PROCON GROUP AFRICA LTD v. AYUBA (2020)

PROCON GROUP AFRICA LTD v. AYUBA

(2020)LCN/15254(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/A/20/2018

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

PROCON GROUP AFRICA LIMITED APPELANT(S)

And

MUSA AYUBA RESPONDENT(S)

RATIO

WHETHER OR NOT APPEALS ARE DETERMINED FROM THE GROUNDS OF APPEAL RAISED AGAINST THE JUDGEMENT BEING APPEALED

In the Supreme Court case of GALADIMA VS. STATE (2018) 13 NWLR (PT. 1638) PAGE 357 AT 373 PARA G, it was held per Ariwoola, JSC that:
“It is trite that by the rules of practice and procedure, in particular, of the appellate Courts, appeals are to be determined on the issues distilled from the competent grounds of appeal raised against the judgment being appealed. Therefore, any ground of appeal from which no issue has been formulated is deemed to have been abandoned and is liable to be discountenanced and struck out by the Court. Indeed, any such ground is lifeless and may not need a specific order to have it struck out yet it should still be struck out.”
See also the cases of MAOBISON INTER LINK ASSOCIATED LTD VS. U.T.C (NIG) PLC (2013) 9 NWLR (PT. 1359) PAGE 197; BISIRIYU AKINLAGUN & ORS VS. TAIWO OSHOBOJA & ANOR (2006) 12 NWLR (PT. 993)PAGE 60. PER IDRIS, J.C.A.

THE FUNDAMENTAL PRINCIPLE THAT THE COURT SHOULD NOT DECIDE A CASE ON SPECULATION

It is elementary law and also a trite principle of law that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculations.
In the case of ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187, it was that:
“it is not part of the assignment of any Court to speculate. It must avoid it.”
In the recent case of IKEMEFUNA & ORS VS. ILONDIOR & ORS (2018) LPELR-44840, it was held:
“The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.”
See also the cases of IKENTA BEST (NIG.) LTD VS. A.G RIVERS STATE (2008) 8 NWLR (PT. 1084) 612 and ANIMASHAUN VS. UCH (1996) 10 NWLR (PT. 476) PAGE 65. PER IDRIS, J.C.A.

WHETHER OR NOT PARTIES ARE BOUND BY THE TERMS OF THEIR AGREEMENT

It is trite law that parties are bound by the terms of their agreement and are to give effect to same. It is thus not the function of the Court to rewrite the contract of the parties or input that which is not within the contemplation of the agreement. This position has been maintained in plethora of cases just to mention a few like A.G. FERRERO & CO. LTD VS. H.C. (NIG) LTD (2011) 13 NWLR (PT. 1265) 592; CHUKWUMAH VS. SDPC (1993) 4 NWLR (PT. 289) 512; UNION BANK OF NIGERIA VS. OZIGI (1994) 3 NWLR (PT. 333) 385; AJAGBE VS. IDOWU (2011) 17 NWLR (PT. 1276) 422 and UNION BANK OF NIGERIA VS. SAX (NIG) LTD (1994) 8 NWLR (PT. 361) 150.
In the Supreme Court case of ODUTOLA VS. PAPERSACK (NIG.) LTD (2006) NWLR (PT.1012)470, it was held per Tobi, JSC that:
“Parties to an agreement may mutually but wrongly come to an understanding as to the legal content of it. That notwithstanding, a Court of law can only interpret the agreement strictly in its legal content and arrive at a conclusion on the law and the law alone in respect of it. A Court of law cannot construe the agreement to convey the meaning “as understood” by the parties, if it is different from the real legal meaning of the agreement. While there are instances where the principles of equity may assist a party wronged by a strict application of the construction of the agreement, in the application of the doctrine of estoppel, this is not one of such cases.”PER IDRIS, J.C.A.

MEANING OF “BURDEN OF PROOF”

The burden of proof is the responsibility imposed upon a party to prove or disprove the existence of particular facts. Generally, the burden of proof in a suit or proceeding lies on that person who would fall if no evidence at all were given on either side, regard being had to any presumption that may arise on the pleadings. See ONOBRUCHERE & ANOR VS. ESEGINE & ORS (1986) ALL N.L. R. 289. See also Section 133(1) of the Evidence Act. In NIGERIAN MARITIME SERVICES LTD VS. ALHAJI BELLO AFOLABI (1978) LCN/2106 (SC), it was held: “In the arena of proof in a civil case, the onus of proof does not remain static but shifts from side to side ….”PER IDRIS, J.C.A.

A TENANCY AT WILL

In the case of ODUTOLA VS. PAPERSACK NIG LTD (SUPRA), it was held per Tobi, JSC thus:
“A tenancy at will, which is held by a tenant at will, generally conveys a mutual wish or intention on the part of the tenant and the landlord in the occupation of the estate. There is general understanding that the estate may be legally terminated at any time. A tenancy at will is built into the mutual understanding that both the tenant and the landlord can terminate the tenancy when any of them likes or at any time convenient to any of them. In a tenancy at will, the lessee (the tenant) is the tenant at will because the lessor (the landlord) can send him packing at any time the lessor pleases. In other words, the tenant occupies the estate at the pleasure or happiness of the landlord. This is however subject to proper notice emanating from the landlord.” PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a writ of summons filed on the 10th of December, 2014, the Respondent brought an action against the Appellant under the undefended list, seeking for the following reliefs:
1) A declaration that the tenancy of the Defendant with Plaintiff in the property No 40, Durban Street, Wuse II, Abuja has expired and was properly terminated after 31st May, 2010.
2) A declaration that there is no further tenancy renewed between Defendant and Plaintiff, the Defendant having failed to pay rent to Plaintiff for any renewal after 31st May, 2010.
3) An order of this Honourable Court directing Defendants to yield up possession and vacate the property forthwith.
4) Twenty two Million Naira (N22,000,000) against Defendant for its use and occupation of the property from 1st June, 2010 to 31st May, 2014.
5) The sum of Five Million, forty one thousand six hundred and sixty Naira (N5,041,666) for the use and occupation by Defendant from 1st June, 2014 to 30th April, 2015.
6) The sum of Four hundred and fifty eight thousand, three hundred and thirty three (N458,333) monthly from 1st May, 2015 until possession is given to Plaintiff.
7) General damages of N5,000,000.00.
8) 10% interest on all sums awarded from 31st of May, 2010 until liquidated.
9) The cost of the action.

By a ruling of the trial Court dated 28th of April, 2015, the Court transferred the suit from the “Undefended List” to the “General Cause List”. Pleadings were filed and exchanged and the matter was set down for hearing.

It is the case of the Respondent who was Plaintiff at the trial Court that he entered a fixed one year tenancy with the Defendant in respect of a property described as No 40, Durban Street, Wuse 2, Abuja at the rent sum of N3,500,000 (Three Million five hundred thousand Naira only). Upon the expiration of the said tenancy, the Respondent indicated his intention to increase the rent sum to N6,000,000 but the Appellant made a counter offer of N5,000,000 which was refused by the Respondent. The Appellant thereafter suggested that the parties should enter into a 10 year lease at N5,500,000 per annum and the Appellant claimed to have made drafts and cheques representing the agreed sum of N27,500,000.00 for the payment of the first five years and the sum of N2,062,500.00 which was collected by the agent of the Respondent. The Respondent further stated that he did not receive the said sum and the Appellant have continued to remain in possession even after a notice to quit had been duly served on it. The Respondent urged the trial Court to hold that the Appellant was a Tenant at will and he was entitled to all the reliefs sought.

The Appellant in its defence and through a sole witness, averred that the said bank drafts were collected by the Respondent through his agent and the purported quit notice served on them was overtaken by the events of further negotiation for the 10 years lease agreement and the collection of the tenancy fee by the Respondent and his agent. The Appellant averred that he is of the firm believe that any misunderstanding between the Respondent and the agent has nothing to do with it, as all drafts and cheques for the payment of 5 years lease have been given and received from the Respondent.

The trial judge when delivering the judgment on the 19th of July, 2016 held that the negotiation for a contract of a leasehold of 10 years on the property which was the subject matter was inchoate having found that the Appellant’s tenancy had been determined by the terms of their mutual covenant, by effluxion of time and which tenancy has not been renewed. It was further decided that even though the Respondent did not comply with the necessary pre-condition requirement before instituting the action for recovery of premises which is the service of the Notice of owner’s intention to recover possession, the claim of the Respondent succeeded in part and judgment was given in his favour.

Unhappy and determined to get his case proven, the Appellant filed a Notice of Appeal dated the 10th of August, 2016, comprising of seven grounds of appeal.

Parties to the appeal filed and exchanged their respective briefs of argument.

In the Appellant’s brief of argument as settled by their counsel Peter OcheOfikwu, Esq. filed on the 28th of February, 2018, six issues for determination were distilled from the grounds of appeal:
1. Whether the tenancy between the Appellant and Respondent in respect of the property No. 40 Durban Street, Wuse II, Abuja has expired and was properly terminated after 31st May, 2010. (Distilled from grounds one and two).
2. Whether the learned trial judge is justified in ordering the Appellant to pay N22,000,000.00 for the use and occupation of the property from 1st June, 2010 to 31st May, 2014 to be paid to Respondent (Distilled from ground three)
3. Whether the learned trial judge is justified in ordering the Appellant to pay N5,041,66 for use and occupation of the property to the Respondent from 1st June, 2014 to April 30th 2015. (Distilled from ground four)
4. Whether the award of N500,000.00 as damages against the Appellant is justified (Distilled from ground five)
5. Whether the learned trial judge is right in awarding the sum of 10% interest on all the sum awarded from 3rd May, 2010 until liquidated (Distilled from ground six)
6. Whether the learned trial judge is right in awarding the sum of N200,000.00 as cost of action against the Appellant. (Distilled from ground seven)

On issue one, the Appellant has argued that the trial judge relied on CLAUSE C of the Tenancy agreement admitted in evidence and marked as Exhibit A, as the mode of termination of the tenancy. The Appellant counsel has further stated that the trial judge failed to give a calm, comprehensive and sympathetic construction to the said Exhibit A as it is trite law that in the construction of document, the Court is bound to give it a calm and community reading in order to discover and give effect to the clear intention of the parties.

It was further argued that CLAUSES A, B and C of the said Tenancy Agreement (Exhibit A) must be read together to show that there was option to renew the rent and the tenancy was not for a fixed term and must not necessarily be determined by effluxion of time.

The Appellant’s counsel has further argued that it is a well known principle of law of tenancy that the issue and service of statutory notices are condition precedent for exercise of jurisdiction by the trial Court, failure of which, the case must be struck out. Reference was made to the case of ODUTOLA VS. PAPERSACK (NIG) LTD (2007) ALL FWLR PART 350 1214 AT 1243 – 1245. It was argued that the trial judge was incompetent to grant the other reliefs having held that due statutory notices were not given. The case of AYINKE STORES LTD VS. ADEBOGUN (2008) ALL FWLR (PART 628) PAGE 1797 AT 1808 PARAS E – F was cited in support.

This Court was urged to resolve this issue in favour of the Appellant.

On issue two and three, the Appellant’s counsel has argued that the learned trial judge having held that due statutory notices were not given, he lacked jurisdiction to delve into the matter and make those orders. It was submitted that specific provisions on determination of the Tenancy for reason of non-payment of rent is specifically provided in Clause B of Exhibit A and Clause C is based on determination of the tenancy as a general provision. It was stated that it is trite law that where there is a specific provision and also a general provision on a subject matter, the specific provision prevails over the general provision. It was further submitted that the tenancy agreement, having not been determined in accordance with Clause B, it has not come to an end.

Also, the Appellant’s counsel has stated that the trial judge held that there was no agreement between the Appellant and Respondent as regards the payment of the rent sum of the 5 years lease agreement. It was submitted that what the learned trial judge awarded to the Respondent comes within the meaning of “mesne profits” under Section 2(1) of the Recovery of Premises Act, Cap 544, Laws of the FCT 2006 and relied on the definition of mesne profit was decided in the case of OSAWARU VS. EZEIRUKA (1978) 617 S. C. 135 AT 139.

On issue four, the Appellant’s counsel has argued that the learned trial judge cannot make an award of damages as it would amount to double compensation, which is not permissible in law. It was further submitted that when arguing issues two and three above that the tenancy agreement, Exhibit A has not been “absolutely determined” in accordance with Clause B therein. Exhibit A having not been determined in accordance with its terms, the tenancy is still subsisting as the Appellant had not breached the terms of the Tenancy agreement.

On issue five, the Appellant has argued that the action was instituted on 10th December, 2014 and judgment was delivered on 19th July 2015, thus, the interest awarded from 3rd May, 2010 until liquidated is a pre-judgment interest. It was further argued that the Respondent never pleaded his entitlement to pre-judgment interest and the basis for such entitlement. Thus, the trial judge was incompetent to award the pre-judgment interest. A.G. FERRERO & CO. LTD VS. HENKEL CHEMICALS (NIG.) LTD (2011) ALL FWLR (PART 587) 647 AT 660 (PARAS A – D).

On issue six, the Appellant’s counsel has argued that if this appeal succeeds, the cost of N200,000 awarded against the Appellant by the trial judge must be set aside, being a consequential relief.

In totality, this Court was urged to allow the appeal and set aside the judgment of the lower Court.

The Respondent’s counsel had raised a preliminary objection and argued it in his brief of argument. Two issues for determination were distilled thus:
1. No issue formulated on Ground 2 of the Notice of Appeal.
2. No leave sought in respect of Ground 5 of Notice of Appeal.

On issue one, the Respondent’s counsel has argued that there is no issue for determination distilled from Ground two of the Notice of Appeal even though the Appellant’s counsel had sought to incorporate the said Ground 2 into issue one, it is obvious that the issue is highly unrelated as it has nothing to do with the renewal of rent.

On issue two, the Respondent’s counsel has stated that ground five of the Notice of Appeal was predicated on the cost of #200,000 awarded by the trial judge against the Appellant. He then argued that the Appellant did not seek leave of this Court or of the trial Court to appeal on this ground. Reference was made to Section 241(2)(c) of the Constitution of the Federal Republic of Nigeria. Reference was made to ALLANAH VS. KPOLOKWU (2016) NWLR (PT. 1507) 1 PAGE 15 (SC).

The Respondent filed his brief of argument dated the 20th of March, 2018 and settled by Onyesom Ugochukwu Igwe, Esq. Six issues for determination were also distilled and they are:
1. Whether the tenancy between the Appellant and Respondent in this appeal at No 40 Durban Street, Wuse 2, Abuja had expired and was properly determined after 31st May, 2010. (Ground one).
2. Whether the learned trial judge was right when he held that the tenancy between the Appellant and Respondent in respect of the property at No 40 Durban Street, Wuse II, Abuja was not renewed subsequently after 21st May, 2010. (Ground two).
3. Whether the Appellant had already paid rents to renew the tenancy after 31st May, 2010 and if not, whether learned trial judge was justified when he ordered the Appellant to pay the sums of N22,000,000 (Twenty two Million naira) and Five Million, forty one thousand, six hundred and sixty six Naira (N5,041,666) for the various periods of Appellant’s use and occupation of Respondent’s property. (Grounds three and four).
4. Whether the Respondent was entitled to the award of the sum of Five hundred thousand (N500,000) as General damages against the Appellant. (Ground five).
5. Whether the 10% interest on all the judgment sum from 3rd May, 2010 awarded against the Appellant to the Respondent is justified (Ground six).
6. Whether the cost of Two hundred thousand Naira (N200,000) awarded against the Appellant to the Respondent by the learned trial judge is justified and whether Appellant has a right of appeal over same as of right (Ground seven).

On issue one, the Respondent’s counsel has argued that the tenancy between the Appellant and Respondent had expired and validly terminated after 31st May, 2010. The Respondent has further submitted that parties are bound by the terms of their agreements. Reliance was placed on TEJU INVESTMENT AND PROPERTY CO. LTD VS. SUBAIR (2016) LPELR-40087 (CA) PAGE 17 – 18 PARAS A – A.

It was further argued that the termination clause of the tenancy agreement is very clear that the tenancy shall terminate by sheer effluxion of time and no further notice shall be necessary to do so. It was then submitted that the learned trial judge was absolutely right when he held that the tenancy between the Appellant and Respondent under consideration expired and was properly terminated after 31st May, 2010.

The Respondent’s counsel has argued in response that the Clauses A, B and C are separated in content and purpose and cannot be lumped together with the termination clause.

It was submitted by Respondent’s counsel that there is no theory of interpretation or construction known to law as “calm, comprehensive and sympathetic construction” as propounded by the Appellant’s counsel as this will obviously amount to speculation and sentiments which is none of the business of this Court. It was further submitted by Respondent’s counsel that the Appellant’s counsel went into the issue of jurisdiction which is neither part of the Appellant’s grounds of appeal nor part of the issues of determination formulated.

It was further argued that the Appellant’s counsel is trying to confuse the recovery of possession with claim of recovery of money for the use and occupation of a property as the argument of the Appellant’s counsel is that once the Court makes a finding that statutory notices were not served, the Court is also deprived of jurisdiction to entertain the claim for recovery of money for the use and occupation of premises.

It was finally submitted that all the arguments by the Appellant’s counsel in respect of non-service of statutory notice which are not predicated on Appellant’s issue one and of which there is no ground of appeal was raised is just an effort in futility by the Appellant and should be discountenanced by this Court.

On issue two, the Respondent’s counsel has argued that notwithstanding the Appellant’s complaint against the decision of the trial Court that there is no renewal of tenancy between the parties, the Appellant did not appeal on the finding of facts by the trial judge, thus, making the findings of the Court still subsisting and binding on the parties. Reference was made to KAYILI VS. YILBUK (2015) NWLR (PT. 1457) PAGE 26 SC.

It was also argued by Respondent’s counsel that there is no issue formulated by the Appellant in respect of Grounds 2 of the Notice of Appeal and same should be deemed abandoned and struck out. The case of SAPO VS. SUNMONU (2010) NWLR (PT. 1205) PAGE 374 SC was cited.

On issue three, the Respondent’s counsel has argued in response that from the oral testimonies and documentary exhibits tendered by the Appellant during trial particularly Exhibit J2 to J7, it is clear that the Appellant’s claim of having paid rent to Respondent is predicated on its issuance of the crossed cheques and drafts contained at page 70 – 75 of the Records without producing any evidence of any cash payment, not even a copy of bank statement of account showing a debit balance in favour of the Respondent. It is the law that he who alleges must prove. Reference was made to SECTION 131 OF THE EVIDENCE ACT 2011; EZEMBA VS. IBENEME (2004) NWLR (PT. 894) PAGE 617 AT PAGE 622.

It was further argued that it is very clear that a person who claims that statutory notices were not served on him as the Appellant claims is still liable to pay damages for the use and occupation of the premises which he holds over. Reliance was placed on DR. MICHAEL EMUAKPOR ABEKE VS. BARRISTER A.A. ODUNSI (2013) NWLR (PT. 1370) PAGE 1 PAGE 28.

It was also argued that the service and non service of statutory notices does not affect jurisdiction of a Court to order a person in occupation either as trespasser or tenant holding over to pay to his landlord money for the use and occupation of the property which the tenant occupies.

It was further argued by Respondent’s counsel that the question that must be answered by the Appellant is: what is the position of the Appellant in the Respondent’s property after 31st May, 2010 when the rent in the tenancy agreement of 10th June, 2009 expired? This Court was urged to affirm the decision of the trial Court on this issue.

On issue four, the Respondent’s counsel has argued that the Appellant’s counsel’s theory that the award of general damages of N500,000 under reference is double compensation is a non-starter as damages awarded to a successful party in a case before a Court is different from damages for use and occupation relating to rent matters.

It was argued by the Respondent’s counsel that the trial judge was right in awarding general damages against the Appellant. It was further argued that the authorities cited by the Appellant are not applicable in the instant case as none laid down any principle that general damages is not awardable together with damages for use and occupation of property. The case of ANTHONY ODIBA VS. TULE AZEGE (1998) LPELR SC-20/1992 was cited in support.

The Appellant’s counsel filed their Reply brief dated the 30th of April, 2018 and settled by Peter Oche Ofikwu, Esq.

In response to the issues for determination raised by the Respondent, on issue one, the Appellant’s counsel argued that it was not the jurisdiction of the trial Court to read Exhibit A from convenient angles but it must be read as a whole so as to understand it thoroughly and the Court must give a sympathetic consideration to the document. It was further argued that the basis of the action of the Respondent at the trial was recovery of premises and failure to serve the requisite notices, the Court had no jurisdiction to grant the other reliefs sought.

In response to the issue two, the Appellant’s counsel has argued that the tenancy was never duly determined on the 31st of May, 2010 and therefore the issue of renewal can never arise.

In response to issue three, the Appellant’s counsel has argued that since the learned trial judge has held that the tenancy has been duly terminated, it is grossly erroneous to award any sum for use and occupation of the property. He further argued that the award made by the trial judge was not based on the previous rent of N3,500,000 as reserved in Exhibit A but instead, the trial Court awarded it based on N5,500,000. Counsel also argued that the service of the due statutory notices must have been shown to have expired before hold over can arise.

In response to issue four, the Appellant’s counsel further argued that the award for damages and award for use and occupation amounts to double compensation.

Also, in response to the preliminary objection filed by the Respondent, the Appellant’s counsel has argued that Issue one encompasses grounds one and two of the Notice of Appeal and thus, the objection of the Respondent is baseless and must be discountenanced.

Counsel further argued that the second ground of objection to the effect that no leave was sought in respect of Ground 5 of the Notice of Appeal is misconceived subject to the provisions of Section 241(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria. This is because the award of cost is not the only thing appealed against as there were other grounds of appeal.

This Court was urged to dismiss the objection and allow the appeal.

DECISION ON THE PRELIMINARY OBJECTION FILED BY THE RESPONDENT
I have read the arguments of the Respondent’s counsel in his Notice of Preliminary Objection wherein two grounds of objections were raised, which are:
1. No issue was formulated on Ground two of the Notice of Appeal.
2. No leave sought in respect of Ground five of the Notice of Appeal.

If indeed it can be proved that no issue was distilled from ground two, it will be struck out and deemed abandoned. I have looked at the said ground two which states:
“The trial Court erred in law when it stated that “there is no further tenancy renewed between the Defendant and Plaintiff, the Defendant having failed to pay rent to Plaintiff for any renewal after 31st May, 2010 and thereby occasioned a miscarriage of justice”

I have also looked at the Issue one of the Appellant’s brief of argument which states:
Whether the tenancy between the Appellant and Respondent in respect of the property No. 40 Durban Street, Wuse II, Abuja has expired and was properly terminated after 31st May, 2010.(Distilled from grounds one and two).

From the above, it is clear that Ground two of the Notice of Appeal clearly talks about the determination of the tenancy agreement because of the failure of the Appellant to renew the rent by making payments and the Issue one was based on whether the tenancy was indeed determined and terminated.

I can see a great link between Ground 2 of the Notice of Appeal and Issue one for determination and I am very certain that Issue one of the Appellant’s brief of argument was properly distilled there from. It is also clearly boldly written by Appellant’s counsel that Issue one was distilled from Grounds one and two.

This ground of objection raised by the Respondent is totally unfounded in law and is based on speculations. It is elementary law and also a trite principle of law that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculations.
In the case of ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187, it was that:
“it is not part of the assignment of any Court to speculate. It must avoid it.”
In the recent case of IKEMEFUNA & ORS VS. ILONDIOR & ORS (2018) LPELR-44840, it was held:
“The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.”
See also the cases of IKENTA BEST (NIG.) LTD VS. A.G RIVERS STATE (2008) 8 NWLR (PT. 1084) 612 and ANIMASHAUN VS. UCH (1996) 10 NWLR (PT. 476) PAGE 65.

The first leg of objection raised by the Respondent is hereby dismissed.

On the second objection, the Respondent’s counsel cited the provisions of Section 241(2)(c) of the 1999 Constitution of the Federal Republic of Nigeria.

For easy understanding, I have cited the provisions of Section 241(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria which provides:
“ 1. 1. An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases
a. final decisions in any civil or criminal proceedings before the Federal High Court or a High Court or a High Court sitting at first instance;
b. where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
c. decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution; Constitutional interpretation
d. decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
e. decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
f. decisions made or given by the Federal High Court or a High Court
i. where the liberty of a person or the custody of an infant is concerned,
ii. where an injunction or the appointment of a receiver is granted or refused,
iii. in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
iv. in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
v. in such other cases as may be prescribed by any law in force in Nigeria.
2. Nothing in this section shall confer any of appeal
a. from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
b. from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
c. without the leave of the Federal High Court or a High Court or of Appeal, from a decision of the Federal High Court High Court made with the consent of the parties or as to costs only.
Reading the provisions of Section 241 of the 1999 Constitution of the Federal Republic of Nigeria, it clearly states the instances when appeal shall lie as of right and when leave must be sought and obtained.

The Section 241(2)(c) of the 1999 Constitution of the Federal Republic of Nigeria which the Respondent’s counsel has based this ground of objection on simply means that leave of Court must be sought and obtained when the appeal is in respect of a consent judgment or against the award of cost ONLY.

I have looked at the Notice of Appeal and it consists of seven grounds of appeal, bothering on issues that emanated from the final judgment of the trial Court which includes the award of damages and cost of the action.

I am shocked at the objection raised by the Respondent’s counsel as it bears no correlation whatsoever with the provisions of the Constitution he has placed reliance on. Is the Respondent saying that leave should have been obtained in respect of ground five only? Is this appeal solely against the award of cost? Definitely NOT.

The purpose of a preliminary objection is to raise salient issues and defects present in the appeal that are capable of terminating the life of the appeal as a whole or part thereof. It is not an opportunity for the Respondent’s counsel to raise flimsy and baseless arguments which are unfounded in law.

The preliminary objection filed by the Respondent is hereby dismissed for lacking merit.

THE MAIN JUDGMENT
Having read and digested the respective briefs filed by counsel, I will now proceed to determine same. I have distilled two issues for determination thus:
1. Whether the tenancy between the Appellant and Respondent in respect of the property No. 40 Durban Street, Wuse II, Abuja has expired and was properly terminated after 31st May, 2010.
2. Whether the learned trial judge was right in granting the reliefs sought by the Respondent based on the evidence adduced before the trial Court.

ISSUE ONE
Whether the tenancy between the Appellant and Respondent in respect of the property No. 40 Durban Street, Wuse II, Abuja has expired and was properly terminated after 31st May, 2010. (Distilled from grounds one and two).

In this instant case, in order to thoroughly resolve this issue, it must determine whether or not the tenancy agreement between the Appellant and Respondent in respect of the property which is the subject matter of this case is still valid and subsisting or it has expired and has been terminated after 31st May, 2010.

The tenancy agreement marked as Exhibit A by the trial Court must be read holistically and no paragraph thereof shall be read in isolation so as to interpret it. The literal rule of interpretation of statutes shall be applied and the words of the agreement will be given their natural or ordinary meaning without this Court seeking to put a gloss on the words or seek to make sense of the statute.

The attention of this Court has been drawn to paragraph A, B and C of page 3 of the said Exhibit A and it reads thus:
“It is hereby agreed and declared that:
(a) The rent hereby reserved will be reviewed every ONE year at a rate to be mutually agreed by the Landlord/his agent and the tenant.
(b) If the rent reserved or any part thereof shall be unpaid for twenty one (21) days after becoming payable and formerly demanded or if any covenant on the part of the tenant herein contained shall not be performed or observed twenty one (21) days after notice to effect, or correct same have been given the tenant then in any of the said cases, it shall be lawful for the landlord at any time thereafter to re-enter upon the demised premises or part thereof in the name of the whole and thereupon this tenancy shall absolutely determine without prejudice to the right of action of the landlord in respect of any breach of the covenants on the part of the tenant herein contained.
(c) That this tenancy shall determine at the expiration of the term certain hereinbefore created by sheer effluxion of time and that no further notice shall be necessary to do so.

The Appellant’s counsel has vehemently argued that the trial judge had focused on only paragraph C above in holding that that the tenancy agreement had been terminated without making recourse to paragraph B and C.

I have read the said paragraphs A,B and C and this is my interpretation of these unambiguous paragraphs. Paragraph A clearly states that the rent of the demised premises will be reviewed every one year at a rate agreed by the parties. It has nothing to do with the termination of the lease.

Paragraph B also clearly states that failure to pay the rent within 21 days after it has fallen due and formal demand has been made, the landlord shall have the power to re-enter the premises and by this act, the tenancy agreement shall be absolutely determined. This paragraph B simply means that if the tenant (the Appellant) defaults in making payment of the rent within 21 days after it has become due and formal demand has been made by the landlord (the Respondent), the landlord shall have the right to re-enter the premises and the tenancy agreement will be absolutely terminated. This paragraph B clearly states a situation whereby the tenancy agreement can be terminated by the acts of parties.

Lastly, paragraph C simply states that the tenancy agreement shall be determined by effluxion of the term certain and no further notice shall be required to do so. To further explain this, the duration of the tenancy agreement must be considered. On the first page of the tenancy agreement Exhibit A, it is clearly stated in the operative part of the agreement thus:
In consideration of the rent herein reserved and the covenants herein contained, the Landlord hereby demises unto the tenant a Six Bedroom House with 3 Bedroom Guest Wing situated at No 40, Durban Street, Wuse II, Abuja for a term of ONE YEAR from 1st June 2009 to 31st May, 2010 paying thereof during the term an annual rent of … (Emphasis are mine).

From the above, it is clear that the tenancy agreement was for one year, between 1st June, 2009 and 31st May, 2010. By this, it is clear that by 31st May, 2010, the tenancy agreement by virtue of paragraph C automatically ends by effluxion of time.

I am surprised and disappointed to say the least that the Appellant counsel can emphatically argue that the tenancy agreement can only be determined by Paragraph B, forgetting that it can also be determined by operation of law by virtue of paragraph C. Even if the Respondent refused to exercise his powers provided under Paragraph B, the tenancy agreement stood determined and terminated by operation of law by virtue of Paragraph C. I so hold.

The learned trial judge was right when he held in his judgment on page 119 of the Records of Appeal that:
“On whether the tenancy of the Defendant evidenced by Exhibit A had determined, Exhibit A is a tenancy agreement between parties and it is trite law that parties are bound by their mutual agreement. See UBA PLC V LAWAL (2008) ALL FWLR PART 434 PAGE 1548 @ 1553 RATIO 8. The said Exhibit A evidences a tenancy which came into being on 1/6/2009 and to terminate on 31/5/2010. It also provides in Clause “C” the mode of termination of the tenancy which read,
“That this tenancy shall determine at the expiration of the term certain hereinbefore created by sheer effluxion of time and that no further notice shall be necessary to do so.”
The parties having entered the said agreement cannot resile from it. and upon a consideration of the said tenancy agreement, Exhibit A, the Court is of the firm view that the tenancy of one year certain of the tenant terminated on 31/5/2010 by effluxion of time and the Defendant now holds over and becomes a tenant at will. See the case of ODUTOLA V PAPERSACK (NIG) LTD (2007) ALL FWLR PART 350 1214 @ 1243 – 1245.

Thus, it is my firm decision that the tenancy relationship between the Appellant and the Respondent was validly determined on the 31st of May, 2010.

Issue one is hereby resolved against the Appellant.

ISSUE TWO
Whether the learned trial judge was right in granting the reliefs sought by the Respondent based on the evidence adduced before the trial Court.

Now, the next thing that must be considered is whether the trial Court was right in granting the reliefs sought by the Respondent. Did the Respondent lead credible evidence to be entitled to the grant of reliefs he sought?

Now, to determine this, the question that must be asked is: What was the status of the Appellant after the termination of the tenancy agreement on the 31st of May, 2010? The learned trial judge had on page 120 of the record of appeal held that:
“Having held over the tenancy and being a tenant at will, the mode of terminating the Defendant’s tenancy will be regulated not by their tenancy agreement anymore but by the provisions of the Recovery of Premises Act and Section 8(1)(a) provides a week’s notice to be issued to a Tenant at will.”

In this instant case, can it be said that the Appellant continued to hold over, remain in the premises of the Respondent and refused to pay rent at the “pleasure or happiness” of the Respondent? I do not think so. The presence of the Appellant in the demised premises after the 31st of May, 2010 cannot be described as that of tenancy at will. It is my firm belief that the status of Appellant has changed to that of a statutory tenant which is also known as a tenant at sufferance at common law. According to the Black’s Law Dictionary, it is defined as:
“A statutory tenant is a tenant who has been in lawful possession of property and wrongfully remains as a holdover after the tenant’s interest has expired.”
In explaining who a statutory tenant is, the Supreme Court in AFRICAN PETROLEUM VS. OWODUNNI (1991) 8 NWLR (PT.210)391 relying on its earlier decisions held that, once a contractual tenancy comes to an end by effluxion of time or otherwise and the tenant holds over, it is more correct to describe him as a statutory tenant and once there is an incidence of statutory tenancy, the tenant becomes a weekly, monthly or yearly tenant depending upon the term of the original grant. The Court further held that:
“the definition of tenant is very wide and includes all persons who occupy premises lawfully. Whether a person pays regular rent subsidized rent or indeed no rent is immaterial. The qualification of becoming a tenant under law is lawful occupation. Hence, when the initial occupation is lawful the occupier even if holding over becomes a protected tenant qua the landlord… Sometimes a statue gives security of tenure to a tenant after his contractual tenancy has expired where such a statute exists, such a tenant then holds the premises no longer as a contractual tenant because there no longer exists a contract between him and the landlord but he retains possession by virtue of the provisions of the statute and is entitled to all the benefits and is subject to all terms and conditions of the original tenancy. Such a tenant is called a statutory tenant.”
From the above definition, a statutory tenant is one who when his contractual tenancy expires holds over, continues in possession by virtue of special statutory provisions and holds the land of another contrary to the will of the other person who strongly desires to turn him out.

In order to eject a statutory tenant, the landlord must issue a 7 day Notice of owners intention to recover premises. This is a statutory notice that vests the Court with jurisdiction.

Now the pertinent question that must be asked is: After the trial judge had held on page 120 of the Records of appeal that:
“Having failed to issue these statutory notices to the Defendant, this action for recovery of premises must fail since they are a pre-condition for the success of a claim for recovery of premises.”

Was it then right for the trial judge to go ahead and grant the other reliefs sought by the Respondent? Did the trial Court have the jurisdiction to grant the other reliefs in the case?

In the case of SHITTA-BEY VS. ATTORNEY-GENERAL, FEDERATION (1998) 10 NWLR (PT. 570) PAGE 392, jurisdiction was defined as follows:
“it is the authority a Court of law has to entertain and decide a matter brought before it by litigants. It embraces every kind of judicial action be it criminal, civil and what nots. It is the power of Court to decide a matter in controversy and it presupposes the existence of a duly constituted Court with control over the subject matter and the parties.”
While the ingredients of jurisdiction exist where:
(a) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction.
(b) The Court is properly constituted as regards members and their requisite qualification and no member is disqualified for one reason or the other; and
(c) The case comes to the Court initiated by the due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. (Emphasis are mine).
See the cases of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; SKENCONSULT (NIG) LTD VS. UKEY (1981) 1 SC 6; ISHOLA VS. AJIBOYE (1994) 6 NWLR (PT. 352) PAGE 506; WESTERN STEEL WORKS LTD VS. IRON AND STEEL WORKERS UNION (1986) 3 NWLR (PT. 30) PAGE 617; ODOFIN VS. AGU (1992) 3 NWLR (PT. 229) PAGE 350.
In the recent Supreme Court case of ALIOKE VS. OYE (2018) 18 NWLR (PT. 1651) PAGE 247 AT PAGE 260 PARAS B, jurisdiction was defined per Bage, JSC as:
“The law is settled that jurisdiction as a threshold or fundamental issue that can be raised anytime during the trial of a suit up to finality.”
Also, in the Supreme Court case of PDP VS. OKOROCHA & ORS (2012) 15 NWLR (PT. 1323) PAGE 205, it was held that:
“Jurisdiction is visualized as the very basis on which any Court or tribunal tries a case. It is the lifeline of all trials. Any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of a proceeding.”

There are also different kinds of jurisdiction. There is the Original jurisdiction of Court, Appellate jurisdiction, concurrent jurisdiction, exclusive jurisdiction, limited jurisdiction, unlimited jurisdiction, subject matter jurisdiction, territorial jurisdiction amongst others.

Back to the instant case, the Respondent issued the two statutory notices: a Quit Notice and Notice of owner’s intention to recover possession before the expiration of the tenancy agreement. Upon the expiration of the tenancy agreement and the holding over of the demised premises by the Appellant, the Respondent ought to have served a valid Notice of owner’s intention to recover possession which he failed to do.
Does this divest the trial Court of the jurisdiction to grant all the reliefs sought? No. It definitely robs the trial Court of the jurisdiction to make orders as to the recovery of the premises but the trial Court still has the power and jurisdiction as to make orders for payment of rent for use and occupation and damages.
I have read the Supreme Court case of DR. MICHAEL EMUAKPOR ABEKE VS. BARRISTER A.A. ODUNSI & ANOR (2013) 2 NWLR (PT. 1370) 1 SC where it was held by Ariwoola JSC:
“There is no doubt that the Respondents were in possession and occupation of the premises lawfully and they were not given the required statutory quit notice by the previous owners who were their
landlords. Up till today they had not been given the said notice. As a result they are not liable to pay mesne profits to the Appellant. In other words, the Appellant is not entitled to mesne profits. What the Appellant is entitled to, at best, is damages for the use and occupation of the property, which will ordinarily be the rent being paid to the previous owners up to the time the appellant purchased the said property and until possession of same is finally delivered by the Respondents…”
In this case, the requisite statutory notices were not issued to the Respondents which were the tenants. Even if the Court could not make orders as to the recovery of possession, it could definitely make orders as to payment of rent for use and occupation of the premises.
In the Supreme Court case of ADEBAJO VS. TENNESSEE NIG LTD (1974) 1 ALL NLR 24 it was held per Elias, JSC thus:
“Where a tenant holds over after the expiration of lease he is liable to the landlord an amount adjudged by the Court to be due for the use and occupation of the premises concerned.” Now According to Wharton’s Law Lexicon (14th Edition) at p. 652, the differences between mesne profit and damages for use and occupation were explained thus:
“Mesne profits” are the rents and profits which a trespasser has or might have received or made during his occupation of the premises, and which therefore he must pay over to the true owner as compensation for the tort which he has committed. A claim for rent is therefore liquidated, while a claim for mesne profit is always unliquidated. It follows therefore that a claim for mesne profit is inappropriate when the occupier is still a tenant. It can only be maintained when his tenancy has been duly determined and he becomes a trespasser. In this respect, a statutory tenant such as the defendant, though merely a protected tenant cannot properly be adjudged to be liable for mesne profit unless and until his tenancy has been duly determined according to law. On the other hand, where a tenant who entered upon a premises lawfully occupies the land or premises of another without an agreement with or consent by the true owner, what he has to pay is not rent, because as there is no longer a demise, he no longer has an estate, he will not pay mesne profit because he is not a trespasser. Rather, he will be liable for damages for his use and occupation of the land or premises. The action arises out of an implied agreement to pay out of what may be called a quasi – tenancy rather than a relationship between a landlord and a tenant (see Woodfall: On Landlord and Tenant (21st Edition) p.666. See also Rochester (Dean and Chapter v. Pierce) (1808) 1 Camp 466. So, the defendant would be liable for damages for use and occupation. He could not be liable for mesne profits because the element of wrongful and tortuous occupation was absent.”
From the above, it appears that a landlord of a statutory tenant can successfully sustain a claim for damages for use and occupation of the property from such a tenant.

Thus, I totally agree with the reasoning of the learned trial judge for awarding the sum of N22,000,000 against the Appellant for its use and occupation of the property from 1st June, 2010 to 31st May, 2014 at (N5,500,000) per annum as agreed by both parties before the Appellant defaulted in paying same even though cheques were issued and the sum of N5,041,666 for the use and occupation by the Defendant from 1st June, 2014 to April, 30th 2015. I hereby affirm the orders made by the trial judge.

The Appellant’s counsel in his brief of argument has also raised eyebrows to the award of the sum of N500,000 as general damages against the Appellant, regarding same as double compensation.

Without much ado, in the case of N.N.B PLC VS. DENCLAG (2005) 4 NWLR (PT. 916) 549, it was held that it is within the discretion of a trial Court to decide what amount it should award as general damages having regard to the circumstances of the case.
Also, in the case of DR. MICHAEL EMUAKPOR ABEKE VS. BARRISTER A.A. ODUNSI & ANOR (2013) 2 NWLR (PT. 1370) 1 SC, it was held that:
“It is the duty of the Court to ascertain an amount which may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant.”

On the issue of whether the trial judge was right in awarding pre judgment interest, counting from the 31st of May, 2010, it is trite law that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest but also the basis of the entitlement either by statute or agreement between the parties or by mercantile custom or under principle of equity; per Galinje, JCA (as he then was) in DANTAMA VS. UNITY BANK PLC (2015) LPELR-24448(CA). See also MONIER CONSTRUCTION COMPANY NIGERIA LTD VS. E. AGBEJURE ENTERPRISES LTD (2013) LPELR-21167(CA).

I have gone through the records of appeal and I do not see where the Respondent pleaded his entitlement to the pre- judgment interest and the basis of the entitlement. I hereby order the payment of 10% interest on all sums awarded from the 19th of July, 2016 when the judgment of the trial Court was delivered until liquidated.

This appeal succeeds only in part. The declaratory reliefs granted by the learned trial judge regarding the validity and/or termination of the tenancy of the Appellant are hereby set aside. All the other orders made are hereby affirmed, except relief (6) which is also hereby set aside.

Parties are to bear their respective costs.

PETER OLABISI IGE, J.C.A.: I agree.

EMMANUEL AKOMAYE AGIM, J.C.A.:(DISSENTING JUDGMENT) I had a preview of the judgment just delivered by my Learned brother, Lord Justice Mohmmed Baba Idris, JCA. With the greatest respects for my Learned brother I hold a different view on this matter.

The Respondent as Plaintiff by his pleading and evidence showed that the Appellant’s tenancy in the Respondent’s property at No. 40 Durban Street Wuse II, Abuja, was renewed for another 10 years term from 1-6-2010 at the rent of N5,500,000.00 per year, which rent was paid in advance for the first 5 years to the Respondent.

Paragraphs 10 to 15 of the Respondent’s statement of claim state thusly:
“10. Plaintiff avers that notwithstanding the Notices to Quit served on Defendant, it refused to vacate the premises upon the expiration prompting Plaintiff to obtain from his Lawyer and issued Notice of Owner’s Intention to recover possession. The said Seven days Notice is hereby pleaded and Defendant is hereby given Notice to produce its own copy.
11. Plaintiff avers that it was after all these notices were served on the Defendant, that the Defendant further offered to pay N5,500,000.00 annually and sent cheques to Plaintiff through his agent, Top West Property Ltd vide a letter dated the 2nd of July, 2010 for five years and which letter is hereby pleaded. Notice is given to Defendant’ to produce its own copy.
12. Plaintiff however rejected the cheques but requested that the money be paid to him by cash or bank transfer to ensure that the monies are available. This fact is also confirmed by an affidavit sworn to by Top West Properties Ltd wherein it admitted that Plaintiff upon return from a foreign trip refused to collect the cheques. A copy of the said affidavit sworn to by Top West Properties Ltd in a previous proceeding before Hon Justice Valentine Ashe which was withdrawn when defendant pleaded and gave assurances to plaintiff that It will pay the money In a week’s time is hereby pleaded.
13. Plaintiff further avers that the cheques issued by Defendant were crossed cheques and therefore account payee only and that he never accepted these cheques, did not present nor cashed them and therefore has not in any manner received even the said N5,500,000.00 that Defendant purportedly offered to pay.
14. The Defendant took the cheques back and since then has refused to pay Plaintiff the rent of N5,500,000.00 it offered to pay since the 1st of June 2010 or vacate the premises but rather remain in possession and occupation of the property uptill now.
15. The Plaintiff further avers that there is no tenancy renewal between the Plaintiff and Defendant after the expiration of defendant’s tenancy on 31 May, 2010 since defendant has refused to pay rent and renew the tenancy.”
The Respondent in his testimony as DW1 in examination in chief contained in paragraphs 11 to 16 of his witness statement on oath stated thusly-
“11. That notwithstanding the Notices to Quit served on Defendant, it refused to vacate the premises upon the expiration prompting me to obtain from my Lawyer and issued Notice of Owner’s Intention to recover possession. The said Seven days Notice is hereby pleaded and defendant is hereby given Notice to produce its own copy.
12. That I know as a fact that it was after all these notices were served on the Defendant, that the Defendant further offered to pay N5,500,000.00 annually and sent cheques through my then agent, Top West Property Ltd vide a letter dated the 2nd of JuIy, 2010 for five years.
13. That I however rejected the cheques but requested that the money be paid to me by cash or bank transfer to ensure that the monies are available. That this fact is also confirmed by an affidavit sworn to by Top West properties Ltd wherein it admitted that upon return from a foreign trip I, refused to collect the cheques.
14. I know that the cheques issued by Defendant being crossed cheques is account payee only and that I never accepted these cheques, did not present nor cashed them and therefore has not in any manner been paid even the said N5,5000,000.00 that Defendant purportedly offered to pay.
15. That the Defendant took the cheques back and since then has refused to pay Plaintiff the rent of N5,500,000.00 it offered to pay since the 1 of June 2010 or vacate the premises but rather remain in possession and occupation of the property up till now.
16. I know that there is no tenancy renewal between Defendant and myself after the expiration of Defendant’s tenancy on 31st May, 2010 since Defendant has refused to pay rent and renew the tenancy.”

The Appellant as Defendant averred in paragraphs 6 to 15 of its statement of defence that-

“6. The Defendant deny paragraph 8 of the Plaintiff’s statement of claim and further state that further negotiation was reached by the Plaintiff and the Defendant that the Defendant should pay N5,500,000.00 (Five Million Five Hundred Thousand Naira) per annum which the Defendant made Drafts and Cheques representing the agreed sum totaling N27,500,000.00 (Twenty-Seven Million Five Hundred Thousand naira) which the Plaintiff collected through his agent and further N2,062,500.00 (Two Million, sixty-Two Thousand Five Hundred Naira) which was also collected by the Plaintiff through his agent. Copy of the said letter is dated 2nd July, 2010 and the copies of the drafts and cheques are hereby annexed and mark as annexure ‘A and Al — 10 and shall be rely upon at trials.
7. Further to paragraph 6 above the Defendant avers that the purported quit notice canvass by the Plaintiff was over taken by events as a result of further negotiation between the Plaintiff and the Defendant and collection of the agreed sum of money paid by drafts and cheques by the Defendant to the Plaintiff.
8. The Defendant admit paragraph 9 of the Plaintiff’s statement of claim but further avers that the said quit notice was over taken by event as a result of further negotiation and collection of tenancy fee by the Plaintiff.
9. The Defendant deny paragraph 10 of the Plaintiff’s statement of claim and avers that he cannot vacate the said premises while the tenancy is still on and any of notice of owner’s intention purported to be served on him cannot stand.
10. The Defendant admit paragraph 11 of the Plaintiff’s statement of claim as true.
11. The Defendant deny paragraph 12 of the Plaintiff’s statement of claim and put the Plaintiff to strictest proof therefore and further state that part of the payment made to the Plaintiff were drafts which ensure that the money was available while others were cheques.
12. The Defendant deny paragraph 13 of the Plaintiff’s statement of claim and further state that part of the payment made to the Plaintiff were drafts which ensure that the money was available while others were cheques which was collected by the plaintiff through his agent.
13. The Defendant deny paragraph 14 of the Plaintiff’s statement of claim and further state that he did not take back the said draft and cheques from the Plaintiff neither does he have a N5,500,000.00 to pay to the Plaintiff after the payment for the said rent to the sum of N27,500,000.00 paid and agency fee of N2,062,500.00 to the Plaintiff.
14. The Defendant further state that by the affidavit of the Plaintiff agent, Top-West Properties Limited as pleaded by the Plaintiff in paragraph 12 of the Plaintiff’s statement of claim the said agent admitted in paragraphs 8, 11, 12, 13, 14, 16, 17, 18, 19 and 20 of the said affidavit that the Defendant has renewed his rent and whatsoever the misunderstanding between the Plaintiff and his agent has nothing to do with the Defendant. More so the Plaintiff’s agent admitted the collection of the said drafts and cheques and there is nowhere in the said affidavit that the agent returned the said drafts and cheques to the Defendant.
15. The Defendant deny paragraph 15 of the Plaintiff’s statement of claim and avers that he was a sitting tenant before the said tenancy agreement and after the tenancy agreement and the money paid by the Defendant to the Plaintiff was not for one year rent but 10 years divided into two stages of five years each.” DW1, Managing Director of the Appellant testified in examination in chief in paragraphs 6 to 15 of his witness statement on oath restating the facts in the above quoted paragraphs of the appellant’s statement of defence.

The Respondent as PW1 tendered in evidence as exhibit H, the letter and copies of the Zenith Bank Cheques his agent, Top West Properties Ltd received from the appellant. The letter is dated 2-7-2010 and forwarded the Zenith Bank Plc cheques for the 5 years rents, agency and legal fees to the respondent’s agent. The letter reads thusly:
“Sequel to our several meeting and telephone conversation between your good self and our representative on the above property.
Please find attached our Zenith Bank Plc Cheques payments for the sum of N27,500,000.00 (Twenty Seven Million Five Hundred Thousand Naira Only) for the period of the first five (5) years as agreed in the (1.0) years lease agreement as follows:
Number Amount Date
1. Managers cheque 02382 5,000,000 11/06/10
2. Managers cheque 02403 5,000,000 16/06/10
3. Cheque 0..55 5,000,000 13/07/10
4. Cheque 0..66. 5,000,000 13/08/10

5. Cheque 0.67.. 5,000,000 30/09/10
6. Cheque 0168 2,500,000 30/09/10
Further to the above, also find attached our Zenith Bank Plc Cheques for payments of N2,062,500 (Two Million and Sixty Two Thousand Five Hundred Only)representing 7.5% for agency and legal fees of the total value of the rent payment for the five (5) years period as follows:
1. Managers cheque 02386 375,000 11/06110
2. Managers cheque 02404 375,000 16/06/10
3. Cheque 0169 375,000 13/07/10
4. Cheque 0170 937,500 13/07/10

The Appellant also tendered the said letter and copies of the said Zenith Bank cheques as Exhibits J1 — 12.

The Appellant in his pleading and evidence denied that the Zenith Bank cheques received by the Respondent’s agent Top West Properties were returned to it. His Managing Director testified that the cheques were not returned and that they were cashed by the agent of the Respondent. it is noteworthy that the agent of the Respondent signed and dated the endorsement and return copies of Exhibit H and the Zenith Bank cheques delivered to it acknowledging receipt of all the said documents. This fact is glaring from the face of each of these documents. It is also noteworthy that the agent of the Respondent did not testify to challenge or contradict the testimony of DW1 that the cheques Top West Properties Ltd received on behalf of the Respondent has not been returned to the appellant and have been cashed by it. The Respondent as PW1, testified under cross examination that he made a criminal complaint against his said agent to the police for collecting monies on his behalf without his permission, for non disclosure of the amount and not showing him the cheques and that his agent even sued him and the IGP to Court and lost the case.

The Respondent by his pleading and evidence established that he renewed the Appellant’s tenancy for 10 years, that the Appellant paid the bulk rents for the first 5years to his client by Zenith Bank cheques, but that he rejected the payment by means of the said cross cheques and requested that the rent be paid to him by cash or bank transfers. As I had held herein there is no evidence that the cheques were returned by his agent to the Appellant.

The Respondent having accepted that the Respondent did pay him the 5 years rent through its agent by Zenith Bank cheques, the legal burden rests on it to prove its assertion that it rejected the payment by cheques and returned the cheques to the respondent. It failed to discharge this burden.

It is glaring from the express terms of the judgment of the trial Court that it did not properly direct itself to the central issue in controversy between the parties on their pleadings. It correctly stated the case presented by each side. Thusly- “The case of the Plaintiff is that he entered into a fixed one year tenancy with the Defendant in respect of the said property on 1/6/2009 which expired on 31/5/2010 by effuxion of time without any requirement for any notice. His Agent Topewest properties Ltd made an offer to the Defendant to renew the tenancy at an annual rate of N6,000,000, but the Defendant made a counter offer of N5,000,000, which Plaintiff’s agent rejected and insisted on his offer of N6,000,000. He thereafter caused a Notice to quit to be issued to the Defendant on 20/10/09 when the Defendant failed to pay the N6,000,000. The Defendant refused to vacate the premises despite service on him of the Notice to quit. The Defendant thereafter further offered a cheque of N5,500,000 though the Plaintiff’s agent, which the Plaintiff rejected, but requested that Defendant pay him cash or bank transfer to ensure that the monies are available. The Defendant took the cheque back and since then has refused to pay to the Plaintiff the rent of N5,500,000 which it offered to pay since 1/6/2010 or vacate the premises and has not renewed the tenancy.

It is the evidence and submission of the Plaintiff that he made an offer through his agent Topwest Properties Ltd to the Defendant for a lease of 10 years after the expiration of the tenancy of the Defendant vide Exhibit “B” and rather than accepting the said offer Defendant made a Counter offer as evidenced by Exhibit “C”, which was rejected by the Plaintiff’s letter admitted as Exhibit “D”, which also contains a new offer on the lease submits that Defendant could not establish evidence if the 10 years lease, that the draft and cheque given to the agent were all crossed and means account payee only. The Defendant has also not show evidence that they were indeed cashed.”

The trial Court state the case of the Appellant thusly- “The Defendant joined issues with the Plaintiff by filling Statement of Defence wherein she averred that she was in occupation of the demised property before 1st June, 2009, but only renewed the tenancy agreement on the said date, that both parties reached an agreement upon further negotiation that the Defendant should pay the sum of 5,500,000 (Five Million, Five Hundred Naira) per annum wherein the Defendant made Drafts and Cheques representing the agreed sum totaling 27,500,000.00 (Twenty Seven Million Five Hundred Thousand Naira) wherein the Plaintiff collected through his agent and further N2,062,500 (Two Million, Sixty Two Thousand Five Hundred Naira) which was also collected by the Plaintiff through his agent. That the Notice to Quit Issued by the Plaintiff was overtaken by event as a result of the said negotiation between the Plaintiff and Defendant that the Defendant was a sitting tenant before the said tenancy agreement and after the tenancy agreement and the money paid by the Defendant to the Plaintiff was not for one year rent but 10 years divided into two stages of Five years each.”

It is obvious form its own finding on the case presented by each side that the central issue in controversy was whether the Zenith Bank cheques paid to the agent of the Respondent were returned to the Appellant. The trial Court failed to determine this issue even after identifying it in its finding of the case stated by either side.

This issue was the central and fundamental issue upon which the determination of the entire case depended. The issue arising for determination from the case of both sides is not whether the tenancy agreement was renewed for 10 years at the annual rent of N5,500,000.00 and is not whether the said 5 years rent was paid. By the Respondent’s own showing in his pleading and evidence he had no quarrel with the fact of the said payment. His only quarrel is with the mode of payment by cheque. He stated that he preferred payment by cash or transfer and that is why he rejected the cheques. By stating that he preferred the payment to have been made to him by cash or transfer and not by cheque, it is clear that he was not contending that the tenancy had not been renewed and that he had accepted the annual rent of N5,500,000.00. Rather the issue was whether the agent of the Respondent did return the Zenith Bank cheques to the Appellant. It is glaring that there is no evidence of such return. If the trial Court had determined this Issue of whether the agent of the respondent returned the Zenith Bank cheques to the Appellant, it would have found that the Respondent did not prove that the cheques were returned to the appellant and therefore would not have concerned itself with determining the wrong and irrelevant question of whether a contract for the renewal of the tenancy was made.

As it is its decision that the negotiation for the renewal of the tenancy broke down and no contract for such renewal was made is wrong as it is not supported by even the Respondent’s pleading and evidence.

It is clear from the pleading and evidence of both sides and from the case of both sides as stated by the trial Court that the tenancy was renewed for a term of 10 years, that the Appellant was obliged to pay the first 5 years rent in bulk and in advance, that the Respondent rejected the mode of paying the said 5 years rent by cheque as he preferred it by cash and transfers, that the cheques by which the five years rent was paid was not returned by the Respondent’s agent to the appellant.

Therefore the 10 years tenancy subsisted. The first five years period paid started from 1-6-2010 and ended on 30-5-2015. The 10 years tenancy continues after 30-5-2015 provided that the Appellant pays the renewed rent at the rate agreed between the parties. The DW1 testified that the Appellant has not paid the next five years rent from 1-6-2015 to 30-5-2020 because of the present case.

It is obvious from the evidence that the Respondent has problems with its agent, Top West Properties Ltd over rents collected by his agent on his behalf, which has occasioned the making of a criminal complaint by the respondent against the said agent. The Respondent cannot rely on the inability or failure of his agent to discharge the agency obligation to him as the principal to deny the Appellant his right as a tenant under the renewed lease. If Top West Properties Ltd had held on to the Zenith Bank Ltd cheques by which the five years rents were paid by the Appellant, and has not paid it over to its principal or returned same to the Appellant, that cannot affect the existence of the renewed tenancy. The Respondent should recover his rents from his agent and not try to push the burden of the domestic problem with his agent on the tenant. The Respondent has always presented Top West Properties Ltd as its agent. It is clear from the face of exhibit A, the tenancy agreement, that the Respondent and Top West Properties were jointly described as Landlord and Top West Properties Ltd executed the agreement as Landlord and received previous rents on behalf of the Respondent and corresponded on his behalf concerning the tenancy with the Appellant. It is therefore bound by the acts and omissions of Top West Properties Ltd in Line with the trite principle of law that he who acts by another acts by himself (qui facit per alium facit perse). It is obvious that owing to the Respondent’s differences with his agent over the rents received on his behalf, the appellant has not paid the rents for the remaining five years of the 10 years lease term. It is therefore liable to pay the said rent at the same rate as the first five years in the absence of any agreement to the contrary. But the Respondent did not claim for these rents in the suit at the trial Court. The reliefs it claimed for are as follows

i. A declaration that the tenancy of Defendant with the Plaintiff in the property No. 40 Durban street 1 Wuse 2, Abuja has expired and was properly terminated after 31st May, 2010.
ii. A declaration that there is no further tenancy renewed between the Defendant and Plaintiff, the Defendant having failed to pay rent to the Plaintiff for any renewal after 31st May, 2010.
iii. An order of this Honourable Court directing the Defendant to yield up possession and vacate the property forthwith.
iv. Twenty Two Million Naira (N22,000,000.00) against the Defendant for its use and occupation of the property from 1st June, 2010 to 31st of May, 2014.
v. The sum of Five Million, forty one thousand, six hundred and sixty six naira (N5,041,666) for the use and occupation by the Defendant from 1st June, 2014 to 30th April, 2015.
vi. The sum of Four Hundred and Fifty Eight Thousand, three hundred and thirty three naira (N458,333.00) monthly from 1st May, 2015 until possession is given to the Plaintiff.
vii. General damages of N5,000,000.00.
viii. 10% interest on all the sums awarded from the 31st of May, 2010 until liquidated.
ix. The cost of this action.” These reliefs are not supported by the pleadings and evidence of the Respondent and the weight of the entire evidence in the case. They cannot be granted in the light of the pleadings and evidence in the case. The Respondent failed to prove its case. The claim ought to have been dismissed entirely. The trial Court was wrong to have held that the Plaintiff’s case succeeded.

All the reliefs it granted the Respondent are hereby set aside. The Plaintiff’s claim fails and is hereby dismissed.

The Respondent shall pay costs of N400,000.00 to the Appellant.

Appearances:

O. Ofikwu, Esq. For Appellant(s)

U. Igwe, Esq. For Respondent(s)