MRS. BETTY ALARIBE & ANOR v. MRS. LAWAL & ORS
(2019)LCN/12710(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2019
CA/J/404/2017
RATIO
COURT AND PROCEDURE: WHERE A POINT OF LAW IS RAISED
“A party wishing to raise such point of law could do so by a motion without first filing pleadings. Nigeria Deposit Insurance Corporation Vs Central Bank of Nigeria (2002) 7 NWLR (Pt 766) 272, Nasir Vs Civil Service Commission of Kano State (2010) 6 NWLR (Pt 1190) 253. Secondly, the Courts interpreted the provision of Order 24 Rule 4 as creating an exception and that it allowed a party seeking to dismiss a suit on the ground that it disclosed no cause of action to a file a motion to canvass the point before the filing of a statement of defence. Onibudo & Ors Vs Akibu & Ors (1982) All NLR 207, Henry Stephens Engineering Co Ltd Vs S. A. Yakubu (Nig) Ltd (2003) 10 NWLR (Pt 829) 505, Kwajafah Vs United Nigerian iles Plc (2009) LPELR 4444(CA), Rockshell International Ltd Vs Best Quality Services Ltd (2009) 12 NWLR (Pt 1156) 640.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
FUNDAMENTAL RIGHT: FAIR HEARING
“The concept of fair hearing adumbrated under this issue for determination is the same as fair trial and it entails so much in the judicial process. As a matter of law, it is the pivot upon which the entire judicial process or the administration of justice revolves. It is the keystone of the trial process as no trial can be sustained unless it accords with the principles of fair hearing, which also involves the twin common law rules of natural justice rules, audi alteram partem and nemo judex in causa sua. Emerah Vs Chiekwe (1996) 7 NWLR (Pt 462) 536, Okeke vs Nwokoye (1999) 13 NWLR (Pt 635) 495.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JURISDICTION: SUBSTANTIVE JURISDICTION AND PROCEDURAL JURISDICTION
“It is important to understand the fundamental difference between issues of substantive jurisdiction and matters of procedural jurisdiction. Procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. A plaintiff who has commenced an action which on the face of it is not incompetent is deemed to have invoked the presumed jurisdiction of the Court. A matter that impugns the presumed competence of the action should be raised by the opponent in his response to the action, otherwise he will be deemed to have waived them and be foreclosed from raising it again. Katsina Local Government Authority Vs Makudawa (1971) 7 NSCC 119, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt. 1155) 387, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488. In Akahall & Sons Ltd Vs NDIC (2017) 7 NWLR (Pt 1564) 194” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
1. MRS. BETTY ALARIBE
(Trading under the name and style of Victory International School, Kufang)
2. VICTORY INTERNATIONAL CHRISTIAN ACADEMY LTD Appellant(s)
AND
1. MRS. LAWAL
2. MRS. EBUNOLUWA ADEGBENRO
(Personal representatives and beneficiaries of the Estate of Late Mr. S. T. Lawal)
3. MR. ABDUL (Trading under the name and style of Snajj & Partners) Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.(Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Plateau State delivered by Honorable Justice I. I. Kunda in Suit No PLD/J95/2016 on the 14th of July, 2016.
The Respondents were the plaintiffs in the lower Court and their claims against the Appellants were for (i) vacant possession of all that premises along with its appurtenances situate at Plot 6843, Kufang, off Miango Road, Jos, Plateau State; (ii) arrears of rents in the sum of N1.2 Million being unpaid rents from 6th of August, 2015 till possession is given up; (iii) mesne profit at the rate of N33,333.33 from the 6th of August, 2015 till possession is given up; (iv) an order for the restoration of the premises to its original state at the expense of the Appellants; (v) general damages of N3 Million.
The case of the Respondents on the pleadings before the lower Court was that the property at Plot 6843, Kufang, off Miango Road, Jos, otherwise called Victory International Christian Academy Ltd Jos, as presently occupied by the Appellants, is one of the properties belonging to late S. T. Lawal, the late husband of the first Respondent and late father of the second Respondent. It was their case that the Appellants are yearly tenants in the said property with a tenancy that commences on the 7th of August every year at an annual rent of N400,000.00 and they paid their rents to the third Respondent, the agent of late S. T. Lawal, and that they last paid rents for the 2012/2013 tenancy year and that the present rental value of the property was N1 Million. It was their case that they instructed their Solicitors to issue the requisite notices to quit to the Appellants on the ground that they desired personal use of the property and that the Appellants were duly served with a six months? notice to quit and a seven days notice of owner?s intention to recover possession of the property. It was their case that despite the service of the notices, the Appellants failed and neglected to vacate the premises and that the Appellants had altered the structures on the premises and erected unapproved additional structures thereon without their written or implied consent and approval.
The records of appeal show that the originating processes were served on the Appellants, and that they and their Counsel did not file a memorandum of appearance, however, when the matter came up before the lower Court on the 27th of April, 2016, a Counsel, J. J. Gilbert appeared for the Appellants on protest. Counsel to the Respondents objected to the appearance of Counsel to the Appellants on the ground of their failure to file a memorandum of appearance as prescribed by the Rules of Court. The records show that the lower Court ruled on the objection of the Respondents’ Counsel thus:
‘I am in total agreement with the submission of plaintiffs’ counsel that learned J. J. Gilbert is not properly before this Court having not entered an appearance in this case. However, I allowed counsel to announce appearance in the matter so that he will know the behavior of his client towards the bailiff of this Court as deposed to by the bailiff. Counsel who has a duty to this Court as a minister in the temple of justice shall endeavor to explain the importance of Court processes and respect to Court officials to his client. Much as the defendant is yet to enter appearance in this case, the appearance of J. J. Gilbert Esq. on behalf of the defendant is a confirmation of the fact that the defendant is well aware of this case and the case can proceed on the next date if they take no further steps in their defence in this case. The case is therefore adjourned to 31/5/2016 for hearing.’
The records show that when the matter came up on the 31st of May, 2016, the Appellants were absent from Court. J. J. Gilbert Esq., sought to appear for the Appellants and again Counsel to the Respondents objected to the appearance on the ground that they were yet to file a memorandum of appearance as required by the Rules of Court. The lower Court ruled on the objection and it stated thus:
‘I have looked at the Court’s file and indeed, there is no entry of appearance on behalf of the defendant in this case. This was the same position on the last date. I therefore uphold the submission of learned plaintiffs’ counsel that counsel cannot announce an appearance on behalf of the defendant in this case in the absence of a formal entry of memorandum of appearance in this case as required by the rules of Court. Plaintiffs may therefore proceed.’
The matter proceeded to trial as earlier fixed by the lower Court and the Respondents called one witness in proof of their case and they tendered exhibits. At the conclusion of the evidence in chief of the witness, there was no cross-examination and whereupon Counsel to the Respondents closed his case and informed the Court that he was dispensing with his right to file written address and he urged the lower Court to fix the matter for judgment. The lower Court granted the request and it fixed the matter for judgment on the 23rd of June, 2016.
The records of Court shows that on the 31st of May, 2016, the Appellants filed a motion on notice dated the 26th of May, 2016 praying for extension of time to file a memorandum of appearance. The motion was supported by an affidavit and a written address of arguments thereon. The Appellants also filed a notice of preliminary objection to the suit dated the 26th of May, 2016 on the 31st of May 2016 and it was similarly supported by an affidavit and a written address. The records show that the Respondents responded to the Appellants? motion for extension of time to file memorandum of appearance by filing a counter affidavit on the 3rd of June, 2016 and it was supported by a written address.
When the matter came up on the 23rd of June, 2016, the Appellants were absent from Court, but were represented by Counsel, V. M. G. Pwul and I. B. Hirse. Counsel brought the matter of their pending applications to the notice of the Court and it was agreed that it was necessary to take the motion for extension to file memorandum of appearance first as the Appellants had to be properly before the Court for their preliminary objection to be considered. The lower Court took arguments on the motion and it adjourned ruling to the 14th of July, 2016. The records show that the lower Court delivered a Ruling on the 14th of July, 2016 dismissing the motion of the Appellants and it proceed to consider the case of the Respondents and it entered judgment granting their claims.
The Appellants were dissatisfied with the Ruling and the Judgment delivered by the lower Court and they caused their Counsel to file a notice of appeal dated the 18th of July, 2016 and containing four grounds of appeal against it. Counsel to the Appellants subsequently amended the notice of appeal and they filed an amended notice of appeal dated the 5th of October, 2018 and containing eleven grounds of appeal on the 10th of October, 2018 and the amended notice of appeal was deemed properly filed and served by the Court on the 11th of October, 2018. In arguing the appeal, Counsel to the Appellants filed an amended brief of arguments dated the 8th of October, 2018 on the 10th of October, 2018 and the amended brief of arguments was deemed properly filed and served on the 11th of October, 2018. Counsel to the Respondents filed an amended brief of arguments dated the 30th of October, 2018 on the same date in response. Counsel to the Appellants filed a Reply brief of arguments dated the 13th of November, 2018 on the same date. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.
Counsel to the Appellants distilled seven issues for determination in the appeal and these are:
i. In view of the fact that the lower Court heard and determined the suit on the merit without determining the Appellants’ preliminary objection, whether the lower Court did not reach its decision in absence of jurisdiction and in breach of the Appellants’ right to fair hearing.
ii. In view of the fact that J. J. Gilbert, Esq., duly appeared for the Appellants before the lower Court on April, 27, 2016, amongst other dates, whether the lower Court was not wrong to have shut the Appellants out on the basis of failure to enter appearance.
iii. Whether the learned trial Judge was not wrong when he acted outside and contrary to his cause list on the 14th of July, 2016.
iv. Whether the lower Court did not fail to properly evaluate the affidavit evidence adduced by parties in arguing the motion of 31st May, 2016 for extension of time to file the Appellants’ memorandum of appearance, and whether, in view of such failure, its decision thereon was not erroneously reached and therefore liable to be set aside.
v. Whether the learned trial Judge’s decision of 14th July 2016 having failed to satisfy the laid down requirement of a good judgment is not a nullity and therefore liable to be set aside.
vi. Whether the lower Court was not wrong to have refused the Appellants’ application of 31st May, 2016 for extension of time to file the Appellants’ memorandum of appearance in spite of the fact that the Appellants supplied sufficient reasons or materials as legally required.
vii. Whether the award of general damages and mesne profit by the lower Court were not unlawful and therefore liable to be set aside.
Counsel to the Appellants argued the first and second issues for determination together and he defined the word ‘jurisdiction’ and its importance in a proceeding and stated that once a question is raised as to the competence of a Court to hear and determine a matter, it is of paramount importance that the Court satisfies itself that it has jurisdiction before embarking on the exercise of judicial power in a matter and he referred to the cases of Fawehinmi Vs Abacha (1996) 9 NWLR (Pt 475) 710 and Brittania . U (Nig) Ltd Vs Seplat Petroleum Dev. Co. Ltd (2016) 4 NWLR (Pt 1503) 541. Counsel stated that the Appellants filed an application to raise before lower Court the question of its jurisdiction to entertain the suit on the ground that the suit constituted an abuse of process, but that the lower Court ignored and failed to entertain the application despite the fact that its attention was pointed to the application. Counsel stated that the lower Court was in error in ignoring the application as it is settled that once an issue of jurisdiction is raised, a Court is obliged to resolve it one way or the other before proceeding to determine the matter on the merits and that failure to do so is fatal and renders the proceeding a nullity and he referred to the cases of James Vs INEC (2015) 12 NWLR (Pt 1474) 538, Diamond Bank Ltd Vs Ugochukwu (2016) 9 NWLR (Pt 1517) 193 and Obiuweubi Vs Central Bank of Nigeria (2011) 7 NWLR (Pt. 1247) 465.
Counsel stated further that, it is trite law that a Court has a duty to dispense with all applications before judgment is delivered and that it is irrelevant that the application is unmeritorious, it must be dispensed with once its attention is drawn to it and he referred to the cases of Emeka Vs Okadigbo (2012) 12 NWLR (Pt 1331) 55 and Duru Vs FRN (2013) 6 NWLR (Pt 1351) 441. Counsel stated that the failure of the lower Court to hear and determine the preliminary objection before delivering its judgment is a denial of the Appellants’ right to fair hearing, and that a hearing can only be fair when all parties are given an opportunity to be heard and he referred to the provision of Section 36 of the 1999 Constitution and the case of Ogundoyin Vs Adeyemi (2001) 13 NWLR (Pt 730) 403. Counsel stated that the failure of the Appellants to file a memorandum of appearance as required by the Rules of Court was not sufficient reason for the lower Court to have refused to hear the application because an issue of jurisdiction cannot be defeated by the Rules of Court and he referred to the case of Adegbite Vs Amosu (2016) 15 NWLR (Pt 1536) 405.
Counsel stated that the lower Court was also in error when it failed to take the physical appearance of Counsel to the Appellants in Court as amounting to entry of appearance and a show of an intention by the Appellants to defend the action and he referred to the case of Ebe Vs Commissioner of Police (2008) 4 NWLR (Pt 1076) 189. Counsel stated that a party may enter appearance to an action by filing a memorandum of appearance or by physically attending the Court or by doing any act from which the intention to appear and submit to the Court’s jurisdiction is implied.
Counsel stated that the proceeding in the lower Court were conducted in breach of the Appellants’ right to fair hearing and that it is thus a nullity and he referred to the cases of Dangote Gen. . Prod. Ltd Vs Hascon Ass. (Nig) Ltd (2013) 16 NWLR (Pt 1379) 60 and Credit Alliance Fin. Ser. Ltd Vs Mallah (1998) 10 NWLR (Pt 569) 341. Counsel urged the Court to resolve the first and second issues for determination in favour of the Appellants.
On the third issue for determination, Counsel waxed lyrical about what the cause list of a Court is and stated that its aim is to give notice in advance to parties of the business of the day in respect of a case to enable them and their Counsel make adequate preparation and that a Court has to duty to obey and confine itself to its cause list and cannot do anything in Court outside the cause list and he referred to the cases of Pam Vs Mohammed (2008) 16 NWLR (Pt 1112) 1, Isichei Vs Allagoa (1996) 3 NWLR (Pt 434) 52 and Akinrimisi Vs MAERKS (2013) 10 NWLR (Pt 1361) 73. Counsel stated that in the instant case, the Appellants’ motion for extension of time to file a memorandum of appearance was heard on the 23rd of June, 2016 and the matter was adjourned to the 14th of July, 2016 for Ruling, but that on the 14th of July, 2016, the lower Court did not only deliver its Ruling on the motion, it proceeded thereafter to deliver its judgment in the case. Counsel stated that the lower Court was in error in doing so and that everything the lower Court did after the Ruling was thus null and void and he urged the Court to resolve the third issue in favour of the Appellants.
Counsel argued the fourth and the sixth issues for determination together and stated that in exercising its discretion to refuse the application of the Appellants for extension of time to file a memorandum of appearance, the lower Court shut its eyes to the relevant, unchallenged and uncontroverted evidence of the Appellants in support of the application and it acted whimsically and capriciously and in total disregard for its duty to properly evaluate evidence before it in reaching a conclusion and he referred to the cases ofAdegoroye Vs Adegoroye (1996) 2 NWLR (Pt 433) 712, and Kwan Vs Sha (1994) 4 NWLR (Pt 338) 365. Counsel traversed through the depositions of the Appellants in the affidavit in support of the motion explaining the delay in filing the memorandum of appearance and the response of the Respondents thereto and stated that the Respondents did not join issues with or challenge the Appellants? depositions and that the depositions were thus deemed admitted and the lower Court ought to have acted on them as true and correct and he referred to the cases of Ajomale Vs Yaduat (No 2) (1991) 5 NWLR (Pt 191) 266 and Yar?Adua Vs Yandoma (2015) NWLR (Pt. 1448) 128.
Counsel stated that the lower Court did not treat the depositions of the parties in their respective affidavits on the application equally and it gave more credence to the depositions of the Respondents and thereby failed to do justice in refusing the application and thereby shutting out the Appellants from defending the action. Counsel stated that the lower Court also digressed from the matters in respect of which the parties joined issues on the application and took account of extraneous materials in its evaluation of the affidavit evidence of the parties on the application and which extraneous materials were not relevant to a just determination of the application.
Counsel urged the Court to resolve the fourth and sixth issues for determination in favour of the Appellants.
With regards to the fifth issue for determination, Counsel referred to the cases of Obiegue Vs A. G. Federation (2014) 5 NWLR (Pt 1399) 171 and Duru Vs Nwosu (1989) 4 NWLR (Pt 113) 24 in asserting what the qualities of a good judgment must have and stated that the judgment of the lower Court lacked all the essential attributes. Counsel stated that the lower Court merely reproduced the claims of the Respondents, summarized the evidence of the Respondents’ sole witness without evaluating same, and it proceeded to give its decision thereon and it did not identify and analyze the issues in controversy in the action and did not demonstrate a dispassionate consideration of the issues and that these rendered the judgment questionable and he referred to the cases of Ewulu Vs Nwankpu (1991) 8 NWLR (Pt 210) 487, Imah Vs Okogbe (1993) 9 NWLR (Pt 316) 156 and CCB (Nig) Plc Vs Okpala (1997) 8 NWLR (Pt 518) 673. Counsel stated that the failure of the lower Court to do the needful in the judgment occasioned a miscarriage of justice and he urged the Court to resolve the fifth issue for determination in favour of the Appellants.
In arguing the seventh issue for determination, Counsel stated that the grant of general damages is based on the discretion of the Court and which must be exercised judicially and judiciously and the award is not at large and must be based on reasons and must be deserved by the recipient and the Court must give adduce reasons for the grant and he referred to the cases of Onaga Vs Micho & Company (1961) NSCC 189 and NBCI Vs Dauphin (Nig) Ltd (2014) 16 NWLR (Pt 1432) 90. Counsel stated that, in the instant case, the lower Court awarded general damages in favor of the Respondents without adducing any reason and it was thus unlawful and liable to be set aside. Counsel stated further the lower Court awarded both specific and general damages contrary to the principle against the award of double compensation to the victim of one same injury and referred to the cases of British Airways Vs Atoyebi (2014) 13 NWLR (Pt 1424) 253, Emirates Airline Vs Ngonadi (No 2) (2014) 9 NWLR (Pt 1413) 506 and Shell Petroleum Development Company (Nig) Ltd Vs Tiebo VII (1996) 4 NWLR (Pt 445) 657.
Counsel stated that having awarded the Respondents arrears of rent and mesne profits, the lower Court had no business going further to award them general damages and that the award of general damages ought to be set aside.
Counsel noted that an appellate Court does ordinarily interfere with the award of damages by a lower Court and he referred to the case of ACME Builders Ltd Vs KSWB (1999) 2 NWLR (Pt 560) 288 where the Supreme Court itemized the situations in which an appellate Court can interfere with award of damages and stated that the circumstances of the award of mesne profits by the lower Court comes within the situations in which this Court can interfere as there was nothing on the pleadings and in the evidence of the Respondents to support the award. Counsel stated that a claim for mesne profits must be pleaded and clear evidence led thereon before it can be awarded and that apart from claiming the sum of N33,333.03k per month as mesne profits for 2013 to 2015, the Respondents did not plead or lead evidence to show how they arrived as the figure and the claim ought to fail and he referred to the cases of Dike Vs Aduba (2016) LPELR 41035(CA) and Ayinke Vs Lawal (1994) LPELR 680(SC). Counsel urged the Court to resolve the seventh issue for determination in favour of the Appellants.
Counsel concluded his arguments by praying the Court to find merits in the appeal and to allow same and set aside the judgment of the lower Court and order a retrial.
On his part, Counsel to the Respondents distilled four issues for determination in the appeal and these are:
i. Whether the learned trial Judge was in breach of the rule of fair hearing when he delivered both the Ruling and the judgment in the suit of the 14th of July, 2016.
ii. Whether the learned trial Judge erred in law when he held that the Appellants did not legally enter appearance in the suit and therefore did not grant the Appellants the opportunity to defend the suit or hear the Appellant? preliminary objection.
iii. Whether the learned trial Judge failed in evaluating the case properly before entering judgment in favour of the Respondents.
iv. Whether the awards of general damages and mesne profit separately by the learned trial Judge were wrongful and unlawful.
In arguing the first issue for determination, Counsel stated that where the issue of fair hearing is raised in a matter, the relevant question is whether the party entitled to be heard was given an opportunity to be heard and once it is shown that the party entitled to be heard was given such an opportunity and was aware of the proceedings but failed to take the necessary steps required by the rules of Court, he cannot complain of lack of fair hearing and he referred to the cases of Oyeyipo Vs Oyinloye (1987) 1 NWLR (Pt 50) 356, Darma Vs Oceanic Bank International (Nig) Ltd (2005) 4 NWLR (Pt 915) 391, Magna Maritime Services Ltd Vs Oteju (2005) 14 NWLR (Pt 945) 517 and Inakoju Vs Adeleke (2007) 4 NWLR (Pt 1025) 423. Counsel stated that the complaint of the Appellants that the lower Court went outside the cause list for the 14th of July, 2016 when he proceeded to deliver the judgment in the matter, after delivering the Ruling refusing their motion for extension of time to file memorandum of appearance was baseless because the cause list of the lower Court for the day was not compiled as part of the records of appeal to show that the lower Court indeed deviated from the cause list.
Counsel stated that what transpired was that the matter in the lower Court was fixed for judgment for the 23rd of June, 2016 when the application of the Appellants for extension to file memorandum of appearance, filed after the matter was fixed for judgment, was brought to its attention and the lower Court stepped down the judgment to hear the application and it adjourned the matter to the 14th of July, 2016 thereafter. Counsel stated that there was thus nothing wrong in the lower Court delivering the judgment after the Ruling dismissing the application of the Appellants as that was the next logical business of the Court in the suit and he referred to the case of Agbabiaka Vs First Bank of Nigeria Plc (2007) 6 NWLR (Pt 1029) 1. Counsel stated that the Appellants were served with the originating processes in the matter on the 16th of March, 2016 and they were obligated to enter appearance within eight days and that they chose not to do so and they still failed to do so after they were served with hearing notice telling them that the matter was fixed to come up in Court. Counsel stated that the Appellants rather sent a Counsel to Court on the 27th of April, 2016 when the matter came up and that the issue of Counsel appearing without filing of memorandum of appearance as required by Rules of Court came up and the lower Court adjourned the matter to the 31st of May, 2016 to enable Counsel to the Appellants file necessary processes if they desired to defend the suit.
Counsel stated that rather than file the required processes, Counsel to the Appellants attended Court to observe proceedings and the Respondents opened their case, called their sole witness, closed their case and the matter was adjourned to the 23rd of June, 2016 and that it was only after the Court proceedings that Counsel to the Appellants filed a motion on notice for extension of time to file memorandum of appearance dated 26th of May, 2016, a motion he could have filed before the 31st of May, 2016 and they said nothing about filing a statement of defence. Counsel stated that notwithstanding the above, the lower Court entertained the Appellants’ motion on the 23rd of June, 2016 and considered it on the merits and dismissed same in a Ruling delivered on the 14th of July, 2016 and proceeded thereafter to deliver the judgment earlier fixed for the 23rd of June, 2016.
Counsel stated that the Appellants had no intention of defending the action and their Counsel was only desirous of holding the lower Court to ransom and that no Court would allow such and he referred to the cases of Magit Vs University of Agric, Makurdi (2005) 19 NWLR (Pt 959) 211 and S & D Constructing Co Ltd Vs Ayoku (2011) 13 NWLR (Pt 1265) 487. Counsel stated that the lower Court did not violate the rules of fair hearing when it proceeded to deliver the judgment on the 14th of July, 2016 and he urged the Court to resolve the issue in favour of the Respondents.
Counsel argued issues two and three together and stated that by the provision of Order 13 Rule 1 of the Plateau State High Court Rules 1987 and the endorsement on the writ of summons contained in the Rules of Court, a defendant who is desirous of defending a suit filed against him is obligated to file a memorandum of appearance either personally or through his Legal Practitioner within eight days of service of the writ of summons on him, otherwise the suit may be treated as undefended. Counsel stated that this is a condition precedent for a defendant seeking to contest a suit and that any step taken by a defendant without a formal entry of appearance is contrary to law and that a defendant who fails to file a memorandum of appearance must accept the consequences and he referred to the cases of Inakoju Vs Adeleke supra, Ugbu Vs Orsal (2014) 11 NWLR (Pt 1417) 50, British-American Ins. Co. Ltd Vs Edema-Sillo (1993) 2 NWLR (Pt 277) 567 and Ita Vs Nyong (1994) 1 NWLR (Pt 318) 56. Counsel stated that by failing to enter appearance as required by law, the Appellants showed that they did not intend to contest the suit and that the lower Court was thus right to have entered judgment on the evidence of the Respondents.
Counsel stated that the submission of Counsel to the Appellants that the lower Court wrongly refused their application for extension of time to file memorandum of appearance was baseless and he thereafter traversed through the record of the proceedings before the lower Court from the date of service of the originating processes on the Appellants up to the 31st of May, 2016 when the Appellants filed the said application and also through the explanations for the delay given by the Appellants in the affidavit in support of the application and stated that it was obvious that the Appellants did not act in a manner deserving of the exercise of discretion in their favor by the lower Court and he referred to the cases of Chukwu Vs Onyia (1990) 2 NWLR (Pt 130) 80 and Registered Trustees of Assemblies of God, Nigeria Vs Tort (2016) 4 NWLR (Pt 1501) 101.
Counsel stated further that the complaint of the Appellants on the quality of the judgment of the lower Court was misconceived and this is because there is no one style of writing judgment and that what is important is that by whatever style adopted a judge arrives at the correct decision in a case and he referred to the case of Eyo Vs Inyang (2001) 8 NWLR (Pt. 715) 304. Counsel stated that the duty of a Court in evaluation of evidence is to look at the evidence adduced by both sides and weigh them on an imaginary scale before coming to a decision and that a defendant who did not challenge the evidence led by a plaintiff and did not lead any evidence in a matter, as in the instant case, cannot complain of improper evaluation of evidence and he referred to the cases of Olonade Vs Sowemimo (2014) 14 NWLR (Pt 1428) 472 and Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26. Counsel stated that the lower Court properly assessed the oral and documentary evidence led by the Respondents in proof of their claims in entering judgment for the Respondents and as such the judgment cannot be faulted and he referred to the cases of Babale Vs Eze (2011) NWLR (Pt 1257) 48 and Sterling Bank Plc Vs Falola (2015) NWLR (Pt 1453) 405.
On the complaint of the Appellants that the lower Court failed to hear their notice of preliminary objection before entering judgment, Counsel referred to the provisions of Order 24 of the Plateau State High Court Rules on abolition of demurrer and stated that the filing of the notice of preliminary objection without having first filed a statement of defence amounted to a demurrer and ran foul of the provisions of the Rules of Court. Counsel stated that the procedure adopted by the Appellants in filing the notice of preliminary objection was illegal and that the lower Court was only obliged to act on materials legally placed before it and was thus correct for refusing to grant the notice of preliminary objection any hearing and he referred to the cases of Inakoju Vs Adeleke supra and Orhunhur Vs Ivever (2015) 1 NWLR (Pt 1439) 192. Counsel stated that notice of preliminary objection was incompetent ab initio and the lower Court had no jurisdiction to entertain it and failure to entertain cannot thus affect the judgment of the lower Court and he referred to the cases of Uwazuruike Vs A-G Federation (2007) 8 NWLR (Pt 1035) 1, Ugbu Vs Orsal supra and Olowokere Vs African Newspapers (1993) 5 NWLR (Pt 295) 583. Counsel urged the Court to resolve the second and third issues for determination in favor of the Respondents.
In arguing the fourth issue for determination, Counsel referred to the cases of Osukpong Vs Eduoika (2016) 1 NWLR (Pt 1493) 339, Amos Vs Idoko (2017) 1 NWLR (Pt 1547) 486 and Osuji Vs Isiocha (1989) 3 NWLR (Pt 111) 623 in defining what constitutes general damages and to the cases of Debs Vs Cenico (Nig) Ltd (1986) 3 NWLR (Pt 32) 846 and Faloughi Vs First Impression Cleaners Ltd (2014) 7 NWLR (Pt 1406) 335 on what amounts to mesne profits. Counsel also reproduced portions of the statement of claim and itemized the claims of the Respondents before the lower Court and stated that the Respondents claimed general damages and mesne profits under the different heads of claim and that they were predicated on different averments of the pleadings. Counsel stated that the Respondents? claim for general damages was predicated on the fact the Appellants erected unapproved structures on the premises without their permission and that it would cost them a fortune to remove the said structures and restore the property to as it were, while mesne profit is in the nature of special damages and is the amount due to a landlord as compensation from the tenant for holding over a property after the determination of the tenancy and that the two claims were different and that the award of both of them cannot amount double compensation. Counsel stated that the Respondents led clear evidence in support of the different heads of claim and that their evidence was not challenged or contradicted and was not met by contrary evidence by the Appellants and that the lower Court cannot be faulted in granting both heads of claims. Counsel urged the Court to resolve the fourth issue for determination in favour of the Respondents.
Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same accordingly and to affirm the judgment of the lower Court.
On the 14th of July, 2016, the lower Court delivered two decisions, a Ruling on the motion on notice filed by the Appellants on the 31st of May, 2016 seeking for extension of time to file a memorandum of appearance and a judgment on the substantive suit. This appeal is against both decisions as shown on the amended notice and grounds of appeal dated the 5th of October, 2018, filed on the 10th of October, 2018 and deemed properly filed and served by this Court on the 11th of October, 2018. Now, it is not in contest that the Ruling delivered on the motion on notice of the Appellants for extension of time was an interlocutory decision. Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) contain provisions dealing with the right of appeal from the decisions of the High Court to this Court.
Section 241 (1) states, in part, that an appeal shall be as of right from the final decision of the High Court or the Federal High Court and where the appeal is on grounds of law alone while Section 242 (1) states that appeal from the decisions of the High Court or of the Federal High Court to the Court of Appeal in all other instances, apart from those provided for in Section 241 (1), shall be with the leave of Court. These provisions have been severally interpreted by the Courts to mean that leave to appeal is required where the appeal is against an interlocutory decision of the High Court and the grounds of appeal are either on mixed law and facts or on facts alone, and that no leave to appeal is required where the appeal is against an interlocutory decision of the High Court and it is on grounds of law alone or where the appeal is against a final decision of the High Court irrespective of whether the grounds of appeal are on mixed law and facts or facts alone ? Globestar Engineering Company (Nig) Ltd Vs Malle Holdings Ltd (1999) 10 NWLR (Pt 622) 271, Ahamefule Vs Imperial Medical Center (2005) 5 NWLR (Pt 917) 51, NIC Vs Acen Insurance Co Ltd (2007) 6 NWLR (Pt 1031) 589, Kalagbor Vs General Oil Ltd (2008) All FWLR (Pt 418) 303.
The records of appeal show that Appellants did not obtain the leave of either the lower Court or of this Court to appeal against the Ruling of the lower Court on their motion for extension of time.
The question that arises is whether the grounds of appeal directed against the Ruling of the lower Court in the amended notice of appeal were grounds of law alone. In answering this question, what is essential in determining whether a ground of appeal involves questions of law or fact or mixed law and fact, is not its cognomen or its designation. Rather it is the essence of the ground of appeal and the reality of the complaint embedded in the designation that determines what a particular ground involves. Thus, it is not what the appellant choose to designate a ground of appeal that controls, rather it is the nature of the ground of appeal read together with the particulars that characterizes the ground of appeal as one of pure law or mixed law and fact or facts alone Ogbechie Vs Onochie (1986) 2 NWLR (Pt 23) 484 and Ojukwu Vs Kaine (2000) 15 NWLR (Pt 691) 516. Where a ground of appeal reveals a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, it involves a question of law alone. Where the ground of appeal and the particulars of error reveal that the appellant is questioning the evaluation of the facts by the lower Court before the application of the law, then it is a ground of mixed law and fact. And where the ground of appeal and the particulars of error complain of only an evaluation of facts by the lower Court, it is a ground of fact alone. Abidoye Vs Alawode (2001) 6 NWLR (Pt 709) 403 and Udoh Trading Co. Ltd Vs Abere (2001) 11 NWLR (Pt 723) 114.
A read through the amended notice of appeal of the Appellants show that Grounds Six and Seven are directed at the Ruling of the lower Court and that the two grounds and their particulars show that they complained against the evaluation of the affidavit evidence of the parties on the application by the lower Court and the application of the law to the facts. They are grounds of mixed law and facts. This is a confirmation of the position of the law, by a long line of decided cases, that any ground of appeal against an exercise of discretion can only either be a ground of appeal on question of facts alone or on question of mixed law and facts; it cannot be a ground of appeal on question of law alone and the party seeking to appeal on such a ground of appeal requires the leave of either the lower Court or of the appellate Court for the appeal to be competent Metal Construction (WA) Ltd Vs Migliore (1990) 1 NWLR (Pt 126) 299, Comex Ltd Vs Nigeria Arab Bank Ltd (1997) 3 NWLR (Pt 496) 643, Emeakayi Vs Commissioner of Police (2004) 4 NWLR (Pt 862) 158, Union Bank of Nigeria Plc Vs Sogunro (2006) 16 NWLR (Pt 1006) 504, Dapianlong Vs Dariye (2007) 8 NWLR (Pt 1036) 239, Investors International (London) Ltd Vs First Bank of Nigeria Plc (2008) 10 NWLR (Pt 1096) 427 and First Bank of Nigeria Plc Vs Abraham (2008) 18 NWLR (Pt 1118) 172. The grounds of appeal directed at the Ruling of the lower Court delivered on the 14th of July, 2016 are incompetent and cannot be entertained in this appeal.
It is correct that this issue of the need for leave to appeal against the Ruling of the lower Court was raised by this Court suo motu and it is being resolved without the Court inviting the parties to address it before deciding thereon.
The law is that failure to obtain leave to appeal, where leave is required, renders an appeal incompetent, null and void and this Court lacks jurisdiction to entertain such appeal. Oshatoba Vs Olujitan (2000) 5 NWLR (Pt 655) 159, The Nigerian Air Force Vs Shekete (2002) 18 NWLR (Pt 798) 129. InAkpasubi Vs Umweni (1982) 11 SC 113, Eso, JSC, made the point thus:
‘No leave was given to the Appellant either by the Federal Court of Appeal or this Court to file a ground of fact. The appellate jurisdiction of this Court on question of fact only exists where there has been leave of the Court of Appeal or of this Court. No appeal on question of fact lies to this Court without such leave. In other words, where as it would appear to me in this case, question of fact has been brought before this Court without leave, the Court has no jurisdiction.’
The point was reiterated by Onnoghen, JSC (as he then was) in Ukpong Vs Commissioner of Finance and Economic Development (2006) 19 NWLR (Pt 1013) 187 that ?where an appeal is to be with leave but none was obtained, the condition precedent to the validity of such an appeal has not been met and as a result the appeal is, in law, said to be incompetent and the appellate Court is in consequence without jurisdiction to entertain same.
Now, it is settled that an issue touching on the jurisdiction of the Court can be raised suo motu and resolved by the Court without calling the parties to address on it. Tiza Vs Begha (2005) 15 NWLR (Pt 949) 616, Moses Vs State (2006) 11 NWLR (Pt 992) 458, Effiom Vs Cross River State Independent Electoral Commission (2010) 14 NWLR (Pt 1213) 106 at 133-134, Gbagbarigha Vs Toruemi (2012) LPELR-15535(SC), Omokuwajo Vs Federal Republic of Nigeria (2013) 9 NWLR (Pt 1359) 300 at 332, Omoniyi Vs Alabi (2015) 6 NWLR (Pt 1456) 572 at 592-593. This Court has no jurisdiction to entertain the appeal of the Appellants against the Ruling of the lower Court on their motion for extension of time to file a memorandum of appearance. The grounds of appeal, the issues for determination and the entire arguments of Counsel to the parties directed at the Ruling are hereby struck out.
This leaves the portion of the appeal directed at the judgment of the lower Court delivered on the 14th of July, 2016. The facts on this matter are straightforward. The Respondents commenced the action in the lower Court by a writ of summons and statement of claim dated the 23rd of February, 2016.
The Appellants were served with the originating processes on the 16th of March, 2016. The Appellants did not file a memorandum of appearance nor did they file a statement of defence. The lower Court fixed the matter for mention for the 27th of April, 2016 and the Appellants were served with hearing notice on the 25th of April, 2017. On the 27th of April, 2016, a Counsel for the Appellants attended Court, but still without filing a memorandum of appearance and/or a statement of defence. The issue of Counsel appearing without filing a memorandum of appearance arose and the matter was adjourned to the 31st of May, 2016 for hearing, giving the Appellants time to file the requisite processes.
By the time the matter came up on the 31st of May, 2016, the Appellants were yet to file any Court processes but they had a Counsel in Court to observe proceedings, and the lower Court commenced trial and heard evidence from the sole plaintiff witness and after which the Respondents closed their case and their Counsel dispensed with his right to making a final address and the matter was adjourned to the 23rd of June, 2016 for judgment. After the Court proceedings of the 31st of May, 2016 the
Appellants filed a motion for extension of time to file a memorandum of appearance and a notice of preliminary objection challenging the competence of the suit on the ground that it constituted a multiple action and was thus an abuse of process. When the matter came up on the 23rd of June, 2016, the lower Court stepped down the reading of the judgment and took arguments on the Appellants’ motion for extension of time to file memorandum of appearance and it adjourned the matter to the 14th of July, 2016 for Ruling. On the 14th of July, 2016, the lower Court delivered a Ruling dismissing the Appellants’ application and it proceeded thereafter to deliver the judgment granting the reliefs sought by the Respondent.
It is the view of this Court that, from the amended notice and grounds of appeal and the respective arguments canvassed in the respective briefs of arguments of the parties, three issues arise for determination in this appeal.
These are:
i. Whether, in the circumstances of this case, the lower Court was in error in not hearing and determining the notice of preliminary objection filed by the Appellants before proceeding to deliver judgment in the matter.
ii. Whether the proceedings leading up the judgment and delivery of the judgment itself were conducted in breach of the rights of the Appellants to fair hearing.
iii. Whether, from the state of the pleadings and the evidence led before it, the lower Court was correct when it entered judgment granting all the claims of the Respondents.
This appeal will be resolved on these three issues for determination and all the viable complaints of the Appellants and the arguments of the parties will be considered and resolved under the three issues for determination. The issues for determination will be considered seriatim.
Issue One
Whether, in the circumstances of this case, the lower Court was in error in not hearing and determining the notice of preliminary objection filed by the Appellants before proceeding to deliver judgment in the matter?
It is an elementary and fundamental principle of our administration of justice to hear all applications properly brought before our Courts, and accordingly, where an application is properly brought before the Court, the principle of fair hearing demands that it should be heard on the merits.
It is a dereliction of sacred judicial duty for either a trial or an appellate Court to put aside an application properly brought in proceedings before it and proceed to give judgment ? Nalsa & Team Associates Vs Nigerian National Petroleum Corporation (1991) 8 NWLR (Pt 212) 652, Ani Vs Nna (1996) 4 NWLR (Pt 440) 101, Ndika Vs Chiejina (2003) 1 NWLR (Pt 802) 451, Magna Maritime Services Ltd Vs Oteju (2005) 14 NWLR (Pt 945) 517, Dandume Local Government Council Vs Yaro (2011) 11 NWLR (Pt 1257) 175. It must however, be stated that this duty on a Court to hear and determine all applications pending in a matter before it enters a final judgment is not in respect of any and all applications. It is only in respect of applications properly brought before the Court according to the applicable laws, rules of Court and in good faith ? Owner MV ?Cape Breton? Vs Ganic (Nig) Ltd (2007) All FWLR (Pt 372) 1825, Abia State Transport Corporation Vs Quorum Consortium Ltd (2009) 3-4 SC 187, Orhunhur Vs Ivever (2015) 1 NWLR (Pt 1439) 192, Bellview Airlines Ltd Vs Carter Harris (Proprietary) Ltd (2016) LPELR 40989(CA).
An appellate Court is thus enjoined to look at the application in question to determine whether or not its non-consideration occasioned a miscarriage of justice ? Registered Trustees of Living Bread Christian Center Vs Olubobokun (2015) LPELR 41821(CA). In Emeka Vs Okadigbo (2012) 18 NWLR (Pt 1331) 55, the Supreme Court stated:
‘It is not in all cases that failure of the trial Court to hear pending motion before delivery of judgment is fatal to the proceedings. It is duty of the appeal Court to examine the motion that was pending and ensure that failure of the trial Judge to take it has not led to denial of fair hearing and/or miscarriage of justice.
Now, the procedure for raising issues of law that have the potential of determining a matter in limine is provided for by the Rules of the High Court of Plateau State 1987. Order 24 Rules 1 to 4 thereof read:
1.No demurrer shall be allowed.
2.(1) A party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
(2) A point of law so raised may, by consent of the parties, or by order of the Court or Judge in Chambers on the application of either party, be set down for hearing and disposed of at any time before the trial.
3. If, in the opinion of the Court or a Judge in Chambers the decision on the point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the Court or Judge in Chambers may thereupon dismiss the action or make such other order therein as may be just.
4. The Court or Judge in Chambers may Order any pleading to be struck out on the ground that it discloses no reasonable cause of action.’
These provisions are similar to the provisions of the High Court Civil Procedure Rules of practically all the States in the Federation and the provisions, or the similar provisions, were severally interpreted by the Courts. The Courts were unanimous that the provisions abolished the demurrer procedure and proceedings and substituted it with proceedings in lieu of demurrer which postulates that where any party desires to raise a point of law which has the capacity of determining a matter in limine under the provisions of Order 24
Rules 1, 2 and 3, he must first file his pleadings, such as a statement of defence, wherein he would canvass the point of law, before constituting same into a motion on notice for hearing and determination of the Court. Where the party fails to file pleadings canvassing the point of law, any motion he files seeking to determine the suit in limine on the basis of the point of law will be deemed premature and incompetent ? see for example, Lasisi Fadare & Ors Vs Attorney General, Oyo State (1982) All NLR 26, Madu Vs Ononuju (1986) 3 NWLR (Pt 26) 23, The Provisional Council, Ogun State University Vs Makinde (1991) 2 NWLR (Pt 175) 613, Dada Vs Ogunsanya (1992) 3 NWLR (Pt 232) 754, Pan Atlantic Shipping and Transport Agencies Ltd Vs Rhein Mass Undo See Schiffarts Kontor GMBH (1997) 3 NWLR (Pt 493) 248, Adesanya Vs Olayeni (1999) 2 NWLR (Pt 592) 558, Akinade Vs Non-Academic Staff Union of Educational and Associated Institutions (1999) 2 NWLR (Pt. 592) 570, Imade Vs Military Administrator of Edo State (2001) 6 NWLR (Pt 709) 478, Disu Vs Ajilowura (2006) 14 NWLR (Pt 1000) 783, Mobil Producing Nig. Unltd Vs Uwemedimo (2006) All FWLR (Pt 313) 116, Owner, MV ?Cape Breton? Vs Ganic Nig. Ltd (2007) All FWLR (Pt 372) 1825, Tabiowo Vs Disu (2008) 7 NWLR (Pt 1087) 533, Moyosore Vs The Governor of Kwara State & Ors (2012) 5 NWLR (Pt 1293) 242.
The Courts, however, recognized two exceptions. The first was where the point of law sought to be raised was one challenging the substantive jurisdiction of the trial Court to hear the matter. A party wishing to raise such point of law could do so by a motion without first filing pleadings. Nigeria Deposit Insurance Corporation Vs Central Bank of Nigeria (2002) 7 NWLR (Pt 766) 272, Nasir Vs Civil Service Commission of Kano State (2010) 6 NWLR (Pt 1190) 253. Secondly, the Courts interpreted the provision of Order 24 Rule 4 as creating an exception and that it allowed a party seeking to dismiss a suit on the ground that it disclosed no cause of action to a file a motion to canvass the point before the filing of a statement of defence. Onibudo & Ors Vs Akibu & Ors (1982) All NLR 207, Henry Stephens Engineering Co Ltd Vs S. A. Yakubu (Nig) Ltd (2003) 10 NWLR (Pt 829) 505, Kwajafah Vs United Nigerian iles Plc (2009) LPELR 4444(CA), Rockshell International Ltd Vs Best Quality Services Ltd (2009) 12 NWLR (Pt 1156) 640.
It is important to understand the fundamental difference between issues of substantive jurisdiction and matters of procedural jurisdiction. Procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. A plaintiff who has commenced an action which on the face of it is not incompetent is deemed to have invoked the presumed jurisdiction of the Court. A matter that impugns the presumed competence of the action should be raised by the opponent in his response to the action, otherwise he will be deemed to have waived them and be foreclosed from raising it again. Katsina Local Government Authority Vs Makudawa (1971) 7 NSCC 119, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt. 1155) 387, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488. In Akahall & Sons Ltd Vs NDIC (2017) 7 NWLR (Pt 1564) 194, the Supreme Court made the point pgs 206-207 thus:
there is a difference between alleged irregularity in the exercise of jurisdiction and total lack of jurisdiction and the incidents that attach to each. When the competence of the Court is alleged to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on the ascertainment of facts, the incompetence cannot be said on the face of the proceedings. The issue of facts if properly raised by the party challenging the competence of the Court should be tried first before the Court makes pronouncement on its own competence. Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the Court, it is for the party who alleges the Court?s incompetence to raise the issue either in his statement of defence in proceedings commenced by writ or by affidavit in cases commenced by originating summons
Issues such as abuse of process, estoppel, pre-action notice and limitation of action are not evident on the face of a writ of summons and are dependent on ascertainment of facts. They are matters of procedural jurisdiction, and not matters of substantive jurisdiction, and cannot be constituted for hearing on a motion or notice of preliminary objection without having first been canvassed on the pleadings. The preliminary objection filed by the Appellants to canvass the issue of abuse of process, without having first filed a statement of defence to raise the issue, was incompetent ab initio. It is irrelevant that the net effect of the preliminary objection of the Appellants, if successful, is that the lower Court would have declined to exercise its jurisdiction to hear the matter. An issue that will have the effect of the a Court declining jurisdiction must still be raised in accordance with the laid down procedure for it to be viable. Dahuwa Vs Adeniran (1986) 4 NWLR (Pt 34) 246, Jov Vs Dom (1999) 9 NWLR (Pt 620) 538, Davies Vs Guildpine Ltd (2004) 5 NWLR (Pt 865) 131, Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt 1348) 570, Abiola & Sons Bottling Company Nig Ltd Vs First City Merchant Bank Ltd (2013) LPELR SC.88/2005, Adama Vs State (2018) 3 NWLR (Pt 1605) 94. In Adejobi Vs State (2011) 12 NWLR Pt 1261) 347, the Supreme Court made the point thus:
A question of law and jurisdiction can be raised at anytime in the proceedings, but it is not a free for all procedure. Where a statute under which an issue or matter is to be raised has provided a procedure for raising such issue or matter, that procedure and no other must be followed.
Failure of a trial Court to consider an application that was null and void ab initio cannot be said to have led to a denial of fair hearing or occasioned a miscarriage of justice. A party cannot complain about lack of fair hearing in an application that is incompetent ab initio ? Mini Lodge Ltd Vs Ngei (2009) LPELR 1877(SC), Abolade M & Ors Vs Messrs Chevron Nigeria Ltd (2017) LPELR 43203(CA). The failure of the lower Court to consider the notice of preliminary objection of the Appellants before delivering judgment in the matter was thus not fatal. The first issue for determination is resolved in favour of the Respondents.
Issue Two
Whether the proceedings leading up the judgment and delivery of the judgment itself were conducted in breach of the rights of the Appellants to fair hearing?
The concept of fair hearing adumbrated under this issue for determination is the same as fair trial and it entails so much in the judicial process. As a matter of law, it is the pivot upon which the entire judicial process or the administration of justice revolves. It is the keystone of the trial process as no trial can be sustained unless it accords with the principles of fair hearing, which also involves the twin common law rules of natural justice rules, audi alteram partem and nemo judex in causa sua. Emerah Vs Chiekwe (1996) 7 NWLR (Pt 462) 536, Okeke vs Nwokoye (1999) 13 NWLR (Pt 635) 495.
Fair hearing postulates that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. It is an indispensable requirement of justice that an adjudicating authority, to be fair and just, shall hear both sides, giving them ample opportunity to present their case. Accordingly, a hearing can only be said to be fair when, inter alia, all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or is not given an opportunity to be heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule. Otapo Vs Sunmonu (1987) 2 NWLR (Pt 58) 587, Gukas Vs Jos International Breweries Ltd (1991) 6 NWLR (Pt 199) 614, Olumesan Vs Ogundepo (1996) 2 NWLR (Pt 433) 628.
The right to fair hearing does not, however, exist in absolute terms. The concept of fair hearing postulates that it is the duty of a Court to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing. Independent National Electoral Commission Vs Musa (2003) 3 NWLR (Pt 806) 72, Dantata Vs Mohammed (2012) 8 NWLR (Pt 1302) 366, National Films & Video Censors Board Vs Adegboyega (2012) 10 NWLR (Pt 1307) 45.
The question whether a party has been afforded an opportunity to exercise his right of fair hearing depends upon a careful consideration of the facts and circumstances of each case and the test to be applied in each case is an objective one based on the impression of a reasonable and fair minded observer at the trial. Action Congress of Nigeria Vs Lamido (2012) 8 NWLR (Pt 1303) 560 and Eastern Breweries Plc, Awo Omamma Vs Nwokoro (2012) 14 NWLR (Pt. 1321) 488.
In the instant appeal, it is not in contest that the Appellants were duly served with originating processes in this matter. It is not in contest that the Appellants did not file a memorandum of appearance within the time allowed by the Rules or at any time at all. It is trite that until a defendant formally enters appearance by way of filing a memorandum of appearance in accordance with the Rules of Court either conditionally or unconditionally, he cannot be said to have responded to the process served on him or registered his presence formally before the Court as a party in the suit and willing and ready to challenge the plaintiff, and the suit will be treated as undefended and such a defendant is not entitled to audience before the trial Court. Adegoke Motors Ltd Vs Adesanya (1989) 3 NWLR (Pt 109) 250, Inakoju Vs Adeleke (2007) 4 NWLR (Pt 1025) 423, The Nigerian Navy Vs Bassey (2016) LPELR 41415(CA), Eshiet Vs Effiong (2018) LPELR 45184(CA).
It is not in contest that the Appellants did not also file a statement of defence to show an intention of defending the action. When the matter was fixed for the 27th of April, 2016 for mention, the Appellants were duly served with hearing notice and they still did not file any processes but a Counsel showed up in Court to represent them on the date. The issue of the non-filing of memorandum of appearance was brought to the attention of the Counsel and the matter was adjourned to the 31st of May, 2016 for hearing and this gave the Appellants an ample opportunity to file their memorandum of appearance and statement of defence, if they desired to defend the suit. The Appellants still did not file their memorandum of appearance and/or statement of defence within the period of adjournment. It is trite that where the issue of non-filing of a memorandum of appearance is brought to the attention of a defendant and he persists in the act of failure to formally enter appearance, he is not entitled to audience before the Court and the action will again be treated as undefended and the plaintiff is entitled to be heard on his claims. British-American Insurance Co Ltd Vs Edema-Sillo (1993) 2 NWLR (Pt 277) 567, Ita Vs Nyong (1994) 1 NWLR (Pt 318) 56, Chevron (Nig) Ltd Vs Imo State House of Assembly (2016) LPELR 41563(CA), Dogo Vs Mbahi (2018) LPELR 45377(CA).
On the 31st of May, 2016 when the matter came up, Counsel for the Appellants was again in Court obviously to observe the proceedings as they had filed nothing to show an intention to partake in the proceedings. The Respondents called their sole witness and she gave oral and documentary evidence and after which the Respondents closed their case.
In view of the failure of the Appellants to file any processes, Counsel to the Respondents dispensed with his right to final address and the matter was adjourned for judgment. It is obvious that the lower Court accorded the Appellants every opportunity to be heard in the matter and to partake in the proceedings leading up to the judgment, but they chose not to utilize the opportunity. They cannot be heard to complain of lack of fair hearing.
The records show that after the proceedings of the 31st of May, 2016, the lower Court adjourned the matter to the 23rd of June, 2016 for judgment. The records also show that on the same 31st of May, 2016, the Appellants filed a motion on notice seeking for extension of time to file a memorandum of appearance. The records show that when the matter came on the 23rd of June, 2016 for judgment, the lower Court stepped down the reading of the judgment and it entertained the application of the Appellants and it adjourned Ruling on the application to the 14th of July, 2016. On the 14th of July, 2016, the lower Court delivered a Ruling dismissing the application of the Appellants and it proceeded thereafter to deliver the judgment stepped down on the 23rd of June, 2016. Counsel to the Appellants complained that by proceeding to the delivery of judgment after the Ruling on their application, the lower Court did not stay true to its cause list and it thus breached the Appellants’ right of fair hearing.
The complaint was apparently predicated on the belief that the matter was listed on the cause list of the lower Court of the 14th of July, 2016 only for Ruling on the Appellants’application, and not for the judgment. The cause-list of the lower Court for the 14th of July, 2016 was not included in the records of appeal to enable this Court see the grouse of the Appellants and to back up their complaint. It is correct that at the conclusion of arguments on the application of the Appellants on the 23rd of June, 2016, the lower Court adjourned Ruling on the application to the 14th of July, 2016. This did not mean, and cannot be translated to mean, that the matter was adjourned to the 14th of July 2016 only for the delivery of the Ruling, and nothing more. There were bound to be further steps taken on that day after the Ruling.
The only logical step to be taken after the Ruling, in the circumstances of this case, was for the lower Court to proceed to the reading of the judgment as the Appellants had no competent process showing an intention to defend the action before it. Thus at no time in the proceedings did the lower Court breach the Appellants? right to fair hearing. The second issue for determination is resolved in favour of the Respondents.
Issue Three
Whether, from the state of the pleadings and the evidence led before it, the lower Court was correct when it entered judgment granting all the claims of the Respondents?
The Respondents’ claims were for (i) vacant possession of all that premises along with its appurtenances situate at Plot 6843, Kufang, off Miango Road, Jos, Plateau State; (ii) arrears of rents in the sum of N1.2 Million; (iii) mesne profit at the rate of N33,333.33 from the 6th of August, 2015 till possession is given up; (iv) an order for the restoration of the premises to its original state at the expense of the Appellants; (v) general damages of N3 Million.
The lower Court awarded all the reliefs sought by the Respondent. The complaints of the Appellants were against the award of general damages and mesne profits. They contend that the lower Court gave no reason to support the award of N3 Million as general damages and that the Respondents did not support the claim for mesne profits with averments on the pleadings and evidence led at trial to warrant its and further that the award of both general damages and mesne profits, which is in the nature of special damages, amounted to double compensation.
Mesne profits is used to described the sum due to a landlord from the time his tenant ceases to hold premises as tenant to the time the tenant gives up possession and it thus starts to run when the tenancy expires and the tenants holds over. Mesne profits are generally calculated on the yearly value of the premises and a landlord is certainly not bound to use the rent payable during the tenancy as a yardstick in his determination of mesne profits ? Osawaru Vs Ezeiruka (1978) 6-7 SC 135, Marine and General Assurance Co. Ltd Vs Rossek (1986) 2 NWLR (Pt 25) 750, Debs Vs Cenico Nigeria Ltd (1986) 3 NWLR (Pt 32) 846, Ayinke Vs Lawal (1994) 7 NWLR (Pt 356) 263, Abeke Vs Odunsi (2013).
It was not in contest in the present case that the Appellants held over the premises in question after the issuance of the requisite notices termination of their tenancy and this was before August, 2015. The Respondents were thus entitled to mesne profits from at least August 2015. The Respondents pleaded that the annual rental value of the property as at the time it was leased to the Appellants was N400,000.00, and it was on this basis of that the Respondents calculated the rate of mesne profits claimed. Reading through the written statement on oath of the sole plaintiff witness, she testified as to the annual rental value of the property at N400,000.00. The Appellants did not file a statement of defence to counter the assertion of the rental value in the pleadings and neither did they challenge the evidence of the witness thereon nor lead any contrary evidence. The Respondents clearly pleaded and led evidence to support the award of mesne profits made in their favour by the lower Court. The award cannot be faulted.
General damages means such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate result or such as necessarily results from the injury, or such as did in fact result from the wrong, directly and proximately and without reference to the special character, condition or circumstances of the claimant. General damages are such as the Court may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. General damages is quantified or calculated by relying on what would be the opinion and judgment of a reasonable man in the circumstances of the case ? Tanko Vs Mai-Waka (2010) 1 NWLR (Pt 1176) 468, Kopek Construction Ltd Vs Ekisola (2010) 3 NWLR (Pt 1182) 61, Aluminium Manufacturing Co. Nigeria Ltd Vs Volkswagen of Nigeria Ltd (2010) 7 NWLR (Pt 1192) 97.
Generally, the trial Court has a discretion as to the quantum of damages it would award in a claim of damages for trespass. The assessment does not strictly depend on any legal rules but the discretion of Court is limited by usual caution or prudence and remoteness of damage when considering an award of damages. Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265. An award of general damages cannot be made arbitrarily.
It calls for some measure of quantification and a careful exercise of judicial discretion and it is not an exercise of judicial discretion if the basis for the award is not demonstrated. United Bank of Africa Plc Vs Samba Petroleum Ltd (2002) 16 NWLR (Pt 793) 361. Thus, the Court have held that it is not enough for a Court to simply award damages in an action for trespass to land without giving reasons as to how it arrived at what amounted to reasonable damages. Ummuna Vs Okwuraiwe (1978) 6-7 SC 1, Olurotimi Vs Ige (1993) 8 NWLR (Pt 311) 257, Onwu Vs Nka (1996) 7 NWLR (Pt. 458) 1, Ozuruoke Vs Okolie (2000) 1 NWLR (Pt 642) 569, Abiara Vs Registered Trustees of the Methodist Church of Nigeria (2007) 11 NWLR (Pt. 1045) 280.
The lower Court gave no reason for the award of N3 Million as damages in favour of the Respondents. Counsel to the Respondents sought to justify the award by saying that it was to cover the costs of the restoration of illegally altered structures and the removal of unapproved additional structures put on the land by the Appellants. This cannot however be correct in view of the fact that the lower Court had already made an order in favour of the Respondents in the judgment directing the restoration of the premises to its original state at the expense of the Appellants. There was no injury which had not been covered by the other awards made by the lower Court in the judgment that needed to be compensated by the award of general damages. The Respondents did not justify the award of general damages and the award made by the lower Court was baseless and superfluous and it is liable to set aside. The third issue for determination is thus partly resolved in favour of the Appellants.
In conclusion, the appeal succeeds in part and it is hereby allowed in part. The judgment of the High Court of Plateau State delivered by Honorable Justice I. I. Kunda in Suit No PLD/J95/2016 on the 14th of July, 2016 is hereby affirmed, save for the award of general damages which is set aside. The parties shall bear their respective costs of the appeal. These shall be the orders of the Court.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the judgment of my learned brother, Abiru, J.C.A. just delivered. I completely agree with his reasoning and conclusion that the appeal should be partly allowed. My learned brother had adequately considered and resolved the issues raised for determination in this appeal. I have nothing more to add but to adopt same as mine. I too allow the appeal in part and abide by the consequential orders contained in the lead Judgment, inclusive of costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the advantage of reading the draft copy of the judgment just delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree with the conclusion reached thereat and also abide by the orders made in terms of the leading judgment.
Appearances:
V.M.G. Pwul with him, P. J. MinerFor Appellant(s)
Chief Bankole Falade with him, Samson Ike and M.K. IbiyeyeFor Respondent(s)
