Mr. Alfred Ajayi Raine V. Mr. Macdonald Odibo & Anor. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment)

By his further amended statement of claim at the lower court, dated 5th December 1996, the 1st Respondent herein who was the plaintiff at the lower court, claimed against the Appellant and the 2nd Respondents jointly and severally the following reliefs:

1. A declaration that the purported sale of the plaintiffs house presently known and referred to as No. 10B Fleming Avenue Rumuomasi, Port Harcourt by the 2nd Defendant to the 1st Defendant is unlawful, grave in justice, unconstitutional, null and void.
2. A declaration that the plaintiff is owner still the lawful and legitimate owner of the property presently known and referred to as No. 10B Fleming Avenue, Rumuomasi Port Harcourt.
3. A perpetual ‘injunction restraining the defendants, their agents and privies from further trespassing on No. 10B Fleming Avenue, Rumuomasi Port Harcourt.
4. N200,000 General damage for trespass and losses suffered by the plaintiff as a result of the Defendant’s action.

ALTERNATIVELY

5. The plaintiff claims the sum of N2m (Two Million Naira) being and representing the value of the property from the Defendants jointly and severally as compensation due to him from the property.

By their earlier statement dated 23/01/1995 and 5/12/1996, the Appellant and the 2nd Respondents, who were 1st and 2nd Respondents at the lower court respectively, denied the 1st Respondent’s claims. In addition, the Appellant counter claimed as follows:

(a) A declaration that the 1st defendant is entitled to the right of occupancy of the 2 bedroom flat situate at NO. 10B Fleming Avenue Rumuomasi, Port Harcourt now being held unto by the plaintiff through Mr. Eugene Dappa a tenant.

(b) N500,000.00 General damages for trespass suffered by the 1st defendant as a result of the actions of the plaintiff’s actions.

(c) A order of perpetual injunction restraining the plaintiff, his servants’ agents and privies from further trespassing on No. 10B Eleming Avenue, Rumuomasi, Port Harcourt.

Issues having been joined and after hearing testimonies of the witnesses called by the 1st Respondent herein and the Appellant, and upon hearing Learned Counsel for the appellant and the 1st Respondents, the Learned trial judge, Mary Odili J (as she then was) found merit in the claim of the 1st respondent and granted him reliefs 1-3 in terms of his claims. Learned trial judge awarded N20,000 as general damages and N2,000 cost against each Respondent then.

The Appellant is dissatisfied with the decision of the lower court. Being aggrieved he has brought this appeal. His notice of appeal dated and filed on the 17/8/1998 contains three grounds of appeal. This notice was later amended. The Amended notice of appeal containing three grounds of appeal is dated 22/2/07.

Parties filed and exchanged briefs of argument. The first Respondent issued a notice of preliminary objection which he argued at pages 4 -25 of the 1st Respondent’s brief of argument dated and filed on the 9/11/10, but deemed filed on the 1/12/10.

The preliminary objection, being a preliminary issue will be considered first before delving unto the appeal. The grounds upon which the 1st Respondent’s objection lies are hereunder set out as follows;-

1. The Amended Notice of Appeal relied upon by the Appellant is fundamentally defective and incompetent as the Appellant stated therein a non-existent Port Harcourt High Court as the court that delivered the judgment he is appealing against.
2. The Honourable court has no jurisdiction to entertain appeals from the said Port Harcourt High Court.
3. The entire Appeal which is obviously hinged on the said Amended Notice of Appeal is also fundamentally defective and incompetent.
4. Furthermore the Appellant without first obtaining the leave of this Honourable court or the lower court raised in Ground of appeal No. 1 in the Amended Notice of Appeal the fresh issue of the Abandoned property Decree No. 90 or Act absolving the Appellant, an alleged purchaser of an abandoned property, form any liability or claim in respect thereof.
5. The said Ground of Appeal is thus fundamentally defective and incompetent and consequently issue No. 1 in the Appellant’s brief which was formulated from the said incompetent Ground of Appeal is also fundamentally defective and incompetent.
6. The Appellant also without the leave of court raised and canvassed in his Brief of Argument of the Rivers State Housing and Property Development Authority Edict, 1985.
7. The said issue of the application of the said Rivers State Housing and Property Development Authority Edict, 1985 is not covered by any ground of appeal.
8. The arguments in paragraphs 3.5 – 3.7 and 4.1 – 4.5 in the Appellant’s Brief of Argument are unrelated to any of the issues for determination formulated by the appellant in his Brief of Argument and thus incompetent.
9. The entire arguments of the three issues formulated by the Appellant in his Brief of Argument are also fundamentally defective and incompetent as the incompetence of the said issues and arguments has contaminated them since all the issues were argued together.

In his submission on the preliminary objection, Mr. Wodu, learned counsel for the 1st Respondent argued grounds 1, 2 and 3 together, while Grounds 4, 5, 6, 7, 8 and 9 are argued together. I will therefore adopt the same order in determining this preliminary objection.

The objector’s quarrel are indicated in grounds 1, 2, and 3 is with the portion of the Amended notice of appeal dated 22/2/07, which reads thus:-

“TAKE NOTICE that the 1st Defendant/Appellant being dissatisfied with the judgment of Honourable justice Mary Odili, sitting at Port Harcourt High Court, on the 16th day of July, 1998, do hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3….”