Obi Eze V. A.G. Rivers State (2001)
LAWGLOBAL HUB Lead Judgment Report
S. U. ONU, J.S.C.
This is an appeal against the Ruling of the Court of Appeal (Port Harcourt Division) hereinafter referred to shortly as the court below, dated 24th May, 1995, refusing the Plaintiff/Appellant’s application to argue new points of law not hitherto argued in the High Court.
The facts of this case which are straight forward enough, may be summarised briefly as follows:
The Plaintiff/Appellant claimed in Suit PHC/139/83 in the Port Harcourt (Rivers State) High Court among other reliefs, a declaration that the purported sale of his buildings situate at Plot 2, Block 260 – Wobo Layout, Diobu known as No. 61 Ikwerre Road, and registered as No. 36 at page 36 in volume 280 at the Lands Registry, Enugu now kept at Port Harcourt, to the 2nd Defendant (herein 2nd Respondent) is unconstitutional, and null and void, and an account of any monies received by the 2nd Respondent as rents from the tenants of the premises and payment over to the Appellant or in the alternative, N380,000.00 as the market value of the said property.
By his 13 paragraph Amended Statement of Claim, he (Appellant), averred that by a deed of lease dated 30th March, 1961 and registered as No. 69 at page 69 in Volume 260 of the Lands Registry, Enugu now Port Harcourt, Messrs George Ezeikpe, Sunday Agwu, Anagha Ezeikpe and Agu Trading under the name and style of George Ezeipke Brothers and Sons, were granted lease of the property in dispute by the then Minister of Town Planning, Eastern Nigeria. Further, that by a deed of assignment dated 7th December, 1964 and registered as No. 36 at page 36 in Volume 380 in the same registry the lessees assigned the unexpired term to the Appellant, who took possession of the same, erected a building thereon consisting of two buildings of three floors in front of the premises and another house of three floors behind. Further still, that on completion of the building, he and his family resided in part of it and let the other rooms between 1965 and 1968 though forced to flee Port Harcourt in the wake of the Nigeria civil war.
On the cessation of the Nigerian civil war, the Appellant said he returned to Port Harcourt and tried to regain possession of the buildings but was informed that 1st Respondent had acquired the premises with all the buildings thereon. He thereupon stated that on 25/8/80, he discovered that the 2nd Respondent in Suits No. PMC/62/80, PMC/63/80 and PMC/64/80 had sued all the tenants occupying the premises for recovery of the premises. Wherein he also applied and was on 3/10/90 joined as co-defendant in a suit adjourned sine die by the Chief Magistrate Court. On a further inquiry at the Lands Office and Abandoned Property Office in Port Harcourt, the Appellant stated that he discovered that the 2nd Respondent had paid a deposit of six thousand Naira for the land, house and premises sold to the 2nd Respondent for a consideration of Sixty thousand Naira. Appellant then averred that as he had not been paid any compensation for the land, buildings and premises, hence he brought this action.
The 1st Respondent countered by a 10 paragraph Amended Statement of Defence wherein he admitted that the property in dispute is State land and that the lease of 30th March, 1961 was for a term of 40 years commencing from 1st January, 1959 and registered as No. 69 at page 69 in Volume 260 of the Land Registry Enugu. He averred that the partners trading under the name and style of Ezeikpe Bros & Sons indeed granted an irrevocable power of attorney registered as No. 73 page 73 in Volume 255 of the Lands Registry to the Appellant which was effected without the prior consent of the Governor. Further, the 1st Respondent admitted the deed of assignment of the unexpired lease of 10 years in favour of the Appellant registered as No. 36, page 36 in Volume 380 of the Lands, but stated that the same was without the prior consent of the Governor. In further answer, the 1st Respondent averred that by virtue of the provisions of the Abandoned Property (Custody and Management) Edict 1969), the property became abandoned property lawfully leased to the 2nd Respondent and the same registered as No. 99, page 99 in Volume 79 of the Lands Registry, Port Harcourt. Finally, the 1st Respondent averred that by virtue of the Public Officers Protection Law, and the Abandoned Properties Decree, No. 90 of 1979 Laws of the Federal Republic of Nigeria, the action is statute-barred, and the court has no jurisdiction to entertain the Suit.
The 2nd Respondent, a policeman, in his 19 paragraph Amended Statement of Defence, whilst admitting the property in dispute to be 61 Ikwerre Road, Port Harcourt, averred that the property was not assigned to him but leased to him by Rivers State Government under the State Land Law as per Deed of Building Lease dated 19th March, 1979 and registered as No. 99 at page 99 in Volume 79 of the Lands Registry, Port Harocurt further stated that the property being State land subject to State Land Law, on 18th July, 1979, the Abandoned Properties Implementation Committee (APIC for short) offered and he accepted, to buy the property in dispute by paying a purchase price of N6,800.00 after securing a loan of N61, 200.00 from the Federal Mortgage Bank for its development. He further stated that upon completion of the purchase, the Rivers State Government granted him a lease of the property per Deed of Building Lease dated 19th March, 1979 and registered as No. 99 at page 99 Volume 79 of the Lands Registry, Port Harcourt. Finally, he admitted that he told the tenants to attorn tenant to him and that he had been collecting rents from them. He relied on Section 1 (1) of the Abandoned Properties Decree (No. 90) of the 1979 by contending that any interest the Appellant has in the property is compensation as advertised in the Nigerian Tide Publication of Monday 15th July, 1985. Except where necessary, little will be said henceforth about the 1st Respondent in the rest of this judgment.
Be that as it may, first attempt was made by the 1st Respondent to abort, rather prematurely, the Appellant’s claim by the plea that the latter’s action commenced in 1983 was statute-barred since both Respondents are public officers having regard to the Public Officers Protection Law Cap. 106, Laws of Eastern Nigeria, applicable to Rivers State. After arguments were proferred before the trial Court (Coram D.G. Douglas, C.J.), that court ruled by dismissing the application.
The case then commenced with the evidence of the Appellant through whom Exhibit A (power of attorney) and the proceedings of the Magistrate Court in Suits PMC/62/80, PMC/63/80, and PMC/64/80 respectively vide Exhibit B, were tendered and received in evidence. Also tendered through the Appellant were the Deed of assignment between Ezeikpe & Bros and Obi Eze vide Exhibit D, tax receipt and assignment of lease etc. (Exhibit C) and the Valuation Report of the house (Exhibit E).
For the defence, the one and only witness called on 1st Respondent’s behalf was the Chief Lands Officer in the Ministry of Lands and Housing, Port Harcourt, namely DW. 1. Through this witness the lease granted to the 2nd Respondent was received as Exhibit F. Thereafter DW. 2, the Estate Surveyor of the 2nd Respondent, testified. He tendered Exhibit G., the Valuation Report. Next, he testified through his Attorney, a brother-in-law as DW.3. The latter tendered the power of attorney – Exhibit H, Followed by Exhibit J – the letter of offer from APIC, and Exhibit K – the receipt for the purchase price of the property paid for in 1983 for N61, 200.00 while DW. 4 was the Librarian attached to the Rivers State Newspaper Corporation who tendered the Nigerian Tide of 15/7/88 which was later received and marked as Exhibits M. and H. respectively before 2nd Respondent addressed the trial court.
In his judgment dated 7th October, 1988, the learned trial Chief Judge dismissed the claims in paragraph 13 (a) – (d) of the Amended Statement of Claim, holding that by virtue of Section 1 of the Abandoned Properties Decree 1979, the APIC has the right to sell every abandoned property and vest a good title in a purchaser. The learned trial Chief Judge however granted the alternative relief, to wit: N380,000.00 as market value of the property in dispute. Thus, while both the 1st and 2nd Respondents have appealed against the alternative relief, the appellant has cross-appealed against the order dismissing the reliefs claimed in paragraph 13 (a – d) of the Amended Statement of Claim.
Sequel to the foregoing, on 29th July, 1994 the Appellant brought an application before the Court below to argue fresh points of law not argued or canvassed in the trial court and to incorporate same in the Appellant’s Brief of Argument in the following terms:
“(i) To argue points of law not argued nor canvassed in the court below captioned as “Additional Grounds of Appeal” and marked as Exhibit A.
(ii) Incorporate Exhibit A in Appellant’s Brief of Argument exhibited as Exhibit B.
(iii) Deem Exhibit B filed in Court on 29/7/94 as duly filed upon payment of the prescribed fees.
In refusing the application, the court below (per Onalaja, J.C.A.) on 24th May, 1995, held inter alia as follows:
“The Respondents fought the case in the lower court on the case put up by the applicant who as Plaintiff sued the Respondents as Defendants. The present application is to change completely the case fought in the lower court, it is in the interest of justice not to allow a party especially a Plaintiff to change its case from court to court Exhibit F was not made an issue in the Court below to meet the new point of law. Respondents would have to lead evidence by production of other documents antecedent to Exhibit F. The Applicant was in error and it is misconceived that no further evidence would be led. He associated himself and relied on the authorities cited by the 1st Respondent that the application be dismissed. Finally, the application shall cause a delay of the hearing of this appeal, which had been ripe since 1989. So, for the above reasons court should dismiss this application……..”
Concluding, the learned Justice of Appeal whose opinion was concurred in by Edozie and Rowland, J.J.C.A., held:
“After a careful consideration of the application acting judicially and judiciously and all the circumstances of the case the application is refused.”
The Appellant being dissatisfied with the said Ruling and pursuant to the leave of Court he sought and was granted on 7/6/95, has appealed to this Court.
The four issues submitted at the Appellant’s instance for determination in this appeal are:
(i) Did the learned Justice of the Court of Appeal exercise their discretion judicially and judiciously when they refused to allow the Appellant to argue fresh points of law, even when it touched on jurisdiction or lack of it to entertain or not to entertain the claims in paragraph 13 (a) – (d) of the Appellant’s Amended Statement of Claim?
(ii) Did the learned Justices of the Court of Appeal critically examine the Exhibits tendered and accepted in the trial court and applied the principles of law enunciated in A.G. of Oyo State & Anor. v. Fairlakes Hotel Limited (1988) 12 S.C. (Pt. 1) 1 (1988) 5 NWLR (Part 92) 1?
(iii) Were the Justices of the Court of Appeal right to have held that arguing the two grounds of appeal could have been canvassed in the lower court, or that evidence would have been led whether APIC acted intra vires, the powers granted to it under Decree No. 90 of 1979?
(iv) Were the learned Justices of the Court of Appeal right to hold that in the grounds of appeal no issue of jurisdiction has been raised?
On behalf of the 2nd Respondent, the following two issues were submitted as arising for our determination, viz:
(i) Whether the learned Justices of the Court were right in holding that (further) evidence would be required for the determination of the new points of law sought to be raised by the Appellant.
(2) Whether or not the learned Justices of the Court of Appeal rightly exercised their discretion in refusing the Appellant’s application.
In my consideration of this appeal, I wish to adopt the Appellant’s four issues to wit, issues (ii) and (iv) and (i) and (iii) predicated on grounds 1 and 2 of the grounds of appeal and grounds 3 and 4 respectively to the effect that the gravaman of the Appellant’s claim in the trial court is that the sale of his property and premises, situate at No. 61 Owerri Road, now Ikwerre Road and registered as No. 36 at page 36 in Volume 380 of the Lands Registry Enugu, now Port Harcourt by the Rivers State Government to the 2nd Respondent, is unconstitutional, null and void.
TREATMENT OF ISSUES (II) AND (IV)
It appears to me clear that to prove the validity of his title the Appellant tendered Exhibit A,B,C and D. The 1st Respondent in order to prove that the lease to the 2nd Respondent is valid and lawfully issued to the latter, tendered Exhibit F and contended that by virtue of the provisions of the Abandoned Properties Decree No. 90 of 1979 Laws of the Federation, the Court has no jurisdiction to entertain the suit in as much as it affects the validity of the sale by APIC. The 2nd Respondent’s contention is to the effect that the property is State land, was bought by him (2nd Respondent) and the same denoted by Exhibit F. He also relied on the Abandoned Properties Decree No. 90 of 1979. The trial Court alluding to the said Decree held:
“Both Counsels (sic) for the defence are relying on Sections 3 (2) of the Abandoned Properties Decree No. 90 of 1979, which provides as follows:
………….. to any such question.”
and later down below held as follows:
“By Section 1 of the Abandoned Properties Decree 1979, the APIC has the right to sell abandoned property and vest a good title on a purchaser. I would hold therefore that the claim in paragraph 13 (a) – (d) of the Plaintiff’s statement of claim is untenable in law.”
The purport of the judgment is that by virtue of Section 1 of the Abandoned Properties Decree No. 90 of 1979, the court has no jurisdiction to entertain the reliefs in paragraph 13 (a) – (d) of the Amended Statement of Claim- reliefs which tried to invalidate the sale to the 2nd Respondent. The effective date of Decree No. 90 of 1979 is 28th September, 1979 while Exhibit F, the instrument of title of the 2nd Respondent is effective from 19/3/79. The point raised in the Appellant’s ground 1, in my view, is one of interpretation to show that the Abandoned Property Decree cannot have retrospective effect and that the transaction culminating in Exhibit F, is not affected by the Decree. In other words, that the trial court has jurisdiction to entertain claims/reliefs in paragraph 13 (a) – (d) of the Amended Statement of Claim.
It is settled law that:
(1) The Court of Appeal and the Supreme Court will not allow a party on appeal to raise a question not raised in the court of trial or grant leave to a party to argue new grounds not canvassed in the lower court except where the new grounds involve substantial points of law substantive or procedural which need to be allowed to prevent an obvious miscarriage of justice vide Salati v. Shehu (1986) 1 NWLR (Part 15) 198 at page 203; K. Akpene v. Barclays Bank of Nigeria Limited & Anor. (1977) 1 SC. 47. Debesi Djukpan v. Rhorhadjor Orovuyovbe & Anor. (1967) 1 All NLR 134; Re Cowburn Exparte Firth (1881 – 85) All E.R. 987, 1991; Agnes Deborah Ejiofodomo v. H.C. Okonkwo (1982) 11 SC. 97, 109; United Marketing Co. Ltd. v. Kura (1963) 1 WLR 523. This rule, it must be emphasised, is subject to the condition that:
(a) the Court has before it all the evidence which is needed to completely support the new contention. In the case of I.P.D. Abaye v. (1). Ikem Uche Ofili and
(2) Attorney – General of Rivers State (1986) 1 NWLR (Prt 15) 134, in which one of the issues that arose for the consideration of this court was the circumstances in which the appellant could raise a new issue in the Supreme Court. It was held by this Court inter alia that it is settled that the Supreme Court will allow a fresh point of law to be raised before it, even if such point was not taken in the Court below on the following conditions:
(i) There is before the Supreme Court all the evidence, which is needed to completely support the new contention.
(ii) The point of law if argued in the court below would have been decisive.
See also Sonekan v. Smith (1964) All NLR 168; Lawrence Oredoyin & Ors. v. Arowolo & Ors. (1989) 4 NWLR (Part 114) 172 at 190; A.G. of Oyo State v. Fairlakes Hotels Ltd. (1988) 12 S.C. (Pt. 1) 1; (1988) 5 NWLR (Part 92) at page 23, 48 – 49 per Karibi-Whyte, JSC.
“(b) Even where there is merely an omission to raise a legal proposition which can be supported by the facts as found by the Court of trial without the assistance of additional evidence, the Appellate Court will in the exercise of its discretion and in the interest of justice and finality, not ignore the argument to raise the point at that stage: See Oredoyin’s Case (supra) at page 205 per Karibi-Whyte, JSC and Adisa & Anor. v. Soleh Boneh Nigeria Ltd. (1975) NMLR 364.
(d) However, where the new points will give a totally different character to the case fought by the parties in the court below, or the new points cannot be resolved without the benefit of additional evidence, the court will refuse leave. So held this Court in Udza Uor & Ors. v. Paul Loko (1988) 2 NWLR (Part 77) 430, 438.
I agree with learned counsel for Appellant’s submission that in the instant case the new point raised in ground 1 of the additional grounds of appeal, is an issue of jurisdiction/competence or lack of it, to entertain reliefs in paragraphs 13 (a) – (d) of the Amended Statement of Claim hence, the application ought to be allowed
After all, jurisdiction or lack of it can be raised at any stage of the proceedings, even on appeal (See Oloriode & Ors. v. Oyebi & Ors. (1984) 5 SC. 1 at 33; Salati v. Shehu (supra) at page 205 and even on the point being raised suo motu by the court. See Oloba v. Akereja (1988) 7 S.C. (Pt. 1) 1(1988) 3 NWLR (Part 84) 508 at 519 and 520. In addition, this new issue being on a point of law involving the correct interpretation of law to be placed on Exhibit F. in relation to Section 1 of the Abandoned Property Decree No. 90 of 1979, deserves looking into. See Sonekan v. Smith (supra) and North Staffordshire Railway Co. v. Edge (supra). The purpose of this of course, is to further show the invalidity of the sale of the said property in dispute and argue that neither Decree No. 90 of 1979 nor any Edict enabled the Rivers State Government to deal with abandoned property by selling and transferring title to the 2nd Respondent. Thirdly, if a trial court has not examined an exhibit thoroughly, the Court of Appeal is entitled and is indeed enjoined to do so and make a finding on it vide Iwo Local Government v. Adigun (1992) 6 NWLR (Part 133) 494. What in effect the submission means, and with which I agree, is that no new evidence would have been led, and arguing the ground will not introduce a new line of defence, nor would have the character of the case being changed in any way. Besides, the point raised being a substantial one that needs no further evidence coupled with the fact that the Exhibits tendered in court are enough to canvass the new point of law, the Appellant’s application ought surely to have been acceeded to. This is the moreso, when it is remembered that it was the Respondents that first raised the issue of jurisdiction and competence of the Court. That being so, I entirely agree with the Appellant’s submission that whether the Rivers State Government represented by the 1st Respondent or the APIC on the Exhibits tendered particularly Exhibit F. acted intra vires or ultra vires, Decree 90 of 1979, is a question of jurisdiction, a new point raised which the court below in its discretion and in the interest of justice and finality of litigation, should have allowed. See Bockleman v. Nwaehi (1965) 1 All NLR 112 and Asiyanbi v. Adeniji (1967) 1 All NLR 82 and George Nwabia v. Adiri & Ors. (1958) 3 FSC 112.
Furthermore, it is my firm view that the court below ought to have allowed the Appellant to file and argue the two grounds which in essence are additional grounds, provided they are arguable grounds.
It is for the above that I do not share the lower court’s view that the grounds if allowed to be argued would change the original case the Appellant presented and that it would involve leadidng fresh evidence; nor do I accept as plausible reason for refusing the application in the circumstances that there would be delay in hearing the appeal if the application was granted. As its grant may and would inevitably turn out to be in the interest of justice, the court ought to accommodate such application subject to the award of costs. See Oyenuga & Ors. v. Provisional Council of the University of Ife (1965) NMLR 9 at page 12.
In the result, I will answer issues (ii) and (iv) in the negative.
TREATMENT OF ISSUES (I) AND (III)
In answering issue (i) and (iii) of the Appellant’s issues for determination which overlap his grounds 3, 4 and 5 of the grounds of appeal, as arguments for same are repeated herein. I most respectfully adopt answers rendered to them in their entirety. It is noteworthy, however, that this Court in its appellate jurisdiction will very rarely interfere with the exercise of its discretion by the lower court vide Bank of Baroda v. Mercantile Bank Limited (1987) 3 NWLR (Part 60) 233 except where such exercise is based on extraneous issues or where the exercise of such discretion is not bona fide. See Haruna v. Ladeinde (1987) 4 NWLR (Part 67) 941 at 943. Significantly, the grant of leave to argue points of law as denoted in the two additional grounds of appeal is discretionary, but as earlier point out, the discretion has to be exercised both judicially and judiciously and the Supreme Court will not interfere with such decision of a lower court unless the exercise of such discretion is “manifestly wrong arbitrary, reckless or injudicious.” See per Nnamani, JSC in University of Lagos v. Olaniyan (1985) 1 NWLR 156 at 163. See also In Re: Adewunmi & Ors. (1988) 3 NWLR (Part 83) 483; University of Lagos v. Aigoro (1985) 1 NWLR 143 at 148; Lauwers Import – Export v. Jozebson Industries Ltd. (1988) 3 NWLR (Part 83) 429.
Indeed, the points of law raised in the said grounds need not be canvassed in the lower Court, provided there is evidence on the Record to support the new point. This is the essence of all the cases from Sonekan v. Smith (supra) culminating in Atoyebi v. Governor of Oyo State (1994) 5 NWLR (Part 344) 290 at 305 C-F. It may be that it was not taken in the lower court owing to some inadvertence on the part of counsel. For, as Agbaje, JSC in the Fairlakes Hotel Ltd’s case (supra) at page 23 C – E, the rationale is always to prevent an obvious miscarriage of justice.
It is pertinent to stress in conclusion that if the learned Justices of the court below had examined Exhibits C, D, F, M, N, K and L earlier admitted in evidence and forming part of the record before them, they would have discovered that:
(i) the issue of jurisdiction, which was indeed part of the case, still formed part of it and that a wrong interpretation of Decree No. 90 of 1979 in relation to Exhibit F, would deprive the trial court jurisdiction, which it had.
(ii) that the 2nd Respondent having admitted that he paid the purchase price in December, 1983, Exhibit K, when the action was filed in March, 1983, this would raise the question of the validity or otherwise of the sale of the property to the 2nd Respondent.
(iii) that no new evidence would have been led in relation to the two grounds of appeal
(iv) that the parties were agreed that the land on which the property was erected is State land and that the invalidity of the sale of the property during the currency of the lease as denoted on Exhibits C and D would raise a serious question vis a vis the interpretation of Decree of 1990 in relation to Exhibit F.
(v) as I am in full agreement with the Appellant’s submission that on the Exhibits tendered in the trial court, no new evidence would indeed have been led in relation to the two additional grounds of appeal, and the grant of leave would not have changed the character of the case fought by the parties in the trial court, the court below would have, in view of the issue of jurisdiction and taking into consideration the said Exhibits tendered, granted the Appellant’s application.
It is for these reasons that I will also answer issues (i) and (iii) in the negative.
Accordingly, I allow this appeal, set aside the Ruling of the Court of Appeal (Port Harcourt Division) dated the 24th of May, 1995 and grant leave to the Appellant to file and argue in the said Court but of a panel differently constituted from that which gave the ruling appealed from for the two grounds of appeal to be heard expeditiously.
There shall be costs in favour of the Appellant in the sum of N10,000.00.