Adaji Ojonye V. Alhaji Salisu Ibrahim & Ors. (2001)

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RABIU DANLAMI MUHAMMAD, J.C.A.

The 1st respondent herein i.e Alhaji Salisu Ibrahim was the plaintiff at the lower court. He instituted an action at the Kaduna State High Court claiming the following reliefs:-

(a) As against the 1st, 2nd and 3rd defendants a DECLARATION that he is the lawful owner of the right of Occupancy over plot and property known as No. Z. 12 Jaji road (also known as Z.5 Jaji Road) Abakpa Kaduna.

b) AN ORDER directing the 1st defendant to refund to the plaintiff the total sum of N46,800.00 (forty six thousand, Eight hundred naira) only being the rent at N100.00 per room, per month for the 16 rooms covering the period August, 1991 to August, 1994.

c) AN ORDER restraining the 1st defendant from collecting or further collecting any rents or dues or monies from the tenants of the house No.Z. 12 Jaji Road (Known as No. 25 Jaji Road) Abakpa Kaduna.”

It is only the 1st defendant, Adaji Ojonye, who is now the appellant that filed a statement of defence in which he denied all the claims and urged the lower court to dismiss the suit as it lacked merit and was an abuse of the court’s Process. The other two defendants did not participate in the trial. Evidence were adduced by both the plaintiff and the 1st defendant. The plaintiff testified and called four witnesses. The first defendant also testified and called four other witnesses. After considering the evidence adduced by both parties, the learned trial Judge made some specific findings and came to the following conclusion:-

“The final analysis of my various findings shows that the plaintiff has proved his case as laid down in section 135 and 136 of the E. A. cap 112 Laws of Federation of Nigeria, 1990 I find that he is entitled to judgment. Accordingly I enter judgment in his favour against the defendants in the terms of Paragraph 7 of the plaintiff’s statement.”

Dissatisfied with the judgment, the 1st defendant appealed to this court. He filed three grounds of appeal. On 21st October, 1999, he filed a motion on notice to amend the notice and grounds of appeal by filing additional grounds of appeal. This motion was however withdrawn and struck out on 24th January, 2000. The grounds of appeal as contained in the notice of appeal are:-

“1. That the honourable court erred in law by granting relief that was not pleaded.

PARTICULARS:

a) That the plaintiff did not plead arrears of rents but only prayed the court to grant same in paragraph 7 and nothing more. Since the plaintiff did not plead arrears of rents and any evidence given in that regard goes to no issue.

2. That the honourable court erred in law when it held that the first defendant should pay rent arrears to the plaintiff when the plaintiff abandoned that relief in his evidence.
3. That the honourable court erred in law when the court admitted exhibit pleaded in paragraphs 5 and 6 and LANDS under section 15 of the Registration Law makes the said exhibit inadmissible.”

On the 3rd of July, 2000, this court granted the appellant extension of seven days within which to file his brief of argument. The said brief was filed on 4th July, 2000. The respondents were served with the appellant’s brief but they failed to file their own brief on the day the appeal was fixed for hearing i.e. 15th May, 2001, neither the respondents nor their counsel was in court even though they were served with the hearing notice. Up till that day they did not file their brief of argument. Mrs. Omoloba, learned Counsel for the appellant, therefore applied to the court to hear the appeal on tile appellant’s brief alone and in the respondent’s absence since they were served but refused to come to court and no reason was given for their absence. The application was granted. She then adopted the appellant’s brief of argument in its entirety and urged the court to allow the appeal.

Two issues were identified for the determination of the appeal in the appellant’s brief. The issues are:

“(1) Whether there was a statement of claim before the court upon which it relied to determine the case.