Abuja Municipal Area Council v. Mrs. Kasuwa Anyisa (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JCA (Delivering the leading judgment)

The respondent, as plaintiff before the High Court of the Federal Capital Territory, Abuja, in suit No. FCT/HC/CV/1140/2016 instituted proceedings against the appellant herein and others, claiming sundry reliefs in respect of property situate at Plot 1432, Karu E-10 Abuja.

The lower court entered judgment in favour of the respondent as follows:

Consequently, having been satisfied that the plaintiff has proved her case on the preponderance of evidence judgment is therefore entered as per the writ of summons as follows:

1. A declaration that the plaintiff is the bonafide owner of Plot 1432, Karu E-10 Abuja.
2. The sum of N42,000,000.00 (forty-two million naira) being the capital value of the plaintiffs land forcefully and unlawfully acquired and annexed by the 1st defendant.
3. The sum of N2,500,000.00 (two million, five hundred thousand naira) as yearly rent from the 1st day of January 2011 till the 1st defendant pays for the capital value for the land.

The judgment of the lower court was delivered on 7th December 2016. The appellant complied with the said judgment and wholly liquidated the judgment sum on 4th July 2019.

However, post-judgment and liquidation of the judgment sum, the respondent filed applications seeking for an order of court awarding post-judgment interest on the judgment sum and for the accrued post-judgment interest over the period it took the appellant to liquidate the judgment sum to be paid.

The first of such applications in motion No. M/8593/2019 was filed on 5th September 2019. On account of some errors in the said motion, the respondent filed another motion seeking the same reliefs in motion No. M/4462/2020 and another motion in M/4632/2020 wherein the respondent sought leave to amend motion No. M/8593/2019 in terms of motion No. M/4462/2020 (see page 143 of the records of appeal).

At the proceedings of the lower court of 12th February 2020, the lower court struck out both motion Nos. M/8593/2019 and M/4632/2020 and stated that the live motion before the court was motion No. M/4462/2020. It subsequently took argument on the said motion and granted the same on 7th October 2020. The appellant, dissatisfied with the decision of the lower court appealed against the same by notice of appeal filed on 26th October 2020.

The records of appeal was compiled and transmitted and briefs of argument were filed and exchanged by the parties. At the hearing of the appeal, the learned counsel for the appellant, though duly served with a hearing notice was not in court, whereupon the court invoked the provisions of order 19 rule 9 (4) of the Court of Appeal Rules, 2021 and treated the appeal as duly argued by the appellant on its brief of argument.

The learned counsel for the Respondent thereafter called the attention of the court to the preliminary objection incorporated in his brief of argument and he urged the court to uphold the preliminary objection and to further dismiss the appeal on the merits.In the appellants brief which was filed on 3rd December 2021, but deemed as properly filed on 6th December 2021, a sole issue was distilled for determination, namely:

Whether motion No: M/4462/2020 is competent before the court. (Grounds one and two).

The respondents brief was filed on 16th December 2021, and the sole issue formulated by the appellant was adopted by the respondent. The preliminary objection incorporated and argued in the respondents brief is predicated on the ground that the appeal as presently constituted is incompetent.

The appellant did not file any reply brief so it did not reply to the submissions of the respondent on the preliminary objection. It is settled law that when an appellant fails to file a reply brief when it is necessary to do so, he will be deemed to have conceded the points arising from the respondents brief. See Okoye v. Nigerian Construction and Furniture Co. Ltd.(1991) 6 NWLR (Pt. 199) 501, Okongwu v. NNPC (1989) 4 NWLR (Pt. 115) 296 at 309 and Nwankwo v. Yaradua (2010) 45 WRN 1; (2010) 12 NWLR (Pt. 1209) 518.

The situation is even worse where a reply brief is not filed to a preliminary objection as in this case: Dairo v. Union Bank (2008) 2 WRN 1 at 8-9, Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1 and Ayalogu v. Agu (1998) 1 NWLR (Pt. 532) 129. On the state of the law, the appellant is deemed to have conceded the points raised in the preliminary objection since it did not file a reply brief. However, this does not mean that the preliminary objection is bound to succeed.