The defendant did not defend this suit. She neither entered appearance nor file any pleadings.

Transcription

1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT COURT NO.36 ABUJA BEFORE HIS LORDSHIP: HON JUSTICE A.S ADEPOJU ON THE 19 TH DAY OF JULY, 2013 SUIT NO: FCT/HC/CV/1533/13 BETWEEN: CHINEDU NWOSU PLAINTIFF (TRADING UNDER THE NAME AND STYLE OF CHINEDU NWOSU & CO) AND MISS DOBLEME ETTAH DEFENDANT HON. T. O. S. NWOKOLO. For the plaintiff Defendant not in Court and not represented. JUDGEMENT The Plaintiff in his statement of claim and writ of summons is claiming possession of a one room self contained at Plot 698 Gwarimpa C2 Life camp Abuja, and mesne profit at the rate of =N=33, (Thirty Three Thousand Three Hundred and Thirty Three Naira, Thirty Three Kobo) monthly from the 1 st of June 2012 until judgement is given. Two witnesses testified on behalf of the plaintiff. The first witness Miss Igwilo Ogechi is the manager of the plaintiff s firm. She testified that the defendant is a yearly tenant at a rent of =N=400, (Four Hundred Thousand) per annum. The defendant last paid her rent for the duration of June st May She is in arrears of rent and has not handed over possession of the premises. The PW2, Mr. Destiny Uwafure, adopted his witness statement on oath. His testimony is that he served the 7days Notice to quit and owners intention to recover possession on the defendant by pasting on the front door of the door of the flat occupied by the defendant, on the 12/10/12 and 8/11/12 respectively. The Notices and the affidavit of service were admitted as Exhibits A1, A2 and A3 respectively.

2 Both witnesses were not cross examined by the defendant due to her absence. It is on record that the defendant was served with all the Court processes in this suit by pasting in compliance with the Order for substituted service dated 22 nd February The defendant did not defend this suit. She neither entered appearance nor file any pleadings. At the close of the plaintiff case, the counsel filed a final written address wherein he formulated only one issue for determination to wit: whether the defendant has been served with the requisite notices under, Section 7 of Recovery of Premises Act, to enable the plaintiff take possession of the one room self contained. The learned counsel to the plaintiff referred to the notices served on the defendant by the plaintiff and submitted that the plaintiff having complied with the provision of Section 7 of the Recovery of Premises Act, urged the Court to hold that the plaintiff is entitled judgement. He relied on the case of CHIEF FINNI MOTAYO VS.NIGERIA FIBRE INDUSTRIES COY LTD (1974) 4 ESCLR 570, Abeokuta High Court May 3, Counsel further submitted that the defendant has transformed to a tenancy at will by not renewing her rent at the expiration thereof on 31 st May He relied on CHEIF J. A. ODUTOLA & 1 OR VS. PAPERSACK NIG LTD (2006) 18 NWLR (Pt 1012) Pg Para. H C, He said by the effect of Section 8(1) (a) of the Recovery of Premises Act CAP 544 LFN 2004, a tenancy at will is only entitled to 7days Notice of owners intention to apply to Cour t to recover possession. On the default of appearance of the defendant, counsel relied on the provision of Order 13, Rule 5 of the High Court Civil Procedure Rules, he urged the Court to hold that by virtue of the rule, the plaintiff is entitled to judgement. Furthermore counsel stated that when a plaintiff leads evidence and the defendant does not, the onus of proof on the plaintiff to establish the facts pleaded would be

3 discharged on a minimum proof. The defendant counsel said is deemed to have accepted the pleadings and evidence of the plaintiff Lock, Stock and Barred. On the effect of failure of defendant to file a defence, Hon. T. O. S. Nwokolo stated that defendant is taken to have admitted the facts pleaded by the plaintiff. Evidence of the plaintiff s witness was not controverted in any form by the defendant. He urged the Court to grant the plaintiff s claim. I have considered the claims of the plaintiff, the evidence in support both documentary and oral and also the arguments of the learned plaintiff counsel as contained in his written address. The plaintiff is seeking for possession and mesne profit from the defendant. It is a trite principle of law that both claims for possession and mesne profit are inter-related, the failure of claim for possession automatically extinguish claim for mesne profit. A Plaintiff can only wrestle possession from a defendant upon a proper determination of his tenancy either by a Notice to quit or other forms of determination as may be agreed or implied from the conduct or agreements between the parties. By virtue of the provision of Section 7 of the Recovery of Premises Act LFN 1990, service of a notice to quit is just one of the ways by which a tenancy can be brought to an end. Section 7 of the Recovery of Premises Act reads 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 any rent ends or is duly determined by a written notice to quit as in Form B, and C whichever is applicable to the case or is otherwise duly determined (Emphasis mine) other The import of this phrase is that tenancy can be brought to an end by other means, such as the tenancy coming to an end by effluxion of time, by surrender, Merger, forfeiture or even death. Applying the above principle to the case at hand, it is the evidence of the PW1 that the defendant last paid her rent for the term duration of 1 st June st May The defendant at the expiration of her tenancy became a tenant at will to her Landlord. By the latter part of the provision of Section 7 of the Recovery of

4 Premises Act, the defendant is only entitled to the service of 7days Notice of owners intention to recover possession. The Supreme Court in the case of ODUTOLA VS. PAPERSACK NIG LTD (Supra) per S.U. ONU JSC stated I am of the firm view that from the moment a year s rent becomes due, and payable by the respondent but remained unpaid, the yearly tenancy if any created by the conduct of the parties thereto come to an end by effluxion of time and the respondent thereupon become a tenant at will to the 1 st appellant by continuing or remaining in possession of the property. I noticed that the defendant was served with 7days quit notice and 7days notice of owners intention to recover possession. Exhibits A2 & A3 respectively. The learned counsel in his written address relied on the provision of Section 8(1) (a) and submitted that the defendant is entitled to seven days notice of owners intention to recover possession. The provision of Section 8(1) (a) relied upon by the plaintiff s counsel did not do away with the service of 7days quit notice on a tenant at will. It is applicable where there is no express agreement as to notice to be served on a tenant. It is unlike the provision of Section 7 of the RPA where the tenancy at will created therein is contractual in nature, and determinable by 7days notice of owners intention to recover possession, the moment the term created by the parties effluxes with time. There s nothing on record to show that there was an agreement or any stipulation as to the notice to be given by either party to determine the tenancy in this case. I am therefore of the opinion that the provision of Section 8 (1) of the RPA Cap. 544 LFN 1990 is more applicable to the issue at hand. The defendant like I earlier stated was served with Exhibits A2 &A3 respectively. The notices are valid and I so hold. The defendant was served with the originating processes in this matter, and further hearing notices, by pasting sequel to an Order of the Court. Evidence abound in the Court s record of proof of service as ordered. She did not file any memorandum of appearance or pleadings.

5 Where a defendant is served with hearing notices and fails to put up any appearance, he is deemed not to have any defence to the plaintiff s case. The Court is therefore bound to accept the evidence of the plaintiff as uncontroverted and unchallenged. I therefore agree with the submission of learned plaintiff s counsel that the plaintiff is entitled to judgement based on the unchallenged pleadings and evidence led in support therefore. I hold that the plaintiff s claim succeeds and Judgement is hereby entered in the following terms: (a) The defendant is to give up vacant possession of the one room self contained at Plot 698 Gwarimpa on or before the 31 st day of August (b) She is also to pay mesne profit at the rate of =N=33, monthly from the 1 st of June 2012 till judgement is given. SIGNED HON JUDGE 19/7/2013