(2018) LPELR-44444(CA)

Transcription

1 EDELSTEIN (NIG) LTD & ANOR v. ONUSABA CITATION: In the Court of Appeal In the Abuja Judicial Division Holden at Abuja ON TUESDAY, 27TH FEBRUARY, 2018 Suit No: CA/A/528/2011 ABUBAKAR DATTI YAHAYA TINUADE AKOMOLAFE-WILSON MOHAMMED MUSTAPHA 1. EDELSTEIN (NIG) LTD 2. J.E. UDOMEH Before Their Lordships: Between And ALHAJI MUSA ONUSABA (For himself and on behalf of Ehebe clan) Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. APPEAL - REPLY BRIEF: Whether a preliminary objection can be raised in a reply brief "The appellants in their reply to the respondents' brief filed on the 17th of November, 2016, but deemed properly filed on the 23rd of January, 2018 raised a preliminary objection, challenging the respondents' issue number two as formulated and argued by the respondents, as well as respondents' argument at paragraph 3.6 of the respondents' brief, which deals with the trial Court's comments regarding the respondents' awareness of suit No. HAU/45/92. It is unheard of, to say the least, for an appellant to raise a preliminary objection in a reply brief, not least because, it not only overreaches the respondent, denies the respondent a right of reply, and therefore unfair, but also because a preliminary objection can only be rightfully raised by the respondent, and not the appellant, and even then the objection has to be raised and argued before the hearing of the appeal, and not after the appeal is argued, otherwise it will be a mockery of the right to fair hearing; see CHARLES CHIKWENDU ODEDO v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2007) ALL FWLR (Pt. 392) 1907, CHIEF EMMANUEL OSITA OKEREKE v. ALHAJI UMARU YAR'ADUA & ORS. (2008) 12 NWLR (pt. 1100) 95, RALPH UWAZURIKE v. ATTORNEY-GENERAL, FEDERATION (2007) 8 NWLR (Pt.1035) 1, GOVERNOR, EKITI STATE v. INDEPENDENT COMMUNICATION NETWORK & 3 ORS. (2012) 10 WRN 147 at and, DR. ERATUS B.O. AKINGBOLA v. THE CHAIRMAN, ECONOMIC & FINANCIAL CRIMES COMMISSION (2012) 9 NWLR (Pt.1306) 475 at 497. A preliminary objection cannot also be raised by guise of issues for determination, not least because issues for determination and preliminary objection do not have a common objective. A preliminary objection automatically puts an end to the case without determining the rights of the parties, while issues for determination presupposes that the case is, all things being equal, on course for hearing. An issue for determination on the other hand is a combination of facts and the law on a particular point which when decided affects the fate of the appeal and it must relate to the grounds of appeal; See ONIFADE v. OLAYIWOLA (1990) 7 NWLR (Pt. 161) 130 SC and MOMODU v. MOMOH (1991) 1 NWLR (Pt.169) 608 SC. Issues for determination and preliminary objection are more or less strange bedfellows and so, to disguise one in the garb of the other may be ingenuous, but fool hardy. Now in view of these, the preliminary objection is discountenanced, because among other things, it was not argued, and so deemed abandoned."per MUSTAPHA, J.C.A. (Pp. 7-9, Paras. C-C) - read in context

3 2. COURT - JURISDICTION: Guiding principles for the exercise of jurisdiction "Now having said that, in determining the jurisdiction of a Court, the enabling law vesting jurisdiction has to be taken in the light of the reliefs sought. The moment the reliefs come within the jurisdiction of a Court, the Court must assume jurisdiction. Conversely, where the reliefs sought do not come within the jurisdiction of the Court as presented by the facts, the Court must decline jurisdiction; Jurisdiction is always clear and specific; see A-G LAGOS STATE V DOSUNMU (1989) 3 NWLR Pt. 111 Pg.552. Generally speaking every Court is clothed with jurisdiction, by statute or the Constitution, but where a Court exercises jurisdiction in a matter which it does not possess, the decision, no matter how well thought out or well intentioned becomes an exercise in futility, because it is a nullity from beginning to end. It is for this reason that it is necessary for every Court to ensure that it has the requisite jurisdiction before embarking on the hearing of the matter to avoid an exercise in futility; See PETROJESSICA ENTERPRISES LTD & ANOR V LEVENTIS TECHNICAL COY. LTD (1992) 5 NWLR (Pt 244) 675, OSADEBAY V A.G. BENDEL STATE (1991) 1 NWLR (pt.169) 525, OWONIBOYS TECH. SERVICES LTD V. JOHN HOLT LTD. (1991) 6 NWLR (pt. 199) 550."Per MUSTAPHA, J.C.A. (Pp. 9-10, Paras. D-D) - read in context 3. JUDGMENT AND ORDER - SETTING ASIDE JUDGMENT/ORDER: Whether a judge has the power to set aside the judgment or order of another judge of concurrent and coordinate jurisdiction "Against this background, it is indeed clear that the trial Court had jurisdiction to hear and determine the suit, because there is no doubt that the land is in Okene Local government area of Kogi State within the jurisdiction of the trial Court. Now having submitted itself to the jurisdiction of the trial Court in an earlier dispute before the High Court in Kogi State, in KGS/OK/22/96, one wonders why the appellants who accused the respondents of failing to join the suit in the Edo High Court themselves failed to bring this fact to the attention of the Edo High Court. If they did, but the Edo High Court overruled the jurisdiction or the judgment of the Kogi High Court, that in itself would clearly be wrong, because the general position of the law is that a Court of coordinate jurisdiction has no jurisdiction to set aside the judgment of another Court of similar jurisdiction, because that is the function of an Appellate Court, except of course where an order of a Court is a nullity, ab initio, in which case such an order could be set aside by another Court of similar jurisdiction without much ado; See the cases of SKEN CONSULT NIG. LTD. v. UKEY (1981) 1 SC 6 and OKOYE v. NC & F CO. LTD. (1991) NWLR (pt. 199) 50."Per MUSTAPHA, J.C.A. (Pp , Paras. F-E) - read in context

4

5 MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kogi State High Court, sitting at Okene; Coram Hon. Justice S.O. Otu, delivered on the 15th day of October, 2010; in Suit No: KGS/OK/23C/2000. Facts in Brief: The 1st appellant and the respondent herein entered into a Lease Agreement on 24/07/1992, the Respondent on behalf of the Ehebe family leased to the 1st Appellant's Company portions of their land situated at ORUKUNOBO area of Adogo Oguda in Okene LGA of Kogi State for mining. The Appellants, who were earlier in compliance with the terms of the Lease Agreement with the Respondent, however stopped paying rent, contending that they cannot continue paying rent since the High Court of Justice Auchi had delivered judgment on the 12th of October 1994, in suit No HAU/45/92 between the appellants and Alhaji Ado Ibrahim and Co., who had claimed ownership of the land, in the said judgment the land in dispute was held to be in Edo State, as per Exhibit DD & DD1 at pages of the record of appeal. 1

6 While the said suit lasted, the Respondent after being informed by the Appellants in a letter marked as "Exhibit C" never made any effort to join that suit as parties. Thereafter, the Respondent instituted this action before the trial Court by Writ of Summons filed on the 10th day of August, 2000 and Statement of Claim dated 12th day of July, 2001; claiming against the Appellants/Defendants among others: 1. Whereof the Plaintiffs claim a declaration that they are the traditional owners of Rukunobo Adogu, Oguda lands in Okene Local Government Area (sic) of Kogi State. 2. Whereof the Plaintiff claim as debt the sum of N1, against the Defendant jointly and severally being:- a. Yearly rents of N100,000 from 1997 till year 2000 N400,000.00; b. Monthly N20, from June, 1996 to July 2000 = N1,000, Total = N1,400, The High Court Okene, Kogi State delivered judgment in KGS/OK/23/2000 in favour of the respondents, dissatisfied with the decision of the trial Court the appellants now appealed to this Court vide a Notice of Appeal dated 11th November, 2010; on the following grounds shorn of their respective particulars:

7 2

8 GROUND ONE: The Learned Trial Judge having firmly stated that: the territorial jurisdiction of this Court is Kogi State while that of the Court in Suit No. HAU/45/92 is in Edo State" erred in law by proceeding to hear and determine a matter which is exclusively outside its jurisdiction. GROUND TWO: The Learned Trial Judge erred in law when he found that the awareness of the claimants of Suit No. HAU/45/92 did not call for their joining because their title was not being challenged in that suit. J.I. Odibeli Esq.,. of counsel for the Appellants formulated two issues for the determination of this appeal in their brief filed on the 12th April, 2013 but deemed properly filed on the 23rd January, 2018; thus:- 1. Whether the learned trial judge had the requisite jurisdiction to hear and determine the case; (Ground 1). 2. Whether the learned trial judge was right to have held that the awareness of the Claimants (Respondents) herein of Suit No HAU/45/92 did not call for their joining the Suit. (Ground 2). In response, John Uchechukwu Barrah Esq., of counsel for the Respondent also formulated two issues for the 3

9 determination of this appeal in the Respondent's Brief filed on the 18th day of April, 2016; thus:- 1. Whether or not the learned trial judge had the jurisdiction to entertain and determine this case? 2. Whether or not the claimants were entitled to the judgment of the Court below which was entered in their favour. Appellants' Reply, Brief was filed on the 17th November, The appeal will be determined on issues formulated by learned counsel for the appellants. ISSUE ONE: Whether the learned trial judge had the requisite jurisdiction to hear and determine the case; (Ground 1) It is submitted for the appellants on this issue that a Court has to have jurisdiction before it can hear and determine any case, and it is for this reason that the appellants in defense to the respondents' claim at trial pleaded the fact that the land is the subject matter of a suit at Auchi High court in HAU/45/92, in which judgment was delivered, declaring that the land in dispute is in Edo state and not Kogi state; learned counsel referred this Court to BRAITHWAITE V G.D.M (1998) 7 NWLR part 557 page 307 at 340 and paragraphs 3, 4, 5 and 9 of the statement of defense.

10 4

11 That the evidence of DW1 as well as Exhibits DD and DD1 were neither cross examined nor contradicted, as such the trial Court ought to have declined jurisdiction because the land was shown to be outside the jurisdiction of the trial Court; learned counsel referred this Court to RIVERS STATE GOVERNMENT V SPECIALIST KONSULT (2005) 7 NWLR part 923 page 145 and NGIGE V ACHUKWU (2005) 2 NWLR part 909 page 123. Learned counsel further submitted that the judgment of the Auchi High Court, a competent Court is valid until set aside, and its decision that the land in dispute is in Edo State subsists, he referred the Court to EZOMO V N.N.B PLC (2006) 14 NWLR part 1000 page 624, OTU v ACB (INT.) BANK PLC (2008) 3 NWLR part 1073 page 179 and KAMALU & ORS V UMUNNA & ORS (1997) SC Page 36. That the trial Court would have come to a different conclusion, if it had considered the judgment of the Auchi High Court in HAU/45/92 which held that the land leased to the appellants by the respondents is in Edo State and not Kogi State. 5

12 It is submitted for the respondent on this issue that the question of jurisdiction as it relates to a trial Court is dependant on the writ of summons and statement of claim, and not the defense, learned counsel referred this Court to NIPOST V MORDI (2008) ALL FWLR part 424 page 1544 and MICROSOFT CORP V FRANIK ASS LTD (2012) 3 NWLR part 1287 page 301. That the appellant cannot raise the issue of jurisdiction now, when in the previous suit they had submitted themselves to the jurisdiction of the High Court of Justice Kogi State over the same land and upon the same agreement. Learned counsel further submitted that it was not enough for the appellants to contend that the land in dispute in the present suit was the land in the plan tendered in the suit in Edo state, without evidence to support that contention, the evidence of a surveyor or of an expert was necessary to read the purported plan and to link it with the land in dispute in the present suit, learned counsel referred this Court to DWEYE & ORS V. IYOMAHAM & ORS (1983) 2 SCNLR 135, CHIEF P.A. ADENE V ALH. l. DANTUNBU (1994) 2 NWLR part 328 page 509. That where there is evidence as in this case, that the appellants occupy lands that cut across Edo and Kogi 6

13 State on lands that belongs to the respondents' clan and the clan of Alh. Ado Ibrahim, the appellants need more than dumping a plan on the Court without a witness, as an expert to pin the land dispute and link it with the plan, because the plan may cover some areas but not the particular land in dispute; learned counsel referred this Court to EGWUNEWU V. EJEAGWU (2007) 6 NWLR Part 1031 Page 431. RESOLUTION: The appellants in their reply to the respondents' brief filed on the 17th of November, 2016, but deemed properly filed on the 23rd of January, 2018 raised a preliminary objection, challenging the respondents' issue number two as formulated and argued by the respondents, as well as respondents' argument at paragraph 3.6 of the respondents' brief, which deals with the trial Court's comments regarding the respondents' awareness of suit No. HAU/45/92. It is unheard of, to say the least, for an appellant to raise a preliminary objection in a reply brief, not least because, it not only overreaches the respondent, denies the respondent a right of reply, and therefore unfair, but also because a preliminary objection can only be rightfully 7

14 raised by the respondent, and not the appellant, and even then the objection has to be raised and argued before the hearing of the appeal, and not after the appeal is argued, otherwise it will be a mockery of the right to fair hearing; see CHARLES CHIKWENDU ODEDO v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2007) ALL FWLR (Pt. 392) 1907, CHIEF EMMANUEL OSITA OKEREKE v. ALHAJI UMARU YAR'ADUA & ORS. (2008) 12 NWLR (pt. 1100) 95, RALPH UWAZURIKE v. ATTORNEY-GENERAL, FEDERATION (2007) 8 NWLR (Pt.1035) 1, GOVERNOR, EKITI STATE v. INDEPENDENT COMMUNICATION NETWORK & 3 ORS. (2012) 10 WRN 147 at and, DR. ERATUS B.O. AKINGBOLA v. THE CHAIRMAN, ECONOMIC & FINANCIAL CRIMES COMMISSION (2012) 9 NWLR (Pt.1306) 475 at 497. A preliminary objection cannot also be raised by guise of issues for determination, not least because issues for determination and preliminary objection do not have a common objective. A preliminary objection automatically puts an end to the case without determining the rights of the parties, while issues for determination presupposes that the case is, all things being equal, on course for hearing. 8

15 An issue for determination on the other hand is a combination of facts and the law on a particular point which when decided affects the fate of the appeal and it must relate to the grounds of appeal; See ONIFADE v. OLAYIWOLA (1990) 7 NWLR (Pt. 161) 130 SC and MOMODU v. MOMOH (1991) 1 NWLR (Pt.169) 608 SC. Issues for determination and preliminary objection are more or less strange bedfellows and so, to disguise one in the garb of the other may be ingenuous, but fool hardy. Now in view of these, the preliminary objection is discountenanced, because among other things, it was not argued, and so deemed abandoned. Now having said that, in determining the jurisdiction of a Court, the enabling law vesting jurisdiction has to be taken in the light of the reliefs sought. The moment the reliefs come within the jurisdiction of a Court, the Court must assume jurisdiction. Conversely, where the reliefs sought do not come within the jurisdiction of the Court as presented by the facts, the Court must decline jurisdiction; Jurisdiction is always clear and specific; see A-G LAGOS STATE V DOSUNMU (1989) 3 NWLR Pt. 111 Pg

16 Generally speaking every Court is clothed with jurisdiction, by statute or the Constitution, but where a Court exercises jurisdiction in a matter which it does not possess, the decision, no matter how well thought out or well intentioned becomes an exercise in futility, because it is a nullity from beginning to end. It is for this reason that it is necessary for every Court to ensure that it has the requisite jurisdiction before embarking on the hearing of the matter to avoid an exercise in futility; See PETROJESSICA ENTERPRISES LTD & ANOR V LEVENTIS TECHNICAL COY. LTD (1992) 5 NWLR (Pt 244) 675, OSADEBAY V A.G. BENDEL STATE (1991) 1 NWLR (pt.169) 525, OWONIBOYS TECH. SERVICES LTD V. JOHN HOLT LTD. (1991) 6 NWLR (pt. 199) 550. The plaintiffs/respondents at trial pleaded their title, their agreement with the appellants, the earlier judgment in KGS/OK22/96, their claim that the land in question cuts across both Kogi and Edo states in paragraphs 5,6,7, 8, 11,12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 26, 27, 28, and 29 of their statement of claim; and it is clear from their pleadings, which is the determining factor for jurisdiction, 10

17 that the suit that led to this appeal is the second between the parties on the same subject matter between the parties, see paragraph 11 of the statement of claim at page 65 of the record of appeal. The earlier judgment in KGS/OK/22/96 was actually registered in Edo State on the 25th of August, 1997, see paragraph 15 of the statement of claim at page 66 of the record of appeal, and that judgment was not appealed or set aside, nor even a plea of res judicata raised, in the subsequent suit. Most importantly, paragraph 6 of the statement of claim at page 65 of the record of appeal clearly shows that the land, the subject matter of this appeal is situated at Rukunobo, Adogu, Oguda, in Okene Local Government area of Kogi State, and that much was clearly also stated in the lease agreement at paragraph 1, page 9 of the record of appeal. Against this background, it is indeed clear that the trial Court had jurisdiction to hear and determine the suit, because there is no doubt that the land is in Okene Local government area of Kogi State within the jurisdiction of the trial Court. 11

18 Now having submitted itself to the jurisdiction of the trial Court in an earlier dispute before the High Court in Kogi State, in KGS/OK/22/96, one wonders why the appellants who accused the respondents of failing to join the suit in the Edo High Court themselves failed to bring this fact to the attention of the Edo High Court. If they did, but the Edo High Court overruled the jurisdiction or the judgment of the Kogi High Court, that in itself would clearly be wrong, because the general position of the law is that a Court of coordinate jurisdiction has no jurisdiction to set aside the judgment of another Court of similar jurisdiction, because that is the function of an Appellate Court, except of course where an order of a Court is a nullity, ab initio, in which case such an order could be set aside by another Court of similar jurisdiction without much ado; See the cases of SKEN CONSULT NIG. LTD. v. UKEY (1981) 1 SC 6 and OKOYE v. NC & F CO. LTD. (1991) NWLR (pt. 199) 50. Exhibits DD and DD1 are judgments of the Auchi High Court in Edo state and a survey plan respectively tendered and admitted as exhibits at the trial in Auchi High Court. They are evidence that a High Court of coordinate jurisdiction delivered judgment in HAU/45/92. 12

19 Having said that it will be difficult to accept, with any degree of certainty, that the said judgment is in respect of the same land in dispute, on which the appellants and the respondents entered into an agreement on the 24th July, 1992, not least because the respondents are not parties to that agreement. This is moreso, because, by the appellants' own admission at page 81 of the record of appeal, in their letter of the 15th August, 1992, to the Ehebe clan landowners association, at paragraph three, the area in question fell within a zone that was claimed by both Okpella and Igbirra communities." It is further stated clearly, even in the statement of claim that the lands cut across both Kogi and Edo States, see paragraphs 20, 21 and 22. Earlier in the same paragraph of the letter the appellant had admitted, the ruler of the Okpetla people in Edo State acknowledged the land in dispute does not belong to the Okpella in Edo state, as a result of which he directed the appellants to the ruler of the Okene people. 13

20 It is the appellants' contention that their lease was challenged by one Ado Ibrahim in HAU/45/92, and they duly notified the respondents of the pendency of that suit through Exhibit C, a later dated 15th August 1992, but the respondents failed or neglected to join the suit. Now in view of the fact that the land cuts across both Edo and Kogi states, and the assurances in the said letter, it is safe to say that the respondents had every reason to believe the suit in question, may have little or nothing to do with their own portion of the land leased to the appellants, so their refusal to rush to join is understandable in view of that the Appellants appear to have gotten themselves tangled in a web, whether of their own making or not is another matter. It is for these reasons that this Court finds the trial Court to have the requisite jurisdiction to hear and determine the suit in question, accordingly this issue is resolved in favour of the respondents, against the appellants. ISSUE TWO: Whether the learned trial judge was right to have held that the awareness of the Claimants (Respondents) herein of Suit No HAU/45/92 did not call for their joining the Suit. (Ground 2).

21 14

22 It is submitted for the appellants on this issue that the plaintiffs/respondents were informed of a dispute over the land they leased from them through Exhibit C, as such the trial Court's finding that the respondents did not have to join the suit because their title was not challenged is misdirected. That there is nothing more of a challenge to the respondents' title than preventing the appellants' from working on the land leased to them. That the respondents who were aware of suit No. HAU/45/92 concerning the land leased to the appellants ought not to have stood by without joining or asserting their right of ownership over the land; learned counsel referred this Court to NKA V ONWU & ORS (1996) 40/41 LRCN 1303 and ALHAJA SABALEMOTU KAIYAOJA & ORS V EGUNLA (1974) 12 SC 55. Learned counsel submitted that the respondents cannot be heard to say that the judgment HAU/45/92 does not affect their land as they are bound by it. In response, it is submitted that the appellants' ground to which issue two relates is inconsequential to the decision of the trial Court, because there is no evidence before the trial Court that the agreement, Exhibit A, had been 15

23 nullified by either of the two Courts. Learned counsel urged this Court to overlook discountenance issue two. It is further submitted for the respondents that the appellants simply rested their case on the challenge to the jurisdiction of the trial Court when there is no dispute as to the validity of Exhibit A, which entitled the appellants to be on the land, and the decision of the trial Court in that regard has not been appealed against; learned counsel referred this Court todr RASAKI OSHODI & ORS V YISA OSENI EYIFUNMI & ORS (2000) 7 SCNJ 295 and ALH. AWESA ATANDA ADEYEMI & ORS V CHIEF SIMON MORONFOLU OLAKUNRI & ORS (1999) 12 SCNJ page 224. RESOULTION: The appellants appear to want the benefit of Exhibit A, the document which entitles them to the use of the land in dispute, and challenge its validity by Exhibit DD, the judgment in HAU/45/92, in what appears to be a case of two ends against the middle! Clearly none of the two decisions has invalidated Exhibit A, and for that reason, it is binding on both the appellants and the respondents; see OGUNYADE V OSHUNKEYE (2007) All FWLR part 1175 page

24 It is clear from the record of appeal, at page 81, by the appellants' own admission, the dispute between Alhaji Ado Ibrahim and the appellants did not displace the status of the respondents as owners of the land. This Court cannot help but agree with learned counsel to the respondents that the land in issue in the two cases are not the same, because again the letter of the 15th August, 1992, emanating from the appellants, states the lands cut across both Kogi and Edo States, thus lending credence to this belief. Accordingly this issue too is resolved in favour of the respondents, against the appellants. Having resolved both issues for determination in favour of the respondents, against the appellants, the appeal fails, and it is dismissed for lack of merit. Judgment of the trial High Court of the Kogi State delivered on 15th of October, 2010 is hereby affirmed. Cost of N50,000 is awarded against appellants. ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the leading judgment of my learned brother Mustapha JCA just delivered. I agree that the document which brought

25 17

26 about the relationship between the parties, is Exhibit A. It is the Lease Agreement in which the respondent leased the land in question, to the 1st appellant s company, which was to pay rents for the use thereof. There is nothing before the Court, to show that this Exhibit A has been nullified. It is therefore still subsisting, and its terms and conditions ought to be respected by the parties to it. It is the failure to honour the terms by the 1st appellant s company that led to the institution of the Suit. The trial Court had the requisite jurisdiction, to entertain the claims in the statement of claim founded on that Exhibit A. It has been submitted that the land spans over Kogi and Edo States. There is no firm evidence before the trial Court to show which part fell on Kogi State and which on Edo State. It was therefore clearly not enough to just waive the judgment in Edo State in HAU/45/92, in the face of the earlier judgment of Kogi State in Suit No. KGS/OK/22/96. For this and the fuller reason in the leading judgment, I find this appeal to be lacking in merit and I dismiss it. I abide by the Order as to costs. 18

27 TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the judgment just delivered by my learned brother, MOHAMMED MUSTAPHA, JCA. I am in agreement with the reasoning and conclusion and orders reached therein. 19

28 Appearances: J.I. Odibeli For Appellant(s) J.A. Muhammed For Respondent(s)