is one and the same as No.39 Lumumba which the claimant acquired from the Rivers state Housing and Property Development Authority.
The claimant has also through evidence and Exhibits ‘F’, ‘G’, ‘H’, ‘J’, ‘K’ and ‘L’ established that he was in physical possession of the property in dispute before the defendant started trespassing on the property in dispute. The claimant also was able to establish that the property where he currently resides is so connected to undeveloped land in dispute and it is the same and part of the property known as No.39 Lumumba Street.
That the land is so connected in such a way that whoever owns No.39 Lumumba Street must also be the owner of the land in dispute CW.2 and CW.3 led credence to this piece of evidence when they described the land as half of the main plot. The claimant also led evidence that the defendants trespassed on the land and destroyed his properties and fixtures thereon.
On their part the defendants failed to establish the traditional history upon which they are relying upon to prove title. The Defence traced their title from Lawrence Ozu to Wobidike Iwezor who inherited the land which is family land and nothing more.
The Supreme Court has held that it is not sufficient for a party who relies for proof of title to land merely plead that he and before him his predecessors in title had owned and passed the land. He must plead and prove who founded the land, how the land was founded and the particulars of the intervening owners through whom he claims. The defendant failed to plead the root of his title and the names and history or his ancestors and did not also read satisfactory evidence in proof thereof.
The evidence of 1st Defendant from whom 2nd Defendant derived title leaves much to be desired. From the evidence of DW.2, No.41 Lumumba Street does not have a common boundary with the land in dispute. Given the evidence before this Court that the land in dispute is part of No.39 Lumumba Street and that No.41 Lumumba is across the road (Euhue Lane) it is thus absurd to name the land in dispute No.41B Lumumba. The direct vendor of the 2nd Defendant was not called to give evidence neither was their surveyor called to establish the correct description and location of the land in dispute.”

Aggrieved by the decision of the court below the appellants, as defendants, filed a notice of appeal on 15th March, 2012. The notice of appeal is at pages 356 – 359 of the Record. At page 359 thereof it is endorsed thereon that the appellants paid N2,000.00 as filing fee for the notice of appeal. The 90 days, or 3 months, prescribed by Section 24 of the Court of Appeal Act for bringing the appeal against the judgment delivered on 7th March, 2012 would have elapsed on or about the 5th June, 2012. As at that date, and up till date, the appellants paid only N2,000.00 for bringing the appeal.
Order 12 Rule 1, and the Third Schedule to, the Court of Appeal Rules, 2011 make it mandatory and a condition precedent that every appellant shall pay N5,000.00 for filing notice of appeal in order for the appeal to deemed to have been brought. Therefore, if at the close of the period for bringing the appear, the fee for filing the notice of appeal remains unpaid or not paid in full then the appeal will not be deemed to have been brought on the invalid notice of appeal.
The notice of appeal is the originating process that gives this court jurisdiction on the appeal. As the Supreme Court held in MADUKOLU v. NKEMDILIM (1962) ALL NLR 357 the court is competent to entertain a matter, in this case the appeal, when, among other things, the matter or appeal comes before it initiated by due process of law and upon fulfillment of all conditions precedent.

An incompetent process, including notice of appeal, is liable to be struck out on the authority of Order 6 Rule 6 of Court of Appeal Rules, 2011. See TEXACO PANANA INC. v. SPDC NIG LTD (2002) ALL FWLR [Pt.96] 579. The point needs not be belaboured that Rules of court made to regulate practice and procedure in law courts are not made for fun: they are meant to be compiled with: EKPAN v. UYO (1986) 3 NWLR [pt.26] 63 at 76.
The notice of appeal at pages 356 – 359 of the Records, being incompetent, on account of inadequate filing fees, is hereby struck out.

I shall briefly comment on the merits of the appeal since this is an intermediate court. I had earlier reproduced the portions of the judgment at pages 350 – 351 of the Record. Notwithstanding the adverse finding at page 350 of the Record that the 1st Defendant himself in paragraph 6 of his amended statement of Defence admitted that the claimant bought No. 39 Lumumba Street from the Housing Authority and it is elementary law that facts admitted need no proof and further that “Exhibit ‘C’ makes it clear that the property which the claimant bought and which the 1st Defendant admitted includes the property in dispute” no ground of appeal specifically attacks these findings.

The effect of a party failing to appeal an adverse decision or finding on a point is that he is deemed to have accepted it or not to complain about that finding. See LSBPC v. PURIFICATION TECH LTD (2012) 52.1 NSCQR 274 309; WILLIAMS v. SANUSI (1961) ALL NLR 334.
There is also evidence that the Rivers State Government paid compensation to the Iwezor Family when it acquired the area of land comprising the portion covered by Exhibit ‘C’. That should adequately answer the appellant’s argument under the principle: nemo quod dat non habet. The Rivers state Government by dint of Exhibit .Q, had enough interest in the disputed portion of land to pass to the claimant/respondent vide Exhibit ‘C’.

The appellants made so much fuss of the trial court failing to visit the locus in quo before delivering its final judgment. It has to be borne in mind that both sides pleaded and produced survey plans. Cw.2 and Cw.3 are all acclaimed principal Estate officer with the Rivers State Housing and Property Development Authority, and a private surveyor respectively. With their evidence, and other pieces of evidence a visit to locus in quo was completely unnecessary.
Upon reading the briefs of argument exchanged and Record of Appeal, including the judgment of the court below, I am of the firm view that the findings of fact are unassailable. The appellants are unable to convince me that the findings of fact by the trial court are perverse. As a rule, an appeal court will be loathe to interfere with findings of fact made upon proper evaluation by the trial court, which had the opportunity of seeing and hearing the witnesses testify, unless such findings are perverse. See DIKE-OGU v. AMADI (2008) 12 NWLR [pt.1102] 650; AGBAKOBA v. INEC (2008) 18 NWLR [pt.1119] 489.
It is my firm view that there is no substance in this appeal on all the issues canvassed by the appellants. The appeal accordingly would have been dismissed in its entirety; and there is no basis to disturb the judgment delivered in the suit no PHC/428/1992 on 7th March, 2012. In any case, I had held that the appeal is incompetent. The appropriate order I should now make is an order striking the appeal out under Order 6 Rule 6 of the Court of Appeal Rules, 2011. The appeal is accordingly struck out with costs at N50,000.00 to the Respondent.

M. L. TSAMIYA, J.C.A.: I agree.

MODUPE FASANMI, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother EJEMBI EKO, J.C.A.
I agree entirely with the reasoning and the conclusion arrived at. The notice of appeal is incompetent for not paying the appropriate filing fees. The appeal is hereby struck out accordingly. I abide with the consequential orders contained therein.

Appearances

Dontimi Ayabowei Esq. with Chijioke Nyeke, Esq.For Appellant

AND

C. C. Dike Esq.For Respondent