OBIAMULU v. OGWUEGO (2020)

OBIAMULU v. OGWUEGO

(2020)LCN/15455(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, November 04, 2020

CA/E/774/2018

RATIO

CIVIL PROCEEDING: BURDEN OF PROOF

It is settled law that the burden of proof lies on the party who would fail if no evidence is adduced in support of his claims. The law is equally trite that the standard of proof in civil case is on balance of probabilities or preponderance of evidence. See OLUSANYA V. OSINLEYE (2013) 7 NWLR (PT. 1367) 148. PER ABUBAKAR SADIQ UMAR, J.C.A.

TENANCY: WHETHER MESNE PROFIT NECESSARILY HAS TO BE THE SAME AMOUNT PAID AS RENT ON THE PROPERTY.

PROOF OF FACT: WHETHER A COURT MAY SPECULATE FACTS WHERE ADMISSIBLE EVIDENCE HAS NOT BEEN PROVIDED IN RESPECT OF SAME

LEGAL PERSONALITY: WHETHER A REGISTERED BUSINESS NAME HAS A LEGAL PERSONALITY SEPARATE FROM ITS OWNER (S)

A registered business name has no legal personality separate from its owner or owners, neither can it sue or be sued. Rather it is the proprietor or proprietors of the business name that will sue or be sued. If the matter over which the action is instituted concerns the business name, it will simply be indicated that the proprietor(s) is “trading under the name and style of ABC business name.” This is what the cliché saying that a business name is not a separate legal entity refers to. See SLB CONSORTIUM LTD V. NNPC (supra). On the subject of juristic personality, see SOCIO-POLITICAL RESEARCH DEV. V. MINISTRY OF FEDERAL CAPITAL TERRITORY (2019) 1 NWLR (PT. 1653) 313; FBN PLC V. A.G. FEDERATION (2018) 7 NWLR (PT. 1252) 121; DAIRO V. REGD. TRUSTEES, T.A.D., LAGOS (2018) 1 NWLR (PT. 1599) 62. PER ABUBAKAR SADIQ UMAR, J.C.A.

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

GEORGE OBIAMULU (Suing By Attorney P. A. Ogwuche & Associates And Uche Anyikwa Esq.) APPELANT(S)

And

LARRY OGWUEGO RESPONDENT(S)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Enugu State in the Enugu Judicial Division delivered by Hon. Justice C.C. Ani on 29th June, 2018. The said judgment was delivered in an appeal against the judgment of the Magistrate Court, Enugu delivered on 12th June, 2017. The Appellant as Plaintiff vide a Claim dated 23rd September, 2015 and filed on 28th September, 2015 claimed against the Respondent as follows:
“1. Possession of the said warehouse (store) with its appurtenances at No. 73, Chime Avenue, New Haven, Enugu.
2. The sum of Nine Hundred Thousand Naira (N900, 000) as arrears of rent from September 2010 to August 2015 at N15, 000 per month.
3. Mesne profit at the rate of N15, 000 per month from September 2015 until possession is given up.” (See page 88 of the record of appeal.

The trial Magistrate Court granted all the reliefs sought by the Appellant. Dissatisfied with the decision of the trial Magistrate, the Respondent as Appellant in the immediate Court below, filed an Amended Notice of Appeal seeking an order setting aside the judgment of the trial magistrate (See pages 1-4 of the record of appeal). The parties filed their respective briefs at the Court below and after hearing argument from Counsel, the Court below delivered its judgment on 29th June, 2018. In allowing the appeal in part, the Court below entered judgment as follows:
“1. The Order that the Defendant shall pay to the Plaintiff the sum of Nine Hundred Thousand Naira as arrears of rent from September 2010 to August 2015 at N15, 000 per month is hereby set aside.
2. The Order that the Plaintiff shall pay to the Plaintiff mesne profit at the rate of N15,000 per month from September 2015 until possession is given up is also set aside.
3. The Appellant shall deliver to the Respondent possession of the warehouse (store) with the appurtenances at No. 73 Chime Avenue, New Haven, Enugu on or before the 30th day of June, 2018.” (See pages 1-24 of the additional record of appeal).

The Appellant being dissatisfied with the judgment of the Court below appealed to this Court via an undated Notice of Appeal filed on 27th July 2018. (See pages 134-138 of the record of appeal)

The three grounds of appeal contained in the Notice of Appeal albeit without their particulars are hereunder reproduced as follows:
“1. The lower Court erred in law as it failed to apply the legal principle of stare decisis in the Supreme Court decision in ONUEKWUSI V. R.T.C.M.Z.C. (2011) 35 WRN 1 at 22.
2. The lower Court erred in law as it held that the evidence of P.A. Ogwuche of P.A. Ogwuche & Associates one of the Attorneys to be hearsay evidence.”
3. The lower Court erred in law as it failed to act on the principle of shift evidential burden of proof in civil cases.”

I noticed that the Appellant stated at paragraph 2 of his Notice of Appeal that his appeal is against the whole decision of the Court below. Counsel seems to have realized this error as he stated in paragraph 1.2 of his brief of argument that he appealed against the orders setting aside the awards of arrears of rent and mesne profit.

In obedience to the rules of this Court, Counsel filed and exchanged their briefs or argument. Appellant’s brief of argument was settled by P.A. OGWUCHE, ESQ. The said brief is dated 28th November, 2018 and filed on the same day. Chief J. AKA MADUAKOLAM settled the Respondent’s brief of argument which is dated 29th April, 2019 and filed on 30th April, 2019. The said brief was deemed properly filed on 6th October, 2020 being the day the appeal was heard. At paragraphs 4.1, 5.1 and 6.1 of his brief, appellant’s Counsel distilled three issues for determination and same were adopted by Respondent’s Counsel at page 3.0 of his brief. The issues distilled are as follows:
“ISSUE NO. 1
Whether the lower Court is bound to apply the legal principle of stare decisis?
“ISSUE NO. 2
Whether the evidence of the Appellant’s witness No. 2 (PW2) was hearsay evidence in the circumstances it was tendered?
“ISSUE NO. 3
Whether the order setting aside the reliefs of arrears of rent and mesne profit is legally justified when it (the lower Court) had found and held that the Respondent was in possession of the premises without paying rent after increment.”

After going through the record of appeal and the additional record of appeal compiled and duly transmitted to this Court and the arguments put forward by Counsel in their briefs; I shall adopt the issues as distilled by Appellant’s Counsel and adopted by Respondent’s Counsel for the determination of the appeal.

ISSUE NO. 1
Appellant’s counsel submitted that the lower Court refused to apply the principle of judicial precedent by its failure to follow the case of ONUEKWUSI V. R.T.C.M.Z.C. (supra) cited by him in his address to the lower Court. Counsel submitted that had the Court below applied the principle, it would have held that the P.A. Ogwuche & Associates was a corporate aggregate capable of suing and being sued.

In response, Respondent’s Counsel submitted that the issue has no bearing on the determination of this appeal and that same is liable to be struck out. Counsel however went on to canvass argument in support of the issue. He further submitted that the Court below applied the said principle and rightly held that a business name has no capacity to sue or be sued. He placed reliance on the case of SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR (PT. 1252) 317.

RESOLUTION OF ISSUE NO. 1
It is with great consternation that I read the submissions of Appellant’s Counsel in support of this issue. Indeed, it gave me severe heartache to see a legal practitioner argue blindly in respect of an issue that has been over flogged. I therefore feel the need to educate Counsel on the legal status of a registered business name. It has been settled as far back as 1887 in the case of SALOMON V. SALOMON & CO. (1887) AC 22 that an incorporated company has a distinct legal personality from its shareholders, owners and directors. It is not in doubt that “P.A. Ogwuche & Associates” was registered as a business name with the Corporate Affairs Commission (CAC) (see Exhibit Cat page 97 of the record of appeal). The case of ONUEKWUSI V. R.T.C.M.Z.C. (supra) relied on by Appellant’s Counsel borders on the legal status of an incorporated trustee and its ability to sue and be sued separate from its trustees. Nowhere in the judgment did the Apex Court consider the legal status of a registered business name. A registered business name has no legal personality separate from its owner or owners, neither can it sue or be sued. Rather it is the proprietor or proprietors of the business name that will sue or be sued. If the matter over which the action is instituted concerns the business name, it will simply be indicated that the proprietor(s) is “trading under the name and style of ABC business name.” This is what the cliché saying that a business name is not a separate legal entity refers to. See SLB CONSORTIUM LTD V. NNPC (supra). On the subject of juristic personality, see SOCIO-POLITICAL RESEARCH DEV. V. MINISTRY OF FEDERAL CAPITAL TERRITORY (2019) 1 NWLR (PT. 1653) 313; FBN PLC V. A.G. FEDERATION (2018) 7 NWLR (PT. 1252) 121; DAIRO V. REGD. TRUSTEES, T.A.D., LAGOS (2018) 1 NWLR (PT. 1599) 62.
However, as the lower Court rightly held at page 10 of the additional record of appeal, the case is still sustainable because the Appellant’s other Attorney who sued on behalf of the Appellant as plaintiff at trial is a natural person who can validly institute an action.
I resolve this issue in favour of the Respondent and against the Appellant.

ISSUE NO. 2
Appellant’s Counsel submitted that the evidence of PW2 at trial cannot constitute hearsay evidence because the testimony of the said witness was “direct evidence of what he heard from the landlord and the caretaker”. He referred to Section 126 (a) and (b) of the Evidence Act.

On his part, Respondent’s Counsel argued that by virtue of Section 37 of the Evidence Act, any oral or written statement not made by a witness amounts to hearsay evidence which is inadmissible. He submitted that the testimony of PW2 about the nature of the Appellant’s tenancy and rent paid constitute hearsay evidence and urged this Court to resolve this issue in favour of the Respondent.

RESOLUTION OF ISSUE NO. 2
Section 37 of the Evidence Act defines hearsay evidence as follows:
“Hearsay means a statement ¬–
1. Oral or written made otherwise than by a witness in a proceeding; or
2. Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.”
On what constitutes hearsay evidence, the Supreme Court in the case of OJO V. GHARORO (2006) 10 NWLR (PT. 987) 173 at 198 para. H held thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Hearsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part on the veracity and competence of some other person.” Per Tobi, JSC.

During his evidence in chief before the trial magistrate (see page 66 of the record of appeal), PW2 testified thus:
“Our brief was that the defendant is a monthly tenant and pays N15, 000 per month as rent.”

During cross-examination at page 69 of the record, he testified thus:
“I am representing the landlord and there can be no vital information than what the landlord told me that the defendant was paying N15, 000 per month up to 2010.”

The Court below was therefore right in coming to a conclusion that the evidence of PW2 regarding the nature of the Respondent’s tenancy and his monthly rent amount to hearsay and therefore inadmissible in law. The contention of Appellant’s Counsel at paragraph 5.5 of his brief of argument that PW2’s evidence was direct evidence of what he heard from the landlord and caretaker is self-contradictory, misconceived and indeed laughable. A statement relayed to the witness by someone else amounts to hearsay. I then ask; how can such a statement be direct evidence?
Issue No. 2 is also resolved in favour of the Respondent and against the Appellant.

ISSUE NO.3
In support of issue 3, Counsel for the Appellant submitted that the lower Court having held that the Respondent could not continue to be in possession of the property in question without paying rent and after having affirmed the order for recovery of possession ought not to have set aside the order for payment of mesne profit. He further submitted that even where a party fails to prove arrears of rent, such a failure cannot debar him from entitlement to mesne profit as a fair rental value from the date of determination of tenancy until possession is given up. He referred to the case of ABEKE V. ODUNSI (2013) 13 NWLR (PT. 1370) 1. Counsel concluded by urging this Court to set aside the judgment of the lower Court in respect of arrears of rent and mesne and uphold the judgment of the trial Court.

In response, Respondent’s Counsel submitted that PW2’s evidence about the nature of the Respondent’s tenancy and the monthly rent being hearsay evidence, the Court below was right to have set aside reliefs of arrears of rent and mesne profit granted by the trial Court. Counsel finally urged this Court to dismiss this appeal and affirm the Judgment of the lower Court.

RESOLUTION OF ISSUE NO. 3
Before I resolve this issue, I must take a minute to address the bold assertion of Appellant’s Counsel at paragraph 6.2 of his brief of argument that the Court below found that the Respondent admitted the following:
“(i) That he was a monthly tenant which was determined by the statutory notices served on him;
(ii) That he was paying a monthly tenant (sic) of N15, 000 per month; and
(iii) He stopped paying rent as at August 2020.”

A peep at page 17 of the additional record of appeal would reveal that the lower Court held as follows:
“The area of disagreement between the parties is as regards the nature of the tenancy, whether it is the Plaintiff/Respondent that is the Landlord or his father; whether it is a monthly or a yearly tenancy and the amount of rent payable.”

These false assertions made by Counsel amounts to telling a barefaced lie. It is sad that Counsel who is a minister in the temple of justice has chosen to desecrate that temple with reckless abandon all in an effort to plead the case of his client. The assertions made by the Counsel ordinarily paint the Court below in a bad light. However, this Court refuses to fall for his gimmicks.

I have earlier held in this judgment that the testimony of PW2 in respect of the nature of the Respondent’s tenancy and the monthly rent are nothing but hearsay evidence. At page 76 of the record of appeal, the Respondent under cross-examination admitted that he was not paying rent because the caretaker he used to make payment to was dead. It is therefore obvious that the he is liable to pay arrears of rent.

It is trite law that he who asserts must prove. See Section 131 of the Evidence Act, HELIOS TOWERS LTD. V. BELLO (2017) 3 NWLR (PT. 1551) 93. In the instant appeal, where the Appellant could not lead any legally admissible evidence as to the amount to be paid by the Respondent as annual rent, the Court has nothing to act on. Asking the Court to grant the relief relating to annual rent in this circumstance is tantamount to asking the Court to engage or indulge in speculation. The law is trite that the Courts must not indulge in speculation or conjecture. See AYOADE V. STATE (2020) 9 NWLR (PT. 1730) 577. I agree with the Court below when it held at page 18 of the record of appeal as follows:
“The finding of the lower Court on the amount of rent payable is based on the evidence of the PW2 as the DW3, the Defendant/Appellant was very evasive concerning the amount of rent payable. However, the judgment flowing from this piece of evidence is not supported by the principles of hearsay evidence and consequently, cannot stand.”

It is the position of the law that mesne profit does not necessarily have to be the same amount paid as rent on the property. It could be arrived at by evaluating the current rental value of the property. See AYINKE V. LAWAL (1994) 97 NWLR (PT. 356) 263. However, as is the case with arrears of rent in the instant appeal, the Appellant has provided this Court with no admissible evidence to work with in order to decide the amount to be paid as mesne profit. Therefore, his reliefs for arrears of rent and mesne profit are bound to fail. I hereby resolve issue No. 3 in favour of the Respondent and against the Appellant.

At this juncture, it behooves me to say a few words about the conduct of the Respondent. He felt comfortable making use of another man’s property without paying any consideration for the enjoyment of the property. I find it incredulous that he said he did not remember how much he was paying as rent. How convenient! The Court below was being kind when it described his attitude as evasive. It is despicable of the Respondent to hide behind the death of the former caretaker to give evidence that he could not remember the amount he was paying. Would he have given the same answer if the said former caretaker was there to testify? I think not. However, the Court is a fact finding institution and in order to fulfill that role, parties must provide it with enough proof within the limits of what is admissible in law. The Appellant failed to do this and he has paid the price for it.

Having considered the cases put forward by both parties, I have painfully come to the conclusion that the famed imaginary scale tilts far more to the side of the Respondent than that of the Appellant. Flowing from my resolution of the three issues, I hold that this appeal fails.

I hereby uphold the Judgment of the Court below delivered by Hon. Justice C.C. Ani on 29th June, 2018. Appeal stands dismissed. Parties shall bear their respective costs.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the benefit of reading the Judgment of my learned brother ABUBAKAR SADIQ UMAR, JCA before now and he has characteristically dealt with the Issues raised in the Appeal with utmost clarity and resolved them in accordance with decided authorities of the Supreme Court and indeed this Court, I agree therefore with his reasoning and conclusion that the Appeal is unmeritorious and should fail. I too dismiss same. Parties shall bear their respective costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree

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Appearances:

P. A. OGWUCHE, ESQ. For Appellant(s)

Chief J. AKA MADUAKOLAM, with him, Henry Ugwu For Respondent(s)