EFOBI v. EZENDIGWE (2020)

EFOBI v. EZENDIGWE

(2020)LCN/14479(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Thursday, July 09, 2020

CA/AW/314/2012

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

IFEANYI ANTHONY EFOBI APPELANT(S)

And

SAMUEL EZENDIGWE (Suing Through His Attorney Robenco Agencies (Nig.) Ltd) RESPONDENT(S)

RATIO

WHETHER OR NOT FACTS ADMITTED NEEDS TO BE PROVED

These relevant facts having been admitted by the Appellant didn’t need to be proved by the Respondent and the trial Court. See FIRST BANK OF NIGERIA PLC V TSOKWA (2003) ALL FWLR (PT. 153) PAGE 1563. PER NWOSU-IHEME, J.C.A.

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Respondent was the Plaintiff at the lower Court in a suit filed against the Appellant as Defendant for Arrears of Rent and Mesne profit totaling the Sum of Five Hundred and Seventy Five Thousand Naira (N575,000) covering the period of March, 2005 to December, 2008 at the Rate of N12,500 per month.

In a considered Judgment delivered on the 1st of February, 2012 by V. N. Umeh, J., of the Otuocha Division of the Anambra State High Court, the claim of the Respondent was granted, while the counter claim of Appellant was dismissed in its entirety. This Appeal is predicated on the said judgment.

STATEMENT OF RELEVANT FACTS:-
The Respondent as plaintiff commenced this Suit at the Chief Magistrates Court Onitsha in Suit No MO/1609/2007 on the 5/11/2007 for possession arrears of rent and mesne profit against the Appellant.

Upon the receipt of the writ of summons and claim, the Appellant through his Counsel G.R.I. Egonu (SAN) made an application for transfer of the Suit from the Chief Magistrate Court Onitsha to High Court Onitsha to enable his Counsel the Senior Advocate

appear in person. This application was opposed by Counsel for the Respondent, but the then Administrative Judge of the Division granted the prayer for transfer and subsequently transferred the case to the High Court.

The Respondent filed and served the Appellant the Claim, etc. The Appellant in turn filed and served the Respondent his statement of defence and counter Claim.

The learned trial Judge at page 156 of the Record Noted that all through the conduct of this case in the High Court the learned Senior Advocate did not participate and that the defence was conducted by one D. I. Umeji Esq and R. N. Ossai intermittently. He noted in particular that it was essentially on the application of the learned Senior Advocate that Suit No MO/1609/2007 which was initially filed at the Magistrate Court Onitsha was transferred to the High Court.

Learned Counsel for the Appellant J. A. Okwe Esq., distilled Five issues for determination thus:
1. “Whether the learned trial Judge was right in relying on extraneous considerations in his interpretation of the express provision of Section 109 of the Landlord and Tenant Law Cap. 76 Revised Laws of Anambra State 1991.

Whether the learned trial Judge was right in declining jurisdiction to adjudicate on the Appellant’s counter claim on excess rent.
3. Whether the Suit No.O/323/2007 is not incompetent before the Court below as to constitute an abuse of Court process.
4. Whether the entire proceedings in Suit No.O/323/2007 at the Court below is not incompetent on account of non-issuance of writ of summons at the commencement of the Suit in clear violation of the express provisions of the High Court (Civil Procedure) Rules of Anambra State 2006.
5. Whether the decision of the learned trial Judge is not perverse in view of the contradictory decisions of the Court that the Respondent was entitled to the claim for arrears of rent while the Appellant’s counter claim for excess rent is unresolved.”

Learned Counsel for the Respondent on the other hand also distilled Five similar issues for determination as follows:
1. “Having Regard to the State of pleadings and evidence led, was the learned trial Judge right in entering Judgment for the Respondent as per his reliefs in paragraph 14(B) and (C) of the

Statement of Claim.
2. Whether the trial Court was right when it declined jurisdiction to adjudicate on the Appellant’s counter claim on the alleged excess rents paid to the Respondent by the Appellant.
3. Whether the Suit No O/323/2007 was incompetent before the Court below as to constitute an abuse of Court process.
4. Whether the failure to issue fresh writ of summons from the High Court Onitsha when a writ of summons had been issued and served on the Appellant from the Chief Magistrate Court Onitsha made Suit No:O/323/2007 incompetent before the trial Court.
5. Whether the decision of the trial Court was contradictory as canvassed by the Appellant.”

Even though I consider the Five issues distilled by each Counsel too many, I shall make use of the issues distilled by Counsel for the Appellant in an attempt to help him ventilate his grievances. The Five issues are interwoven and therefore will be taken together.

Counsel for the Appellant J. A. Okwe Esq., on the issues he raised, contented, in summary, that the trial Court descended into the arena of conflict to champion the case of the Respondent before it, contrary

to its avowed role as an impartial arbiter in the proceedings before it. He described the Judgment of the trial Court as perverse and that the trial Court had no jurisdiction to entertain Suit No: O/323/2007 before it.

Counsel submitted that the trial Court engaged in Legislative judgment rather than expound the provisions of the law.

He posited that the trial Court failed to properly evaluate the evidence and to give dispassionate consideration to the issues before it and therefore denied the Appellant fair hearing. There is an Amended Reply brief filed on the 4/12/2017.

Reacting to the foregoing, Counsel for the Respondent, C. C. Onwuzulike Esq., contended that it is trite that the Plaintiff’s case determines jurisdiction at the trial Court.
He posited that the Appellant admitted before the trial Court that he owes the Respondent house rent from March 2005 to December 2008 when he vacated the premise. He therefore argued that the Judgment of the trial Court was based on substantial justice to the parties as against technicalities employed by the Appellant.

Counsel submitted that as at the 20/9/2008 when the Appellant filed his

defence and counter claim, he has ceased to be the Respondent’s Tenant and as such the issue of excess rent would not arise.

He therefore argued that the trial Court lacked the jurisdiction to entertain the Appellant’s counter claim not being a Rent Tribunal specifically designated for that purpose.

As could be gleaned from the Records, both the Appellant and the Respondent agree that Appellant was occupying five rooms, a parlour and one commercial store at No. 26 Ilorin Street Fegge, Onitsha until he gave up possession on the 29/12/08.

Both parties also agree that the Appellant was paying a total sum of Twelve Thousand, Five Hundred Naira (N12,500) per month for the five rooms, a palour and a commercial store. The Appellant himself as DW4 admitted paying the said sum monthly and has not paid his rent from March 2005 to December 2008 when he finally vacated the premises.
Both parties are ad idem that the total sum owed by the Appellant for the aforementioned period was Five Hundred and Seventy Five Thousand Naira (N575,000) for 46 months.
These relevant facts having been admitted by the Appellant didn’t need to be

proved by the Respondent and the trial Court.
See FIRST BANK OF NIGERIA PLC V TSOKWA (2003) ALL FWLR (PT. 153) PAGE 1563.

Appellant as DW4 admitted that he had been living at No 26 Ilorin Street Fegge Onitsha for the past twenty years preceding the institution of the Suit at the trial Court and that all these while he had paid his house rent without complaining until he stopped paying from March, 2005.

It is the issue of arrears of rent for 46 months that formed the basis of the counter claim of the Appellant as he argued that he was paying far in excess of his rent.

The Appellant relied heavily on Section 109 of The Landlord and Tenant Law Cap. 76 Revised Laws of Anambra State, 1991 which provides as follows:
SECTION 109 “Subject to and upon the commencement of this law, rent chargeable for letting of any accommodation within a town or place as specified in the First Schedule of this law, being accommodation of the type or class therein described, shall not exceed the amount prescribed in respect of that accommodation.”

Counsel for the Appellant at the trial Court hinged his argument on his assertion that the rent

chargeable for residential accommodation in Enugu and Onitsha as per serial No 6 of Section 109 of the afore mentioned Law is the sum of Three Naira Sixty Kobo (N3.60) per month.

This law in my humble but firm view is obnoxious considering the astronomical rise in cost of living globally.

The Appellant who has been paying his rent about Twenty years prior to the filing of this Suit at the trial Court has suddenly woken up from his slumber and decided to use the said law to cajole, irritate and annoy the Respondent.

The Appellant however brought this belated argument to the wrong Court. The High Court of Anambra State not being a Rent Tribunal cannot be called upon to determine the appropriate rent not being designated a Rent Tribunal.
The trial Court therefore lacked the jurisdiction to determine the appropriate rent.
What was before the trial Court was simply a case of Arrears of rent and Mesne profit which the Appellant himself admitted owing having been paying the said sum as his rent in the said premises for about Twenty years.
Section 110 (3) of the aforementioned law laid to rest any argument or controversy concerning the

determination of appropriate rent to be paid in a Landlord Tenant relationship.
“Where there is a dispute between Landlord and Tenant as to the amount of increased or reduced rent payable in the circumstances mentioned in Sub Section (1) and (2) of this Section, the dispute may be referred to the rent Tribunal by the Landlord or Tenant and the Tribunal shall determine the appropriate rent in such case.”
(underling mine for emphasis)
At the time the Counter Claim was filed by the Appellant (as Defendant) he has ceased to have any relationship of Landlord and Tenant between him and the Respondent (as Plaintiff) as the tenancy was determined with effect from the 30th of December, 2008 as it is in evidence that the Appellant gave up possession on the 29th of December, 2008.
Therefore going to the Trial Court to Counter Claim is indirectly urging the Court to take up the function of a Rent Tribunal and determine the appropriate rent when he was clearly not a Tenant to the Respondent and the Respondent not his Landlord in the property so called. The Appellant simply made a Mockery of Counter Claim before the trial Court and the learned

trial Judge was well within the law to have dismissed the Counter Claim in its entirety.

Counsel for the Appellant also made heavy weather about the Suit at the trial Court being incompetent for failure by the Respondent to serve the Appellant with a writ of summons in accordance with Order 3 Rule 3 and Order 6 Rules 1, 2 (1) (2), 3, 4 and 5 of the High Court Civil Procedure Rules of Anambra State, 2006.

I had earlier pointed out in this Judgment that the learned trial Judge noted at page 156 of the Record in his Judgment that the Suit which was pending at the Magistrate Court Onitsha was transferred to the High Court Onitsha at the instance of Counsel for the Appellant G. R. I. Egonu (SAN). The Respondent had earlier issued the Appellant with a writ of summons at the Magistrate Court which has original jurisdiction to entertain this matter in Suit No MO/1609/2007.

The Appellant applied for transfer of the case from the Chief Magistrate Court to the High Court and the application for transfer approved by the Administrative Judge. It is nothing short of holding on to straw like a drowning man for the same Appellant to turn round to complain

about not being issued with another writ of summons when the transfer to the High Court which I consider unnecessary was at the instance of Counsel for the Appellant.

In the circumstance, all the Five issues are resolved against the Appellant and in favour of the Respondent. This appeal is bereft of merit and hereby dismissed in its entirety. The Judgment of the trial Court in Suit No.O/323/2007 delivered on the 1st day of February, 2012 by V. N. Umeh, J., sitting at the High Court of Justice, Onitsha Division is hereby affirmed.

The Appellant is to pay to the Respondent the Sum of Five Hundred and Seventy Five Thousand Naira (N575,000) being arrears of rent from March, 2005, to December, 2008.

Considering the fact that this matter has dragged since 2007 due to the recalcitrant Appellant who deliberately refused to pay his rent, and since costs follow events, the Appellant is to pay to the Respondent costs which I assess at Two Hundred Thousand Naira (N200,000). The entire amount must be paid by the Appellant on or before the end of July, 2020.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my

brother CHIOMA NWOSU-IHEME (Ph.D) J.C.A.
I agree with her reasoning and conclusions.
The appeal is dismissed by me.
I abide by the consequential order made as to costs.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

A. Okwe For Appellant(s)

C. Onwuzulike For Respondent(s)