HILDA JOSEF v. CHIEF A. S. ADOLE
(2010)LCN/3714(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of April, 2010
CA/A/198/2007
RATIO
EVIDENCE: WHAT IS THE STANDARD OF PROOF IN CIVIL CASES
In a civil case, the Court decided the case on the balance of probabilities or preponderance of evidence. This is done when the trial Court puts on an imaginary scale on the totality of the evidence adduced by the parties before it, before coming to a decision as to which evidence it accept and which it rejects. See Fagbenro v. Arobadi (2006) 7 NWLR (Pt.978) page 174; Olusile v. Maiduguri Metro. Council (2004) 4 NWLR Pt.863 page 290; Adebayo v. Adusei (2004) 4 NWLR (Pt.862) page 44. PER ABDU ABOKI, J.C.A.
APPEAL: WHETHER AN APPELLATE COURT CAN SUBSTITUTE ITS OWN VIEWS FOR THE VIEWS OF THE TRIAL COURT
Where a trial Court unquestionably evaluates the evidence and appraises the facts, an appellate Court is enjoined not to substitute its own views for the views of the trial Court. See:
Fagbenro v. Arobadi (supra) at page 184;
Ezukwu v. Ukachukwu (2004) 17 NWLR Pt.902 page 227;
Ajero v. Ugorji (1999) 10 NWLR Pt.621 page 1;
Okeke v. Agbodike (1999) 14 NWLR Pt.638 page 215;
Atanda v. Ajani (1989) 3 NWLR Pt.111 page 511;
Odofin v. Ayoola (1984) 11 SC page 72. PER ABDU ABOKI, J.C.A.
EVIDENCE: BURDEN OF PROOF IN CIVIL MATTERS
It is trite law that by virtue of section 137 of the Evidence Act Cap 112 Laws of the Federation 1990, in civil cases the burden of proof is on the party who asserts a fact to prove same, for he who asserts must prove. See:
Longe v. FBN Plc (2006) 3 NWLR Pt.967 PAGE 228;
Mani v. Shanono (2006) 4 NWLR Pt.969 page 123;
Audu v. Guta (2004) 4 NWLR Pt.864 page 463. PER ABDU ABOKI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MARY PETER-ODILI Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
HILDA JOSEF Appellant(s)
AND
CHIEF A. S. ADOLE Respondent(s)
ABDU ABOKI, J.C.A., (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of the Federal Capital Territory delivered on the 9th day of July, 2007 by Hon. Justice S. C. Oriji.
The brief fact of the case is that the Defendant/Appellant , the occupant of the house situated at No. 18B Vaal Street, off Rhine Street, Maitama, Abuja, rented the house for a period of two years with an option to renew for another two years. The agreed rent was N2.5 million per annum and for two years a total of N5million, out of which the Appellant paid the sum of N4 million. The two year term was to run from 2nd November, 2004 to 2nd November, 2006.
The Appellant alleges that at the time of payment, she was neither issued with any receipt nor given a tenancy agreement. The Respondent however brought a tenancy agreement after a year but the Appellant refused to signed the agreement because the true and proper representation of the oral agreement of the parties was not incorporated into the tenancy agreement i.e. the renovation work already carried out by the Appellant before the tenancy agreement.
The Appellant also alleges that her refusal to sign the tenancy agreement and/or or give in to the inordinate demands of the Respondent, caused the Respondent to instruct his Solicitors to write a letter dated 13th July, 2006 to the Appellant and then subsequently a notice of intention to apply to recover possession of the property. The Respondent as Plaintiff instituted an action claiming among others an order of immediate possession of the premises, the balance sum of N1million, mesne profit and the cost of the action.
The Appellant at the trial Court claimed that she rented the premises and entered into an agreement with the Respondent to renovate the house to suit the purpose she intends to use it for, while the cost of renovation would be deducted from the next rent at the end of the current tenancy and that in furtherance of this agreement the Respondent gave the Appellant his building plan so as to enable the Appellant renovate the said house to suit her purpose.
The Respondent on the other hand denied ever agreeing with the Appellant to renovate the house or to refund the expenses on renovation to the Appellant or deduct it from the subsequent rent. He also testified that the building plan given to the Appellant was based on the Appellant’s request to see if she can stop the vibration from the adjoining flat but she could not.
In his judgment, the learned trial judge came to the following conclusions:
“1. That the renovation works carried out by the Appellant could not have been related to the reasons why the Respondent gave the Appellant the said building plans;
2. That the Appellant cannot he entitled to compensation from the Respondent for the renovations carried out since they were not carried out with the consent of the Respondent as required under Sections 14 and 15 of the Recovery of Premises Act LFN 1990;
3. That from the pleadings and evidence the Respondent is entitled to recovery of his premises from the Appellant;
4. That the Respondent is equally entitled to the sum of N1 million being arrears of rent for the term which ended on 1/11/06;
5. That the Respondent is not entitled to any mesne profit since he did not state how much he is claiming in his Statement of claim; and
6. The Respondent is entitled to the cost of N6,000.”
The Appellant, being dissatisfied with the Judgment, has appealed to this Court. From the Appellant’s original four Grounds of Appeal and the additional Ground of Appeal, five issues were distilled for the determination of this Appeal. They are as follows:
“1. Whether Exhibit ‘C’ and ‘D’ satisfied the requirements the Requirements of valid notices to be issued before an action for recovery of possession can be maintained?
2. Whether the trial judge properly evaluated the evidence adduced by the Appellant vis-a-vis the Respondent before arriving at his final decision that the Respondent is entitled to recover possession of No. 18b, Vaal Street, off Rhine Street Maitama, Abuja irrespective of the improvements/renovation works done by the Appellant?
3. Whether having regard to the oral evidence of the parties and the fact that the tenancy agreement between the Appellant and the Respondent was virtually oral, non-compliance with sections 14 and 15 of the Recovery of Premises Act LFN 1990 was capable enough to disallow the Appellant from being entitled to compensation/refund for renovation works done on the premises of the subject matter in dispute?
4. Whether decision of the trial judge was based on the weight of evidence adduced by the parties before the Court?
5. Whether the Respondent Solicitor was authorised in writing before the issuance and service of Exhibit ‘D’ which is the Notice of Owner’s intention to apply to recover possession?”
On behalf of the Respondent, the following Issue, were distilled for the determination of this Appeal as follows:
“1. Whether or not Exhibit ‘C’ and ‘V’ are adequate to determine the Appellant’s tenancy having regards to the pleadings filed before the trial Court and the evidence thereof.
2. Whether or not the judgment of the trial Court is against the weight of evidence before it.
3. Were parties to a tenancy relationship has an agreement, how is the tenancy regulated?”
The issues distilled by both the Appellant and Respondent for the determination of this Appeal are similar. However, I shall adopt the following issues for the determination of this Appeal:
“1. Whether Exhibit ‘C’ and ‘D’ satisfied the requirements of valid notices to be issued before an action for recovery of possession can be maintained?
2. Whether the trial judge properly evaluated the evidence adduced by the Appellant vis-a-vis the Respondent before arriving at his final decision that the Respondent is entitled to recover possession of No.18B, Vaal Street, off Rhine Street Maitama, Abuja irrespective of the improvements/renovation works done by the Appellant?
3. Whether having regard to the oral evidence of the parties and the fact that the tenancy agreement between the Appellant and the Respondent was virtually oral, non-compliance with sections 14 and 15 of the Recovery of Premises Act LFN 1990 was capable enough to disallow the Appellant from being entitled to compensation/refund for renovation works done on the premises of the subject matter in dispute?
4. Whether the Respondent’s solicitor was authorized in writing before the issuance and service of Exhibit ‘D’ which is the Notice of Owner’s Intention to apply to recover possession?”
Issue One:
“Whether Exhibit ‘C’ and ‘D’ satisfied the requirements of valid notices to be issued before an action for recovery of possession can be maintained?”
Learned Counsel for the Appellant, Ahmed T. Uwais pointed out that the Respondent in both his pleadings and oral evidence tendered Exhibits ‘C’ and ‘D’. He stated that Exhibit ‘C’ was the Respondent Solicitor’s letter to the effect that the Appellant should indicate her interest in renewing the premises since her tenancy was due to expire in November, 2006 while Exhibit ‘D’ was 7 days Notice of Owner’s intention to recover possession.
Learned Counsel maintained that the Appellant fully joined issues with the Respondent in Paragraphs 4 and 5 of the statement of defence, that the only evidence given in support of paragraphs 10 and 11 of the Respondent’s pleadings could be found in paragraphs 11 and 13 of the Respondent’s Witness Statement on oath at pages 7 and 264 of the Record and that the said Exhibits were tendered and admitted by the trial Judge in evidence.
Ahmed T. Uwais pointed out that the trial Judge admitted Exhibit ‘C’ and relied on same as a Notice to Quit served on the Appellant.
He submitted that the Exhibit ‘C’ cannot be regarded as a valid notice to quit and maintained that Section 8(1) (d) of the Recovery of Premises Act Cap 544 LFN 1990 provides that where there is no express stipulation as to the notice to be given by either party to determine the tenancy, subject to subsection (2) of this section in the case of a yearly tenancy, half of a year’s notice.
Learned Counsel stressed that from the evidence of the parties before the trial Court, the tenancy was a yearly tenancy even though the Appellant paid for two years in advance and that the Appellant’s tenancy ought to come to an end by 2/11/06 but Exhibit ‘C’ was written on 13/07/06 and served on the Appellant through one Mrs. Felix Ogundipe the same month.
He maintained that from the date on Exhibit ‘C’ and the period when it was served is not up to half a year notice as required by Section 8(1) (d) of the Recovery of Premises Act Cap 544 LFN 1990 and that in the absence of any express stipulation as to how the Appellant’s tenancy is to be determined, the Appellant ought to be entitled to half a year’s notice (i.e. 6 months notice).
Ahmed T. Uwais submitted that from the above, Exhibit ‘C’ did not meet the requirements of Section 8 of the Recovery of Premises Act and would therefore not be valid in law to enable a party recover possession in the absence of any express stipulation. He further submitted that the above-provision is mandatory and admits no discretion.
Learned Counsel argued that the Courts in a plethora of decisions had pronounced on the consequences of failure to serve statutory notices especially a Notice to quit on a tenant occupying a premise and referred to the cases of: Lasaki v. Dabian (1957) N.N.L.R. 12 page 15; Aruku v. Fayose & ors. (1970) 1 All NLR 445 at page 448.
Ahmed T. Uwais maintained that it is clear from Exhibit ‘C’ that the period between 13/07/06 to 2/11/06 is less than 182 days or 6months; that Exhibit ‘C’ therefore ought to be treated as an invalid notice and as such Exhibit ‘D’ cannot stand on invalidity as a basis for its own invalidity.
Learned Counsel submitted that the holding of the Court below on Exhibit ‘C’ and ‘D’ cannot be accepted as satisfying the requirements of Sections 7 and 8 of the Recovery of Premises Act LFN 1990 and therefore ought to be set aside. He urged the Court to so hold and referred the Court to the cases of: Owoade v. Texaco Africa Ltd. (1973) 8 NSCC page 61 at 69: Udeh v. Izedonmwen (1990) 2 NWLR Pt 132 page 357 at 366: Cobra Ltd. v. Omole Estate & Investment Ltd. (2000) 5 NWLR Pt 655 page 1 at 13; African Petroleum Ltd. v. J. K. Owodunmi (1991) 8 NWLR Pt.210 page 391; Odutola v. Papersack Nigeria Ltd. (2007) 1 CMLR Page 42 at 49.
Learned Counsel for the Appellant maintained that it is trite law that even when the tenancy of a contractual tenant comes to an end, unless a tenant decides to give up possession voluntarily, possession of the premises can only be wrested from him if the Court makes an order for possession against him after due notice to quit and of intention to apply for possession as prescribed for contractual tenants who hold identical quantum of tenancy as himself.
He further submitted that in this case there was no valid notice to quit issued to the Appellants as required by law and referred the Court to the cases of: American Economics Laundry Ltd v. Little (1951) 1 K. B page 400 at 406; Sule v. Nigerian Cotton Board (1985) 2 NWLR Pt.5 page 17.
In his response, counsel for the Respondent, Fridat H. Enefola submitted that Exhibits ‘C’ and ‘D’ are adequate to determine the Appellant’s tenancy because the Appellant is not a yearly tenant.
He maintained that the Appellant is a tenant for a fixed term period i.e. two years beginning from 2/11/04 – 2/11/06 and urged the Court to hold that Exhibit ‘C’ and ‘D’ are adequate to determine the Appellant tenancy.
Learned counsel for the Respondent maintained that the Appellant did not join issue with the Respondent on the fact that the Appellant is a tenant for a fixed term period of 2 years.
He submitted that it is trite law that parties are bound by their pleading and equally that fact admitted need no further proof and referred to the case of: Esoho v. Asuquo (2007) All F.W.L.R. page 355 at 359.
Learned Counsel contended that Exhibit ‘C’ is overreaching event in determining the Appellant s tenancy as no notice is required to determine a tenancy for a fixed term period after the effluxion of time thereof except notice of owner’s intention to apply to recover possession. He submitted that after the effluxion of time of a tenancy for a fixed term period, the only requirement of law on the landlord to recover possession of such premises is to issue and serve on the tenant Notice to tenant of owner’s intention to apply to recover possession popularly known as ‘seven days notice’. Learned Counsel referred the Court to the cases of: Odutola & anor v. Papersack Nig. Ltd (supra) at page 470.
He further submitted that the tenancy of the Appellant was to determine by effluxion of time on 2/1/2006 after the expiration of her fixed term period of 2 years, the status of the Appellant changes to that of a tenant , sufferance and the only notice required to be served on her by plethora of authorities is the notice of owner’s intention to apply to recover possession. He referred the Court to the cases of;
African Petroleum Ltd. v. J. K. Owodunni (1991) 8 NWLR Pt.210 page 39 at 396; Benjamin Onwuaghamba Ezenwa v. Opara Oko & ors. (1999) 14 NWLR Pt.637 pages 95 at 97.
In a Tenancy relationship, the position of the law is that the nature of a tenancy determines the length of notice to be given before a Landlord can apply for the recovery of the demised premises.
The parties in the instant case are divided on the nature and tenure of the tenancy in question. Whilst the Appellant maintains that the tenancy was a yearly tenancy, the Respondent contends that it is for a fixed ten, period of 2 years beginning from 2/11/2004 and terminates on 2/11/2006.
The Plaintiff/Respondent filed at the lower Court a Statement of Claim dated the 9th day of November, 2006 which is at page 4 of the Record. Paragraph 5 of the said Statement of Claim is pertinent and is reproduced as follows:
“5. Further to the above, the parties agreed at an annual rent of N2.5Million per annum for a fixed term of two years while the Defendant was to pay for the two years in advance with effect from 2nd November 2004 to 2nd November 2006, in the sum of N5 Million only.”
The Defendant/Appellant also filed at the lower Court a Statement of Defence dated 27th day of March, 2006 at page 61 of the Record. Paragraph 1 of the said Statement of Defence is also pertinent and is reproduced as follows:
“1. The Defendant admits paragraphs 1, 2, 3, 4, 5, & 6 of the statement of claim.”
A careful perusal of the paragraphs reproduced above shows that the Appellant admitted the deposition of the Respondent to the effect that the tenancy was for a fixed term of two years from 2/11/2004 to 2/11/2006.
It is trite law that when a fact is pleaded by the Plaintiff and admitted by the Defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted. See Eroho v. Asuquo (2007) All FWLR Pt.359 page 355; Bunge v. Gov., Rivers State (2006) 12 NWLR Pt.995 page 573.
I am in no doubt that the tenancy in question was for a fixed term with effect from 2/11/2004 to 1/11/2006.
The position of the law is that a lease or tenancy for a fixed term automatically determines when the fixed term expires. Quit notice is usually obviated in the case of a fixed tenancy since the term of expiration is normally known unlike periodic tenancies that continues automatically from period to period until the determines by a notice to quit. See Nweke v. Ibe (1974) 4 ECSLR page 54.
All that a landlord is required to do to recover possession in a fixed term tenancy, as in the instant case, is to serve on the tenant seven days notice of owner’s intention to apply to Court to recover possession.
In the instant case, it is on record that the Respondent served Exhibit ‘C’ (i.e. the Respondent solicitor’s letter to the effect that the Appellant should indicate her interest in renewing the premises) and Exhibit ‘D’ (i.e. seven days notice of owner’s intention to apply to recover possession) on the Appellant .
I am of the opinion that Exhibit ‘C’ is not required in the instant case whilst Exhibit ‘D’ has satisfied the legal requirement of valid notices to be issued before an action for recovery of possession can be maintained.
This issue is resolved in favour of the Respondent.
Issue Two:
“Whether the trial judge properly evaluated the evidence adduced by the Appellant vis-a-vis the Respondent before arriving at his final decision that the Respondent is entitled to recover possession of No. 18b Vaal Street, off Rhine Street, Maitama, Abuja irrespective of the improvements/renovation works done by the Appellant?”
Learned Counsel for the Appellant submitted that the learned trial judge failed to properly review and evaluate the evidence adduced by the Appellant vis-a-vis the Respondent before entering a decision in favour of the Respondent.
He stated that the Respondent testified at pages 264 – 265 of the Record that he is the owner of the premises, that he rented out the said premises to the Appellant at the cost of N2.5 million per annum for a term of two years, that the Appellant paid N4 million out of the agree sum of N5 million leaving a balance of N1 million and that he forwarded a tenancy agreement to the Appellant for execution but that she failed to sign same despite all effort to get the Appellant to do same.
Ahmed T. Uwais submitted that under cross examination, the Respondent admitted that he gave the Appellant his building plan purposely to stop vibration from the adjourning flat, that he has never enter the Appellant’s flat and does not know the present condition.
Learned counsel maintained that the Appellant while adopting her Witness Statement on oath admitted that the Plaintiff/Respondent is the Owner/Landlord of the premises she occupied, that rent was fixed at N2.5 Million per annum for two years out of which she paid the sum of N4 million without being issued with a receipt for same despite repeated demand on the Respondent to do so, that the Respondent agree with her to renovate the premises and that the expenses incurred shall be deducted from the subsequent rent to be paid.
Ahmed T. Uwais submitted that it was upon this agreement that the Respondent gave the Appellant the building plan and the Appellant went ahead to carry out the renovations.
He further submitted that the Appellant tendered 24 exhibits in support of the renovations to the turn of N4.7 Million and stated that the Respondent came knocking at odd hours of the night but she refused to see him and afterwards received a phone call from the Respondent that the Appellant was denying him entry into his own house.
Learned counsel maintained that the Appellant also testified that, it was after his incident that the Respondent went and brought a fraudulent tenancy agreement for her to sign but she refused to sign because it does not represent the terms agreed to between her and the Respondent and that after the incident the Respondent consulted his Solicitors who then wrote the Appellant.
He pointed out that while under cross examination, the Appellant emphasized further that there was an oral agreement between her and the Respondent as regard renovation of the premise and the Respondent was equally informed of the specific nature of the renovation even though the Respondent did not authorize the spending of N4.7 million.
Learned counsel for the Appellant stated that the learned trial Judge in his findings rejected the reasons given by the Appellant for collecting the building plan from the Respondent and believed the evidence of the Respondent that he had already completed the house before the Appellant rented it, that the Appellant only requested for the building plan so as to stop vibration because it could be from the foundation of the building.
He maintained that upon his believe, the learned trial Judge came to wrong conclusion that the renovation works allegedly carried out in the premises by the Appellant was inconsistent with the reasons adduced by her for collecting the building plan from the Respondent.
Learned counsel submitted that the finding of the trial Court does not support the facts adduced by the parties with regards to the reason(s) why the Appellant collected the building plan and thereafter renovated the premises to suit evaluate his evidence vis-a-vis the evidence given by the Appellant and referred the Court to the cases of: Fagbenro v. Arobadi (2006) All FWLR Pt.310 page 1575 at 1595; Gbadamosi v. Governor Oyo State (2006) 8 MJSC PG. 58 at pg 60.
He emphasized that from the above cited authorities, it is apparently clear that where a trial Court draws wrong conclusion from proved facts the appellate Court is bound to interfere.
Learned counsel further argued that the reason adduced by the Respondent for giving out his building plan is not logically consistent with cases involving landlord and tenant. He maintained that matters bothering on the foundation of a house are extrinsic obligations which the landlords of premises are often responsible for, these obligations could either be implied or express under a normal tenancy agreement.
He stressed that Clauses ‘2f’ and ‘3c’ of Exhibit ‘B’ (the unsigned tenancy agreement) is worthy of consideration in this regard and maintained that a tenant is usually concerned with the interior structure of a building and not the exterior part thereof. Learned counsel submitted that as such, the conclusion reached by the learned trial judge on the reasons why the building plan was accepted was wrong in law and logically wrong in fact and referred the Court to the case of: N.S.C. Nig. Ltd. v. Innis – Palmer (1992) 1 NWLR (Pt.218) page 422 at 434.
Learned Counsel further submitted that the trial Court failed to properly review and evaluate the evidence of the Appellant vis-a-vis the Respondent on this issue thereby disentitling the Appellant from claiming compensation/refund for the renovations carried out and that this is a proper case for the Appellant Court to interfere and reverse the decision of the lower Court with respect to the fact that the Appellant is not entitled to compensation.
Ahmed T. Uwais argued that the judgment of the trial Court is against the weight of the totality of the evidence adduced before the Court. He pointed out that the agreement between the Respondent and Appellant were more of oral and not in writing and that oral tenancy agreement is equally recognized by law. He referred the Court to the cases of:
Conac Optica Nig. Ltd. v. Akinyede (1995) 6 NWLR Pt.400 page 212; Pan Asian African Co. Ltd. v. N.I.C.O.N. Ltd (1982) 9 SC Page 1; Erhunmise v. Ehanire (1998) 10 NWLR Pt.568 page 53 at 60.
Learned Counsel maintained that as such, the terms and conditions of the tenancy agreement at the point of entering into he contract can only be established through the oral evidence and not in writing.
He submitted that there is no doubt that from the arguments proferred so far that the Appellant cannot be ejected from the demised premises as the valid still remained a statutory tenant of the Respondent until the lawful requirements are complied with.
Ahmed T. Uwais further submitted that the Appellant is entitled to refund of the expenses incurred with regards to the renovations carried out or the said sum otherwise be deducted form subsequent rent that may be due. He referred the Court to the case of: Ukpe v. Udoh (1999) 6 NWLR Pt. 606 page 292 at 294.
Learned Counsel for the Appellant maintained that if the totality of the Respondent’s and Appellant’s evidence in this case is placed side by side, the decision arrived at by the trial Court would be found to the against the weight of evidence.
In his response on this issue, Learned Counsel for the Respondent submitted that the learned trial judge properly reviewed and evaluated the material evidence before it and that the weight of the judgment delivered by the trial Court is not against the evidence adduced by the parties.
He further submitted that the one and only issue joined by the Appellant with the Respondent at the trial Court is the issue of improvement worth N4.7 million allegedly made by the Appellant with the consent of the Respondent.
Learned counsel pointed out that the contention of the Respondent at paragraph 12 of the statement of claim contained in page 5 of the Record is that the Appellant refused to vacate the premises in question for no just cause; that the Respondent led evidence thereto at paragraphs 11 and 12 of the Witness Statement on Oath at page 7 of the Record; that the Appellant ‘s response can be seen a paragraph 5 of the Statement of Claim at page 68 of the Record and the Appellant led evidence on the issue at paragraphs 10 – 14 of the Witness Statement on Oath at page of the Record.
F. H. Enefola submitted that the averments contained in paragraph 4 of the Respondent’s Statement of Claim at page 4 of the Record are admitted by paragraph 1 of Appellant ‘s Statement of Defence at page 68 of the Record and also by paragraph 5 of her witness statement on Oath at page 70 of the Record.
Learned Counsel further submitted that the argument that the Appellant made improvement worth N4.7million with the consent of the Respondent cannot be sustained with the available credible evidence and Exhibits admitted by the trial Court and queried that if taking a cursory look at Exhibits ‘E1 – E24’ contained at page 80 – 103 of the Record, could it be inferred that Exhibit ‘E1 – E24’ are for the purposes of stopping vibration from adjoining flat as conceded by the Respondent under cross examination at the trial Court? He answered in the negative.
F. H. Enefola submitted that under cross-examination, the Appellant agreed at page 270 of the Record that the agreement to renovate the Respondent’s premises was oral and that the Respondent did not consent that she should spend the sum of N4.7 million and also that under cross examination at page 266 of the Record the Respondent denied any oral agreement as to the renovation of his premises with the Appellant.
He maintained that the law is that any party that assert oral agreement has onus of proving that such agreement exist to the satisfaction of the Court and referred to the case of: Odutola & anor v. Papersack Nig. Ltd (supra) at page 477.
Learned counsel submitted that the Appellant failed to discharge this onus placed on her.
He further submitted that the trial Court properly evaluated the evidence and Exhibits tendered and admitted at the trial Court because the evidence of the Respondent and the Appellant under cross examination at pages 266 – 270 of the Record are clear to the fact that while the Respondent said he gave the building plan to the Appellant on her request because she wanted to stop the vibration from the next flat but the Appellant both in her statement of defence and witness statement on oath asserted that the building plan was given to her for the purpose of renovation.
Learned counsel urged the Court to hold that the trial Court properly evaluated the evidence and material fact placed before him.
In a civil case, the Court decided the case on the balance of probabilities or preponderance of evidence. This is done when the trial Court puts on an imaginary scale on the totality of the evidence adduced by the parties before it, before coming to a decision as to which evidence it accept and which it rejects. See Fagbenro v. Arobadi (2006) 7 NWLR (Pt.978) page 174; Olusile v. Maiduguri Metro. Council (2004) 4 NWLR Pt.863 page 290; Adebayo v. Adusei (2004) 4 NWLR (Pt.862) page 44.
Where a trial Court unquestionably evaluates the evidence and appraises the facts, an appellate Court is enjoined not to substitute its own views for the views of the trial Court. See:
Fagbenro v. Arobadi (supra) at page 184;
Ezukwu v. Ukachukwu (2004) 17 NWLR Pt.902 page 227;
Ajero v. Ugorji (1999) 10 NWLR Pt.621 page 1;
Okeke v. Agbodike (1999) 14 NWLR Pt.638 page 215;
Atanda v. Ajani (1989) 3 NWLR Pt.111 page 511;
Odofin v. Ayoola (1984) 11 SC page 72.
To ascertain whether or not the trial Court in this case properly evaluated the evidence adduced before it, a careful study of the judgment of the trial Court a pages 150 – 156 of the Record of Appeal is pertinent. Its findings on pages 154 – 155 are relevant and they are reproduced thus:
“The defence counsel submitted that the evidence of the plaintiff do not support the pleadings because parties are bound by their pleadings. With due respect, I do not agree with this contention. I have no doubt that the evidence of the plaintiff is in line with the averments in his pleadings.
The defence of the defendant is that she agreed wit the plaintiff for her to renovate the house to her taste and deduct the expenses from the subsequent rent, and that she spent N4.7 million in renovating the plaintiff’s house. She stated under cross examination that the agreement with the plaintiff was oral and that the plaintiff never authorizes her to spend N4.7 million on the renovation. On his part, the plaintiff denied ever reaching such an agreement with the defendant. The evidence of the plaintiff is that he had completed the house before he let to the defendant. This piece of evidence was not challenged or impugned by the defendant either in his pleadings or at the trial. I have carefully looked at the receipts tendered by the plaintiff (‘Exhibits E1 – E24’) to know what renovate works were carried out in the house. The defence counsel submitted that the conduct of the plaintiff in giving the defendant the building plan of the house made her to spend N4.7 million in renovating the building. I do not agree with this assertion. The fact that the plaintiff gave the building plan of the house to the defendant will not, without, lead to the conclusion that he asked to renovate his house. The evidence of the plaintiff in this regard is that the defendant requested for the plan of the house to see if she could stop the vibration/noise from the adjoining flat. She later informed him that she could not stop the vibration and that the prevention of the noise/vibration could have been from the foundation of the building. From the receipts (Exhibits ‘E1 – E24’), it seems to me that the renovation works allegedly carried out in the house by the defendant had nothing to do with the control of the noise/vibration from the adjoining flat.
From the statement of the law and the evidence before the Court the irresistible conclusion is that the defendant’s defence that she is entitled to refund of N4.7 million from the plaintiff cannot be sustained. I so hold.”
In the instant case, I am satisfied that the trial court properly evaluated the evidence adduced it before making its findings of fact in favour of the Respondent. In the circumstance, this Court will not embark on fresh appraisal of the evidence or reverse the findings of fact made by the trial court, this issue is also resolved in favour of the Respondent.
Issue Three:
“Whether having regard to the oral evidence of the parties and the fact that the tenancy agreement between the Appellant and the Respondent was virtually oral, non-compliance with section 14 and 15 of the Recovery of Premises Act LFN 1990 was capable enough to disallow the Appellant from being entitled to compensation/refused for renovation works done on the premises of the subject matter in dispute?”
Learned counsel for the Appellant stated that the trial court at page 188 of the Record, after considering the provisions of section 14 and 15 of the recovery of premises Act LFN 1990 held that:
“From the state of the law and the evidence before the court, the irresistible conclusion is that the defendant’s defence that she is entitled to a refund of N4.7 million cannot be sustained. I so hold.”
He submitted that there is abundant evidence before the court that the tenancy agreement between the Respondent and the Appellant was oral and not written and that the written tenancy agreement between the parties could not be signed due to disagreement on the terms of the contract.
Ahmed T. Uwais maintained that the Appellant testified both in her evidence-in-chief and under cross examination that there was an oral contract between herself and the Respondent to the effect that she can renovate the premises and that the expenses shall be deducted from the subsequent rent to be paid.
He pointed out that his evidence was not impeached in any way and stressed that the relationship between the Appellant and the Respondent had been by parole and not in writing.
Learned counsel submitted that to apply section 14 and 15 of Recovery of Premises Act as ground for denying the Appellant her entitlement to compensation/refund would be to allow technicalities defeat the cause of substantial justice. He further submitted that our courts have moved from the realm of technicalities to the realm of doing substantial justice and referred the court to the cases of:
Enekwe v. I.M.B. (Nig.) Ltd. (2007) 1 CMLR Page 117 at 121; Jadcom Ltd. v. Oguns Electricals (2004) 3 NWLR Pt.859 page 153 at 160.
Ahmed T. Uwais maintained that both the Appellant and Respondent are at consensus ad idem that the Appellant did renovate the premises, that there is evidence to that effect, that the Appellant testified that the Respondent purposely gave her the building plan to enable her carry out the necessary renovations which she did and that by so doing the Respondent consented to allowing the Appellant renovate the premises.
Learned counsel for the Appellant contended that the provisions of sections 14 and 15 of the Act do not envisage oral tenancy agreement and that the sections therefore are not applicable to this case. He maintained that what the trial court ought to have considered is the oral agreement between the parties at the inception of the tenancy regarding the renovations/improvements carried out on the premises by the Appellant and not whether the Appellant obtained the Respondent’s consent in writing before embarking on the said renovation.
He referred the Court to Section 132(3) of the Evidence Act and maintained that from its provision and the evidence of the Appellant at the trial Court, it can be gleaned from the oral testimony of the Appellant that the Respondent gave her the building plan purposely to renovate the premises and consented to her so doing.
Learned counsel argued that though this consent was not in writing, the oral evidence thereof cannot be excluded on the ground that the consent of the Respondent was not obtained in writing as required by Section 15 of the Recovery of Premises Act.
Learned Counsel for the Appellant submitted that the question is to whether the Appellant ought to be compensated and/or entitled to a refund on the cost of renovation based on the oral agreement between the parties as regards renovation since the Respondent is unwilling to renew the tenancy. He further submitted that question should be answered in the affirmative.
He maintained that by the provisions of section 16 of the Recovery of Premises Act and the facts relevant to this issue, it would be appreciated that notwithstanding the fact that there was no written consent of the Respondent to the Appellant to carry out the said renovations, the Appellant can still make a claim, hence the admission into evidence of Exhibits ‘E1 – E24’, which can be found at pages 80 – 103 of the Record, at the trial court; and that the Appellant had also made the claim for a refund at page 5 of her statement of defence at pages 61 and 68 of the Record.
Ahmed T. Uwais submitted that section 16 of the Recovery of Premises Act is of the view that a tenant i.e. the Appellatn in this case can at any time make claim or counter claim. He contended that the Appellant did make a claim for refund of N4.7 million as expenses incurred on the demised premises if the Respondent was unwilling to renew the tenancy and referred to the case of:
MaCarthy v. Lemonmu & ors (1966) 2 All NLR page 48 at 49.
Learned Counsel stressed that the Appellant had given evidence under cross examination that she obtained the verbal consent of the Respondent to carry out the renovation and that throughout the renovation period, the Respondent never raised any ‘eye brow’ or objection until the renovation was finally completed.
Ahmed T. Uwais submitted that as such if the Respondent is determined to eject the Appellant, he should also be prepared to refund the cost of Appellant’s unexhausted improvements as permitted by Section 16 of Recovery of Premises Act.
Learned Counsel for the Appellant urged the court to resolve this issue of favour of the Appellant and set aside the decision of the trial court on this point.
In his response, Counsel for the Respondent F. H. Enefola contended that it is on Respondent was not executed and therefore same is not binding on them. He pointed out that this fact can be seen at paragraph 9 of the Respondent’s statement of claim at page 7 of the Record of Appeal.
He submitted that issue was not joined on this point and that consequently, there was no tenancy agreement between the Appellant and Respondent.
Learned counsel further submitted that where parties to a tenancy relationship do have an agreement, the law is that the provisions of the recovery of premises law will regulate such relationship and that if either party’s right to a tenancy agreement as provided for the Recovery of Premises law is to be taken away, then it must be by a clear word evidenced in an agreement. He referred the court to the case of: African Petroleum Limited v. J. K. Owodunmi (Supra) at 399.
F. H. Enefola maintained that under cross-examination at page 266 paragraph 9 of the Record, the Respondent stated that the only agreement he had with the Appellant was a written agreement which the Appellant refused to sign till date and on the Appellant’s side, she contended under cross-examination at page 270 paragraph 1 of the Record of Appeal that she had oral agreement with the Respondent.
He submitted that the onus is on the Appellant to prove to satisfaction of the trial court that such oral agreement existed and maintained that the Appellant failed woefully to discharge this onus. He referred to the case of:
Odutola & anor v. Papersack Nig. Ltd. (Supra) at 477.
Learned counsel maintained that the trial court was right when it applied the provisions of section 14 and 15 of the Recovery of Premises Act Cap 544 Laws of the Federation (Abuja), 1990 because from the above paragraph, it is clear that the Appellant and the Respondent had no understanding of an oral agreement as to the alleged renovation carried out by the Appellant.
F. H. Enefola maintained that the submissions of the Appellant’s counsel in paragraph 7.07 – 7.11 at pages 15 – 16 of the Appellant’s Brief of Argument are misplaced because the Appellant never filed any claim or counterclaim before the trial court thus, section 16 of the Recovery of Premises Act cannot avail the Appellant and that it is a trite law that the address of counsel cannot take the place of pleadings filed before the court.
Learned counsel for the respondent urged the court to uphold the reasoning of the trial court as contained in paragraph 5 at page 188 of the record of appeal and resolve this issue in favour of the Respondent.
It is the assertion of the learned counsel for the Appellant that the evidence before the trial court shows that there was an oral agreement between the Appellant and the Respondent to the effect that the Appellant can renovate the premises and that the expenses shall be deducted from the subsequent rent to be paid. However, learned counsel for the respondent contended that this oral agreement was not proved before the trial court.
It is trite law that by virtue of section 137 of the Evidence Act Cap 112 Laws of the Federation 1990, in civil cases the burden of proof is on the party who asserts a fact to prove same, for he who asserts must prove. See:
Longe v. FBN Plc (2006) 3 NWLR Pt.967 PAGE 228;
Mani v. Shanono (2006) 4 NWLR Pt.969 page 123;
Audu v. Guta (2004) 4 NWLR Pt.864 page 463.
Having carefully perused the evidence of both parties before the trial court, I hold that the Appellant failed to prove the existence of an oral agreement between her and the Respondent to commence renovation on the premises. It can be safely concluded that the Appellant embarked on the renovation without obtaining a written consent of the Landlord/Respondent.
This act of the Appellant is contrary to the letter and intendment of section 14 and 15 of the Recovery of Premises Act, Cap 544 Laws of the Federation 1990. The said sections are reproduced hereunder for case of reference as follows:
“14. Where a tenant executes on his holding any improvements he shall be entitled, subject to the provisions of section 15, at the termination of the tenancy, on quitting his holding, to received compensation from his landlord in respect of any such improvement which continues unexhausted.
15. A tenant shall not be entitled to compensation in respect of any improvement, unless he has executed it with the previous consent in writing of the landlord.”
In the instant case, I am of the opinion that the Appellant having not complied with the provisions of the Recovery of Premises Act, Cap 544 Laws of the Federation 1990 will not be entitled to compensation/refund for renovation works done on the premises. This issue is also resolved in favour of the Respondent.
Issue Four:
Whether the Respondent’s solicitor was authorized in writing before the issuance and service of Exhibit ‘D’ which is the Notice of Owner’s Intention to apply to recover possession?
Learned counsel for the Appellant pointed out that this issue is distilled from the additional Ground of Appeal and that leave has been obtained to argue same. He submitted that it is trite law that where an agent serves a Notice of owner’s intention to apply to recover possession, he must do so under the written authority of the landlord and referred the Court to Section 2 of the Recovery of Premises Act.
Ahmed T. Uwais argued that there was no evidence before the trial court that Exhibit ‘D’ the Notice of Owner’s Intention to recover possession written by the solicitors of the Respondent were in fact issued and served on the Appellant under the written authority of the Respondent.
He contended that the Respondent gave evidence at page 267 lines 5 – 6 that he has not gone to the Appellant’s house since she refused to sign the tenancy agreement and that, it was when the Appellant refused to sign the tenancy agreement that he consulted his solicitors.
Learned counsel maintained that this presupposes that the Respondent’s solicitors had been dealing directly with the Appellant after the unsuccessful attempt by the Respondent to persuade that Appellant to sign the said agreement.
Ahmed T. Uwais submitted that the question then arises as to whether the said solicitors were authorized in writing to issue Exhibit ‘D’ in accordance with section 2 and 7 of the Recovery of Premises Act and that the question can readily be answered in the negative because there is no iota of evidence before the trial court or on Exhibit ‘D’ itself that the said exhibit was authorized in writing under the hand of the Respondent.
He further submitted that it therefore ought to be regarded as invalid and not capable of determining the tenancy of the Appellant and referred the Court to the cases of:
Bailey v. Hookway (1945) 1 K. B. 266;
Ayiwoh v. Akorede (1951) 20 NLR Page 4 at 5;
Bello v. Salami (1973) 2 All NLR at Pages 296 – 297
Isa v. Okeke (1973) NNLR Page 69 at 71;
Lababedi & ors v. James (1962) 2 All NLR Page 34 at 35.
Learned Counsel maintained that from the decision of all the above cited cases, the courts are unanimously united on the fact that where the landlord does not give an authority in writing, an agent including a Solicitor cannot issue or serve a Notice of Owner’s Intention to apply to recover possession on a tenant. He urged the Court that since such authority was not obtained in this case, Exhibit ‘D’ is liable to be set aside and urged the Court to so hold.
In his respondent, Learned Counsel for the Respondent stated that they were taken by surprise as no notice of the purported additional Ground of Appeal was given to them, that they were not aware of any leave of this Honourable Court given to the Appellant to argue additional Ground of Appeal wherein their issue No.5 was formulated.
F. H. Enefola maintained that it is trite law that where issue formulated does not emanate from the Notice of Appeal filed same goes to no issue and referred to the case of:
Hussain Yusuf Hajaig & anor v. Dele Yusuf Hajaig (2003) vol. 23 WRN page 111 at 115.
Learned counsel pointed out that the Respondent at the trial court pleaded in his statement of claim that he gave the Appellant 7 days notice (Notice to tenant of owner’s intention to apply to recover possession) and that this can be seen at paragraph 11 of page 5 of the Record. He maintained that the Respondent led evidence thereto in his witness statement on oath at paragraph 13 which is one page 6 of the Record.
He maintained that the Appellant did not join issue with the Respondent on this fact either in her statement of defence, witness statement on oath or in her cross examination of the Respondent.
Learned counsel argued that to allow the Appellant argue the purported Ground 5 of the Notice of Appeal would definitely affect the decision of the Court as further evidence need to be adduced by the Respondent to explain the circumstances that led his solicitors to serve the Appellant Exhibit D, which the appellate Court would not do. He referred to the case of:
Hawad International School Limited v. Mirna Project Venture Ltd & anor (2003) Vol. 42 WRN page 101 at 104.
F. H. Enefola submitted that supposing without conceding that the additional Ground 5 of the Notice of Appeal formulated by the Appellant without leave of this Honourable Court is competent, the wording of section 8 of the Recovery of Premises Act Cap 544 L.F.N. 1990 is very clear and unambiguous as the landlord or his agent can serve on the tenant Notice to the Tenant of Owner’s Intention to apply to recover possession.
A Notice of Appeal contains the Ground of Appeal which consists of the error of law or fact alleged by an Appellant as the defect in a judgment appealed against and relied upon to set aside the judgment. See P.D.P. v. K.S.I.E.C. (2006) 3 NWLR Pt.968 page 565; Metal Construction (W. A.) Ltd. v. Migiliore (1990) 1 NWLR Pt.126 page 299.
The purpose of a Ground of Appeal is to give notice to the Respondent of the errors complained of. Thus where an Appellant relies on any Ground, this must be property raised either by way of a Ground of Appeal or a Cross Appeal in a case of a Respondent. See Bhojsons Plc. V. Daruel-Kalio (2006) 5 NWLR Pt.973 page 330.
By the provisions of Order 6 Rule 15 of the Court of Appeal Rules 2007, a Notice of Appeal may be amended by or with the leave of the Court at any time.
In Ohajunwa & anor v. Obella & anor. (2008) 3 NWLR (Pt.1073) page 52 at 75, this court held that:
“A party seeking an amendment of the notice of appeal already filed will first obtain the leave of the court and thereafter file an amended notice of appeal before canvassing argument in support of the issue raised therefrom in his brief of argument otherwise the grounds of appeal and the issues raised therein are incurably incompetent. See Ekwulugo. v. ACB (Nig.) Ltd (2006) 6 NWLR PT.975 Page 30.”
In the instant case, the Appellant’s Notice of Appeal dated 20/7/2007 and filed same day contains four Ground of Appeal. Thereafter, the Appellant probably in a bid to file an additional Ground of Appeal brought a Motion on Notice dated 30/3/2009 and filed 16/4/2009 praying for the following:
“1. An order granting leave to the Appellant/Applicant to amend her Original Notice of Appeal filed in this suit and dated 2nd July, 2007 by filing an additional Grounds of Appeal as ground 5.
2. An Order granting leave to the Applicant/Applicant to file and argue additional grounds of appeal to the original Notice of Appeal.
3. An Order granting leave to the Applicant/Applicant to raise and argue new grounds/issues in this appeal particularly ground 1 and 5 of the Notice of Appeal and the additional grounds of Appeal respectively.
4. An Order deeming the amended Notice of Appeal as properly filed and served on the Respondent
5. AND for such order or orders as this Honourable Court may deem fit to grant in the circumstances.”
I have carefully perused the Record of proceedings of this Court and observed that the afore-mentioned Motion on Notice was neither heard nor were the prayers sought granted. I am in no doubt that the Appellant did not seek the requisite leave of this Court before filing the additional Ground of Appeal.
It is trite law that where additional Ground of Appeal is filed without the leave of Court as in this case, such Ground of Appeal as well as the issue distilled therefore is incompetent and will be struck out. See: Ukpe v. Udoh (supra) at 299; The Registered Trustees of CAC v. Uffiem (1998) 10 NWLR Pt.569 page 312 at 320 ;Adeyemi v. Y.R.S. Ike-Oluwa Ltd. (1993) 8 NWLR Pt. 309 page 27.
Consequently, I am of the opinion that the additional Ground of Appeal i.e. Ground 5 filed by the Appellant as well as issue 5 distilled therefrom is incompetent and hereby struck out. This issue is resolved in favour of the Respondent.
On the whole, this Appeal is unmeritorious and it is hereby dismissed. The Judgment of the lower Court delivered on the 9th day of July, 2007 is hereby affirmed as well as the consequential Orders made therein. There shall be no Order from this Court as to Costs
UWANI MUSA ABBA AJI, J.C.A.: I agree.
MARY U. PETER-ODILI, J.C.A: I have read the draft judgment of my brother, ABDU ABOKI, J.C.A which decision and reasonings I agree with. I have nothing to add while I abide by the orders he made.
Appearances
Ahmed UwaisFor Appellant
AND
F. H. EnefolaFor Respondent
