UDO v. WAKEHAM & ANOR
(2020)LCN/15660(CA)
In the Court of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, November 04, 2020
CA/C/509/2019
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
HammaAkawuBarka Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
CHIEF ROBERT SAMUEL UDO APPELANT(S)
And
1. EFFIOANWAN EFFIOM WAKEHAM 2. DR. INYANG AKPANIKA UKOT RESPONDENT(S)
RATIO:
THE ISSUE OF DAMAGES IN THE ASPECT OF SOLICITOR’S FEES
I believe that the only legal fees recoverable as such are those that are statutorily fixed, like conveyance fees. A Barrister’s Fees could never be recovered in the manner sought here. For this I find support in NWANJI VS. COASTAL SERVICES (NIG) LTD. (2004) 11 NWLR PT. 885 552 where the Supreme Court was called upon to consider the propriety of an award of N20,000.00 being legal fee paid by the Respondent in a suit arising out of Appellantsbreach of contract. At page 568 Uwaifo JSC quoting with approval what he said as a Court of Appeal Justice in IHEKWOABA VS. ACB LTD. (1998) 10 NWLR PT. 571 said:
“The issue of damages as an aspect of solicitor’s fees is not one that lends itself to support in this country. There is no system of costs taxation to get a realistic figure. I do not therefore see why the Appellants will be entitled to general damages or any damages— on grounds of Solicitor’s cost paid by them.”
THE QUESTION OF JURISDICTION OF THE COURT IS RADICAL AND CRUCIAL QUESTION OF COMPETENCE
In the instance case, it is clear in terms of the second rule laid down in the case of MADUKOLU VS. NKEMDILIM (supra) that there are features in suit No. HC/188/2016 which prevented the Court from exercising jurisdiction – as the jurisdiction of the Court could not possibly be exercised on two different and separate claims and reliefs in a single suit.
It goes without saying that the question of jurisdiction of Court is a radical and crucial question of competence because if as in the instant case a Court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio, no matter how well conducted and brilliantly decided they might be because a defect in competence is not intrinsic but extrinsic to the entire process of adjudication.
MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice EffiomEyoIta of the Cross River State High Court sitting in Calabar delivered on 28th October, 2019.
Suit No. HC/188/2016, the subject matter of this appeal was initiated by the 1st Respondent/Claimant against the Defendant/Appellant by a Writ of Summons accompanied by a statement of claim of 18th April, 2016 wherein the Claimant/Respondent claimed against the Defendant/Appellant as follows:-
i. A DECLARATION that the piece or parcel of land measuring approximately 1604.665 SQ meter belongs to the Claimant.
ii. A DECLARATION that the Defendant’s entry and erection of structures on the Claimant’s land constitutes trespass.
iii. A DECLARATION that the actions of the Defendant in trespassing into the said land and harassing the Claimant is malicious, highhanded, ill-motivated, callous’ wicked, illegal, totally unwarranted and unreasonable.
iv. AN ORDER directing the Defendant to pay to the Claimant the sum of N3,000,000.00 (Three Million Naira) being the amount the Claimant spent to erect anuncompleted six bedroom apartment which the Defendant broke down.
v. AN ORDER of perpetual injunction against the Defendant, his privies and assigns from dealing in any manner adverse to the interest of the Claimant.
vi. N10,000,000.00 (Ten Million Naira) as damages for trespass.
vii. AN ORDER directing the 1st Defendant to pay the cost of this suit assessed at N1,000,000.00 (One Million Naira) only.
viii. N20,000,000.00 (Twenty Million Naira) only as General Damages against the Defendant.
Subsequently, the Defendant filed statement of Defence and indeed Amended Statement of Defence to the claims of the Claimant/Respondent.
On 15th December, 2016, one Barrister Samuel Elkanah Akpabio brought a Motion on Notice to join Dr. Inyang AkpanikaUkot the present 2nd Respondent as 2nd Defendant in the suit.
On 20th day of February, 2017, the learned trial judge contrary to the prayer in the 2nd Respondent’s Motion of 15th December, 2016 gave a ruling on the Motion and joined the 2nd Respondent as 2nd Claimant.
Thereafter, the 2nd Respondent as 2nd Claimant in the same Suit No. HC/188/2016 filed his 2nd Claimant’sStatement of Claim on 20th March, 2017 and claimed against the 1st Claimant and Defendant jointly and severally in paragraphs 30 and 31 of the said pleading as follows:
30. The 2nd Claimant avers that the area of trespass into his land is verged – GREEN on the said plan No. JUB/CR/006/2016 (LD) and on the LEGEND thereof it is shown as follows:-
“LAND OCCUPIED BY CHIEF ROBERT SAMUEL UDO EARLIER SOLD TO DR. INYNAG UKOT AS REPRESENTED IN PLAN NO. EEA/CS/116/2015 & 117/2015 VERGED GREEN.”
31. The 2nd Claimant avers that the activities of the Defendant have caused him untold hardship and has prevented him from developing the land as he desired to; and thus suffered damage and claim against the 1st Claimant and Defendant jointly and severally as follows:-
1) A Declaration that the piece of land measuring 1013.140 sq meters more particularly shown on plan No. ZAP/6685/08 of 21st January, 2008, made by I. E. INYANG. ANIS now revalidated by plan No. JUB/CR/1200/16 of 10th August, 2016 prepared by J. U. UKAMA is the land of the 2nd Claimant.
2) A declaration that the Defendant’s entry and erection of structures on 2ndClaimant’s land is an act of trespass against the 2nd Claimant.
3) An order of this Honourable Court directing the Defendant to quit the land in dispute more particularly delineated on plan No. ZAP/6685/08 of 21st January, 2008 and also on the revalidated plan No. JUB/CR/1200/16 of 10th August, 2016 and also verged Blue on plan No. JUB/006/2016 of 15th August, 2016.
4) An order of this Honourable Court directing the Defendant to pay the sum of N3,000,000.00 (Three Million Naira) being the value of the two uncompleted buildings on 2nd Claimant’s land in dispute at the time of their destruction by the Defendant.
5) An order of perpetual injunction against the 1st Claimant and the Defendant, their agents, privies, assigns and cohorts from entering into the land in dispute and from dealing in any manner against the interest of the 2nd Claimant on the land in dispute.
The Defendant/Appellant filed separate Amended Statement of Defence to the pleadings of the 1st and the 2nd Respondent/Claimant and the 1st and the 2nd Respondent/Claimant filed separate Replies to the Defendant’s/Appellant’s Amended Statements ofDefence.
The case went into trial and the learned trial judge entered judgment in favour of the 1st and the 2nd Claimant/Respondent respectively against the Defendant/Appellant on pages 737 – 739 of the Record of Appeal as follows:-
In the end result I enter judgment on the claims of the 1st and 2nd Claimants as follows:-
1. I declare that all the land measuring 1604.665 sq meters shown on Exhibit 1 in these proceedings belonged to the 1st Claimant from 1993.
2. I declare that land measuring 1013.140 sq meters, part of the land shown on Exhibit 1, shown on a Survey Plan attached to Exhibit 11 in these proceedings, belongs to the 2nd Claimant, the 1st Claimant having sold same to 2nd Claimant in 2008.
3. I declare that the entry of the Defendant into the land described on Order 2 above is trespassory.
4. For the above trespass I award the sum of N2,000,000.00 (Two Million Naira) to the 2nd Claimant only because the land did not belong to the 1st Claimant when the Defendant trespassed into it.
5. Because I have held that Exhibits 12 and 17 were forgeries, particularly as they did not refer to Exhibits 5 and 11, I herebyset them aside.
6. The Defendant by himself, his agents, privies, assigns and cohorts are hereby restrained from the land described in Order 2 above.
7. I do not see my way clear in awarding relief No. vii being legal fee paid by the 1st Claimant to her solicitors because the Constitution of Nigeria allows everybody the use of Counsel of his/her choice. So, the choice to use a SAN or a more junior and less expensive Counsel is that of the citizen. A citizen may opt to use the services of a SAN to evict a tenant from his property, a brief that can be handled by any green horn straight from the Nigerian Law School, and pay the fees of the Senior Advocate. Why should somebody else pay for that choice.
I believe that the only legal fees recoverable as such are those that are statutorily fixed, like conveyance fees. A Barrister’s Fees could never be recovered in the manner sought here. For this I find support in NWANJI VS. COASTAL SERVICES (NIG) LTD. (2004) 11 NWLR PT. 885 552 where the Supreme Court was called upon to consider the propriety of an award of N20,000.00 being legal fee paid by the Respondent in a suit arising out of Appellantsbreach of contract. At page 568 Uwaifo JSC quoting with approval what he said as a Court of Appeal Justice in IHEKWOABA VS. ACB LTD. (1998) 10 NWLR PT. 571 said:
“The issue of damages as an aspect of solicitor’s fees is not one that lends itself to support in this country. There is no system of costs taxation to get a realistic figure. I do not therefore see why the Appellants will be entitled to general damages or any damages— on grounds of Solicitor’s cost paid by them.”
Based on the above authority and discussion claimant’s claim (vii) is refused and dismissed.
I assess and award cost of this action at N50,000.00 to EACH of the 1st and 2nd Claimants.
Dissatisfied with this judgment, the Defendant/Appellant filed a Notice of Appeal containing nine (9) grounds of appeal in this Court on 29th October, 2019.
The relevant briefs of Argument for the appeal are:-
1. Amended Appellant’s brief of Argument which was filed on 5th May, 2020 but deemed filed on 17th June, 2020. It is settled by Chief F. O. Onyebueke.
2. 1st and 2nd Respondent’s Brief of Argument filed on 14th July, 2020. Itis settled by Samuel Elkanah Akpabio.
3. Appellant’s Reply Brief which was filed on 27th August, 2020. It is settled by Chief F. O. Onyebueke.
Learned counsel for the Appellant nominated nine (9) issues for the determination of the Appeal. They are:-
1) Whether having regards to the failure as required by law the lower Court to conduct pre-trial conference in the suit, the Lower Court had jurisdiction to further proceed with the suit and determine same to finality. Distilled from ground one.
2) Whether or not the learned trial judge had properly evaluated the evidence particularly evidence of PW1 and DW11 place before him before entering judgment in favour of Claimant/Respondent. Distilled from ground two.
3) Whether the trial judge was in error to ignore the counter-claim of the Appellant as he never made any reference to the counter-claim in course of his judgment. Distilled from ground three.
4) Whether the learned trial judge was right to rely on evidence arising from cross-examination when the facts were not pleaded and there was no amendment to accommodate such evidence which is inconsistent with her pleading.Distilled from ground four.
5) Whether the trial Court was right to decide the issue of forgery of Exhibits 12 and 27, based on the particulars of fraud supplied by the Respondents or by the trial judge. Distilled from ground five.
6) Whether Co-Claimants can set up conflicting claims against themselves and to be represented by the same Counsel who testified for one of the Claimants. Distilled from ground six.
7) Whether the trial judge was right to rely on Exhibit 5 in giving judgment to the Respondents. Distilled from ground seven.
8) Whether having regard to Exhibit 19 – the Litigation Plan discredited by the 2nd Respondents’ witnesses, it was improper for the learned trial judge to have relied on the same Litigation Plan in giving judgment for the 2nd Respondent. Distilled from ground eight.
9) Whether after giving the 1st Respondent judgment in respect of all that land measuring 1604.655 square meters “from 1993” which was when she procured the entire land, and which land included the land in dispute, the learned trial judge could still give judgment to the 2nd Respondent in respect of any part of the sameland. Distilled from ground nine.
Learned counsel for the Respondents irregularly nominated ten (10) issues from the nine (9) grounds of Appeal contained in the Appellant’s Notice and grounds of Appeal.
After a careful perusal of the cases of the parties, this honourable Court on 14th September, 2020 caused hearing Notices to issue on the parties to this appeal through their counsel to further file written Addresses on:-
“Whether Suit No. HC/188/2016 was properly constituted at trial. AND/OR whether the learned trial judge has jurisdiction to try the two separate actions of the 1st Claimant/Respondent and that of the 2nd Claimant/Respondent against the Defendant/Appellant in the same Suit No. HC/188/2016.”
On 6th October, 2020 counsel to the Respective parties adopted their written Addresses on the question posed by this Honourable Court.
Learned counsel for the Appellant submitted that it is not in doubt that the two Respondents as Claimants in the Court below had different claims. That the 1st Respondent reliefs against the Appellant are contained on pages 6 to 7 of the Records, while the reliefs of the 2ndRespondent are contained on pages 378 to 379 of the Records.
He noted that while the 1st Respondent claimed the land measuring 1604.665 SQ against the Appellant, the 2nd Respondent claimed a land measuring 1013.140 SQ meters. That both Respondents claimed separately against the Appellant for special and general damages.
He submitted that the Respondents had separate actions as shown in their various statement of claims with different reliefs against the Appellant, though the 2nd Respondent in his statement of claim also claimed against the 1st Respondent by way, of perpetual injunction.
Learned counsel for the Appellant submitted that the land in question is one piece of land, though the Respondents in their disarray and lack of common interest, gave the land different dimensions. That while the 1st Respondent gave the dimension of the land as 1604.665 SQM, the 2nd Respondent gave the dimension of the same land as 1013.140 SQ.
He submitted that from the proceedings and the judgment of the Court below, it is obvious that, the Respondents had separate actions tried together against the Appellant. The interest of the Respondents areconflicting and in disarray. Their interests are not common and as a result could not act together.
He reasoned that the trial Court had no jurisdiction to try the two actions together. He referred to the case of EJEZIE VS. ANUWU (2008) 12 NWLR (part 1101) 446 at 470 – 471 where it was held that no person can be in the same suit be both the Plaintiff and the Defendant even in different capacities Plaintiffs in a suit cannot set up conflicting interests otherwise such conflict supports the case of the Defendant.
He urged us to hold that the learned trial judge had no right to try two separate claims against the Appellant and the claims be dismissed while judgment be entered for the Appellant in respect of the counter claim.
Learned counsel for the Respondent submitted that suit No. HC/188/2016 was instituted against the Appellant on 18th April, 2016 by the 1st Respondent as contained on pages 1 -3 of the Records. That the 2nd Respondent subsequently brought a motion to be joined as a 2nd Defendant in the said suit, however that the trial Court in his wisdom (even though the 2nd Respondent applied to be joined as the 2nd Defendant) ruledthat the 2nd Respondent be joined as 2nd Claimant.
He referred to the provision of Order 15 Rule 1 of the Cross River State High Court (Civil Procedure) Rules 2008, the case of CROSS RIVER STATE NEWSPAPER CORPORATION VS. MR. J. L. ONI & 6 ORS. (1995) 2 NWLR (pt. 371) 270 where it was held in interpreting the provision of Order 8 Rule 1 of the High Court (Civil Procedure) Rules, Oyo State 1978 that –
“joinder of persons or parties in one action as Plaintiffs as well as joinder of causes of action, are clearly permissible —“
Learned counsel for the Respondent submitted further that the trial judge noted that both the party seeking to be joined (2nd Respondent) and the Appellant were both claiming to have bought the land in issue from the 1st Respondent in various transactions, and so the Court was interested in determining who actually validly bought the land from the 1st Respondent.
Respondent’s counsel added that to avoid a multiplicity of suits on the same issue, the trial Court joined the party seeking to be joined in suit No. HC/188/2016. He submitted that the suit was properly constituted because the properparties that were required before the Court for a full and final adjudication on the issues involved were brought before the Court. He referred to the case of ALHAJA RAFATU AYORINDE VS. AIRAT ONI (2000) FWLR (pt. 3) 445 at 447 where the Supreme Court held that-
“At the commencement of a trial, a properly constituted action must contain the Plaintiff, a Defendant and the claim against the Defendant.”
He urged us to find and hold that the suit was properly constituted when the said Dr. Inyang AkpanikaUkot was joined as a Claimant in the said suit No. HC/188/2016 and that the trial Court had jurisdiction to join him.
It would be recalled that the sole question here is:
“Whether Suit No. HC/188/2016 was properly constituted at trial. AND/OR whether the learned trial judge has jurisdiction to try the two separate actions of the 1st Claimant/Respondent and that of the 2nd Claimant/Respondent against the Defendant/Appellant in the same suit No. HC/188/2016.”
As a starting point, provisions in the various High Court Rules generally permit the joinder of parties in a suit either as Plaintiffs or Defendants. Also,various provisions in our High Court Rules permit the joinder of related causes of action in one action.
See e.g. Order 15 Rules 1 and 4 of the Cross River State High Court (Civil Procedure) Rules 2008.
Order 8 Rule 1 Oyo State High Court (Civil Procedure) Rules 1978.
Also, CROSS RIVER STATE NEWSPAPER CORPORATION VS. MR. J. L. ONI & 6 ORS. (1995) 2 NWLR (Pt. 371) 270.
In any or all of the situations as contemplated by those Rules of Court, a party may be joined as Plaintiff or Defendant in a single cause of action. OR, the Court by an Order of consolidation may join related causes of action in a single but consolidated suit.
The error of the learned trial judge in the instant case which could not be accommodated by any Rule of Court is to have joined two separate actions, by the 1st Claimant/Respondent and the 2nd Claimant/Respondent claiming different reliefs against the Defendant/Appellant.
Ironically, the 1st Claimant/Respondent even claimed against the 2nd Claimant/Respondent in the same suit No. HC/188/2016.
In effect, there were two separate and indeed conflicting claims against the Defendant/Appellant, that wereall tried together in Suit No. HC/188/2016.
For this reason, the error of the learned trial judge in suit No. HC/188/2016 goes beyond the permissible rules of joinder of parties or joinder of causes of action in one action but irregularly and fundamentally became the trial of two separate actions, two sets of reliefs in one suit. It thus becomes clear that the learned counsel for the Appellant was right to say that the suit was not properly constituted and that the learned trial judge lacked the necessary vires to have adjudicated on same.
Incidentally, the decision of the Supreme Court in the case of ALHAJA RAFATU AYORINDE VS. AIRAT ONI (supra) cited by the learned counsel for the Respondent in support of his case is actually in favour of the Appellant’s case in this appeal.
In that case, the Supreme Court held that-
“At the commencement of a trial, a properly constituted action must contain the Plaintiff, a Defendant and the claim against the Defendant.”
However and contrary to the tenet of the above decision by the Supreme Court, the instant case was constituted with two separate actions, two separate reliefs, bytwo separate Claimants in the same Suit No. HC/188/2016. The vital ingredients of jurisdiction as a practical legal concept are captured in the legendary pronouncement of Bairamain F. J in the celebrated case of MADUKOLU VS. NKEMDILIM (2006) L C 208, (1961) NSCC (VOL. 2) 374 at 379 when he stated thus:-
“Before discussing those portions of the records; I shall make some observation on jurisdiction and the competence of a Court. Put briefly, a Court is competent when-
1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising jurisdiction; and
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication. If the Court is competent, the proceedings are not anullity.”
See also. TUKUR VS. TARABA STATE (1997) 6 SCNJ 81; IHESI VS. ARINZE (2007) 5 NWLR (PT. 1027) 241; GOJI VS. EWETE (2007) 6 NWLR (pt. 1029) 72; A-G. KANO STATE VS. A-G. FED. (2007) 6 NWLR (pt. 1029) 164; DAIRO VS. U.B.N. PLC. (2007) 16 NWLR (pt. 1059) 99; NASHTEX INTL. LTD. VS. HABIB (NIG) BANK LTD. (2007) 17 NWLR (pt. 1063) 308; DIAMOND BANK LTD. VS. UGOCHUKWU (2008) 1 NWLR (pt. 1067) 1; S. T. B. PLC VS. OLUSOLA (2008) 1 NWLR (pt. 1069)561; ANYOHA VS. CHUKWU (2008) 4 NWLR (pt. 1076) 31; AKINGBEHIN VS. THOMPSON (2008) 6 NWLR (pt. 1083) 270; WAEC VS. ADEYANJU (2008) 9 NWLR (pt. 1092) 270; OJO VS. INEC (2008) 13 NWLR (pt. 1105) 577.
For the jurisdiction of a Court to be ripe for hearing a matter, the three ingredients as stated in the case of MADUKOLU VS. NKEMDILIM (supra) must co-exist conjunctively. See UMANAH VS. ATTAH (2006) 17 NWLR (pt. 1009) 503; USANI VS. DUKE (2006) 17 NWLR (pt. 1009) 610; NWAOGWUGWU VS. PRESIDENT, FRN (2007) 6 NWLR (pt. 1030) 237; UZOHO VS. NCP (2007) 10 NWLR (pt. 1042) 320; ACTION CONGRESS VS. INEC (2007) 18 NWLR (pt. 1065) 50; A-G, BENUE STATE VS. UMAR (2008) 1 NWLR (pt. 1068) 311; NJIKONYE VS. MTN NIG. COMM. LTD.(2008) 9 NWLR (pt. 1092) 339.
In the instance case, it is clear in terms of the second rule laid down in the case of MADUKOLU VS. NKEMDILIM (supra) that there are features in suit No. HC/188/2016 which prevented the Court from exercising jurisdiction – as the jurisdiction of the Court could not possibly be exercised on two different and separate claims and reliefs in a single suit.
It goes without saying that the question of jurisdiction of Court is a radical and crucial question of competence because if as in the instant case a Court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio, no matter how well conducted and brilliantly decided they might be because a defect in competence is not intrinsic but extrinsic to the entire process of adjudication.
See DAPIANLONG VS. DARIYE (2007) 8 NWLR (pt. 1036) 332 SC; OFIA VS. EJEM (2006) 11 NWLR (pt. 992) 652 at 653; ODESSA VS. FRN (No. 2) 2005 10 NWLR (pt. 934) 528; KASUNMU VS. SHITTA-BEY (2006) 17 NWLR (pt. 1008) 372; GAFAR VS. KWARA STATE (2007) 4 NWLR (pt. 1024) 375; BAMISILE VS. OSASUYI (2007) 10 NWLR (pt. 1042) 225; UGO VS. UGO (2008) 5 NWLR(pt. 1079) 1; OMAYE VS. OMAGU (2008) 7 NWLR (PT. 1087) 477.
In the instant case the learned trial judge was wrong and lacked jurisdiction to have embarked on adjudicating on suit No. HC/188/2016 when the suit was constituted by two different actions by two different Claimants with different reliefs against the Defendant/Appellant and indeed with claims by the 2nd Claimant/Respondent against the 1st Claimant/Respondent.
The question posed to the parties by this Honourable Court is resolved against the Respondents.
This appeal is meritorious and it is allowed.
The judgment and orders of Hon. Justice EffiomEyoIta of the High Court of Cross River State Calabar, delivered on the 26th day of October, 2019 in Suit No. HC/188/2016 are hereby set aside.
Suit No. HC/168/2016 is accordingly struck out.
Parties to this appeal shall bear their respective costs.
HAMMA AKAWU BARKA, J.C.A.: The judgment of my Lord MOJEED ADEKUNLE OWOADE, JCA just read, was given to me in draft.
I agree with the resolution of the lone issue and thereby hold that the action before the lower Court be struck out for being incompetent and the judgmentthereon set aside. I abide on order on costs made in the lead judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother Mojeed A. Owoade, JCA, just delivered.
I agree entirely that the learned trial judge was wrong to have embarked on adjudication on suit No. HC/188/2016 when the suit was constituted by two different actions and by two different claimants with different reliefs against the defendant/appellant together with claims by the 2nd claimant/respondent against the 1st claimant/respondent. Thus, the jurisdiction of the trial Court cannot be exercised on two different and separate claims and reliefs in a single suit. The appeal is no doubt meritorious and since the lower Court lacked the jurisdiction to hear and entertain suit No. HC/188/2016 same is hereby struck out.
Appearances:
CHIEF F. O. ONYEBUEKE, ESQ.For Appellant(s)
A. A. AGIM, ESQ.For Respondent(s)