Emeka Nwana V. Federal Capital Development Authority & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

The appellant was a Principal Technical Officer with the 1st respondent. He was allocated a 2 bedroom flat at Area 2, section 1, Block 41, flat 2, Garki, Abuja. On 11th April, 1989 his appointment was terminated. Following the termination, the 1st respondent and other persons acting on its behalf as agents and servants entered the house and took possession of same. The appellant was thereby deprived of the use and enjoyment of the premises. He claimed that his properties were damaged in the process.

He filed an action at the High Court of Justice, Federal Capital Territory. He claimed for N250,000.00 exemplary damages. Parties gave evidence at the trial. The learned trial Judge gave judgment in favour of the appellant. He awarded him NI20,268.00 special damages for trespass committed on the premises and goods.

Dissatisfied, the respondents appealed to the Court of Appeal as appellants. That court overturned the decision of the learned trial Judge. In allowing the appeal, the court dealt with an area of law. It is the position of the common law in respect of a licensee’s right over estate in property. Salami, JCA, delivered the leading judgment. Relying on Dr. Chukwumah v. Shell Petroleum Development Company of Nigeria Limited (1993) 4 NWLR (Pt. 289) 512, Salami, JCA, said at page 88 of the record:

“I am bound by the decision of the Supreme Court which says that at common law a licensee has no estate in a property and can for that reason not sue his employer in trespass. The respondent’s claim is baseless. I also dismiss it. I allow the appeal and set aside the decision of the court below.”

Dissatisfied, the respondent, as appellant, has come to this court. As usual, briefs were filed and exchanged. The appellant formulated two issues for determination as follows:

“2.1 Whether Chukwumah v. Shell Petroleum Development Company of Nigeria Limited (1993) 4 NWLR (Pt. 289) 512 truly decided that at common law a licensee has no estate in a property and can for that reason not sue his employer in trespass.

2.2 Whether the Court of Appeal was right to have formulated an issue suo motu and based its judgment on same without calling on the parties to address the court on the issue.”

It would seem to me that the respondents have adopted the issues formulated by the appellant. I say so because the position is not clear. The two issues formulated by the appellant are on page 1 of his brief. Respondents say in their brief that they will “answer the two issues contained on pages 3 to 8”. While the respondents did not say pages 3 to 8 of what document, I have taken the trouble to look at all the processes including the record of proceedings but I cannot place my hands on the issues formulated on any “pages 3 to 8”. In the circumstances, I take it that the respondents adopt the two issues formulated by the appellant.

Learned counsel for the appellant submitted on issue No. 1 that the case of Chukwumah v. Shell Petroleum Development Company of Nigeria Limited (supra) is inapplicable, as the statement by Karibi- Whyte, JSC, relied upon by the Court of Appeal is an obiter dictum which is not binding on this court. Quoting the ratio of the case in the leading judgment of Ogundare, JSC, learned counsel cited the following cases as deciding similar point: Foreign Finance Corporation v. Lagos State Development and Property Corporation (1991) 4 NWLR (Pt. 184) 157, (1991) 5 SCNJ 54; Military Governor of Lagos State v. Chief Ojukwu (1986) 1 NWLR (Pt. 18) 621; Ihenacho v. Uzochukwu (1997) 2 NWLR (Pt. 487) 257, (1997) 1 SCNJ 117 at 128; Eliochin (Nig.) Limited v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 and Calabar East Co-operative v. Ikot (1999) 14 NWLR (Pt. 638) 225, (1999) 12 SCNJ 326 at 337.

On issue No.2, learned counsel, reacting to the conclusion of the Court of Appeal that issue No.3 was formulated from ground 4, submitted that ground 4 of the respondents grounds of appeal at the Court of Appeal was on fact not law. The issues formulated therein complained of interpretation placed on the allocation letter by the court of first instance, learned counsel maintained. He argued that there is no way that the issue formulated by the Court of Appeal based on the interpretation of provision of the Recovery of Premises Act can be derived from issue No.3 and or ground 4 of the respondents brief.

It was the submission of counsel that where a court formulates an issue suo motu the parties must react to it. He cited Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250, (1999) 12 SCNJ 259 at 273; Umaru v. Abdul-Mutallabi (1998) 11 NWLR (Pt. 573) 247, (1998) 7 SCNJ 203 at 220 and Irom v. Okimba (1998) 3 NWLR (Pt. 540) 19, (1998) 2 SCNJ 1 at 5. Counsel urged the court to ignore totally the judgment of the Court of Appeal based on issues not raised by either of the parties.

Learned counsel for the respondents, Mr. P.Y. Okala, Director, Legal Services, Federal Capital Development Authority, submitted that the case of Chukwumah v. Shell Petroleum Development of Nigeria Limited (supra) is relevant as it decided that at common law, a licensee has no estate in a property and can for that reason not sue his employer in trespass. He submitted that the statement of law by Karibi- Whyte, JSC, is not his opinion but a principle rooted deeply in our legal system. Counsel submitted that the appellant is a licensee. He cited Oyekoya v. GB Olivant (Nig.) Ltd. (1969) NSCC (Vol. 6) 69 and Mobil Oil (Nig.) Ltd. v. Johnson (1961) 1 All NLR 93 at 101, (1961) 1 SCNLR 157.

On issue No.2, learned counsel submitted that the issue raised borders on technicality and urged the court to pursue justice. He cited Akunyili v. Ejidike (1996) 5 NWLR (Pt. 449) 381 at 390. He also submitted that a party cannot be allowed to take advantage of a benefit from his initial wrong. He cited Solanke v. Abed (1962) 1 SCNLR 371, (1962) NSCC (Vol. 2) 160 at 161. He urged the court to dismiss the appeal.