ORJI v. OBI
(2020)LCN/15335(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Friday, July 17, 2020
CA/AW/427/2016
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
OFODUM ORJI APPELANT(S)
And
EMMANUEL OBI RESPONDENT(S)
RATIO
THE DUTY OF THE COURT IN CONSIDERING WHETHER A PLAINTIFF HAS LOCUS STANDI
The law is trite that in considering whether locus standi exists on the part of a Plaintiff, all that the Court needs to do is to peruse the Statement of Claim. In other words, the Plaintiff need not specifically plead in the Statement of claim that he has locus standi to institute the proceedings against a Defendant for the reliefs sought. All that he needs to plead and establish are the facts establishing his rights and obligations in respect of the subject matter of the Suit. PER PEMU, J.C.A.
THE MEANING OF THE WORD “SHALL”
On the Issue of the word “shall” the law is elementary that where the law or a rule is merely permissive or merely provides a justification for doing an act, what it permits cannot be regarded as a matter of obligation. There is a difference between a matter of obligation and a matter of liberty to do something.
The word “SHALL’ connotes mandatory discharge of a duty or obligation, and when such word is used in respect of a provision of the law, that requirement must be met.
The word “shall” may have other meanings when used in a Legislation. It may be capable of translating into a mandatory act, giving permission or direction.
Suffice to say that the issue of the word “shall” would depend on the circumstances whether it conjures mandatoriness or not. See NNONYE V ANYICHIE (2005)2 NWLR (pt. 910) 623. PER PEMU, J.C.A.
WHETHER OR NOT STATUTORY NOTICES ARE APPLICABLE TO TENANTS AT SUFFERANCE
In METAL CONSTRUCTION (WA) LTD V CHIEF MOYO ABODERIN (1998)6 SC 105, it was held inter alia thus:
“It is trite that one who enters on land by a lawful title and after his title has ended, continues to retain possession thereof without the consent of his Landlord is a tenant at sufferance and may be sued by his former landlord for compensation or damages for use and occupation of such land. As the general basis of the compensation of the kind claimed is the absence of consensus ad-idem between the parties on the issue of the specific rent payable, the Landlord may recover a reasonable satisfaction of compensation for the use and occupation of such premises held or occupied by the defendant as his tenant, or by his possession or sufferance. The claim is based on the fact of a holding over by a tenant after the determination of a tenancy.”
In situations such as this, the remedy open to the Landlord is to, (at the expiration of a lease, and the tenant holds over and refuses to pay rent) institute an action in the High Court to recover possession. See OBIOBA V DAFE (1994) 2 NWLR pt. 324. 157; AKPAN V AKPAN (2014) LPELR. 23637.
The Recovery of Premises Law, does not make provision for any length of notice for the determination of a tenancy at sufferance. A fortiori any such tenant is not entitled to any statutory notice. In other words, tenants at sufferance constitute exemption to the General Rule. – BEAHO V COLE (1957) NWLR 5. Statutory Notices are not applicable to tenants at sufferance. PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Anambra State holden at Ekwuolobia delivered on the 19th of July, 2016 in Suit No. AG/59/2015. Judgment was in favour of the Respondent and against the Appellant.
FACTS LEADING TO THIS APPEAL
Vide Originating Summons filed by the Respondent (Plaintiff in the Court below) against the Appellant (Defendant in the Court below) he sought a declaration that the lease (the subject matter of the Suit) had expired between him and the Appellant.
That there is no mandatory renewal claimed in the lease agreement, and for recovery of possession of the land from the Appellant.
The Appellant filed a counter-claim.
The facts of the case can briefly be put forth thus: The Respondent and his late father, Mr. Peter Obi entered into a lease agreement with the Appellant for a period of ten years in respect of a land over where an MTN mast was situate.
The father later died. The lease expired on the 15th of May 2015.
The Respondent did not desire to renew the lease and demanded that the Appellant gives up possession of the demised land to him. This is because there is no clause in the lease agreement dated 16th May, 2005 that makes it mandatory for the lessor to renew the lease upon expiration.
The Appellant’s case is that though the lease has expired, there is a mandatory clause in the lease which makes it mandatory for the lessor to renew the said lease.
At the end of the hearing, the Court below, relying on Exhibit A (the lease agreement) held that the lease had expired, and that there was no mandatory clause for renewal of it. The Court ordered the Appellant to deliver up possession of the demised land to the Respondent.
It is the Appellant’s case that the said Exhibit “A” was never extended by late Peter Obi, the father of the Respondent (as lessor). Two witnesses that signed for the lessor included the Respondent.
The Appellant brings this appeal on the basis that the Respondent lacks the locus standi to bring the action, the subject matter of this appeal and a fortieri, the Court below lacked jurisdiction to grant possession to the Respondent on the basis that the seven (7) days’ Notice of Landlord’s intention to proceed to recover possession of the demised land was not served, more so that there is a mandatory renewal clause in the lease agreement.
The Appellant is dissatisfied with the decision of the Court below and has appealed it.
Pursuant to the Practice Direction of this Honourable Court, the appellant filed a Notice of Appeal on the 4th of August, 2016 with six (6) grounds of Appeal – Pages 74-78 of the Record of Appeal.
Subsequently, the Appellant in an attempt to amend the Notice and Grounds of Appeal, filed an amended Notice of Appeal on the 7th of July, 2017, which was deemed filed on the 17th of March, 2020.
The Appellant filed his brief of Argument on the 7th of July, 2017. It is settled by C. P. Ofodum Esq.
The Respondent filed his brief of Argument on the 16th of November, 2017. Same is settled by A. O. Nwana Esq.
The Appellant filed a Reply brief of Argument on the 30th of November 2017.
On the 3rd of June, 2020 when this matter came up for the hearing of the Appeal, learned Counsel for the Appellant was absent from Court, even though there was proof of service of hearing notice on him on the 28th of May, 2020.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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This Honourable Court therefore deemed the Appellant’s brief and Reply brief duly argued. The Respondent adopted his brief of argument, and urged this Honourable Court to dismiss the appeal.
The Appellant distilled four issues for determination from the Grounds of Appeal they are:
a. Whether the trial Court did not lack jurisdiction and henceforth was wrong in proceeding with the suit, when the respondent is a third party to the lease in Exhibit “A”, making him to lack locus standi to institute the action, and thereby rendering the suit incompetent and robbing the trial Court of the jurisdiction to entertain the suit of the respondent. (Ground 1).
b. Whether the trial Court did not lack jurisdiction and henceforth was wrong in proceeding with the suit, when the respondent did not state the capacity upon which he was instituting the suit, and the parties not properly constituted thereby making the suit incompetent and robbing the trial Court of the jurisdiction to entertain the suit. (Grounds 2 and 3).
c. Whether the trial Court was wrong in holding that the word “shall” used in the renewal clause in the lease agreement does not indicate mandatory nature of the clause. (Ground 4).
d. Whether the trial Court did not lack jurisdiction and henceforth was wrong in ordering for recovery of possession of the demised land to the respondent from the appellant, when there was no evidence of the service of the Statutory 7 days’ Notice of Landlord’s intention to proceed to recover possession served on the appellant by the respondent. (Grounds 5 and 6).
The Respondent distilled four issues for determination. They are:
a. Whether the trial Court entertained the matter without jurisdiction on the basis of the locus standi of the Plaintiff/Respondent.
b. Whether the lease agreement dated the 16th day of May, 2005 and executed between the respondent as the lessor and the Appellant as the lessee is compulsorily renewably at the instance of either party.
C. Whether the trial Court erred in law when it granted the prayer of the plaintiff for the lessee (Ofodum Orji) to forthwith vacate the leased land and deliver possession to the lessor (Emmanuel Obi).
d. Whether the trial Court entertained the matter without jurisdiction on the bases of the locus standi of the plaintiff.
From a perusal of the respective issues for determination, it seems to me that the Respondent’s issues for determination are essentially an adoption of the Appellants issues for determination.
I shall therefore consider this appeal based on the Appellants issues for determination.
ISSUE NO. 1
The Appellant contends that the Court below lacked jurisdiction to entertain the suit, the subject matter of this appeal, because the Respondent (Plaintiff in the Court below) lacked the relevant locus standi to institute the Suit.
He argues that the Respondent was a third party to a contract agreement and therefore cannot institute an action in respect of the said contract, even if the contract was made for his benefit citing ALADE V ALIC NIG LTD (2011) ALL FWLR (pt 563) Page 1849; BAKASSI LOCAL GOVERNMENT COUNCIL V BASSEY (2009) All FWLR (pt 473) Pg 1293 AT 1302.
Submits that in this case, the Respondent signed the lease agreement as one of the witnesses to the lessor (Late Peter Obi) and therefore was not a party to the lease agreement.
He submits that the Respondent as a mere witness, is a third party to the lease agreement, and therefore lacks the locus standi to institute the Suit the way he did. He submits that only Peter Obi (the lessor) and Ofodum Orji Oquism W. A. Ltd are the persons who have the capacity to sue or be sued under the lease.
Urges this Court to hold that the Court below, was not seised of the jurisdiction to entertain the Suit because of the Respondents lack of capacity, the proceedings at the lower Court below ought to have been struck out in the first place, for want of jurisdiction.
ISSUE NO. 2
The Appellant submits that the trial Court was wrong in proceeding to entertain the Suit, and gave judgment in favour of the Respondent, when the Respondent did not state the capacity upon which he was bringing the Suit. He submits that it is the law that a party must state the capacity in which he is bringing a suit, and failure to do so renders the action incompetent – citing IRONBAR V FOEDEPAZ MORTGAGE FINANCE (2009) ALL FWLR (pt 494) Pg. 1549 @ 1566; UBN PLC V NTUK (2003) 16 NWLR (pt 845) at 183; EBOH V OGBU (1994) 5 NWLR (pt 347) Pg. 703.
The Appellant submits that the Respondent having lost his father Peter Obi (the lessor), it was incumbent on him to state whether he brought the Suit in a representative capacity on behalf of himself and the children of late Peter Obi, or as an administrator of the estate of late Peter Obi.
Submits that in the instant case, Exhibit “A” shows that the lessee in the lease agreement is Ofodum Orji Oquism WA Ltd (a limited liability Company) who can sue and be sued. That instead of the Respondent to sue the said Ofodum Orji Oquism WA Ltd (the lessee) he sued Ofodum Orji (an individual). That a cursory look at Exhibit “A” shows that the proper parties were not brought before the Court below, and that robbed the Court below of the jurisdiction to entertain the Suit.
ISSUE NO. 3
Submits that the Court below erred, when it held that the word “Shall” used in the renewal clause in the lease agreement does not indicate a mandatory nature. Citing ODUSOTE V ODUS (2013) FWLR (pt. 668) Pg 867; he submits that where the word “shall” is used in a document, it connotes a mandatory and directive nature, and does not admit of discretion. That the word “shall” indicates the mandatory nature of Clause 3 (a) of the lease agreement. He argued that if that clause is not mandatory for its renewal, it would not have in the same clause allowed the Appellant (Lessee) to stay for more six months on the demised land after the expiration of the lease within which to make a written request for renewal of the lease. Submits that the lease must be renewed once the lessee makes a written request for such.
He submits that in the present case the Appellant (lessee) had accepted the offer in clause 3(a) of Exhibit “A” by writing for renewal through Exhibits “I” and “C”.
That in law once an offer is accepted its becomes a binding contract between the parties and none of the parties can resile from the terms of the contract.
He submits that in the present case in the context in which the word “shall” appeared in clause 3(a) of the lease agreement, it shows that it is of a mandatory nature that once the Appellant (lessee) makes a written request for renewal of the lease, then the lessor must renew it for him.
ISSUE NO. 4
Submits that the Court below was wrong in granting the relief of recovery of possession of the demised land to the respondent when there was no evidence of the service on the appellant Landlord’s intention to proceed to recover possession by the respondent.
The Appellant submits that no statutory seven (7) days Notice of the Landlord was served on the Appellant by the Respondent, before instituting the action.
That the Appellant in this case is a statutory tenant and must be served with statutory Notice, before the recovery of possession of a demised possession from the tenant, citing AYINKE STORES LTD V ADEBOGUN (2013) All FWLR (pt 682) Page 1826.
Submits that where there is absence of service of the prescribed notice to the defendant as a statutory tenant, then the order of the Court of possession and mesne profits is invalid for want of jurisdiction. See TELIAT SULE V NIGERIAN COTTON BOARD (1985) 6 S.C. 62.
He submits that a Court can only assume jurisdiction in a matter when the condition precedent has been fulfilled – LANDO V CPC (2012) All FWLR. (pt. 607) Pg. 598.
In resolving the Appellant issues, I find it convenient to consider Issues 1 and 2 together.
The law is trite that in considering whether locus standi exists on the part of a Plaintiff, all that the Court needs to do is to peruse the Statement of Claim. In other words, the Plaintiff need not specifically plead in the Statement of claim that he has locus standi to institute the proceedings against a Defendant for the reliefs sought. All that he needs to plead and establish are the facts establishing his rights and obligations in respect of the subject matter of the Suit.
The Suit, the subject matter of this appeal came by way of Originating Summons. Nowhere in the Counter affidavit of the Defendant/Appellant in response to the Originating Summons, did he challenge the locus standi of the Plaintiff/Respondent at the trial Court. The issue of the Plaintiff/Respondent’s title and/or authourity to institute the action was not canvassed at the Court below. It was raised for the first time in the present Appeal. Indeed, in Paragraphs 3 and 4 of the Counter Affidavit in answer to the Originating Summons, by the defendant/Appellant, the Plaintiff/Respondent was acknowledged as the lessor by the Defendant/Appellant.
The lease agreement had this to say inter alia:
“This Deed of lease is made this 16th day of May, 2005 Between Mr. Peter Obi and Emmanuel Obi (Father and son) of Nigeria (hereinafter referred to as the “lessors” which expression shall where the context so admits include his heirs, agents, successors-in-title, administrators or executors, legal representatives and Assigns) of the one part.”
It is my view that in any deed, whether lease agreement etc; the body of the agreement can be termed the chapter, while the signature column which bears the signatures of the respective witnesses to the agreement constitute the “footnote”. Chapters Stick out as a thumb, rather than and more than footnotes. Chapters constitute the body of a book.
As rightly pointed out by the Respondent in Paragraph 4.07 of his brief of argument, the effect in law of the operating words in a lease agreement as stated earlier on in this judgment, is that the Plaintiff/Respondent can maintain an action against the Defendant/Appellant as the son of the 1st lessor and as the 2nd lessor himself. The names Peter Obi and his son Emmanuel Obi in the body of the lease agreement gives Emmanuel the capacity to the transaction.
It is my view that the appearance of Peter Obi’s son’s name on the body of the lease agreement as a co-lessor is paramount and his signature was mere surplusage. Agreed that the signing of a lease agreement is part of the process of executing the said lease agreement, nonetheless, a defect (if any) in the execution of a deed may not constitute fatality as to its enforceability; after all, the intention of the parties in a contract agreement is what matters. The parties must be ad idem in entering a legally binding contract. This can be gleaned expressly or by implication, from the body of the document/instrument.
The Defendant/Appellant has not denied that the Plaintiff/Respondent is the lessor in the lease agreement, while he is the lessee.
In construing a contract, the cardinal presumption is that the parties are presumed to have intended what they have in fact said, so that their words (as it stands) must be construed accordingly.
For the purpose of elucidation, I find it pertinent to reproduce part of the paragraphs in the Originating Summons in the Suit, the subject matter of this appeal, and indeed the declaratory claim.
By the Summons, the Plaintiff claims from and against the Defendant as follows:-
“A DECLARATION that the Deed of lease Agreement executed between Emmanuel Obi (Plaintiff) and Peter Obi (deceased) as Lessors, and Ofodum Oyi (Defendant) as Lessee on the 16th day of May, 2005 for a duration of ten years with respect to a parcel of land shown in Survey plan No.CD/SC/A.113/2005 measuring 289.986 Sq. metres and bounded by Survey Beacons NOS. SC/ANC1230J, SC/ANC1227 J. SC/ANC1228J and ANC1229J situate at Ezihu village, Igboukwu expired or elapsed on 15th day of May, 2015 by effluxion of time.” – Page 1 of the Record of Appeal.
In Paragraph 1, 2, 3, 4, 5, 6, and 8 of the affidavit in support of the Originating Summons, the Plaintiff deposed thus:
PARAGRAPH 1
“I am the Plaintiff on record in this Suit.”
PARAGRAPH 2
“My late father (Peter Obi) and myself own a parcel of land situate in our village (Ezihu village) in Igboukwu, Aquata Local Government Area of Anambra State.”
PARAGRAPH 3
“My father Peter Obi died on 11th October 2013.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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PARAGRAPH 4
“Sometime in the year 2005, the Defendant approached me and my Late father for a lease of our parcel of land situate in our Ezihu village, Igboukwu.”
PARAGRAPH 5
“I agreed with my late father to lease the parcel of land to the Defendant.”
PARAGRAPH 6
“We (myself and my late father executed a Deed Lease of Agreement on 16th May, 2005 with the Defendant.” – Page 5 of the Record of Appeal.
The Counter affidavit of the Defendant is reflected at Pages 37-38 of the Record of Appeal. The Defendant did not deny these Paragraphs hereinbefore reproduced of the Plaintiff’s affidavit in support of the Originating Summons. Those facts are in law deemed admitted. And facts admitted need no further proof.
It is my view, that the Respondent had the legal standing to sue in this Originating Summons as he did. He had the necessary locus standi to institute the Originating Summons. Ipso facto the Court below had the capacity to adjudicate on the matter as it did. The two issues are resolved in favour of the Respondent.
On the Issue of the word “shall” the law is elementary that where the law or a rule is merely permissive or merely provides a justification for doing an act, what it permits cannot be regarded as a matter of obligation. There is a difference between a matter of obligation and a matter of liberty to do something.
The word “SHALL’ connotes mandatory discharge of a duty or obligation, and when such word is used in respect of a provision of the law, that requirement must be met.
The word “shall” may have other meanings when used in a Legislation. It may be capable of translating into a mandatory act, giving permission or direction.
Suffice to say that the issue of the word “shall” would depend on the circumstances whether it conjures mandatoriness or not. See NNONYE V ANYICHIE (2005)2 NWLR (pt. 910) 623.
A painstaking perusal of Exhibit “A” is apt, in determining the intentions of the lessor in the circumstances of the lease agreement.
The introductory part of Exhibit “A” has this to say;
“THIS DEED OF LEASE IS MADE THIS 16TH DAY OF MAY, 2003 BETWEEN MR. PETER OBI AND EMMANUEL OBI (father and son) OF EZIHU VILLAGE IGBOUKWU AGUATA L.G.A OF ANAMBRA STATE OF NIGERIA (herein after referred to as the “Lessor” WHICH EXPRESSION SHALL WHERE THE CONTEXT so admits include his heirs, agents, successors-in-title, administrators or executors, legal Representatives and ASSIGNS) of the ONE PART.
AND
OFODUM ORJI, OQUISM (WA) LTD OF NO 18 NRI STREET, ONITSHA (herein after referred to as the “LESSEE” WHICH EXPRESSION SHALL WHERE THE CONTEXT so admits include his heirs, successors-in-title, agents, Administrators or executors, legal representatives and ASSIGNS of the OTHER PART.” – Page 9 of the Record of Appeal.
Ex facie Exhibit “A” exhibits the Respondent as one of the parties in the lease agreement and not a third party. Exhibit “A” has this to say further
WHEREAS:-
i. “The Lessor is the absolute owner in possession of the piece or parcel of land herein below described situate at Ezihu village Igboukwu Aguata Local Government Area of Anambra State.
ii. The Lessee has agreed with the Lessor for a lease of the said piece or parcel of land for a term of 10 (ten) years renewable at its expiration.” Clause 3; In the Deed (Exhibit A) has this to say;
THE LESSOR HEREBY COVENANTS WITH THE LESSEE AS FOLLOWS:
“That the Lessor shall on written request of the Lessee made either before or after its expiration, (but not more than months after the expiration) be granted renewal of the lease of the said property for a further terms and conditions to be agreed upon by both parties.”
The word “Shall” in this context when read in conjunction with the phrase “for a further terms and conditions to be agreed upon by both parties” does not admit of a mandatory nature, but it is one that admits of discretion: The renewal of the lease agreement becomes flexible. The renewal is dependent on conditions to be agreed upon by both parties if the need arises. If the lessor does not want a renewal of the lease and the lessee wants it, there cannot be said to be any agreement. That provision does not mandate the lessor to agree to a renewal if he does not want to. His hands remain unfettered.
The result is that the word “Shall” cannot be said in the circumstances of this case to refer to a binding obligation on the part of the lessor.
This issue is resolved in favour of the Respondent and against the Appellant.
On Issue No. 4, it is my view that a Court can only order the recovery of premises, if the relief sought is predicated on recovery of premises. If it is, then the Appellant ought to be served with the seven (7) days notice of owner’s intention to recover possessions, before filing this action for recovery of possession.
Relief (C) in the Plaintiff’s claim in the Court below states thus:
“AN ORDER commanding the Lessee (Ofodum Orji) (Defendant) to forthwith vacate the leased land, and deliver possession to the Lessor (Emmanuel Obi) (Plaintiff).” – Page 2 of the Record of Appeal.
It is the Appellants contention that no 7 days Notice of the Landlord’s intention to proceed to recover possession was served on the Appellant by the respondent before instituting this action.
That the Appellant, being a Statutory tenant by virtue of holding up a premises, the requisite statutory notice must be served on him before the recovery of possession of a demised premises from the tenant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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There is nothing to indicate that in the present case, such prescribed statutory 7 days Notice of Landlord’s intention to proceed to recover possession was served on the Appellant by the Respondent, as required by law.
It is my view that generally such failure is fatal to the case of the Respondent. It is a condition precedent to the recovery of premises and failure to comply spells doom to the Suit, as the Suit is dead on arrival. Whatever order is made by the Court below becomes null and void.
However, in the special circumstances of this case, the Court below observed that both parties are agreed that the defendant was not paid any rent since 2015 when the original lease expired.
Exhibit “B” is a solicitor’s letter dated 21st of May, 2015 written to the Lessee (Appellant in this Appeal). It is titled “EXPIRATION OF LEASE DEMAND FOR YOU TO VACATE AND DELIVER UP POSSESSION”.
Paragraphs 4, 5, and 6 of Exhibit B states thus
PARAGRAPH 4
“The term of the lease was for ten (10) years beginning from 16th May 2005. The lease, therefore expired on the 16th of May 2015.”
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PARAGRAPH 5
“It is our client’s decision not to renew and/or extend the tenure of the lease.”
PARAGRAPH 6
“In the circumstance, our client demands that you vacate the leased piece or parcel of land described in paragraph 3 of this letter and give up possession to our client (the Lessor).” – Pages 12 – 13 of the Record of Appeal.
Exhibit C is solicitors letter dated 25th of June, 2015 from the Lessee. In it he blatantly refuses to vacate the premises even though his lease had expired, on the ground that the terms of the agreement is that the lease must be extended.” – Page 14 of the Record of Appeal.
In METAL CONSTRUCTION (WA) LTD V CHIEF MOYO ABODERIN (1998)6 SC 105, it was held inter alia thus:
“It is trite that one who enters on land by a lawful title and after his title has ended, continues to retain possession thereof without the consent of his Landlord is a tenant at sufferance and may be sued by his former landlord for compensation or damages for use and occupation of such land. As the general basis of the compensation of the kind claimed is the absence of consensus ad-idem between the parties on the issue of the specific rent payable, the Landlord may recover a reasonable satisfaction of compensation for the use and occupation of such premises held or occupied by the defendant as his tenant, or by his possession or sufferance. The claim is based on the fact of a holding over by a tenant after the determination of a tenancy.”
In situations such as this, the remedy open to the Landlord is to, (at the expiration of a lease, and the tenant holds over and refuses to pay rent) institute an action in the High Court to recover possession. See OBIOBA V DAFE (1994) 2 NWLR pt. 324. 157; AKPAN V AKPAN (2014) LPELR. 23637.
The Recovery of Premises Law, does not make provision for any length of notice for the determination of a tenancy at sufferance. A fortiori any such tenant is not entitled to any statutory notice. In other words, tenants at sufferance constitute exemption to the General Rule. – BEAHO V COLE (1957) NWLR 5. Statutory Notices are not applicable to tenants at sufferance.
Exhibits B and C indicate that the tenancy had expired, the lessee was given notice to quit and he blatantly refused to do so and remained on the land. He neither delivered possession of the land, nor paid further rent. That makes the Respondent a tenant at sufferance. ABEKE V ODUNSI & ANOR (2013) LPELR 20640; AP LTD V OWODUNNI (1991) 11-12 SC. 56.
In his reply brief, the Appellant had agreed that Tenancy at sufferance is a common law principle which is no more applicable to Anambra State and some other states in Nigeria as the Landlord and Tenant relationship in Anambra State is now being governed by the Landlord and Tenant law of Anambra State 1980. He urges that in Anambra State, a tenant whether for a term, certain periodic tenancy or tenancy at will, who holds over a demised premises after the determination of his tenancy, now becomes a statutory tenant and is supposed to be served statutory 7 days Notice of Landlords intention to proceed to recover possession before the Landlord can institute an action in Court to recover possession of the premises from the tenant.
There is a notice given to the lessee to give up the land, though not titled “Owner’s intention to recover possession”.
If on the 21st of May, 2015 demand was made by the lessor to the lessee to give up the land, five days after the lease expired, (which the lessee refused to). The question is whether that demand of 21st of May, 2015 satisfies the requirement of the law as it is. From the date of the demand by the lessor on the 21st of May, 2015, to the 28th of July, 2015 when the lessor instituted a Suit by way of Originating Summons is a period of about two months.
I am of the view that the Appellant was given sufficient notice in law and equity.
The tenure of the lease was for a period of ten (10) years beginning from 16th May, 2005. It expired on the 16th of May, 2015.
On the 21st of May, 2015, demand was made by the lessor to the lessee of the land. On the 25th of June, 2015, the lessee wrote through a solicitor that he was not going to give up the land. On the 28th of July, 2015, the Lessor instituted a suit by way of Originating Summons against the Lessee.
From 2015 till now, rent has not been paid to the Lessor in respect of the land. I am of the view that the argument of the Appellant is misconceived.
In all, I am of the view that the issue be and is hereby resolved in favour of the Respondent and against the Appellant.
The Appeal is bereft of merit and same is hereby dismissed. The judgment of the High Court of Justice Anambra State, holden at Ekwulobia is Suit No. AG/59/2015 and delivered on the 19th of July, 2016 is hereby affirmed.
N100,000 costs in favour of the Respondent.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading the draft of the lead judgment delivered by my learned brother, R. N. PEMU, JCA.
I agree with the reasoning and conclusion which I adopt as mine. I also dismiss this appeal and affirm the judgment of the Ekwulobia division of the High Court of Anambra State in Suit No. AG/59/2015, delivered on the 19th of July, 2016.
I abide by the order as the costs made by PEMU, JCA in the lead judgment.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
Appearances:
C.P. OFODUM, ESQ. For Appellant(s)
A.O. NWANA, ESQ. For Respondent(s)
