3PLR -ALHAJI IBRAHIM SHEKA V. ALHAJI UMARU BASHARI
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ALHAJI IBRAHIM SHEKA
V.
ALHAJI UMARU BASHARI
IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 26TH DAY OF APRIL, 2013
CA/K/330/2010
3PLR/2013/7 (SC)
OTHER CITATIONS
(2013) LPELR-21403(CA)
BEFORE THEIR LORDSHIPS
DALHATU ADAMU, CFR, JCA
ITA G. MBABA, CFR
HABEEB A. O. ABIRU, CFR
BETWEEN
ALHAJI IBRAHIM SHEKA – Appellant(s)
AND
ALHAJI UMARU BASHARI – Respondent(s)
REPRESENTATION
- A. Adolor with Moses Adolor – For Appellant
AND
- Bulama – For Respondent
ORIGINATING STATE
Kano State: High Court (Tani Yusuf Hassan J- Presiding)
MAIN ISSUES
REAL ESTATE/LAND LAW- POSSESSION OF PROPERTY OR PARCEL OF LAND::- Concept of possession – Meaning of possession of property or a parcel of land – Elements of possession – whether an agent or servant who occupies a premises belonging to his principal or employer in order to be able to perform his duties acquires an estate in the property – Test for determining whether a lease, a tenancy or a licence is created by the acts of the parties
REAL ESTATE/LAND LAW – LICENCES: – Types of licences and how constituted- ‘bare licence’. ‘licence coupled with a grant of interest’ ‘contractual licence for value’ – Whether a licensor can eject a licensee who remains in unlawful occupation after the termination of his licence by the use of force through self-help – Attitude of Court thereto
REAL ESTATE/LAND LAW – GRANT OF LINCENCE: Licence given gratuitously – How revoked – Failure of gratuitous licensee to leave the premises after revocation of licence – Whether constitutes him a trespasser as his continued occupation will be wrongful – Person who may issue valid notice of revocation
ESTATE PLANNING/ADMINISTRATION – WILLS:- Validity of will – Estate of childless woman whose appointed executor predeceased the proving of the Will – Whether can be contested at the instance of a stranger who is not a beneficiary thereunder – Proper way of contesting same – How treated
EMPLOYMENT AND LABOUR LAW:- Servant/Agent permitted to occupy a house by virtue of his employment – Whether a licensee of employer but a stranger to the tenancy agreement between employer and landlord – Nature of licence – Whether a servant whose occupation of the premises was subservient and necessary to the service which was his duty to render to the master has no estate or property whatsoever in the premises concerned save that of physical occupation – Whether such an agent or employee at all material time occupies the premises for his principal or employer who is regarded as being in possession – How such an agent is lawfully removed from premises and occupation
CHILDREN AND WOMEN LAW:- Women and Inheritance – Women and Property/Land – Childless couple and inheritance of their estates – Woman and her children who inherited an estate via will and other applicable laws from childless relatives – Refusal of employee managing portion of estate to give over possession and instead setting up an adverse claim – How treated
FAMILY LAW – INHERITANCE:- Childless couple – Inheritance of estate – Parties entitled under every law of Nigeria be it customary law, Sharia law or the English law
ETHICS – LEGAL PRACTITIONER:- Duty towards client in the drafting of pleadings, invocation of judicial precedent and traversing of opposing averments
PRACTICE AND PROCEDURE – ACTION:- Need for a party to be consistent in the case he presents in court via his pleadings, the evidence of his witnesses at trial and submissions of his Counsel
PRACTICE AND PROCEDURE – APPEAL- Determination of issues – Whether an appeal court is bound by the records of appeal – Whether an appellant can raise a fresh issue on appeal
PRACTICE AND PROCEDURE – PLEADINGS:- Civil proceedings – Averments and Reply briefs – Essence of – Failure of plaintiff to file a reply to averments in a Statement of Defence which were not taken care of by the averments in the Statement of Claim – Whether an aberration to the rule of pleadings for a plaintiff to canvass in his reply an allegation of fact or new ground of claim different from the one contained in the Statement of Claim
PRACTICE AND PROCEDURE – ACTION – PLEADINGS: Where plaintiff fails to file averments in a statement of defence – Whether to have admitted the averments
PRACTICE AND PROCEDURE – DOCTRINE OF JUDICIAL PRECEDENT:- meaning and application – Duty on any party seeking to rely on the doctrine of judicial precedent to relate the facts and circumstances of the earlier decisions to those of the present case – Attitude of court to failure thereto
PRACTICE AND PROCEDURE – EVIDENCE- BURDEN OF PROOF:- Civil proceedings – Burden of proof – On whom rests – Whether defendant has any burden where he makes no counter claim
WORDS AND PHRASES– “Tenancy” – Meaning
MAIN JUDGMENT
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Kano State in Suit No K/66/2009 delivered by Honorable Justice Tani Yusuf Hassan on the 21st of July, 2010. The claims of the Appellant, as plaintiff, before lower Court against the Respondent, as defendant, were for:
- A declaration by this Honorable Court that the action of the Defendant of forcefully ejecting and seizing the goods of the plaintiff as well as his moveable properties taken away from his shop at Kwari Market, Kano without issuing him with the mandatory statutory notice is unlawful.
- An order of this Honorable Court directing the Defendant to pay to the plaintiff the sum of N1,500,000.00 only being the value of the plaintiff’s goods seized by the Defendant or alternatively, directing the Defendant to return and hand over to the Plaintiff all his moveable properties and goods seized and taken away by the Defendant from the Plaintiff’s shop at Kwari Market, Kano.
iii. The sum of N2,000,000.00 as general damages for trespass and the detinue of the goods of the Plaintiff by the Defendant and general inconvenience and hardship occasioned by the said act of the Defendant.
- An order of this Honorable Court restoring the Plaintiff back into possession of the said shop at Kwari Market, Kano where the Defendant forcefully and unlawfully ejected him.
The matter went to trial and the Appellant called three witnesses in proof of his case while the Defendant called four witnesses. At the conclusion of trial, the lower Court entered judgment dismissing the entire claims of the Appellant, The Appellant was dissatisfied with the judgment and he caused to be filed a notice of appeal dated the 16th of September, 2010 against it and it contained four grounds of appeal.
The dispute in this matter revolved around a shop located, being and known as Shop 37/41 Kanti Kwari Market Fagge Takudu in Kano. The Defendant was the Managing Agent of the shop and he had been managing the shop for many years. The statement of claim of the Appellant in this matter was filed on the 9th of February, 2009 (see pages 5 to 7 of the records) and it was his case therein that he rented the said shop many years ago together with one late Hajia Maryam Siala and that both of them used the shop for their business of selling textile materials of assorted kinds until Hajia Maryam Siala died. It was his case that this fact of the joint usage of the shop by himself and late Hajia Maryam Siala was to the knowledge of the Respondent and that he paid a yearly rent of N200,000.00 to the Respondent since he became a tenant in the shop. It was his case that he usually bought goods for the shop on credit from his customers and that he paid up for the goods after selling them in the shop and that sometime in 2008, the Respondent used the Police to forcibly eject him from the shop and trumped up a criminal case against him.
It was the case of the Appellant that he was not issued with the requisite statutory notices to determine his tenancy before the Respondent trespassed into the shop and resorted to self help to take possession of the shop from him and that he was forcefully ejected from the shop and his good therein were taken away. It was his case that the value of the goods seized from him and detained by the Respondent was N1.5 Million and he gave a breakdown of the goods and their costs. It was his case that he suffered a great damage from loss of business and profit by reason of the forcible ejection and that he used to make a profit of N50,000.00 monthly in the shop. It was his case that his customers not only stopped supplying him with goods on credit as a result of the Respondent’s action but also started demanding for payment for the goods already supplied on credit and which were seized by the Respondent. It was his case that by reason of his being a tenant in the said shop, there was an implied covenant in his favour that he will have quiet enjoyment and possession of the shop and that the Respondent breached this covenant by resorting to self help.
The statement of defence of the Respondent, as defendant, was dated the 28th of April, 2009 (see pages 83 to 86 of the records) and the case of the Respondent therein was that he let out the shop in question to one Mustapha Siala as evidenced by a tenancy agreement dated 19th of May, 1971 and that on the death of Mustapha Siala, his wife, Maryam Siala took over the tenancy, It was his case that he had no tenancy arrangement with the Appellant and that the Appellant was only a salesman selling textile materials for Mustapha Siala, and was subsequently retained by Maryam Siala after the death of her husband on a weekly allowance. It was his case that he did not use the Police to recover possession of the shop from the Appellant but that he recovered possession by instituting an action in the Magistrate Court in Kano in Suit No KA/165/2008 against M. Siala and Najala Mustapha and that a consent judgment was entered by the Magistrate Court on the 27th of May 2008 and he was awarded possession of the shop. It was his case that he never made any criminal complaint to the police against the Appellant but that he was aware that one Najala Mustapha made such a complaint against the Appellant.
It was the case of the Respondent that the goods in the shop were taken away by the officers of the Court in the execution of a judgment of the Court and they were kept in the custody of the Court and that he was not in breach of any covenant with the Appellant and that the Appellant was not entitled to any statutory notice as there was no tenancy relationship between them. It was his case that the goods in the shop originally belonged to Mustapha Siala and later to his wife, Maryam Siala, and who in turn bequeathed them by her last Will dated 13th of February, 1995 to Mustapha Ajieli-Moudi, Nuha Ajieli-Moudi and Maryam Ajieli-Moudi, all children of Najla Mustapha.
In compliance with the Rules of this Court, the Appellant filed a brief of arguments dated the 2nd of December, 2010 and it consisted of eleven pages. The Respondent filed a brief of arguments consisting of nineteen pages and dated the 17th of January, 2011 and it was deemed properly fifed on the 24th of March, 2011. The Appellant filed a reply brief consisting of five pages and it was dated the 29th of March, 2011. At the hearing of the appeal on the 20th of March, 2013, Counsel to the Appellant and to the Respondent relied on and adopted their respective briefs of arguments.
In the brief of arguments, Counsel to the Appellant distilled four issues for determination and these were:
- Whether the Appellant was a proper tenant in the shop at No. 37/41 Kanti Kwari by virtue of his lawful occupation and possession of the shop and if so whether he is entitled to be given the statutory notices to quit.
- Whether it was not wrong for the learned trial Judge to consider and rely on the contents of an invalid *Will’ in holding that the Appellant was not a proper tenant because the *Will’ bequeathed the shop to Najia and her children who were not in possession of the shop at all material time.
iii. Whether the decision of the learned trial Judge was not perverse having regard to his failure to consider the facts of the plaintiff’s case and the laws relating to same as presented by the plaintiff thereby leading to miscarriage of justice.
- Whether the judgment of the learned trial Judge is not against the weight of evidence.
In his brief of arguments, Counsel to the Respondent also distilled four issues for determination in this appeal. Counsel to the Respondent adopted the third and fourth issues for determination formulated by the Counsel to the Appellant and he added two other issues thus:
- Whether from the facts of this matter the statutory notice issued by the Respondent as contained in page 119 of the printed record was a sufficient notice.
- Whether trial conducted on the basis of the pleadings filed, a party can raise an issue which was not covered by the facts pleaded by the party raising same.
Reading through the issues for determination formulated by the parties against the background of the processes filed by the parties in this appeal, it is obvious that the first, third and fourth issues for determination formulated by the Appellant as well as the two new issues formulated by the Respondent are all saying the same thing. It is the view of this Court that there are two issues for determination in this appeal and these are:
- Whether the Appellant made out a credible case on the pleadings and on the evidence led before the lower Court to sustain his claims.
- Whether it was not wrong for the learned trial Judge to consider and rely on the contents of an invalid “Will” in holding that the Appellant was not a proper tenant because the “Will” bequeathed the shop to Najia and her children who were not in possession of the shop at all material time.
On the first issue for determination, Counsel to the Appellant submitted that the Appellant was a proper tenant in the shop in question by virtue of the fact that he went into lawful possession and occupation of the shop and as such was entitled to be given the desired statutory notices before the landlord can recover possession from him. Counsel referred to the testimonies of the witnesses and the findings of the Court and stated that they all support the fact that the Appellant was at all material times in lawful possession and occupation of the shop in question before and after the death of Mr. and Mrs. Siala who brought the Appellant into the shop. Counsel submitted that it was thus wrong for the Respondent to have ejected the Appellant from the shop forcibly without serving statutory notices and without an order of Court and he referred to the case of Iheanacho Vs Uzochukwu (1997) 2 NWLR (Pt 487) 257 and made a copious reproduction of part of the judgment of the Supreme Court in the matter.
Counsel submitted that having proved that the Appellant was in lawful possession and occupation of the shop, there need not be a landlord/tenant relationship or privity of contract nor tenancy agreement between the Appellant and Respondent before the Appellant can sue the Respondent for forcibly ejecting him from the shop. Counsel stated that findings of the lower Court which stated otherwise were wrong and he submitted that learned trial Judge failed to consider the definition of a tenant in section 2(1) of the Recovery of Premises Law Cap 115, Laws of Northern Nigeria which defined a tenant as “any person occupying premises whether on payment of rent or otherwise, but does not include a person occupying the premises under a bonafide claim to be owner of the premises.” Counsel stated that the definition of tenant is wide and it includes all persons who occupy premises lawfully whether that person pays regular rent, subsidized rent or indeed no rent at all. The qualification for becoming a tenant is lawful occupation and whenever the initial entry is lawful, such occupier becomes a tenant qua the landlord and he referred to the cases of African Petroleum Ltd Vs Owoduni (1991) 8 NWLR (Pt.210) 419 and Registered Trustees of Mission Vs All State Trust Bank Plc (2003) FWLR (Pt 172) 1804. Counsel submitted that it was wrong for the learned trial Judge to have held that the Appellant was not a tenant and thus not entitled to be served with statutory notices.
On the second issue for determination, Counsel submitted that it was wrong for the learned trial Judge to have considered and relied on the contents of an invalid Will in holding that the Appellant was not a proper tenant because the Will bequeathed the shop to Najala and her children. Counsel stated that the Will was tendered as Exhibit A and submitted that the Will was completely invalid as the probate of the Will had not been granted and secondly that the stated Executor of the Will, Mustapha Siala, the husband of the testator, predeceased the testator. Counsel stated that there was no codicil or amendment made to the Will to appoint another Executor. Counsel submitted that it was thus wrong for the lower Court to have relied on the contents of the Will in making findings in the judgment.
In his response arguments, Counsel to the Respondent referred to the averments in the pleadings of the Appellant stating the basis of the claim to tenancy of the shop in dispute to be that he jointly rented the shop with Hajia Maryam Siala. Counsel then referred to the evidence led by the Appellant himself on how he came to be in occupation of the shop and stated that there was a clear variance between the evidence led and the pleadings of the Appellant. Counsel submitted that it was the rule of pleadings that parties are bound by what they pleaded and cannot set-up a different case at the trial and that where evidence led by a party is at variance with his pleadings, the evidence should be disregarded. Counsel referred to the cases of Olohunde Vs Adeyojun (2000) 6 SCNJ 470, Makinde Vs Akinwale (2000) 2 NWLR (Pt 645) 435, Olubodun Vs Lawal (2008) 17 NWLR (Pt 1115) 1.
Counsel stated that the Appellant predicated his case on the decision of the Supreme Court in Iheanacho vs Uzochukwu (1997) 2 NWLR (Pt 487) 257 without appreciating that the facts of that case were different from the facts of the present case. Counsel stated that while in that case there was a landlord and tenant relationship between the parties, no such relationship existed between the Appellant and the Respondent in this case. Counsel stated that the Appellant was not the tenant of the Respondent in the shop in question and that the proper tenant was served with the requisite notice and was taken before the Chief Magistrate Court for possession of the shop and an order of court was obtained for possession. Counsel stated that the cases of African Petroleum Ltd Vs Owoduni (1991) 8 NWLR (Pt 210) 419 and Registered Trustees of Mission Vs All State Trust Bank Plc (2003) FWLR (Pt 172) 1804 relied on the Appellant were also inapplicable to the facts of this case. Counsel submitted that the evidence led by the parties at the trial support the case put forward by the Respondent that the Appellant was not his tenant and that the findings of the court are borne out of the evidence placed before the Court and that as such they cannot be perverse. Counsel referred to the case of Lagga Vs Surhuna (2008) 16 NWLR (Pt 1114) 427 amongst others. Counsel urged this Court to resolve the first issue for determination in favour of the Respondent.
On the second issue for determination, Counsel to the Respondent stated that the Appellant did not join issues on the validity or otherwise of the Will in question before the lower Court either on his pleadings or in the evidence led, Counsel stated that the essence of the Will was pleaded in the statement of defence and this was not challenged contradicted or contested in the reply to the statement of defence. Counsel submitted there from that this Court should resolve this issue also in favour of the Respondent.
This Court will commence the resolution of the issues in this appeal from the second issue for determination on the validity or otherwise of the Will of Maryam Siala. As rightly pointed out by Counsel to the Respondent, the Will and its essence were pleaded by the Respondent in the statement of defence and the averments were not challenged or contested by the Appellant in the reply filed to the statement of defence. It is settled law that where a plaintiff fails to file a reply to averments in a statement of defence which have not been taken care of by the averments in his statement of claim, he would be deemed to have admitted the averments – Adeleke Vs Aserifa (1986) 3 NWLR (Pt 30) 575, Iwuoha Vs NIPOST Ltd (2003) 8 NWLR (Pt 822) 308 and Bongo vs Governor, Adamawa State (2013) 2 NWLR (Pt 1339) 403. The Will was tendered as Exhibit A at the trial and the Appellant did not object to its admissibility on the ground that it was invalid by reasons that the probate of the Will had not been granted and/or that the stated Executor of the Will, Mustapha Siala, the husband of the testator, predeceased the testator, being now canvassed in this appeal. The Appellant did not join issues with the Respondent on the invalidity of the Will either on the pleadings or in the course of evidence at trial and the issue was not pronounced upon by the lower Court.
It is trite law that an appellate court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower court. An appeal court is bound by the records of appeal and therefore an appellant is entitled to contest the judgment of a trial court only on the issues properly raised before the lower court and pronounced upon by that court – Oshatoba Vs Olujitan (2000) 5 NWLR (Pt 655) 159, Onwuka Vs Ononuju (2009) 11 NWLR (Pt 1151) 174, Oseni Vs Bajulu (2009) 18 NWLR (Pt 1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt.1198) 1. The option open to an appellant seeking to raise a fresh issue on appeal is to seek the leave of the appellate Court to do so and where no leave is sought and obtained, the treatment of such issue by the appellate court would amount to an exercise in futility and a nullity as the appellate Court lacks jurisdiction to do so Akpan vs Bob (2010) 17 NWLR (Pt 1223) 421. The Appellant did not seek the leave of court to raise the issue of invalidity of the will and he cannot thus argue the issue in this appeal.
On the first issue for determination, the case of the Appellant on the pleadings was that he rented the shop in dispute many years ago together with the late Hajia Maryam Siala and that both of them used the shop for their business of selling textile materials of assorted kinds until Hajia Maryam Siala died. It was his case that this fact of the joint usage of the shop by himself and late Hajia Maryam Siala was to the knowledge of the Respondent and that he paid a yearly rent of N200,000.00 to the Respondent since he became a tenant in the shop.
From the case made out by the parties at trial, however, a different picture emerged. It was revealed that the shop was in fact let by one Mustapha Siala in 1971; the tenancy agreement was tendered and admitted as Exhibit C at the trial. It was revealed that the Appellant started out as a houseboy to Mustapha Siala and his wife, Maryam Siala, in their house but that after some years, he was taken to the shop to assist Mustapha Siala. When Mustapha Siala died, his wife, Maryam Siala, inherited the shop and took over its tenancy with the consent of the Respondent and she commenced paying rents to the Respondent and she kept the Appellant on to assist her in the shop. At a point in time Maryam Siala fell ill, the Appellant, on the instruction of Maryam Siala, started managing the shop and he was paying the rents to the Respondent and was issued with receipts. These facts were admitted by the Appellant and his witnesses at the trial.
It was not in dispute that Maryam Siala died on the 24th of February, 2008 while Mustapha Siala died on the 23rd of March, 1996 and neither was it in dispute that Mustapha and Maryam Siala had no children and were survived by one Najala Abdullahi Siala, the niece of Mustapha Siala, and her three children. The case made out by the Appellant at the trial was that sometime in 2007, Maryam Siala gave him the goods in the shop and asked him to continue staying in the shop to sell the goods.
The said Najala Abdullahi Siala testified as the first defence witness and she stated that Mustapha Siala and Maryam Siala bequeathed the shop and the goods therein to her and her three children by a document dated the 13th of January, 1995 captioned Last Will and Testament of Mrs. Maryam Siala and the document was admitted as Exhibit A. She stated that the three persons mentioned in paragraph 8 of Exhibit A were her children and they were the beneficiaries of the shop. She stated that the Appellant was managing the shop on behalf of the family and that when Maryam Siala was sick, whenever she asked the Appellant for money from the proceeds of the shop, the Appellant usually replied that there was no money as they were selling at a loss. She testified that after the death of Maryam Siala, she informed the Appellant that his services were no longer required and requested for the key of the shop and that the Appellant refused to give her the key and that she also requested the Appellant to hand over the key to the Respondent but again he refused to do so. The second plaintiff witness admitted knowledge of Exhibit A.
The Respondent testified as the second defence witness and he stated that he had no relationship with the Appellant in respect of the shop in dispute and that he let the shop to Mustapha siala and, on the death of Mustapha Siala, to Maryam Siala. He stated after the death of Maryam Siala, she was survived by Najala Siala and that he commenced proceedings against Najala Siala to recover possession of the shop since her parents were dead and she was not resident in Nigeria and that he served the requisite notice on Najala Siala and the proceedings were commenced before the Magistrate Court and from where he obtained an order granting him possession of the shop. The proceedings before the Magistrate Court were tendered as Exhibit E. He stated that the goods removed from the shop belonged to the children of Najla Mustapha and not to the Appellant and that he sued Najala Siala because she was the person in possession of the shop.
The lower Court deliberated on the case of the Appellant thus:
“From the evidence above of the parties and Najala, there is no dispute as to the fact that the plaintiff was in the shop No. 37/41 at the instance of Mustapha and Maryam Siala. After the death of Mustapha Siala and Maryam Siala, it automatically follows that whatever property they left behind belong to the heirs. As it is also in evidence that they never had a child, a will dated 13th day of February, 1995 was made by Mrs. Maryam Siala where it is specifically stated in paragraph 8 of the will that the goods in the shop No. 37/41 were given and bequeath to Mustapha Ajiali-Moudi, Nuha Ajiali-Moudi and Maryam Ajiali-Moudi.” (see page 156 of the records.)
The lower Court continued that:
“The plaintiff’s claims against the defendant are based on the fact that since he is a tenant in the shop No 37/41 having been paying rent his removal from the shop without notice is unlawful.
Tenancy is defined in Black’s Law Dictionary Eight Edition Bryan A. Garner as the possession or occupancy of the land under a lease….The Court of Appeal in the case Erhunmunse Vs Echanire…held that a relationship of landlord and tenant is brought into being by an agreement between the parties.
The plaintiff in this case has not placed before this court any tenancy agreement between him and the defendant. Rather the plaintiff and his witnesses i.e.PW2 and PW3 and the defendant and his witnesses i.e. DW1 and DW4 confirmed to this court that the plaintiff was at the shop No. 37/41 at the instance of late Mustapha Siala and late Maryam Siala. This fact the plaintiff himself admitted….
The plaintiff is not disputing the fact that he was in shop No 37/41 at the instance of late Sialas. Even the rent he claimed to be paying to the defendant was on the instruction of Maryam Siala who was a tenant in the shop by virtue of the tenancy agreement….exhibit ‘C’, it is in evidence that late Maryam continued with the tenancy in the shop after the demise of her husband. Late Maryam Siala therefore could not have given the shop to the plaintiff as he claimed because she did not own it…
The position of the plaintiff in shop No. 37/41 is that of a servant in occupation of the property at the instance of his master. The Court of Appeal n FCDD Vs Nwanna…held that the rule is that an agent or servant who occupies a premises belonging to his principal or employer in order to be able to perform his duties acquires no estate in the property whatsoever apart from physical possession.” “(see pages 167 to 168 of the records)
The lower court thereafter considered the testimonies of the Appellant and of his witnesses, the second and third plaintiff witnesses, on the assertion that Maryam Siala gifted the goods in the shop to the Appellant and concluded that the Appellant and the second plaintiff witness were not witnesses of truth and that the Appellant led no credible evidence to establish the facts of the gift and to contradict the contents of the Will, Exhibit A. The lower Court continued thus:
“The fact that the plaintiff was paying rent to the defendant did not make him a tenant since the payment of the rent was at the instance of the Sialas who were the actual tenant in the shop. And moreso the payment was from the proceeds of sale of the goods in the shop owned by the Sialas.
The plaintiff was not therefore paying rent for himself but for the Sialas. So if there is any notice to be issued with regard to the recovery of the shop, it is to be served on Maryam Siala or Najala who became the beneficiaries along with her children of the property of late Maryam Siala….” (see page 170 of the records)
The lower Court concluded its deliberation that:
“As there is no tenancy relation proved between the plaintiff and the defendant the claims of the plaintiff must fail and I hold that they have failed. There must be a tenancy relationship for the plaintiff to be issued with a notice to quit by the defendant as the plaintiff has failed to prove the fact, his claims against the defendant must fail…” (See page 171 of the records)
It is beyond dispute that the heart and soul of any civil litigation are the pleadings of the parties. The pleadings contain the stories of the parties and upon which they approach the court for adjudication of their dispute. Pleadings are filed and exchanged by the parties as a means of showing with some exactitude the case each party intends to present at the trial and what the adversary is to contend with. This is to avoid one party springing surprise on the other party. It is an aged fundamental principle of civil litigation that the pleadings of parties define and delimit the issues joined by parties in a suit and on which a court is called upon to adjudicate and resolve in order to come to a just and fair decision in the matter –
Zenith Bank Plc Vs Ekereuwem (2012) 4 NWLR (Pt 1290) 207, Ologun vs Fatayo (2013) 1 NWLR (Pt 1335) 303. This principle was firmly restated by the Court of Appeal in Awuse Vs Odili (2005) 16 NWLR (Pt.952) at page 504 E-F when the court said that “the primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases” and “in addition, it also serves as the basis upon which the court will be called to adjudicate between them.” Therefore, one of the most firmly established principle in civil ligation is that the parties and the Court are bound by the pleadings and neither the Court nor the parties are allowed to set up case different from that contained in the pleadings – Skye Bank Plc vs Akinpelu (2010) 9 NWLR (Pt 1198) 179, Baliol (Nig) Ltd vs Navcon (Nig) Ltd (2010) 16 NWLR (Pt 1220) 619, Zenith Bank Plc Vs Ekereuwem supra, Afolabi Vs Western Steel Works Limited (2012) 17 NWLR (Pt 1329) 286 and Phillips vs Eba Odan Commercial & Industrial Co Ltd (2013) 1 NWLR (Pt 1336) 618.
In his statement of claim, the Appellant, in the instant case, predicated his claims on the assertion that he was a tenant in the shop in dispute because he rented the shop many years ago with the late Hajia Maryam Siala and that both of them used the shop for their business of selling textile materials of assorted kinds until Hajia Maryam Siala died. The Appellant asserted that this fact of the joint usage of the shop by himself and late Hajia Maryam Siala was to the knowledge of the Respondent and that he paid a yearly rent of N200,000.00 to the Respondent since he became a tenant in the shop. In the evidence led at the trial, however, the Appellant and his own two witnesses admitted that these facts as asserted by the Appellant in the statement of claim were false and the Appellant sought to set up a different case by asserting that he was given the shop and the goods therein by late Maryam Siala before her death as a gift and as a payback for years of service rendered. The Appellant did not stop there. In the written address of his counsel at the lower Court, the Appellant again shifted gear and sought to rely on the simple fact of his being in lawful occupation of the disputed shop to found his claims. This is the same case canvassed by the Appellant on this appeal.
It must be conceded that the Appellant filed a reply to the statement of defence of the Respondent and wherein he raised the issue of the handing over of the shop to him by Maryam Siala and also the fact of his being in lawful occupation and possession of the shop as the basis of his claims (see pages 77 to 78 of the records). However, it is settled law that the essence of a reply to a statement of defence is to answer or respond to any issue raised by the defendant in his defence and which the plaintiff seeks to challenge, deny, admit or object to either on ground of law or misstatement of a cause of action. It is an aberration to the rule of pleadings for a plaintiff to canvass in his reply an allegation of fact or new ground of claim different from the one contained in the statement of claim. If a plaintiff does so, such a plea is irretrievably bad in law and no evidence will be admitted on its proof – Adeniji Vs Fetuga (1990) 5 NWLR (Pt 150) 375, Akinsanya vs Soyemi (1998) 8 NWLR (Pt 560) 49, Balogun vs Egba Onikolobo Community Bank (Nig) Ltd (2007) 5 NWLR (Pt 1028) 584 and Olubodun vs Lawal (2008) 17 NWLR (Pt 1115) 1. The Appellant cannot thus rely on the allegations of facts in his reply to the statement of defence setting up new grounds for his claims and this Court will discountenance same.
It trite law that a party is not allowed to chop and change his case from one stage to another in the litigation progress. A party cannot make out a case on the evidence at trial and a different one in the written address of his counsel and both of which are alien to his case in the statement of claim. Neither can he set up in this Court a case different from the one canvassed in his statement of claim before the lower court. A party must be consistent in the case he presents in court and his pleadings, the evidence of his witnesses at trial and submissions of his Counsel must state the same thing and speak the same language, and must not be at variance with each other – Suberu Vs State (2010) 8 NWLR (Pt 1197) 586, Njaba Local Government Council vs Chigozie (2010) 16 NWLR (Pt 1218) 166, Ebia Construction Ltd vs Costain (West Africa) Plc (2011) 6 NWLR (Pt 1242) 110 and Ologun vs Fatayo (2013) 1 NWLR (Pt 1335) 303.
It is obvious from the evidence led at trial that the Appellant did not lead any credible evidence to support the basis upon which he predicated his claims in the statement of claim. The resultant effect is that the Appellant failed make out a prima facie case in support of his claims before the lower court. It is settled that in civil litigations, where a defendant does not counterclaim, the onus is on the plaintiff to first establish a prima facie case before a consideration of the case of the defendant can arise – Aromire vs Awoyemi (1972) 1 SC 1, Agu vs Nnadi (2002) 18 NWLR (Pt.798) 103, Ugoji vs Onukogu (2005) 16 NWLR (Pt 950) 97, Mani vs Shanono (2006) 4 NWLR (Pt 969) 133, Oyedeji vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484. Once the plaintiff fails to prove the material facts upon which his claim is predicated, he has failed to discharge the burden of proof placed on him and his case must automatically fail. The law is that there is no burden on the defendant – Awomuti Vs Salami (1978) 3 SC 105, Olowosago vs Adebanko (1988) 4 NWLR (Pt 88) 275, Sosan vs HFP Engineering (Nig.) Ltd (2004) 3 NWLR (Pt 861) 546, Oyedeji vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484.
The claims of the Appellant ought to have been dismissed on that ground alone.
Going further and assuming that the Appellant could set up the case of the gift of the shop and of the goods therein to him by Maryam Siala and also the case of his lawful occupation of the shop as the basis for his claims, the lower Court found in its judgment that the Appellant failed to lead credible evidence in support of his case on gift of the shop and of its contents. The Appellant has not challenged this finding in this appeal and did not canvass argument on the point in his brief of arguments. The law is that the Appellant accepts the finding as correct and binding Inakoju vs Adeleke (2007) 4 NWLR (Pt 1025) 423.
It was the case of lawful occupation of the shop as the basis for his claims that the Appellant took up in this appeal and the question that arises thereon is – whether the lawful occupation of the shop by the Appellant, in the circumstances of this case, equated the Appellant to being a tenant of the Respondent in the shop. Counsel to the Appellant argued profusely that once it was shown that the Appellant was in lawful possession and occupation of the shop, he was a tenant of the Respondent and there need not be a landlord/tenant relationship or privity of contract nor tenancy agreement between the Appellant and Respondent before the Appellant. Counsel stated that the definition of tenant in section 2(1) of the Recovery of Premises Law Cap 115, Laws of Northern Nigeria was wide and it included all persons who occupy premises lawfully whether that person pays regular rent, subsidized rent or indeed no rent at all and that the qualification for becoming a tenant is lawful occupation and whenever the initial entry is lawful, such occupier becomes a tenant qua the landlord.
Now, possession of property or a parcel of land means the occupation or physical control of the property or parcel of land by a person either personally or through an agent or servant NITEL Plc vs Rockonoh Property Co. Ltd (1995) 2 NWLR (Pt.378) 473, Ladipo vs Ajani (1997) 8 NWLR (Pt 517) 356, Okegbemi vs Akintola (2008) 4 NWLR (Pt 1076) 53.
The concept of possession involves two elements – (a) the corpus or the element of physical control; and (b) the animus possidendi or the intention with which such control is exercised Nteogwuija vs Ikuru (1998) 10 NWLR (Pt 569) 267 , Nkume vs The Registered Trustees of the Diocese of Aba (1998) 10 NWLR (Pt 570) 514. Thus, it cannot be correct that mere lawful physical control of a premises by a person amounts to possession of that premises by that person and which automatically transmutes that person into a tenant of the owner of the premises. It must depend on the intention with which that person went into physical control of the premises in the first place Olaniyan vs Shokunbi (1997) 6 NWLR (Pt 509) 447, Odutola vs Papersack (Nig) Ltd (2006) 18 NWLR (Pt 1012) 470.
The law recognizes that a person in physical control of premises may be a licensed tenant or a lessee. The test for determining whether a lease, a tenancy or a licence is created by the acts of the parties is whether the occupier has exclusive possession of the land – Okoye vs Dumez Nig Ltd (1985) 1 NWLR (Pt 4) 783. Where a party does not have exclusive possession against all others including the owner, it is not a lease or a tenancy and is most likely a licence. In a licence, the owner does not part with possession of the property but simply allows the licensee use of the land for certain purposes SCOA (Nig) Ltd Vs Ogana (1958) WRNLR 141, Umezurike vs George (1973) 3 CCHCJ 62, Onitiri vs Ayinde (1974) 4 CCHCL 455, Federal Capital Development Authority vs Nwanna (1998) 4 NWLR (R 544) 73.
Thus, where an employee is given the personal privilege to live in a house for the greater convenience of his work, and this is treated as part of his remuneration, he is a licensee, even though the value of the house is quantified in money. Such an employee has no interest in the land even during his occupation of the premises Chukwumah vs Shell Petroleum Development Corp (1993) 4 NWLR (Pt 289) 512.
Generally, where a servant is permitted to occupy a house by virtue of his employment, the servant is a licensee because the employer has not given up possession for a definite period of years. Therefore, a servant whose occupation of the premises was subservient and necessary to the service which was his duty to render to the master has no estate or property whatsoever in the premises concerned save that of physical occupation – Federal Capital Development Authority Vs Nwanna (1998) 4 NWLR (Pt 544) 73, Nwanna vs Federal Capital Development Authority (2004) 13 NWLR (Pt 889) 128. An agent or employee who is allowed to occupy premises belonging to his principal or employer for the more convenient performance of his duties acquires no estate therein, although he be allowed to use the premises for carrying on therein an independent business of his own. The agent or employee occupies the premises for his principal or employer who is regarded as being in possession – Akpiri Vs West African Airways Corporation (1952) 14 WACA 195, Diocesan Synod of Lagos vs Dedeke (1956) LLR 30, Balogun vs UAC (1958) NRNLR 77, Mobil Oil (Nig) Ltd Vs Johnson (1961) 1 All NLR 93, Nwanna Vs Federal Capital Development Authority supra.
Applying these principles to the facts of this case as admitted by the parties and proved at the trial, it is crystal clear that the Appellant occupied the said shop in dispute as a licensee of the Siala Family and not as a tenant of the Respondent. The Siala Family never relinquished possession of the shop; they simply allowed the Appellant physical occupation and use of the shop for their own specific purposes.
Now, the law recognizes three types of licences. The first is what is called a ‘bare licence’. This is a gratuitous privilege without any consideration to support it – Umezurike Vs George (1973) 3 CCHCJ 62 and Smith Vs West African Pictures Ltd (1975) 6 CCHCJ 933. An example is where a person is permitted to reside in a premises by an act of grace Anifowoshe Vs Siyanbola (1956) SCNLR 1 and Oduola Vs Ajanaku (1963) 2 SCNLR 123 The second is a ‘licence coupled with a grant of interest, and this is where the licence is granted with a definite contractual interest in the land or chattel lying on the land or given interest to enter, enjoy, exploit, prospect precious stones, laterite, etc thereon – Umezurike vs George (1973) 3 CCHCJ 62 and Smith vs West African Pictures Ltd (1975) 6 CCHCJ 933. The third is a ‘contractual licence for value’ and this is a licence not only coupled with a grant but also supported by valuable consideration Nmeregini Vs Port Harcourt Municipal Council (1959) SCNLR 140, Mobil Oil (Nig) Ltd Vs Johnson (1961) 1 All NLR 93, Olowoshile Vs Aremu (1978) 1 CCHCJ 79. The distinctive feature is that it is made in exchange for valuable consideration, i.e., payment of fees for the use of the premises or enjoyment of rights therein – Okoye Vs Dumez Nig Ltd (1985) 1 NWLR (Pt 4) 783 and Igbuye Vs Enegbara (1990) 3 NWLR (Pt 139) 425. It is also apparent from the facts admitted and proved at trial that the Appellant had only a bare licence to stay in the shop in question.
It was an agreed fact between the parties that Mustapha and Maryam Siala did not have children and that they were survived by the niece of Mustapha Siala, Najala Abdullahi Siala, and her three children. The necessary effect of this agreed fact, under any law, be it customary law, Sharia law or the English law, is that Najala Abdullahi Siala and her three children are the persons entitled to succeed to all the rights and interests of Mustapha and Maryam Siala on their death, including the right to possession of the shop in dispute, Additionally, there was unchallenged evidence that Maryam Siala in fact bequeathed the contents of the shop to the three children of Najala Abdullahi Siala in her last Will and Testament, Exhibit A. Thus, as at the times material to this suit, Najala Abdullahi Siala and her three children were the people in possession of the shop in dispute while the Appellant only had a bare licence from the Siala Family to manage the shop on behalf of the Sialas. There was no legal relationship of whatever nature between the Appellant and the Respondent with regards to the Appellant’s physical occupation of the shop. The legal relationship was between the Respondent and the Siala family.
The law is that if a licence is given gratuitously, it is revocable by notice given at any time and in such a situation, the licensee must leave the premises otherwise he would become a trespasser as his continued occupation will be wrongful Smith vs West African Pictures Ltd (1975) 6 CCHCJ 933, Keyamo vs Folorunso (2011) 9 NWLR (Pt 1252) 209. The legal obligation to issue such notice is on the person who granted the licence in the first place and not on the owner of the premises, if he was not the licensor. In the instance, the obligation to issue the Appellant with a notice of revocation of his licence was on Najala Abdullahi Siala and her three children and not on the Respondent.
In her testimony, Najala Abdullahi Siala stated that when Maryam Siala was sick, whenever she asked the Appellant for money from the proceeds of the shop, the Appellant usually replied that there was no money as they were selling at a loss. She testified that after the death of Maryam Siala, she informed the Appellant that his services were no longer required and requested for the key of the shop and that the Appellant refused to give her the key and that she also requested the Appellant to hand over the key to the Respondent but again he refused to do so. The lower Court found in its judgment that this testimony of Najala Abdulahi Siala was unchallenged and uncontroverted and it accepted the testimony as establishing the facts therein contained (see page 169 of the records). This finding was not contested by the Appellant on this appeal and he is deemed to have accepted it. This testimony shows that the Appellant was given due notice of the termination of his licence by Najala Abdullahi Siala and that the Appellant disregarded the notice and insisted on staying on in physical occupation of the shop. The stay of the Appellant thereafter in the shop was wrongful and amounted to trespass.
What is obvious from the evidence led at trial was that the Appellant was not the owner of the goods in the shop and neither was he in lawful occupation of the shop at the time he was ejected there from. It must be conceded that the law does not empower a licensor to eject a licensee who remained in unlawful occupation after the termination of his licence by the use of force through self-help; such a step on the part of a licensor is wrongful and is seriously frowned upon by the courts – Chukwumah vs Shell Petroteum Development Corp (1993) 4 NWLR (Pt 289) 512, Okochi Vs Animkwoi (2003) 18 NWLR (Pt 851) 1. This obligation not to eject the Appellant from the shop with the use of force was on Najala Abdullahi Siala in the instant case and not on the Respondent.
The legal obligation on the Respondent was to serve the notice of his intention to recover possession of the shop on Najala Abdullahi Siala and her three children and not on the Appellant. The Respondent gave evidence that he served notice on Najala Abdullahi Siala and commenced an action against her before the Magistrate Court for the recovery of the shop since her parents were dead and she was not ordinarily resident in Nigeria and that he obtained an order of possession from the Magistrate Court. Najala Abdullahi Siala confirmed the evidence of the Respondent and did not at any point in the proceedings contend the fact of her being served with notice and the fact of the Magistrate Court granting the Respondent possession of the shop. The Appellant affirmed in his evidence that he was ejected from the shop by officials from the Rent Tribunal. The Respondent obviously did what was legally expected of him to recover possession of the shop.
Counsel to the Appellant placed heavy reliance on the decision of the Supreme Court in the case of Iheanacho Vs Uzochukwu (1997) 2 NWLR (Pt 487 ) 257 and one of his complaints against the judgment of the lower Court was the refusal of the Court to apply that decision to the facts of this case. Counsel also referred to the cases of African Petroleum Ltd Vs Owoduni (1991) 8 NWLR (Pt 210) 419 and Registered Trustees of Mission Vs All State Trust Bank Plc (2003) FWLR (Pt 172) 1804. The doctrine of judicial precedent postulates that where the facts in a subsequent case are similar or close as facts in an earlier case that had been decided upon, judicial pronouncements in the earlier case are subsequently utilized to govern and determine the decision in the subsequent case – Nwangwu Vs Ukachukwu (2000) 6 NWLR (Pt 662) 674. The doctrine recognizes that decisions of court draw their inspiration and strength from the facts which framed the issues for decision and once such decisions are made they control future judgment in like or similar cases, hence the facts of two cases must either be the same or at least similar before a decision in the earlier case can be used in a later case – Fawehinmi Vs Nigerian Bar Association (No 2) (1989) 2 NWLR (Pt.105) 558, Ndu Vs Onuaguluchi (1999) 11 NWLR (Pt 625) 152, Anaedobe Vs Ofodile (2001) 5 NWLR (Pt 706) 365, Abubakar Vs Nasumu (No 2) (2012) 17 NWLR (Pt 1330) 523. It is thus incumbent on any party seeking to rely on the doctrine of judicial precedent to relate the facts and circumstances of the earlier decisions to those of the present case. It is improper to try and force the ratio of a case on facts to which it cannot be assimilated; the ratio of any case should not be pulled by the hair of the head and made to apply to cases where the surrounding circumstances are different – Mortune Vs Balonwu (2000) 5 NWLR (Pt.655) 87. The facts and circumstances of the three cases referred to by Counsel to the Appellant are completely different from those of the instant case.
The authorities are inapplicable in this case.
In conclusion, this Court finds that the Appellant woefully failed to present it with any valid reason to tamper with the decision of the lower Court. This appeal is thus lacking in merit and it is hereby dismissed. The judgment of the High Court of Kano State in Suit No K/66/2009 delivered by Honorable Justice Tani Yusuf Hassan on the 21st of July, 2010 is hereby affirmed. The Respondent is entitled to the cost of this appeal assessed at N50,000.00. These shall be the orders of this Court.
DALHATU ADAMU, J.C.A.:
I have the privilege of reading the draft of the lead judgment of my learned brother Habeeb Adewale Olumuyiwa Abiru JCA in this appeal. I endorse his reasoning and conclusion that the appeal is lacking in merit and it should be dismissed. I also hereby dismiss it and affirm the judgment of Hon. Justice Tani Yusuf Hassan delivered at Kano State High Court in Suit No. K/66/2009 on 21st July 2010. I abide by the consequential order as to cost as made in the lead judgment.
ITA G. MBABA J.C.A.:
I have had the privilege of reading the draft of the lead judgment, just delivered by my learned brother, HABEEB A. ABIRU JCA, and I agree, completely, with his reasoning and conclusions and adopt the same as mine.
The allegation that the Will was invalid, by reasons that the probate of the Will had not been granted/or that the stated Executor of the Will predeceased the testator, was not borne out of evidence at the trial Court and was not an issues determined at the trial as per the judgment. It cannot, therefore, be a valid issue arising from the judgment appealed against, the same being a new and wishful case, formulated by the ingenuity of the Appellant’s Counsel, in his address for Appellant, different from the case of the Appellant in Court on which the judgment was predicated. This is because Appellant never joined issues with the Respondent on the Will and never challenged its validity. He only cross-examined the DW1 on it, and that without impeaching the Will.”
The law is trite that Counsel’s address, no matter how brilliant and ingenious, cannot take the place of evidence or replace the evidence on which the judgment was based. It cannot also substitute the case of the parties, on which the judgment was based. See the case of OYEKAN VS. AKINRINWA (1996) 7 NWLR (Pt. 459) 128; OJO VS. FRN (2008) 11 NWLR (Pt. 1099) 467.
Since there was no challenge of the validity of the Will at the trial and no evidence was led to impeach its validity and application, at the trial, no such challenge can be entertained on the Will on appeal, especially as there is no evidence that the will was ever contested or disputed by the beneficiaries.
The law is trite that Appeal is heard and determined on the live issues/complaints in the judgment appealed against, as per evidence and issues apparent on the printed records of appeal. See the case of ADDA VS. LIMAN (2011) ALL FWLR (Pt. 587) 765 where, this Court per YAKUBU JCA said on page 782 as follows:
“A ground of appeal is a complaint against a finding or decision of the trial Court. It must relate to the decision being appealed against and should constitute a challenge to the ratio of the decision. Grounds of appeal are not formulated in abstract. They must arise from the judgment in the same way as issues arise from the grounds of appeal. However meritorious a ground of appeal may be, it must be connected with the controversy between the parties, so also is the issue arising from the ground. In the instant case, the defendant raised an issue not based on the decision of the trial Court, the appellate therefore discountenanced it. (CHAMI VS. UNITED BANK FOR AFRICA PLC (2010) 2 SCNJ 23; USMAN VS. KADUNA STATE HOUSE OF ASSEMBLY (2008) ALL FWLR (Pt. 397) 78; EGBE VS. ALHAJI (1990) 1 NWLR (Pt. 128) 546; M.B.N. PLC VS. NWOBODO (2005) ALL FWLR (Pt. 281) 1640, (2005) 14 NWLR (Pt. 945) 379 referred to).
See also CPC VS. INEC (2012) 29 WRN 1 at 4, where the Supreme Court held:
“Any grounds of appeal which do not arise from the ratio of the judgment appealed against cannot stand for reason of incompetence.”
Where a party desires to raise or generate a ground or issue, not represented in the judgment appealed against and/or captured in the printed Records of appeal, and the same is important to him for the determination of the appeal, then the party placing premium on the stranger ground/issue, has to seek and obtain the leave of the Appellate Court to raise the same as a fresh issue. That was not done in this case. OLAGUNJU VS. PHCN PLC (2011) ALL FWLR (PT. 582) 1635; GARBA VS. OMOKHODION (2011) ALL FWLR (PT. 596) 404; BAMIKOLE VS. OLADELE (2011) ALL FWLR (PT. 562) 1699.
With this and other elaborate reasons in the lead judgment, I too dismiss the Appeal and abide by the consequential orders therein.
