SULE EYIGEBE VS MUSA IYAJI (2013)

SULE EYIGEBE VS MUSA IYAJI

(2013) LCN/4141(SC)

In the Supreme Court of Nigeria

Friday, May 10, 2013


Case Number: SC. 216/2004

 

JUSTICES:

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JUSTICE, SUPREME COURT

MUHAMMAD .S. MUNTAKA-COOMASSIE, JUSTICE, SUPREME COURT

SULEIMAN GALADIMA, JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI, JUSTICE, SUPREME COURT

STANLEY SHENKO ALAGOA, JUSTICE, SUPREME COURT

 

APPELLANT:

SULE EYIGEBE

 

RESPONDENT:

MUSA IYAJI

 

RATIO:

POWER OF THE SUPREME COURT TO HEAR APPEALS

“The law is well crystallized that it does not lie within the jurisdiction of this court to hear appeals from the State High Courts, but those from the Court of Appeal.” PER CLARA BATA OGUNBIYI, JSC

POWER OF COURT TO MAKE CONSEQUENTIAL ORDER

“It is within the power of every court and in fact its duty and obligation to make consequential orders in the interest of justice; it is also irrelevant that, that particular order was not specifically asked for.” PER CLARA BATA OGUNBIYI, JSC

GRANT OF A RELIEF NOT CLAIMED BY A PARTY

“The law is well settled that it does not lie within the power of a court to grant a relief not claimed by a party on his pleadings.” PER CLARA BATA OGUNBIYI, JSC

NATURE OF A CONSEQUENTIAL ORDER

“Where a principal order sought was refused by a court, an incidental order cannot be made. This is because a consequential order by its very nature is predicated on a principal order, without which it must crumble. In other words it ought to be cut off/or severed.” PER CLARA BATA OGUNBIYI, JSC

PURPOSE OF CONSEQUENTIAL ORDER

“The purpose of a consequential order is to give effect to the judgment. It must therefore flow from the circumstances of the decision of the court. It must not be at a cross purpose or in any way contradictory to the decision of the court.” PER CLARA BATA OGUNBIYI, JSC

 STATUS OF AN APPEAL:

“The law is also trite and well settled that an appeal is a continuation of the case instituted at the trial court. The final end result of an appeal cannot reflect or produce a relief different from that which originated at the trial inception. “PER CLARA BATA OGUNBIYI, JSC

FORMULATION OF ISSUES FROM GROUNDS OF APPEAL:

“The law is very well settled in plethora of authorities that issues must be formulated from grounds of appeal which in turn must also derive from ratio decidendi of the judgment appealed against.” PER CLARA BATA OGUNBIYI, JSC

STATUS OF AVERMENTS ON PLEADINGS 

“The law is further well settled that averments on pleadings do not take the place of evidence.” PER CLARA BATA OGUNBIYI, JSC.

CONSEQUENTIAL ORDER

“A consequential order is not one merely incidental to the decision but one which necessarily flow directly and naturally there from; it is inevitable and consequent upon the decision made by the court: It must in other words give effect to the judgment already given and not a granting of fresh and unclaimed or unproven relief. It can only relate to matters adjudicated upon. Where it flowed from nothing decided, as it is in the case at hand, die subsequent orders made must be nullified.” PER CLARA BATA OGUNBIYI, JSC

CONSEQUENTIAL ORDER

“Where a principal order sought was refused by a court, an incidental order cannot be made. This is because a consequential order by its very nature is predicated on a principal order, without which it must crumble. In other words it ought to be cut off/or severed.” PER CLARA BATA OGUNBIYI, JSC

PURPOSE OF CONSEQUENTIAL ORDER:

“The purpose of a consequential order is to give effect to the judgment. It must therefore flow from the circumstances of the decision of the court. It must not be at a cross purpose or in any way contradictory to the decision of the court.” PER CLARA BATA OGUNBIYI, JSC

 

BATA OGUNBIYI, JSC, (Delivering the Judgment of the Court): The dispute which culminated into this appeal has a very long and chequered history. It is in respect of a parcel of land in Kogi State called Ikare Anama situate atAjaka Kogi State. It is very intriguing to also state that the dispute started about 1960 at Ajaka Area Court, and went up to the Supreme Court which judgment was handed down only in 1987 in which the present respondent as plaintiff was declared the owner of the land. Following the judgment, the appellant in this appeal appeared to have accepted his position as a tenant to the respondent in accordance with the rights of the parties based on the judgment of the Supreme Court.

However, on the21st December, 1999, the respondent instituted a suit No. CV. 194/99 at the Grade 1 Area Court Ajaka, Kogi State and claimed the following relief:-

‘Enforcement of the Supreme Court of Nigeria (sic) in case No. SC. 232/1984 decided in  in favourof the plaintiff on 10th July, 1987 by ordering the defendant Sule Eyigebe, his agents, privies and tenants to vacate the land known as Ikare Anama situate at Ajaka.’

The manner the claim was phrased, although confusing, was nevertheless interpreted by the Area Court as one for forfeiture. The court, while considering the evidence by the parties also took into consideration the judgment of the Supreme Court admitted as exhibit D2, and it accordingly dismissed the plaintiffs claim.

Dissatisfied,the respondent brought an appeal against the judgment of Ajaka Area Court before the Upper Area Court, Idah, Kogi State. On 17/9/2001, the Upper Area Court in its judgment reversed the decision of the Ajaka Area Court. It allowed the appeal and ordered forfeiture of the land against the present appellant,who was obviously dissatisfied with the judgment and hence appealed against it before the High Court, Kogi State sitting at Idah.

On 8/3/02, the High Court in its appellate jurisdiction dismissed the appeal by the appellant. It however proceeded to make some orders in modification of the judgment of the Upper Area Court Idahto read as follows:-

‘1. The defendant/appellants caretaker-ship over the land or portion thereof known as Ikare Anama ceased henceforth.

2. The defendant/appellant shall henceforth cease from-

a) tempering with fiddling about with or harvesting any economic trees on the said land.

b) alienating or dealing in whatever form or manner with the said land or portion thereof.

3.The defendant/appellant shall retain-

a) his abode,accommodation or dwelling place for having been in occupation for a long period.

b) his present farm house or farmstead.

4. Those who as at the date of this judgment had been apportioned plots on the said land whether or not covered by C of Os are to retain such possession. ————–“

The respondent having been earlier awarded the ownership of the land, subject of litigation, by the Supreme Court since 1987, was obviously alarmed by the subsequent decision of the High

Court; as a consequence, he therefore lodged an appeal to the Court of Appeal Abuja Division by challenging orders 3 and 4 made supra for being draconian and erroneous. The lower court on 2nd July,2003, in delivering its judgment allowed the appeal and set aside the two offending orders; hence this appeal by the appellant now before us.The notice of appeal containing five grounds was filed on the 17th September, 2003.

In compliance with the rules of this court, the appellants brief of argument filed on the23/11/2004 was settled by Chief B.C. Oyibo of counsel while that of respondent filed on 31/1/2005 was also settled by Ayo Jonathan Esq. On the 12th February,2013 when the appeal was argued, both counsel representing their clients adopted their respective briefs of arguments. While P. O. Okolo, Esq. on behalf of the appellant urged before us that the appeal be allowed, Ayo Jonathan representing the respondent however submitted in favour of dismissing the appeal. Counsel further applied to withdraw their preliminary objection which submission was incorporated in the respondents brief of argument. The learned appellants counsel as a consequence also applied to withdraw the reply brief filed in response to the preliminary objection raised. Both the preliminary objection and the argument advanced in respect thereof as well as the response by the appellant having been withdrawn without any objections are all hereby struck out. From the five grounds of appeal raised, three issues were formulated on behalf of the appellant and same are reproduced hereunder:-

‘1.Whether the court below was right when it held that the Relief against forfeiture of the Appellants tenancy granted by the Kogi State High Courts consequential orders 3 and 4 was not solicited for by any of the parties and was granted funtus officio.

2. Whether it can rightly be held that the court below had afforded a fair hearing to the Appellant on his case before it when it had failed to consider or to properly consider (1) relevant evidence of Kadiri Ademu the appellants sole witness requesting for Relief against forfeiture of the Appellants tenancy, (2) the contents of Exhibit D2 tendered by the said Kadiri Ademu (3) Appellants sole issue for Determination in the Appeal before it, and (4) two court judgments cited in his brief to support his case.

3. Whether it can rightly be held that the judgment of the court below amounted to a perverse judgment when in one bread thin the judgment it allowed the Appellant Relief against forfeiture of his tenancy, while in another breadth to the contrary in its same judgment, it disallowed the Appellant the same relief against forfeiture of his same tenancy whereas it gave no explanation for its change of mind.’ On behalf of the respondent also a sole issue was formulated and it reads as follows.

‘Whether the Court of Appeal was right in setting aside orders 3 and 4 of the High Court Idah, which was the sole complaint before the court?’

I have carefully read and considered the three issues formulated by the appellant from die five grounds of appeal raised and come to the conclusion that the lone issue distilled by the respondents learned counsel is very apt in disposing of this appeal. For purpose of expatiation, I hasten to state that the law is very well settled in plethora of authorities that issues must be formulated from grounds of appeal which in turn must also derive from ratio decidendi of the judgment appealed against. See the cases of AwuseV. Odili (2004) 8 NWLR (pt. 874-876) p. 494 at p. 524; Odife V. Aniemeka (1992)7 NWLR (Pt. 251) 25 and Onye V. Kema (2003) 1 WLR 131. In other words grounds of appeal which are alien to the judgment appealed are incompetent andcan in no way produce competent issues for determination and ought be struck out.

The judgment of the lower court sought to appeal is contained at pages 191 to 201 of the record of appeal and the appellant before us cannot by operation of law therefore raise any ground of appeal which is outside the said judgment; to do so would render same as incompetent. It is obvious on the face of the record that the only question or issue presented for determination at the lower court by the appellant, who is now respondent before us, relates to orders 3 and 4 which are the reason for the present appeal. This is evidenced by the lone ground of appeal lodged against the judgment of the High Court to the Court of Appeal at page 142 of the record which same is reproduced hereunder and reads:-

‘The Lower Court erred in law when it held in her orders 3 and 4 as follows:-

a. ‘The Defendant/Appellant shall retain his abode, accommodation or dwelling place having been in possession for a long period, his present farm, farm house or farmstead.

b. Those who at the date of judgment has been apportioned plots on the said land whether or not covered by C. of O are to retain such possession.’

Particulars:-

1. The Appellant having been found guilty of misconduct cannot enjoy the equitable relief against forfeiture.

2. The Appellant at no time claimed any relief against forfeiture.

3. The two orders are vague.

4. Long possession or social problems are not factors for consideration where a tenant such as the Appellant challenges the title of his overlord.’

Also at page152 of the record, and from the foregoing ground of appeal, the appellant then before the lower court formulated the following lone issue in his brief of argument:-

‘Was the High Court right in law in making or modifying the orders of the Upper Area Court as it did in orders 3 and 4 having found that the defendant/appellant has nothing to urge in his favour regarding this appeal which was dismissed page 116 lines 34 – 36 – records.’

From all indications and as rightly borne out on the record, there is only one bone of contention stemming this appeal; that is to say the propriety or not of the lower court in setting aside orders 3 and 4 made by the High Court Idah. This therefore grounds the justification in my adopting and preferring the lone issue formulated by the respondents counsel as against those by the appellant. I also wish to state that out of the three issues formulated by the appellant, only the first is congruent to the  respondents lone issue. While the adjoining issue 2 has no bearing whatsoever to the appeal canvassed before the lower court, issue 3 can easily be subsumed into the lone issue adopted for purpose of determining whether or not the lower court was perverse by its decision in setting aside orders 3 and 4 made by the High Court Idah. It is significant tore-echo that the complaint before the Court of Appeal centered on just one issue which had to do with the question, whether the High Court Idah, was right in granting orders 3 and 4 having found that the appeal before it lacked merit.Suffice it to say however that the appeal before that court did not in anyway complain against the reasons for the dismissal of the appeal. There was also no cross appeal. The appellants issue 2 before us appears to be complaining against the judgment of the High Court Idah, as it related to the document Exhibit D2 which was tendered by one Kadiri Ademu. The law is well crystallized that it does not lie within the jurisdiction of this court to hear appeals from the State High Courts, but those from the Court of Appeal. The following authorities are relevant in point. K.T.O. V. Unicalabar 2004 4 SCNJ 121 at138; Adake V. Adamu Akun 2003 7 SCNJ 59 and Kwajaffa V. Bank of the North 20045 SCNJ 121.

Submitting on the consequential orders 3 and 4 which were granted by the High Court Idah, the appellants counsel emphatically argued that there was sufficient evidence at the trial Grade I Area Court Ajaka showing that the relief was sought for through the appellants sole witness Kadiri Ademu in his unchallenged evidence.Counsel therefore faulted the lower court when it held that the relief against forfeiture of the appellants tenancy was gratuitously granted at the time the court had become functus officio. In arriving at this conclusion, the learned counsel relied on the following four reasons.

First, and while anchoring on the evidence of Kadiri Ademu supra, reference was also related specifically to the view held by this court wherein it admonished the lower courts to adopt the liberal approach treatment when handling proceeds from Native Courts before them. The counsel as a point of reference cited the case in SC 232/1984 – Musa Iyaji V. Sule Eyigebe decided on the 10th July,1987 and reported in the (1987) 3 NWLR page 523.

The second reason advanced by the learned counsel pertains to Exhibit D2, which is the Attah Galas B Native Court Judgment dated 31/7/1961 wherein the appellant was a privy thereto and which learned counsel submits serves a perpetual relief against forfeiture of the tenancy , until the order is set aside.

The third reference point had to do with the remarks made by the Kogi State High court which counsel interpreted as a confirmation and recognition that the appellant did infact seek for

the relief granted against forfeiture of his tenancy. The counsel for instance specifically made reference at page 109 of the Record wherein the court said:-

‘the appellant demand to ‘stay there’ forever and be paying 9 tins of palm oil,’

The fourth and final reason advanced by the appellants counsel had to do with the lower courts affirmation of the judgment of the Upper Area Court which counsel submitted had

granted the controversial relief against forfeiture of the tenancy.

In other words,that by the court below affirming the judgment of the Upper Area Court, it had in effect conceded that the relief against forfeiture of the tenancy was sought for by the appellant before it was granted; the court, counsel argued, could not therefore have been functus officio.

In summary and on the totality of the foregoing submissions the learned appellants counsel had grossly faulted the lower court in holding that the relief against forfeiture of the appellants tenancy as granted by the High Courts consequential orders 3 and 4 was not sought for but granted when the court had become functus officio. That the appeal should on this issue be allowed.

I have earlier in the course of this judgment held that the 2nd issue sought to raise by the appellant was not considered at the lower court; the appellant cannot now be heard on that issue so as to complain against the judgment of the High Court since this court lacks the jurisdiction to hear appeals from the State High Courts.

The learned appellants counsel further alleged and submitted that the judgment of the lower court was perverse and proceeded to base his contention on the argument that both the Upper Area Court and the High courts consequential order 3contained the same nature of relief granted by the Upper Area Courts judgment which the lower court affirmed. That the court below gave no reasons for affirming the Upper Area Courts judgment in one breadth while setting aside the High Courts consequential order 3 in another breadth. The learned counsel,on this behalf, stretched further that such contradictory pronouncements were highly unreasonable and gave rise to a perverse judgment which this court was urged not to uphold.

In reaction to the poser by the appellants counsel as to whether the orders of the court below are justified, and or inconsistent, contradictory and perverse, the respondents learned counsel answered in the negative. While urging for the dismissal of the appeal therefore, the said counsel relied on the following reasons wherein he said that the grounds of appeal being of either mixed law and fact or on fresh issues, the necessary pre-requisite leave to appeal against same was never first sought and obtained. Further more and on the order made by the court below, which is now subject of appeal, same, learned counsel argued, was not contradictory; that the allegation of the denial of fair hearing was totally unfounded. Learned counsel further re-affirmed that the appellant has no right of appeal from the High Court to this court. He argued further that in the absence of any cross appeal at the lower court, it is now belated for the appellant to complain about issues not canvassed before that court. On the question of whether the lower courts judgment was perverse, the respondents counsel affirmatively applauded the courts decision as a product of a careful consideration, which is neither contradictory nor inconsistent as alleged by the appellant. The learned counsel on the totality urged that the appeal be dismissed as it lacks merit.

I have earlier said that the only issue for determination in this appeal relates to orders 3and 4 which were made by the High Court Idah and set aside by the lower court.The orders have been reproduced earlier in the course of this judgment. The determinant issue by the lower court was whether the High Court Idah, was right in making the orders in question having found that the appeal before it lacked merit.

The learned appellants counsel vehemently submitted and reiterated that the relief against forfeiture of the appellants tenancy granted by the High Courts consequential orders 3 and 4 were solicited for and not granted functus officio as alleged on behalf of the respondent. The evidence testified to by the appellants sole witness, Kadiri Ademu, was the reason for reliance by the appellant. It is pertinent in this respect to relate and closely review the pleadings as well as the evidence given by both parties at the trial court.This is apt especially where the law is well settled that it does not lie within the power of a court to grant a relief not claimed by a party on his pleadings.The following authorities in the cases of Edebiri V. Edebiri (1997) 49 LRCN919 at 940; Odukwe V. Ogunbiyi (1998) 6 SCNJ 102 and Eyo Ogboni V. Oja Ogah(1996) 6 SCNJ 140 are very relevant on the principle enunciated.

This court while laying down the principle of law in the foregoing authorities for instance affirmatively held that the court is without power to award a relief which a claimant did not ask for.

Similarly, a relief which is inconsistent with the claim should not be granted because the court should not be seen as a charitable institution. It would further follow deductively that a defendant should not also be awarded a remedy which he did not ask for either by way of a counter claim or a cross-appeal.

The law is further well settled that averments on pleadings do not take the place of evidence. In other words whatever facts are pleaded, they must be established by evidence in support thereof.

At pages 35 -36 of the record of appeal for instance, the plaintiff/respondent, at the trial court and now the respondent before us testified as the only witness and said:-

‘I also know Abdul Abdullai, he is nephew to respondent. Respondent is making use of these men and others to disturb me on the land. Respondent and his people trespassed into this land when I wanted to build and destroyed my water tank I kept on site. I took them to C.M.C. Idah where they denied liability. They went ahead and allocated the same portion of land where I had wanted to build to their son who has erected his own house now. I know Jibrin Abdullai, younger brother to respondent. He is building in my land without my consent. At timest he respondents representatives come to this land with gun to disallow my people from harvesting my economic trees. I did not consent to the building been done in my land by Jibrin Abdullai. The area Jibrin is building part of the land S.C. had awarded me vide Exhibit M. They also harvest and destroy my economic trees such as Oro Aikpele planted by grand fathers. They harvested them. Egili trees planted by my grand fathers are being harvested by respondents people aforementioned. They also harvested my Cashew nuts planted by my grand father and some by me and my children. They harvest my Mangoes for sale. This act is being done by respondent and 12 others who had sued me earlier. They have being on  the rampage for about 3years now. All these economic trees are in Ikare Anama – Ajaka my land vide Exhibit PI. I am not happy that respondent and his people are harvesting and destroying my economic trees. I had reported their acts to Police in Idah and when they were not treating the issue fine I now wrote to the Police in Lokoja, their head quarters. My Counsel Jegede wrote petition to the Commissioner in Lokoja (COP) I have a copy of the letter written by Jegede with me. I reported them to High Court Idah who contacted DPOAjaka or referred the matter to DPO Ajaka. There was a time I reported to Kogi State Chief Judge over the matter. I reported to the CJN Chief Justice of Nigeria In Abuja. I have all the copies of these letters to these various people. These are the letters as I handed over to my counsel.’

Also at page 40of the record of appeal and before the Ajaka Grade 1 Area Court one KadiriAdemu testified as the sole witness representing the defendant/appellant now before us. In his testimony before the trial area Court, this is what he said:-

‘Plaintiff has no right by Exhibit D2 to harvest economic trees in this land. Instead plaintiff is supposed to collect tributes from the land. It is not true that I have being intimidating plaintiff with gun. Jibrin resides in this land. He built his house about 20 years ago. He is not intimidating plaintiff either. It is not true that we are destroying the economic trees in this land. When we give this land to some people, such people build after obtaining C. of O from the local government. These people fell trees in course of building their houses we have being paying tributes to plaintiff from this land. Supreme Court did not say that we should quit this land for plaintiff. We were invited by Police in respect of letter written to them by the plaintiff. We were taken to CMC Idah recently by virtue of such letters by Plaintiff. Those taken to CMC Idah are Sule Eyigebe, Salifu Odidi, Alhaji Yunusa, Alhaji Abdullai and Alhaji Musa. The case was thrown out because according to the court, there was no truth in it. I also pray this Court to strike out this case. That is all.'(Underlining is for emphasis)

For all intent and purpose, there is no indication on the evidence by both parties from their witnesses supra suggesting that the appellant sought a relief against forfeiture. Rather, it was his case that he was not in breach of his obligations but a consistent and faithful tenant to the respondent, who was the plaintiff.

The pertinent question to pose at this juncture is obvious. That is to say, in the absence of the appellant specifically asking for a relief against forfeiture, was the High Court empowered in granting that which was never pleaded and asked for at the trial court? The answer to this question will be given in due course. I have clearly spelt out earlier in the course of this judgment that the pleadings of the parties are the binding force controlling their case. No party can by law go outside that which he had pleaded. The courts are also not known to be a father Christmas in giving a relief which was not asked for. The scripture is also sacrosanct in the saying that ‘you cannot reap where you have not sown.’ The courts are also bound by the Constitutional provision wherein their powers of operation and coverage are well and clearly defined and spelt out. The provisions serve a constant check and surveillance on the courts which must not be seen to act without powers or jurisdiction. Any such exercise of power will have no binding force as it is from inception a nullity. The law is also trite and well settled that an appeal is a continuation of the case instituted at the trial court. The final end result of an appeal cannot reflector produce a relief different from that which originated at the trial

inception. In the case of Taiwo V. Akinwunmi (1975) 4 SC 143, this court per Fatayi-Williams(JSC) as he then was, while discussing the nature of forfeiture under customary law, clearly

stated that the complaint and the acts must be well founded. This cannot be determined without specifying the nature of the complaints and the acts on the pleadings and which must culminate into the relief sought in respect thereof. His Lordship Fatayi-Williams at page 183 in the foregoing authority for instance had this to say:-

‘………………………More over, we are of the view that whether the act committed by the tenant constitutes a misbehaviour or not or whether such misbehaviour can incur forfeiture depends on the particular circumstances of each case. The list of such act which constitutes misbehaviour is not closed. It is still open to the court in every case brought before it to consider the complaint of the over lordagainst his customary tenant and to determine whether the complaint is well founded and whether having regard to the circumstances; the acts complained of are so serious as to warrant the forfeiture of the customary tenancy.’

Again this court in the case of Ladega V. Akinloye(1969) NSCC 409 at 413 held the view that where a suit is brought against a customary tenant for forfeiture of tenure, such a tenant cannot be granted a relief from forfeiture unless he asks for it.

In the matter at hand, the High Court was seized of the case in its appellate jurisdiction.It goes without saying therefore that there was no claim laid before it relating relief of forfeiture. The 3rd and 4th reliefs granted on its judgment were not therefore asked of the court by any of the parties. Put differently and for emphasis, I will repeat that a court has no power to award a party that which he did not claim. An appeal is not a different case from that which was instituted at the trial court. It is simply a mere continuation. See the case of Obioma V. Olomu (1967) NMLR 245.

As rightly held by the lower court, the orders made by the High Court and the subject of complaint are particularly objectionable because they were made after the court had dismissed the appeal. In other words in dismissing the appeal, the learned High Court Judges at page 116 of the record said:-

‘In the light of all we have said above, we are of the strong opinion that the defendant/appellant has nothing to urge in his favour regarding this appeal which must be dismissed………..”

I further wish to recapitulate as shown on the record that in its earlier findings and before the dismissal order made at page 116 as spelt out supra, the High Court at page114 of the record held the view that:-

 

COUNSELS

P. O. Okolo, Esq., with Usman Sani Esq., for the Appellant.

Ayo Jonathan, Esq., with Ominiyi Sunday, Esq., and Sabo Ibrahim Esq., for the Respondent.

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