Effect of Lumping Arguments on Competent and Incompetent Issues Together

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 7th day of June, 2024

Before Their Lordships

Uwani Musa Abba Aji

Chidiebere Nwaoma Uwa

Stephen Jonah Adah

Abubakar Sadiq Umar

Mohammed Baba Idris

Justices, Supreme Court

 SC. 1097/2019

Between

COUNCIL OF LEGAL EDUCATION      APPELLANT

And

1. HAJIA BASIRAT MOJISOLA DANGE

2. MR OLUYINKA ABAYOMI 

    OLALEKAN AWOLARU

    (for themselves and on behalf of the family RESPONDENTS

    of Madam Oyinkan Moyeni

3. MR BASIL CHRISTOS ENONOMIDES

4. MR ELIAS BADIH KHALIFE

5. ATTORNEY-GENERAL OF FEDERATION

(Lead Judgement delivered by Honourable Mohammed Baba Idris, JSC)

Facts

By an Originating Summons dated and filed on 4th February, 2011, the 1st and 2nd Respondent filed an action at the High Court of Lagos State against the 3rd, 4th and 5th Respondent. They sought a declaration that the 3rd and 4th Respondent are in breach of the covenants of the Lease Agreement, particularly the covenant to pay rent, in the Lease Agreement executed between one late Madam Oyinkan Moyeni and the 3rd and 4th Respondent, in respect of a property known as 213A Igbosere Road, Lagos. They also sought a declaration that they are entitled to re-enter the said property, and an order directing the 3rd and 4th Respondent to deliver up possession of the property to them. 

It was the case of the 1st and 2nd Respondent that the said Madam Oyinkan Moyeni who was the 1st Respondent’s grandmother and the 2nd Respondent’s great grandmother granted a lease of 75 years certain to the 3rd and 4th Respondent, and after the 3rd and 4th Respondent paid rent for the first five years from 1st April 1957 to 31st March 1962, they refused to pay any further rent on the property. It was also their case that the 3rd and 4th Respondent assigned the lease to the Federal Government of Nigeria without the consent of the said Madam Oyinkan Moyeni, in breach of the covenant not to sublet without her consent in writing, as prescribed in the Deed of Lease. 

The 3rd, 4th and 5th Respondent did not oppose the Originating Summons, and after hearing the same unopposed, the trial court adjourned the case to 20th September, 2011 for judgement. However, by September 20th, 2011 when the matter came up for judgement, the Appellant had filed an application seeking to join the suit as a party, being the occupant of the property. The trial court however, dismissed the application on the ground that the Counsel who appeared for the 5th Respondent also represented the interest of the Appellant as an agency of the Federal Government. 

The trial court, per Honourable Justice Femi Adeniyi, proceeded to deliver its judgement in which it granted all the claims sought by the 1st and 2nd Respondent. The 3rd, 4th and 5th Respondent did not appeal the judgement. On the other hand, the Appellant, without seeking leave, filed an appeal against the ruling refusing its application for joinder and the judgement in the substantive suit. Thereafter, having detected that the Notice of Appeal was defective, the Appellant filed an application before the trial court praying for an order of joinder, stay of execution and an order setting aside the ruling and judgement delivered on 20th September, 2011. The 1st and 2nd Respondent opposed the application on the grounds that it was an abuse of court process, because of the Notice of Appeal earlier filed by the Appellant against the judgement. The trial court upheld the objection, and dismissed the Appellant’s application.

Aggrieved, the Appellant appealed to the Court of Appeal which allowed the appeal, and ordered that the Appellant’s application be assigned to another Judge of the High Court of Lagos State for hearing. The application was reassigned to Honourable Justice Candide-Johnson, who heard the application and dismissed it in its entirety in a ruling delivered on 17th April, 2015. Dissatisfied, the Appellant filed Appeal No. CA/L/600/15 without seeking leave. The Appellant also filed Appeal No. CA/L/863/17 against the judgement and ruling delivered by Honourable Justice Femi Adeniyi, on 20th September, 2011, as a person having interest in the matter, after seeking and obtaining leave to appeal.

The 1st and 2nd Respondent challenged the competence of Appeal No. CA/L/600/15 on the ground that the Appellant filed the same without the obtaining leave, as it was never a party in the suit before the trial court. They also challenged the competence of Appeal No. CA/L/863/17, on the ground that it was seeking the same relief as Appeal No. CA/L/600/15.

Subsequently, the Court of Appeal granted an application made by the Appellant for the two appeals to be heard together on the same record. When both appeals came up, Appeal No. CA/L/600/15 was called first. Counsel for the Appellant conceded to the 1st and 2nd Respondent’s objection that the appeal was incurably defective, and withdrew the appeal. Consequently, it was struck out. Thereafter, the Court of Appeal took arguments in Appeal No. CA/L/863/17. In its judgement, the Court of Appeal upheld the objection raised by the 1st and 2nd Respondent, and struck out the appeal for lacking in merit and for constituting an abuse of court process.

Aggrieved, the Appellant appealed to the Supreme Court.

Issues for Determination

The Apex Court adopted the following issues formulated by the Appellants:

1. Whether the Court of Appeal did not deny the Appellant fair hearing when it upheld the 1st and 2nd Respondent’s preliminary objection that Appeal No. CA/L/863/2017 was an abuse of court process because the Appellant asked for the same relief in Appeal No. CA/L/600/15, despite the fact that Appeal No. CA/L/600/15 had earlier been struck out by the same Court. 

2. Whether the Court of Appeal was right not to have considered the effect of non-service of the notice of breach of covenant to pay rent on the 5th Respondent and the Appellant.

3. Whether the Court of Appeal was right not to have set aside the ruling of the High Court granting orders for repossession and re-entry in favour of the 1st and 2nd Respondent.

4. Whether the Court of Appeal was right when they held that the 1st and 2nd Respondent have sufficient interest in the matter. 

Arguments

On the 1st issue, Counsel for the Appellant submitted that the lower court having deleted Appeal No. CA/L/600/15 from its record before Appeal No. CA/L/863/17 was heard, there could never have been a situation of multiplicity of actions bordering on the same reliefs and same parties.

In response, Counsel for the 1st and 2nd Respondent argued that the Appellant had agreed that by the two appeals, the Appellant sought the same reliefs.

Arguing the 2nd and 3rd issues together, Counsel for the Appellant submitted that the Court of Appeal only resolved issue 1 in relation to the service of statutory notices,. but never resolved issue 2 relating to service of demand for rent and notice to remedy the breach of covenants on the Appellant or on the 5th Respondent. 

Responding, Counsel for the Appellant argued that Grounds 3 and 5 from which issues 2 and 3 issues were distilled did not arise from the ratio decidendi of the judgement of the lower court, and were thus, incompetent. He argued further that there is no appeal against the finding of fact that the Appellant claimed to be an owner in possession and was therefore, not entitled to statutory notices of any type. 

On the 4th issue, Counsel for the Appellant submitted that the 1st and 2nd Respondent did not state any fact in the affidavit in support of their Originating Summons, to show that late Madam Oyinkan Moyeni devolved the property on them, hence, the action as constituted at their instance was incompetent.

In response, Counsel for the 1st and 2nd Respondent argued that the 1st and 2nd Respondent filed the case in a representative capacity for themselves and on behalf of the family of Madam Oyinkan Moyeni and thus, disclosed their locus standi to bring the action.

Court’s Judgement and Rationale

On the 1st issue, the Apex Court held that before a court dismisses or strikes out a process on the ground that it is an abuse of the judicial process, it is fundamentally bound to take all precaution in examining the totality of the process and a court is not expected to take pockets of the process in isolation.

The Court held that assuming that Appeal No. CA/L/863/17 constitutes an abuse of the process of Appeal No/L/600/15, striking out the same for being incompetent for failure of the Appellant to seek leave does not stop the Appellant from presenting its appeal after doing the right thing. The Court further held that the striking out of Appeal No. CA/L/600/15 from the list simply means that the appeal ceases to exist and the Appellant is free to do the right thing; thus, the Appellant’s filing of Appeal No. CA/863/17 does not amount to an abuse of court process. The Court held that the Court of Appeal was thus, wrong, to have upheld the 1st and 2nd Respondent’s preliminary objection that Appeal No. CA/L/863/17 constitutes an abuse of court process.

Deciding the 2nd and 3rd issues together as the said issues were argued together in the parties’ respective briefs of argument, the Court held that what determines the relationship between the issue for determination and the ground of appeal, is the subject-matter of the complaint in the ground of appeal. The Court held that where the subject-matter in an issue for determination is different from the subject-matter in the ground of appeal, then the issue for determination will be incompetent; also, as any ground of appeal that does not translate into an issue is deemed abandoned and liable to be struck out. The Court held that the 2nd issue raised as issue D in the Appellant’s brief of argument and purportedly distilled from Ground 5 of the Notice of Appeal, has no relationship with the complaints in the said Ground 5. The Court thus, struck out Ground 5 on the ground that it is deemed abandoned in the absence of any issue derived therefrom, and the 2nd issue for being unrelated with the subject-matter in Ground 5.

Considering the 3rd issue raised as issue B in the Appellant’s brief, the Apex Court held that arguments or submissions on incompetent issues for determination cannot be lumped together with those on competent issues, and where such is done, the competent issue is infected with the virus of incompetence. This is because an attempt to sieve the arguments will drag the court into the arena of dispute, which often beclouds the judgement of the Court. The Court referred to BARBUS ABD CO v OKAFOR-UDEJI (2018) 11 NWLR (PT. 1630) 298.

The Court held that insofar as the 3rd issue was argued together with the abandoned issue D in the Appellants’ and 1st and 2nd Respondent’s Briefs of Argument, all the arguments made thereon are incompetent.

Determining the 4th issue, the Court held that once a Plaintiff perceives that he has a right or vested interest to enforce legally, and is able to articulate his claim in his statement of claim or affidavit filed with the originating process, such a Plaintiff would be adjudged to have shown sufficient interest entitling him to sue on the subject- matter. 

The Apex Court held that the 1st and 2nd Respondent did show in the affidavit in support of their Originating Summons, their locus standi to institute the action as the granddaughter and great grandson of the late Madam Oyinkan Moyeni, suing as the accredited representatives and on behalf of the members of the family of the deceased who died intestate. 

 Appeal Dismissed.

Representation 

Tolulope Taiwo Esq. for the Appellant.

O. S. Sowemimo, SAN with others for the 1st and 2nd Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)