Alhaji Musa Omo Eleja V. Josiah Aiyedun Bangudu (1994)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A.

The dispute between the parties in this appeal started in 1984 when the appellant sued the respondent in the Ilorin High Court. The Suit No. KWS/26/84 was determined on 16th October 1987 when Ibiwoye. J. in his judgment dismissed the claim of the appellant. Not satisfied with that decision, the appellant appealed to this Court.

The appellant’s appeal No. CA/K/65/88 was partially successful when this Court in its judgment of 27th April, 1989 allowed the appeal in part in that some of the appellant’s claims were allowed while the dismissal of the other claims of the appellant by the lower court were upheld. About one year after the decision of this Court of 27th April, 1989, the appellant again by a writ of summons dated 23rd April, 1990 filed another action against the respondent at the Ilorin High Court claiming the following reliefs:

A. Possession of the house situate at Sokoto Road Ilorin, leased by the plaintiff to the defendant on 19th of December, 1988 for a period of 3 years only.

B. Arrears of rent from June, 1989 till judgment is delivered at the rate of N1,080.00 per annum.

C. Mense profit from now until the date of judgment in this suit, at the rate of N1.080.00 per annum.

The case went through full trial before Ajayi, J. who in her judgment delivered on 12th December, 1991 allowed the appellant’s claims for arrears of rent under paragraphs Band C but dismissed his claim for possession of the house at Sokoto Road Ilorin leased to the respondent in the following words:-

“I also hold that because the quit notice do not comply with CAP 115, sections 2 and 7 the claim for possession of the premises fails and it is accordingly dismissed.”

It is against this decision of the lower court that the appellant again appealed to this Court upon filing his notice of appeal containing a single ground of appeal which reads-

“The learned trial Judge of the High Court of Justice. Ilorin, erred in law and came to a wrong decision by holding thus:-

‘I also hold that because the quit notices do not comply with CAP 115, sections 2 and 7 the claim for possession of the premises fails and it is accordingly dismissed’.

PARTICULARS OF ERRORS

1. Where the plaintiff’s evidence in respect of the notices to quit showed that the proper procedure was not adopted, the court ought not to have dismissed the case.
2. Where the plaintiff in a case fails to discharge the burden of proof bestowed upon him as in this case, the proper order to make is that of a non-suit or striking out and not dismissal of the case.
3. Where an order of dismissal of a case is made by a court of law as in this case, there is a total bar to the aggrieved party’s right to relitigation upon the same matter or issues which engenders injustice and foul play.
4. The effect of the order of the trial court reversed the judgment of the Court of Appeal.”

From this lone ground of appeal which is only complaining against the order of the lower court dismissing the appellant’s claim for possession, the learned counsel for the appellant quite rightly, in my view, identified only one issue for the determination of the appeal. The issue is whether the learned trial Judge was right in dismissing the appellant’s claim for possession. However, learned counsel to the respondent in ‘his brief has identified the following 3 issues from the single ground of appeal filed by the appellant. These issues are:-

1. Whether Exhibits 1 and 2 were valid Quit Notices to warrant the granting of the appellant’s prayers for possession.
2. whether the learned trial Judge was right in dismissing the suit and whether the learned trial Judge rightly exercised his discretion in dismissing the suit.
3. Considering the earlier suit NO.KWS/26/84 and appeal No. CA/K/65/88 (both unreported) whether the appellant’s claim against the respondent is not barred by legal doctrine of Estoppel per Rem Judicatam.

It is pertinent to observe that, issues, 1 and 3 formulated by the respondent do not arise or relate to the only single ground of appeal filed by the appellant. The question of whether the quit notices Exhibits 1 and 2 are valid does not arise from the appellant’s ground of appeal which in effect had conceded that the quit notices were invalid. The appellant’s appeal is only challenging the correct order to be made by the trial court upon finding that the quit notices were invalid. Similarly, the respondent had raised the issue of estoppel per rem judicata in the 3rd issue with clearly does not flow from the ground of appeal. Therefore only issue No.2 identified by the respondent in the respondent’s brief is traceable to the appellant’s ground of appeal.