OWHOR v. OBODO
(2020)LCN/15285(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, June 03, 2020
CA/PH/448/2017
Before Our Lordships:
Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal
Isaiah Olufemi Akeju Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
DAVID OWHOR APPELANT(S)
And
CHIEF EMMANUEL UDOME OBODO RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS COMPULSORY FOR A PARTY IN A CIVIL SUIT TO APPEAR PHYSICALLY IN COURT
Instructively, there is no law making it compulsory for a party in a civil action to appear physically in Court. All that is necessarily required, in the best interest of good administration of justice, is that the day to day judicial schedule (Cause List) of the Court is not stultified or frustrated by non-appearance of a party before it. See KEHINDE VS. OGUNBUNMI (1968) NWLR 37; ATAKE VS. AFEJUKU (1994) 9 NWLR (PT. 368) 379, NEWSPAPER CORPORATION VS. ONI (1995) 1 SCNJ 218 @ 239 – 240. PER SAULAWA, J.C.A.
WHETHER OR NOT FAILURE TO SERVE THE ADVERSE PARTY WITH ORIGINATING PROCESSES RENDERS THE PROCEEDINGS A NULLITY
Thus, failure to serve the adverse party with the necessary originating process invariably renders the proceedings by the Court and any orders predicated thereupon, nullities. See MARK VS. EKE (2004) 1 SCNJ 245, ODUTOLA VS. KAYODE (1994) 4 SCNJ 1; LEEDO PRESIDENTIAL MOTEL LTD VS. BON LTD (1998)10 NWLR (PT. 570) 353 @ 381; SKENCONSULT (NIG) LTD VS. UKEY (1981)1 SC 6 @ 27; SENATOR MAMMAN ALI VS SENATOR USMAN ALBISHIR (2007) LPELR – 8319 (CA). PER SAULAWA, J.C.A.
WHETHER OR NOT THE COURT CAN PUNISH A LITIGANT FOR THE MISTAKES OF HIS COUNSEL
I think it should be regarded as settled by a long line of decided cases that the Courts do not normally punish a litigant for mistakes of his counsel. But in my opinion, the Court will not regard this as a universal talisman, the waiver of which will act as a panacea in all cases, the Courts must be satisfied not only that the allegation of the … of Counsel is true and genuine but also it is availing having regard to the circumstances of the particular case.
Per Nnaemeka – Agu, JSC @ 669, See also EZECHUKWU VS ONWUKA (2005) LPELR 6115 (CA);(2006) 2 NWLR (PT. 963) 151. PER SAULAWA, J.C.A.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the Judgment of the Rivers State High Court, Port Harcourt Judicial Division delivered on March 24, 2017 in suit No. PHC/117/2016. By the Judgment in-question, the Court below in exercising its appellate jurisdiction dismissed the Appellant’s appeal with substantial cost of N100,000.
BASIC GROUND FACTS
The genesis of the present appeal is traceable to January 18, 2013. That was the date on which the Respondent instituted the action (PMC/44/2013) against the Appellant at the Magistrate’s Court Port Harcourt Magisterial District, thereby claiming the following reliefs:
I. The Claimant is Chief Emmanuel Udome Obodo, a retiree, whose address is No. 53 Ogunka off Ada George Road, Port Harcourt, Rivers State; and his address for service is Awoikiega and Awoikiegha, No. 4 Okomoko Street (Left Wing) opposite Gospel Deliverance Mission, D/Line, Port Harcourt.
II. The Defendant’s Surname is Owhor, and his other name is David. He resides at Ula- Ehuda, Ahoada East Local Government Area of River State,
III. Service out of jurisdiction is necessary, as the Defendant’s address is outside the jurisdiction of his Honourable Court.
IV. The Defendant’s address for service outside jurisdiction is Ula- Ehuda, Ahoada East Local East Local Government Area, Rivers State.
V. The Claimant’s are for:
i. Vacant possession of the two-bedroom flat together with its appurtenances situate and being at Block F, Flat 4, Orominike housing Estate, Port Harcourt, Rivers State, Which the Defendant has held over and detained from the Claimant despite seven days’ Notice of Owners intention to apply to recover possession, dated the 9th day of January, 2013 and served on the 10th day of January, 2013, after the determination of the Defendant’s one year fixed tenancy by effluxion of time on the 31/12/2012.
ii. The sum of N270,000.00 (Two Hundred and Seventy Thousand Naira), being arrears in respect of the said two-bedroom flat situate and being at block F, flat 4, Oromike Housing Estate, Port Harcourt, Rivers State, from 01/01/2012 to 31/12/2012.
iii. The sum of N25,000.00 (Twenty Five Thousand Naira) per month, being mesne profit in respect of the said two- bedroom flat situate and being at block f, flat 4, Orominike Housing Estate, Port Harcourt, Rivers State, from 01/01/2013 until vacant possession of same is delivered to the Claimant.
At the conclusion of the trial of the suit, the Learned trial Senior Magistrate delivered Judgment on May 21, 2013 to the conclusive effect:
IT IS ADJUDGED that the Claimant recover against the defendant possession of premises above mentioned in the particulars of claim that this the two bedroom flat and appurtenances situate at Block F, Flat 4 Orominike Housing Estate, Port Harcourt, Rivers State.
IT IS FURTHER ADJUDGED that the Claimant recover from the defendant the sum of N270,000.00 representing arrears of rent for the two bedroom flat from February 2012 to 31st of December 2012 and the sum of 25,000.00 (sic) per month for the two bedroom flat as mesne profit from 1st of January 2013 until possession is given up.
TAKE NOTICE: That if you do not pay the said sum, a warrant may be issued, requiring the bailiff of Court to levy the sum above mentioned together with further cost.
See pages 23 – 24 of the Record of Appeal.
Dissatisfied with the trial Magistrate Court’s decision, the Appellant appealed to the Rivers State High Court vide a Notice of appeal, dated 03/12/2015. At the conclusion of the hearing of the said appeal, the Court below delivered Judgment on May 24, 2017 to the conclusive effect:
In the final analysis, it is my view, that the Magistrate Court rightly assumed jurisdiction and determined the case on the merits. The Appeal lacks merits and stands dismissed in its entirety and the Judgment of the Court below in suit No: PMC/44/2013 be and is hereby affirmed. Costs in the sum of N100,000.00 one Hundred Thousand Naira only) is awarded in Respondents favour against the Appellants.
See pages 67-99 of the Record.
Again, the Appellant is dissatisfied with the Judgment of the Court below, thus filed the Notice of Appeal dated May 17,2017, thereby urging upon the Court to set aside the said decision.
The appeal having been entered since August 11, 2017, the parties proceeded to file their respective briefs of argument. On February 24, 2020, when the appeal came up for hearing, the learned counsel adopted the argument contained in their respective briefs of argument, thus resulting in reserving Judgment.
The Applicant’s brief filed on September 12, 2017 spans a total of 31 pages. At pages 2-3 of the said brief, four issues have been couched:
1. Whether there is legally established credible evidence in proof that the Appellant was indeed served with the originating processes as required by law.
DISTILLED FROM GROUNDS 1, 7, 10 and 11 of the NOTICE OF APPEAL.
2. Whether is legally inappropriate and out of place for the lower Court to have refused the adducing of additional evidence at the appellate stage.
DISTILLED FROM GROUNDS 2, 3, 4, 5 and 6 of the NOTICE OF APPEAL.
3. Whether the determination of the contractual relationship between the appellant and the Respondent is one fact alone, and strictly binding and enforceable.
DISTILLED FROM GROUNDS 8 and 9 of the NOTICE OF APPEAL.
4. Was the lower Court legally right based on the facts before it in holding that the Appellant was not diligent in appealing the judgment of the trial Court.
DISTILLED FROM GROUNDS 12 and 13 of the NOTICE OF APPEAL”.
The issue No.1 is extensively argued at pages 3-12 of the said brief.
In a nutshell, the argument of the Appellant on the issue is to the effect, that the facts and evidence placed before the trial Court failed to meet up with the legal requirement allowed by law for the Court below to have concluded that the originating processes were served on the Appellant, but he chose not to defend the suit.
It was submitted that by virtue of Exhibit B (the letter from the Appellant lawyer), there is no doubt that the Notice of intention to recover possession of the property (Exhibit A) was served on the Appellant.
It’s further submitted, that unlike Exhibit A, there is overwhelming evidence to show that the Appellant was never served with the originating process (the Plaint/Claim) as strictly provided for by the law and rules of the trial Court.
It was argued, that the only document the two lower Courts relied upon in reaching their conclusions (that the Appellant was served with the said originating process) was a “C 2 7 AFFIDAVIT OF SERVICE” purportedly sworn to by one Ugochukwu Amachi – Wali, a bailiff on 5th February, 2013.
The Court is urged to hold that the decision of the Court does not arise from the evidence on record, thus it ought to be set aside. See IGBIKIS VS. THE STATE (2017) 11 NWLR (PT 1575) 126 @ 43 Paragraphs C. E. ATOLAGBE VS. SHORUN (1985) 2 NWLR (PT. 2) 360; AMADI VS. THE STATE (2017) 11 NWLR (PT. 1575) 92 @ 111 – 112 Paragraphs E. A.
The provisions of Order Rules 2, (3), 6 (1), of 10 and 11 of the Rules of the trial (Magistrate’s) Court have been referred, to the effects that the service of originating process is the sole duty of the Court through its bailiff. It is contended, that the addresses of the Appellant as inconsistently and contradictorily stated in the Plaint/Claim the purported affidavit of service and the Respondents evidence, is exposed to speculation and serious doubt.
The Court is urged upon to hold that serious doubt exists as to the service of the Plaint/Claim on the Appellant, and accordingly resolve the issue No.1 in favour of the Appellant.
The issue No.2 is canvassed at pages 12 – 20 of the said brief.
It is submitted by Learned Counsel, that the provisions of Order 40 Rules 32 and 33 of the High Court (Civil Procedure) Rules, 2010, the said rules envisage the wickedness and mischievous disposition of some litigants before trial Courts in distorting, misleading and hiding facts and evidence. It was argued, that the essence of need for the fresh evidence was to prove that the Respondent deliberately failed to disclose to the trial Court the handwritten receipt issued to the Appellant that covers the rent for 2011 at the rent value of N250,000.00 paid by the Appellant in March, 2011.
It was further argued, that the Court below strongly erred in holding at page 88 of the Record that the trial Magistrate’s Court properly relied on the contradicted evidence of the issuance and service of Exhibit A to reach decision and finding therein. See ONOYOM VS. EGAR (1999) 5 NWLR (PT. 603) 416 AT 424 PARAGRAPHS B-C.
The Court is urged to so hold and resolve the issue No 2 in favour of the Appellant.
The issue No. 3 is canvassed at pages 20-24 of the brief. It is submitted in the main, that the evidence on record Shows that the contractual relationship binding the Appellant and the Respondent is one guided by written agreement, and therefore not subject to any importation.
It is further submitted that whichever way the Court looks at it, the Respondent has failed to comply with the requirements of the law vis-a-vis Exhibit C. Thus, the Court below was wrong in its conclusion at page 25 of the Record. That by a community reading of Exhibit C, one cannot safely conclude that in the absence of default in rent payment appropriate quit notice would not be issued before commencement of Court action.
The Court is urged to so hold and resolve the issue 3 in favour of the Appellant.
The issue No. 4 is argued at pages 24 -29 of the brief. Copiously alluding to pages 97-99 of the record, it is argued that the Court below regrettably cast so much aspersion on the person of the Appellant without recourse to the prevailing circumstances that played out in pursuing the appeal at the Court below.
Further copiously alluding to pages 82-83 of the record, it’s posited that the findings of the Court below tantamount to descending into the area and reopening a case already treated. See Section 167 of the Evidence Act, 2011; Section 32 of the High Court Law of Rivers State, 1999.
The provisions of Order 40 Rule 36 of the Rivers State High Court (Civil Procedure) Rules, 2010 have equally been cited and relied upon, to the effect that an appeal shall not operate as a stay of execution of the Judgment or decision appeal against, except as the Court may order. See DAN – JUMBO VS. DAN JUMBO (1999) 11 NWLR (PT. 627) 445 Paragraphs F – H.
According to the learned Counsel, the execution of the judgment does not estop the Appellant from maintaining a fresh case against the Respondent in damages for his infraction of the law.
In the circumstance, the Court is urged to resolve issue 4 in favour of the Appellant.
Conclusively, the Court is urged upon to allow the appeal and set aside the vexed Judgment of the Court below.
Contrariwise, the Respondent’s brief was filed on 12/10/2017 by Sotari F. Tamunowari Esq. It spans a total of 16 pages. The learned counsel was deemed expedient to adopt the Appellant’s four issues for determination of the appeal.
The issue No.1 has been argued in pages 3-6 of the said brief. It is submitted in the main, that two fundamental facts are lacking in support of the Appellant’s argument on issue of service. Pursuant to Order 7 Rule 6 (1) (2) of the Magistrate’s Court Rules, Rivers State (Supra), there is no evidence before the Court that the Appellant was outside the Magistrate District where he was served. In the absence of such proof, the Court is urged to hold that the Appellant was served within the Port Harcourt Magisterial District.
It is argued, that in law, none-compliance with any rule of Court or practice does not generally render proceedings void. See SAEED VS. YAKOWA (2013) 7 NWLR (PT. 1352) 124 @ 145 – 146 Paragraphs G-H.
Further argued, that assuming without conceding, that the processes were served outside the trial Magistrate Court’s District, the Sheriff’s (And Civil Process) Act does not make such provision for leave to serve processes out of the Magisterial District. Allegedly, the Magistrate Court’s Rules are ultra vires the Sheriff’s and Civil Process Act (supra).
The Court is urged to so hold and resolve the issue in favour of the Respondent.
The issue No.2 is argued at pages 6-8 of the said brief. In a nutshell, it is argued that the Appellant has not met the minimum requirement to enable the Court below in its appellate Jurisdiction to receive additional evidence from him. Because in law, it is not a matter of course to call additional evidence on appeals. See NWAOGU VS. ATUMA (2013) 10 NWLR (PT 1363) 591 @ 615 Paragraphs D-F.
Further argued, that granting the fresh evidence (the rent for 2012 – N300,000,00 Receipts) would have had the effect of changing the result of the appeal, as the Appellant would be said to have paid the rent (the cause of action), which is not the case here on appeal.
In the circumstance, the Court is urged to so hold and dismiss the appeal.
The issue 3 is argued at pages 8-10 of the brief. The argument in the main, is to effect that by the provision of Section 5 of the Recovery of Premises Law, Laws of Rivers State, once a tenancy has been determined, the notice to be given is not more seven days. However, the provision of Section 6 refers to tenancy that has not been determined, where there is no express stipulation as to the type or days of notice.
It is argued, that by 2012, the tenancy between the parties had been determined by operation of law. In that the Appellant failed or refused to renew his tenancy, as Exhibit C (Pages 18 – 12) was clearly for a definite period of 1/12/2002 to 1/12/2004.
In the circumstance, the Court is urged to so hold.
Lastly, the issue No.4 is argued at pages 10-13 of the brief, to the effect that the Appellant was indolent in defence and appealing of the matter. See pages 98-99 of the record. The Court is urged to look at the motive behind the Appellant’s pushing his appeal when the very premises in question had by his indolence been given out to another tenant. See EJOH VS. WILCOX (2003) 13 NWLR (PT. 838) 488 @ 510 Paragraph E; 509 Paragraphs C-D.
The Court is urged to so hold and dismiss the appeal on the issue.
Conclusively, the Court is urged upon to dismiss the appeal.
I have had a cause to amply consider the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-à-vis the record of appeal. The fact that each of the four issues raised by the Appellant in the brief thereof, has been distilled from and predicated upon specific grounds of appeal is no longer controversial.
Thus, just like the Respondent’s Learned counsel, I have deemed it expedient to adopt the Appellant’s four issues in question for ultimate determination thereof.
ISSUES 1 & 2
Both issues 1 and 2 are co-terminus, thus ought to be determined together.
The first issue raises the very vexed question of whether or not there is legally established credible evidence in proof, that the Appellant was indeed served with the Originating process, as required by law. The first issue is distilled from grounds 1, 7, 10 and 11 of the notice of Appeal.
The second issue on the other hand raises the very vexed question of whether or not it is legally inappropriate and out of place for the Court below to have refused the adducing of additional evidence at the appellate stage. The second issue is distilled from grounds 2, 3, 4, 5 and 6 of the notice of appeal.
Instructively, there is no law making it compulsory for a party in a civil action to appear physically in Court. All that is necessarily required, in the best interest of good administration of justice, is that the day to day judicial schedule (Cause List) of the Court is not stultified or frustrated by non-appearance of a party before it. See KEHINDE VS. OGUNBUNMI (1968) NWLR 37; ATAKE VS. AFEJUKU (1994) 9 NWLR (PT. 368) 379, NEWSPAPER CORPORATION VS. ONI (1995) 1 SCNJ 218 @ 239 – 240.
Undoubtedly, the essence of service of originating processes upon a party, a defendant or Respondent as the case may be in administration of justice, cannot be over emphasized. Indeed, the service of origination process on a party is not merely important but fundamental. Indeed, it goes very deeply to the root of the Jurisdictional competence of the Court to adjudicate upon the matter. Thus, failure to serve the adverse party with the necessary originating process invariably renders the proceedings by the Court and any orders predicated thereupon, nullities. See MARK VS. EKE (2004) 1 SCNJ 245, ODUTOLA VS. KAYODE (1994) 4 SCNJ 1; LEEDO PRESIDENTIAL MOTEL LTD VS. BON LTD (1998)10 NWLR (PT. 570) 353 @ 381; SKENCONSULT (NIG) LTD VS. UKEY (1981)1 SC 6 @ 27; SENATOR MAMMAN ALI VS SENATOR USMAN ALBISHIR (2007) LPELR – 8319 (CA).
In the instant case, it is obvious on the face of the records of appeal, that the Appellant was served with the following originating processes prior to the hearing and ultimate determination of the case by the trial Magistrates Court:
(1) EXHIBIT A – the Notice of owners intention to Recover Possession (of the property in dispute); and
(2) EXHIBIT B – the Appellant lawyer’s letter confirming the serving of the Respondents Pre- ACTION NOTICE (Exhibit A) there upon.
Most undoubtedly, parties are ad idem that both Exhibits A and B had actually been served upon the Appellant prior to instituting the present suit. Pages 8 and 9 of the Record have attested to that fact, viz:
(CW1): served notice on the defendant and this is the Notice.
(COURT): the counsel applied that the Notice be admitted as Exhibit. The 7 days’ notice of owner’s intention to recover possession, dated 9th of January, 2013 issued to David Owhor is hereby admitted and marked Exhibit A…
(CW1): when the defendant took the quit notice, the defendant’s lawyer in response to the quit notice wrote a letter to me. Yes this is the letter.
(COURT): Counsel to the Claimant applied to tender it as exhibit. The letter titled Re: 7 days’ notice to tenant of owners intention to recover possession dated 16th January 2013 is hereby admitted as Exhibit B.
I entirely agree with the Respondent’s learned counsel’s argument, that where issues have been joined between the parties, the trial Court should not inquire in to such matters and require proof thereof.
Before the trial Court (Page 5 of the Court) was a proof of service (Form C 27 Affidavit of Service) evidencing the fact that the trial Court’s bailiff, in the person of Ugochukwu Amadi – Wali, had effected Service of the Originating Process (Summons & Particulars of Claim) upon the claimant. That was on the 5th day of February, 2013.
What’s more, on 22/04/2013, when the suit came up, the Respondent’s learned counsel Frank John Ala, Esq. appeared with EZE Obodo Esq. The trial Court recorded at page 12 of the Record, inter alia, thus:
(COURT):
The matter is for defence and counsel to the claimant informed the Court that he has served the defendant:
Counsel informed the Court that since the defendant is not here he will be asking that the “defendant be foreclosed” from defending.
Accordingly, the trial Court proceeded without much ado to rule thus:
COURT:
I have listened to the appreciation of the claimant and also observed that since the inception of this case the defendant has never appeared. Similarly, that the hearing notice has equally been served on the defendant again.
Based on the above observation, the application of the counsel to the claimant is hereby granted and the defendant is hereby foreclosed from defending case is adjourned to 9th May, 2013 for address.
Based upon the foregoing findings and decision of the trial Magistrate’s Court, the Court below made far-reaching findings, to the effect that the Appellant did not participate at the trial inspite of the fact that he was served with the originating processes. The Court below equally stated:
The trial Court entered judgment for the Respondent on the oral and documentary evidence that was tendered before it. The lower Court did not have the opportunity of considering the documents now, sought to be considered as additional evidence because Appellant deliberately absent himself at the trial. I entirely agree with Respondent counsel that the Appellant should not be allowed to adduced (Sic) additional evidence by tendering any document for that will amount to re-litigating this suit from which he deliberately absented himself at the Magistrate Court. Appellant cannot wake up from his slumber to re-open a case, two years after a Court has entered a Judgment.
In my considered view, the foregoing findings of the Court (at pages 75-76 of the Record), are cogent and un-assailable, as they are duly supported by the pleadings, evidence on record and the trite fundamental principles of law in regards thereto.
Indeed, service of originating processes on the defendant or respondent is the sine qua non for the exercise of Court’s Jurisdiction in the case before the Court. Thus, failure to effect service of originating processes, or any processes at all, as required by law, would tantamount to rendering the proceedings of the Court a nullity and liable to be set aside on appeal. See ACB PLC VS. UGORJI (2001) LPELR – 5219; TOTAL E & P (NIG) LTD VS. EMMANUEL (2014) LPELR CA/PH/78/2013 per Eko, JCA (as the Learned Lord, then was) @ 15 paragraphs B-F.
Both the Court below and the trial Magistrate’s Court were absolutely correct in relying on the Affidavit of Service (Form C22 Affidavit of Service – page 12 of the Record) in coming to the conclusion, that the Appellant was actually served with the originating processes as required by the law, but chose to absent himself from the trial Court, for reason best known thereto. See WAP 1 COY LTD VS. N.T.C. LTD (1987) 2 NWLR (PT. 56) @ 306 Paragraph D; EJUETAMI VS. OLAIYA (2001) 18 NWLR (PT. 746) 572 @ 601 – 602 Paragraphs G –D; SODIMU VS. NPA (1975) ANLR 151, @ 156.
In the circumstance, it is my considered view that both the first and second issues ought to be, and they are hereby resolved against the Appellant.
ISSUE NO.3
The third issue raises the vexed question of whether or not the determination of the contractual relationship between the Appellant and the Respondent is one of facts alone, and strictly binding and enforceable. The third issue in question is distilled from grounds 8 and 9 of the notice of appeal.
In the instant case, the tenancy agreement binding upon the respective parties is governed by the provision of the extant Rivers Recovery of Premises Law, CAP 109, Laws of Rivers State.
Both Sections 5 and 6 of the Recovery of Premises Law (Supra) are very much relevant to the resolution of the third issue.
Both Sections of the law refer to type of notice that may be served upon a tenant. Most particularly, Section 6 of the law provision.
(1) where there is no express stipulation as to the notice to be given by either party to determine the tenancy, the following periods of time be given;
(a) In the case of a tenancy at will or a weekly tenancy, a weeks’ notice;
(b) In the case of monthly tenancy, a months’ notice;
(c) In the case of a quarterly tenancy, a quarterly notice;
(d) In the case of a yearly tenancy, half a year’s notice.
“But in the case of a yearly tenancy, the tenancy shall not expire before the time when any crops growing on the land the subject of the tenancy, would in the ordinary course be taken, gathered or reaped if such crops which are normally reaped within one year of planting was done by the tenant prior to the giving of the notice
(2) The nature of a tenancy shall, in the absence of any evidence to the contrary, be determined by reference to the time when the rent is paid or demanded.
It is the Appellant counsel’s argument (Paragraph 4.36 of the brief), that going by the provisions of Section 6 of the Recovery of Premises Law (Supra), the Appellant was entitled to one week notice, assuming he was a monthly tenancy.
According to the learned counsel:
“no such notice was issued and served on the Appellant as stipulated and recognized by law.”
With possible deference, that argument is misconceived, in view of the far-reaching findings under the first issue. It is obvious from the record, as aptly posited by the Respondent’s Learned Counsel, by 2012, the tenancy between he Appellant and the Respondent had already been determined by operation of law when the Appellant failed to renew the tenancy thereof. The fact that by virtue of Exhibit C (Pages 18-21of the Record) was unequivocally for a definite period of 01/12/2002 to 01/12/2004, is not at all in doubt.
In the absence of any express provisions in Exhibit C for continuation of payment of further rent by the Appellant, the Tenancy became determinable in accordance with the provision of Section 5 of the Recovery of Premises Law (Supra), viz:
5. where 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 any rent ends or has been duly determined … 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 in the manner specified in Section 6 and 7 with a written notice. As on form E signed by the landlord or his agent, to recover possession on a date not less than seven days from the date of the notice.
What’s more, by virtue of Exhibit C, clause 2 (d), the Appellant covenanted with the Respondent to apply for the renewal of the said tenancy by making further yearly rent payment, but he had failed to do so, for reasons best known thereto. Contrariwise, clause 3 (e) of Exhibit C could have been applicable only if the Appellant had complied with clause 3(d). The said clause 3 (d) & (e) (Supra) provided, thus:
“3. THE LAND LORD HEREBY AGREES WITH THE TENANTS AS FOLLOWS:-…
(d) The Landlord may on the written request of his tenant made not less than 3 (three) months before the expiration of the term, ….. by created, grant him a further term of a year at a rent to renegotiated and agreed upon at hey (Sic) time of renewal and other wise subject to the terms and conditions contained herein except the covenant for renewal.
(e) Either party may determine the agreement by giving to the other six (6) months written notice of termination.”
As postulated herein above, the Appellant having failed to renew the tenancy agreement by promptly paying the view rent in accordance with clause (d) of paragraph 3 of Exhibit, he had by implication thereof become a tenant at will, thereby rendering entitled to only 7 days’ notice to quit the property by virtue of the provision of Section 6 of the Recovery of Premises Law (Supra).
In the circumstances, the third issue ought to be, and it is hereby resolved against the Appellant.
ISSUE NO. 4
The fourth issue is distilled from grounds 12 and 13 of the notice of appeal.
At page 98 of the record, the Court below stated:
“in this case Appellant was not diligent, for over a period of two years, he did Appeal and the Respondent who is the Land lord put in another tenant in the premises. Appellant was indolent and therefore the Respondent cannot be held hostage by the laziness and tardiness of the Appellant, for the circumstances of the case changed, when the Respondent leased out the premises to a new tenant. … If the appeal is allowed, a flood gate of litigation will be re-opened endlessly.”
In my considered view, having effectively resolved the foregoing issues 1, 2 and 3 against the Appellant, there’s no gainsaying the fact that the present fourth issue has become rather spent, Otios and a sheer academic exercise.
I am in a total agreement with the foregoing findings of the Court below, to the conclusive effect that the Appellant had all along been indolent in pursuing the appeal. As aptly found under the foregoing issues, there is an ample evidence confirming that the Appellant had been duly served with the originating processes. Yet he decided to succumb to a non-challant attitudinal disposition towards the Court below. In his evidence in chief, the CW1 testified at pages 7-8 of the Record thus:
CW1: The tenancy commenced 1st January, 2002 to 31st December 2002. The defendant paid rent last in January, 2011. The rent is N300, 000.00 per annum. The defendant’s girlfriend paid me N30,000.00 in January, 2012. I have tried to get the rent but it yielded fruitless. The defendant’s girl friend is still there but the defendant is in Ulaechinda and very ill … the defendant received the notice and acknowledges receipt signing at the back.
Considering the overwhelming circumstances, I cannot agree more with the foregoing findings of the Court below, to the effect that the Appellant had not been diligent in pursuing the Appeal which was filed in the Court below two years after judgment had been entered against him by the trial Magistrate’s Court.
In the instant case in my considered view, the Appellant’s inordinate delay in filing the appeal at the Court below could not in any way be attributable to mistake, negligence or incompetence of the counsel thereof. However, even if that is so, it ought to be reiterated that the usual defence or excuse of “mistake or in advertence” of counsel must not be regarded as a magic wand, which once waived a Court of law would overlook such shortcoming. Indeed, the Courts as veritable hallowed temples of Justice, do not condone flimsy and inexcusable inordinate delay or lack of diligence on the part of litigants or the counsel thereof. As aptly reiterated by the apex Court in IROEGBU VS. OKWORDU (1990) 6 NWLR (PT. 159) 6, 4, 3:
I think it should be regarded as settled by a long line of decided cases that the Courts do not normally punish a litigant for mistakes of his counsel. But in my opinion, the Court will not regard this as a universal talisman, the waiver of which will act as a panacea in all cases, the Courts must be satisfied not only that the allegation of the … of Counsel is true and genuine but also it is availing having regard to the circumstances of the particular case.
Per Nnaemeka – Agu, JSC @ 669, See also EZECHUKWU VS ONWUKA (2005) LPELR 6115 (CA);(2006) 2 NWLR (PT. 963) 151.
In the circumstances, the fourth issue is answered in the positive, and equally resolved against the Appellant.
I have deemed it apt to reiterate that the Court below was absolutely correct in coming to the most inevitable conclusion at page 98 of the Record of Appeal, to the effect that the Appellant was indolent in filing the appeal two years after the trial magistrate’s Court delivered the vexed judgment thereof on 21/05/2013. In my considered view, the decision of the Court below was commendably in accordance with the trite doctrine of the due process of law as encapsulated by the British parliament in 1354 thus:
That no man of what estate or condition that he be, shall be put out of land or tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without being brought in answer with out due process of law.
See THE STATUTE OF 28 EDW. III; CH. 3.
Thus, by the due process of law, it presupposes that no person, of whatever station or status shall be deprived of life, property, or liberty with out resort to due process of law. As aptly postulated by Lord Denning, the Master of Rolls:
[By] due process of law, I mean the measures authourized by the law so as to keep the streams of justice pure: to see that trials and inquiries are fairly conducted; that arrests and searches are properly made; that lawful remedies are readily available; and that unnecessary delays are eliminated. It is these matters that the common law has shown its genius.
See Lord Denning, M.R: THE DUE PROCESS OF LAW OXFORD UNIVERSITY PRESS, 1980 (FIRST PRINT); 2012 (REPRINT) @ V.
Hence, having resolved all the four issues, canvassed by the Appellant against him, the appeal resultantly woefully fails and it is hereby dismissed by me.
Consequently, the Judgment of the Rivers State High Court delivered on May 23, 2017, by the Hon. Justice S. H. Aprioku J. in suit No. PHC/117/2016, is hereby affirmed.
The Respondent shall be entitled to N50,000.00 as costs against the Appellant.
Before placing the very last dot to this judgment, I have deemed it expedient to allude to the current scourge of the hydra-headed monster-Covid-19, notoriously known as CORONAVIRUS. It is trite that Covid-19 is an infectious disease caused by the severe acute respiratory syndrome coronavirus 2 (SARS – COV 2). It was first discovered in December, 2019 in Wuhan, China, thereby resulting in the current (global) pandemic.
The pandemic has led to more than a 1/3 of the world’s population being placed on lockdown to stop the spread of COVID-19. It has caused severe economic slow down, stagnation of stock markets and consumer activity Worldwide. According to Wikipedia:
The COVID-19 pandemic is the most impactful pandemic since the Spanish flu in 1918… As a result of the fast spread of the pandemic economies across the World have had to initiate ‘Lockdowns’ to curb the spread of the pandemic. This resulted in the collapse of various industries and consumerism all at once, which put major pressure on banks and employment… With new social distancing measures taken in response to the pandemic, a “Great Lockdown” occurred of the World economy.
Undoubtedly, the coronavirus (covid-19) pandemic has devastatingly changed the World in so many ways than one; the way we live, work, do business, and administer justice according to law in our law Courts.
Most particularly, in Nigeria, on May 22, 2020, the Hon. The Chief Justice, Hon. Dr. I. T. Muhammad, issued a circular (Ref. No. NJC/CIR/HOC/11/660), thereby urging upon the Heads of both Federal and State Courts of Records to be guided by the National Judicial council covid-19 policy Guide Lines For Court sitting and related matters during the covid-19 Lock-down period. Foremost of the NJC guidelines in question relate to:
E. VIRTUAL OR REMOTE COURT SITTINGS
1. Physical sittings by Courts in Courtrooms should be avoided as much as possible during this COVID-19 period. Such physical Court sittings must be limited only to time bound, extremely urgent and essential matters that may not be heard by the Court remotely or virtually. Heads of Courts have the responsibility for determining the matters that fall within these set boundaries and shall publish the list thereof for the information of judicial officers, litigants, Counsel and members of the public. Such list may be reviewed by the Head of Court from time to time as necessary and required.
2. Virtual Court sittings (alternately referred to as “remote Court sittings” or “online Court sittings”) should be encouraged and promoted by the Courts and Counsel; the Courts should insist on such remote hearings for matters that do not require taking any evidence.
All judgments, ruling and directions may be delivered and handed down by the Courts in and through remote Court sittings.
3. Save for extremely urgent and time bound matters, contentious matters that require the calling of evidence in a physical Courtroom setting should not be called up by the Courts at this time.
4. As the Courts and Counsel become proficient in virtual Court sitting arrangements, the Courts may, on a trial-run basis gradually experiment with taking witnesses and evidence virtually. This is important given the fact that no one can estimate with any degree of certainty how long the COVID-19 pall will hang over humanity or when exactly a therapeutic cure or vaccine may be found for the disease.
I would want to postulate that the travails of the World nay Nigeria in the current Covid-19 pandemic is reminiscent of the World War 2 (1939-1945). Recall the immutable doctrine of Lord Atken in the notorious of LIVERSIDGE VS. ANDERSON (1942) AC 2, wherein the legendary jurist of all time echoes:
In this country [England] amid the class of arms, the laws are not silent… They speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting that the Judges are not respecter of persons and stand between the subject and any attempted encroachment by the executive alert to see that any action is justified in law.
Per Lord Atken, @ 24.
Most cherishingly, our own legendary Lord Denning, master of Rolls, gave an insight into the circumstances surrounding Lord Atken’s immutable doctrine eloquently pronounced in LIVERSIDGE VS. ANDERSON (supra). According to Lord Denning, MR, that was indeed the time where the infamous Hilters planes were ceaseless raining bombs on the city of London and other towns in England:
(It) was the time of the flying bombs. On one occasion in the basement after lunch, two witnesses turned up to give evidence – their faces cut by splinters from the bombs. One morning I got to my room in the Courts and found the windows blasted and broken glass everywhere. At home back in cuckfield we were in the flight path of enemy bombers. They dropped their unused bombs on to us. One afternoon, we had a grandstand view of the first flying bomb shot down by a spitfire. We carried on as usual of course. As Lord Atken said in Liverside v. Anderson. (1942) AC 206 at 244]:
In this country, amid the clash of arms, the laws are not silent: they may be changed, but they speak the same language in war as in peace.
See Lord Denning: THE DUE PROCESS OF LAW, Oxford University Press, First print 1980; Reprinted 2012, @ 188-189.
ISAIAH OLUFEMI AKEJU, J.C.A.: I have read the Judgment of my Learned brothers I. M. M. Saulawa, JCA and I agree with the consideration and resolution of all the issues raised and canvassed on the appeal. I agree that the appeal has failed and it is dismissed by me. I abide by the consequential orders.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the Judgment just read by my learned brother I.M.M. Saulawa, JCA and I am in complete agreement with the reasoning and conclusions reached therein. I too dismiss the appeal and affirm the decision of the trial Court. I also abide by all other consequential orders as contained in the lead judgment including order as to costs.
Appearances:
O. Nwodoh, Esq. For Appellant(s)
Sotari F. Tamunowari, Esq., with him, Frank Ala, Esq. For Respondent(s)
