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SCOA (Nig.) Plc vs. Mohammed

SCOA (NIG.) PLC

V

ALHAJI NASIRU MOHAMMED & 1 OR.

COURT OF APPEAL

( ABUJA DIVISION )

UMARU ABDULLAHI, PCA ( Presided and Read the Lead Judgment )

IBRAHIM TANKO MUHAMMAD, JCA

ALBERT GBADEBO ODUYEMI, JCA

CA/A/43/2001

WEDNESDAY, 9TH APRIL, 2003

APPEAL - Omnibus ground of appeal - Whether proper to supply particulars thereto - Whether appellant who called no evidence at trial can make use of

COURT - Court of Appeal - Whether can make consequential order

JUDGMENT AND ORDERS - Consequential order - Purport of Whether Court of Appeal can make

LEGAL PRACTITIONERS - Counsel - Duty on to ensure that grounds of appeal correspond with complaints arising from decision appealed against

LEGAL PRACTITIONERS - Counsel - Need for not to wish to file appeal on every slightest provocation

LEGAL PRACTITIONERS - Counsel - Need for to show diligence in the formulation of issues for determination and drafting grounds of appeal

NOTABLE PRONOUNCEMENT - On need for counsel not to wish to file appeal on every slight provocation

NOTABLE PRONOUNCEMENT - On the need for counsel to show diligence in the formulation of issues for determination and drafting grounds of appeal

Issues:

1.             Having regard to the conflicting affidavit evidence before the court, whether the learned trial Judge was vague in holding that at the time the appellant filed its application the respondents and not the appellant were in possession of the property without calling oral evidence to resolve the material conflicts in the affidavits.

2.             Whether the learned trial Judge was right in granting an order of possession in favour of the respondents when the respondents had no such prayer before the court.

Facts:

Sometime in 1994 the appellant herein agreed to lease the property of the 2nd respondent situated at No. 1, Massana Street, Wuse, Zone 1, Abuja under the care of the 1st respondent. The understanding initially between the parties was that the lease was going to be for a period of 8 years, for a consideration of the sum of N370,000.00 (three hundred and seventy thousand naira) per annum. So the lease would have expired in December, 2002.

During negotiations, a proposal was brought forward that since the appellant had no cash at hand to pay for the rent, a 30-seater Coaster Bus will be given as a consideration for the lease. It was, however, revealed later on that the appellant had no 30-seater Coaster Bus in stock, but has 26- seater Bus, which should now be supplied instead of 30-seater Coaster Bus; but then the lease period would reduce to 5 years instead of 8 years initially agreed.

At the end of 5 years, the respondents moved in to take over possession of the property. The appellant disagreed and insisted that their lease was for 8 years.

The appellant at the High Court of Justice F.C.T., Abuja instituted this suit against the respondents jointly and severally claiming a declaration that the tenancy agreement in respect of the property in dispute is subsisting between appellant and respondents same having been made for consideration for the term of 8 years, an order of injunction restraining 2nd respondent from interfering with appellant’s peaceful occupation of the property and damages for the act of forceful entry.

On 8/5/2000, the appellant by a motion exparte obtained an interim order of injunction restraining the respondents from disturbing or threatening to evict the appellant from the property pending the determination of the motion on notice.

On the same 8/5/2000, the appellant filed a motion on notice by which it sought for an order of interlocutory injunction restraining the respondents from further disturbing or in any way interfering with its peaceful occupation of the property in dispute.

The trial court took arguments of both counsel on the motion and dismissed appellant’s application on the ground that even as at the time appellant obtained the exparte order, the respondents and not the appellant were in possession of the property. The court further held that parties should maintain status quo until the final determination of the suit.

Dissatisfied, the appellant has appealed to the Court of Appeal.

SCOA (NIG.) PLC

V

ALHAJI NASIRU MOHAMMED & 1 OR.

COURT OF APPEAL

( ABUJA DIVISION )

UMARU ABDULLAHI, PCA ( Presided and Read the Lead Judgment )

IBRAHIM TANKO MUHAMMAD, JCA

ALBERT GBADEBO ODUYEMI, JCA

CA/A/43/2001

WEDNESDAY, 9TH APRIL, 2003

APPEAL - Omnibus ground of appeal - Whether proper to supply particulars thereto - Whether appellant who called no evidence at trial can make use of

COURT - Court of Appeal - Whether can make consequential order

JUDGMENT AND ORDERS - Consequential order - Purport of Whether Court of Appeal can make

LEGAL PRACTITIONERS - Counsel - Duty on to ensure that grounds of appeal correspond with complaints arising from decision appealed against

LEGAL PRACTITIONERS - Counsel - Need for not to wish to file appeal on every slightest provocation

LEGAL PRACTITIONERS - Counsel - Need for to show diligence in the formulation of issues for determination and drafting grounds of appeal

NOTABLE PRONOUNCEMENT - On need for counsel not to wish to file appeal on every slight provocation

NOTABLE PRONOUNCEMENT - On the need for counsel to show diligence in the formulation of issues for determination and drafting grounds of appeal

Issues:

1.             Having regard to the conflicting affidavit evidence before the court, whether the learned trial Judge was vague in holding that at the time the appellant filed its application the respondents and not the appellant were in possession of the property without calling oral evidence to resolve the material conflicts in the affidavits.

2.             Whether the learned trial Judge was right in granting an order of possession in favour of the respondents when the respondents had no such prayer before the court.

Facts:

Sometime in 1994 the appellant herein agreed to lease the property of the 2nd respondent situated at No. 1, Massana Street, Wuse, Zone 1, Abuja under the care of the 1st respondent. The understanding initially between the parties was that the lease was going to be for a period of 8 years, for a consideration of the sum of N370,000.00 (three hundred and seventy thousand naira) per annum. So the lease would have expired in December, 2002.

During negotiations, a proposal was brought forward that since the appellant had no cash at hand to pay for the rent, a 30-seater Coaster Bus will be given as a consideration for the lease. It was, however, revealed later on that the appellant had no 30-seater Coaster Bus in stock, but has 26- seater Bus, which should now be supplied instead of 30-seater Coaster Bus; but then the lease period would reduce to 5 years instead of 8 years initially agreed.

At the end of 5 years, the respondents moved in to take over possession of the property. The appellant disagreed and insisted that their lease was for 8 years.

The appellant at the High Court of Justice F.C.T., Abuja instituted this suit against the respondents jointly and severally claiming a declaration that the tenancy agreement in respect of the property in dispute is subsisting between appellant and respondents same having been made for consideration for the term of 8 years, an order of injunction restraining 2nd respondent from interfering with appellant’s peaceful occupation of the property and damages for the act of forceful entry.

On 8/5/2000, the appellant by a motion exparte obtained an interim order of injunction restraining the respondents from disturbing or threatening to evict the appellant from the property pending the determination of the motion on notice.

On the same 8/5/2000, the appellant filed a motion on notice by which it sought for an order of interlocutory injunction restraining the respondents from further disturbing or in any way interfering with its peaceful occupation of the property in dispute.

The trial court took arguments of both counsel on the motion and dismissed appellant’s application on the ground that even as at the time appellant obtained the exparte order, the respondents and not the appellant were in possession of the property. The court further held that parties should maintain status quo until the final determination of the suit.

Dissatisfied, the appellant has appealed to the Court of Appeal.