SPLINTERS NIGERIA LIMITED & ANOR v. OASIS FINANCE LIMITED
(2013)LCN/6188(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2013
CA/L/211/09
RATIO
WHETHER A STATEMENT OF CLAIM OR DEFENCE WITH NO SUPPORTING EVINCE IS DEEMED AN ABANDONMENT OF AVERMENTS
It has long been settled that a statement of claim/defence by a party with no evidence in its support amounts to abandonment of the averments contained therein and a trial court has no business considering those averments. Yakor v Governor of Plateau State & 2 Ors (1997) 4 NWLR (Pt 498) 216 @ 229-230; Obo v Commissioner for Education Bendel State (7993) 2 NWLR (Pt. 273) 46 @ 67 F-G; Woluchem v Gudi (7987) 5 SC 297; Ugochukwu v Unipetrol (2000) 7 NWLR (Pt.765) 1. PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
1. SPLINTERS NIGERIA LIMITED
2. THE OCCUPIERS OF PLOT B IDEJO TOWERS Appellant(s)
AND
OASIS FINANCE LIMITED Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Ojikutu Oshode J. of the High Court of Lagos State, in Suit No. LD/490/2004 delivered on 21st day of September 2008 granting the Respondent possession and mesne profits at the rate of N5,145,000.00 (Five million, one hundred and forty-five thousand naira) per annum from 31st December 2005 until possession is given up.
The facts that led to the institution of the suit at the lower court as deduced from the Claimant/Respondent’s amended statement of claim are as follows:
The Respondent sometime in 1991 leased the parcel of land known as Plot ‘B’ Idejo Towers (henceforth referred to as the Premises) from the Lagos State Development and Property Corporation for a term of fifty years only. Thereafter, the Respondent took possession and did piling work on the premises with a view to erecting a high-rise building of over 10 floors thereon. After completion of the piling work, but before commencement of the building in September 1999 the Respondent noticed some persons trespassing on the premises. After several correspondences between the Respondent and the trespasser, the Respondent was prevailed upon to lease the vacant premises to the trespasser, the 1st Appellant. By a deed of sub-lease, the Respondent herein subleased the Premises to the 1st Appellant for a term of two years certain from January 1, 2000 till December 31, 2001 at the yearly rent of N650,000.00 (Six hundred and fifty thousand Naira) per annum. The 1st Appellant thereafter let the 2nd Appellant into possession. The sublease was renewed for another period of one year to expire on 31st December, 2002, and subsequently for another period of one year from January 1, 2003 till December 31, 2003. Before the expiry of this last term on the 31st day of December 2003, the Respondent, not desirous of renewing the sub-lease caused their solicitors to issue and serve on the 1st Appellant the relevant statutory notices to quit. When the Appellant refused to vacate the premises at the determination of the sub-lease, the Respondent as claimant then issued a writ of Summons on the Appellants as defendants claiming possession for personal use and mesne profits at the rate of N650,000.00 per annum. The Defendants/Appellants were served on 23rd November 2004. They filed and served their Statement of Defence on 15th March 2005.
The Claimant/Respondent thereafter amended their Statement of Claim pursuant to the Order of Court dated 12th September 2006. They now claimed mesne profit at the rate of N5,145,000.00 per annum as the current rentable value of the premises. The Defendants/Appellants did not amend their statement of defence despite taking several adjournments for the purpose. Trial commenced in the suit on 31st October, 2006 with the examination in chief of the Claimant’s 1st witness. 19 documents were tendered through him, At the close of examination-in-chief of C.W.1 the court adjourned till 5th and 6th December, 2006 for cross examination at the instance of the Defendants’ Counsel who indicated his intention to amend their Statement of Defence. Despite many adjournments all at the instance of the Defendants, they still failed to amend their statement of defence or attend court to cross-examine CW1. Finally, on the 14th of February, 2007 when the matter again came up for continuation of hearing, the Defendants’ Counsel was not present in court. After the submissions of the Claimant’s Counsel, the court gave a considered ruling foreclosing the Defendants from cross-examining C.W.1. Just after the ruling was delivered, the Defendants’ Counsel entered the court room and applied that C.W.1 be recalled. The Claimant’s Counsel not objecting, the court obliged him and recalled C.W.1. The Defendants’ Counsel then cross-examined C.W.1. The Claimant’s 2nd witness, C.W.2, was also examined in chief, cross examined and re-examined by the Claimant’s Counsel. The matter was then adjourned to 21st March 2007 for continuation of trial. The case again suffered several adjournments all at the instance of the Defendants. Again finally, the court on the 2nd of May, 2007 heard submissions of the Claimant’s Counsel and allowed the Claimant lead their last witness, C.W.3. Thereafter the matter was adjourned to 23rd May 2007 to enable the Defendants’ Counsel cross examined C.W.3 and open their case, but the Defendants’ Counsel after several adjournments did not appear and did not file any motion to amend their statement of Defence. On the 30th of January, 2008 the Defendants’ counsel attended court and cross-examined C.W.3. The Claimant then closed its case. The Defendants’ Counsel again asked for an adjournment to amend their Statement of Defence and open their defence. The Court granted them seven days to file whatever papers they wished to file and adjourned the matter to the 19th and 26th March, 2008 for the Defendant to open their defence. The court did not sit on both dates due to public holidays and the matter was adjourned to 8th of April, 2008. The Claimants Counsel wrote to the Defendants counsel informing him of the new adjourned date. The Claimant’s Counsel was in court on 8th of April, 2008, but the Defendants and their Counsel were again absent from court. On the application of the Claimant’s Counsel the court in the exercise of its powers under Order 30 Rule 2 of the High Court Rules closed the case of the defence. Final written addresses were ordered to be filed in accordance with the provisions of the Rules. The matter was thereafter adjourned to 16th June, 2008 for adoption of final written Addresses. On that 16th June, 2008, H. M. Sambo Esq appeared for the Defendants (holding the brief of Mr. Tokunbo Ayanniyi). The Claimant’s Counsel adopted his final written address without any objection from the Defendants Counsel as shown in the record of Appeal page 278. Judgment was reserved to 30/10/2008. The court did not sit on 30/10/08. On 21st November 2008, the day judgment was to be delivered, the Defendant/Appellants’ Counsel attended and informed the Court, that they filed an application seeking leave re-open their defence. The Claimant/Respondent had filed a counter-affidavit in opposition. The Court heard the parties on the application and gave a considered ruling dismissing it. The Court thereafter ordered the Claimant/Respondent to re-adopt its final Written Address as the three months within which judgment should have been delivered had lapsed. The Defendants/Appellants Counsel raised no objection.
The Court thereupon delivered judgment granting the Claimant possession and mesne profits at the rate of N5,145,000.00 (Five million, one hundred and forty-five thousand naira) per annum from 31st December 2005 until possession is given up.
The Defendants being aggrieved by the judgment filed a notice of appeal in this Court with five major grounds of appeal and two omnibus grounds. In accordance with the rules of the Court, the parties filed and exchanged briefs of argument. Out of the grounds of appeal, the Appellants distilled four issues for determination as follows:
1. Whether there was valid service of statutory notices on the Defendants?
2. Whether the refusal of the lower Court to allow the Defendants’ Counsel to address the Court before delivering Judgment is correct in law?
3. Whether the learned trial Judge was right in striking out the Statement of Defence of the Defendants?
4. Whether the continued receipt of payment of rent up till 2008 does not invalidate the statutory notices in 2004?
The Respondent filed a notice of preliminary objection which was argued in his brief. The appeal was heard on the 27th day of February 2013, during which the Respondent’s counsel called the Court’s attention to his preliminary objection argued in his brief and the parties thereafter adopted their respective briefs.
PRELIMINARY OBJECTION:
In the Notice of Preliminary Objection, learned Counsel for the Respondent prayed that grounds I, II, III, IV and V of the Notice of Appeal be struck out for being incompetent. Counsel also prayed that the issues/arguments formulated thereon be struck out because ground I is not a complaint against the decision of the lower Court and is also bad for falsity; ground II is unwieldy and argumentative; ground III, is bad for falsity and that grounds IV & V are repetitive. Learned Counsel then took up the grounds seriatim and on grounds I & III submitted that they are bad for falsity as the particulars which explains the grounds further, are non-existent, false and do not have factual basis. Learned Counsel submitted that nowhere in the pleadings filed in the Court below, the evidence led at trial, nor in the entire record of appeal, did the Claimant/Respondent by their own admission concede that Defendant/Appellants had paid rent up till 2007, or up to 2008 as stated by the Defendant/Appellants in the grounds. Counsel submitted that the evidence of whether rent was paid up till 2007 or 2008 was never given by any witness in the Court below and that the factual reality was that counsel to the Defendant/Appellants paid rent till 2006, Counsel referred to the judgment of the lower court at page 296 of the record of appeal wherein the Court held that the Defendant/Appellants had paid mesne profit till 2006. He urged the Court to hold that the ground of appeal is bad for falsity and to strike it out. Still on ground I, counsel submitted that the ground is not a complaint against the decision of the lower court. He argued that the evidence of whether rent was paid up till 2007 or 2008 was never given by any witness in the Court below; it was never canvassed at the lower Court and did not arise from the decision of the lower Court. It cannot therefore form the basis of an appeal. Counsel relying on FBN Plc v. TSA Ind. Ltd (2010) 15 NWLR (Pt 1216) 247 at 299 A-C, submitted that an appeal is not a new action but a continuation of the matter which is the subject of the appeal. The complaint must therefore be relevant to the decision appealed against. Counsel submitted that the particulars of ground I and issue 4 distilled there from (whether the continued receipt of rent up till 2008 does not invalidate the statutory notices of 2004) raise fresh points not canvassed in the lower court or pronounced upon in the judgment. Counsel argued that leave of the Court was necessary to raise such fresh point. He cited and relied on the following cases. Olalomi Industries Ltd v. NIDB Ltd (2009) 16 NWLR (Pt.1167) 266 at 286; Olalomi Industries Ltd v. NIDB Ltd Supra; Ezukwu v Ukachukwu (2004) 17 NWLR (Pt.902) 227; Attorney-General of Oyo State v. Fairlakes Hotel Ltd. (No.2) (1988) 5 NWLR (Pt 92) 1, 29. Counsel urged the court to strike out ground I in the notice of appeal as being incompetent for not being a complaint against the decision of the lower Court and also for being bad on grounds of falsity.
Counsel referred to particular (a) of ground III in the notice of appeal:
“That learned trial judge had earlier read a ruling dismissing the Defendant’s Counsel’s application to re-open his Defence which the Court had earlier closed. However, when she asked the Claimant’s Counsel to re-adopt his final address the Defendant’s Counsel made a passionate appeal to the judge to enable him address court but the learned judge refused.”
and submitted that the factual basis for the above ground is false and nonexistent and that the Defendant/Appellant’s counsel never asked or even made a passionate appeal to the judge to address the Court. He referred to pages 278, 288 & 289 of the record of appeal and submitted that there was no such “passionate appeal” to address the Court and no refusal by the lower Court.
Counsel urged the Court to hold that the facts as stated in the particulars of ground III are false; that the ground is bad for falsity, and to strike it out.
Learned Counsel submitted that ground II, is argumentative. Counsel referred to Order 6 Rule 2 (3) of the Court of Appeal Rules 2007 and the cases of Anie v. Ugagbe (1995) 6 NWLR (Pt 402) 405 at 432 E; Adronmu v. Olowu (2000) 4 NWLR (Pt.652) 253 S.C. See Ezewusim v. Okoro (2003) 5 NWLR (Pt 294) 478 at 493; Udo v. CSNC (2001) 14 NWLR (Pt 732) 116 at 149 B-C CBN v. Okogie (2002) 8 NWLR (Pt.768) 48 and urged the Court to strike out the second ground of appeal as being unwieldy and argumentative.
Counsel submitted that grounds IV and V are repetitive and that a look at the two grounds of appeal would easily reveal that both grounds are hinged on the ‘failure’ of the lower court to consider the Defendant/Appellant’s Statement of Defence, and that a single ground would suffice.
From page 2 to the beginning of page 4 of the Appellants Reply brief, learned counsel responded to the arguments on the preliminary objection, Instead of setting out his arguments in his brief, I shall refer to them in the course of the resolution of the preliminary objection as the need arises. I shall first set out the particular ground and its particulars followed by a consideration of the arguments of counsel.
Ground I
1. The learned trial judge erred in law when she held that the statutory notices served on the Defendants are valid.
PARTICULARS:
a. The Claimants by their own admission conceded that the Defendants had paid rent up till 2007 (even though it is up to 2008) and as such, notices issued in 2004 cannot be valid.
b. The receipt of rent subsequent to the issuance and the service of the notices nullify the statutory notices and creates a fresh tenancy.
GROUND III
III. The learned trial Judge erred in law in refusing to allow the Defendant’s Counsel address the Court after calling on the Claimant’s Counsel to readopt his final address
Particulars
a. The learned trial judge had earlier read a ruling dismissing the Defendant’s Counsel’s application to-reopen his Defence which the Court had earlier closed. However, when she asked the Claimant’s Counsel to re-adopt his final address the Defendant’s Counsel made a passionate appeal to the judge to enable him address the court but the learned judge refused.
b. The learned trial judge failed to appreciate the fact that the Defendant’s Counsel is entitled to rest his case on that of Claimants and address the Court.
c. The Defendant not having called any evidence (since the court has closed their Defence) the Claimant’s Counsel would still have to address the court before the Defence Counsel and as such the Defence Counsel should have been given an opportunity to address the Court before the Court delivered its judgment.
In his reply brief, the Appellants’ Counsel contended that the grounds of appeal can stand alone without their particulars. He further argued that even if particular (a) of ground 1 above is struck out, the ground of appeal can still be sustained by particular (b). The appellants’ view that a ground of appeal can stand alone without its particulars with respect does not represent the law. In Orakosim v. Menkiti (2001) 9 NWLR (Pt.719) 529 @ 538 or (2001) LPELR-2752(SC), where Counsel urged the Court to disregard some of the particulars of the ground of appeal in order to save the ground, the Supreme Court observed:
“In determining the nature of a ground of appeal the ground and its particulars must be read together. For it is only by reading the ground as a whole that it can be determined what the appellant is complaining about in the judgment. The body of the ground is not to be considered in isolation of its particulars.”See also Ikem v Ezianya (2002) 4 NWLR (Pt.757) 245. Ground 1 must therefore be read together with its particulars in order to determine its competence. It is further trite as submitted by Respondent’s Counsel that a ground of appeal which purports to raise and attack an issue not decided by the judgment is incompetent. Thus where the factual basis for attacking a judgment is false or non-existent, the ground of appeal based on the fictitious or misleading premise is incompetent. M.B.N, Plc v Nwobodo (2005) 14 NWLR (Pt.945) 379 or (2005) LPELR-7860 (SC); Alakija v Abdullai (1998) 6 NWLR (Pt.552) 1 @ 16; Ikem v Ezianya (2002) 4 NWLR (Pt.757) 245 @ 261 F, Another relevant principle of law here is that a court can not go outside the record of appeal for the purpose of the determination of an appeal as the court is bound by the record of appeal. See Albasma (Nig) Ltd v. Salami (1998) 4 NWLR (Pt. 46) 48; Pan African Bank v Ede (1998) 7 NWLR (Pt.558) 422@ 432 D.The Appellant in his reply brief conceded that the evidence that rent was paid up till 2007 or 2008 was not given by any witness in the Court below and was therefore not a factual reality. He claimed it was a typographical error which could have been cured by an amendment of the Notice but he didn’t take that step because he did not want to be accused of delaying the hearing of the appeal. This reasoning is with respect condemnable and not helpful to the case of the Appellants. The Appellants’ Counsel knowing fully well that the statement in particular (a) of ground 1 is not factual, by opting to leave the false statement as part of his grounds of appeal has subjected the Appellants to the danger of having the ground of appeal declared incompetent. The undisputed position of the law is that a ground of appeal based on a false or non-existent premise is incompetent. The allegation in ground 1 of the notice of appeal and particular (a) is that the notices issued in 2004 could not be valid because the Claimants by their own admission conceded that the defendants had paid rent up till 2007 and even 2008. Particular (a) is an explanation of the basis for the error alleged in ground 1. They are so interwoven that ground 1 cannot possibly stand without particular (a). Particular (b) of ground 1 also has its own problem. It did not arise from the judgment of the lower court. It is a fresh point and no leave was obtained to argue it as a fresh point in the appeal. See Olalomi Ind Ltd v N.I.D.B, Ltd (2009) 16 NWLR (Pt, 1167) 266 @ 286 A-C. In the circumstances I hold that ground 1 of the notice of appeal with its particulars and issue 4 obviously formulated there from are incompetent.
With respect to ground III of the notice of appeal, the factual basis for the ground is also false and non-existent. I have carefully examined the record of appeal and the judgment especially at pages 278, 288 and 289, there was no indication that the Defendant/Appellants counsel pleaded passionately to be allowed to address the Court and the learned Judge refused. At this point, it is necessary to reproduce the Appellant’s reaction to this in his reply brief page 3:
“I will adopt the foregoing argument in respect of the Respondents contention as it relates to ground III in the Notice of Appeal. (That is his argument on ground 1 already stated above) I will also add that it is unethical for Counsel to lie in an attempt to win a case be it at the lower court or at an appellate level. Counsel who settled the Respondent’s brief did not appear at the lower court and should not be lying that “Mr. Ayanniyi kept mum”. It is pertinent to note that there was no such entry in the court’s record. We choose not to make an issue out of why our submissions were not recorded at the lower Court. Be that as it may, the important thing is that the court called upon Claimant’s Counsel to re-adopt his address without calling on the Defendant’s Counsel to address the Court. Without prejudice to the foregoing, the other leg of the particulars can sustain that ground of appeal”
Learned counsel for the Appellant whom I believe is learned in the law and fully conversant with the Rules of court is aware that both the Court and counsel are bound by the record of appeal. If an issue is not covered by the record of appeal, no one has any business going there. How can learned counsel in the circumstances accuse Respondent’s counsel of lying? When counsel said that Mr. Akanniyi kept mum, he simply meant that he made no comment. It does not mean that such entry must be in the court’s record. If counsel chose not to make an issue out of why his submissions were not recorded at the lower court that is where the matter ends and he cannot raise the issue on appeal because neither the court nor counsel can go outside the record of appeal to discuss what is not reflected in the records. With all due respect to learned counsel, none of the particulars of ground III can sustain the ground because the ground itself is false, The contention in the ground is that the learned trial Judge erred in law in refusing to allow the Defendant’s Counsel address the Court after calling on the Claimants Counsel to re-adopt his final address. The word ‘refusing’ implies that an application was made and was refused by the Court. If the contention had been that the learned trial Judge erred in law in failing to give the Defendant’s Counsel the opportunity to address the Court, the ground of appeal would have been competent as a true reflection of what transpired according to the record of appeal. In the circumstances I hold that ground III of the notice of appeal is incompetent.
We now come to grounds II, IV and V. I reproduce them hereunder:
Ground II
II. The learned trial judge erred in law in holding that there had been proper service of the statutory notice in the absence of evidence of such service on the Defendants except the ipse dixit of the Claimant’s witness.
Particulars
a. The witness claimed to have served the notices and the 1st Defendant’s secretary refused to sign for them and he also claimed to have posted copies thereof on the walls of the premises. He was asked in cross examination if he had proof that he had posted the notice and he said he had none.
b. There is no shred of evidence before the lower Court that the notices were served in any manner, whether personal delivery or by posting.
GROUND IV
IV. The learned trial judge erred in law when she struck out the Defendants’ Statement of Defence on the ground that no evidence was called in support of the Statement of Defence.
Particulars
a. A Statement of Defence once duly filed becomes an integral part of the Court’s record and in the absence of any irregularity can not be struck out.
b. The learned trial judge having struck out the Statement of Defence did not take cognizance of such issues as payment of rent, non-service of notice which allegations were raised in the Statement of Defence,
GROUND V:
V. The Learned trial judge erred in law when she held that the Defendant did not call any evidence in support of the Statement of Defence.
Particulars
a. The Defendants’ only witness had deposed to a written statement on oath which was duly filed and was before the Honourable Court.
b. The witness statement on oath is sworn evidence before the lower court which statement is of no lower evidence value than an affidavit.
The Respondent’s contention is that ground II is unwieldy and argumentative and that grounds IV and V are repetitive as both are hinged on the failure of the lower Court to consider the Statement of Defence. Learned counsel for the appellant on grounds IV and V argued in his reply brief that the two are divergent even though they both relate to the Statement of Defence. It is correct as argued by learned counsel for the Respondent that grounds of appeal must not be verbose, argumentative and vague as these features rob it of its substance. It is also true that in ground II of the Notice of Appeal, the Appellant instead of setting out the particulars of the ground went ahead to argue the ground under particulars. However the law is that where a ground of appeal is defective in form, provided there is a clear complaint, it would not be struck out in the interest of justice, See Aigbobahi v Aifuwa (2006) 6 NWLR (Pt.976) 270 @ 287 – 288 H-B; Aderounmu v Olowu (2000) NWLR (Pt.652) 253; Garuba v Kwara Inv. Co Ltd (2005) 7 SCNJ 290 @ 296.The complaint in ground II is clear. Although grounds IV and V could have been combined as one ground, the error is not one that should give rise to the striking out of the two grounds. I hold that Grounds II, IV and V of the grounds of appeal are competent. In the final result, the preliminary objection succeeds in part. Grounds I and III of the Notice of Appeal and issues 2 and 4 distilled from those grounds are hereby struck out. Grounds II, IV and V along with issues 1 and 3 distilled from them are upheld.
Learned Counsel for the Respondent in his brief of argument distilled one sole issue for determination in the event that the Court did not agree with him on the incompetent nature of the grounds of Appeal. The sole issue is:
“Whether the learned trial judge based on the pleadings, the evidence adduced and the address of Counsel was right in granting all the claims of the Claimant/Respondent?”
I shall in the determination of this appeal consider issues 1 and 3 as the rest of the issues have gone with their incompetent grounds of appeal.
ISSUE 1
WHETHER THERE WAS VALID SERVICE OF STATUTORY NOTICES ON THE DEFENDANTS
APPELLANTS ARGUMENTS:
Learned Counsel for the Appellants in his brief submitted that this is an action for Recovery of Premises and that by virtue of Recovery of Premises Law, Laws of Lagos State 1973 which is the applicable law; S.7 thereof deals with Notice of Owner’s intention to Proceed to Court To recover Possession. Counsel argued that the law makes it clear that service of these notices must be personal on the tenant or occupier failing which the processes may be served by posting. S. 28 of the law provides that service must be in the same manner as the service of civil processes in the Magistrate Court and that service of processes on a defendant in the Magistrate Court is personal. Counsel submitted that the proper service of the said notices is what confers jurisdiction on a tribunal to entertain the subsequent proceedings predicated thereupon. Counsel submitted that the Claimant averred that they had issued and served the necessary statutory notices on the 1st Defendant and also posted copies of the notices on the wall of the property sought to be recovered. But that the Claimant did not serve any of the occupiers of the property. On the issue of service of the statutory notices on the Defendants, Counsel argued that there was no proof of service of the notices except the oral testimony of the CW3 Claimant/Respondents Solicitor’s Clerk who said he served the notices but that the Secretary of the Managing Director of the 1st Defendant/Appellant refused to sign for it. It was argued that in cross-examination CW3 agreed that there was nothing to show he served the notices as he alleged. Counsel submitted that the law is that he who asserts must prove and that proof must be by positive credible and believable evidence.
Counsel argued that if CW3 had no evidence that he posted the notices on the wall of the property before the Court, then the trial Judge could not reach any decision other than that there was no service of the statutory notices. Ayinke Stores Limited v Adebogun 2008 10 N.W.L.R. (Pt.1069) 612. Learned counsel submitted that the learned trial Judge in her Judgment at p. 259 of the record said “In the circumstances Exhibits C1P and C1Q, the Notice to quit and Notice of Owner’s intention to Apply to Recover Possession, are in my view, superfluous”. This in counsel’s view showed that the learned trial Judge misconceived the law and the trend of judicial authorities. He submitted that the service of statutory notices i.e, the notice to quit and more importantly and in all cases, the Notice of Owner’s Intention to Apply to Court to Recover Possession is indispensable. Counsel submitted that Exhibit C1P (the purported notice to quit) at P.79 of the record and Exhibit C1Q (the purported 7-days notice) at P.80 which were tendered in Court showed no sign/record of any acknowledgment. This in his view raised a presumption that it was not served on any of the Appellants. Counsel argued that where by the nature of a document, the service thereof ought to be acknowledged and there is no acknowledgement of it either on the face of it or elsewhere, the Court ought to look beyond the ipse dixit of a witness to establish the service thereof. He contended that in the Statement of Defence filed by the Defendants, the issue of service was expressly and specifically denied (Pages 92-93 of the record). This, counsel argued ought to have made the learned trial Judge seek for other pieces of evidence to corroborate the issue of service. On the issue of posting of notices on the wall of the property sought to be recovered, counsel submitted that CW3 said he did not take any photographs of the purported posting (even though he had been working as a lawyer’s clerk for about 3 years as at that time). Counsel submitted that the sum total is that there is no concrete evidence before the lower Court that any of the notices was served on any of the Appellants in any manner whatsoever. Counsel urged the court to take a close look at Exhibit C1Q (at P.80 of the record) which he claims clearly reveals that the notice to quit referred to therein is not what was tendered at the trial. He argued that the Exhibit refers to a “notice to quit issued on the 8th day of May 2003”. Counsel contended that Exhibit C1P from which exhibit C1Q is expected to flow is dated May 28, 2003. He urged the court to hold that the document was not served on the Appellants, Counsel referred to Exhibit C1Q which states inter alia “…..We Idowu Sofola & Co shall on Monday next the 2nd of February 2003 apply to the court. …. and submitted that the document tells a lie about itself. Counsel argued that it is dated January 14, 2004 and purports to want to go to Court on 2nd February 2003 and that this is a legal and factual impossibility. Counsel contended that it is an invalid document and since it is invalid by reason of its inherent contradictions, it cannot be the basis for the lower Court to assume jurisdiction to determine the suit in the first instance. Counsel urged the court to hold that the Notice of Owner’s intention to Apply to Court to Recover Possession is invalid and that even if it is validly or properly served, it cannot be the basis for an action to recover possession. He urged the court to allow the appeal.
RESPONDENTS ARGUMENTS:
Learned Counsel for the Respondent in his brief submitted that the Appellants in the second and third pages of their arguments on issue one in their unnumbered and improperly paragraphed Brief, asserted that there was no proper service of the Defendant/Appellants, as there was no proof of service of the ‘notices’, except the ipse dixit of CW.3, the Claimant/Respondents Solicitor’s clerk and that they also hinged their argument on the lack of acknowledgement on the notices. Learned counsel submitted that in a recovery of premises action, where a tenant is a corporate entity, a notice is validly served if served on a Director, Company Secretary or other principal officer of the company or by leaving it at, or sending it by post to, the registered office or principal place of business of the company. Section 78 CAMA; Keseruani v Technical Products (Nig) Ltd (7972) 77 CCHCJ 795; Mark v. Eke [2004] 5 NWLR (Pt. 865) 54 at 85 A-C.
Counsel submitted that it is trite that the issue of service of the relevant notices in a matter of recovery of premises can only be resolved at trial, after hearing evidence. Iwuagolu v. Azyka (2007) 5 NWLR (PT.1028) 613 @ 630 F, He contended that the position of the law is that the duty of evaluating and appraising evidence belongs to the Trial Court that saw and heard the witnesses, and that an appellate court may not disturb a finding or conclusion in a judgment simply because it would have come to a different finding or conclusions on the facts of the case. Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1729) 659 at 678-680 H-B; Woluchem v. Gudi (7987) 5 SC 291 at 326, He submitted that there is no need for any acknowledgment of the said notices on the Defendant/Appellants, as long as it is delivered. Counsel argued that delivery can be shown by acknowledgment in writing or by oral evidence and that CW.3 the Respondent’s Solicitor’s clerk gave evidence of the service.
Learned counsel submitted that although the Defendant/Appellants filed a Statement of Defence, they failed to lead any evidence on it and that the law is well settled that averments in pleadings are no evidence and cannot be so construed. They are mainly to set out the evidence that a party is likely to adduce and present during trial. To that extent, averments in pleadings must necessarily be proved by evidence, except, where clearly admitted by the other party. Ibrahim v. Ibrahim (2007) 1 NWLR (Pt.1016) 383 at 402 C-E; Omoboriowo v, Aiasin (1984) 1 SCNLR 708, Further, counsel submitted, it is the position of the law that pleadings not supported by evidence are deemed abandoned, and the material averments in the statement of claim/defence will be deemed established. He referred to Obo v. Commissioner for Education Bendel State (1993) 2 NWLR (Pt 273) 46 @ 67 F-G; Ajibade v. Mayowa (1978) 9-10 S.C.1 Counsel submitted that the Defendant/Appellants did not lead any evidence to contradict the evidence of CW.3, whose evidence remained unshaken in cross-examination. Counsel submitted that the question of credibility of CW.3, was answered in the affirmative by the trial Court, who believed and accepted the testimony of the Claimant/Respondent’s three witnesses, and therefore found CW.3’s evidence credible that Exhibits C1.P, & C1,Q were duly issued and served. On the contention of the Appellants that Exhibit C1.Q, the Statutory Notice of Owner’s Intention to Apply to Recover Possession dated 14th January 2004, was ‘not what was tendered at the trial’ counsel submitted that the basis of the attack is that the year 2003, a typographical error was stated instead of 2004, in the Exhibit: “Idowu Sofola & Co. shall on Monday next the 2nd of February 2003 apply to the Court”. Counsel argued that the Defendant/Appellants did not complain of this defect in their pleadings or in the Notice of Appeal and cannot therefore raise it at this stage. He submitted that they are bound by their Notice of Appeal and cannot argue issues not canvassed in the Court below or related to the grounds of their Appeal being a fresh point raised without feave. He referred to FBN Plc v. TSA Ind, Ltd (2010) 15 NWLR (Pt.1216) 247 at 288 A-C, and Olalomi Industries Ltd v. NIDB Ltd (2009) 76 NWLR (Pt.1167) 266 at 286. Counsel urged the Court to discountenance their arguments. Counsel finally submitted that the typographical error in the year, 2004 for 2003, cannot affect the validity of the notice which was dated 14th January 2004, and served on 15th January 2004. He argued that the Defendant/Appellants knew that this was a typographical error. Since the Notice was dated 14th January 2004, and served on 15th January 2004 and therefore Idowu Sofola & Co could not have intended to apply to Court in February 2003, but in February 2004. Counsel finally submitted that the tenancy of the Appellants had expired by effluxion of time and/or by the service of the proper notices.
RESOLUTION OF ISSUE 1:
I have carefully considered the submissions of Counsel. In the case of Iheanacho v Uzochukwu (1997) 2 NWLR (Pt.487) 257 @ 269-270 H-A the Supreme Court set out the procedure for recovery of premises as follows:
“A landlord desiring to recover possession of premises let to his tenant shall:
(a) Firstly, unless the tenancy has already expired, determine the tenancy by service on the tenant an appropriate notice to quit.
(b) On the determination of the tenancy, he shall serve the tenant with the statutory 7 day’s notice of intention to apply to the court to recover possession of the premises.
(c) Thereafter, the landlord shall file his action in court and may only proceed to recover possession of the premises according to law in terms of the judgment of the court in the action.
See also Ayinke Stores Ltd v Adebogun (2008) 10 NWLR (Pt.1096) 612, As clearly set out in Iheanacho v Uzochukwu (supra) heavily relied on by both sides, it is only when the tenancy has not expired that there will be need to determine same by notice to quit. It is obvious that if at the time the landlord seeks to recover his premises, the tenancy had already expired, it is reasonable to assume that there will be no need for a quit notice. All the landlord would be required to serve on the tenant would be the statutory day’s notice of intention to apply to the court to recover possession of the premises. In the circumstances of the present case, and in view of the fact that the parties had gone on to the stage where the tenancy was being renewed on an annual basis, it was proper that the Respondent should issue the Appellant quit notice as an indication that there would be no further renewal of the lease at the end of the existing tenancy due to expire December 2003. The learned trial Judge had observed:
“I am satisfied that there was a sub lease agreement between the parties. I find that it was validly determined by effluxion of time on 31st December, 2003. See Exhibit C1 – H, In the circumstances Exhibits C1 – P and C1 – Q, the Notice to quit and Notice to Tenant of Owner’s intention to Apply to Recover Possession, are in my view superfluous. I agree with the Claimant Counsel’s submission that the Claimant went a step further and complied with the procedure stated in the case of Iheanacho vs Uzochukwu (1997) 2 NWLR (Pt. 457) pg 257 @ 269-270 paras. H – A by issuing and seruing on the Defendan9 Exhibits C1 – P and C1 – Q respectively”
The learned trial Judge clearly, erred in holding that services of Exhibits C1P and C1Q are superfluous, more especially in the case of Notice to Tenant of owner’s intention to recover possession generally known as 7 days notice. That particular notice must in all cases be served. It is only the Quit Notice that may be dispensed with when the tenancy has validly expired by effluxion of time. The very crucial question however is whether the Appellants were indeed served with the notices as required by law. This is important because service of owner’s intention to apply to recover possession and indeed the quit notice where relevant is a condition precedent to the exercise of jurisdiction by the Court and failure to issue such notices is fatal to the case. See Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt.5) 17; Ayinke Stores Ltd v. Adebogun (supra); Ese Akpokiniovo v Air Liguide Nigeria PLC (2072) LPELR-9582 (CA).
Learned counsel for the Appellant had rightly submitted that service of the notices must be personal on the tenant or occupier of the premises, or where not possible by posting. Further, the law requires the Claimant to join as a defendant any person who is in possession of any part of the premises he desires to recover. Nzekwu v Nzekwu (7989) NWLR (Pt.104) 373; (7989) LPELR-2739 (SC). The implication of this is that the Respondent herein must join as defendants in the case all the occupiers of the shops or stalls put on the property by the 1st Appellant and that they must be served with the notices. The Respondent did join the “Occupiers of Plot B Idejo Towers” as 2nd defendants in the suit. He is consequently duty bound to prove that both Appellants were served the notices as required by law in order to activate the jurisdiction of the court. The Appellant in his brief had alleged that the Respondent did not attempt to serve the notices on any of the occupiers of the property sued as 2nd defendant and that the Respondent did not claim to have served the notices on them. Counsel argued that there was no proof of service on Appellants except the oral testimony of CW3 who said he served the notices on the 1st Appellant but that the Secretary of the Managing Director refused to sign for it. In cross-examination CW3 agreed that there was nothing to show he served the notices as alleged. The view of the Respondent is that the issue of service of relevant notices in a recovery of premises action can only be resolved at the trial after hearing evidence and that in a situation where the Landlord’s witness testifies on oath that notices were duly served and the tenant denies service, the parties will have to lead evidence in support of their stand, it is then for the trial Judge after evaluation of the evidence of the parties to determine who to believe and who to disbelieve. Once a decision is made by the trial Judge who saw and heard the witnesses, an appellate court may not disturb the finding or conclusion unless there has been no evaluation or proper evaluation of the evidence or that the finding is perverse. In his written statement on oath which was duly adopted in court, CW3 Oluseyi Ebenezer a litigation clerk in the Chambers of the Respondent’s Counsel deposed that he served the two notices on the appellants. He was duly cross-examined by Appellant’s counsel. In his judgment at page 295 of the record, the learned Judge observed:
“The Defendants in their statement of Defence alleged that the Claimant did not serve them with Exhibits C1P and C1Q, but failed to adduce any evidence in respect of this. It is trite law that any statement of Defence filed and which is not supported by evidence should be deemed abandoned. I find that Exhibits C1P and C1Q were duly issued and served on the Defendant’s and reject the Defendant’s allegation to the contrary which in any case was not supported by any evidence. ”
The learned trial Judge from the above did not evaluate the evidence of CW3. In a situation in which the trial court has not evaluated or wrongly evaluated a particular piece of evidence, the appeal court is in as good a position as the trial court to do so Fashanu v. Adekoya (1974) 1 All N.L.R. 35; Nzekwu v. Nzekwu (supra); Iriri v. Erurhobora (1991) 2 NWLR (Pt.173) 252; Ayanru v. Madillas (2007) 7 MJSC 166, Under cross-examination CW3 showed his lack of reliability and uncertainty in this matter of service of the processes. He said he served the notice to quit on the 30th of May 2004 and served the notice of owner’s intention to recover possession on 15th of January 2005 contrary to the written deposition that service was in 2003 and 2004. As learned counsel for the Appellant pointed out, the practice usually is to prepare at the back of a copy of the document to be served columns for the Receiver’s name, address, signature and date so that where the receiver refuses to acknowledge, it would be apparent that there was an attempt or an intention to serve same. No such provision for acknowledgment was made in the copy of the notices alleged to have been served in both the notice to quit and the 7 days notice. It just seems odd that a process server who knows that service will be an issue at the hearing will be oblivious of the need to have some evidence to back up his ipse dixit that service was indeed effected. In Ikom Local Government v Chenlex Group Ltd (2077) LPELR – (CA) it was held that if service of process is necessary or required and there is no concrete or irrefutable proof that such service has been effected on the adverse party, any decision or judgment emanating from such a proceeding is a nullity. CW3 under cross-examination admitted that apart from Exhibit C1P, there was no other evidence that he served the defendant. Yet Exhibit C1P bore no evidence of service of any kind, not even the usual endorsement where the receiver would acknowledge receipt. CW3 did not know the name of the Secretary to the Managing Director who received the notices and refused to acknowledge receipt. He did not see any identification of the 1st Defendant’s name on the building where he went to serve the process but claimed that the Secretary whose name he was unable to obtain told him that the building was occupied by the 1st Defendant. My view is that the learned trial Judge on the basis that the Defendants led no evidence in support of their pleading of non service of the notices failed to carry out any or proper evaluation of the evidence of CW3. There is no concrete or irrefutable proof that the notices were served on the Defendants. Recovery of premises actions are in a class of their own. Service of valid quit notices is a precondition for recovery of possession. Learned counsel to the Appellant had pointed out the serious defects in the Notice to Tenant of Owners intention to recover possession at page 80 of the record of appeal. It was alleged therein that the tenancy expired by effiuxion of time on the 31st of December 2002 when the actual date is 31st December 2003 (page 79 of the record). It was also alleged that the tenancy was determined by notice to quit issued on the 8th day of May 2003 when the notice to quit was issued on the 28th of May 2003 (page 79 of the record). These serious defects again casts doubt on the credibility of CW3 that these processes were indeed served as claimed. They also cast doubt on the validity of the notice. A valid 7 days notice is a pre-condition to the assumption of jurisdiction by the court. Apart from the ipse dixit of CW2 that the 2nd Defendant was served by posting, there is no evidence to back it up in the face of denial of service in the abandoned statement of defence. My conclusion therefore is that there was no convincing evidence that the notices were served on the Appellants. It follows then that the claim of the Respondent in the lower court was not brought by due process of the law and upon fulfillment of conditions precedent to the assumption of jurisdiction by the court. Madakolu v Nkemdilim (1962) 2 SCNLR 341. The lower court lacked jurisdiction to hear the case, Issue 1 is resolved in favour of the Appellant.
ISSUE 3:
Whether the learned trial Judge was right in striking out the Statement of Defence of the Defendants?
APPELLANTS ARGUMENT:
Learned counsel for the Appellant on issue 3 submitted that in the course of the judgment, the learned trial Judge held as follows; “The Defendants filed a Statement of Defence but no evidence was led in support of the Statement of Defence and I hereby strike out the Statement of Defence…..” Learned counsel submitted that the grounds upon which any pleading may be struck out are clearly stated in the Lagos State High Court (Civil Procedure) Rules 2004 Order 15 Rule 18(1): “the Judge may at any stage of the proceedings order to be struck out or amended any pleading…. ….on the ground that:
a. It discloses no reasonable cause of action or defense as the case may be; or
b. It is scandalous, frivolous or vexatious, or
c. It may prejudice, embarrass or delay the fair trial of the action; or
d. It is otherwise an abuse of the process of the Court.
Counsel submitted that none of these grounds or conditions is present here and as such the learned trial Judge was clearly in error when she struck out the Statement of Defence. Counsel argued that having struck out the Statement of Defence the learned trial Judge would definitely not have adverted her mind to its contents which if duly considered would have led to a different conclusion from the one she arrived at in the judgment. It is argued that the learned trial Judge observed in the judgment that no evidence was led in support of the Statement of Defence. Counsel submitted that this position cannot be correct in law as there was the Witness’ Statement on Oath before the lower Court. He contended that it is by now settled law that affidavit evidence (which a witness’ Statement on Oath is) is evidence before the court. However, counsel conceded that affidavit evidence including a Witness’ Statement on Oath is not in the same category as oral testimony which has been subjected to cross-examination but that it is still evidence in support of the Statement of Defence before the lower Court. Counsel submitted that if this position is correct then the conclusion of the learned trial Judge that there was no evidence in support of the Statement of Defence cannot be correct as the only issue that will arise with the witness statement on oath will be the weight to be attached to it by the trial Court.
Learned counsel further submitted that the Statement of Defence which was duly filed and served on the claimant through its counsel as a legitimate court process once duly filed remains an integral part of the records of the Court. A Court is entitled to make use of any part of its record in coming to a conclusion in respect of the case before it. Learned counsel urged the court to allow the appeal and set aside the judgment of the lower Court.
RESPONDENTS ARGUMENTS:
Learned Counsel in response submitted that the law is well settled that averments in pleadings are no evidence and cannot be so construed. He contended that they are mainly to set out the evidence a party is likely to adduce and present during trial. He argued that the averments must necessarily be proved by evidence except where admitted by the other party. Referring to a long line of cases, counsel submitted that pleadings not supported by evidence go to no issue and are deemed abandoned. He submitted that the statement of defence here having been abandoned, the lower court had no business considering the averments therein.
On the submission that the witness statement ought to have been considered as it is equivalent to an affidavit, counsel submitted that the statement of defence is the pleading supported by the witness statement on oath which for reason of speedy disposition of cases is reduced to written form to be adopted as evidence in chief of the witness. Such witness statement on oath not having been duly adopted and based on an abandoned statement of defence cannot be elevated to the level of affidavit evidence or any evidence at all. Counsel submitted that the lower court was right in not considering the statement of Defence or witness statement on oath on which no evidence was led. He urged the court to so hold.
RESOLUTION OF ISSUE 3:
It has long been settled that a statement of claim/defence by a party with no evidence in its support amounts to abandonment of the averments contained therein and a trial court has no business considering those averments. Yakor v Governor of Plateau State & 2 Ors (1997) 4 NWLR (Pt 498) 216 @ 229-230; Obo v Commissioner for Education Bendel State (7993) 2 NWLR (Pt. 273) 46 @ 67 F-G; Woluchem v Gudi (7987) 5 SC 297; Ugochukwu v Unipetrol (2000) 7 NWLR (Pt.765) 1. Such statement of defence however remains part of the record of the court and the trial court has no business striking it out. The court in evaluating evidence led in the case is entitled to look at it as part of documents in the court file. In his judgment at page 295, the learned trial Judge did observe that the defendants in their statement of defence alleged that the claimant did not serve them with the notices Exhibit C1P and C1Q. He then went on correctly in my view to dismiss the averment on the ground that no evidence was led on it. But that information ought to have caused the trial Judge to take a more stringent approach in the evaluation of the evidence adduced by the Respondent as to whether the quit notices were actually served. In view of the fact that service of the quit notices is imperative before the lower court could assume jurisdiction in the matter, the mere ipse dixit of the Respondent’s witness ought not to have been accepted merely because the Defendant led no evidence in proof of their averment when in fact the witness’s evidence was in my view discredited by the cross-examination.
The contention of learned counsel for the Appellant that it is by now settled law that affidavit evidence (which a witness’ Statement on Oath is) is evidence before the court, is with all due respect completely misconceived. The Respondent is right that such witness statement on oath not having been duly adopted and based on an abandoned statement of defence cannot be elevated to the level of affidavit evidence or any evidence at all. Subject to the above, issue 3 is also resolved in favour of the Appellant.
In the final result, I hold that this appeal has merit. The service of valid quit notices is a condition precedent for the recovery of possession. In the absence of convincing proof of such service, the claim of the Respondent was not initiated by due process and the court lacked the jurisdiction to entertain the suit. The suit ought to have been struck out, Madukolu v. Nkemdilim (Supra); Ekpere v. Aforije (1972) 3 SC 773; Ayinke Stores Ltd v. Adebogun (supra). The appeal succeeds and it is hereby allowed. The judgment of Ojikutu Oshode J. of the High Court of Lagos State, in suit No.LD/490/2004 delivered on 21st day of September 2008 is hereby set aside. In its place, the claim of the Respondent is struck out. Costs assessed at N25,000.00 in favour of the Appellants.
AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Iyizoba, JCA, and I agree with his reasoning and conclusion. It is easy to allow this appeal as urged by the Appellants. The lower Court should have given the issue of service the serious consideration it deserved because jurisdiction is the power that a Court possess to adjudicate over a particular matter or dispute, see Ebhodaghe v. Okoye (2004) 18 NWLR (pt.905) 472, and proper service of process is a foundational condition that must be seen to have been fulfilled before a Court can have competence and exercise jurisdiction over a case. Failure to serve a process where service of a process is required renders null and void any Order made against the party who should have been served with the process – see Integrated Builders v. Domzaq Ventures (Nig.) Ltd. (2005) 2 NWLR (pt. 909) 97; Otobaimere V. Akporehe (2004) 14 NWLR (pt.894) 591; & Ngige V. Achukwu (2005) 2 NWLR (pt.909) 123. So, no Court has jurisdiction to entertain any Suit in which processes are not served or properly served, and in the circumstances of this case, the Respondent’s claim must be struck out.
Thus, I also allow the appeal, and I abide by the consequential orders in the lead Judgment including the order as to costs.
JOSEPH SHAGBAOR IKYEGH. J.C.A.: The proof of service of valid quit notices on the appellants by the respondent for recovery of possession of the demised premises was not established. Service of valid quit notice on a tenant is fundamental condition precedent for the initiation of an action by a landlord against a tenant in a court of law. It is an issue of jurisdiction within the parameters of the landmark case of Madukolu and Ors. v. Nkemdilim (1962) 1 All NLR 587 or (1962) 2 SGNLR 341 .
Having not proved that the appellants were served valid quit notices by the respondent or her agent for recovery of the demised premises, the action at the court below to recover the demised premises from the appellants was premature and/or not ripe for adjudication and robbed the court below of the jurisdiction to entertain it – see Teliat Sule v. Nigerian Cotton Board (1985) 2 NWLR (pt.5) 17 at 36 – 37 (per the lead judgment of Oputa, J.S.C., (as he was)).
It is for these reasons and for the more elaborate reasons rendered by my learned brother, Iyizobo, J.C.A., in the lead judgment in which I concur that I too would allow the appeal, set aside the judgment of the court below and enter an order striking out the action at the court below with N25,000.00 costs to the appellants.
Appearances
Tokunbo Ayanniyi Esq.; with Akin Ajayi Esq.; and Adaobi Agu (Mrs.)For Appellant
AND
L. A. O. Nylander Esq., with Morenikeji Akah (Mrs.) and Adebayo Adesanwo Esq.For Respondent
