Wemabod Estates Ltd. V. Joyland Ltd (2001)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This appeal is against the ruling of Rhodes-Vivour J. of the Lagos State High Court delivered on 14/2/97 No. CA/2/97 quashing the judgment of Senior Magistrate Grade 1 delivered on 24/10/96 in Suit No. MCA/1654/96 together with warrant of possession dated 6/11/96.

The appellant, as plaintiff in the Magistrates’ Court claimed for possession, arrears of rent and mesne profit in respect of the premises known as NO.12 – 14 Ashanti Street Apapa, Lagos State. The case was undefended and judgment was given in favour of the plaintiff and execution of warrant of possession was carried out.

The respondent thereafter brought an application in the High Court for order of certiorari to quash the judgment of the Senior Magistrate Grade 1, including the warrant of possession on the ground that the court exceeded its civil monetary jurisdiction of N15,000 in respect of annual rental value of the said premises.

The High Court granted the order of certiorari and quashed the judgment of the Magistrate Court.

The appellant was dissatisfied with the ruling and gave notice of appeal filing originally three grounds of appeal, ground two of which was later abandoned. The appellant gave notice to discontinue the notice of appeal dated 30/4/97 pages 75 – 78 and 21/11/97 (page 90- 92) of the records. This appeal shall therefore be argued only on the notice of appeal dated 14/2/97. Grounds 1 and 3 of the notice of appeal read as follows:

“GROUND 1”

Error of Law:

The learned trial Judge erred in law when he evaluated the affidavit evidence improperly or wrongly and concluded that the allegation of fraud was not particularised and proved.

Particulars:

1. In paragraph 5 of the affidavit in Support of the motion to set aside the ruling dated 14th February, 1997 it was pleaded that the contents of the affidavit in support of the motion Exparte and motion on notice were not the same and that the contents are different and meant to deceive and mislead the court and actually deceived and misled the court”.
2. In paragraph 7 of the respondent motion for certiorari and paragraph 7 of the motion Exparte the facts stated therein are the same except for the exhibits that were surreptiously substituted.
3. In paragraph 7, it was pleaded that the exhibits A1 and A2 utilised on the motion exparte were in cheque and a covering letter.
4. In paragraph 9 of the affidavit it was stated that the exhibits A and A2 utilised on notice had been changed to copies of the summons for possession as against the cheque and covering letter utilised on the Exparte.

In paragraph 14, it was stated “that though the cheque was made payable to the 1st respondent/appellant, it was drawn by one Dr. M.A. Okunyade, executive chairman, M. A. Okunyade and Sons limited and not Joyland Limited, the applicant/respondent.

1. In paragraph 15 and 16 it was stated that the cheque stated above was fabricated and that it was not shown by the applicant/respondent that it was cashed by or received by the applicant/respondent.
2. That the applicant/respondent did not file a counter affidavit to the material allegation of fraud and concealment of material facts as demonstrated above.

GROUND 3:

Error of Law:

The learned trial Judge erred in law in refusing to set aside his ruling dated 14th February, 1997 despite the litany of superior authorities cited for his consideration in that in an application for certiorari, an applicant is under a compulsion to use the same set of affidavit and exhibits both in motion exparte and in motion on notice.

Particulars:

1. All authorities cited to the Honourable court were not considered to see if relevant or otherwise.
2. bi) Oduwole Famakinwa (1990) 4 NWLR (Pt. 143) at 239 of 248 paragraph F-G.
3. ii) Order 43 rules 4 & 6 High Court of Lagos State rules 1994.

iii) Civil procedure in Nigeria by Fidelis Nwadialo at page 834 paragraph e-c.”

The parties filed their respective briefs in accordance with the rules of this court. From grounds 1 and 3 of the notice of appeal, appellant raised two issues for determination as follows:

“I. Whether in determining the civil jurisdictional limit of a Magistrate in an action for recovery of possession under recovery of residential premises, laws of Lagos State, Edict No.9 of 1976, the High Court is right to rely on Form G which is the summons for possession tenements issued suo motu by the Magistrate’s Court Registry instead of Form F, which is the plaint or writ against a tenant refusing to deliver up possession filed by the plaintiff in the Magistrate Court.

2. Whether in the consideration of a motion on notice a Judge can place reliance on documents exhibited to the motion exparte but omitted and not pleaded same in a subsequent motion on notice to arrive at a decision.”

The respondent rejects these two issues formulated by the appellant on the ground that they do not represent real issues arising from the two grounds of appeal filed. The respondent rather relies on the following two issues as those arising from the grounds of appeal and which are germane to the determination of the appeal: These issues are:

“1. Having regards to sections 17, sub-section 17 (1A) (4B), 53 subsection 1 of Magistrates Courts Laws Cap. 127 Laws of Lagos State 1994, summon for possession, warrant for possession at pages 26, 34 of the records respectively, judgment of the Magistrate Court. Was the court below right in quashing the judgment of A.O. Isaac Senior Magistrate Grade 1, in excess of jurisdiction?

2. Having regards to the mandatory provision of Section 318 subsection 1 of 1999 constitution, can the appellant formulate an issue in respect of a ground of appeal that does not attack the decision or ratio decidendi, of the ruling of the court below?

Before considering this appeal, I must first of all consider the preliminary point raised on the respondent’s second issue. It was contended by the respondent that the appellant’s ground 3 of the notice of appeal filed on 14/2/97 is incompetent and that this court lacks jurisdiction to consider the issue for determination distilled from the said ground.

It is trite that an issue formulated from an incompetent ground of appeal is also incompetent. It is submitted that the court below did not rely on a cheque of N20,000 in arriving at the decision that the annual rental value of the premises is N20,000. That in effect means that the Court below did not use the cheque to settle the issue at stake either in favour of the appellant or the extract from the ruling of the lower court. This is just the first sentence. The full content of the last paragraph of p.55 of the record is better reproduced: It reads thus:

“Exhibit A1 is a cheque for N20,000 drawn on the applicant and payable to the respondent. It is dated 1/9/92. On the other hand, the respondent has supported the facts deposed to in paragraph 4 of his counter affidavit with a certified true copy of a document referred to as Exhibit AO1. Now, the initiating process in suit No. MCA/1654.96 being a claim for possession etc. is a summons for possession. Exhibit Al is thus, an affirmative evidence of the annual rental value on the said premises.”

I do not agree with the submission of the learned counsel for the respondent that this extract quoted above from the ruling of the lower court is only merely an observation and does not amount to a decision which is appealable. I hold this view because of reliance placed on Exhibit Al by the learned trial judge in arriving at the conclusion in his ruling. He continued at P. 56 as follows:

“I say this because Exhibit A1 is issued out of the registry of the Magistrate Court, as opposed to Exhibit AO1 that was filed by the plaintiff/respondent. Exhibit A1 is thus more authentic than Exhibit AO1 in resolving the issue of the annual rental value of the property. Where conflicts in affidavit evidence can be resolved by examining documentary evidence, the need to call oral evidence would be unnecessary if documentary evidence available could resolve the conflict. In the circumstances, Exhibit A1 easily resolve the issue of the annual value of the property”.

The cheque for N20,000 was considered by the learned trial Judge. It is this appellant has contended in its brief that it is an extraneous document. Besides that, it was annexed to the motion on notice argued by the parties.

It is in view of this that I hold that the 3rd ground of the appellant, the second issue for determination distilled therefrom are not incompetent and cannot be dismissed.

It is in view of the foregoing that I would prefer to consider the two issues raised by the appellant in its brief of argument as set out above. The two issues will be appropriately taken together.

It is very clear to me that the appellant would like the ruling of the learned trial Judge set aside on four main grounds, set out in their brief of argument as follows:

“1. The originating initiating process in this suit is dated 16/8/96 and not the document dated 22/8/96 issued from the registry which is a hearing notice which the learned trial Judge solely relied upon.

2. From the plaint/writ dated 16/8/96 and the evidence before the court the annual rent value of the premises is N15,000 which is within the jurisdiction of the learned Senior Magistrate grade 1.
3. The cheque for N20,000.00 considered by the learned Judge is an extraneous document which was not annexed to the motion on notice urged by the parties.
4. Annual rental value arrears by rents and mesne profit are under different head of jurisdiction and are independent and severable from one another.”

I will now consider the pith of arguments in their brief. At page 55-56 of the record to which my attention has been drawn by the appellant, the learned trial Judge relied on Exhibit A1 at page 20 of the record annexed to the respondent application as being the originating process in the Magistrates’ Court Registry to the effect that the annual rental value of the premises was N20,000 as against N15,000 as also shown in pages 40 to 42 which was the originating Court process filed by the appellant at the Magistrates Court. It appears clearly also as the document on page 40 of the records dated 16/8/96 and initiated at the Magistrates’ Court Registry on the same day when the filing fees of N310 was assessed and paid as endorsed in its face.

Moreover, it is not noted that Exhibit A1 relied upon by the learned Judge was issued by the Registry of the Magistrate Court on 22/8/98. It is contended by the appellant that Exhibit A1 did not emanate from the appellant and was not considered by the learned Magistrate. It would that appear Exhibit 1 initialed and no filing fees was paid and no copy was served on the appellant. Exhibit A1 in Form G in the schedule to Rent Control and Recovery of Residential Premises Lagos State Edict No 9 of 1976. It is notice to the Respondent indicating that a suit is pending and the court in which is listed and the appellant originating processes were attached as particulars. Exhibit AO1 is Form F issued pursuant to section 18(1) of the Edict No.9 of 1976 Laws of Lagos State. It provides thus:

“Upon the expiration of the time stated in any such notice of the landlord’s intention to recover possession if such tenant or any person holding or claiming by or through or under him neglects or refuses to quit and deliver up possession accordingly, the landlord, may apply to the tribunal for the issue of a writ or enter a plaint as in Form F, at his option against such tenant or against such person at the district in which the premises are situate for the recovery of the same and there upon a summons as in Form G shall issue to such tenant or person so neglecting.” (Italics for emphasis).

It is clear and obvious from the above section that the first document which comes into force is Form F. This is a plaint entered by the landlord as the plaintiff. Form G. is issued from the Registry only to “the tenant or person so neglecting”.

It would appear to me that in his ruling, the learned trial Judge restricted himself to the originating process alone. He did not consider the judgment of the Senior Magistrate 1 to see whether he exceeded his jurisdiction or acted in want of jurisdiction. See extract of the judgment of the learned trial Judge earlier reproduced above from pages 55- 56 of the record.

In Manasseh Ugoh vs Benue State Local Govt Commission (1995) 3 NWLR (Pt. 383) 288 at 316: this Court held thus:

“The court of King’s bench always required document or information which initiated the proceedings (so as to know the actual charge or complaint concerned); (See Exhibit 6) and the adjudication of the inferior tribunal or statutory body so as to know the nature of the wrong doing or deficiency (See Exhibit 4A).”

In the case in hand, the record of proceedings in the Magistrate Court is on pages 8 – 9 and the Magistrate’s Court judgment is on pages 10- 11 of the records for the motion Exparte and repeated in pages 28 – 31 for the motion on notice. Exhibit B was attached to the respondent application for certiorari. The respondent failed to attach the originating process in the Magistrate Court but pleaded and attached Form G titled “Summons for possession” on page 26 of the records and it attached the originating processes in a similar suit between the parties in suit No MCA/1262/94 which was discontinued before the institution of the case in issue.

However, the appellant filed a counter affidavit on p. 38 and annexed certified true copy of the initiating/originating process in the Magistrate Court on page 40 of the records with the annexed statutory notices on pages 40 and 41.

On page 40, 4th paragraph, the appellant claims possession and N15,000 as the annual rental value. In paragraphs 3:7, 3:8, 3:9, 3:10, 11 and 12 of the respondent’s brief of argument, the respondent repeatedly asserted that the annual rental value was N16,250: and not N15,000 because the judgment of the learned Magistrate was for 13 months, that is, March 1993 to March 1994.

If the tenancy runs from 14th March yearly and terminates on 13th March the succeeding year, then the judgment is for 12 months and not 13 months arrears. Reference, ought to be had to plaint/writ of possession on page 40 of the record and the 6 months notice to quit at pages 41- 42 of the records. At page 30 of the records the judgment of the Magistrate Court dated 24/10/96 the arrears of rent was given as N15,000.00 the breakdown is N1,250.00 per month. This shows clearly that the cumulative calculation is N15,000 per annum and not N16,250 as represented in the respondent’s brief.

I agree with the learned counsel for the appellant that to be able to sustain the contrary assertion, the respondent ought to have filed a respondent notice of intention to contend that a judgment should be affirmed on grounds other than those relied upon by the Judge of the trial court as provided by Order 3 rule 14 of the Court of Appeal Rules 1984, as amended See Ayinla v. Adigun (1986) 3 NWLR (Pt. 30) at 511 at 516, Wanka v. UBN LTD (1991) 9 NWLR (Pt.213) 112.

I must observe that in reaching a decision that the learned Magistrate exceeded his monetary jurisdiction of N15,000 as prescribed by section 17 (4) (a) of the Magistrate Court Laws cap. 127 laws of Lagos State 1994.

With respect, the learned Judge failed to consider the judgment of the Magistrate on pages 30-31, if he had he would have refused the respondent’s application because the claim is clearly restated in the judgment of the Magistrate thus:

“The plaintiff claim from the defendant possession of one story building with boys quarters of N15,000 being arrears of rent from March 1993 to March 1994 and mesne profit thereafter at the rate of N1,250 per month from 1st April, 1994.”

The test for the commencement of an action is succinctly put in Alawode v. Semoh (1959) SCNLR 91, 14 F SC 27 thus:

“The test for the commencement of an action appears to be this; has the plaintiff done all that is required of him by law to commence his action? If he has whatever is left to be done is a domestic affair of the Court and its staff.”

If the sum of N20,000 was mentioned in the Exhibit A1 it is the “domestic affair of the Court”. It is at best a joinder of the arrears of rents and/or mesne profit with the annual rental value. Each is a different and severable and distinct head of jurisdiction. See Oku v. Awanah (1961) 1 All NLR (pt.1) P.107 at 109.

Mesne profit is calculated on monthly basis when it is a monthly tenancy and yearly for yearly tenancy. It would amount to misconception of law to propose that where the cumulative mesne profit is over the monetary jurisdiction of the court the plaintiff has to abandon the excess. The difference between mesne profit and rent is that a claim for rent is liquidated whilst a claim for mesne profit is unliquidated. See Marine and General Assurance v. Rossek (1986) 2 NWLR (Pt. 25) 750. To succumb to the view of the respondent that would mean that if a case is pending before a court and after many years, judgment was delivered, then the court is divested of its jurisdiction due to annual accrual of mesne profit.

As for proper guideline as to what the originating process is in a recovery of possession matter, See Oku v. Awanah (supra).

Annual rental value, arrears of rents, and mesne profit are under different head of jurisdiction and independent and severable from one another. No where in Form G was N20,000 categorically referred to as annual rental value of rents. Form G was issued in the registry and not the Originating process filed by the appellant in the Magistrate Court. Whatever error therein cannot be attributable to the appellant. Ogbuaninka v. Okudo (No.2) (1990) 4 NWLR (Pt.146) 551.

The learned trial Judge held that the annual rental value of the premises is N20,000 as against N15,000 limit of civil monetary jurisdiction of the Senior Magistrate Grade 1. He made a finding of fact at p .55 of the records in reaching this decision when he stated thus:

“This is clearly the line of approach for the Court to adopt in the absence of documentary evidence but in this application the applicant has Exhibit A1. It is a certified true copy of the summons for possession in respect of the suit complained of. It is dated 22/8/96. The annual rental value is stated therein as N20,000.00 Exhibit A is a cheque for N20,000 drawn on the applicant and payable to the respondent. It is dated 1/9/92. On the other hand, the respondent has supported the facts deposed to in paragraph 4 of his counter affidavit with certified true copy of a document referred to as Exhibit AO1.

It would appear that although the cheque of N20,000 was not exhibited to the motion on notice but exhibited on motion Exparte as Exhibit A, yet the learned Judge relied on evaluated and analysed it. Learned counsel had submitted that the Court did not rely on the cheque of N20,000 in arriving at the decision that the annual rental value of the premises is N20,000. As I have observed earlier, and still reiterate now, the lower court did use the cheque to settle the issue at stake in favour of the respondent. The learned trial Judge did observe that the cheque for N20,000 was drawn on the applicant and made payable to the respondent. I am of the opinion that evaluation and analysis was not properly made. The aforesaid cheque was drawn on one Dr. M.A. Okunyade, Executive Chairman of M.A.A. Okunyade and sons Ltd. It appears the appellant never had the opportunity to address the Court on its authenticity and reliability. Beside, it is procedurally wrong for the respondent not to have used the same affidavit and exhibits for both motion exparte and motion on notice. It is trite that an applicant for leave to issue an order of certiorari must show Uberrimae fide”, that is utmost good faith. Wherever leave is obtained on false statement or suppression of some material facts in the affidavit the Court may refuse an order of certiorari on this ground: See Oduwole v. Famakinwa. (1990) 4 NWLR (Pt 143) 239 at 248: R. v. Keasington Commissioners Exparte. POLIGNAC (1917) 1 KB 486.

Also in Fawehinmi v. Akilu (1987) 4 NWLR (Pt 67) 797 at pg.834. OBASEKI JSC in his lead judgment held thus:

“The second state of the application comes when leave is granted. It is then that the substantive application is heard. When leave to apply for the order of mandamus has been granted, the applicant must serve an originating motion on all persons directly affected. A copy of the statement must be served with the notice of motion. An affidavit of service must be sworn. The respondent may file an affidavit…

In short, documents used in the first stage are also used in the second stage.” (Italics for emphasis).

Akilu’s case was in respect of an application for mandamus. However, by virtue of Order 43 rules 6 (1) (2) (3) of the High Court of Lagos State Civil Procedure Rule, 1994, the application for certiorari being one for judicial review the same procedure is applicable. See P. 844 of Fidelis Nwadialo on “Civil Procedure in Nigeria.”

In an application for order of certiorari, the Court is guided by the following principles (even though not exhaustive):

(a) whether or not the order will issue does not only depend on whether the error complained of are errors of law or fact. The error must disclose excess of jurisdiction and the error in law must be one on the face of the record;

(b) the superior Court is to bear in mind that it is not acting in appellate capacity but in a supervisory capacity:

(c) the superior Court is to ensure not only that inferior tribunals keep within jurisdiction but that they observe the law:

(d) the superior court must not substitute its own views for those of the tribunal as a Court of Appeal would do:

(e) a person applying for an order of certiorari must show that the body concerned has in one way or the other failed to act judiciously where it should:

(f) where all the errors complained of are neither errors going to the jurisdiction of the inferior tribunal nor were they errors in law simpliciter, the application for an order of certiorari must fail.

See Ugoh v. Benue State Local Govt Service Commission (supra).

I must say with due respect to the learned trial Judge, that these guidelines were not strictly followed.

In the final analysis, I conclude that all the points raised and argued by the appellant in this appeal succeed. Accordingly, the ruling of the learned trial Judge Rhodes- Vivour J. is hereby set aside. In its stead, the judgment of the Senior Magistrate Grade 1 is therefore affirmed with N5,000 as costs to the appellant.

Other Citations: (2001)LCN/0995(CA)