LEGALPEDIA ELECTRONIC CITATION: LER[2019]CA/L/578/2014

AREAS OF LAW:

Action, Appeal, Civil Litigation, Court, Interpretation Of Statute, Judgment And Order, Land Law, Practice And Procedure

SUMMARY OF FACT

The Plaintiffs/Respondent commenced an action at the High Court of Lagos, against the Defendants/Appellants claiming; a declaration that the Claimant is the owner and the person entitled to the possession of all that piece or parcel of land at Ogombo Village Eti Osa local Government Area of Lagos state shown on Plan No ASC/LA/146B/96 dated 9^th July, 1996 drawn by F. A Ogunbadejo attached to the Deed of Assignment registered as No. 43/43/2200 of the land Registry of Lagos, a declaration that the Ogudu chieftaincy family having assigned all that piece or parcel of land at Ogombo Village Eti -Osa Local Government Area of Lagos state shown on Plan No. ASC/LA/146B/96 dated 9^th July, 1996 drawn by F. A Ogunbadejo which said plan is attached to the Deed of Assignment registered as No. 43/43/2200 of the land Registry of Lagos, the Ogudu Chieftaincy family have no land or any property to assign or transfer to any person out of the land already assigned to the Claimant and any purported assignment to any person is null and void by virtue of the doctrine of NEMO DAT QUOD NON HABET amongst others. The trial court granted an interlocutory order for the maintenance of status quo on the disputed property pending the determination of the substantive suit and also for an order that parties should visit the landed property with a view to verify the alleged developments of the disputed property based on the strength of an oral application/observation of the Claimant/1^st Respondent. Dissatisfied with the ruling of the trial court, the Defendants/Appellants filed a notice of appeal to the Court of Appeal contending that the lower court was wrong to have directed a visit to the locus in quo during the case management conference stage. The 1^st and 2^nd Respondents file a notice to contend that the decision of the lower court be varied on grounds that the order of the lower court Appealed against by the Appellants was made on the application of the 1st and 2nd Respondents among others.

 

HELD

Appeal Allowed

ISSUES FOR DETERMINATION

• Whether the lower court was right to have directed a visit to the locus in quo during the case management conference stage of the suit before it. (Ground A)
• Whether the lower court was right to direct a visit to the locus in quo where there was no motion before it seeking that relief. (Ground B)
• Whether the Learned trial judge was right to have ordered that parties should maintain status quo in the circumstances of the case before it

 

RATIONES

VISIT TO THE LOCUS IN QUO – CIRCUMSTANCES WHERE THE COURT CAN DIRECT A VISIT TO THE LOCUS IN QUO

“On issue 1, conditions have been provided in Section 127 (1) of Evidence act Cap E8 LFN 2011 where that a judge can direct a visit to the locus in quo;

“1)   If oral evidence refers to the existence or condition of any material thing other than a document, the court may if it deems fit-

1. a) require the production of such material thing for its inspection, or
2. b) inspect any moveable or immovable property the inspection of which may be material to the proper determination of the question in dispute”

In understanding/interpreting the purpose and intent of the above provision of the law, the literal/ordinary meaning/interpretation would be adopted. Therefore, a visit to the locus in quo can only be directed during or after trial where evidence has been led and there is doubt in the evidence of parties”. PER A.O.OBASEKI-ADEJUMO, J.C.A

VISIT OF THE LOCUS IN QUO – PURPOSE OF A VISIT OF THE LOCUS IN QUO

“In the case of Alh. Shu’aibu Garba v Alh. Auwalu Muhammad & Ors (2015) LPELR – 40870 (CA), this honourable court held on the purpose of a visit or inspection of the locus in quo thus;

“On the trial court not visiting the locus in quo, it needs to be stated that the visit to locus is not an exercise to be embarked upon just as a mere fancy or sightseeing. The purpose of the visit to locus in quo is to clear any conflict or doubts that had not been properly resolved through the oral and documentary evidence adduced before the court. The visit may therefore be undertaken either on application by the parties or any of them or by the trial Judge suo motu where he finds it necessary to do so. See Anyanwu v. Mbara (1992) 6 SCNJ 90; Okpala v. Okoli (2011) I NWLR (Pt. 1229) 563; Olanade v. Sowemimo (2006) 2 NWLR (PT. 963) 30”per AKEJU, JCA (P. 19, PARAS. A – D)

See also Abdullahi & Ors v Adetutu (2012) LPELR – 7973 (CA); Aruwaju v Ashara (2014) LPELR – 22735 (CA); Anyanwu v Nwachukwu & Ors (2017) LPELR – 42849 (CA) and Azuokwu v Nwokanma & Ors (2005) LPELR – 690 (SC)” PER A.O.OBASEKI-ADEJUMO, J.C.A

VISIT TO THE LOCUS IN QUO – CONDITION FOR INVOKING SECTION 127 (1) OF THE EVIDENCE ACT

“It is therefore settled law that the provisions of Section 127 (1) of the Evidence Act Cap E8 LFN, 2011 is invoked when there is a need to clear the disparity in the evidence before the court. In this case as earlier stated, the matter was at the case- management level when, the order to visit the locus in quo was directed.” PER A.O.OBASEKI-ADEJUMO, J.C.A

VISIT TO THE LOCUS IN QUO –  IMPORT OF ORDER 25 RULE 2 OF THE HIGH COURT OF LAGOS STATE

“Order 25 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2012, provides the appropriate actions that a judge shall consider, this what was missing in the procedure adopted by the lower court when an order to visit the locus in quo was directed.” PER A.O.OBASEKI-ADEJUMO, J.C.A

“SHALL” – INTERPRETATION OF THE WORD ‘SHALL’ WHEN USED IN A STATUTE

“It is imperative to state that Order 39 Rules 1 (1) and (2) of the High Court of Lagos state (civil procedures) Rules, 2012 be examined. It is to the effect that any application to be made to the court should be made by way of a motion supported by a written address. The order is hereunder reproduced for clarity purposes;

1. Where by these rules any application is authorized to be made to a Judge, such application shall be made by motion which may be supported by affidavit and shall state under what rule of court or Law the application is brought. Every motion shall be served within five days of filing.
2. Every such application shall be accompanied by a written address in support of relief sought. (UNDERLINING MINE)

The use of “shall” in Order 39 Rules 1 (1) and (2) the High Court of Lagos state (civil procedures) Rules, 2012 by the draftsmen makes the provision mandatory. The Apex Court in General Muhammadu Buhari v Independent National Electoral Commission (2008) LPELR – 814 (SC), it was held thus;

“When the word “shall” is used in a statute it connotes the intendment of the legislator that what is contained therein must be done or complied with. It does not give room for manoeuvre of some sort, or evasiveness. Whatever the provision requires to be done must be done, and it is not at all negotiable…”

per MUKHTAR, JSC (PP. 276 – 277, PARAS. E –D)

It was further held by this honourable court in Mr. Udak Etim Okon v Mr Ekaette Udak Okon (2016) LPELR – 42056 (CA);

“As a general rule the use of the word “shall” connotes and conveys a mandatory message in a statute. See Melaye v Tajudeen (2012) 15 NWLR (Pt. 1323) 315. Fidelity Bank Plc v Monye (2012) 10 NWLR (Pt. 1307) 1, Adeosun v Governor Ekiti State (2012) 4 NWLR (Pt. 1291) 581, Dantata v Mohammed (2012) 8 NWLR (Pt. 1302) 366” per OWOADE, JCA (P. 9, PARAS D – F)

• PER A.O.OBASEKI-ADEJUMO, J.C.A

RULES OF COURT – ESSENCE OF RULES OF COURT

“The Rules of the court are provided to give guidance, avoidance of surprises and preservation of parties right to fair hearing and it’s not meant to be treated with levity or at the will and whims of any one.” PER A.O.OBASEKI-ADEJUMO, J.C.A

RULES OF COURT – RULES OF COURT MUST BE OBEYED

“The rules of the court must be obeyed, this has be over – emphasised in a plethora of cases, in the recent case of Adelani Adepegba & Ors v Dr. Innocent (2015) LPELR – 40706 (CA), it was held thus by this court;

“The law is now trite that rules of court are not mere rules. Indeed, they are to be reckoned with as subsidiary legislations which by virtue of Section 18 (1) of the Interpretation Act have the force of law. See Akanbi vs Alao (1989) 3 NWLR (Pt.108) 118. Hence, the dire need for compliance therewith. It is thus further settled, that when there brazen non- compliance with mandatory rules of Court, the Court should remain passive and toothless. It should bark and bite. Thus, there must be sanction, otherwise the purpose aimed at, when the rules were enacted will be defeated and there will be no certainty or predictability with regard to application of the law. Put differently, rules of court are not only meant to be obeyed, they are also binding on the parties. See Bango vs Chado (1993) 9 NWLR (Pt. 554) 139, The Hon. Justice Kalu –Anyah vs African Newspapers of Nigeria Ltd (1992) 6 NWLR 1 (Pt. 247) 319. PER OREDOLA, JCA (PP 13 – 14, PARAS C- A).”

• PER A.O.OBASEKI-ADEJUMO, J.C.A

ORDER TO MAINTAIN THE STATUS QUO – PURPOSE OF AN ORDER TO MAINTAIN THE STATUS QUO

“While it is trite law that the position or situation of the parties in a suit be maintained as of the time of filling so that the subject matter is not tampered with or alienated during the pendency of the suit. The Apex court in Opeyemi & Ors v Irewole Local Government., Ikire & Ors (1993) LPELR – 2881 (SC) stated thus on the purpose of an order to maintain the status quo;

“…Also it must be noted that the whole purpose of an order to maintain the status quo is to preserve the res, the subject matter of the litigation, from being wasted, damaged, or frittered away, with the result that if the appeal succeeds, the result would be nugatory in that the successful appellant could only reap an empty judgment. When as in this case, a court finds that completion of a step sought to be restrained will not render the appeal. If successful, nugatory, then there is absolutely no basis for making the order to maintain the status quo” PER NNAEMEKA – AGU, JSC (P. 20, PARAS. B – D)”    It is important that any status quo to be maintained must be known or determinable.

” PER A.O.OBASEKI-ADEJUMO, J.C.A

EVALUATION OF EVIDENCE – WHETHER A RE-STATEMENT OF EVIDENCE CONSTITUTE EVALUATION OF EVIDENCE

“For the position of parties in a suit to be ascertained, evidence as to their positions must be tendered.  The oral address of the counsel cannot take the place of evidence in a matter or evaluation of evidence, the Apex court in Mini Lodge Ltd v Ngei & Anor (2009) LPELR – 1877 (SC) per TABAI, JSC (P. 22, PARAS. C- D) held thus;

“…it is settled principle of law that the summary of the evidence led by the parties or re – statement of the evidence does not constitute evaluation. See Uwegba v. A.G. Bendel State (1986) 1 NWLR (Part 16) 303; Iman v. Okogbe (1993) 9 NWLR (Part 316) 159 at 177”   An order to maintain status in quo should not be given in vacuum without ascertaining their position.”

• PER A.O. OBASEKI-ADEJUMO, J.C.A

ORDER 9 RULE 1 OF THE COURT OF APPEAL RULES – IMPORT OF ORDER 9 RULE 1 OF THE COURT OF APPEAL RULES

“It is imperative to set out the provision of Order 9 Rule 1 of the Court of Appeal Rules, 2016, which provides as follows;

“A Respondent who not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or not to make in the event, as the case may be”

• PER A.O. OBASEKI-ADEJUMO, J.C.A

RESPONDENT’S NOTICE – ESSENCE OF A RESPONDENT’ S NOTICE

“The Apex Court had time to state the essence on respondents notice in Ogunleye V Adeleye (1992) LPER 2340 SC Essence of a respondents notice; when a respondent can file a cross-appeal;

“… a respondent’s notice is only available to vary and retain the judgment and not to reverse same, so that where a complete reversal of the decision of the lower court is sought by a respondent what he has to do is to file a cross-appeal instead of a respondent’s notice vide Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214 (217): Sunmonu v. Ashorota (1975) 1 NMLR 16.” per OMO, J.S.C (P. 17, PARAS. B-C)

The duty of a respondent is to defend the judgment, in this case the 1^st & 2^nd respondents have not criticized nor said that the judgment is wrong but by filing a respondents notice on the ground that the judgment be set aside they have more or less disowned the judgment, forgetting that it was their oral application that resulted in the order made by the lower court which is being challenged.

Such a notice in law cannot disown the entire judgment but can vary it in other areas, should a respondent not be happy with the orders in the judgment then he should file a cross appeal and if there are other reasons to have delivered the judgment in his favour then he will file a respondents notice stating exactly the reasons on which to affirm the judgment, based on the position of the law. I am of the firm opinion that the 1^st & 2^nd respondent are wrong in filing on this ground. The purpose/implication of this respondents notice to my mind is that the 1^st and 2^nd Respondents concedes to the appeal”. PER A.O. OBASEKI-ADEJUMO, J.C.A

RESPONDENT – TRADITIONAL ROLE OF A RESPONDENT

“The traditional role of a respondent was properly explained by this court in the case of Prince Rasak Yesufu Ogiefo v Hrh. Jafaru Isesele I & Ors (2014) LPELR – 22333(CA) thus;

“It is trite, that the primary duty of a respondent in an appeal is to support the Judgment or decision of the lower court (appealed against) which is in favour thereof. However, there may be a situation whereby a respondent desires to contend that the Judgment appealed against by the Appellant, and which is in his (respondent) favour, should be varied in any event, or be affirmed on some grounds other than those relied upon by the lower court. In such a situation, the respondent is required to file what is notoriously known as a ‘respondent’s notice of contention’. See Order 9 of the Court of Appeal rules 2011 to the effect…”

• PER A.O. OBASEKI-ADEJUMO, J.C.A

RESPONDENT’S NOTICE OF CONTENTION – WHEN IS A RESPONDENT’S NOTICE OF CONTENTION RESORTED TO?

“This court again put it clearly in Sorungbe & Ors v Lagos Sate Urban Renewal Board & Ors (2017) LPELR – 43378 (CA) thus:

“The Respondent’s Notice of Contention is resorted to where the position of the respondent is that the judgment is correct but that the judgment was based on wrong grounds or premise; and that there is enough evidence on record which can sustain the judgment on other grounds other than those relied upon by the trial Court. The Respondent’s Notice of Contention postulates the correctness of the judgment. See American Cyanamid Company vs. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (PT 171) 15 or (1991) LPELR (461) 1 at 23-24, Sumonu vs. Ashorota (1975) 1 NMLR 16 and Lagos City Council vs. Ajayi (1970) 1 ALL NLR 291. It goes without saying that a Respondent’s Notice that postulates the correctness of the judgment appealed against cannot complain about error in law in the judgment. Where a Respondent contends that the judgment was the product of an error in law, then it presupposes dissatisfaction with the judgment and the logically appropriate procedure will be to file a cross appeal to correct the error in law and not a Respondent’s Notice: African Continental Seaways Ltd vs. Nigerian Dredging Roads And General Works Ltd (1977) 5 SC 235, Eliochin Nig. Ltd vs. Mbadiwe (1986) 1 NWLR (PT 14) 47 and Oro vs. Falade (1995) 5 NWLR (PT 396) 385.”per OGAKWU, J.C.A (PP. 6-7, PARA. E)

• PER A.O. OBASEKI-ADEJUMO, J.C.A

STATUTES REFERRED TO:

Evidence Act

High Court of Lagos State (Civil Procedure) Rules, 2012