No valid argument can be made on incompetent issue

Counsel: C.O.I. Agwuna Esq and Chidua Ngene (Miss) for the appellant, B.C. Uzuegbu Esq for the 1st respondent, Ejike Ezenwa Esq with G. Muoneke Esq for the 3rd respondent, with the brief of C.A. Nwokike for the 2nd respondent. JUDGMENT(DELIVERED BY EMMANUEL AKOMAYE AGIM (JCA) On the 14th of September, 2006, the appellant herein as […]

Counsel: C.O.I. Agwuna Esq and Chidua Ngene (Miss) for the appellant, B.C. Uzuegbu Esq for the 1st respondent, Ejike Ezenwa Esq with G. Muoneke Esq for the 3rd respondent, with the brief of C.A. Nwokike for the 2nd respondent.

JUDGMENT
(DELIVERED BY EMMANUEL AKOMAYE AGIM (JCA)

On the 14th of September, 2006, the appellant herein as plaintiff filed a writ of summons commencing Suit No  HID/193/2006 in  the High Court of Anambra State, Idemili Judicial Division  at Ogidi against the respondents herein, as defendants claiming for :-
(a) A declaration that the plain-tiff is a yearly tenant of the 1st defendant, at the 1st defendant’s property situate at and being No. 18 Endwell Street Nkpor, and is accordingly entitled to six months notice, before he could be ejected from the premises.
(b) A declaration that the statu-tory notices (One month, & 7 days) purportedly issued and served on the plaintiff through posting by the 2nd defendant on the 29th April 2005, is void and of no effect whatsoever.
(c) A declaration that suit No. MID/953/2005 Chief Abel Onwudiwe through attn. B.C. UZUEGBU & ANOR VS. MIKE Amakaeze, together with the judgment and orders made therein, are illegal, void & of no effect whatsoever, by reason of lack of jurisdiction by the learned Chief Magistrate to entertain the suit.
(d) A declaration that the payment by the plaintiff of his 2005 annual rents to the 1st defendant’s attorney, which was accepted by the said attorney, nullifies completely the statutory notices purportedly issued and served on the plaintiff in April 2005.
(e) A declaration that ejection proceedings cannot be commenced against the plaintiff by the 1st defendant’s attorney in the absence of valid statutory notices.
(f) An order setting aside the judgment and orders made by the learned chief Magistrate against the plaintiff in suit No. MID/953/2005.
(g)    An order commanding the defendants to restore all the plaintiff’s properties as listed in paragraph 16 above, which they carted away on the 9th day of June 2006, in perfect condition.
OR THE ALTERNATIVE
The sum of N791, 500.00 & 500,000.00 cfa (Cameroonian currency) being the total value of the aforesaid plaintiff’s properties carted away by the defendants.
(h)    The sum of N2, 000.000.00 being general damages against the 1st defendant for breach of contract of tenancy.  
All parties filed and exchanged their respective pleadings accompanied by their witness statements on oath and other documents.  On the basis of all these, viva voce evidence was given by all parties and their witnesses.  At the conclusion of trial, the said High Court per J. I. NWEZE J. on the 12th of September 2007” rendered judgment, declaring the  Judgment and orders of the Chief Magistrate Court Ogidi in Suit NO MID/953/2005, (CHIEF ABEL ONWUDIWE VS. MIKE AMAKEZE)null and void and setting same aside, dismissing the claim for damages for having failed for lack of proof, dismissing the entire claim against the 3rd respondent with cost of N14, 000 in his favour, and awarding cost of N14, 000 in favour of the appellant against the 1st respondent.
The appellant on the 6th of December, 2007 filed a notice of appeal dated 30th November, 2007 commencing this appeal No CA/E/159/2008 against:-
“(a)That part of the judgment of the lower court where the learned trial judge failed to award special damages and general damages in favour of the appellant for the loss he sustained by virtue of the execution levied in his residential flat by the respondents.
(b) That part of the judgment where the learned trial judge failed to make an award in general damages to the appellant, for the breach of his tenancy agreement by the 1st respondent
(c) The order of cost of N14, 000.00 made against the appellant, in favour of the 3rd respondent.”                                                                      
The notice contained six grounds of appeal.
On the 14th October, 2010, the 1st respondent obtained the leave of this Court to file his cross – appeal out of time.  The cross appeal was filed on 13th October, 2010.  The 2nd and 3rd respondent did not cross-appeal.
All parties to this appeal have filed and adopted their briefs as their respective arguments in this appeal. The appellant in his brief raised the following issues for determination in this appeal:
1. “Whether the learned trial judge did not misdirect himself in law when after making findings of fact that the judgment of the Chief Magistrate Court Ogidi in MID/953/2005, (by which the appellant lost his entire household properties), is a nullity, he proceeded to attach high probative value to an exhibit (inventory) which forms part of the discredited judgment of the Magistrate court, and used it as a basis for dismissing the appellant’s claim for special damages?
2. Whether the appellant has not made out a case entitling him to an award of Special Damages and General Damages in this matter over the loss of his entire household properties as well as cash of N75, 000.00 and CFA500, 000.00 in Cameroonian currency?
3. Whether from the nature of this case, the appellant’s Ipse dixit alone which was unchallenged by the 1st respondent, is not enough for the learned trial judge to rely on and award special damages to the appellant?
4. Whether the learned trial judge properly evaluated the evidence in this matter particularly with respect to the appellant status as a tenant in view of the exhibits tendered in evidence particularly exhibit P4 (which is a letter from the Attorney to the 1st respondent showing that the appellant had cleared his rents for the year 2005?)
5. Whether in all the circum-stances of this case, the appellant is not entitled to at least an award of General Damages for the breach of his Tenancy Agreement with the 1st respondent, by the Attorneys/Agents to the 1st respondent?                      
The 1st respondent in his brief raised the following issues for determination
1.    “Whether the Appellant can complain about completed and irreversible acts occasioned to his items of attached property by the Bailiffs when admittedly, the Appellant and his lawyer had knowledge of the default judgment but allowed execution to be carried out before advancing to Court of Appeal.
2.    Whether the official acts of the 2nd and 3rd Respondents as Bailiffs of court and public officers carrying out functions assigned to them by the court are not protected by law.
3.    Whether the court below was right in setting aside the judgment in suit No. MID/953/2005 for want of service of the originating process when it is obvious that Appellant was duly served.
4.    Whether the 1st Respondent can be condemned to pay cost when he did no wrong.”                                           
The 2nd respondent in his brief raised the following issues for determination
(i)    “Whether the suit or claim in suit No. HID/193/06 against the 2nd Respondent is competent in view of the provisions of section 11 (2) of the State Proceedings Law Cap. 134 Revised Laws of Anambra State of Nigeria.
(ii) Whether the Appellant proved his case on the balance of probability against the 2nd Respondent.
(iii) Whether the 2nd Respon-dent is not entitled to cost against the Appellant for unnecessarily bringing the said 2nd Respondent to court.”                                                                                             
The 3rd respondent in his brief raised the following issues for determination
1. “Whether the appeal is maintainable in view of the failure of the appellant to comply with the provisions of section 11 (2) of the State Proceedings Law Cap. 134 Revised Laws of Anambra State of Nigeria before instituting suit HID/193/2006 in the High court.
OR
Whether the Appellate court rightly entertained the Appellant’s appeal or grant the reliefs sought by the appellant in the face of apparent and total lack of proof of service of pre-action notice on the 3rd respondent before the commencement of the suit at the trial court.
2. Whether the trial court was right in awarding N14,000.00 cost in favour of the 3rd respondent who was unjustly sued merely for carrying out his official legitimate lawful duty.”
The appellant in addition to the appellant’s brief also filed a cross-respondent’s brief. The 1st respondent in addition to the 1st respondent/cross-appellant’s brief also filed a cross appellant’s reply brief.  A   total of six briefs were filed in this appeal.  Let me make some preliminary clarifications concerning the briefs of the 1st,   2nd and 3rd respondents in this appeal.
    Issue No 2 of the 3rd respondent’s brief is equally not based on any ground of this appeal.  For this reason it is also incompetent and is hereby struck out.

(To be Continued)