⦿ CASE SUMMARY OF:
Ngozi Anyafulu v. Vincent Agazie (2005) – CA
by PipAr Chima
⦿ NOTABLE DICTA
It is trite that a respondent to an appeal in his reply to the appellant’s brief must confine himself within the issues arising from the grounds of appeal. – ADEKEYE JCA. Anyafulu v. Agazie (2005)
It is however worthy of note that the appellant locked up the premises for over 7 years without payingany rents. When she was ejected from the premises and another tenant moved into the premises to replace her, she did not ask for a stay of execution of the order both at the Magistrate Court or at the High Court. The essence of this appeal is for this court to put her back into the property for which she has not paid any rents from July, 1991 to December, 1997. In my opinion, the sum total of the foregoing submission is an eye-opener to the fact that there is no live issue in this appeal. It is now overtaken by events and it is not physically possible to put the appellant back on the premises as it is sure that she will not even be interested in such a move having been away from the premises for a number of years. The judgment of the Magistrate Court A was delivered in November 1997, the judgment of the High Court in March 2001, while this appeal is being heard in November 2005, almost eight years after delivery of the judgment at the Magistrate Court. The hearing and determination of the appeal has now become an academic exercise. The attitude of the appellate courts is not to indulge in an academic exercise by entertainingan issue, which does not affect the merit of the appeal. – ADEKEYE JCA. Anyafulu v. Agazie (2005)
Rent is paid as an acknowledgment of tenancy, and it shall be paid to the landlord or his agent in person or otherwise as directed by the landlord, when due depending on the terms of the tenancy, which in this case is monthly. By virtue of section 77(1) – Landlord and Tenants Law rent becomes due in the morningof the day appointed by the parties to a tenancy for payment thereof, if no specific day is appointed, rent becomes due on the last day of the period for which it is payable, so A that annual rent payable annually becomes due on the last day of the year in respect of which it is payable, rent payable monthly becomes due on the last day of the month and so on. – ADEKEYE JCA. Anyafulu v. Agazie (2005)
An appellate court in its primary role in considering a judgment on appealin a civil case in which the finding or non-finding of facts is questioned will seek to know:- The evidence before the trial court. Whether it accepted or rejected any evidence upon the correct perception. Whether it correctly approached the assessment of the evidence before it and placed the right probative value on it. Whether it used the imaginary scale of justice to weigh the evidence on either side and Whether it appreciated upon the preponderance of evidence which side of the scale weighed havingregard to the burden of proof. – ADEKEYE JCA. Anyafulu v. Agazie (2005)
It is however trite that a judgment will not be ruled out as bad because the trial court did not set out seriatim its reasons on each specific complaint in the suit. – ADEKEYE JCA. Anyafulu v. Agazie (2005)
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ CASE HISTORY
This is an appeal against the judgment of the High Court of Enugu State, Enugu Judicial Division in suit No. E/9A/98 delivered on the 27th day of March, 2000. The matter before the High Court, Enugu Division was another appeal, which arose from the judgment of the Senior Magistrate Court, Enugu delivered on the 12th of November, 1997.
The respondent was the plaintiff in the Senior Magistrate’s Court Enugu where he sued the appellant, the defendant according to the claim filed on 27/5/91 for the under-mentioned reliefs:
(a) Possession of the said one flat with appurtenances situate at No. 30 Nike road, Abakpa Nike, Enugu.
(b) The sum of N360.00 being arrears of rent from the 1st day of January, 1991 to the 31st of March, 1991 at the rate of N120.00 per month.
(c) Mesne profits at the rate of 120.00 per month from the 1st day of April, 1991 until possession is given up.
The respondent was landlord of the property. At the hearing which commenced on the 13th of December, 1994, the respondent as landlord and the court bailiff gave evidence in support of the plaintiff’s case. The appellant as tenant testified in her defence. On 2/4/97, the learned Senior Magistrate adjourned the case to 7/5/97 for judgment and ordered that both counsel exchange written addresses, which should reach the court two weeks before the judgment. The last of the addresses was filed on 2/6/97, whereupon the suit was further adjourned to 3/6/97 for judgment.
The judgment was in effect delivered on the 12th of November, 1997. The learned Senior Magistrate in her judgment ordered the respondent to collect rents paid to the rent Tribunal by the appellant for his benefit, and awarded mesne profits from 1st July, 1991 until she delivered possession of the room, with N200.00 costs.
Dissatisfied with the judgment, the defendant appealed to the High Court of Enugu State. At the hearing of the appeal at the High Court, the appellant argued the appeal filed on 4/12/97 containing seven grounds of appeal.
At the conclusion, the learned Judge upheld the judgment of the learned trial Magistrate and dismissed the appeal of the appellant.
Being dissatisfied with judgment of the High Court, the defendant has now further appealed to the Court of Appeal, as leave to appeal was granted to him by the High Court on the 22nd day of June, 2000.
⦿ ISSUE(S) & RESOLUTION
1. WHETHER the judgement of the High Court in its’ appellate jurisdiction is supported by the evidence?
A. An appellate court ought not to disturb the concurrent findings of fact of the lower courts as it has no opportunity of seeing and listening to the witnesses testify. Where the trial court has discharged that responsibility the appellate court will not interfere with such findings unless in exceptional circumstances when it is shown that such concurrent findings were perverse or based on a wrong perception of the whole case which if not corrected will lead to a miscarriage of justice, or the decision has been arrived at as a result of improper exercise of judicial discretion, or as a result of wrong application of some principle of substantive law or procedure.The Magistrate Court and the appellate High Court having concurrently found as a fact that the appellant was in arrears of rent in contravention of section 173(1) of the Landlord and Tenants Law of Anambra State, Cap. 76, this court has no cause amongst the above-mentioned reasons to disturb same.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
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