3PLR – M.R.S. PROJECT DEVELOPMENT & CONSULTING LIMITED V. I.T.B. NIGERIA LIMITED

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

M.R.S. PROJECT DEVELOPMENT & CONSULTING LIMITED

V.

I.T.B. NIGERIA LIMITED

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 8TH DAY OF NOVEMBER, 2013

CA/L/105/2012

3PLR/2013/103 (CA)

 

OTHER CITATIONS

(2013) LPELR-22085(CA)

BEFORE THEIR LORDSHIPS

SIDI DAUDA BAGE, JCA

RITA NOSAKHARE PEMU, JCA

CHINWE EUGENIA IYIZOBA, JCA

 

BETWEEN

M.R.S. PROJECT DEVELOPMENT & CONSULTING LIMITED – Appellant(s)

AND

I.T.B. NIGERIA LIMITED – Respondent(s)

 

REPRESENTATION

  1. O. Babalakin (SAN), O. Akoni (SAN), O. Awonuga Esq., F. Umenyi (Mrs.), P. Ogunsuyi (Ms.) I. Omoregbe (Mrs.) – For Appellant

AND

  1. Okoro – for 1st Respondent

2nd Respondent not represented. – For Respondent

ORIGINATING STATE

Lagos State: High Court (J.O. Pedro (Mrs.) J- Presiding)

MAIN ISSUES

REAL ESTATE/LAND LAW – TITLE TO LAND:- Declaratory order pertaining to land – Need for same to be granted by evidence being elicited including the identity of the land, its size, are facts which must be before the Court, in no uncertain terms

PRACTICE AND PROCEDURE – APPEAL – MISDIRECTION IN GROUND OF APPEAL:- Rule that it is improper to complain of misdirection and error juris in the same ground of appeal Basis – Whether misdirection or error juris are disjunctive

PRACTICE AND PROCEDURE – ACTION – PLEADINGS:- Rule that pleadings cannot be relied on solely to determine an issue in a case without looking at the circumstances, facts and merits of each case – Effect

PRACTICE AND PROCEDURE – COURT – DECISION:- Meaning of – Constituents and basis of decision of Court – Need for every determination of a Court to consist of findings of fact, and that based on the facts so found and the inference drawn therefrom, the Court comes to its ultimate conclusion which may be of facts or law or both law and fact – Section 318 (1) of the 1999 Constitution – Decision in relation to a Court as relating to any determination of that Court and includes Judgment, decree, order, conviction, sentence or recommendation

PRACTICE AND PROCEDURE – APPEAL – GROUND OF APPEAL:- Rule that a ground of appeal, where it alleges misdirection or error in law should clearly state the particulars and the nature of the misdirection or error – Duty of party alleging thereto

PRACTICE AND PROCEDURE – APPEAL – GROUND OF APPEAL – ERROR OF LAW:- Couching of a ground of appeal which complains of a misdirection or error in law – Whether it must contain quotation of the passage where the misdirection or error is alleged to have occurred; the nature of the misdirection or error complained of and full and substantial particulars of the alleged misdirection or error

PRACTICE AND PROCEDURE – APPEAL – GROUND OF APPEAL– ERROR OF LAW: – Where the Ground of Appeal gives adequate or sufficient information as to the nature or content of the error of law complained of – Whether the Court of Appeal will not strike out the ground only for the reason that the particulars were not separately supplied – A ground alleging misdirection or error in law without showing in what respect, – Whether is incompetent and of no worth

PRACTICE AND PROCEDURE – APPEAL – GROUND OF APPEAL:- Where the Ground of Appeal, performs the dual role of setting out the ground simpliciter, as well as stating the particulars thereof in such a way that both the Court and the Respondent are not misled, or there is no misapprehension or ambiguity – Whether the Court of Appeal will be reluctant to strike out the ground

PRACTICE AND PROCEDURE – COURT – MISDIRECTION BY COURT:- Rule that Misdirection occurs when a Judge misconceives the issues or summarizes the evidence inadequately or incorrectly for one side or the other, or makes a mistake in the law applicable to the issues – Where there is evidence to support a finding – Whether it cannot be described as misdirection

PRACTICE AND PROCEDURE – COURT – POWER OF COURT OF APPEAL:- Rule that the Court of Appeal’s powers to act as a Court of first instance, must be one that should be exercised with caution, and in very exceptional cases – Whether nonetheless will exercise same where what ought to be done by the Court of first instance was not done or was not properly done

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – DECLARATORY JUDGMENT:- Nature of – Whether a declaratory Judgment is complete in itself since the relief is the declaration

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – ERROR OF LAW:- Meaning of – An error of law or error juris as a mistake of law, which may mean error or omission – Whether a party can competently appeal against the failure of a trial Court to decide on an issue canvassed before the Lower Court

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – FINAL/INTERLOCUTORY ORDER OF COURT:- When an Order of a Court is deemed final – Whether only if it determines the rights of the parties to the suit finally, or if it finally settles the issues in dispute – When an order will be regarded as being interlocutory – Relevant considerations

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – SETTING ASIDE A RULING:- Power of court to set aside its own ruling – Justification – Rule that unless and until the Court has pronounced a Judgment or ruling upon the merits or by consent, it is to have power to resolve the expression of its coercive power

WORDS AND PHRASES – “DECISION”:- Meaning of

 

 

 

MAIN JUDGMENT

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the Ruling of J.O. Pedro (Mrs.) Judge of the High Court of Lagos State Ikeja Judicial Division, delivered on the 15th day of November 2011, whereby at page 5 of the Ruling (page 507 of the Record of Appeal) she held thus

“I hold that in order to determine once and for all the issues before the court this matter shall proceed to trial immediately where evidence can be tied in proof of the pleadings before the court and documentary evidence scrutinized and findings made thereon. And I so hold.”

 

FACTS

This is sequel to an application dated the 8th of February 2010, but filed on the 10th of February 2010, wherein the Claimant/Applicant (Appellant in the present appeal) sought the following order of the court below viz-

“An ORDER or this Honourable Court that the questions listed hereunder can conveniently be decided by way of special case during Pre-Trial conference in this suit. The questions are as follows:

(i)      Whether in determining which of the parties in this suit was in possession of the subject property in dispute prior to the commencement of proceedings, the Honourable court ought to hold that it is the party that can prove a better title in law, is the party in legal possession of the said subject property.

(ii)     Whether upon a combined reading of Section 1 of the Lands (Title Vesting ETC) Act Cap, L7, Laws of the Federation of Nigeria 2004 and Section 49 of the Land Use Act 1975 Cap, L5, Laws of the Federation of Nigeria 2004, Lagos State Government can issue a valid Certificate of Occupancy in respect of the subject property in dispute?

(iii)    Whether by virtue of the creation of Lagos State in 1967 as well as the promulgation of Section 1 of the Land Use Act 1978 Cap L5, Law of the Federation of Nigeria 2004, the Federal Government of Nigeria can grant any form of interest in respect of waterfront property in Lagos State as it has done in the circumstances of this suit.”

 

The 1st Respondent also filed a similar application. Both applications were granted by the Lower Court and the parties did consent to the questions of law to be determined by special case and compile same for filing.

 

From the record, both parties completed and filed questions to be decided by way of “special case” along with supporting documentation on the 7th of May 2010. Written addresses were filed and exchanged in support thereof. Same was granted, vide enrolled order of court of 11th day of May 2010 – pages 487-488 of the Record of Appeal.

 

All these took place at the Pre-Trial conference stage.

 

On the 15th of November 2010, the court below in its Judgment opted for a trial. This is because, according to it.

“However upon a careful consideration of the pleadings I find that the claim of the claimant as couched in paragraphs 13(1) (2) (3) (4) and (5) of the Statement of Claim is for a declaratory relief that the Defendant is a trespasser on the subject property of this suit.

The claimant is equally claiming an order for perpetual injunction restraining the Defendant and damages against the Defendant for trespass and unlawful development of the subjection property of this suit.”

 

It is against this Order of court that the Appellant appeals’ Pursuant to the Practice Direction of this Honourable Court, the Appellant filed an Amended Notice of Appeal on the 28th of May 2013, encapsulating four (4) Grounds of Appeals.

 

On the 28th of May 2013, Appellant filed its Brief of Argument. It is settled by Olawale Akoni S.A.N.

 

The 1st Respondent filed its Brief of Argument on the 19th of July 2013. It is settled by Paul O. Okoro Esq.

 

On the 28th of May 2013, the Appellant also filed its reply brief. The 2nd Respondent – The Attorney General of Lagos State, filed no Brief of Argument.
On the 7th of October 2013, learned counsel adopted their respective briefs of argument in Court.

 

While adopting his Brief of Argument, the Appellant submits that there are three issues for determination. He also submits that there is a reply brief which he adopts.

 

That there is a case stated before Court. He urges Court to exercise its discretion under section 15 of the court of Appeal Act. He urges court to allow the appeal.
On his part, the 1st Respondent submits that its Brief of Argument filed on the 19th of July 2013, has three issues for determination.

 

He appeals to Court to withdraw his argument on the preliminary objection, which he had incorporated in his Brief of Argument at pages 2-3 thereof because of the Amended Notice of Appeal filed by the Appellant. The application was granted as prayed, and consequently the argument of the preliminary objection was expunged. He urges Court to dismiss the appeal.

 

In Ground 1 of the Amended Notice of Appeal, the Appellant had this to say

“The Lower Court misdirected itself in law by finding that there was o dispute between the parties as to the size of the Land (which is the subject matter of the dispute before the Lower Court) which necessitates the need for trial, despite the clear agreement of the parties that they wanted the suit to be decided on the issues of law distilled by the parties in the special case application filed on 7th May 2010 and signed by counsel to both the Plaintiff/Appellant and the Defendant/1st Respondent (both parties hereinafter called “the parties”)

 

However, the Appellant went on to state “PARTICULARS OF ERROR”, and not “particulars of misdirection.”

It is trite that a ground of appeal, where it alleges misdirection or error in law should clearly state the particulars and the nature of the misdirection or error – EKPENYONG VS. NYONG (1975) 2 S.C. 7.

 

Misdirection occurs when a Judge misconceived the issues or summarizes the evidence inadequately or incorrectly for one side or the other, or makes a mistake in the law applicable to the issues, but if there is an evidence to support a finding, it cannot be described as misdirection – CHIDIAK VS. LAGUDA (1964) 1 ALL NLR. 160.

 

An error of law, on the other hand or error juris, is a mistake of law, which may mean error or omission. Thus, a party can competently appeal against the failure of a trial Court to decide on an issue canvassed before the Lower Court.

 

A ground alleging misdirection or error in law without showing in what respect, is incompetent and of no worth.

 

In couching a ground of appeal, if it complains of a misdirection or error in law, it must contain

(a)     A quotation of the passage where the misdirection or error is alleged to have occurred – ADENIJI VS. SAKA DISU (1958) 3 FSC. 104; AMADI VS. OKOLI (1977) SC. 57.

(b)     The nature of the misdirection or error complained of

(c)     Full and substantial particulars of the alleged misdirection or error.

 

However, where the Ground itself gives adequate or sufficient information as to the nature or content of the error of law complained of, the Court of Appeal will not strike out the ground only for the reason that the particulars were not separately supplied.

 

Where the Ground of Appeal, performs the dual role of setting out the ground simpliciter, as well as stating the particulars thereof in such a way that both the Court and the Respondent are not misled, or there is no misapprehension or ambiguity, the Court of Appeal will be reluctant to strike out the ground.

 

Yes the days of technicalities are over, decidedly – ODINIGI vs. OYELEKE but the Courts have also held that it is improper to complain of misdirection and error juris in the same ground of appeal. This is because misdirection or error juris are disjunctive. See NWADIKE VS. IBEKWE (1987) 12 SC 14; EMECHETA VS. OGIERI (1998) 2 NWLR (Pt.579) 502.

 

I would have been tempted to strike out this Ground 1 because to complain in one breath of misdirection and in another breath state particulars of error smacks of contradiction in terms. But a cursory look at the Ground 1, seems to me that the Ground sufficiently stipulates the grouse in that ground, as to put the Respondent and the counsel on notice as to that grouse.

 

It is that the Court misdirected itself by finding that there was a dispute between the parties, despite the agreement between the parties that the suit be decided on the issues of law distilled by the parties in the special case application filed on the 7th of May 2010 and signed by both parties.

 

This in my view suffices to sustain this Ground 1 in the Notice of Appeal. Noteworthy is that the Appellant informed Court on the 7th of October 2013 that there is an Amended Notice of Appeal filed on the 28th of May 2013.
That Amended Notice of Appeal ex-facie, has four (4) Grounds of Appeal. But in the issues for determination proffered by the Appellant in his Brief of Argument, he states that Issue No 2 is formulated from Grounds 1, 2, 4, 5 and 5 of the Notice of Appeal. The Amended Notice of Appeal has no Grounds 5 and 6.
Let me reproduce the Appellant’s issues for determination as reflected at page 5 of his Brief of Argument.

 

They are

(1)     “Whether the learned trial judge is allowed in law to alter, modify, revisit, review or sit on appeal over, or otherwise render null, Her own order made on 27th April 2010 (pursuant to the parties’ separate applications) that the suit at the Court below be determined under the special case procedure, by ruling conversely on 15th November 2011 that the said suit be NOT determined under the special case procedure? (Formulated from Ground 3 of the Notice of Appeal).”

(2)     “Whether in light of the circumstances of this case, the Court below was right when it refused to determine and/or held that the questions of low submitted by the parties before it cannot he determined under the Special Case procedure filed by the parties pursuant to its own order made on 27th April 2010? (Formulated from Grounds 1, 2, 4, 5 and 6 of the Notice of Appeal).”

(3)     “Whether in light of Section 15 of the Court of Appeal Act Cap C 36 LPN 2004, this Honourable Court ought to determine the questions of law raised by the parties under the Special Case Procedure?”

 

I would safely state that the issues for determination flow from Grounds 1, 2 and 3 only of the Notice of Appeal.

 

The 1st Respondent on his part had proffered these three issues for determination. They are

(1)     “Whether given his opinion that from the pleadings of the parties, the nature of the relief sought, and the discrepancies in the size of land, the Learned Trial Judge was not right when he ordered that the matter proceeds to trial where evidence con be led in proof of the pleadings and documentary evidence scrutinized (Ground 1, 2, 5 and 6 of the Notice of Appeal)”‘

(2)     “Whether the ruling of 15th of November 2011 can be said to amount to on over rule of the Lower Courts’ earlier ruling of 27th April 2011 (Ground 3 of the Notice of Appeal).”

(3)     “Whether the Learned Trial Judge has not judiciously exercised its discretion within the meaning and intendment of Order 28 Rule (1) and (2) of the High Court of Lagos State Civil Procedure Rule and if so whether the Appellant’s right to fair hearing was thereby breached (Ground 4 of the Notice of Appeal).

 

I am of the view that the issues for determination formulated by the 1st Respondent, aptly coalesces with that of the Appellant, and can be said to be an adoption of the Appellant’s issues for determination. I shall consider this appeal on this basis.

 

ISSUE.NO 1

“Whether the learned trial judge is allowed in law to alter, modify, revisit, review or sit on appeal over, or otherwise render null, Her own order made on 27th April 2010 (pursuant to the parties’ separate applications) that the suit at the Court below be determined under the special case procedure, by ruling conversely on 15th November 2011 that the said suit be NOT determined under the special case procedure?

 

The Appellant had argued, that by the court below granting an application seeking a hearing under the special case procedure, it cannot later refuse that same application that has been granted, by ruling that the matter will not be heard under the special case procedure. That this is because, by the grant of that application, the Court below becomes functus officio, and cannot alter, modify, revisit or make another decision on that same matter citing MOHAMMED VS. HUSSEINI (1998) 14 NWLR (Pt.584) P.108 at 138-139 paragraphs H-A; F.I.B PLC VS. CITY EXP. BANK LTD (2004) 6 NWLR (Pt.869) P.236 at 243 paragraphs B-F.

 

He submits that the Pre-trial Judge had ruled that the suit at the Court below will be determined under the special case procedure – referring to page 477 of the Record of Appeal.

 

At page 477 of the Record of Appeal is the enrolled Order of Court of the Lower Court of the 11th of May 2010.

 

The body of the Order is hereby reproduced

“IT IS HEREBY ORDERED AS FOLLOWS:

  1. That AN ORDER be and is hereby granted to the Claimant/Applicant that the following questions be decided by way of special case during PTC in this Suit.

(i)      Whether in determining which of the parties in this suit has a right to possession of the property in dispute in the matter, the Honourable Court ought to hold that it is the party that can prove a better title in the land that has the right to Possession.

(ii)     Whether by the substituting judgment of the Federal High Court in Suit No. FHC/L/C5669/95 which rendered null and void and of no effect, Decree No 52 of 1993 now Lands (title vesting etc) Act Cap. L7, Laws of the Federation of Nigeria 2004, the alleged title which the Claimant purportedly desired from the Federal Government pursuant to the said Decree is not ineffectual, null, void and of no effect.

  1. That the Defendant/Applicant shall file the case stated processes and serve same on the Respondent within 7 days”

 

Above in essence, is the Order of Court of the 11th of May 2010.
At page 507 of the Ruling appealed of 15th November 2011, learned trial Judge had this to say inter alia

“Although both learned counsel have urged the Court to determine this case by way of special case, I am nevertheless of the humble opinion that from the pleadings of parties this Court will not be able to fully resolve all the issues raised in this Suit without evidence being led for instance to determine specifically the extent of the area of the land in dispute in issue which for instance might entail calling expert evidence.

 

There is the issue whether the portion of land the subject property is 946.628sq metres or 1592.894m as shorn in the Deed of Assignment.

 

I find that in a situation where the Claimant is not only seeking declaratory relief that the Defendant is s trespasser on its land in which it is entitled to exclusive possession, but is also seeking for the discretionary power of Court to grant perpetual injunction and damages for trespass and unlawful development of the property,  I hold the view that quite apart from determining these issues of law, there are clearly issues of fact which can only be determined by parties calling evidence in support of their pleadings.

 

I hold that in order to determine once and for all the issues before the court this matter shall proceed to trial immediately where evidence can be led in proof of the pleadings before the court and documentary evidence scrutinized and findings made thereon. And I so hold”.

 

By Order 28 Rules (1) and (2) of High Court of Lagos State (Civil Procedure) Rules 2004, it provides that

(1)     At the Pre-trial conference parties may concur in stating the questions of law arising in their case in the form of a special case for the opinion of the Judge. Every such special case shall be divided into paragraphs numbered consecutively and shall concisely state such facts and documents as may be necessary to enable the Court to decide the questions. Upon the argument of such case the Judge and the parties may refer to all the contents of such documents and the Judge may draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn from them if proved at a trial.

(2)     If at the Pre-trial conference it appears to the Judge that there is in any cause or matter a question of law, which could be conveniently decided before any evidence is given or any question or issue of fact is tried, the Judge may make an order accordingly, and may raise such questions of law or direct them to be raised at the trial either by special case or in such other manner as the Judge may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed”.

 

From records, the Claimant in the Lower Court (Appellant in this Appeal), had, vide Writ of Summons filed and dated 20th of July 2009 sought the following Declaratory relief; Order for Perpetual Injunction and Damages against the Defendant/Respondent viz

(1)     A DECLARATION that the Defendant is a trespasser on the subject property of this suit.

(2)     AN ORDER of perpetual injunction restraining the Defendant whether by itself or its agents, servants, privies and assigns or any person otherwise whosoever acting on behalf of the Defendant from further acts of trespass on the subject property of this suit.

(3)     AN ORDER of perpetual injunction restraining the Defendant whether by itself or its agents, servants, privies, assigns or any person otherwise whosoever acting on behalf of the Defendant, from developing, constructing, fencing, sand filling, piling, selling, transferring, assigning, granting, donating, leasing or otherwise dealing with and/or interfering in any manner whatsoever with the whole or any part of the property or taking any step that would adversely and/or otherwise affect the interests of the Claimant in the subject property of this suit.

(4)     AN ORDER for damages against the Defendant in the sum of N1,000,000,000.00 (One Billion Naira) for the Defendant’s tort of trespass on the subject property of this suit…”

(5)     The costs of this action against the Defendant – Pages 1-2 of the Record of Appeal.

 

In determining whether the learned trial Judge is allowed in law to alter, modify, revisit, review or sit on appeal over, or otherwise render null her own order made on 27th April 2010 (pursuant to the parties separate application) that the suit at the Court below be determined under the special case procedure, by ruling conversely on 15th November 2011, that the said suit be not determined under the special case procedure, it is necessary to consider whether the Order of the 27th of April 2010 was a final decision. In other words, did the Order amount to the determination of the rights of the parties?

 

The word “Decision” has been defined in a plethora of cases. In OBUEKE VS. NNAMCHI (2012) 12 NWLR Part 1314, the Supreme Court pronounced that the constituents and basis of decision of Court is that every determination of a Court consists of findings of fact, and based on the facts so found and the inference drawn therefrom, the Court comes to its ultimate conclusion which may be of facts or law or both law and fact –

 

METAL CONSTRUCTION (WA) LTD. VS. NIGLIORE: IN RE: OGUNDARE (1990) 1 NWLR (Pt. 126) 299.

On meaning of “Decision” – By virtue of Section 318 (1) of the 1999 Constitution, a decision in relation to a Court means any determination of that Court and includes Judgment, decree, order, conviction, sentence or recommendation – VISAFONE COMMS LTD VS. M.C.S.N (LTD/GTE) 2013 5 NWLR Pt.1347 page 251; A.T.E.C. LTD VS. F.M.G (1968) SC. NLR 552; DEDUWA V. OKORODUDU (1976) 1 NWLR 236 @ 278-279.

 

The principle of setting aside its own ruling obviously is that unless and until the Court has pronounced a Judgment or ruling upon the merits or by consent, it is to have power to resolve the expression of its coercive power.

 

The first relief in the Statement of Claim is a declaratory one. A declaratory Judgment is complete in itself since the relief is the declaration – See Vol. 1 Halsburys’ Laws of England 4th Edition paragraphs 185-187 – AKUNNIA vs. A-G OF ANAMBRA STATE (1977) 5 S.C. 161 at 177.

 

The Order of a Court is final if it determines the rights of the parties to the suit finally, or if it finally settles the issues in dispute. But the order will be regarded as being interlocutory if it does not settle the rights of the parties or the issues in dispute finally.

 

It is my view that the order made by the learned trial Judge does not make him functus officio.

 

For there to be a declaratory relief sought that the Defendant is a trespasser, would arouse the need for evidence to be adduced to show if he indeed trespassed on the land in issue. That cannot be treated in limine, without recourse to facts of the trespass, to be elicited from evidence.

 

From records, the learned trial Judge took into consideration that the issue of law cannot be determined adequately without the facts being adduced – page 507 of the Record of Appeal. It is trite that pleadings cannot be relied on solely to determine an issue in a case without looking at the circumstances, facts and merits of each case. M.M.A INC & ANOR Vs. N.M.A (2012) 18 NWLR Pt.1333 pg. 506 at 538.

 

The Pre-Trial Conference Report at page 500 of the Record of Appeal states (at page 501), the applications taken at the conference. The Order made on the 27th of April 2010 was not indicated in the Report.

 

At Pre-Trial stage, motions are usually entertained which are capable of disposing of issues of law and fact. But with respect, this would depend on the peculiar circumstances of the case.

 

The answer to lssue No 1 must necessarily be in the affirmative, as the learned trial Judge had a discretion in the matter, even where the parties had consented to the fact that the court ordered a “special case”.

 

This Issue is resolved in favour of the Respondent and against the Appellant.

 

ISSUE NO. 2

The question in Issue No 2 seems to me to be in pari materia with that in Issue No 1.

 

The Issue asks whether, in light of the circumstances of this case, the Court below was right when it refused to determine, and/or held that the questions of law submitted by the parties before it, cannot be determined under the special case procedure filed by the parties, pursuant to its own Order made on the 27th of April 2010.

 

The answer to this issue must be answered in the affirmative, for the very reasons adduced in answering Issue No 1.

 

This Issue is resolved in favour of the Respondent and against the Appellant.

 

 

ISSUE NO.3

“Whether in light of Section 15 of the Court of Appeal Act Cap C36 LFN 2004, this Honourable Court ought to determine the questions of law raised by the parties under the special case procedure?”

 

In considering this issue, I am of the view that consideration should be given to the purport of the provisions of order 28 of the High court of Lagos State (Civil Procedure) Rules 2oo4, and Section 15 of the Court of Appeal Act.
Order 28 Rules 1 and 2 of the High Court of Lagos State (Civil Procedure Rules) 2004 has this to say

Rule 1

“At the Pre-trial conference parties may concur in stating the questions of law arising in their case in the form of a special case for the opinion of the judge.

Every such special case shall be divided into paragraphs, numbered consecutively and shall concisely state such facts and documents as may be necessary to enable the court to decide the questions, upon the argument of such case the judge and the parties may refer to all the contents of such documents and the judge may draw from the facts and documents stated in any such special case any inference, whether of fact or law which might have been drawn from them of proved at a trial”

Rule 2

“If at the Pre-trial conference it appears to the judge that there is in any cause or matter a question of law, which could be conveniently decided before any evidence is given or any question or issue of fact is tried, the judge may make an order accordingly, and may raise such questions of law or direct them to be raised at the trial either by special case or in such other manner as the judge may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed”.

 

A cursory look at the provisions, shows that the exercise of the power of Court to wield the provisions is discretionary, and not a matter of compulsion – Order 28 Rule 1. Therefore the learned trial Judge has a discretion in the matter.
Ipso facto the provisions of Section 15 of the Court of Appeal Act 2004. For purposes of elucidation, I deem it pertinent to reproduce the provisions.

“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final Judgment in the Appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be reheard by a Court of competent jurisdiction.”

In considering this issue, I cannot but adopt the reasoning proffered by the 1st Respondent in his brief of argument spanning pages 12-14. It is that by invoking section 15 of the court of Appeal Act, the Appellant is asking this Honourable court, that its jurisdiction as a court of first instance be invoked with regard to the determination of the SPECIAL CASE issues. The 1st Respondent has argued that in spite of its argument on the breach of its fair hearing by reason of the alleged failure to determine the issues, the Appellant has failed to urge this Honorable court to set aside the order of the Lower Court.

 

Now the Appellant had sought the following reliefs in his Brief of Argument viz

(i)      AN ORDER allowing this appeal and setting aside the Ruling of the Court below per J. O. Pedro J. delivered on Tuesday, 15th November 2011.

(ii)     That the Court of Appeal hears and determines the “Special Case Application” consensually filed by the plaintiff/Appellant and Defendant/1st Respondent on 7th May 2010.

(iii)    AN ORDER of this Honourable Court directing and/or compelling the Defendant/1st Respondent to vacate the land, the subject matter of the dispute between the parties, having failed to prove a better title in law to that of the Plaintiff/Appellant.

(iv)    AN ORDER that the Plaintiff/Appellant is entitled to immediate possession of the land being disputed by the parties to this appeal.

 

From above, it shows that the Appellant had indeed urged this Court to set aside the Ruling of the Lower Court of 15th November 2011 simpliciter.

 

The 1st Respondent had argued that the Appellant had not specifically asked for a reversal of that decision, in that failure to determine the issue was an error, which error occasioned a miscarriage of justice citing IMAH vs. OKOGBE (1993) 9 NWLR (Pt.316) 159 @ 178 B-E; ALHAJI ISIYAKU YAKUBU ENTERPRISES LTD. VS. OMOLABODE (2006) 3 NWLR (Pt.966) 195 @ 203 H.


The 1st Respondent argues further that the Appellant has failed to show how it was prejudiced by the Order of Court.

 

He argues (rightly in my view) that the order of the 15th of November 2011, sets the machinery in motion for proper trial, where the laid down procedure for determining declaratory relief is followed, and all documents of title relied, and witnesses for and against the claim are properly taken and scrutinized.

 

It is trite that the Court of Appeal’s powers to act as a Court of first instance, must be one that should be exercised with caution, and in very exceptional cases. This postulates that it will exercise same where what ought to be done by the Court of first instance was not done or was not properly done.

 

In my view, and as earlier expressed in this Judgment, the learned trial Judge took into consideration the fact that the issues before it, cannot be determined without proper trial.

 

The 1st Respondent had also argued (rightly in my view) that the provisions of Section 15 of the Court of Appeal Act, has conditions and circumstances under which the Appellate Courts may exercise the powers under Section 15 of the Court of Appeal Act.

 

They are

(a)     The Lower Court must be competent to determine the issue which the Court is being asked to determine.

(b)     The real issue raised by the claim of the Appellant at the Lower Court must be seen to be capable of being distilled from the Grounds of Appeal.

(c)     All necessary material must be available to the Court for its consideration.

(d)     The need for expeditions disposal of the case or suit to meet the end of justice must be apparent on the face of the material presented.

(e)     The injustice or hardship that will follow if the case is remitted to the Lower Court must be clearly manifest – AGBAKOBA VS INEC (2007) 11 NWLR (Pt.1046) 565 at 639.

The claims of the Appellant at the Lower Court are apparent on the face of the record. At the expense of repetition, they are stated at page 2 of the Record of Appeal.

 

One of the reliefs is for a declaratory order. It is trite that this can only be granted by evidence being elicited. It has to do with land. As with such issues, the identity of the land, its size, are facts which must be before the Court, in no uncertain terms.

 

As rightly argued by the 1st Respondent, the Lower Court lacks the competence, and/or will be failing in its competence, by merely relying on a document (deed of ratification), which was not front-loaded as required by its rules and which was indeed not pleaded in the processes before the Court.

Again, to aver that the 1st Respondent is a trespasser, facts must be adduced in support thereof.

 

The court of Appeal certainly is not a Father Christmas. Section 15 of the Court of Appeal Act cannot enable it to be so.

 

To invoke the provisions of this Act, by the Appellant, is clearly a misconception, and I so hold.

 

It would do no harm, in my view, to the Appellant if the issues, both of law and fact are considered, and determined at the trial, particularly in view of the fact that the Lower Court had, by Coker J (Mrs.) in a Ruling delivered on the 13th of April, 2009, ordered accelerated hearing of this case – page 476 of the Record of Appeal.

 

The answer to Issue No 3 is in the negative. It is resolved in favour of the Respondent and against the Appellant.

 

The result is that the appeal fails in its entirety and same is hereby dismissed accordingly.

 

This matter is hereby remitted to the State Honourable Chief Judge of Lagos for assignment to any Judge of the Lagos state Judiciary for consideration and determination on its merits.

 

No order as to costs.

 

 

SIDI DAUDA BAGE, J.C.A.:

I read before now the judgment just delivered by my learned brother RITA NOSAKHARE PEMU, JCA, I entirely agree with the reasonings and the conclusion reached at the judgment. The appeal fails in its entirely and same is also dismissed by me. I abide by all the consequential orders contained in the leading judgment, including the order as to costs.

 

CHINWE EUGENIA IYIZOBA, J.C.A.:

I read before now the ruling just delivered by my learned brother, RITA NOSAKHARE PEMU JCA. I agree with the ruling. I abide by the consequential orders in the ruling including the order as to costs.

error: Our Content is protected!! Contact us to get the resources...
Subscribe!