Chinedu Muokebe V. Alhaji Bala Haruna (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice E.O. Abua in suit No. HD/3A/2012 delivered on the 27th day of March, 2013. Upon being dissatisfied with the said judgment, the Appellant has appealed to this Court.

The facts of this case are that the Respondent as Plaintiff in the lower Court on the 3rd day of May, 2012 took out summons previously at the Chief Magistrate Court, Obudu in suit No. MOD/R.6/2012 against the Appellant as Defendant to give up possession of a filling station situate at No. 1 Anderson Street, Obudu to the Respondent upon the termination of the lease agreement entered into by the parties on the 14th of May, 2011.

The Appellant thereupon filed a Preliminary Objection to the competency of the suit which said objection was taken together with the suit on the merit by the Learned Chief Magistrate on the 4th day of September, 2012, and judgment was entered against the Appellant. There upon, he filed a Notice of Appeal to the High Court of Justice Obudu.

The said Court after taking a passionate consideration of the appeal dismissed same, and awarded N10,000.00 cost against the Appellant. Being dissatisfied in No. HD/3A/2012, the Appellant has lodged another appeal before the Court of Appeal, Calabar.

In his Brief of Argument date 2nd May, 2013 and filed on the 3rd May, 2013, the Appellant distilled two issues for determination viz:

– Whether the Court below properly addressed the issue of jurisdiction.

– Whether the Court below properly addressed the issue as to whether the Chief Magistrate indeed granted what was not claimed.

Both issues were argued together thus: Learned Appellant’s Counsel submitted that the Learned trial Judge did not properly address the issue of jurisdiction when he affirmed the judgment of the trial Magistrate Court. The Learned trial Magistrate as well misconstrued the position of the Law when he over-ruled the Defendant/Appellant’s Preliminary Objection to proceed to recover possession contending that he failed to take cognizance of sections 17 and 18 of the Rent control and Recovery of Premises Law of Cross River State of Nigeria 2004.

Rather than consider the purport of the above section, Learned Counsel concluded that the Learned trial Judge descended into the arena and set up a different case from that of the parties as could be seen from page 23.

On issue No. 2, he submitted that the trial Court was wrong to grant to the Respondent a relief he did not claim as the trial Court is not a father Christmas. See Osuji vs. Ekeocha (2009) 7 MJSC pt 11 page 74 at 79. The claim of the Plaintiff against the Defendant is as follows:

– Possession of Oando Filling Station and appurtenances held over by the Defendant.

– The sum of N100,000.00

In conclusion, Learned Appellant’s Counsel urged the Court to allow the appeal.