S. A. I. Ossai V. Issac Wakwah & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The plaintiff who is now the appellant in this court by an originating summons dated 14/5/1992, instituted an action at the High Court of Justice, Rivers State Port Harcourt, against the defendants who are now the respondents. The originating summons reads – “To

1. 1st – 4th, 6th -10th defendants of No. 61 Ikwere Road, Mile 1, Diobu, Port Harcourt.
2. 5th defendant of Elelenwo Road, Elelenwo or c/o 5th Defendant, No. 17 Ndashi Street, D/Line, Port Harcourt.

Let the defendants whose addresses are stated above in the Port Harcourt Judicial Division within eight days of the service of this originating summons on them, inclusive of the day of such service, cause an appearance to entered for them to this summons which is issued upon the application of S.A.I. Ossai of No. 61 Ikwerre Road, Mile 1, Diobu, Port Harcourt who claims to be entitled to an Order of this Honorable Court directing the defendants to pay all arrears of rents and mesne profits for their use and occupation of No. 61 Ikwerre Road, Mile 1, Diobu, Port Harcourt into the High Court Registry forthwith pending the determination of an appeal pending in the Court of Appeal as suit No. CA/ PHI 134/89 or in default to deliver up vacant possession of the premises and appurtenances thereof, and for the determination of the following questions:-

(a) Whether or not the defendants should pay rents and or mesne profits for their use and occupation of No. 61 Ikwerre Road, Mile 1, Diobu, Port Harcourt.

(b) If the answer to “A” above is the affirmative, can the defendants be allowed to avoid payment of rents by refusing to acknowledge the plaintiff as their landlord on the ground that the plaintiff has filed an appeal against part of the decision in PHCI/39/83: Obi Eze v. Attorney-General of Rivers State and S.A.I. assai wherein Obi Eze claimed title to No. 61 Ikwerre Road, Port Harcourt and in the alternative damages for compulsory acquisition of No. 61 Ikwere Road, Port Harcourt by the Rivers State Government.

(c) Whether it would not serve the interest of justice more to order the defendants who are tenants of No. 61 Ikwerre Road, Port Harcourt to pay their arrears of rents and mesne profits into the High Court Registry pending the determination of the aforesaid appeal.

And take further notice that upon the determination of the above questions the plaintiff shall seek the following reliefs:-

1. An order of this Honourable Court directing all the defendants to pay their arrears of rents and mesne profits into the High Court Registry, Port Harcourt forthwith pending the determination of appeal No. CA/PHI 134/89; Attorney-General of Rivers State & Anor. v. Obi Eze, and in default of such payment to deliver up vacant possession of the premises forthwith.

Dated this 14 day of May, 1992.”

The originating summons supported by an affidavit was duly served on the defendants, who through their learned counsel entered conditional appearance on 21/6/1992. Meanwhile, learned counsel to the plaintiff had already started moving the trial court in the hearing of the matter since 1/6/1992, a date fixed for the hearing. In the course of the hearing, learned counsel to the defendants took steps to defend the action by filing counter-affidavits and a motion to dismiss the action for being an abuse of the process of the court. The trial court however decided to ignore the counter-affidavits and the motion of the defendants and directed the defendants’ learned counsel to respond to the claims in the originating summons on grounds of law in the course of the hearing. At the conclusion of the hearing, the learned trial Judge relying on the affidavit in support of the originating summons, which he said was not challenged by the defendants and a document found in the court’s file which he admitted in the course of the judgment as exhibit A. found in favour of the plaintiff granting all his claims including the alternative claim of delivery up of possession of the rented premises in dispute between the parties.

The defendants who were not happy with the judgment of the trial High Court delivered on 3/2/1994, appealed against it to the Port Harcourt Division of the Court of Appeal. Upon the hearing of the appeal on the respective briefs of argument filed and served between the parties and the court, the Court of Appeal in a unanimous judgment delivered on 26/3/2001, allowed the defendants’ appeal, set aside the judgment of the trial High Court in favour of the plaintiff and ordered fresh hearing of the action on pleadings before another Judge of the High Court of Justice, Rivers State in Port Harcourt. This judgment was not acceptable to the plaintiff who lost at the Court of Appeal and therefore decided to appeal to this court. The dispute between the plaintiff who is now the appellant in this court and the defendants who are now the respondents, centered over various claims on the landed property known as No.61 Ikwerre Road, Mile 1, Diobu, Port Harcourt. This property is also a subject of claim in appeal No. CA/134/89 between the Attorney-General of Rivers State & Anor. v. Obi Eze now pending at the Court of Appeal, Port Harcourt Division. The property in question is an abandoned property which the appellant claimed to have acquired through the River’s State Government’s Abandoned Property Commission. It was during the tendency of the matter in the Court of Appeal that the appellant decided to commence an action by means of an originating summons against the respondents for the payment of arrears of rents and the recovery of possession of the premises. The appellant who succeeded at the trial High Court and lost at the Court of Appeal, is now in this court on appeal. Three issues were identified in the appellant’s brief of argument. They are:-

1. Whether or not the Court of Appeal was right in setting aside the decision of the High Court of Rivers State on ground that the originating summons was inappropriate for the commencement of the suit and that exhibit ‘A’ was not before the trial court.
2. Whether or not the decision of the Court or Appeal in striking out the appellants Preliminary objection, was correct.
3. Whether or not the judgment of the Court of Appeal was not null and void ab initio, having been given after the appeal had been restored upon contentious motion and in breach of the appellant’s right of fair hearing.”

These issues were virtually adopted in the respondent’s brief of argument except for the respondents’ version of the issue No. (iii) The first part of which does not appear to have arisen from the grounds of appeal filed by the appellant. This particular issue in the respondents’ brief reads:-

“Whether the Court of Appeal exercised its discretion judiciously and judicially when it restored the appeal erroneously dismissed in consequence of a notice of discontinuance filed in relation to two different notices of appeal and whether the court acted in breach of the appellant’s right of fair hearing.”

On scrutinizing the original grounds of appeal and the additional grounds of appeal filed by the appellant, particularly the appellant’s additional grounds four and five from which the appellant’s issue No. (iii) was derived, there is no ground of appeal in which the appellant complained of the failure of the court below to exercise its discretion judiciously and judicially in restoring the appeal erroneously dismissed. That is to say, the wrongful exercise of discretion on the part of the lower court, is not a subject of complaint by the appellant in any of the grounds of appeal filed by him to challenge the decision of the lower court in this court. It is trite that an issue for determination ought not to be formulated as abstract legal issue without concrete reference to the facts of the particular case. Also, it is for an appellant to put forward the foundation of the issues for determination in an appeal in his grounds of appeal. Therefore it is not open to the respondent to depart from those grounds, or ignore some of them, or add his own. A respondent can only, without departing from the grounds, formulate his own issues with a slant favourable to his own case. In other words, in the formulation of issues. a respondent can only add to grounds of complaint in the appeal if he has also filed a cross-appeal or a respondent’s notice. See Okoye v. N.C. & F. Company Ltd. (1991) 6 NWLR (pt.199) 501; Momodu v. Momoh (1991) 1 NWLR (Pt.169) 608 at 621. If a respondent ignores some of the grounds of appeal filed by the appellant in formulating of issues, he may be deemed to have conceded them. See Agbai v. Okogbue (1991) 7 NWLR (Pt.204) 391 at 421-422. Hence, it is obvious in the case at hand that the first part of the respondents issue No. (iii) Complaining of wrongful exercise of discretion by the lower court, does not arise from the appellant’s grounds of appeal. On the principles I have stated above, I shall stick to the issues as identified in the appellant’s brief of argument for resolution in this appeal.

On the first issue in the appellant’s brief of argument which I have earlier quoted in this judgment, the learned counsel to the appellant referred to the provisions of Order 1 rule 2(2) of the Rivers State High Court (Civil Procedure) Rules, 1987 and explained that the originating summons filed by the appellant which merely sought for the legal interpretation of some questions contained at pages 2-3 of the record of this appeal, was quite in order. According to the learned counsel, in the absence of a counter-affidavit to oppose the facts deposed in the affidavit in support of the originating summons, the facts remained unchallenged and therefore not disputed by the respondents within the requirements of Order 1 rule 2(2) of the Rivers State High Court (Civil Procedure) Rules, 1987. The case of Soy Agencies and Industrial Services Ltd. v. Metalum Ltd. & Ors. (1991) 3 NWLR (Pt.177) 35 at 43-44 was cited to support the appellant’s argument that the appellant’s action was correctly commenced by way of originating summons, particularly taking into consideration of the provisions of Order 2 rule 1(1) of the High Court (Civil Procedure) Rules, 1987 which protected the judgment of the trial court. As for the use of exhibit ‘A’ by the learned trial Judge in his judgment, the learned counsel to the appellant argued that since the document was signed by the parties and filed in the court in the course of the proceedings in the case, it had become part of the record of the court, which as a public document, the learned trial Judge was entitled to take judicial notice of its contents without even the document being admitted in evidence. The case of Abraham & Anor. v. Olorunfunmi & Ors. (1991) 1 NWLR (Pt.165) 53 at 77-78 was relied upon by learned counsel in support of this contention. With this last submission, learned counsel urged this court to allow the appeal.