Ejezie Anene & Ors V. Theosophy Theocrat Okoye (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On the 20th October 2008, the Anambra State High Court sitting at Nnewi, per G. E. Ifeakandu, J rendered judgment in suit No. HN/51/2005 in favour of the plaintiff (respondent herein) against the defendants (appellants herein) in the following terms –

1. “The plaintiff is declared the bona fide allottee of stall situate, being and known as Zone 19 No. 308 at the Main Market, Nnewi which was granted to him by the Nnewi North Local Government.
2. N600,000.00 (Six hundred thousand naira) only being general damages for trespass jointly and severally against the defendants.
3. Perpetual injunction restraining the defendants, their servants, agents and or privies from disturbance or further disturbance or from interfering with the plaintiff in his enjoyment of the said stall.”

Dissatisfied with this judgment, the defendants commenced this appeal No. CA/E/159/2009 on 3rd December, 2008 by filing a notice of appeal containing six grounds of appeal. With the leave of this court, the said notice of appeal was subsequently amended. The amended notice of appeal dated 25th April 2012 and filed on 26th April 2012 contains 8 grounds of appeal.

Both parties to this appeal have filed, exchanged and adopted their respective briefs of argument. The briefs of argument filed in this appeal include the appellants brief of argument, the respondent’s brief of argument and the appellants’ reply brief.

The appellants in their brief of argument raised the following issues for determination:

1. Whether the plaintiff who had let the stall in dispute to a tenant can maintain an action in trespass and whether there was evidence that the defendants are trespassers.
2. Whether the learned trial judge was right to hold that posting of the notice on the said stall was the act of trespass.
3. Whether the learned trial judge was right to award the sum of N600,000.00 against the defendants jointly in favour of the plaintiff on the facts and circumstances of this case.
4. Whether the sum of N600,000.00 awarded by the learned trial judge in the circumstance of this case is not excessive and wrong.
5. Whether the learned trial judge was right to hold that extrinsic evidence is inadmissible to show that stall known as Zone 19 No. 308 is also known as stall No. 68 in Block E 27 in Zone 22 Main Market, Nnewi.
6. Whether the learned trial judge was right to hold that the plaintiff is the bona fide allottee of the stall in dispute.

The Respondent in his brief of argument raised the following issues for determination.

1. Whether the Respondent has the locus standi to institute an action for trespass at the court below.
2. Was the lower court not justified to have granted the reliefs contained in the Respondent’s statement of claim?

Considering the judgment, the grounds of appeal, the issues for determination and the arguments thereon, I think that all the issues raised by the parties herein deal with one central issue, that is, whether the reliefs granted the respondent by the trial court in its judgment was justified by the facts before it and the law.

Before I delve into the determination of the merit of this issue, let me deal with a preliminary issue concerning the relationship between ground 5 of the amended notice of appeal, issue No. 5 in the appellant’s brief and the judgment appealed against.

I have noticed that ground five of the amended notice of appeal and issue No. 5 are not based on and are not challenging any part of the judgment of the trial court. The trial court never decided that extrinsic evidence is admissible to show that the market stall known as Zone 19 No. 308 is also known as stall No. 68 in Block E. 27 in Zone 22 Main market Nnewi. The said ground 5 reads that – “The learned trial judge erred in law when it held that extrinsic evidence is admissible to show that stall known as Zone 13 no 134 is also known as stall No. 68 in Block 827 in Zone 22 Main Market Nnewi.”

PARTICULARS OF ERROR

132(1) of Evidence Act provides five classes of exceptions to the general rule of exclusion of extrinsic evidence laid down in the section

1. The defendants pleaded that the number of the stall was changed by the traders for administrative convenience
2. The learned trial judge did not make any finding on this issue
3. The learned trial judge found that the identity of the stall was ascertainable and known to the parties.
4. The plaintiff did not join issues with the defendant on the said renumbering of the stall by traders.

The question raised by issue No. 5 is – “Whether the learned trial judge was right to hold that extrinsic evidence is inadmissible to show that stall known as Zone 19 No. 308 is also known as stall No. 68 in Block E 27 in Zone 22 Main Market, Nnewi.” The decision of the trial court was that extrinsic facts cannot be admitted to show that the sublease property in exhibit J, stall No. 68, block E 27, Zone 22 at Nnewi main market also bears the identification particulars of Zone 19 No. 308 having been so renumbered by traders for administrative convenience. This is clear from the portion of the judgment of the trial court as follows – “The Court therefore agrees with the plaintiff’s counsel that extrinsic facts should not be added to, subtracted from, to contradict the terms of a document or instrument (Exhibit ‘J’) to give it another meaning, I hold therefore that it was not so intended that stall at Zone 19 at No. 308 was meant to be part of Exhibit ‘J’ and that no oral evidence at this stage of litigation should or ought to be allowed to form part of the said Exhibit ‘J’ so as to bring the res – the stall now in dispute i.e. stall Zone 19 No.308, to be part of the Lease Instrument Exhibit ‘J’. Also the Court, having carefully examined the pleadings of the parties. Exhibits ‘B’, ‘C’, ‘D’, ‘E’, ‘F’, ‘G’, ‘GI’, Exhibit ‘J’, & ‘K’ and the submissions by the two Counsel on the “plaintiff’s issue No. 1 that Exhibit ‘J’ has no connection or bearing with the stall at Zone 19 No. 308 as pleaded by the plaintiff which is in dispute in this case”, it is also my view that for the reason(s) earlier on considered the two parties in this suit very well know the stall at Zone 19 No. 308 that is now in dispute which the plaintiff claims. The res or the stall in dispute has no connection with Exhibit ‘J’ the Lease Agreement and I resolve issue No. 1 of the plaintiff, in favour of the plaintiff.”

An appeal can competently or validly lie only against what a judgment decided. It cannot lie against what was not decided in the judgment appealed against. An appeal on a matter not decided in the judgment is incompetent and must be struck out.

Any issue for determination deriving from such ground is incompetent and equally has to be struck out. See SARAKI & ANOR v. KOTOYE (1992) 11/12 SCNJ 26 where the Supreme Court, per Karibi-Whyte, JSC held that the subject matter for determination must be an issue in controversy between the parties. The decision appealed against must have decided the issue…