CORAM

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AMINA AUDI WAMBAI JUSTICE, COURT OF APPEAL MUSLIM SULE HASSAN JUSTICE, COURT OF APPEAL

MOHAMMED BABA IDRIS JUSTICE, COURT OF APPEAL

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PARTIES

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INCORPORATED TRUSTEES OF ZAKI CLUB — APPELLANT

APPELLANTS 

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1. NEW NIGERIA DEVELOPMENT CO LTD

2. ALHAJI AMBASSADOR HASSAN TUKUR RESPONDENTS

 

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONTRACT, LAND, PRACTICE AND PROCEDURE, PROPERTY

 

 

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SUMMARY OF FACTS

The Appellant’s claimed that it had been a tenant of the 1st Respondent for about 40 years for the use of the premises as a membership club and has had a cordial relationship with them and a mutual understanding to effect repairs and erect structures on the property. It was averred that at the time of taking possession of the property rented to the Appellant, the only structure on the land was a three bedroom bungalow. It was further averred that the Appellant constructed an extension to the three bedroom bungalow building rented which is now known as the Zaki Club House and carried out some renovation works which cost #48,700,305.00 (Forty Eight Million Seven Hundred Thousand, Three Hundred and Five Naira.)

It was further claimed that the 1st Respondent through its agent served a letter dated 14th July, 2014 (Exhibit A2) informing the Appellant that the rent has been reviewed from an annual rent of #900,000 to #2,500,000 per annum but the rent was re-negotiated to the sum of #1,600,000 vide 1st Respondent’s agent letter of 19th August, 2014 and the Appellant paid.

The Appellant also stated that a month after paying the rent, the 1st Respondent’s agent served on the Appellant a letter dated the 19th day of September, 2014 (Exhibit A6) informing the Appellant of the sale of the property and the Appellant was served with a 6 (six) month notice to quit.

The Appellant was very unpleased with the 1st Respondent’s act of selling property without giving consideration to the massive investments and improvements made by the Appellant on the property before the sale, the sale was eventually effected without giving right of first refusal to the Appellant in view of the time and money spent on the property over the years.

The Appellant initiated the suit at the trial court and called two witnesses in proof of same. The Respondents filed their defence but abandoned same during the trial and did not file their final written address.

While delivering judgment, the learned trial judge held that there is no contract to improve the leased premises. The case was dismissed and there was no order as to cost. Aggrieved by the decision the Appellant filed the instant appeal.

 

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether the learned trial judge was right to hold that he could not find previous written consent of the 1st Respondent that authorized the Appellant to execute and carry out the improvements on property No. 3 Isa Kaita Road Kaduna when in reality there were oral, physical and documentary evidence to suggest that consent was obtained?

Whether the learned trial judge was right to refuse to grant the reliefs sought by the Appellant after finding merit in the Appellant’s claims and affirming that the 1st Respondent acted in bad faith by selling property No. 3 Isa Kaita Road, Kaduna without considering the considering the constructions and improvements made by the Appellant?

 

 

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RATIONES DECIDENDI

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TEACHNICALITIES – CONDUCT OF COURTS ON TECHNICALITIES – MEANING OF JUSTICE

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Gone are the days when courts turn a blind eye to substantive justice for the sake of technicalities. A court should be a place where the common man can have the assurance that justice will be served in accordance with the law. In the Supreme Court case of OKPE V. FAN MILK PLC & ANOR (2016) LPELR – 42562 (SC) (PP. 31 PARAS. A), it was held per Muhammed, JSC thus:

“Interest of justice connotes such interests, aspirations and or attempts to achieve justice in a given case or situation. The whole goal is the achievement of justice. Justice is fair and proper administration of laws whereas anything done in the interest of justice is done in pursuance of fairness to all the parties in a case without compromising the principles of the law and evidence under consideration which as of right, entitle the successful party to judgment. That perhaps, is why they now say that justice is a three-way traffic. Justice to the plaintiff/appellant. Justice to the defendant/respondent and justice to the Court itself. The last one of course requires that parties to a legal tussle or their representatives should always come to Court with open mind sincerely of purpose diligent and coherent with unwavering confidence that the Court will at the end, deliver justice according to law.”

In the case of IDI VS. ASAPH (2022) LPELR – 57188 (CA) (PP. 9 – 11 PARAS. A – A), it was held per Tobi, JCA that:

“The main focus of every court while deciding cases before it is to do justice and in doing so will ensure justice is done according to law and not sentiment which by extension involve doing substantial justice and not technical justice. See Nzekwe vs Anaekwenegbu (2019) 8 NWLR (Pt 1674) 235; Ak Peugeot Automobile Nigeria (PEUGEOT AUTOMOBILE NIGERIA (PAN) vs Bob (2010) 17 NWLR (Pt 1223) 421; Access Bank Plc vs Onwuliri (2021) 6 NWLR (Pt 1773) 391. I cannot resist the temptation to quote from the decision of the Apex Court in Comrade Alioke vs Dr Victor Oye (2018) LPELR – 45153 (SC) where the Court held:

“Our duty as an Apex Court is to do substantial, justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context. We are not judicial technicians in the workshop of technical justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities. See the case of OYEYEMI & ORS VS OWOEYE & ANOR (SUPREME COURT SUIT NO. SC.102/2013). See also MAKERI SMELTING CO. LTD VS ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt. 766) 411 at 476 – 417. The need to do substantial justice and avoid delving into the error of technicalities is well settled. Even in cases where errors of omission or commission called blunders have been made, it is unjust to hold that because blunders have been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. See also AJAKAIYE VS IDEHIA (1994) 8 NWLR (Pt. 364) 504, ARTRA IND. LTD VS NBC (1997) 1 NWLR (Pt. 483) 574, DAKAT VS DASHE (1997) 12 NWLR (Pt. 531) 46, BENSON VS NIGERIA AGIP CO. LTD (1982) 5 S.C. 1.”

In doing justice, a court should ensure that it is not parochial in looking at justice from the perspective of one of the parties alone, even from the perspective of the parties but also from the wider perspective of the court and the society. Justice as a concept is therefore, wider than just between the parties as the parties live in a society and so a court needs to consider how the decision of justice will affect the wider society. See BAKARI VS THE STATE (2021) LPELR – 55420 (CA); AFRO ARAB INVESTMENT LTD VS AMCON (2018) LPELR – 50194 (CA).”

When it comes to the issue of law and justice, one has to thread carefully.– Per M. B. Idris, JCA

 

 

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NECESSARY PARTY – MEANING OF NECESSARY PARTY

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In the case of JEGEDE & ANOR VS. INEC & ORS (2021) LPELR – 55481 (SC) (PP. 62 – 63 PARAS. C), it was held per Okoro, JSC thus:

“It is trite that a necessary party to a proceeding is a party whose presence is essential for the court. It is the party in the absence of whom the claim cannot be CA/K/121/2019 Page 23 effectually and completely determined. See Ige & Ors vs. Farinde & Ors (1994) 7 NWLR (Pt. 354) 42; Azubuike v PDP & Ors (2014) LPELR – 22258 (SC); In Green v. Green (2001) FWLR (Pt. 76) 795 at 814, this Court held that a necessary party is one who is not only interested in the subject matter of the proceedings but whom in his absence the proceedings cannot be fairly and judiciously decided. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless the necessary party to the particular claim is joined in the action.”

In the Supreme Court case of BUHARI & ANOR VS. YUSUF & ANOR (2003) LPELR – 812 (SC) (PP. 52 – 53 PARAS. C), it was held per Ayoola, JSC thus:

“A necessary party is one whose participation in the proceedings is indispensable. I refer to the meaning of “necessary parties” and “indispensable parties” in Black’s Law Dictionary as follows: “Necessary Parties. In pleading and practice, those persons who must be joined in an action because, inter alia, complete relief cannot be given to those already parties without their joinder. Fed R. Civil P. 19(a). Necessary parties are those who must be included in action either as plaintiffs or defendants, unless there is a valid excuse for their non-joinder. City of Hutchinson for Human Relation Commission of Hutchinson v. Hutchinson, Kansas Officer of Kansas, State Employment Service, 213 Kan. 399, 517 P. 2d 117,122. Those persons who have such an interest in controversy that a final judgment or decree cannot be made without either affecting their interests or having the controversy in such a condition that its final adjudication may be wholly inconsistent with equity and good conscience. Royal Petroleum Corp. v. Dennis 160 Tex 392 , 332 S.W. 2d 313, 314. A “necessary party” is one whose joinder is required in order to afford the plaintiff the complete relief to which he is entitled against the defendant who is properly suable in that county. – Per M. B. Idris, JCA

 

 

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BURDEN OF PROOF – DUTY OF APPELLANT TO PROVE HIS CLAIM

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If the Appellant had sufficiently proved that they paid for the improvements made on the land, this Court will not close its eyes to justice and focus on technicalities but as it is, my hands are tied. Yes, we know that improvements have been made on the land, however, the question that has remained unanswered is: who made and paid for the improvements? Until this question is adequately answered by the Appellant, this Court cannot grant any relief sought for even though the property has been improved. There is no basis for the grant of the reliefs. In the famous case of MACFOY VS. UAC (1961) ALL ER 1169, it was held by Lord Denning that: “You cannot place something on nothing and expect it to stay there. It will collapse.” – Per M. B. Idris, JCA

 

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CASES CITED

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NIL

 

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STATUTES REFERRED TO

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Recovery of Premises Law of Kaduna State Cap 128

 

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