EZEANYI & ANOR v. SOMACHI INVESTMENT (NIG.) LTD & ANOR
(2022)LCN/16512(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, March 31, 2022
CA/OW/402/2017
Before Our Lordships:
James GamboAbundaga Justice of the Court of Appeal
Ibrahim WakiliJauro Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
1. BENCOOL EZEANYI 2. MR. PROMISE OKORO (For Themselves And As Representing The Association Of Luxury Bus Owners Of Nigeria (ALBON) Imo State APPELANT(S)
And
1. SOMACHI INVESTMENT NIGERIA LIMITED 2. NZE HERBERT CHIKWE RESPONDENT(S)
RATIO:
A DOCUMENT CANNOT BE AMENDED OR ALTERED BY ORAL EVIDENCE
The law is that a document cannot be amended or altered by oral evidence. Appellants’ counsel submitted further that it is also the law that admitted documents useful as they could bewould not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport, citing Alao v. Akano (2005) 11 NWLR (Pt. 935) 160 at 114 paras B – D. Therefore, in line with this authority, counsel submits that the evidence of PW1 explains to the Court the present state of Exhibits “3” or “13”, the various amendments, the portions taken away from the original parcel of land etc as represented by the documents (receipts) tendered. JAMES GAMBO ABUNDAGA, J.C.A.S
THE COURT IS AT LIBERTY TO REFRAME THE ISSUES FORMULATED BY THE PARTIES
In this wise, it is pertinent to state that it is trite law that a Court isat liberty to reframe the issues formulated by the parties or to frame entirely its own issues to give the case clearer appreciation. See the case of Minister of FCT & Anor v. Polaris Bank & Anor (2019) LPELR – 50393 (CA) Pp. 13 – 14 paras. E – F, Etim v. Akpan &Ors. (2018) LPELR – 44904 (SC), Pp. 11 – 12, paras D – B, Michika v. Imam (2010) LPELR – 4448 (CA), pp. 53 – 54, paras D – B. JAMES GAMBO ABUNDAGA, J.C.A.
THE EFFECT OF A TENANT WHO IS BEING SUED FOR RECOVERY OF POSSESSION
A tenant who is sued for recovery of possession would normally canvass argument that he had not been served proper notice to quit with the sole aim of retaining possession on ground that his right to proper notice had been violated. Where he succeeds, he retains possession until the Landlord properly invokes the jurisdiction of the Court to quit him from his premises. In the instant appeal, it is common ground between the appellants and the respondents that the appellants gave up possession since 2015 – See pages 102 and 104 of the record of appeal. JAMES GAMBO ABUNDAGA, J.C.A.
A COURT OF LAW CANNOT SERVE AS A FORUM FOR MOOT TRIALS OR ACADEMIC EXERCISES
In the case of State v. Azeez &Ors. (2008) LPELR – 3215 (SC), the Court held:
“A Court of law deals with live issues which will have bearing in one way or the other on any of the parties or all the parties before it. A Court of law cannot serve as a forum for moot trials or academic exercises. See Iweka v. SCOA Nig. Ltd. (2000) 3 S.C. 21; (2000) 3 SCNJ 71, Abimbola v. Abatan (2001) 4 S.C. (Pt. I) 64; (2001) 4 SCNJ 73, Bello v. Fayose &Ors. (1999) 7 S.C. (Pt. II) 5; (1999) 7 SCNJ 286.”
Per MUHAMMAD, JSC (P. 44, paras. D-E).
Therefore, I resolve issue two in favour of the respondents. JAMES GAMBO ABUNDAGA, J.C.A.
CASES DECIDED ON PLEADINGS ARE DECIDED ON THE ISSUES AS JOINED IN THE PLEADING
Now, it is settled law that cases decided on pleadings are decided on the issues as joined in the pleading, the purpose being to avoid surprise. See Adeosun v. Gov. of Ekiti State & Ors (2012) LPELR – 7843 (SC) P. 23 paras F – G, George & Ors v. Dominion Flour Mills Ltd (1963) LPELR – 15458 (SC), P. 10 paras A – D, Umoffia v. Ndem (1973) LPELR – 3372 (SC) PP. 9 – 10, paras E – B. JAMES GAMBO ABUNDAGA, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): On 16th January, 2017, the High Court of Imo State, holden at Owerri, presided over by Hon. Justice N. B. Ukoha, delivered judgment in Suit No. HOW/308/2013. In the judgment, the claims of the claimants (now “appellants’”) were dismissed while the counter-claims of the defendants (now “respondents”) were granted.
Piqued by this judgment the appellants filed an appeal to this Court. The Notice of Appeal was filed on 16th February, 2017. With leave of this Court sought and obtained the notice of appeal was amended. The amended Notice of Appeal was filed on 5/6/18 and deemed properly filed and served on 10/4/19. The amended Notice of Appeal contains three (3) grounds of appeal.
For a better understanding of the gravamen of the appeal, it is pertinent to set out the claims and counter-claims of the appellants and respondents respectively at the lower Court.
In the writ of summons and statement of claim filed on 2/5/13, the claimants (appellants) claimed the following reliefs against the defendants/respondents:
‘(a) A declaration that the claimants being lawful tenants of the defendants cannot be evicted/ejected from the Somachi Park Egbu Road, Owerri without due process.
(b) Perpetual injunction restraining the defendants from ejecting/evicting, attempting to evict/ejecting the claimants or from howsoever, disturbing the claimants from their lawful possession of the Somachi Park, without due process.
(c) The sum of (N10,000,000) Ten million Naira general damages for the constant harassments and threats against the claimants.”
Upon being served, with the claimants’ processes, the defendants (respondents) filed their statement of defence and counter-claims on 31/5/2013, wherein they counter-claimed as follows:
“(a) Possession of all that space in Somachi Centre situate at Egbu Road, Owerri.
(b) Arrears of rent from the 15th of February, 2006 to 31st December, 2013 amounting to Thirty-two million and eight hundred thousand Naira only at the rate of N400,000 per month.
(c) Mense profit at the rate of N400,000 per month from January, 2013 till possession is delivered.”
On 4/7/2013, the defendants amended their statement of defence and counter-claim but retained the same counter-claims (that is, they retained the reliefs earlier claimed in the statement of defence and counter-claims). The claimants, who had earlier filed a reply to the original statement of defence and counter-claim, amended his statement of claim. He like the defendants retained the same reliefs earlier claimed in the hitherto statement of claim.
At the trial which ensued on the close of pleadings, the claimants called one witness and tendered 24 exhibits, while the defendants also called one witness and tendered 9 exhibits.
Thereafter, the parties filed their final written addresses as settled by their counsel, hence the judgment now on appeal.
The record of appeal was compiled and transmitted on 20/12/17 but deemed properly compiled and transmitted on 28/5 /18.
Subsequent to due compilation and transmission of the record of appeal, the appellants filed their brief of argument on 23/4/19. The said brief, settled by their counsel, Ndionyenma Nwankwo, belatedly filed outside the time provided under the Rules of Court was regularized and thus deemed properly filed and served on 24/01/17.
In opposition to the appeal, the respondents filed their brief of argument, settled by their counsel, Ama Akalonu on 13/5/19. Having been filed outside the time provided by the Court of Appeal Rules, same was regularized, and deemed properly filed and served on 24/01/22.
The appellants deemed it necessary to file a reply brief, and therefore filed same on 24/01/22.
The briefs of argument were adopted at the hearing of the appeal on 24/01/22. At the hearing, Ishmael Nkwocha represented the appellants, while U. G. Ijeoma who held the brief of Ama Akalonu represented the respondents.
In adopting their respective briefs of argument, Ishmael Nkwocha urged the Court to allow the appeal and set aside the judgment of the trial Court, while U. J. Ijeoma, prayed the Court to dismiss the appeal and affirm the judgment of the trial Court.
The appellants argued the appeal on the following two issues:
“(i) Whether the trial Court was competent and clothed with the jurisdiction to hear and determine the counter-claim of the respondents (Distilled from Ground two).
(ii) Whether the Tenancy Agreement of 2005 (Exhibit 3) was still subsisting valid and binding between the parties in view of the various receipts issued by the respondents as in Exhibits 1 – 1Q, 2 – 2D and 11 (Distilled from Grounds one and three).”
Arguing issue one, it is submitted for the appellants that the jurisdiction of the trial Court was never activated since the relevant statutory notices were not served. That the judgment of the trial Court is therefore a nullity.
Submitted for the appellants is that at the time the counter-claim was filed, the appellants were still in possession. That a counter-claim is a suit on its own. The submission is backed up with the following cases:-
Haido v. Usman (2004) 3 NWLR 65, Yahaya v. Chukwura (2002) 3 NWLR (Pt. 753) page 20, Ogbonna v. A. G. Imo State (1992) 1 NWLR (Pt. 220) 647 at 675.
It is submitted that there is no valid notices that were issued upon which the respondents’ counter-claims could rest. As further submitted by the appellants’ counsel, the counter-claims of the respondents suggest that the tenancy in existence must be determined by statutory notices to quit and intention to recover possession. Further submits that even if the notice served in the previous suit (Exhibits “5” or “16”) were valid which they are not, the tenancy was still on and running as the respondents were still collecting rents from the appellants. The Court is on this point referred to Exhibit “11”, dated 7th December, 2012, while Exhibits “6” or “16” is dated 29th November, 2012, and filed on 30th November, 2012 – Refers to pages 28 and 243 of the record of appeal. Further cited in support of appellants’ contention are Amah v. Ozouli (2010) LPELR – 3762 (CA), Ayinke Stores Ltd. v. Adebogun (2008) 10 NWLR (Pt. 1096) 12.
It is further contended that the content of Exhibits “3” or “13” is that the quit notice must be 6 months, and therefore the issue of tenant at sufferance does not arise because the tenancy was still running. It is pointed out that the appellants paid rent of November, 2012 on 7th December, 2012 before the respondents stopped collecting rents as part of their lager strategy to force the appellants out. That the quit notice was issued on 30th November, 2012. Further contended that the judgment of the trial Court included arrears of rent and mesne profits. The question counsel asked is, what determined the arrears and mesne profits when there was no service of the requisite statutory notice or the agreed quit notice?
In sum, counsel reiterates that the Court lacked the requisite jurisdiction over the counter-claim in the absence of the requisite statutory notice issued, and therefore the trial Court ought to have dismissed the counter-claim of the respondent. Submits that the settlement that followed can only affect the entire suit and not a part of it as selectively applied by the trial Court.
On issue two, it is submitted by the appellants’ counsel that the Tenancy Agreement was no existing in its original form as same had been amended by the various agreements of the parties as documented in the various receipts issued by the respondents to the appellants.
It is further contended that the various receipts by their contents which were issued by the respondents effectively amended the Tenancy Agreement of February 2005. That the receipts as documents contain what they expressed. The case of Uzameze v. Urhoghide & Ors (2009) LPELR – 5082(CA) is relied on. It is submitted that the different payments as receipted were made in conformity with the oral agreement between the parties. Reference is made to the evidence of PW1 at pages 91 – 93 of the record of appeal. That the receipts were admitted without objection, and that nothing in the receipts suggest that they were only part payment. That they were payments for all the period of their tenancy except the rents for 2005.
It was contended that for unreceipted periods, they stated that the respondents did not issue receipts and this was not controverted by DW1. It was further pointed out that PW1 told the Court that rents were not paid for 2013 and 2014 before they vacated because, the respondents were not only harassing them to give up possession but also refused to collect further rents. That the respondents not only admitted that they issued Exhibits “1 – 1Q” and “2 – 2D”, and “11” but that they were rents paid to them. It was contended that Exhibit “11” particularly shows therein clearly stated that it was the balance for that month. Also contended is that there is no evidence from the respondents in any other form to suggest that the appellants owed balance on rents from 2006 till when they packed out.
Further submits that they are not owing any rent having paid their rents up to November, 2012 uncontested until the respondents on their own refused to collect rents.
Submits to the effect that they could not be owing rents and yet the respondents assisted the appellant to secure the alternative accommodation and gave a contractor N3M to construct toilet facilities for them, and even bought drinks for everyone including the appellants when the appellants were packing out.
Further contended for the appellants is that evidence abounds that part of what was left to the appellants as luxury bus owners were taken from them and given to some other transport owners. Evidence of PW1 at pages 91 – 93 is referred to, with a further submission that “perhaps” the reason that accounts for the reduction on rents.
The law is that a document cannot be amended or altered by oral evidence. Appellants’ counsel submitted further that it is also the law that admitted documents useful as they could be would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport, citing Alao v. Akano (2005) 11 NWLR (Pt. 935) 160 at 114 paras B – D. Therefore, in line with this authority, counsel submits that the evidence of PW1 explains to the Court the present state of Exhibits “3” or “13”, the various amendments, the portions taken away from the original parcel of land etc as represented by the documents (receipts) tendered.
That the tenancy agreement (Exhibits “3” or “13”) having been amended, the Court is urged to hold that the respondents are not owed any unpaid rents, and to resolve issue two in favour of the appellants.
In their brief of argument, the respondents distilled three issues for determination; to wit:
“(a) Whether the issuance or not of statutory notice is not moot or academic, having regard to the findings of fact that the appellant voluntarily surrendered possession of the subject matter of the tenancy?
(b) Whether the lower Court lacked the requisite jurisdiction to entertain this suit?
(c) Whether there was a lawful novation or variation of the binding terms and conditions of the tenancy agreement dated 15th February, 2005?”
Learned counsel for the respondents argued issues (a) and (b) together.
It is contended for the respondents that ground 2 of the amended notice of appeal and any argument based therein is useless, otiose and a mere academic exercise. Argument of counsel is that the parties admitted that possession had been surrendered voluntarily by the appellants. Refers to page 102 lines 16 to 19, and page 104, lines 3 – 4 of the record of appeal. That the lower Court had also found that the appellants had surrendered possession of the subject-matter of the tenancy after the institution of the suit. Further references are made to pages 193, 194, 195 and 197 of the record of appeal.
The submission of counsel further is that the finding on voluntary surrender of possession was not appealed against by the appellants’ counsel. Further submitted that since possession is no longer an issue, the question whether or not statutory notice was served has been rendered spurious, moot and academic.
It is further submitted that Courts do not engage in academic exercise. That only live issues between parties are considered by the Court. Counsel goes on to elucidate on the purpose of a statutory notice, relying on a number of decided cases.
The alternative argument canvassed by respondents’ counsel is that in the event that the issue of statutory notice is still relevant, it is submitted for the respondents that the lower Court had jurisdiction to entertain the respondents’ counter-claim because the relevant statutory notices were issued. Further submission is that Exhibit “3” (or Exhibit “13”), clause 2 therefore stipulates a period of 6 months in writing. Counsel’s contention on behalf of the respondents is that the respondents complied with the aforesaid stipulation in clause 4, and refers to Exhibit “15”.
Exhibit “15”, counsel points out is a letter dated 2nd March, 2007 headed “inability to adhere to our Contract Agreement stipulations”, which is on pages 241 to 242 of the record of appeal. It is further contended that the one month notice served subsequently, more than 5 years after the sixmonths was only a needless surplusage. Therefore, it is further contended the appellant not only had six (6) months notice but actually had more than 5 years notice during which the appellants paid no rent as found by the lower Court. It is submitted that after the 6 months notice served via the letter dated 2nd March, 2007 (Exhibit “15”), the appellants became tenants at sufferance holding over the subject-matter of tenancy against the landlord’s interest. On this counsel relies on the case of C.C. & Co. Ltd. v. O. I. Ltd(2014) All FWLR (Pt. 757) 747.
In response to the submission of the appellants’ counsel that the one month notice mentioned in Suit No. HOW/135/2013 which was later discontinued, it is submitted, that what matter is whether the tenant had notice of the determination of the tenancy. It is submitted that the discontinuance of Suit No. HOW/135/2013 did not discontinue or exhaust the line of the notice already given.
In yet another argument, it is submitted for the appellants that Suit No. HOW/135/2012 was discontinued without prejudice regard being had to the fact that the discontinuance was to speed up thesettlement out of Court. It is argued that actions or statement made out of Court are made without prejudice and cannot be given in evidence. Cases cited include Evuleocha v. ACB (2001) 5 NWLR (Pt. 707) 672, UBN Plc v. Okoror (2002) 10 NWLR (Pt. 77) 307.
The Court is on the premise of the foregoing submissions urged to resolve issues A and B in favour of the respondents.
In his submissions on issue “C”, it is contended of respondents’ counsel that throughout the proceedings, the appellants failed to present any of the various amendments made to Exhibit “3”. Appellants placed reliance on Exhibits “1 – 1Q”, “2 – 2D” and “11” which are receipts for payments issued bearing various dates in 2012. However, counsel further submitted, the appellants failed to explain their non-payment of rents between 2006 and 2001, as found by the lower Court. It is contended that there is no appeal against this finding by the appellants. That the finding is therefore deemed admitted. Reliance is placed on Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664, Kolawole v. Alberto (1989) 1 NWLR (Pt. 98) 382 amongst others.Referring to payments of N40,000.00 and N100,000.00 at different times, it is submitted that they were part payments of arrears of rent owed by the appellants between 2006 and 2011 when they did not pay rents. On this, the Court is referred to the holding of the lower Court. Further submitted is that there is no appeal against that finding. On what constitutes novation, the Court is referred to Union Beverages Ltd v. Owolabi (1988) 1 NWLR (Pt. 68) 128 on which the Court relies.
On how variation can be made to an existing contract, reliance is placed on the case of Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420) 96, submitted that there is no characteristics of variation of Exhibits “3” or “13” especially as it relates to consideration.
It is therefore further contended that the argument of appellants’ counsel is speculative, which a Court of law is precluded from engaging in. It is also the contention of respondents’ counsel that for a later agreement to extinguish the rights and obligations created by an original agreement, the later agreement must either be made under seal or be supportedby consideration. The case of Mercantile Bank Ltd v. Adalma (1990) 5 NWLR (Pt. 153) 747 is relied on. The Court is urged to resolve issue C in favour of the respondents. On the whole, the Court is urged to allow the appeal, and to affirm the judgment of the lower Court.
In the appellants’ reply address, it is submitted that Suit No. HOW/135/2013 was withdrawn by the respondents because they had not served the appropriate 6 months notice (but rather served one month notice). That the respondents’ suit was earlier in time to theirs, which is Suit No. HOW/308/2013 which was filed on 2/5/2013, while the respondents’ Suit No. HOW/135/2013 was filed on 5th March, 2013.
That again Suit No. HOW/135/2013 was withdrawn due to the respondents’ self-interest to have the appellants relocate for their shop site business. Therefore, the withdrawal was in total settlement of all contending issues inclusive of rents that were due after Exhibit “11”. It is reiterated that after Exhibit “11”, no other rent was in issue, and none was demanded.
In respect of issues a and b, it is concluded for the appellants in thereply that Exhibits “14” and “15” never existed nor were they served as falsely claimed. That their existence were claimed, and documents made by interested persons (in this case, respondents) during the pendency of this suit contrary to the provisions of the Evidence Act, 2011. The Court is specifically referred to Section 83(3) of the Evidence Act, 2011, and the case of Skye Bank Plc v. Mrs. Jadesola Kudus (2011) LPELR – 4962 (CA).
The question is posed if Exhibit “15” existed, why were Exhibits “5” and “6”, the one month notice and 7 days served? It is further contended that Exhibit “15” is not a notice to quit as contemplated by law. Counsel relies on African Petroleum Ltd. v. J. K. Owodunni (1991) LPELR – 213 SC. The service of Exhibit “15” is faulted on some other grounds. Further submitted is that Exhibits “14” and “15” are forgeries.
The Court is therefore urged to discountenance respondents’ submission in issues A and B.
In reply to respondents’ arguments on issue C, it is submitted that there is a validappeal against the finding on other receipts tendered regarding payment of rents. Refers to ground one and three of the amended notice of appeal. Further submitted is that the payment of various rents of N40,000.00 per week and later N100,000.00 per month which were accepted met the conditions of a valid contract.
It is further contended that from the variations came two conditions – First, is that the respondents sublet the demised premises to another group of small bus owners and the second condition was economic. Counsel raised other issue, like that the respondents as the appellants were let into possession of the premises by the State Government. This issue did not arise from any of the grounds of appeal, and did not therefore emanate from issue C.
The issues formulated by the parties are substantially the same in the sense that they seek to answer the same questions that have arisen from the processes and pleadings in the case at the lower Court.
However, it is my candid view that the issues can be put in a better perspective for a clearer understanding.
In this wise, it is pertinent to state that it is trite law that a Court isat liberty to reframe the issues formulated by the parties or to frame entirely its own issues to give the case clearer appreciation. See the case of Minister of FCT & Anor v. Polaris Bank & Anor (2019) LPELR – 50393 (CA) Pp. 13 – 14 paras. E – F, Etim v. Akpan &Ors. (2018) LPELR – 44904 (SC), Pp. 11 – 12, paras D – B, Michika v. Imam (2010) LPELR – 4448 (CA), pp. 53 – 54, paras D – B.
Therefore, it is my view that the following issues sufficiently address the issues canvassed in counsel’s brief of argument, viz: –
(i) Whether the proper notice(s) to quit was (were) issued to activate the trial Court to assume jurisdiction over the respondents’ counter-claim to possession.
(ii) Whether the delivery of possession of the premises in the course of trial could validate the judgment of the trial Court in favour of the respondents in the event of the resolution of issue one in the negative.
(iii) Whether the respondents are entitled to the judgment of the lower Court that was given in their favour.
ISSUE ONE
The tenancy agreement between the appellants andthe respondents were admitted in evidence as Exhibit “3” and Exhibit “13”. Exhibit “3” was admitted at the instance of the appellant while Exhibit “13” was admitted at the instance case of the respondent.
The tenancy agreement thus provides in clause 4:
“Either party may determine this agreement by six months’ notice in writing to the other party.”
What the respondents sought to do by their counter-claim is to determine the tenancy. The corollary of this is that there cannot be recourse to the Court to recover possession unless and until the stipulation of notice in the agreement is complied with. In that case, where there is non-observance, the Court will not be clothed with the requisite jurisdiction to entertain the suit. The issuance of the required notice is therefore a condition precedent to the exercise of jurisdiction.
In the case of Madukolu&Ors v. Nkemdilim (1962) LPELR – 24023 (SC), the Court held:
“…a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no memberis disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided the defect is extrinsic to the adjudication.”
Per BAIRAMIAN, JSC (Pp. 9-10, paras. F-D)
See also Oke&Ors v. Aiyedun (1986) LPELR – 2427 (SC) Pp. 19 – 20 paras E – C, Ejike&Ors v. Ifeadi&Ors (1998) LPELR – 1064 (SC) pp. 20 – 21 paras. D – A.
Now in paragraph 11 of the amended statement of claim the claimants (now appellants) averred that they (appellants) were served with one month notice although what was stipulated in the tenancy agreement was six (6) months and eventually seven (7) days.
In paragraph 11 of the amended statement of defence and counter-claim, the defendants averred thus:
“The Defendants deny paragraphs9, 10, 11, 12 and 13 of the statement of claim and aver that the claimants where (sic) issued on the statutory notices as required by law, the said notices are hereby pleaded and will be relied upon at the trial.”
The claimants were specific that they were not served the statutory 6 months notice but the respondents (defendants) claimed that they served them the statutory notices. They refused to be specific. Since the claimants denied being served the statutory notice, the duty of the defendants was therefore beyond tendering what they claimed was the statutory notice (Exhibit “15”) titled “inability to adhere to our Contract Agreement stipulations”. They were required to also prove the service of the statutory notice on the claimants. However, they did not. One thing else which I noticed of significant importance is that Exhibit “15” is dated 28/3/07. As pleaded by the defendants (respondents), it was given as a notice for the purpose of institution of Suit No. HOW/135/2013 by the defendants which was later discontinued. This is the same notice which the respondents are laying claim to as the statutory notice thatwas issued before the counter-claim they filed to the appellants’ Suit No. HOW/308/2015, judgment on which is now in the instant appeal. This claim in my view, is not sustainable. As testified to by the 2nd defendant who gave evidence as DW1 under cross-examination, that case was withdrawn by the intervention of the government through the Ministry of Lands. It is of course a fact that after the withdrawal of the case, the normal relationship of Landlord and Tenant was resumed. Therefore, the previous statutory notice could not be used as the basis of Suit No. HOW/308/2015 that was instituted more than about 8 years after. Of course again, there was this discordant tunes between the respondents and the Court. While the respondents insisted that they issued the statutory notice of 6 months followed by one month and 7 days before they filed the counter-claim, the learned trial Judge seemed to have made a case different from the one made by the respondents. According to the learned Judge, the appellants by not paying rents and as when due and had even sublet part of the premises to other Luxury Bus owners, and kiosks to food vendors had become tenant atsufferance and were only entitled to 7 days notice, and any other notice beyond that was surplusage. I think the learned trial Judge seriously misconceived what a tenant – at – sufferance means. In the case of Abeke v. Odunsi& Anor (2013) LPELR – 20640 (SC), P. 24, paras A – E, a tenant at sufferance was defined thus:
“where a tenant for a fixed term refuses at the expiration of the tenancy to vacate possession and wrongly, that is, without the consent of the Landlord continues in possession, he would at common law be a tenant at sufferance: A tenancy at sufferance arises where a tenant, having valid tenancy, holds over without the Landlord’s consent.”
See Pan Asian African Co. Ltd v. NICON (1982) LPELR – 2898 (SC), PP. 50 – 51, paras E – A, A.P. Ltd. v. Owodunni (1991) LPELR – 213 (SC) P. 20 paras A – E.
By this clear definition of a tenant at sufferance, it is without doubt that the appellant is not a tenant at sufferance but a statutory tenant. Therefore, to quit him from the premises, he must be given notice in accordance with the stipulation in their tenancyagreements which is 6 months followed by 7 days notice of Landlord’s intention to recover possession through the Court process.
In the premise of the foregoing, the conclusion I arrive at on issue one is that no proper notice was issued to activate the Court’s jurisdiction to assume jurisdiction in the respondents’ counter-claim for possession.
ISSUE TWO
At the lower Court and in this Court, the argument of the appellants’ counsel is that even though the defendants gave up possession in 2015, the claims for arrears of rent and mesne profits are on the same principle of issuance of statutory notices. It is submitted for the appellants that the defendants did not sue to recover debts. However, in his submission learned counsel relied on the case of Ayinke Stores Ltd v. Mr. S. A. Ola Adebogun (2013) All FWLR (Pt.682) 1797 at 11 809 – 1810 paras U – A, where the Court said:
“In sum, the service of a valid quit notice is a precondition for the recovery of possession, as said earlier the claim of the respondent was not brought by due process of the law and upon fulfillment of any condition precedent to theexercise of jurisdiction in reliance on the case of Madukolu Vs. Nkemdilimand Sule Vs. Nig. Cotton Board. In cases of recovery of possession, the service of the notice of intention to the recovery of premises on the tenant is a condition precedent to the exercise of jurisdiction.”
Also referred to is the case of Martha Udusegbe v. Julius Tugba (2011) All FWLR (Pt. 599) 1191 at P. 1203 paras B – E. It will be seen that emphasis is placed on the requirement of issuance of valid notice as prerequisite of an action for recovery of premises. Situation may occur where a Landlord sue for recovery of premises without arrears of rent or mesne profits. At other time, the Landlord may sue for arrears of rent alone without seeking for recovery of possession. From the authorities, there cannot be an action to recover possession without a prior valid quit notice but the same cannot be said where the action is for arrears of rent. In fact, even in cases where an action for recovery of possession is coupled with arrears of rent and mesne profits, the filing charges for recovery of possession is distinct from the charges for arrears of rent and mesne profits.
A tenant who is sued for recovery of possession would normally canvass argument that he had not been served proper notice to quit with the sole aim of retaining possession on ground that his right to proper notice had been violated. Where he succeeds, he retains possession until the Landlord properly invokes the jurisdiction of the Court to quit him from his premises. In the instant appeal, it is common ground between the appellants and the respondents that the appellants gave up possession since 2015 – See pages 102 and 104 of the record of appeal.
Come on, in the circumstances what utilitarian value will it be to the appellants to have the appeal allowed on the sole ground that they were not served the proper notices before the counter-claim for possession was filed when the appellants had since 2015 given up possession and is comfortably settled elsewhere? This is where I find the submission of respondents’ counsel that Courts do not engage in academic exercise but live issues between parties most availing. It has been held that Courts are enjoined to shun matters of academic exercise and of no consequential value but to focus onlives issues before it. See Ekene Peter Okoye v. The State (2019) 48860 (CA), PP. 21 – 23 paras E – B, Rabiu v. Amadu (2002) LPELR – 9161 (CA), PP. 24 – 25 paras E – A, Bewaji v. Obasanjo &Ors (2007) LPELR – 4266 (CA), PP. 38 – 39, para E.
In the case of State v. Azeez &Ors. (2008) LPELR – 3215 (SC), the Court held:
“A Court of law deals with live issues which will have bearing in one way or the other on any of the parties or all the parties before it. A Court of law cannot serve as a forum for moot trials or academic exercises. See Iweka v. SCOA Nig. Ltd. (2000) 3 S.C. 21; (2000) 3 SCNJ 71, Abimbola v. Abatan (2001) 4 S.C. (Pt. I) 64; (2001) 4 SCNJ 73, Bello v. Fayose &Ors. (1999) 7 S.C. (Pt. II) 5; (1999) 7 SCNJ 286.”
Per MUHAMMAD, JSC (P. 44, paras. D-E).
Therefore, I resolve issue two in favour of the respondents.
ISSUE THREE
The judgment of the trial Court is attacked majorly on the bases that the tenancy agreement (Exhibits “3” or “13”) was no longer existing in its original form as same had been amended by various receipts issued by therespondents to the appellants. The receipts referred to are Exhibits “1 – 1D”, Exhibits “2 – 2D” and Exhibit “11”. It was submitted that until the appellants instituted their action in 2013 against the respondents, there was no issue of any arrears being owed by the appellants. It is further contended that the different payments were made in conformity with the oral agreement between the parties. Counsel to the appellants points out as interesting, that there was no objection when the receipts were tendered and no suggestions were made to the witness (PW1) that the receipts were only for part payment.
It is contended that the receipts were for all the payments except the rents for 2015. However, it was further submitted that PW1 told the Court that for other unreceipted periods the respondents did not issue receipt, a fact that was not controverted by the respondents. As regards rents of 2013 and 2014, that PW1 said he had not paid before they vacated because the respondents were not only harassing them to give up possession but refused to collect rents as part of measures to force the appellants to giveway for the Shoprite.
For the respondents, it is submitted that the appellants failed to tender any document or any of the various agreements which purportedly amended or varied the stipulations in Exhibit “3”.
It is further submitted for the respondents that the various piece-meal payments (Exhibits “1 – 1Q”, “2 – 2D” and Exhibit “11”) were part payment of arrears of rent owed by the appellants between 2006 and 2011 when they did not pay any rent.
Now, it is settled law that cases decided on pleadings are decided on the issues as joined in the pleading, the purpose being to avoid surprise. See Adeosun v. Gov. of Ekiti State &Ors (2012) LPELR – 7843 (SC) P. 23 paras F – G, George &Ors v. Dominion Flour Mills Ltd (1963) LPELR – 15458 (SC), P. 10 paras A – D, Umoffia v. Ndem (1973) LPELR – 3372 (SC) PP. 9 – 10, paras E – B.
In paragraphs 5, 6 and 7 of the amended statement of claim, the appellants stated clearly that Exhibit “3” or “13”, is the agreement that regulates the relationship between themand the respondents. They averred that there was no time the agreement was revoked or terminated. Further averred therein is that they have been paying their rents duly and that some of the recently paid rents are those of June, July, August, September and October which they pleaded. However, there is no pleading to the effect that the agreement (Exhibits “3” or “13”) was either amended in writing, orally or via any of the receipts they referred to for payments made in the named months in the year 2012. Having not pleaded any amendment to Exhibit “3”, they cannot give evidence to that effect. Any evidence so given goes to no effect. Therefore, the evidence of PW1 referred to in counsel’s submission is of no moment. It has nothing to stand on.
I also find as unacceptable, the submission made for the appellants that the receipts tendered by them were admitted in evidence without objection by the respondents who did not also point out that the receipts were for part payment only. I think the appellants did not appreciate that the burden was on them to prove that the receipts were for payment for the whole rents owedand not part payment only since by their own showing Exhibit “3”, the agreement which binds them states quite clearly that the rents payable to the respondents was N400,000.00 per month.
I also do not think that the appellants appreciated the implication of the concession made in their submission that PW1 told the Court that he had not paid rent of 2013 and 2014 before they vacated the premises of the respondents because the respondents were not only harassing them to give up possession but that they also refused to collect further rents. Is there any evidence produced by them that because they were harassed or that they refused to collect rent from them, they were excused from meeting up with their responsibilities under Exhibit “3” by paying up their rents for that period at a later date when so demanded? None was produced.
The learned trial Judge caught the essence of this piece of evidence quite correctly when he held thus at page 196 of the record of appeal:
“In the course of trial, the claimants admitted that at some period of time, they were not paying rents because the defendants were hostile to them and alsorefused to collect rents from them. It therefore follows that the claimants having admitted that at a point in time they were not paying rent meant that the arrears of rent and so such facts admitted require no further proof. I am therefore of the considered view and based on the evidence before me, the claimants are in arrears of rent to the tune of N31,480,000 (Thirty-one million, four hundred and eighty thousand Naira) as against the sum of N32.8 million claimed by the defendants.”
The learned trial Judge explained how he arrived at the above figure. In the same page 196 of the record, he stated:
“The defendants averred in their amended statement of defence that apart from the initial payment representing the rents for 2005 – 2006, the claimants never paid any other rent. By relief (1) in the defendants’ counter-claim, the defendants are claiming the sum of N32.8 million at the rate of N400,000 per month from 15th February, 2006 to 31st December, 2013. However from evidence of the claimants and Exhibits 1 to 1Q, 2 to 2D and 11 which were never objected to by the defendants, those receipts showed equivalent of (N1,320,000) onemillion, three hundred and twenty thousand Naira only paid, the Exhibits (receipts) were all issued in various months in 2012. The Court also observed that Exhibits 1 to 1Q showed that the claimants were paying N40,000 weekly totaling N1,320,000 which the defendants also acknowledged.”
These findings have not been faulted by the appellants, except for their claim that they were not owing rent because the tenancy agreement (Exhibit “3”) had been amended, and therefore the payments shown on the receipts which they tendered and were admitted in evidence as Exhibit “1 – 1Q”, “2 – 2D” and “11” satisfied their total indebtedness to the respondents in rents.
In regard to the respondents’ counter-claim for mesne profits, the learned trial Judge held as follows at page 197 of the record of appeal:
“In relief (C) of their counter-claim, the defendants are claiming mesne profits at the rate of N400,000 a month from January 2013 till possession is delivered. There is evidence that the claimants left the premises in April 2015. This evidence came from the defendants during cross-examination of DW1. It therefore follows that since it is not in doubt that the claimants were in possession of the premises up to and including April 2015, the mesne profits payable by the claimants is from January 2013 to April 2015. The Court therefore holds that the claimants shall pay the sum of N11.2 million only being the mesne profit at the rate of N400,000 from January 2013 to April, 2015.”
I should point out for purpose of clarity that the calculation of mesne profit from January 2013 is predicated upon the supposed 7 days notice of owners intention to recover possession dated 12th January, 2013. The notice (Exhibit 16) expired on 31st December, 2012.
It will be recalled that while dealing with issue one, I came to the conclusion that there was no valid notice issued by the respondents to the appellants. The implication is that up to April, 2015 when the appellants voluntarily surrendered possession, they were still lawful tenants of the respondents. Therefore the respondents can only claim arrears of rent up to until April 2015 and not mesne profits from January, 2013 to April 2015.
However, this does not change theamount awarded because, under the Landlord and Tenant Law, mesne profits are awarded in place of rents. See the cases of Ibekwe v. Nweke (2013) LPELR – 22021 (CA), PP. 35 – 36, paras G – A, Debs &Ors. v. Cenico (Nig.) Ltd (1986) LPELR – 934 (SC), P. 9 para A.
What the respondents are entitled to is the rent as agreed in Exhibit “A”, and it is the same amount of N400,000 per month that was used for the period from January 2013 to April 2015 the total of which is N11.2 million. Acting under the powers of this Court under Section 15 of the Court of Appeal Act, 2021, I hereby add this sum (N11.2 million) to the sum of N31, 480,000 as arrears of rent to which the respondents had earlier been adjudged to be entitled to as arrears of rent. Thus, the total amount to which the respondents are entitled as arrears of rent is forty-two million, six hundred and eighty thousand naira (N42,680,000) only.
Therefore, issue three is resolved in favour of the respondents.
In sum, the appeal is without merit, and is hereby dismissed.
In consequence, the judgment of the lower Court delivered on 16th January, 2017 ishereby affirmed. The sum of N11.2 Million awarded as mesne profits is hereby awarded as arrears of rent, and is included in the judgment sum of N42,680.000.00.
No order as to costs.
IBRAHIM WAKILI JAURO, J.C.A.: I had the preview of reading the draft judgment delivered by my learned brother, James G. Abundaga, JCA and I totally agree with his findings and conclusions that the appeal lacks merit and same must fail and is hereby dismissed by me. No order as to costs.
ADEMOLA SAMUEL BOLA, J.C.A.: I have the privilege of reading the draft of the judgment of my learned brother, JAMES GAMBO ABUNDAGA, JCA. I am persuaded by his reasoning and conclusion. I am in agreement with him.
Consequently, I abide by his conclusion and the consequential orders made.
Appearances:
Ismael Nkwocha For Appellant(s)
U. G. Ijeoma, holding the brief of Ama Akalonu For Respondent(s)