COUTINHO CARD & COMPANY NIGERIA LIMITED v. OBIOHA INVESTMENT LIMITED
(2013)LCN/6453(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of August, 2013
CA/L/160/2010
JUSTICES:
CHIMA CENTUS NWEZE 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
COUTINHO CARD & COMPANY NIGERIA LIMITED – Appellant(s)
AND
OBIOHA INVESTMENT LIMITED – Respondent(s)
RATIO
WHETHER OR NOT PRELIMINARY OBJECTION IS THE PROPER PROCEDURE TO ADOPT WHEN AN OBJECTION IS NOT AGAINST THE HEARING OF AN APPEAL
I have read the case of Odunukwe vs. Ofomata (2010) 18 NWLR (Part 1225) 404 @ 416 referred to by Learned Counsel for the Respondent. It is true that therein the Supreme Court per Rhodes Vivour JSC held that preliminary objection is not the proper procedure to adopt when the objection is not against the hearing of the appeal but against a ground of appeal when there are other grounds to sustain the appeal. But his Lordship did not hold that it is a ground to dismiss or strike out the objection. Even in that Odunukwe’s case, after making the observation, Rhodes Vivour JSC still went ahead to consider fully the preliminary objection, although partly on the ground of absence of objection from learned counsel for the Appellant. Notwithstanding that learned counsel for the Appellant in this appeal objected, I agree with the view of Rhodes Vivour JSC in the case that such an objection cannot be brushed aside being fundamental to the appeal. I shall consequently proceed to consider the objection on its merits. There are two aspects of the objection. The first contention of learned counsel for the Respondent is that grounds 1 & 2 of the grounds of appeal and issues 1 & 2 formulated therefrom did not emanate from the ratio decidendi of the judgment. In Haruna & Ors. v. Modibbo & Anor. (2004) 16 NWLR (Pt.900) 487 @ 538 D-E, Aderemi JC,A (as he then was) considered the meaning of the term ‘ratio decidendi.’ The learned Jurist said:
“What is ratio decidendi – it is the principle of law upon which a particular case was decided – the legal reasoning that led to the court’s decision the effect of which is to serve as a judicial precedent in subsequent cases with similar facts.” PER IYIZOBA, J.C.A.
WHETHER OR NOT PARTIES CAN RAISE FRESH ISSUES FOR DETERMINATION IN AN APPEAL WITHOUT THE LEAVE OF COURT
They are therefore fresh issues which cannot be raised in the appeal without the leave of the court. The Respondent is absolutely correct with respect to the issue of statutory notices under the Recovery of premises Law. That issue did not arise at all at the lower court. If the Appellant had desired to take it up at the appeal level, he should have obtained the leave of the court first and foremost. Degaci of Dere & Ors. v. Degaci of Ebwa & Ors. (2006) 7 NWLR (Pt.979) 382; Gaji & Ors. v. Paye (2003) 8 NWLR (Pt.823) 583; Obiakor v. The State (2002) 10 NWLR (Pt.776) 612 @ 626; Onyemaizu v. Orjiako (2010) 4 NWLR (Pt.1185) 504 Olagunju v. Power Holding Company of Nig. (2011) LPELR – 2556 (SC. PER IYIZOBA, J.C.A.
CHINWE EUGENIA IYIZOBA J.C.A. (Delivering the Leading Judgment): This is an Appeal by the Defendant/Appellant against the judgment of Olateru Olagbegi J. of High court of Lagos sitting at Lagos Judicial Division delivered on the 23rd day of December 2009.
The facts leading to the institution of the suit are as follows: The Respondent was the lessee of a parcel of land known as Plot No. WL 1085 lying and situate at No.30/32 Creek Road, Lagos covered by Registration of Title No. Mo 3949. By a Sub-lease Agreement dated 16th October 1990 (Exhibit B1) and registered at the Lands Registry, Ikeja, Lagos, the Respondent leased the said parcel of land for a term of 25 years certain (commencing 1st January, 1983) to the Appellant at a rent of N9,375.00 (Nine Thousand Three Hundred and Seventy Five Naira) yearly, for the first 16 years of the term as stated in Clause 1(a) of the Sublease Agreement. The total rent for the 16 year summed up to N150,000.00 (one Hundred and Fifty Thousand Naira). The parties also agreed under clause 1(b) of Exhibit B1 that both parties shall be entitled to equal shares of rent received in excess of N165.00 per square metre except on the floors occupied by the Respondent. A supplemental Agreement dated 9th July, 1999 (Exhibit b5) was also entered into by the parties for the residue of 9 years of the original sublease agreement. The Appellant in the Sublease Agreement covenanted with the Respondent to among other things, insure to the full value the building to be erected on the demised premises; to pay all charges, rates and taxes with respect to the demised premises; to maintain and keep in good tenantable repair and condition the demised premises. The Appellant breached the above mentioned covenants as well as the covenant to pay rent as stated in the sublease Agreement. Consequent on the several and continuing breaches of the covenants in these agreements, the Respondent gave Notice of forfeiture to the Appellant to remedy the breaches or face the consequences of re-entry and forfeiture of the demised premises. Upon the Appellant’s continued refusal to remedy the breaches, the Respondent instituted this action and in his writ of summons dated 23/1/01 and the amended statement of claim dated 19th of July 2005, claimed from the Defendant as follows.
a. An order of forfeiture of the Sub-lease agreement dated 16th October, 1980 registered as title No. 12900 at the Land registry, Lagos on the grounds that the Defendant breached Clauses 1(a) & (b), 2(a), (b), (c), (d), (f) and (g) and Clause 3 and 4 of the said sublease Agreement as well as the supplemental agreement respectively.
b. A Declaration that the Claimant is entitled to the possession of and an order for possession of all that property lying, situate and being at No. 30/32 Creek Road, Apapa, Lagos held by the Defendant under Title No MO 12900 as sub-lessee of the Claimant pursuant to the said sub-lease agreement.
c. Payment to the Claimant of the sum of N34,679,680 or such other amount as constituting the total rent so far collected by the Defendant on the Penthouse and the 2nd floor of the demised premises(less that part of the 2nd floor occupied by the Claimant as from 1993 for the first 16 years of the term created in line with the provisions of clause 1(b) of the aforesaid sub tease agreement and ending on 31st December, 1998.
d. Payment to the claimant to the sum N3,899 ,760 (Three Million, Eight Hundred and Ninety Nine Thousand, Seven Hundred and Sixty Naira) being the claimant’s share of the rents collected by the Defendant for the years 1999 and 2000 and not paid to the claimant.
e. AN ORDER for full account of all the rents received and or collected by the Defendant on the demised premises from 1st January, 1983 to 31st December, 2000 and payment to the Claimant of one half of such amount in excess of the sum of N165 per meter of the lettable property.
ALTERNATIVELY
1. The sum of N63,398,000.00 (Sixty Three Million, Three Hundred and Ninety Eight Thousand Naira) being arrears of rent collected by the Defendant on the demised premises from 1st January 1983 to 31st December, 2000.
2. The sum of N5,000,000.00 (Five Million Naira) being general damages for breach of covenant therein contained.
3. The sum of N7,500,000.00 (Seven Million Five Hundred Thousand Naira only) being legal fees incurred by the Claimant in the prosecution of this case.
4. AN ORDER of perpetual injunction restraining the Defendant whether by itself servants, agent or privies from further; collecting rents, dues levies from any tenants occupying the demised property.
The lower court took evidence from the parties and at the end of hearing entered Judgment in favour of the Respondent for possession of the properly, the sum of N9,386,598.00 being the Respondent’s entitlement to rents received from the property, and an account of rents received for the period 1/1/83 to S31/12/09 and payment to the Claimant one half of such amount as in excess of N165.00 per metre of lettable space.
Aggrieved by the Judgment, the Defendant/Appellant filed its Notice of Appeal dated 8th January, 2010 which was subsequently amended by an Amended Notice of Appeal dated 31st May 2012 and filed on 6/6/12 containing 5 grounds of appeal. In accordance with the practice of this Court, the parties filed their briefs of argument. Out of the five grounds of appeal, the Appellant formulated five issues for determination. Learned counsel for the Respondent had in their brief raised and argued a preliminary objection contending that grounds 1 & 2 of the Amended Notice of Appeal did not emanate from the ratio decidendi of the decision of the lower court. I will consider the preliminary objection first.
RESPONDENT’S ARGUMENTS ON THE PRELIMINARY OBJECTION
The contention of the Respondent on the preliminary objection as incorporated in their brief of argument, pages 5 – 9 is that the Appellant in Ground 1 of its Amended Notice of Appeal dated 31st May, 2012 stated that the Respondent failed to establish statutory compliance with Sections 7, 8, 9 and of the Recovery of Premises Law Cap 118 L.N 1964. (Vol. VI Laws of the Lagos State of Nigeria 1973) and also argued this position as Issues 1 and 2 of its Amended Brief of Argument. Learned senior counsel contended that the ratio upon which the decision of the lower court was reached is not based on a failure or otherwise to comply with statutory provisions. Rather, the ratio of the decision of the lower court was hinged on the determination of the sublease agreement by effluxion of time which both parties clearly admitted. Counsel contended that this was the ratio upon which the order for possession was made without more. Learned Senior Counsel submitted that the position of the statute being raised in the Appellant’s Grounds 1 and 2 was not considered at the lower court and parties never led evidence to substantiate or dispute that position. It was therefore erroneous for a ground to be formulated upon a fact which parties never led evidence on and the lower court never had the privilege of pronouncing upon. Counsel cited the case of Mercantile Bank Nigeria Plc & Anor. v. Nwobodo (2005) 14 NWLR (Pt.945) 379 @ 387.
Learned senior counsel further contended that the Appellant by Issues 1 and 2 of its Amended Brief of Argument raised new issues on appeal not addressed by the parties and not decided by the lower court. Counsel argued that the issue of the Appellant’s entitlement to statutory notices and its right to the option to renew were not raised by the parties; and were not determined by the trial .Judge and are therefore fresh issues which cannot be raised in the appeal without the leave of the Court. Counsel relied on the case of Orunengimo v. Egbe (2007) 15 NWLR (Pt.1058) 630 @ 644 G – H. Learned senior counsel submitted that it is settled law that for an appellant to raise a completely fresh issue on appeal not raised at the trial court, the Appellant ought to seek the leave of the Court except where the issue is jurisdictional. Counsel cited Lawrence v. A.G. Federation (2008) 6 NWLR (Pt.1084) 453 @ 467 and Isheno v. Julius Berger (2008) 6 NWLR (Pt.1084) 582 @ 609. Learned senior counsel urged the court to strike out Grounds 1 and 2 of the Amended Notice of Appeal and issues 1 & 2 formulated there from. Counsel cited the case of Adesina v. Adeniran (2006) 18 NWLR (Pt.1011) 359 @ 377 C – D, where the court stated as follows:
“Faulty grounds of appeal naturally give rise to faulty issue. See Amadi v. Orisakwe (1997) 7 NWLR (Pt.511) 161 where this court held, ‘an issue arising from an incompetent ground of appeal is itself incompetent. Irrelevant grounds of appeal and arguments canvassed therein will accordingly be struck out.”
Counsel also cited the case of Ferado Ltd. v. Ibeto Ind. Ltd. (2004) 5 NWLR (Pt.866) 317 @ 366 E – F.
APPELLANTS REPLY ON THE PRELIMINARY OBJECTION:
Learned Counsel for the Appellant in the Reply brief of argument responded to the preliminary objection. Counsel submitted that the Appellant’s 1st and 2nd grounds of Appeal stem from the fact that the learned trial judge granted possession to the Respondent supposedly because the parties before him merely admitted that the lease of the property in respect of which the subject matter of the suit before him arose had expired. Counsel contended that there was no evidence or proof before the Court that Statutory notices had been served in respect thereof upon which the judgment of the learned trial judge was predicated. Counsel submitted that it is trite that “mere” admission of the expiration of a lease or a tenancy does not automatically grant possession to the party seeking possession but that possession must be proved by cogent evidence of the service of statutory notices as stipulated by law.
It follows therefore that it is a condition precedent which cannot be overlooked on “taken in limine” but needed to be resolved even at trial where necessary.” Learned Counsel relied on Samuel Iwuagolu v. Arzuka (2007) 15 NWLR (Pt.1028) 628 ratio 10 & 11. Counsel submitted that the Supreme Court in Ossai vs. Wakwah (2006) NWLR (Part 969) 207 ratio 9 held that “even a tenant who is in default of payment of rent still has to be ejected by the proper procedure which necessitates the serving of statutory notices.” Counsel contended that possession having been granted by the learned trial judge, it forms the ratio decidendi of that judgment and that the Appellant’s 1st and 2nd grounds of Appeal challenging that pronouncement makes same competent. Counsel argued that the Appellant had rightly “isolated and attacked the reasoning of the learned trial judge in arriving at that decision.” He referred to Bello Shurumo vs. The State (2010) 16 NWLR (Part 1218) 83 – 84 ratio 27 – 28 where the ratio decidendi of a judgment was defined as the “reasoning or ground upon which a case is decided”. He also opined that the Supreme Court in the case of Cooperative and Commerce Bank Plc. vs. Ekperi (2007) 1 NWLR (Pt.1022) 493 @ page 496 ratio 1 held that “a ground of Appeal must arise from or relate to the Judgment of the court being appealed against…” and Addax Petroleum Development Nig. Ltd. vs. Chief Duke (2010) 8 NWLR (Part 1196) 285 where the Court held that” …once a ground of Appeal clearly states what the Appellant is complaining about and there is compliance with the rules of Court, the ground cannot be described as bad and therefore incompetent.” Counsel argued that the above decision presuppose that there is no hard and fast rule as to the formulation of a ground of Appeal so long as it relates to and or challenges the reasoning behind the said judgment. Learned counsel submitted that it is pertinent to reiterate that the basis of the Respondent’s claim in the lower Court from the onset and throughout the entire proceedings was for the relief of forfeiture and not possession and which the learned trial judge accordingly in his said final judgment held it had failed. But the learned trial judge still went ahead to grant the Respondent possession which was a consequential Claim to the relief for forfeiture and ought not to have been granted when the principal relief of forfeiture failed. Counsel contended that grounds 1 and 2 of its Notice of Appeal are competent and urged the Court to discountenance the argument of learned counsel for the Respondent that the Appellant raised fresh issues on Appeal without leave of Court as misconceived as no fresh issues were raised by the Appellant.
Learned Counsel finally submitted that the Respondent’s preliminary objection before this Court is procedurally incompetent and should be dismissed and or refused accordingly. Counsel contended that the proper procedure for challenging an incompetent ground of Appeal is by Motion on Notice and not by way of a preliminary objection. He relied on Odunukwe vs. Ofomata (2010) 18 NWLR (Part 1225) 404 @ 416 ratio 13 where the Supreme Court held:
“Where a Respondent complains about the competence of a ground of Appeal and there is another ground of Appeal or other grounds of Appeal that can sustain the Appeal, the Respondent ought to file a Motion on Notice to strike out the incompetent ground of appeal and not a preliminary objection. In other words, a preliminary objection is filed only against the haring of an appeal and not against one or more grounds of Appeal…”
Learned Counsel urged the Court to dismiss the Respondent’s preliminary objection as the procedure adopted is incompetent, given that there are other grounds to sustain the appeal.
RESOLUTION:
I have read the case of Odunukwe vs. Ofomata (2010) 18 NWLR (Part 1225) 404 @ 416 referred to by Learned Counsel for the Respondent. It is true that therein the Supreme Court per Rhodes Vivour JSC held that preliminary objection is not the proper procedure to adopt when the objection is not against the hearing of the appeal but against a ground of appeal when there are other grounds to sustain the appeal. But his Lordship did not hold that it is a ground to dismiss or strike out the objection. Even in that Odunukwe’s case, after making the observation, Rhodes Vivour JSC still went ahead to consider fully the preliminary objection, although partly on the ground of absence of objection from learned counsel for the Appellant. Notwithstanding that learned counsel for the Appellant in this appeal objected, I agree with the view of Rhodes Vivour JSC in the case that such an objection cannot be brushed aside being fundamental to the appeal. I shall consequently proceed to consider the objection on its merits. There are two aspects of the objection. The first contention of learned counsel for the Respondent is that grounds 1 & 2 of the grounds of appeal and issues 1 & 2 formulated therefrom did not emanate from the ratio decidendi of the judgment. In Haruna & Ors. v. Modibbo & Anor. (2004) 16 NWLR (Pt.900) 487 @ 538 D-E, Aderemi JC,A (as he then was) considered the meaning of the term ‘ratio decidendi.’ The learned Jurist said:
“What is ratio decidendi – it is the principle of law upon which a particular case was decided – the legal reasoning that led to the court’s decision the effect of which is to serve as a judicial precedent in subsequent cases with similar facts.”
The grouse of the Appellant as expressed in ground 1 of the grounds of appeal is that the learned trial Judge ought not to have granted possession to the Respondent when the Respondent failed to establish compliance with Sections 7, 8, 9 and of the Recovery of Premises Law Cap. 118 L.N. 1964 (Vol. VI Laws of the Lagos State of Nigeria 1973).
The contention of the Appellant in otherwords is that under no circumstances should a court grant possession in the absence of compliance with the relevant sections of the Recovery of Premises Law. The principle of law upon which the learned trial Judge ordered that possession be given up to the Respondent was that the lease agreement between the parties as clearly admitted by the parties had come to an end by effluxion of time. The judgment of the lower court was based primarily on interpretation of the two agreements Exhibits B1 and B5 between the parties. No issue whatever arose as regards the provisions of the Recovery of Premises Law. Learned Counsel for the Appellant in his submissions misrepresented what transpired in the lower court. He had said:
“it is pertinent to reiterate that the basis of the Respondent’s claim in the lower Court from the onset and throughout the entire proceedings was for the reliefs for forfeiture and not possession and which the learned trial judge accordingly in his said final judgment held it had failed. But the learned trial judge still went ahead to grant the Respondent possession which was a consequential Claim to the relief for forfeiture and ought not to have been granted when the principal relief of forfeiture failed.”
It is not correct to say that the Respondent’s case was for the relief of forfeiture and not possession. The Respondent had in his relief (a) claimed forfeiture and in his relief (b) possession. The reliefs were sought independently of each other. The relief for possession was not consequential on grant of the relief for forfeiture. The learned trial judge indeed considered the relief for possession first. Having granted the relief, he held that the relief for forfeiture had become redundant and consequently struck it out. The learned Judge did not hold that the relief of forfeiture failed as alleged by counsel. The onus was on learned counsel for the Appellant in response to the Respondent’s claim for possession to have raised in his statement of defence the issue of statutory notices under the Recovery of Premises Law (if he thought they were relevant). Not having raised it and the issue not having arisen at all nor considered by the trial Judge, it cannot constitute a competent ground of appeal. It does not at all constitute the ratio decidendl of the judgment of the lower court. It did not arise at all. The job of an appeal court is to consider the judgment of the Lower Court to determine whether the learned Jurist was right in the conclusions arrived at. No doubt fresh issues do arise sometimes. This brings me to the second aspect of the objection raised by the Respondent. The second contention of the Respondent is that the issue of the Appellant’s entitlement to statutory notices and its right to the option to renew were not raised by the parties; and were not determined by the trial Judge. They are therefore fresh issues which cannot be raised in the appeal without the leave of the court. The Respondent is absolutely correct with respect to the issue of statutory notices under the Recovery of premises Law. That issue did not arise at all at the lower court. If the Appellant had desired to take it up at the appeal level, he should have obtained the leave of the court first and foremost. Degaci of Dere & Ors. v. Degaci of Ebwa & Ors. (2006) 7 NWLR (Pt.979) 382; Gaji & Ors. v. Paye (2003) 8 NWLR (Pt.823) 583; Obiakor v. The State (2002) 10 NWLR (Pt.776) 612 @ 626; Onyemaizu v. Orjiako (2010) 4 NWLR (Pt.1185) 504 Olagunju v. Power Holding Company of Nig. (2011) LPELR – 2556 (SC.
The Appellant failed to obtain the leave of the Court before raising the new issue. The issue is incompetent and ground 1 of the Appellant’s grounds of appeal and issue 1 distilled therefrom are hereby struck out as incompetent. Ground 2 and issue 2 distilled there from are in my view competent. The fact of the reversionary interest of the appellant was dealt with in the pleadings, evidence and addresses of both counsel but the learned trial Judge made no Pronouncement on it.
Out of the five grounds of appeal, one of which has now been struck out, the Appellant in its brief of argument settled by G.A. Daniel Esq. formulated five issues for determination.
The issues are:
1. Whether the Court was right in granting the Respondent possession of the property the subject matter in Suit No. LD/188/2001 when indeed the Respondent did not show compliance with the statutory requirements of law to warrant the grant of possession.
2. Whether the learned trial judge was right in ordering the Appellant to vacate the said property within 7 days of the judgment of the court.
3. Whether the learned trial judge was right in granting the Respondents judgment in the sum over and above what it claimed in its Writ and statement of claim before the court.
4. Whether the learned trial was right in holding that the Appellant was liable to pay the premium of N150,000.00 already paid to the as evident by the Sublease Agreement Exhibit B1.
5. Whether the judgment of the learned trial judge was perverse.
The Respondent in its brief settled by Mrs Funke Adekoya, SAN and Mausi Owolabani (Miss) identified two issues for determination. They are:
(1) Whether upon the lapse of the sublease by effluxion of time, the lower court was not right to have ordered possession to be given to the Respondent?
(2) Whether the lower court was right to have granted the sums of N150,000.00 and N9,536,598.00 in accordance with the sublease and supplemental agreement?
Having struck out the Appellant’s issue 1 as incompetent, I find that the Respondents two issues incorporate the Appellant’s remaining four issues. I shall therefore adopt the Respondent’s issues in the determination of this appeal.
ISSUE I:
Whether upon the lapse of the sublease by effluxion of time, the lower court was not right to have ordered possession to be given to the Respondent?
APPELLANT’S ARGUMENTS:
Under his issue 2, learned counsel for the Appellant contended that Exhibit B1, the sublease Agreement contained an option to renew for a further term of 10 years which created an estate in contract in favour of the Appellant. Counsel contended that the learned trial Judge misdirected himself when he ordered that the Appellant vacates the leased property within 7 days of the judgment without addressing his mind to the fact that the said order would occasion grave injustice to the Appellant who was yet to exercise its option of further renewal of the sublease.
RESPONDENT’S ARGUMENTS
Leaned senior counsel for the Respondent in her brief submitted on her issue 1 that it is an undisputed fact that the term of the sub-lease as agreed by the parties and set out in clause 1 of the sub-lease agreement was for a period of 25 years, which commenced on the 1st day of January 1983 and expired on the 31st day of December, 2007. Counsel submitted that the parties in Clause 3 of the Sub-lease Agreement (Exhibit B1) had agreed as follows:
“If there shall be a breach of any covenants herein contained on the Sub-lease to be performed and observed then in any case the Sub-lessor may re-enter upon the demised premises and take possession thereof and this sub-lease shall absolutely determine.”
Counsel submitted that the contention of the Respondent in the court below was that the Appellant breached material covenants in the sublease agreement entered into between the parties and is therefore entitled to possession of the demised premises. Counsel contended that there is no dispute that the sub-lease was for a term of 25 years; that furthermore, both parties are also in agreement that the sublease expired on the 31st day of December, 2007. Thus, the parties agreed that the sub-lease ran its full term and was terminated by effluxion of time. Counsel opined that where a fact in issue has been admitted by parties there is no need for further proof. She referred to Section 123 of the Evidence Act 2011 and the case of Idris v. ANPP (2008) 8 NWLR (Pt.1088) 1 at 162.
On the contention of the Appellant that the lower court misdirected itself when it ordered the Appellant to give up possession on or before 1st day of January 2010 and that the said order occasioned a miscarriage of justice, learned Senior Counsel submitted that Clause 7(b) of the sublease agreement entered into by the parties clearly states with respect to the option to renew as follows:
“(b) That if at the expiration of the term hereby granted the sub lessee shall be desirous of continuing in occupation of the demised premises for a further term of TEN (10) YEARS and of such its desire shall give to the sublessor a written notice at least six (6) months before the expiration of the term hereby granted by delivering or posting the same to it at its last known address…. ”
Learned counsel argued that the sub-lease agreement clearly stated the way and manner in which the Appellant could exercise its option to renew i.e. by a written notice made at lease six (6) months before the expiration of the existing term, which the Appellant clearly failed to comply with. Having not complied with the option to renew clause in the agreement by giving the required 6 months notice of intention to renew the tenancy, the Appellant cannot turn around to ask this Honourable Court to overturn the decision of the lower court based on the option to renew clause in the sub-lease agreement which the Appellant did not itself comply with. Counsel urged the Court to resolve issue No. 1 in favour of the Respondent.
RESOLUTION OF ISSUE 1:
Starting from the very last point, the option to renew; it is true that the learned trial Judge did not make a pronouncement on the matter of the option of the Appellant to renew the sublease but I am of the view that the submissions of the learned senior counsel completely answered the Appellant’s argument on the point. By their agreement the Appellant was to give six months notice of intention to renew the sub lease, No such notice was given. The Appellant’s contention that the learned trial Judge misdirected himself by ordering it to deliver possession within 7 days is misconceived. The learned trial Judge correctly interpreted the written agreements Exhibits B1 and B5 voluntarily entered into by the parties. In his judgment at page 237 of the Record, the learned Judge observed:
“This suit is one of landlord and tenant. It is grounded in sub-lease Exhibit B1 and a supplemental sub-lease Exhibit B5. The right and obligations of the parties are located within the 2 exhibits………….in construing documents where the words of any instrument are free from ambiguity as to proper application of the words courts are bound to give the operative words their simple and ordinary grammatical meaning so as to be able to discover the intention of the document.” (sic intention of the parties).
What the learned trial Judge did was simply to construe the agreement between the parties as contained in Exhibits B1 and B5 and to give effect to same. The fact that he did not comment on the option to renew did not occasion any miscarriage of justice as the Appellant failed to indicate as required by their agreement that he intended to renew. The learned trial Judge seeing that both sides are in agreement that the sublease had ended by effluxion of time granted possession to the Respondent. His Lordship apparently deemed it unnecessary to consider other issues raised in the suit such as whether indeed the Appellant was in breach of the lease agreement. In the case of Samba Petroleum Ltd & Ors v. UBA Plc & Ors (2010) 6 NWLR 530 @ 531, the Supreme Court held that a court has a statutory duty to consider and make pronouncement upon all issues raised by the parties and not to confine itself only to issues which it considers necessary to dispense of the case. The need to adopt this course is to obviate the danger of an appeal court holding a contrary view on the materiality of the issue which was not considered. See also Spring Bank Plc v. Dokkin Ventures Nigeria Ltd (2012) LPELR-7983 (CA). Fortunately for the Respondent herein, I have carefully considered the submissions of learned counsel on the various breaches of the agreement complained of by the Respondent in the lower court. The Respondent had led evidence to prove that the Appellant was in breach of the following covenants maintained in the sub-lease and supplemental agreement:
1. Covenant to allow the Claimant occupy the 2nd Floor and the Penthouse of the Demised Premises;
2. Covenant to insure the property to its full value as provided for in clause 2(c) of the Sub-lease Agreement;
3. Covenant to pay rates, taxes and charges as contained in clause 2(a) and (b) of the Sub-lease Agreement;
4. Covenant to pay rent as contained in clause 1(b) of the Sublease Agreement and clause 2 of the Supplemental Agreement; and
5. Covenant to keep the lift in a good state of repair as contained in clause 4 of the supplemental agreement.
The Appellant at the lower court denied the breaches but was unable to adduce any evidence in support of his pleading. On the contrary the Respondent led evidence to show that all of the above were specific terms in the agreements and were not complied with by the Appellant. Clause 3 of the Sub-lease Agreement (Exhibit B1) entitled the Respondent to re-enter the premises and take possession thereof in the event of any breach of any of the covenants contained in the Sub-lease. This, apart from the fact that the sub-lease ended by effluxion of time entitled the Respondent to immediate possession of the demised premises. The failure to make pronouncements on the matter of the breaches did not therefore occasion any miscarriage of justice. The Appellant was fully conversant with the covenants he entered into in the agreements. He knew that the Respondent claimed possession separately in addition to forfeiture. He did not raise the issue of statutory notices and did exercise his option to renew by serving on the Respondent six months before the expiration of the sub-lease a notice of intention to renew the lease. Just by way of comment on the side, I have my doubts as to whether statutory notices are relevant in a situation where the court is already seized of the dispute. The purpose of these notices is to give the tenant the opportunity of quitting the premises voluntarily before the institution of action or to put him on notice and prevent parties taking laws into their hands or attempting to regain possession vi et armis. This suit was filed in 2001. Judgment was delivered in 2009. For eight years the case was pending in court before possession was eventually granted to the Respondent. What is the relevance of statutory notices in such a situation? At any rate where a tenancy has expired by effluxion of time, notice to quit is superfluous. The lower court was right in the circumstances to have ordered possession in favour of the Respondent. Issue one is resolved against the Appellant and in favour of the Respondent.
ISSUE TWO:
Whether the lower court was right to have granted the sums of N150,000.00 and N9,536,598.00 in accordance with the sublease and supplemental agreement?
APPELLANT’S ARGUMENTS:
Learned Counsel for the Appellant in his issues 3 contended that the learned trial Judge granted judgment in favour of the Respondent for sums over and above what it claimed in its writ and statement of claim.
Learned counsel argued that the respondent’s Claim for rents as per paragraph 30(e) of its said Writ of Summons and Amended Statement of Claim was for the sum N3,899,760 for rents supposedly collected by the Appellant for the period 1999 to 2000 and not paid to the respondent and which claim was predicated on Exhibit C5. counsel submitted that the Appellant led evidence to show by Exhibits C4 and C2 at pages 27-108 of the records of proceedings that the respondents had been paid regularly all what it was entitled to as its own share of rent under Exhibit B1 but the learned trial judge singled out payment due under Exhibit B5 as claimed in paragraph 30(4) and went ahead to grant judgment in favour of the respondent in the sum of N9,949,083 being rents due to the Claimant for 11 years and not for the period 1999-2000 as claimed by the Respondent . Learned Counsel relying on E. Ekpenyong & Ors. vs. E. Nyong (1975) 2 SC 71 @ 80 – 81 submitted that a Court of raw may award less and not more than what the parties have claimed.
On appellant’s issue 4, counsel submitted that Section 149(e) of the Evidence Act deals with the “presumption of the existence of certain facts which may have happened taking into consideration the common course of natural events, human conduct, public and private business in their relationship to the facts of the case and in particular the court may presume as stated in paragraph (e) that””…..where a document creating an obligation is in the hands of the obligor, the obligation has been discharged.” Learned counsel argued that in the light of the above, the learned trial judge erred when he failed to uphold that Exhibit B1 which was executed by the parties created a presumption that parties had fulfilled their obligations thereunder especially with regards to payment of consideration by the Appellant to the Respondent. Counsel further submitted that the Appellant had averred in paragraph 5 of its statement of Defence that it paid the respondent N300,000.00 over and above what the Respondent had claimed in paragraph 5 of its Amended Statement of Claim as consideration at the commencement of the sub-lease. The Appellant had pleaded Exhibits B5 in proof thereof. The Appellant also sought to tender a photocopy of the receipt issued in acknowledgment and in respect thereof by the Respondent which was reject by the court as the Appellant did not lay proper foundation in tendering the said receipt of payment. Learned counsel submitted that the Appellant relied on the sublease Agreement Exhibit B1 which was pleaded and tendered in evidence by the Respondent and which was duly executed by the parties, stamped and registered at the Land’s Registry Alausa, Lagos but that the learned trial judge refused to acknowledge that the said agreement which disclosed in its recitals that a premium of N300,000.00 had been paid to the Respondent and which was in the custody of the respondent having been stamped and registered created a presumption of payment in respect thereof in line with Section 149(e) of the Evidence Act.
On the Appellant’s issue 5, counsel submitted that the judgment of the learned trial judge was perverse as he wrongly exercised his judicial discretion.
Learned counsel contended that the learned trial judge failed to evaluate the evidence led in the case properly and did not take into account evidence adduced by the Appellant with regards to the claims of the Respondent. Counsel submitted that had the learned trial judge done so, he would have arrived at a different conclusion in the case. Learned counsel urged the court to allow the appeal and to set aside the judgment of the lower court.
RESPONDENT’S ARGUMENTS:
On the order for payment of the N150,000.00, learned senior counsel for the Respondent submitted that the Respondent at the lower court contended that the Appellant failed to pay the sum of N9,375.00 rent as specified and agreed upon in clause 1(a) of the sub-lease agreement (Exhibits B1) for the first 16 years, which amounts to the total sum of N150,000.00. The Appellant contended that it had paid. Counsel submitted that the burden of proving the payment of the rent shifted to the Appellant, which burden, the Appellant failed to discharge by credible evidence before the lower court. It was argued that the law is clear that by virtue of Section 133 of the Evidence Act, 2001 that he who asserts must prove and the court will not engage on a presumptuous voyage to assume that a party has discharged the burden placed on him by taw to show by credible evidence before the court. Counsel submitted that Exhibit B1 is basically an agreement for the sum payable by the Appellant to the Respondent. It did not in any way show that the agreed sum had in fact been paid to the Respondent and that the Respondent had acknowledged receipt of same. Counsel submitted that in the light of the lower court’s finding and evidence placed before it, the court was right in granting the sum of N150,000.00 as rent due and payable to the Respondent by the Appellant under the sub-lease Agreement.
On the order for payment of N9,536,598.00 learned senior counsel submitted that the parties entered into a supplemental agreement for the remainder of the term of 9 years out of the agreed term of 25 years; that under this agreement, no rents were due to the Respondent in respect of the 2nd and 3rd floors. However, both parties were entitled to share the rents from the Ground and 1st Floor equally, less the maintenance expenses incurred on the property. Counsel submitted that the Appellant admitted by Exhibit C1 that in respect of the Ground and 1st Floors, the Respondent was entitled to the sum of N1,808,916.00 for the period 1st January 1999 to 31st December, 1999, which it had failed to pay. Counsel submitted that the Appellant also claimed by Exhibits C1 that the maintenance cost of the building amounts to a total sum of N1,124,880.00 and that the Respondent’s liability for maintenance under the agreement as N562,442.00, being half of the full maintenance costs on the property.
The lower court consequently awarded the sum of N9,386,598.00 as the Respondent’s entitlement, being the sum of N1,124,880.00 from the time the supplemental agreement came into effect till the date of the judgment of the court, less the maintenance cost of N562,442.00.
On the issue of the trial court raising issues suo motu and finding on same, learned senior counsel submitted that after the parties at the lower court had adopted their final written addresses on 23rd October, 2009, the court on 21/12/09 raised three issue suo motu as follows:
(i) The evidential value of Exhibits A1 – A5 as to the dimensions and rents payable on the property vis-‘E0-vis the terms of Exhibit B1.
(ii) Be the alleged breach of not incorporating a penthouse-considering that the property was built in or about 1983. Is it within the limitation period?
(iii) Evidence of payment of rent relied upon by the Defendant.
The Court thereafter adjourned to enable the parties address it on those issues. Counsel for the Appellant and Respondent addressed the court on 22nd December, 2009 and the matter was adjourned to 23rd December, 2009 for Judgment which was delivered in open court. Counsel submitted that the law is that a trial court can raise issues suo motu for the just determination of the matter between the parties before it. The Court is however duty bound to give the parties the opportunity to address it on the issues before coming to a conclusion based on the addresses of counsel on those issues. Counsel submitted that the Supreme Court in the case of Dairo v. U.B.N. Plc. (2007) 16 NWLR (Pt.1059) 99 @ 139 D-E per I.T MUHAMMAD, J.S.C. held as follows:
“I must emphasize the point that it is not prohibited for a court to raise issue suo motu. It can, in its discretion, do so if it sees it fit to do so, provided the discretion is exercise sparingly and in exceptional circumstances, Moreover, where points are taken suo motu, the parties must be given opportunity to address the court before the decision on the point is made.”
Counsel finally submitted that the lower court complied with this procedure by giving the parties the opportunity to address it on the issues raised as shown in the record of appeal. The Appellant did not controvert this fact. Counsel contended that it was based on these issues raised and considered by the lower that it granted Judgment in the sum of N9,536,598.00 against the Appellant in favour of the Respondent.
Counsel urged the court to uphold the decision of the lower court and dismiss this appeal in its entirety with substantial cost.
RESOLUTION:
The pleadings in the amended statement of claim as regards outstanding rent at page 125 of the record are as follows-
Payment to the claimant of the sum of N34,679,680.00 or such other amount as constituting the total rents so far collected by the Defendant on the Penthouse and the 2nd floor of the demised premises (less that part of the second floor occupied by the Claimant as from 1993) for the first 16 years of the term created in line with the provision of clause 1(b) of the aforesaid sublease agreement and ending on 31 December 1998.
Payment to the claimant of the sum N3,899,760 (Three Million, Eight Hundred and Ninety Nine Thousand, Seven Hundred and Sixty Naira) being the claimant’s share of the rents collected by the Defendant for the years 1999 and 2000 and not paid to the claimant.
AN ORDER for full account of all the rents received and or collected by the Defendant on the demised premises from 1st January, 1983 to 31st December, 2000 and payment to the Claimant of one half of such amount in excess of the sum of N165 per meter of the lettable property.
It is clear from the pleadings as set out above that the claims of the Respondent were limited to 1998 in the first relief, and to the year 2000 in the second and third reliefs. Nothing was claimed beyond these periods. At page 9 of the Respondent’s brief of argument, learned counsel for the Respondent indicated that the judgment of the lower court was predicated on the Respondent’s writ of summons dated 23/1/2001 and the amended statement of claim dated 19/7/05 which are at pages 1-2 and 121 – 126 respectively of the record of appeal. Learned senior counsel set out relief (c) as “payment to the plaintiff of the sum of N150,000.00 (one hundred and fifty thousand naira) being unpaid rent due to the Plaintiff under Clause 1(a) of the Sublease Agreement.” It is true that at page 2 of the record in the writ of summons relief 2 is for payment of the N150,000.00. It is also in the original statement of claim, But in the amended Statement of Claim at pages 121-126 of the record, there was no claim for payment of N150,000.00. It is trite law that an amended statement of claim supersedes the writ of summons and the original statement of claim. A.S.E S.A. v. Ekwenem (2009) 13 NWLR (Pt.1158) 410 @ 435 G – H. Where a relief in the writ of summons or original statement of claim is not included in an amended statement of claim, the relief shall no longer be relevant. See Fayemi v. Awe (2009) 15 NWLR (Pt.1164) 315 @ 341 D – E. The issues to be tried will always depend on the state of the final or amended pleadings. Salami v. Oke (1987) 4 NWLR (Pt.63) 1 @ 9 & 12. Agbaisi & Ors v. Ebikorefe & Ors (1997) 4 NWLR (Pt.502) 630 @ 647 – 649. The learned trial Judge in his judgment at pages 237 – 240 of the Record observed:
“The rents payable are referable to 2 different periods namely:-
1. Rent in the first 16 years of the sublease exhibit B1, hereinafter called part 1 rents
2. Rent for the next 9 years under the supplemental sublease exhibit B5, hereinafter called part 2 rents.
Under part 1 rents, the rent payable per annum under clause 1(a) of Exhibit B1 is N9,375,00 which translates to N150,000.00 for the 16 years,…………….. I hold therefore that the sum of N150,000.00 is owed by the said Defendant to the Claimant
Under Clause 1(b) of Exhibit B1, both parties are entitled to equal shares of rent received in excess of N165.00 per square metre save for any one floor occupied by the Claimant sublessor.
It is common ground between the parties that the claimant did not in fact occupy any one floor in the first 16 years of the sub-lease. The Claimant is therefore fully entitled to half of such excess rents in respect of all the floors being ground, first, second and third floors.
There is no evidence or other disclosures as to what the Defendant actually charged as tent in the first 16 years of the sub-lease and whether such rent was lesser or in excess of N165.00 per square metre.
The Claimant is entitled to this information. An order for account is thus grounded and I grant it.
I move now to part 2 rents which is the period from 1-I-99 to date, No rents are due to the Claimant under the supplemental agreement exhibit B5 in respect of the 2nd and 3rd floors.
In respect of the ground and 1st floors, both parties are entitled to share the rents equally less the maintenance expenses incurred in respect thereof.
By the submission of the Defendant in Exhibit C1, the accruable rent due but not paid in respect of these two floors from 1-1-99 to 31-12-99 is N1,808,916.00. Under the principle of Ubi Jus Ibi remedium when there is a wrong, there must be a remedy, the Claimant is entitled to 11 years rent.
Assuming that there was no rent increase in 11 years, the accrual for 11 years translates N19,808,076.00 half of that amount is N9,949.038; this is the entitlement of the Claimant.
Under Exhibit C1, the defendant made a claim of N1,124,880.00 as building maintenance costs.
The Claimant submitted that the figure was not verified by the Defendant and that in any case, the tenants are charged for maintenance costs. The Defendant did not meet this argument. It offered no explanation.
However, having previously acted on some parts of the contents of exhibit C1 it will be consistent to accept the other parts. However, in equity, the burden of maintenance is to be jointly borne by both patties just as they are jointly entitled to the benefits of rent.
Half of N1,124,880.00 is N562,440.00; N9,949,038 less N562,440.00 being half of maintenance costs is N9,386,598. This is the net sum due to the Claimant up to 31-12-2009.”
I have tried to reconcile the above findings and conclusions of the learned trial Judge with the reliefs claimed by the Respondent in its amended statement of Claim and I find it extremely hard. It is trite law backed by a plethora of authorities and indeed elementary that a court of law is not allowed to grant what is not asked for or claimed because the Court is neither a charitable institution nor Father Christmas, Ekpenyong v. Nyong (1975) 2 SC 71, Makanjuola v. Balogun (1989) 3 NWLR (Pt.109) 192 @ 206; Agbi v. Ogbeh (2006) 11 NWLR (Pt.990) 65 @ 120 D; Isheno v. Julius Berger Nigeria Plc. (2008) 6 NWLR (Pt.1084) 582 @ 602 E – F, 609 B – E.
Parties and the Court are bound by the pleadings and evidence on facts not pleaded goes to no issue. By clause (a) of the sub lease agreement exhibit B1, the Respondent was to be paid N9,375.00 yearly for the first sixteen years, the amount to be paid en block for the whole sixteen years as soon as the building agreed to be constructed on the demised premises is completed and fit for use and occupation. In the writ and original statement of claim, the Respondent claimed this amount which came to a total of N150,000.00 (See paragraphs 5 & 11 of the original statement of claim at page 4 of the Record and relief (c) at page 6.) The Appellant as Defendant in paragraph 5 of the Statement of Defence at page 8 of the Record denied the claim of the Respondent to N150,000.00 and averred that the Respondent was paid up front at the commencement of the construction of the building the sum of N300,000.00 in consideration of the sublease. In its amended statement of claim, the Respondent completely omitted the claim for N150,000.00. As stated earlier an amended statement of claim supersedes the writ of summons and the original statement of claim. The learned trial Judge had no business whatever granting the arrears of rent of N150,000.00 as same was not claimed under the amended statement of claim.
The first relief as to rent claimed by the Respondent in the amended statement of claim is for payment to the Claimant of the sum of N34,679,680.00 or such other amount as constitute the total rents so far collected by the Defendant on the Penthouse and the 2nd floor of the demised premises (less that part of the second floor occupied by the Claimant as from 1993) for the first 16 years of the term created in line with the provision of clause 1(b) of the aforesaid sub lease agreement and ending on 31st December 1998. Clause 1(b) of the Sub-lease Agreement provides:
“In addition throughout the said term by way of further rent from time to time a sum or sums of money equal to the amount which the Sub lessee may receive from the sub-tenant or sub-tenants of the Sub-lease occupying the demised premises, such amount or amounts being one-half of any rent or rents collected by the sub-lessee in respect of any letting in excess of ONE HUNDRED AND SIXTY-FIVE NAIRA (N165.00) per square metre. PROVIDED ALWAYS that such additional rent shall not apply during the first sixteen (16) years of the term to any one floor of office space and the penthouse which shall be deemed to be occupied by the sub-lessor any licence or letting to the contrary notwithstanding.”
In simple language what the above proviso means is that apart from any one floor of office space and the penthouse which shall be deemed to be occupied by the Respondents, the Respondents shall also be entitled to one-half of the rent in excess of the sum of N165.00 per square metre collected by the Appellant from tenants in the remaining demised premises. From the evidence adduced at the hearing it turned out that there was no penthouse in the building. It was never constructed. Under cross-examination of CW2 Chief A.O. Obioha at page 221 of the records testified thus:
“The Defendant was to put a penthouse but they breached the agreement and did not do so. Even then we ask them to give us money for the 2nd floor if there is no penthouse. My reference to 2nd floor was a slip of tongue. What I meant to say is that we are entitled to one floor and a pent house.”
Exhibit B1 did not say that the Respondent is entitled to rent for the penthouse and the one floor. Given the concession that there is no penthouse and no reference to 2nd floor but any one floor, the claim to the sum of N34,679,680.00 or such other amount as constituting the total rents so far collected by the Defendant on the Penthouse and the 2nd floor of the demised premises is obviously untenable.
With respect to the claim for the sum N3,999,760 (Three Million, Eight Hundred and Ninety Nine Thousand, Seven Hundred and Sixty Naira) being the claimant’s share of the rents collected by the Defendant for the years 1999 and 2000 and not paid to the claimant, this falls within the supplemental agreement Exhibit B5. In paragraph 14 of the statement of defence, the defendant admitted the claim only to the extent that the rent was to be shared equally between the parties and only after all costs of maintenance have been deducted therefrom.
Similarly in his judgment on part 2 rents which is the period from 1-1-99 to date with respect to the ground and 1st floors, the learned trial Judge held that under the agreement Exhibit B5, both parties are entitled to share the rents equally less the maintenance expenses incurred in respect thereof. His Lordship accepted Exhibit C1 tendered by the Appellant as the accruable rent due but not paid in respect of the two floors from 1-1-99 to 31-12-99 as N1,808,916.00. Using this annual figure, his Lordship multiplied it by 11 years to arrive at the figure of N19,808,076.00, half of which came to N9,949.039 as the entitlement of the claimant. But when it came to the building maintenance cost of N1,124,880.00, his Lordship accepted the figure in spite of the contention of the Respondent that the figure was not verified and that in any case the tenants pay maintenance costs separately. But in his computation, the learned Jurist forgot that 50% of the alleged annual maintenance cost of N1,124,880.00 to be paid by the Respondent should also be multiplied by 11 years before deduction from the amount due to the Respondent. If this is done, it becomes obvious that the Respondent would be left with some totally insignificant amount. The position therefore is that further information is required to verify the actual rent due and the actual maintenance costs. Further, the Respondent did not in their amended statement of pleading claim rents due for the 11 years granted by the lower court. It claimed only up to the year 2000. The amended statement of claim ought to have been further amended to reflect the new claim. The amendment not having been made, the learned trial Judge had no business granting what was not claimed. Many exhibits were tendered as to what was actually paid and what was outstanding. The only reasonable option in the circumstances is an order for a full account of all the rents received and or collected by the Defendant on the demised premises and also a full account of all the expenses incurred in the maintenance of the premises.
In conclusion, this appeal succeeds in part and is hereby allowed in respect of Order 2 only. The judgment of Olateru-Olagbegi J delivered on the 23rd day of December 2009 is set aside with respect to Order 2. Orders 1 & 3 are upheld. For the avoidance of doubt:
1. The order entering judgment in favour of the Respondent against the Appellant in the sum of N9,536,598.00 made up of:
(a) N150,000.00 arrears of rent under part 1
(b) N9,386,598.00 arrears of rent under part 2 is hereby set aside.
2. The judgment granting order of possession in favour of the Respondent and ordering the Appellant to give up possession of all that property lying being and situate at 30/32 creek Road, Apapa Lagos held by the Appellant under title No. Mo 12900 as sub-lessee of the Respondent on or before the ls day of January 2010 is upheld.
3. The order for account made in favour of Respondent against the Appellant is upheld but modified as follows:
(a) The Appellant is directed to give full account of all rents received and or collected by the Appellant on the demised premises from 1-1-83 to 31-12-98 and pay over to the Respondent one half of such amount in excess of the sum of N165.00 per metre of the lettable property as is still outstanding in favour of the Respondent.
(b) The Appellant is ordered to give full account of all rents received and or collected by the Appellant on the demised premises from 1-1-99 to 1-12-2000 and to pay over to the Respondent one half of the amount, after deducting 50% of the amount used in the maintenance of the premises as agreed upon by the parties.
I make no order as to costs.
CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading in draft, the judgment just delivered by my brother Iyizoba, JCA. I agree with his conclusion.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I too agree with the judgment of my learned brother, Iyizoba, J.C.A., that the appeal succeeds in part with respect to “Order 2” made by the court below which was amply treated in the lead judgment.
The appeal, however, fails with respect to “Orders 1 and 3” made by the court below which are hereby upheld by me. Parties to bear their costs.
Appearances
G. A. Daniel Esq. For Appellant
AND
O. Adekoya, SAN with M. Owolabani (Miss) For Respondent
