ESE AKPOKINIOVO V. AIR LIQUIDE NIGERIA PLC.
(2012)LCN/5559(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of July, 2012
CA/B/191/2008
RATIO
TENANCY: WHETHER A NOTICE TO QUIT WOULD DETERMINE A TENANCY
In order to be effective a notice to quit should determine a tenancy at the end of the term of the tenancy. For instance a notice of six months is necessary to determine a yearly tenancy as in the instant case and such notice must terminate the tenancy at the end of the current term of the tenancy. Thus any notice given and due to end at the middle of the term of the tenancy will be invalid. See OMOTOSHO V. OLORODE (1988) 4 NWLR (Pt 37) 225; AFRICAN PETROLEUM LTD. V. OWODUNI (1991) 8 NWLR (Pt 210) 391 SC; PAPER SEEK NIG. LTD V. ODUTOLA (2004) 13 NWLR (Pt. 891) 509. PER GEORGE OLADEINDE SHOREMI J.C.A.
INTERPRETATION: INTERPRETATION OF A MONTH UNDER THE INTERPRETATION ACT
Furthermore Section 18 of the Interpretation Act provides that a month is a calendar month computed accurately to the Gregorian calendar. PER GEORGE OLADEINDE SHOREMI J.C.A.
LAND LAW: EFFECT OF FAILURE TO COMPLY WITH THE LAID DOWN PROCEDURE IN AN ACTION FOR RECOVERY OF PREMISES
It therefore follows that an action for Recovery of Premises has to strictly comply with the procedure as provided in the recovery of Premises Law as any procedure outside the one provided for the recovery of premises is fatal. See AIYIKE SHORES LTD. V. S.A. OLA ADEBOGUN (2008) 10 NWLR Pt. 1096 page 612. PER GEORGE OLADEINDE SHOREMI J.C.A.
TENANCY: EFFECT OF FAILURE TO GIVE STATUTORY NOTICE IN AN ACTION FOR RECOVERY OF PREMISES
Failure to give statutory notice as provided by the law is a condition precedent to the exercise of jurisdiction. See SULE V. NIG. COTTON BOARD (1985) 2 NWLR (PT. 5) 17. What is the proper order to make? The only option available to the trial Judge is to strike out the case. PER GEORGE OLADEINDE SHOREMI J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO (PJ) Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
Between
ESE AKPOKINIOVO (for himself and on behalf of the family and Estate of late Chief D.M. Akpokiniovo) Appellant(s)
AND
AIR LIQUIDE NIGERIA PLC. Respondent(s)
GEORGE OLADEINDE SHOREMI J.C.A., (Delivering the Leading Judgment): This is an appeal against the judgment of Delta State High Court sitting at Effurun. The facts leading this appeal are that:
the action originated at the Magistrate Court 1 Effurun, registered as Suit No: ME/56/2005, by way of the Appellant’s claim seeking the recovery of the possession of a piece and/or parcel of land “measuring 16331.25 square meters” which is in actual possession of the Respondent under a duly executed lease agreement together with mesne profits.
The Appellant got judgment in their favour at the said Magistrate Court.
Then dissatisfied with this judgment, the Respondent appealed from the judgment to the High Court of Justice, Effurun. Arguments were heard and the judgment of the said Magistrate Court given on 26/10/2006 was set aside by Hon. Justice G.E. Gbemre in a well considered judgment hence this appeal.
In line with the procedure of this court briefs were exchanged.
On the hearing date of this appeal Odigume Esq of counsel to the Appellant identified his brief filed on 21/7/08 was adopted and relied on.
The Respondent was not present in court but his brief dated 29th of April, 2010 filed on 29/4/10 was taken as having been argued.
The Appellant’s Notice and grounds of appeal, contained 5 grounds of appeal quoted hereunder without particulars –
GROUND 1
The learned Hon. Judge erred in law when he Assumed Jurisdiction to hear the appeal even on the Respondent’s failure on record to entirely meet the conditions of Appeal from the Magistrate court I Effurun.
GROUND 2
The learned Hon. Judge erred in law when he assumed jurisdiction to hear an appeal, the subject matter for which an execution has been carried out on record before the breaking of the seal by the Respondent, in the absence of a prayer to set aside the execution.
GROUND 3
The learned Hon. Judge erred in law in holding that service on corporate Body, especially originating process or court documents ought to be at the registered office or head office and to be served on Managing Director secretary or principal officer of the company.
GROUND 4
The learned Hon. Judge erred in law when he held that Exhibit E was invalid having been given at commencement of another term of the lease.
GROUND 5
The learned Hon. Judge erred in law when he held that the Appellant has not proved his case to be entitled to judgment.
In his brief the Appellant raised 5 issues for determination. He did not however tie his issues with the grounds of appeal but luckily there are five grounds of appeal and 5 issues raised. It is taken for granted that each issue is raised in respect of each grounds of appeal. The issue raised are as follows: I quote
“Whether the tenancy agreement of the parties is based on a sublease for a fixed term and whether the term of years can run without a party meeting the condition precedent?
Whether the learned trial Judge was right to hold that the service of the notices were not in accordance with the law and therefore bad service.
Whether a Court of Appeal can set aside a judgment whose subject matter has been executed without an order setting aside the execution?
Whether an Appellate court can assume jurisdiction on a matter without Appellant meeting in full the conditions of appeal or signing a bond as required?
On whether Appellant sufficiently proved his case at Magistrate Court to be entitled to judgment?
On a perusal of the facts of this appeal issue one as drafted by the Appellant will decide the appeal one way or the other i.e. Whether the learned trial Judge was right to hold that the service of the notice were not in accordance with the law and therefore bad service.
The Appellant is of the opinion that the court of 1st instance i.e. the Magistrate Court was right to hold that 6 months notice is 182 days and the Appellate Judge was wrong when he held at page 146 thus:
I do not subscribe to the view held by the learned Magistrate that 6 months Notice is 182 days, I rather take the view that 6 months Notice should and ought six calendar months and if we go by this Exhibit E i.e. of no use because it has failed to meet the required Notice”. He relied on the case of A.P. LTD V. J.K. OWODUM 1991 8 NWLR Pt 210 page 391.
The Respondent in a mixed up argument submitted that the notice to quit does not satisfy the (6) months period it is meant to serve for a yearly tenant in line with the Recovery of Premises Laws Cap 142 Laws of Bendel State applicable to Delta state. He referred to A.O. OYEKOYA v. G.B. OLIVANT NIG LTD. (1969) ANLR (No page supplied); A.P. NIG. LTD V. OWODUM Supra. He argued that Exhibit E falls short of the Mandatory Statutory requirement that the Respondent being a yearly tenant is entitled to a “six months Notice to quit” that should terminate at the anniversary of the tenancy.
Let me start by quoting the relevant part of the Law on Recovery of Premises i.e. Cap 142 Laws of Bendel State applicable to Delta State as at the institution of this suit or appeal, Section 8 and 9 of the said Law provides as follows:-
8. (1) Where there is no express stipulation as to the notice to be given by either party to determine the tenancy the following periods of time shall be given –
a) In the case of a tenancy at will or a weekly tenancy a week’s notice;
b) In the case of a monthly tenancy, a month’s notice;
c) In the case of a quarterly tenancy, a quarter’s notice;
d) In the case of a yearly tenancy, half a year’s notice:
Provided that in the case of a yearly tenancy the tenancy shall not expire before the time when any crops growing on the land, the subject of the tenancy, would in the ordinary course be taken, gathered, or reaped if such crops were crops which are normally reaped within one year of planting and such planting was done by the tenant prior to the giving of the notice.
(2) The nature of a tenancy shall, in the absence of any evidence to the contrary, be determined by reference to the time when the rent is paid or demanded.
9. Notice referred to in section 8 may be given at any time prior to the date of termination of the current terms of tenancies, but they shall not be effective if the time between the giving of the notice and the time when the tenancy is to be determined is less than the respective periods set out in section 8.
Let me also quote verbatim the said Notice to Quit by a letter from Oshevire O.J. Associate Barrister and Solicitor that is Exhibit ‘E’
AIR LIQUIDE NIGERIA PLC
112 AIRPORT ROAD,
UGBOROKE- EFFURUN.
ATTENTION:
MR. NKEM C. ONWUDINJOH,
OPERATIONS MANAGER,
QUIT NOTICE
I, Obukohwo Joseph Oshevire Esq. the Solicitor/Agent to Esq. Akpokiniovo acting on behalf of Chief D.M. Akpokiniovo’s family and estate – your Landlord, hereby give you notice to quit and deliver up possession of the 16331.25 square metres of land together with the appurtenances situate and being at No. 112 Airport Road Ugboroke- Effurun, in Uvwie Local Government Area of Delta State of Nigeria which you hold of him on behalf of Chief D.M. Akpokiniovo’a family and estate as a tenant thereof on the 22nd day of May, 2005.
Dated at Oyoma Chambers this 19th day of November 2004.
We remain,
Yours faithfully,
(SGD)
O.J. Oshevire Esq.
Solicitor/Agent to Esq. Akpokiniovo.
The law is very clear and devoid of any ambiguity therefore when the present situation is put into a straight jacket of the law. Does it fit. Is Exhibit ‘E’ a valid foundation for this case both at trial and on appeal.
My answer is in the negative. The learned trial Magistrate was wrong in her interpretation of six clear months. I agree with the interpretation of the Appellate Judge which in law is correct and can not be faulted.
In order to be effective a notice to quit should determine a tenancy at the end of the term of the tenancy. For instance a notice of six months is necessary to determine a yearly tenancy as in the instant case and such notice must terminate the tenancy at the end of the current term of the tenancy. Thus any notice given and due to end at the middle of the term of the tenancy will be invalid. See OMOTOSHO V. OLORODE (1988) 4 NWLR (Pt 37) 225; AFRICAN PETROLEUM LTD. V. OWODUNI (1991) 8 NWLR (Pt 210) 391 SC; PAPER SEEK NIG. LTD V. ODUTOLA (2004) 13 NWLR (Pt. 891) 509.
Furthermore Section 18 of the Interpretation Act provides that a month is a calendar month computed accurately to the Gregorian calendar. It therefore follows that an action for Recovery of Premises has to strictly comply with the procedure as provided in the recovery of Premises Law as any procedure outside the one provided for the recovery of premises is fatal. See AIYIKE SHORES LTD. V. S.A. OLA ADEBOGUN (2008) 10 NWLR Pt. 1096 page 612.
None compliance in this case under consideration is fatal to the appellant’s case.
Failure to give statutory notice as provided by the law is a condition precedent to the exercise of jurisdiction. See SULE V. NIG. COTTON BOARD (1985) 2 NWLR (PT. 5) 17. What is the proper order to make? The only option available to the trial Judge is to strike out the case.
In effect I dismiss the appeal as lacking in merit. I set aside the judgment of the trial Magistrate and the appellate Judge and I strike out the case.
No order as to cost.
R.C. AGBO, J.C.A.: I agree.
OYEBISI FOLAYEMI OMOLEYE, J.C.A: I had the privilege of reading in draft the leading judgment just delivered by my learned brother Shoremi, JCA. I agree with the line of reasoning leading to the conclusion that this appeal is unmeritorious. It is accordingly dismissed.
Appearances
A.I. Odigwe Esq.For Appellant
AND
A.A. Bekederemo Esq.For Respondent
