EJIFODOMI V. OKONKVVO

• Pages: 422-438

EJIFODOMI V. OKONKWO

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422

land, he could not lawfully sell it to the appellants and their entry into it was unlaw-

ful. They were trespassers from the moment of entry into the land pursuant to the

sale by Oniga. The true owners of the land was the Iposu family (respondents).

Trespass is an unjustified intrusion into land in someone else's possession. The

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respondents pleaded and led in evidence that the land in dispute had been in the

possession of the Iposu family from 1851. Although it is not exactly on all fours

with the instant case, it is settled that persons who go into occupation to take pos-

session of family land by virtue of a transfer made by a family member without the

consent of those members whose consent is necessary are trespassers

Onwuka

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

v.

Abriba City Council

(1956) 1 E.R.L.R. 17.

Having been put on the land by Kadiri Oniga could appellants be licensees a

licence being a defence to trespass? 'A dispensation or licence properly passeth

no interest, nor alters or transfers property in anything but only makes an action

lawful which without it had been unlawful"

Thomas v. Sorrell

(1674) Vaugham 330.

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For the reasons already advanced above, the appellants were not licensees either

for they had to be on the land by the leave and licence of the owner and Kadiri

Oniga was not the owner of the lard in dispute.

Appeal dismissed.

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EJIFODOMI V. OKONKWO

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AGNES DEBORAH EJIFODOMI

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APPELLANT

V

H.C. OKONKWO

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RESPONDENT

SUIT NO. SC 90/1981

30 SUPREME COURT OF NIGERIA

SOWEMI MO,



J.S.C.

BELLO,



J.S.C.

ESO,



J.S.C.

ANIAGOLU,

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J.S.C.

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

UWAIS,



J.S.C.

12th November, 1982

Civil Appeal - Landlord and Tenant - Recovery of premises situated in Kano

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Proceedings instituted in District Court, not High Court - Effect - Ex facie,

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both Courts with jurisdiction by virtue of Recovery of Premises Law and

Land Tenure Law - Need, in light of relevant legislation - For evidence to

determine categorically whether, inter alia, the disputed land "urban" land or

whether subject to statutory right of occupancy.

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Constitutional Law - Right to appeal as of right on grounds of law - Not

unlimited right to argue any ground of appeal filed in exercise of that right

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Court's unfettered discretion to allow or disallow

ground of appeal on

new

point of law.

50 ISSUES:

1. Whether the constitutional right of appeal conferred under Section 213 of the

1979 Constitution grants an appellant unlimited right to argue any ground of

appeal filed in exercise of that right.

423

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NIGERIAN SUPREME COURT CASES

[1982] N.S.C.C.

2.

Whether Section 213 of the 1979 Constitution fetters the discretion of the

Supreme Court in deciding whether to allow or disallow a ground of appeal on

a new point of law.

3.

Whether or not the Supreme Court has a discretion to grant or refuse an

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application to argue a point of law, on appeal, not raised in the court below,

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and if so, under what circumstances.

4.

Whether an admission made in the court below can be withdrawn before the

Supreme Court.

FACTS:

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The plaintiff had let his house and premises situate at No. 6 Church Road, Sabon

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Gari, Kano, otherwise known as Green Travellers Lodge to the defendant as a ten-

ant on a month to month tenancy. The plaintiff sent a notice to quit to the defend-

ant through his Solicitor in order to determine the tenancy. When the defendant

refused to vacate the house, he instituted an action in the Kano State District Court

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claiming possession, arrears of rent and mesne profits. He later withdrew the

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claim for arrears of rent and mesne profits. The defendants argued that the Dis-

trict Court had no jurisdiction to hear the case because the premises in dispute

were residential and did not rank as business premises. The District Judge thought

otherwise and ruled that he had jurisdiction because the premises were business

premises. He held in favour of the plaintiff.

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The defendant appealed to the Kano High Court and the Court in its appellate

jurisdiction allowed the appeal, holding that the Kano District Court had no juris-

diction to entertain the suit.

The plaintiffs appealed to the Federal Court of Appeal. The Court refused an

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application made by the defendant for an extension of time within which to cross

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appeal and raise for the first time, the issue that the tenant of the premises in dis-

pute was not the defendant, but a limited liability company, into which the defend-

ant had constituted her business. Instead they allowed the plaintiff's appeal, set

aside the High Court's judgment and restored the judgment of the District Court

which granted possession to the plaintiffs.

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The defendant thus appealed to the Supreme Court after having sought and

being granted leave to appeal.

On appeal, the appellant sought to substitute and argue two new points of law

on jurisdiction and title. She submitted that although the two questions of law were

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being raised for the first time, they should nonetheless be entertained by reason

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of the provisions of Section 213 of the Constitution, which states that grounds of

appeal on law must be allowed to be argued by the Supreme Court.

HELD:

1.

That an appellant's right of appeal as of right does not confer on him an

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unlimited right to argue any ground of appeal filed in exercise of that right. The

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Supreme Court has the discretion and a duty to refuse an appellant leave, where

the justice of the circumstances so dictates, to argue a around of appeal filed.

2.

That nothing in Section 213 of the 1979 Constitution has the effect of affecting

or in anyway abridging that discretion.

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3(a) A challenge to the jurisdiction of a court could be based on varied and

diverse points, for example (a) that the judge was not properly appointed;

(b) that the matter in issue is outside the limits of the territorial jurisdiction of

the court; (c) that the claim is above the justiciable power of the adjudicat-

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ing court; (d) that the period allowed for the court to embark upon the hear-

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50

ing of the case has expired etc. The specific point in this appeal on which

objection to the jurisdiction of the court was based and challenged by the

defence, was that the premises was a residential premises and then came

under the exclusive jurisdiction of the rent tribunal, to which argument it was