CORAM

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Ita George Mbaba JCA

Uchechukwu Onyemenam JCA

Usman Alhaji Musale JCA

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PARTIES

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MR. CHARLES UBABUKO

APPELLANTS 

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1. ABDULSSALSM MUSA ALASAN

2. MUSA ABDULLSSALAN IBRAHIM

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE, PROPERTY

 

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SUMMARY OF FACTS

The Plaintiff (1st Respondent) was a tenant at the shop, No. C-187, Muhammadu Abubakar Rimi/Sabon Gari Market, Kano, and had sub-let the shop to the Defendant (2nd Respondent) for 9 years, with documented agreement, for that purpose. But at the expiration of the 9 years, the Defendant stayed on and refused to surrender possession to the Plaintiff. The Defendant admitted the claims of the Plaintiff and of overstaying in the property and accepted to vacate.

The Plaintiff had simply asked for an Order to force the defendant to hand over the shop to him(Plaintiff), which the defendant accepted to do. The trial Court entered judgment in favour of the 1 st Respondent. That is the judgment that the Appellant appealed against, as an interested party Appellant, being owner in possession of shop No. C-187 Abubakar Rimi Market Kano.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether the Appellant is a necessary party and ought to be joined in Suit No. K/167/2010 for the just determination of the case?

Whether the failure by the trial High Court Judge to order joinder of the Appellant as a party in Suit No. K/167/2010 constitute an infringement on the Appellant’s right to fair hearing, when she knew, from the pleadings of Defendant in the matter, particularly paragraphs 4 and 6, that the interest of the Appellant will be affected by judgment of Court?

Whether it was right and proper for the trial High Court Judge to grant declaratory reliefs in favour of the Plaintiff in Suit No. K/167/2010, without first calling on the Plaintiff to lead evidence in proof of his case?

 

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RATIONES DECIDENDI

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REPLY BRIEF – THE PURPOSE OF A REPLY BRIEF

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A Reply Brief, as often said, is not meant to reargue the case of the Appellant or to fill in lapses, or improve upon it; neither is a Reply Brief meant to pass judgment on the Respondent’s brief, whether or not properly argued. A Reply Brief is for the purpose of contesting any fresh/new legal issue(s) raised in the Respondents’ brief, which were not addressed in the Appellant’s brief, and which require explanation or correction, to avoid leading (or misleading) the Court into error. See the case of Iheka Vs Njoku (2017) LPELR – 42002 (CA), in which we held: ‘Appellant’s Reply brief appears to be a re-argument of his case, which is not the purpose of filing a Reply brief. See Akayepe & Anor. Vs Akayepe (2009) LPELR – 326 SC: ‘A Reply brief is filed when an issue of law or argument raised in the Respondents brief of argument call for a reply… a reply brief is not a forum for introducing fresh argument or repetition of argument already advance in the Appellant’s brief’. A Reply brief is not meant to improve or correct the argument of Appellant in the main brief. See NNPC Vs Aminu (2013) LPELR – 21396 (CA); Nigeria Yeat and Alcohol Manufacturing Co. Plc Vs All Motors Nig. Plc (2011) ALL FWLR (pt.600) 1226.” See also Suleiman Vs State (2022) LPELR – 57577 (SC): & The purpose of a Reply brief is to address any new issues raised in the appellant’s brief. See: Abdullahi Vs The Military Administrator, Kaduna State & Ors. (2009) 15 NWLR (Pt. 1165) 417; Gwede Vs Delta State House of Assembly & Anor (2019) LPELR-47441 (SC) @ 17 A-B; Titilayo Plastic Ind. Ltd. & Ors vs Fagbola (2019) LPELR-47606 (SC) @ 74 A-D.& ‘Per KEKERE-EKUN, JSC (Pp. 13-14, paras. E-A) – Per I. G. Mbaba, JCA

 

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GROUNDS OF APPEAL – DUTY OF AN APPELLATE TO TIE ISSUES FOR DETERMINATION TO GROUNDS OF APPEAL

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Appellant should be properly advised, that failure to formally relate his Issues for determination of appeal to the Grounds of Appeal can be fatal, where the Court is not prepared/or able to undertake that extra burden of reading through the briefs, Notice of Appeal, and the Records of Appeal, to do the work of Counsel, to match the grounds of Appeal with the Issues. See the case of Harris Travel Agency Ltd & Ors Vs Leadway Assurance Co. Ltd (2023) LPELR – 60050 (CA), where we said: ‘It is correct to say that Appellants’ Counsel did not tie any of the 3 issues to any of the 3 Grounds of the Appeal. That was a grave error, as Appellant is required to formally relate its issue for determination of appeal to the grounds of appeal, formally. But that failure or error does not, automatically, spell doom for the appeal, as it were, as the Appellate Court is expected to do extra work and read through the briefs, the grounds of appeal and records, to identify whether the issue(s) in fact, derive from the ground(s) of the appeal, and the same are founded on the judgment appealed against. See the case of Ukwuoma Vs Okafor (2016) LPELR – 41505 (CA): ‘Of course, where Appellant’s Counsel fails to relate the issue(s) for the determination of the appeal to the ground(s) of appeal, he simply places more burden on the appellate Court, to read through the whole gamut of his Notice of Appeal, the grounds of appeal and the brief of arguments, particularly the issues distilled, to see which issue derived from which ground of appeal, thus, doing the work of marrying the issue(s) to the ground(s) for the Appellant's Counsel. It would take a lot of patience and sacrifice to do that, and that is, where the interest of justice so demands, to avoid visiting the misfeasance of Counsel on his client. In the case of Agodi vs. Anyanwu (Supra), this Court opted to look at the grounds of appeal, identify which one gave birth to or properly related to the issue which the Appellant had donated for the determination of the appeal, in the interest of justice’. See also Ibechukwu Vs FBN (Merchant Bank) Ltd (2021) LPELR – 56228 CA: ‘Counsel have always been admonished to marry the issues raised for determination to the ground or grounds of appeal. See Akpan v. FRN (2011) LPELR-3956(CA), Yussuf v. Ilori (2007) LPELR-5137(CA), Ukwuoma v. Okafor (2016) LPELR-41505(CA), Daisi v IGP (2019) LPELR-47897(CA).” – Per I. G. Mbaba, JCA

 

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APPEAL – WHERE A PARTY DOES NOT APPEAL THE DECISION OF A COURT

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The law is trite, that a finding or ruling of a Court, not appealed against, remains binding and conclusive. See the case of Nze Vs Aribe (2016) LPELR – 40617 (CA), where it was held:

‘The law is that Appellant remains bound by the decision and findings of the Court on which he raised no Grounds of Appeal, as such findings remain conclusive and binding. Alaribe vs. Okwuonu (2016) 1 NWLR (pt. 1492) 41 at 66; Gwantu vs. Yaki (2013) LPELR 21416; Shukka vs. Abubakar (2012) 4 NWLR (pt. 1291) 497; Nwadi vs. NECC (2014) LPELR 22910′. DABUP Vs KOLO (1993) LPELR – 905 (SC):

“Where a party has not appealed against a finding of the trial Court or the Court of Appeal, he cannot be heard to question that finding on appeal.Ijale v. Leventis & Co. Ltd. (1959) SCNLR 255, (1959) 4 F.S.C. 108’. Per OLATAWURA, JSC (P. 14, para A) See also Barnes & Tubbles Ltd & Anor Vs Kaliya Global Invst. & Ors (2022) LPELR – 57837 (CA); Jegede Vs INEC & Ors (2021) LPELR – 55481 (SC); PDP Vs INEC & Ors (2023) LPELR – 60457 (SC). – Per I. G. Mbaba, JCA

 

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PRIVY – MEANING OF AND TYPES OF PRIVIES

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…even if he was the person the shop was further sublet to by the Defendant (2nd Respondent), he would be deemed, by law, as “assign or privy” of the Defendant, and so bound by the decision passed on the Defendant, from whom he held interest in the property. See the case of Caraway Ventures Integrated Nig. Ltd Vs Jakana & Ors (2022) LPELR – 58219 (CA) on the meaning of ‘privy’:

“The word privy refers to a person having a legal interest of privity with another in any matter, or property. Black’s Law Dictionary (9th Edition) at page 1320 explains that – "A person having a legal interest of privity in any action, matter or property; a person who is in privity with another. Traditionally, there were six types of privies: (1) Privies in blood such as an heir and an ancestor; (2) Privies in representation, such as an executor and a testator or an administrator and an intestate person; (3) Privies in estate, such as grantor and grantee or lessor or lessee; (4) Privies in respect to control the parties to a contract; (5) Privies in respect of estate and contract, such as a lessor and lessee where the lessee assigns an interest, but the contract between the lessor and lessee continues because the lessee does not accept the assignee; (6) Privies in law, such as husband and wife. The term also appears in the context of litigation. In this sense, it includes someone who controls a lawsuit though not a party to it; someone whose interests are represented by a party to the lawsuit; and a successor in interest to anyone having a derivative claim’. See also Ndulue V Obinaguoha (2013) LPELR-22576(CA) 51-52, D-A, per Agim, JCA (as he then was). In Adalma Tankers Bunkering Services Ltd V CBN (2022) LPELR- 57036(SC) 44-45, E-B, Peter-Odili, JSC held- ‘The word ‘privy’ has also been defined to include all those who are privy to the parties on record in blood, title or interest and estoppel per rem judicatam operates against them all. See Musa Iyaji V Sle Eyigebe (1987) LPELR-1571 SC 1 at 22- 23, G-A, per Oputa, JSC where this Court held thus: ‘Who is a Privy? Are the parties to this appeal privies of the parties in Exhibit D1? In Carlzein-Stiftung V Rayner 4 Kueler Ltd (No. 2) (1996) 2 All E.R. 536 H.L. at P. 550, Lord Reid held that privies include all those who are privies to the parties, in blood or title or interest and estoppel per rem judicatam operates for or against, not only parties but also those privies above mentioned’. Per SANKEY, JCA (Pp. 17-19, paras. C-B) – Per I. G. Mbaba, JCA

 

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NECESSARY PARTY – MEANING OF NECESSARY PARTY – THE PRINCIPLE GOVERNING WHO IS A NECESSARY PARTY

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The principle governing who is a necessary party in a suit, is well settled, that the party claiming interest/right of action must be one required to be present, before the case can be effectively determined, and settled by the Court, and he would be bound by the decision of the Court. See the case of Poroye Vs Makarfi (2018) 1 NWLR (Pt.1599) 91 at 14 – 143; Jegede Vs INEC & Ors (2021) LPELR – 55481 (SC); APC Vs Uduji (2020) ALL FWLR (Pt.1065) 1; Green Vs Green (1987) NWLR (Pt.61) 4811; (1987) LPELR – 1338 (SC).

See also the case of Ndakene Vs Adamu & Ors (2023) LPELR – 59972 SC, where it was held:

“A necessary party in an action has been held to be that person who is not only interested in the subject matter of the proceedings but also who in his absence, the proceedings could not be fairly dealt with. In other words, the question to be settled or determined in the action between the existing parties must be a question which cannot be properly and fairly settled unless he is a party to the action, instituted by the plaintiff. See CHIEF ABUSI DAVID GREEN V. CHIEF (DR.) E. T. DUBLIN GREEN (1987) NWLR (PT. 61) 4811 (1987) LPELR 1338 (SC). A necessary party is a person whose presence in an action is essential for the effectual and complete determination of the claim before the Court. He is the party in the absence of whom the claim cannot be effectively and completely fairly determined by the Court.& quot; Per ABBA AJI, JSC (Pp. 10- 11, paras. C-A) – Per I. G. Mbaba, JCA

 

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EVIDENCE – WHETHER FACTS ADMITTED REQUIRE FURTHER EVIDENTIAL PROOF

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The law is trite, that what is admitted requires no further proof. See Section 123 of the Evidence Act, 2011; Ekpemupolo Vs Edremoda (2009) 3 WRN 8 (SC); Iyere Vs Bendel Feed & Flour Mill Ltd (2009) 3 WRN 139; Duru & Ors Vs Duru & Ors (2017) LPELR – 42490 (CA).

See also Aladum Vs Ogbu & Ors (2023) LPELR – 59995 (SC), where my Lord, Saulawa JSC held:

“…Indeed, the law is well settled, that facts admitted need no further evidential proof. See MEGAFU VS. UNITED BANK FOR AFRICA PLC (2005) 38 WRN 1 @ 15, ADEDEJI VS. OLOSO (2007) 3 SCM 86 @ 98." – Per I. G. Mbaba, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Kano State High Court (Civil Procedure) Rules, 1988

2. Kano State High Court (Civil Procedure) Rules, 2014

3. Evidence Act, 2011

 

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