MUONANU v. NWAEMELU (2020)

MUONANU v. NWAEMELU

(2020)LCN/14160(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, May 14, 2020

CA/J/290/2019

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

BARR. (NZE) LUKE IKECHUKWU MUONANU APPELANT(S)

And

LAZARUS NWAEMELU RESPONDENT(S)

RATIO

WHETHER OR NOT THE MERE FACT THAT A GROUND OF APPEAL IS ARGUMENTATIVE OR REPETITIVE IS A REASON FOR STRIKING IT OUT

The mere fact that a ground of appeal is argumentative or repetitive is not a reason for striking it out provided notable issues arise for consideration. Even verbose and unwieldy grounds may be ignored by the Court in order to do substantial justice instead of allowing technicalities to defeat it: See Ngere v. Okuruket XIV (2017) 5 NWLR (PT 1559) 440 @ 466 (SC); Ekpenyong v. Nyong & Ors (1975) 2 S.C. 65 @ 73. The complaint of appellant in his sole ground of appeal earlier reproduced, it is my opinion, is clear enough. PER UGO, J.C.A.

NOTICE TO QUIT AND LENGTH OF SUCH NOTICE

In a major departure from this norm, the 31-Section Rent Control and Recovery of Premises Edict/Law No 1 of 1998 of Plateau State does not have any such requirement. It rather only provides in its Section 17 for service of Notice to Quit and length of such Notice thus:
17(1) Where there is no express stipulation as to notice to be given by either party to determine the tenancy, the following periods of time shall be given:
(a) In the case of tenancy at will or a weekly tenancy, a week’s notice;
(b) In the case of a monthly tenancy a month’s notice;
(c) In the case of a quarterly tenancy, a quarter’s notice;
(d) In the case of a yearly tenancy, half a year’s notice.
Provided that in the case of a monthly tenancy, where a tenant is in arrears if rent for three months after the commencement of this Edict, the tenancy shall determine and the Court shall on application of the landlord make an order for possession.
(2) The nature of the tenancy shall in the absence of the any evidence to the contrary be determined by reference to the time within which the rent is paid or demanded.
(Italics mine). It then goes on to say in its own Section 18 that the landlord can thereafter proceed straight away to apply for a Plaint or Writ of possession against the tenant, as appellant did in this case.
That is the position of the Plateau State Law and not the provisions of Recovery of Premises Edict 1976 of Lagos State considered inNdubuisi v. Shobande (2013) LPELR-224770 (CA) which the Lower Court followed hook, line and sinker without asking itself whether similar provision for service on tenant by landlord of Notice of Owners Intention to Recover Possession before issue of plaint also applies in Plateau State. Where the provisions of the law on which a decision was decided are not the same with a latter case the statements of the principles in the former will not apply to the latter; just as it was said by Oputa, J.S.C., in the similar Lagos State Recovery of Premises issue case of Oduye v. Nigerian Airways Ltd (1987) LPELR-2264) p.54-55, when invited by respondent’s counsel to apply English cases on Recovery of Premises that were not based on similar statutory provisions like the Lagos State Rent Control and Recovery Premises Law 1976, that:
“The expressions used by a Judge in his judgment must be taken with reference to the case, the facts of the case, the law on those facts otherwise the law will get into extreme and irritating confusion. …
And coming to appellant’s further complaint that the Lower Court should have called for further addresses from parties on whether service of Seven Days Notice of Owners Intention to recover possession is applicable in Plateau Law, while that issue is not one of fact but rather of law so the Lower Court, strictly speaking, may not have needed further addresses from counsel to reach a decision on it (see Effiom & Anor v. C.R.S.I.E.C. (2010) 14 NWLR (PT. 1213) 603 @ 633-634; 2010 LPELR-1027 (SC) p. 32-33; NNPC v. Roven Shipping Ltd (2019) 9 NWLR (PT 1676) 67 @ 92, 93 (S.C), Persons, Name Unknown v. Sahris Int’l Ltd (2019) 13 NWLR (PT. 1689) 203 @ 232 (SC), given that that Court had set out to rest its entire decision to strike out appellant’s action on that point alone, prudence demanded that it call for addresses from counsel on it in order to avoid the possibility of miscarriage of justice: Katto v.C.B.N (1991) LPELR-1678 (SC) p.31, (1991) NWLR (PT 214) 126; Petrojessica Enterprises Ltd v. Leventis Technical Ltd (1992) 5 NWLR (PT 244) 675 (SC). PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal from the decision of the High Court of Plateau State in exercise of its appellate jurisdiction raises an extremely narrow but very important issue as to whether issuance of Seven Day’s Notice of Owners Intention by landlord is a precondition to initiating action for recovery premises in Plateau State, as it is in most states of this country, and failure to issue it is fatal to an action for recovery of premises in Plateau State.

The relevant facts of the case are that, appellant, claiming to be landlord Shop B7 occupied by the respondent situate at No. 35 Tafawa Balewa Street, Jos, Plateau State, took out a plaint at the Senior District Court of Plateau State against the respondent for possession of the said Shop from Respondent, but he did not issue Respondent any Notice of any kind prior to taking out the said plaint. He simply founded his action on a document titled Accommodation Licence signed by the two of them on 15th August, 2015 which formed the basis of their relationship as landlord and tenant. That document, which was tendered by appellant in the trial as

Exhibit 1, stated in its Clause 7 thus:
The Accommodation Licence serves as an adequate and final notice to the licencee, and the Licencee shall not be entitled to any further notice. (Italics mine)

Respondent is Licencee, while appellant who granted the Licence is Licensor.

At the trial, both parties testified and tendered documents including the said Accommodation Licence, Exhibit 1. Whereas appellant’s case at the trial was that the said Shop B7 accommodation of Respondent was his and respondent was his tenant as evidenced by Exhibit 1, Respondent, while admitting that appellant was once his landlord, claimed that appellant had since 2017 sold the property to one Chief Matthew Eze and it was the said Chief Eze who testified for him as his D.W.1 that was his landlord and not appellant. He also argued that Exhibit 1 by purporting to take away his right to be served notice to quit offended Section 14 of the Rent Control and Recovery Premises Law of Plateau State 1998 of Plateau State and therefore void.

The trial Upper District Court in its judgment while rejecting his contention that Exhibit 1 offended Section 14 of the Rent Control and Recovery Premises Law of Plateau State 1998 of Plateau State

by purporting to take away his right to be served notice to quit and was therefore void held that the dispute between the parties was about who owned the property, whether it was appellant or Chief Eze (D.W.1) that owned it, therefore an issue of bona claim to title of the property was involved and his jurisdiction ousted by Section 13(2) of the District Courts Law of Northern Nigeria applicable in Plateau State. On that basis, it proceeded to dismiss the action.

Appellant was dissatisfied with that decision and appealed to the High Court of Plateau State. Respondent was also dissatisfied with the part of the decision dismissing his objection to Exhibit 1 and appellant’s failure to issue him notice to quit and so cross-appealed against that part of the decision.

In its judgment, the Plateau State High Court (Coram A.I. Ashom and S.P. Gyang, JJ.) first held that the trial Upper District Court was wrong in its finding of bona fide claim of title when D.W.1 who claimed ownership of the property was not even a party to the case and even more so when Respondent admitted Exhibit 1

executed between him and respondent. Despite this finding, it also went on to hold that even though Respondent’s tenancy was for a fixed tenure, going by dictum in the cases of Ajayi v. Harry (2014) LPELR-24127 (CA) and Ndubuisi v Shobande (2013) LPELR-224770 (CA) appellant was bound to serve respondent Seven Days Notice of Owners’ Intention to Recovery of possession and his failure to do that rendered his action incompetent and therefore liable to be struck out and actually struck it out in substitution for the dismissal order the trial Court made.

Appellant is again dissatisfied with that decision and has brought this further appeal on a single ground complaining that:
The learned appeal Judges of the Plateau State High Court sitting on appeal erred in law when after setting aside the trial Court’s dismissal of order and struck out Respondent’s Cross-appeal for being purposeless as struck out appellant’s suit on the round that 7 Days Notice was not issued by and served even when the 7 days Notice was not raised by Respondent in his brief of argument, and this accessioned a miscarriage of justice.

His gave 16 particulars of this error/complaint and framed from it the following single issue for determination:
Whether the learned Justices of the High Court sitting on appeal erred in law after allowing the appeal, struck out the suit on the ground that Seven Days’ Notice of Owners’ Intention to recover possession which was raised suo motu by the High Court without giving parties opportunity to address the Court, pursuant to the Exhibit 1 freely signed by the respondent and the appellant pursuant to Section 17(1) of Plateau State’s Rent Control and Recovery of Premises Edict 1998.

He submitted that the Plateau State Rent Control and Recovery of Premises Edict 1998 does not have any provision for service of Seven Days Notice of Owners’ Intention to Recover Possession so Exhibit 1 and its clause 7 that ‘The Accommodation Licence serves as adequate and final notice to the Licencee and the Licencee shall not be entitled to any further notice’ suffices as adequate and final notice to commence his action. For the same reason, he further submitted, Ndubuisi v. Shobande (2013) LPELR-22770 (CA) relied on by the Plateau State High

Court for its holding that service of Seven Days Notice of Intention to recover was mandatory did not apply because that case was decided pursuant to the Lagos State Rent Control and Recovery of Premises Edict 1976 which makes service of 7 Days Notice mandatory. He also complained that in reaching its wrong conclusion the lower Court actually went outside respondent’s grounds of appeal and the arguments canvassed by him to raise and decide the said issue of non-service of 7 Days Notice of Owners Intention to recover possession. He urged us to resolve his sole issue in his favour, allow the appeal and grant all his reliefs as claimed in the trial Court.

Mr. L.E. Anyia for Respondent prefaced his response with a preliminary objection. He argued in that objection that appellant’s sole ground of appeal contained narratives is argumentative and some of its particulars are independent and unrelated to the ground, and that renders it incompetent along with his brief of argument. Counsel said where particulars of a ground of appeal are unrelated and independent of a ground of appeal, it renders not just the particulars but even the ground of appeal

incompetent, as the Court cannot do a surgical operation – for which he cited the cases of Oleksandr v. Lonestar Drilling Co. Ltd (2015) 9 NWLR (pt 1456) 337 @ 362 (SC), Abe v. Unilorin (2013) 16 NWLR (pt 1399) 183 @ 205-206; Globe Fishing Industries v. Coker (1990) 7 NWLR (pt 162) 265 @ 300, Nwadike v. Ibekwe (1987) 4 NWLR (PT 67) 718 @ 746, Bhojson Plc v. Daniel-Kalio (2006) 5 NWLR (pt 973) 330 @ 355, Jinadu v. Esurombi (2009) 4-5 S.C. (pt 11) 337 @ 362 120.

Once appellant’s sole ground of appeal is struck out, counsel submitted his sole issue formulated from it must also collapses and urged us to so order and strike out both processes.

On the merits of the appeal, Mr. Anyia argued that the Court below was correct in striking out appellant’s suit for his failure to serve respondent Seven Days Notice of Owner’s Intention to Recover Possession, as the service of that notice is a condition precedent to exercise of jurisdiction and non-service means the action had not come before the Court initiated by due process of law and upon fulfillment of a condition precedent to the exercise of jurisdiction – for which he pressed the

locus classicus of Madukolu v. Nkemdilim (1962) 2 SCNLR 341. Counsel in addition to Ndubuisi v. Shobande (2013) LPELR-22770 (CA) relied on by the Lower Court also referenced Oduye v. Nigeria Airways Ltd (1987) 4 S.C 143 @ 161-163 and Splinters (Nig.) Ltd v. Oasis Finance Ltd (2013) 18 NWLR (PT 1385) 188 to submit that service of Seven Days Notice of Owner’s Intention to recover possession is precondition to action for recovery of possession of premises so the case of appellant commenced without it is incompetent.

In his reply brief, appellant argued that the purpose of grounds of appeal is to avail the Court and respondent precise nature of the complaints of appellant against the judgment appealed from, and that was met by his sole ground of appeal. He argued too – but certainly incorrectly in the circumstances of this appeal where the whole appeal is founded on the sole ground assailed by Respondent – that Respondent’s objection being against only a ground of appeal and not the entire appeal, it ought to have been brought by motion and not preliminary objection so the objection constitutes abuse of process. He submitted, strongly, that the

objection is brought to promote and enthrone technicality over substantial justice more so that it is raised by respondent whose tenancy expired since 31/5/2016 but is still holding on the premises even when he knows that he has no defence to the claim.

Resolution of issues
The Preliminary objection: First, on respondent’s contention that appellant’s sole ground of appeal is argumentative and full of narratives, I am in agreement with appellant that clarity of complaint in ground of appeal is the main purpose of formulation of grounds of appeal (Oduneye v. F.R.N. (2014) LPELR-23007(C.A.) 26; NRC v. Cudjoe (2008) 10 NWLR (PT 1095) 329 @ 349; Oloruntoba-Oju v. Abdulraheem (2009) ALL FWLR (PT 497) 1 @ 29) and not necessarily eloquence in drafting grounds of appeal, even as eloquence is desirable. The Court does not make a practice of punishing ineloquence in drafting grounds of appeal. That, I guess, is also the rationale behind the use of the discretionary ‘May’ instead of the mandatory ‘shall’ by the rule-maker in the later part of Order 7 R. 3. The employment of that word is intended to give the Court discretion

to exercise when it is urged to strike out grounds of appeal for being narrative or argumentative. The use of the word ‘may’, I also venture to think, is in further recognition of the fact that the right of appeal is a Constitutional one so it is only in cases where it is plain that the complaint of appellant is unintelligible that the Court should resort to the extreme measure of striking out grounds of appeal.
The mere fact that a ground of appeal is argumentative or repetitive is not a reason for striking it out provided notable issues arise for consideration. Even verbose and unwieldy grounds may be ignored by the Court in order to do substantial justice instead of allowing technicalities to defeat it: See Ngere v. Okuruket XIV (2017) 5 NWLR (PT 1559) 440 @ 466 (SC); Ekpenyong v. Nyong & Ors (1975) 2 S.C. 65 @ 73. The complaint of appellant in his sole ground of appeal earlier reproduced, it is my opinion, is clear enough.
As for the other limb of the preliminary objection that some of the particulars of that same sole ground of appeal are independent of it and this Court cannot carry out a ‘surgical operation’ by

excising such unrelated particulars from the ones that are related to save the ground, for which respondent cited Nwadike v. Ibekwe (1987) 4 NWLR (PT 67) 718 @ 746 (SC), I note that the respondent also omitted to pinpoint the particulars that are independent of appellant’s complaint in his ground of appeal. In the absence of that, this Court cannot, in my humble opinion, take it upon itself the duty of identifying what particulars respondent has in mind.
At any rate, respondent by his submission seems oblivious of the very wide powers vested on this Court by Section 15 of the Court of Appeal Act 2004 and Order 4 R. 1, 3 and 4 of the 2016 Rules of this Court. First, Section 15 of the Court of Appeal Act 2004 states thus:
“15. The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and … shall generally have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part…”

Order 4 Rules 3 and 4 of the Court of Appeal Rules 2016 on their part state that:
R.3: The Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further order (s) as the case may require, including any orders as to costs.
R.4. The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no appeal or Respondent’s notice has been given in respect of any particular part of the decision of the Court below, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and that the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.
See also Order 20 Rule 11(1) and (2) of the Rules of this Court 2016 on the powers of this Court in giving judgment.
These provisions are undoubtedly inserted to enable this Court perform its core function of doing justice between parties

in cases before it, a position echoed repeatedly by the Apex Court and this Court and more particularly exemplified by the dictum of Belgore, J.S.C. (later CJN) in Engineering Enterprises Contractors Company of Nigeria v. Attorney General of Kaduna State (1987) 1 NSCC 601 @ 632, when His Lordship said that:
“The function of Courts is to do justice between parties by settling their dispute. Anything short of that defeats the spirit of the law and the Constitution.”
See also Nafiu Surakatu v. Nigerian Housing Development Society Ltd & Anor. (1981) ALL NLR 313 @ 323, (1981) NSCC 92 @ p. 96, Owuru v. Adigwu (2018) 1 NWLR (PT 1599) 1@ 25, 28 (SC). The main and real issue in controversy between appellant and respondent here is whether appellant had not done all he needed to do under the law to recover possession of his premises from respondent whose fixed term of tenancy by their agreement in Exhibit 1 ended since 2016 and so respondent was entitled to continue in occupation of appellant’s premises. Put differently, was the Lower Court correct in its decision that issuance and service by landlord on tenant of Seven Days Notice of

Owners’ Intention to Recover Possession is mandatory and condition precedent to recovery of premises in Plateau State and its non-service rendered appellant’s action against respondent incompetent. That complaint which is captured in the particulars of appellant’s sole ground and argued extensively by both parties cannot be stifled and or discountenanced simply on the ground that it is not directly captured by his complaint in the main ground itself as argued by the respondent. In fact this Court will not only be failing as a Court of justice, it will also be failing its enabling statute and rules reproduced above if we take the approach recommended by Respondent of washing our hands off the issue in controversy between parties, more so as taking that course. In the result, I hereby overrule the preliminary objection.

That takes me straight to the arguments of parties on the merits of the appeal namely whether the Lower Court was correct in its decision that service of Seven Days Notice of Owners’ Intention to Recover Possession is mandatory and condition precedent to an action for recovery of premises in Plateau State. The answer

to that question, I agree with appellant, lies not in the decision of this Court in Ndubuisi v. Shobande (2013) LPELR-22770 (CA) cited by the lower Court nor in the cases of Oduye v. Nigeria Airways Ltd (1987) 4 S.C 143 @ 161-163 and Splinters (Nig.) Ltd v. Oasis Finance Ltd (2013) 18 NWLR (PT 1385) 188 cited by Respondent in his brief of argument, all of which were decided on the provisions of the Lagos State Rent Control and Recovery of Premises Edict 1976 which made provisions of service of Seven Days Notice of Owners’ Intention to Recover Possession.
The Rent Control and Recovery Premises Edicts (now called Laws) of the different States of this country (See for instance Section 17 of the Cross Rivers State Rent Control and Recovery of Premises Law, Cap R3, also applicable in Akwa Ibom State), Section 15 of the Lagos State Rent Control and Recovery of Premises Law 1976 specifically made the following provision for service of 7 Days Notice to Tenant of Owners’ Intention to Recover Possession – Form E:
When and so soon as the term or interest of the tenant of any premises, held by him at will or for any term, either with or without

being liable to the payment of rent, shall have been duly determined by a written notice to quit.. or otherwise duly determined and such tenant, or if such tenant does not actually occupy the premises or occupies a part thereof, any person by who same or any part thereof shall then be actually occupied, shall neglect or refuse to quit and deliver up possession of the premises or such part thereof respectively, the landlord of the said premises or his agent may cause the person so neglecting or refusing to quit and deliver up possession to be served with a notice in Form E ….of the Landlord’s intention to proceed to recover possession.”
It is only upon service of that Statutory Notice of Owners Intention to recover possession that the 1976 Law of Lagos State by its Section 18 permits the landlord to apply for a writ or plaint, called Form F, against the tenant for possession. That point was brought out in all the said cases and particularly by Eso, J.S.C., in his lead judgment inOduye v. Nigeria Airways Ltd (1987) 4 S.C 143 @ 161-163; (198) LPELR-2264 p. 26-27 thus:
“The whole tenor of the Edict [Lagos State Rent control and

Recovery of Premises Edict 1976) is to create a new tenancy – a Statutory Tenancy unknown to Common Law, which Tenancy is to be protected and the recovery of premises from such statutory tenants to be restricted, indeed, only be done by compliance with the necessary formalities. There are such formalities as Notice to tenant of Owners’ Intention to Recover Possession – see Form E – to be followed by Writ or Plaint against Tenant or Person Refusing to Deliver up Possession – See Form F.
Section 18 the Lagos State Rent Control and Recovery of Premises Law 1976, for ease of reference, is also produced here:
18(1) Upon the expiration of the time stated in any such notice of the landlord’s intention to recover possession, if such tenant or any person holding or claiming by, through or under him, neglects or refuses to quit and deliver up possession accordingly, the landlord may apply to the Tribunal for the issue of a writ or enter a plaint as in form F, at his option either against such tenant or against such person so neglecting or refusing, in the tribunal or the district in which the premises are situate for the

recovery of the same.
In a major departure from this norm, the 31-Section Rent Control and Recovery of Premises Edict/Law No 1 of 1998 of Plateau State does not have any such requirement. It rather only provides in its Section 17 for service of Notice to Quit and length of such Notice thus:
17(1) Where there is no express stipulation as to notice to be given by either party to determine the tenancy, the following periods of time shall be given:
(a) In the case of tenancy at will or a weekly tenancy, a week’s notice;
(b) In the case of a monthly tenancy a month’s notice;
(c) In the case of a quarterly tenancy, a quarter’s notice;
(d) In the case of a yearly tenancy, half a year’s notice.
Provided that in the case of a monthly tenancy, where a tenant is in arrears if rent for three months after the commencement of this Edict, the tenancy shall determine and the Court shall on application of the landlord make an order for possession.
(2) The nature of the tenancy shall in the absence of the any evidence to the contrary be determined by reference to the time within which the rent is paid or demanded.
(Italics mine).

It then goes on to say in its own Section 18 that the landlord can thereafter proceed straight away to apply for a Plaint or Writ of possession against the tenant, as appellant did in this case.
That is the position of the Plateau State Law and not the provisions of Recovery of Premises Edict 1976 of Lagos State considered inNdubuisi v. Shobande (2013) LPELR-224770 (CA) which the Lower Court followed hook, line and sinker without asking itself whether similar provision for service on tenant by landlord of Notice of Owners Intention to Recover Possession before issue of plaint also applies in Plateau State. Where the provisions of the law on which a decision was decided are not the same with a latter case the statements of the principles in the former will not apply to the latter; just as it was said by Oputa, J.S.C., in the similar Lagos State Recovery of Premises issue case of Oduye v. Nigerian Airways Ltd (1987) LPELR-2264) p.54-55, when invited by respondent’s counsel to apply English cases on Recovery of Premises that were not based on similar statutory provisions like the Lagos State Rent Control and Recovery Premises Law

1976, that:
“The expressions used by a Judge in his judgment must be taken with reference to the case, the facts of the case, the law on those facts otherwise the law will get into extreme and irritating confusion. …
And coming to appellant’s further complaint that the Lower Court should have called for further addresses from parties on whether service of Seven Days Notice of Owners Intention to recover possession is applicable in Plateau Law, while that issue is not one of fact but rather of law so the Lower Court, strictly speaking, may not have needed further addresses from counsel to reach a decision on it (see Effiom & Anor v. C.R.S.I.E.C. (2010) 14 NWLR (PT. 1213) 603 @ 633-634; 2010 LPELR-1027 (SC) p. 32-33; NNPC v. Roven Shipping Ltd (2019) 9 NWLR (PT 1676) 67 @ 92, 93 (S.C), Persons, Name Unknown v. Sahris Int’l Ltd (2019) 13 NWLR (PT. 1689) 203 @ 232 (SC), given that that Court had set out to rest its entire decision to strike out appellant’s action on that point alone, prudence demanded that it call for addresses from counsel on it in order to avoid the possibility of miscarriage of justice: Katto v.C.B.N

(1991) LPELR-1678 (SC) p.31, (1991) NWLR (PT 214) 126; Petrojessica Enterprises Ltd v. Leventis Technical Ltd (1992) 5 NWLR (PT 244) 675 (SC). Had it done that, it would have been possibly enlightened on the correct position of the law in Plateau State and save parties the costs they have incurred in pursuing this appeal. By its overconfidence, it ended up erring just like the trial Court.
In the result, I resolve this sole issue in favour of the appellant. I hold that the Rent Control and Recovery of Premises Law No. 1 of 1998 of Plateau State does not require service of Notice of Owners Intention to Recover Possession before a landlord can apply for possession from his tenant.
That being the case and given (1) that by the provisions of Section 17(1) of the Plateau State Law service of even quit Notice by landlord is conditional upon “Where there is no express stipulation as to notice to be given by either party to determine the tenancy,” and (2) that by the agreement of parties in Clause 7 of Exhibit 1 that “The Accommodation Licence serves as an adequate and final notice to the licencee and the Licencee shall not be entitled

to any further notice,” the appellant landlord had done all that he needed to do under the Rent Control and Recovery of Premises Law No 1 of 1998 of Plateau State to commence his action and the Lower Court wrong in striking it out.
Since it was only on that erroneous ground that the lower Court found appellant’s action incompetent and his claims not grantable, the appeal must be and is hereby allowed and the decision of the Plateau State High Court striking out appellant’s claim is set aside. In its stead, appellant’s claims in his plaint against the Respondent succeed and are granted and the following orders here made:
1. That the defendant/respondent Lazarus Nwaemelu is to immediately surrender to the plaintiff/appellant Mr. Nze Luke Ikechukwu Muonanu vacant possession of Shop No. B7 situate at No. 35 Tafawa Balewa Street, Jos.
2. The defendant/Respondent is to pay to plaintiff/appellant mesne profits in the sum of ₦13,333.33 per month as rent, as agreed by parties in Exhibit 1, which sum amounts to ₦160,000.00 per annum and commences from 1/6/2016 till Shop B7 is vacated by Respondent.

Costs follow the events.

Accordingly, cost is assessed at ₦50,000.00 for the proceeding in the trial Upper District Court, ₦100,000.00 in the Lower Court, and ₦150,000 for this appeal, all in favour of appellant against Respondent.

TANI YUSUF HASSAN, J.C.A.: I agree with the reasoning and conclusion reached in the lead judgment just delivered by my learned brother, BOLOUKUROMO MOSES UGO JCA. I abide by the order as to costs.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read before now the lead judgment prepared and just delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA. I concur with the reasoning and conclusion contained in the said judgment.

The genesis of the relationship of the Appellant and the Respondent is predicated on Exhibit “I”. Since the recovery of premises law of Plateau State has no provision for the issuance and service of 7 days notice as a precondition before the landlord can approach the Court to recover possession, it then stand to reason that the requirement of 7 days notice is neither a law applicable to a relationship of this nature in Plateau State, nor the trial Court has the vires or business to apply and enforce the

provision of a non existing law in his area of jurisdiction. In this circumstance, all the Court need do was to give effect to Exhibit I which is the agreement between the parties having regard to the fact of this case. See NICON HOTELS LTD V. N.D.C. LTD (2007) 13 NWLR (Pt. 1051) 237 at 266. Agreement voluntarily entered into must be honoured in good faith. See JADESIMI V EGBE (2003) 10 NWLR (Pt. 827) 1 at 30 paras. G-H. For the foregoing and the further reasons contained in the lead judgment, I also allow the appeal and abide by the consequential orders including the order on cost.

Appearances:

M.P. Simdun, Esq., with him, S.D. Danboyi Esq. For Appellant(s)

L.E. Anyia Esq., with him, N. N. Bai, Esq. For Respondent(s)