CORAM
SULEIMAN GALADIMA JUSTICE. SUPREME COURT
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE. SUPREME COURT
SULEIMAN GALADIMA JUSTICE. SUPREME COURT
ANDREWS OTUTU OBASEKI
SULEIMAN GALADIMA JUSTICE. SUPREME COURT
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE. SUPREME COURT
ANDREWS OTUTU OBASEKI
SULEIMAN GALADIMA JUSTICE. SUPREME COURT
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE. SUPREME COURT
ANDREWS OTUTU OBASEKI
PARTIES
EVELYN EHWRUDJE APPELLANTS
WARRI LOCAL GOVERNMENT & ANOR RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 2nd Respondent was a tenant of the 1st Respondent who was at all material times the owner of all the stalls at Igbudu Market, Warri. Sometime in 1987, the 2nd Respondent permitted the Appellant the use of her stall when she had to leave Warri, and on her return about a year later, she demanded for rent but same was refused by the Appellant who also claimed ownership of the stall. Consequently, the 2nd Respondent made a complaint to the 1st Respondent who invited both parties to resolve the issue of ownership. At the meeting, the 2nd Respondent had evidence to show possession but the Appellant was unable to proof same whereupon the 1st Respondent issued a quit notice to the Appellant to give up vacant possession. Upon the Appellant’s failure to give up vacant possession, the Respondents instituted an action at the Magistrate Court claiming perpetual injunction restraining the Defendant by herself/her servants/agents and/or privies from committing further acts of trespass with respect to the stall, an order for possession of the said stall and the sum of N2, 500 damages for trespass in favour of the 2nd Respondent. The Appellant contended that as a yearly tenant, the case of the Respondents would not be sustained as the required statutory notice was not given. The Magistrate court at the conclusion of trial made an order of non-suit on the grounds that the 1st Respondent had agreed to reallocate two new stalls to either party. The Respondents being dissatisfied appealed to High Court which found in favour of the 2nd Respondent and set aside the decision of the Chief Magistrate Court. Aggrieved by the decision of the High Court, the Appellant unsuccessfully appealed the Court of Appeal which affirmed the decision of the High Court, hence the instant appeal to this court at the instant of the Appellant
HELD
Appeal Dismissed
ISSUES
Whether the Court of Appeal was right in affirming the judgment of the High Court granting an order of possession and injunction in favour of the 2nd Respondent in respect of the property in dispute?
RATIONES DECIDENDI
CONCURRENT FINDINGS OF LOWER COURTS – INSTANCES WHERE CONCURRENT FINDINGS BY THE LOWER COURTS CAN BE DISTURBED
“Concurrent findings of the two lower courts will only be disturbed where the findings are found to be perverse, not based on the evidence on record or where a miscarriage of justice has occurred. See: Ogoala Vs The State (1991) 2 NWLR (pt.175) 509: Mainagge Vs Gwamma (2004) 14 NWLR (pt.893) 323; Tiza Vs Begha(2005)5 SC 1@17”. PER K.M.O. KEKERE-EKUN, J.S.C.
CONSTRUCTIVE POSSESSION – CREATION OF CONSTRUCTIVE POSSESSION
“The position is what the law has prescribed even though the 2nd Respondent was not in physical possession at the time of the institution of the suit as it is that challenge that has created her constructive possession which is due to the misconduct of the Appellant. See Ude v Chimbo (1998) 12 NWLR (Pt. 577) 169 at 190 – 194; Adeniyi v Ogunbiyi (1965) NMLR 395 at 397.”PER M. U. PETER-ODILI, J.S.C.
CLAIM FOR INJUNCTION AND POSSESSION – WHETHER A CLAIM FOR INJUNCTION AND POSSESSION IN ONE SUIT WOULD BE DEFEATED BECAUSE THE CLAIMS ARE LUMPED TOGETHER
“Though acknowledged that possession on the one hand and damages for trespass and injunction in one suit are mutually exclusive, a claim for injunction and possession in one suit would not be defeated because the claims are lumped together. See Rufai v Igbirra Native Authority (1957) NRNLR 178, Ibeziako v Nwagbogu (1972) 1 All NLR (Pt. 2) 200; Ezekwesili v Onwuagbu (1998) 2 NWLR (Pt. 541) 217 at 224.
The correct position on the issue of joinder whereby possession and trespass being found in the same suit no longer fatal is to underscore the superiority of substance above technicality in ensuring that justice is served and not crucified on the altar of formality. See Akano v Okunado (1978) 1 Law Report of Nigeria 130; Ezekwesili v Agbapuonwu (2003) FWLR (Pt. 162) 2016 at 2051.” PER M.U.PETER-ODILI, J.S.C.
CONCURRENT FINDINGS OF LOWER COURTS – ATTITUDE OF THE APPELLATE COURT TO CONCURRENT FINDINGS OF LOWER COURTS
“What this Court is called upon to do at this stage is to upturn the concurrent findings of the two Courts above the Chief Magistrate Court. What makes it an uphill task so to do is the fact that the findings of the High Court and Court of Appeal were made from great industry in the consideration of the evidence, oral and documentary and there was no miscarriage of justice or any violation of some principles of law substantive or procedural and so a disturbance of those findings would have no leg on which to perch. This is because interference in what had been done by Courts below are not done at a whim or to display a better mastery of the law to possibly massage a bloated ego. That is not what is called for and so when the concurrent findings have been so excellently made as in the instant then this Court has no option than to tag along. See Ezekwesili v Agbapuonwu (2003) FWLR (Pt. 162) 2016; Iwego v Ezengo (1992) 6 NWLR (Pt. 2490) 651.”PER M.U.PETER-ODILI, J.S.C.
PROOF – STANDARD OF PROOF IN CIVIL SUIT
“The standard of proof in civil cases is on the balance of probability”. PER K.M.O. KEKERE-EKUN, J.S.C.
COURT – DUTY OF COURT IN ADJUDICATION
“The duty of the court was to ascertain the real nature of the dispute between the parties through the evidence adduced.”PER K.M.O. KEKERE-EKUN, J.S.C.
COURT – DUTY OF COURT IN ADJUDICATION
“The duty of the court was to ascertain the real nature of the dispute between the parties through the evidence adduced.”PER K.M.O. KEKERE-EKUN, J.S.C.
CONCURRENT FINDINGS OF LOWER COURTS – INSTANCES WHERE CONCURRENT FINDINGS BY THE LOWER COURTS CAN BE DISTURBED
“Concurrent findings of the two lower courts will only be disturbed where the findings are found to be perverse, not based on the evidence on record or where a miscarriage of justice has occurred. See: Ogoala Vs The State (1991) 2 NWLR (pt.175) 509: Mainagge Vs Gwamma (2004) 14 NWLR (pt.893) 323; Tiza Vs Begha(2005)5 SC 1@17”. PER K.M.O. KEKERE-EKUN, J.S.C.
PROOF – STANDARD OF PROOF IN CIVIL SUIT
“The standard of proof in civil cases is on the balance of probability”. PER K.M.O. KEKERE-EKUN, J.S.C.
CONSTRUCTIVE POSSESSION – CREATION OF CONSTRUCTIVE POSSESSION
“The position is what the law has prescribed even though the 2nd Respondent was not in physical possession at the time of the institution of the suit as it is that challenge that has created her constructive possession which is due to the misconduct of the Appellant. See Ude v Chimbo (1998) 12 NWLR (Pt. 577) 169 at 190 – 194; Adeniyi v Ogunbiyi (1965) NMLR 395 at 397.”PER M. U. PETER-ODILI, J.S.C.
CLAIM FOR INJUNCTION AND POSSESSION – WHETHER A CLAIM FOR INJUNCTION AND POSSESSION IN ONE SUIT WOULD BE DEFEATED BECAUSE THE CLAIMS ARE LUMPED TOGETHER
“Though acknowledged that possession on the one hand and damages for trespass and injunction in one suit are mutually exclusive, a claim for injunction and possession in one suit would not be defeated because the claims are lumped together. See Rufai v Igbirra Native Authority (1957) NRNLR 178, Ibeziako v Nwagbogu (1972) 1 All NLR (Pt. 2) 200; Ezekwesili v Onwuagbu (1998) 2 NWLR (Pt. 541) 217 at 224.
The correct position on the issue of joinder whereby possession and trespass being found in the same suit no longer fatal is to underscore the superiority of substance above technicality in ensuring that justice is served and not crucified on the altar of formality. See Akano v Okunado (1978) 1 Law Report of Nigeria 130; Ezekwesili v Agbapuonwu (2003) FWLR (Pt. 162) 2016 at 2051.” PER M.U.PETER-ODILI, J.S.C.
CONSTRUCTIVE POSSESSION – CREATION OF CONSTRUCTIVE POSSESSION
“The position is what the law has prescribed even though the 2nd Respondent was not in physical possession at the time of the institution of the suit as it is that challenge that has created her constructive possession which is due to the misconduct of the Appellant. See Ude v Chimbo (1998) 12 NWLR (Pt. 577) 169 at 190 – 194; Adeniyi v Ogunbiyi (1965) NMLR 395 at 397.”PER M. U. PETER-ODILI, J.S.C. CLAIM FOR INJUNCTION AND POSSESSION – WHETHER A CLAIM FOR INJUNCTION AND POSSESSION IN ONE SUIT WOULD BE DEFEATED BECAUSE THE CLAIMS ARE LUMPED TOGETHER
“Though acknowledged that possession on the one hand and damages for trespass and injunction in one suit are mutually exclusive, a claim for injunction and possession in one suit would not be defeated because the claims are lumped together. See Rufai v Igbirra Native Authority (1957) NRNLR 178, Ibeziako v Nwagbogu (1972) 1 All NLR (Pt. 2) 200; Ezekwesili v Onwuagbu (1998) 2 NWLR (Pt. 541) 217 at 224. The correct position on the issue of joinder whereby possession and trespass being found in the same suit no longer fatal is to underscore the superiority of substance above technicality in ensuring that justice is served and not crucified on the altar of formality. See Akano v Okunado (1978) 1 Law Report of Nigeria 130; Ezekwesili v Agbapuonwu (2003) FWLR (Pt. 162) 2016 at 2051.” PER M.U.PETER-ODILI, J.S.C.CONCURRENT FINDINGS OF LOWER COURTS – ATTITUDE OF THE APPELLATE COURT TO CONCURRENT FINDINGS OF LOWER COURTS
“What this Court is called upon to do at this stage is to upturn the concurrent findings of the two Courts above the Chief Magistrate Court. What makes it an uphill task so to do is the fact that the findings of the High Court and Court of Appeal were made from great industry in the consideration of the evidence, oral and documentary and there was no miscarriage of justice or any violation of some principles of law substantive or procedural and so a disturbance of those findings would have no leg on which to perch. This is because interference in what had been done by Courts below are not done at a whim or to display a better mastery of the law to possibly massage a bloated ego. That is not what is called for and so when the concurrent findings have been so excellently made as in the instant then this Court has no option than to tag along. See Ezekwesili v Agbapuonwu (2003) FWLR (Pt. 162) 2016; Iwego v Ezengo (1992) 6 NWLR (Pt. 2490) 651.”PER M.U.PETER-ODILI, J.S.C. COURT – DUTY OF COURT IN ADJUDICATION
“The duty of the court was to ascertain the real nature of the dispute between the parties through the evidence adduced. “PER K.M.O. KEKERE-EKUN, J.S.C. PROOF – STANDARD OF PROOF IN CIVIL SUIT
“The standard of proof in civil cases is on the balance of probability”. PER K.M.O. KEKERE-EKUN, J.S.C. CONCURRENT FINDINGS OF LOWER COURTS – INSTANCES WHERE CONCURRENT FINDINGS BY THE LOWER COURTS CAN BE DISTURBED
“Concurrent findings of the two lower courts will only be disturbed where the findings are found to be perverse, not based on the evidence on record or where a miscarriage of justice has occurred. See: Ogoala Vs The State (1991) 2 NWLR (pt.175) 509: Mainagge Vs Gwamma (2004) 14 NWLR (pt.893) 323; Tiza Vs Begha(2005)5 SC 1@17”.
CASES CITED
STATUTES REFERRED TO
Recovery defunct of premises Law Cap 142, Laws of the defunct Bendel State (applicable to Delta State)