CHISCO TRANSPORT COMPANY NIGERIA LIMITED v. MARIA N. WARMATE
(2019)LCN/12617(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of January, 2019
CA/PH/547/2012
RATIO
COURT AND PROCEDURE: WHERE PARTIES DISSENT WITH FACTS
“The position of the law is that where the facts presented by the parties in a matter are diametrically opposed to each other, the Court should afford the parties equal or level playing ground to vent and canvass their grievances. The apex Court in its wisdom had enunciated in the case of Ihenacho vs. Uzochukwu (1997) 2 NWLR Pt. 487, pg. 260, that:
Recovery of possession of premises from a tenant in lawful occupation thereof by a landlord must only be made in Nigeria by virtue of an order of Court obtained after hearing the parties pursuant to the relevant provisions of the Recovery of Premises Law.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES:
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
CHISCO TRANSPORT CO. (NIG) LTD – Appellant(s)
AND
MARIA N. WARMATE – Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment):
The defendant/appellant is a Limited Liability Company incorporated under the laws of the Federal Republic of Nigeria and its corporate object includes transportation of passengers, haulage, vehicle charter services etc. The claimant/respondent who is the widow and successor to the title of her husband (Chief Philetus George Warmate (deceased), is the landlord of the property described as No. 36 Ikwerre Road, Diobu, Port Harcourt (hereinafter referred to as the property).
On 1st January, 1999, the defendant/appellant took a wing of the property on a 5 (five) year term lease in the first instance at a monetary consideration. (See pages 24 26 of the record of appeal).
By a writ of summons and statement of claim filed 13th December, 2011, the claimant/respondent filed an action against the defendant/appellant at the Rivers State High Court (hereinafter to be known as the trial/lower Court) claiming as follows:
1. An order granting the claimant immediate possession of all the rightwing ground floor and its appurtenances of the premises lying and situate and known as 36 Ikwerre Road, Port Harcourt.
2. An order compelling the defendant to pay to the claimant as rent the sum of N3,720,000.00 as rent due from January, 2004 October, 2011. Put as follows:
a. N2,325,000.00 being the rent due pursuant to the lease agreement of 1st January, 1991.
b. N1,395,000.00 being rent due for the ancillary structures on the subject matter of this suit and the extra one room occupied by the defendant. (See pages 12 of the record of appeal).
The claimant/respondent also on the same 13th December, 2011 filed a motion on notice brought pursuant to Order 11 Rule 1 of the Rules of the High Court, praying the Court as follows:
An Order entering Summary Judgment against the defendant in favour of the claimant as per the claimants statement of claim. (See page 13 of the record of appeal).
Upon service of these originating processes on the defendant/appellant, it filed a statement of defence, a counter affidavit in opposition to the claimant/respondents motion for summary judgment on 27th February, 2012. (See pages 63 178 of the record of appeal).
The cause came up on 26th March, 2012 for the hearing of the motion for summary judgment and on 24th July, 2012, the Court below entered judgment for the claimant/respondent as per the writ of summons and statement of claim. (See pages 182 215 of the record of appeal).
Aggrieved by the refusal of the learned trial Judge to grant it leave to defend the suit and entering summary judgment in favour of the claimant/respondent, the defendant/appellant on 25th July, 2012 filed a Notice of Appeal. With the leave of this Court sought for and obtained on 22nd September, 2014 the record of appeal which was compiled and transmitted out of time was deemed properly compiled and transmitted on that day.
In compliance with the rules and practice of the Court, the respective parties filed and served their briefs of argument. The appellants brief of argument dated and filed 26th September, 2014 and the appellants reply brief dated and filed 21st April, 2015 were both settled by Ngozi J. Ogbomor, Esq. The respondents brief of argument dated 30th October, 2014 and filed 7th November, 2014 was settled by Nyengierefaka Joshua, Esq.
From the 2 (two) grounds of appeal which can be gleaned at pages 216 221 of the record of appeal, the appellant posited the following lone issue for determination:
Whether from state of the facts in the defendant/ appellants statement of defence, counter affidavit, exhibits and issues of law raised in its written brief filed in reply to the claimant/respondents application for summary judgment, the defendant/appellant has not disclosed a good defence to the action on the merit or disclosed such facts as may be deemed sufficient to enable its permission, in law, to defend the claims against it generally or in part.
The respondent adopted and reacted to the issue as formulated above.
The appellant in making submission on the issue contended that by the terms of Order 11 Rule 5 (1) of the Rivers State High Court (Civil Procedure) Rules, 2010, the learned trial Judge is obliged to permit the defendant/appellant to enter its defence when the processes filed thereto disclose a good defence to the action on merit and defend the claims generally or in part. See the case of U.T.C. (Nig.) Ltd. vs. Pamotei (2002) FWLR Pt. 129, pgs. 1557 – 1644.
Learned counsel submitted that the learned trial Judge was under obligation by virtue of the subject order to only identify triable issues raised in the appellants defence and not to proceed to resolve those triable issues after identifying them. The learned counsel went on to enumerate its proposed lines of defence as contained in its counter affidavit. He canvassed that the summary judgment procedure under Order 11 of the Rules of the High Court, 2010, is inapplicable to proceedings for recovery of premises and that the parties are to be given equal opportunities to canvass their respective cases. Appellant contended that it also drew the trial Courts attention to the fact that Galor Engineering Nigeria Limited instituted suit No. PMC/355/2007 against it for possession and mesne profit over the subject premises. The appellant contends that the claimant/respondent is obliged by Section 17(1) (a) (f) of the Recovery of Premises Law to prove her case by evidence before the Court even in cases where the defendant neither put in appearance nor enter a defence. See Ihenacho vs. Uzochukwu (1997) 2 NWLR Pt. 487, pg. 260.
Learned counsel for the appellant went on to submit that the fact that the learned trial Judge, per his judgment identified the issues raised in defence by the defendant/appellant one after the other and then went ahead to determine and resolve them on merit in favour of the claimant/respondent on the parties respective affidavit evidence, exhibits attached and legal arguments, are sufficient indication that the defendant/appellant had a good defence that raised triable issues. He argued that the learned trial Judge embarked on an entirely different exercise by making a case here and there for the claimant/respondent and eventually deciding that the defendant/appellant did not disclose any defence to the claimants case. Counsel submitted that on the points of the claimant/respondents monetary claims found in paragraph 17(2) (a) and (b) of the statement of claim, in the respective sums of N2,325,00.00 and N1,395,000.00, the defendant/appellant in its counter affidavit denied the claimant/respondents entitlement to such sums of money, yet the learned trial Judge ignored the denial and chose to resolve the conflicts on the parties affidavit instead of allowing the matter to go to trial. The appellant finally urged on us to set aside in its entirety the default or summary judgment entered by the learned trial Judge in suit No. PHC/2914/2011 in favour of the claimant/respondent on 24th July, 2012 and grant the reliefs sought by it in ground 4 of the notice and grounds of appeal.
In reaction to the issue, the learned counsel for the claimant/respondent while relying on Order 11 Rules 1 and 5 of the High Court (Civil Procedure) Rules, 2010 submitted that as distinct from undefended list suits, where a claimant believe that there is no defence to his claim, he should file with his originating process the statement of claim, the exhibits, the deposition of his witnesses and an application for summary judgment which application should be supported by an affidavit stating the grounds for his belief and a written brief thereof; the Court below can rightly enter judgment where the appellant had no good defence. Learned counsel for the claimant/respondent provided the settled principle of law that in considering whether a defendant should be allowed to defend a suit or not, the Court is duty bound to consider the counter affidavit and the statement of defence and in doing so, the Court ought not to allow a sham defence raised to gain time or for prolongation of litigation under this procedure. See Federal Military Govt. vs. Sani (1990) 7 SC., Pt. 11, pg. 89; and Sanusi Brothers (Nig.) Ltd. vs. Cotia Comercio Exportacao E. Importacao S.A. (2006) 6 SCNJ 453. Counsel for the respondent submitted that for them to succeed in the lower Court, the respondent needed to show the following ingredients in her pleadings and affidavit evidence:
1.That the respondent is the appellants landlord;
2.That the respondent issued the requisite Notices and the appellant was holding on to the property;
3.That the appellant owed rent as claimed by the respondent;
4.That the respondent was the rightful person to collect rent; and
5.The appellant denies the title of the respondent.
Learned counsel for the respondent submitted that a combined reading of Sections 6, 7 and 8 of the Recovery of Premises Law, Cap 109 Laws of Rivers State 1999 did not envisage a situation where notices served on a tenant or lessor would expire or abate without any pronouncement by a Court of law on same or determination in the merit. Recalling the provisions of Section 8 of the Recovery of Premises Law of Rivers State, the respondent submitted that where as in this case the landlord opts to take out action in the High Court via writ, the Rules of the High Court (Civil Procedure) Rules, 2010 is the applicable Rules of Court. Counsel argued that Order 11 Rule 1 of the Rules of the High Court did not limit itself to only debt but to all cases where the claimant believes that the defendant does not have defence as in this case. Respondent upon her contention that the Notices issued pursuant to Recovery of Premises Laws of Rivers State remained valid until decided upon by a Court of law, urged on us to affirm the decision of the Court below and accordingly dismiss this appeal with substantial cost.
I am not unmindful of the appellants reply brief which more or less is a rehash of the appellants brief of argument. However, I intend to draw from it where necessary.
RESOLUTION OF THE SOLE ISSUE
It is common ground that the respondents husband had served on the appellant, 2 (two) notices which are Notice to Quit and 7 (seven) Days Notice of Owners Intention to Recover Possession before instituting suit No. PMC/215/2004 at the Magistrates Court. The matter had lasted for about 7 years at the said Magistrate Court, when the respondent out of frustration was constrained by the delay of the trial plus the accumulated amount purportedly owed to her, to apply for a withdrawal of the action. Consequent upon the application which was not opposed to by the appellant, the learned trial Magistrate struck out the matter. Thereafter the respondent proceeded to the High Court of Rivers State (herein the lower/trial Court) to file suit No. PHC/2914/2011 against the same appellant and over the same subject matter, though without serving afresh the statutory Notice to Quit and 7 (seven) Days Notice of Owners Intention to Recover Possession on the appellant. Part of the appellants contention is that the respondent is obliged in law to issue fresh statutory notices on it (the appellant).
The appellant argued that the respondent cannot rely on the statutory notices served on it prior to the aborted action at the Magistrates Court. I seem not to agree with the appellant on this.
It is worthy of note that the Recovery of Premises Law, Cap 109, Laws of Rivers State, 1999 is of equal force and application to both the Magistrate Court and High Court of Rivers State, hence under Section 1 thereof it is provided that:
Proceedings under this Law may be brought in any Court of competent jurisdiction.
In the first instance, the primary purpose in law of service of the 2 (two) statutory Notices to Quit and Owners Intention to Recover Possession as duly done by the respondent, is to formally bring to the notice of the tenant that his/her tenancy has been terminated and that the aggrieved landlord was intent on heading to the Court to seek reprieve/redress where the tenant fails to give up possession. Thus, being a sine qua non to taking a legal action against the appellant, the said appellant was in line with Section 5 of the Recovery of Premises Law supra duly put on notice of the impending action against it. The said Section 5 provides thus:
When and so soon as the term or interest of the tenant of any premises, held by him at will or for any term either with or without being liable to the payment of any rent, ends or has been duly determined by a written notice to quit as in Form B, C or D, whichever is applicable to the case, or is otherwise duly determined, and such tenant, or, if such tenant does not actually occupy the premises or only occupies a part of it, any person by whom the premises or any part of it is actually occupied, neglects or refuses to quit and deliver up possession of the premises or such part thereof respectively, the landlord of the said premises or his agent may cause the person so neglecting or refusing to quit and deliver up possession to be served in the manner specified in Sections 6 and 7 with a written notice, as in Form E signed by the landlord or his agent, of the landlords intention to proceed to recover possession on a date not less than seven days from the date of service of the notice.
It follows therefore from the foregoing, that the action No. PMC/215/2004 filed but struck out at the Magistrate Court, did not vitiate the fact that the appellant was already seised of the two statutory notices i.e. the one terminating the tenancy and the other conveying intention of the respondent to recover possession vide the processes of the Court. I am of the view that those 2 (two) statutory notices served on the appellant prior to instituting the action at the Magistrates Court, remained binding and enforceable against the appellant until otherwise revoked by the overt or covert act of the respondent. There was thus no legal basis for the respondent to issue another set of statutory notices all over again upon taking out the fresh action No. PHC/2914/2011 at the High Court, more so as the reliefs sought thereat and the parties remained the same. This is to say that the earlier served statutory notices inured to the said appellant and so did not abate or come to naught in the circumstance. I am afraid that the case of Enifeni vs. Ademoye supra, heavily clung unto by the learned counsel for the appellant is of no moment and most unhelpful to it. It lacks a binding force on this Court, the said case being an unreported decision of the High Court. The earlier served statutory notices therefore remained valid for purposes of prosecuting the action afresh at the lower Court.
I deem it pertinent to note that this issue of service or non-service afresh of the statutory notices prior to the commencement of the action at the High Court is a threshold issue, which touch on the jurisdiction of the said lower Court to hear and determine suit No. PHC/2914/2011. From all that I have said so far, it is indubitable that the appellant, having been served those notices prior to the discontinuance of the action at the Magistrate Court, was not entitled to have similar notices served afresh on it when the matter commenced afresh at the High Court. To serve those processes all over again would have been a mere surplusage. It therefore follows that the lower Court was cloaked with the jurisdiction to hear and determine suit No. PHC/2914/2011, given that the condition precedent to initiating the action was duly complied with by the claimant/respondent.
This takes me to the question as to whether the defendant/appellant by its statement of defence, counter affidavit, exhibits and issues of law raised by it in its written brief filed in reply to the claimant/respondents application for summary judgment, has not disclosed such facts as may be deemed sufficient to enable it in law, to defend the claims against it generally or in part.
Upon being served with the respondents originating processes, the appellant went on to file and serve its statement of defence, deposition of its witness, exhibits to be relied upon in the defence, counter affidavit in opposition to the claimant/applicants motion for summary judgment as well as reply brief to the application for summary judgment. (See pages 63 178 of the record of appeal).
I have given due consideration to the reliefs claimed by the respondent in her statement of claim, the statement of defence of the appellant, the affidavit and counter affidavit facts and the exhibits annexed thereto as well as the relevant laws applicable in the circumstances and it seems to me that the said appellant indeed raised some veritable triable issues that call for a full and proper hearing by the lower Court.
Pursuant to the provisions of Section 17 of the Recovery of Premises Law supra with the sub title Hearing of Summons:
1. If the defendant does not at the time named in the summons or any adjournment thereof, show good cause to the contrary, then on proof
a. of the defendant still neglecting or refusing to deliver up the premises; and
b. of the yearly rent of the premises;
c. of the holding;
d. of the expiration or other determination of the tenancy with the time and manner thereof;
e. of the title of the landlord, if such title has accrued since the letting of the premises; and
f. of the service of the summons, if the defendant does not appear thereto,
the Court may order as in Form J, K or L, whichever is applicable to the case, that possession of the premises mentioned in the plaint be given by the defendant to the plaintiff forthwith or on or before such day as the Court shall think fit to specify.
Aside from joining issues with the respondent on the issue of service or non-service of the statutory notices to quit and owners intention to apply to Court to recover possession, which issue touches on the jurisdiction of the lower Court over the subject matter, the appellant also made issues out of the interpretation of the lease agreement executed between it and the respondent. Also contested by the appellant is the monetary claims of the respondent as made particularly under paragraph 17 (2) of her statement of claim.
The position of the law is that where the facts presented by the parties in a matter are diametrically opposed to each other, the Court should afford the parties equal or level playing ground to vent and canvass their grievances. The apex Court in its wisdom had enunciated in the case of Ihenacho vs. Uzochukwu (1997) 2 NWLR Pt. 487, pg. 260, that:
Recovery of possession of premises from a tenant in lawful occupation thereof by a landlord must only be made in Nigeria by virtue of an order of Court obtained after hearing the parties pursuant to the relevant provisions of the Recovery of Premises Law.
In the light of the contentious nature of the respondents claim, the lower Court ought to have allowed both parties to enter the witness box with their witnesses if necessary and thus cause the matter to go into full hearing. Summary judgment as has played out in the instant case is indeed out of place here given that the appellant by its counter affidavit facts has disclosed some triable issues and questions of law that can only be determined by viva voce evidence. It is on this premise that the sole issue for determination is thus resolved in favour of the appellant and against the respondent.
In summation, the summary judgment of the High Court of Rivers State per Hon. Justice S. O. Iragunima, delivered 24th July, 2011 in suit No. PHC/2914/2011 in favour of the claimant/respondent is hereby set aside in its entirety. The case-file in suit No. PHC/2914/2011 shall be transmitted back to the Chief Judge of the High Court of Rivers State for assignment to any Judge other than Hon. Justice Iragunima, for hearing and determination on the merit.
The appeal has merit and therefore succeeds.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
MOHAMMED MUSTAPHA, J.C.A.:I had the advantage of reading the lead Judgment just delivered by my Learned brother CORDELIA IFEOMA JOMBO-OFO, JCA. The Appeal has merit and therefore succeeds, I abide by the consequential orders in this appeal.
Appearances:
N. J. Ogbomor, Esq. For Appellant(s)
N. Joshua, Esq. For Respondent(s)
