SUIT NO: FCT/HC/CV/1811/09. CARDIFF PROPERTIES LIMITED : : : (Suing as the Lawful Attorney of : : : Dr. Lawrence Ojemeni (MFR) : : :

Transcription

1 IN THE HIGH COURT OF JUSTICE OF THE F.C.T. IN THE ABUJA JUDICIAL DIVISION HOLDEN AT APO ON WEDNESDAY, THE 9 TH DAY OF FEBRUARY, 2011 BEFORE THE HONOURABLE MR. JUSTICE U. A. INYANG J U D G E SUIT NO: FCT/HC/CV/1811/09. B E T W E E N:- CARDIFF PROPERTIES LIMITED : : : (Suing as the Lawful Attorney of : : : Dr. Lawrence Ojemeni (MFR) : : : PLAINTIFF A N D PETROLEUM FINANCIAL CORPORATE LTD. : } DEFENDANT JUDGMENT The Suit, giving rise to the Judgment now delivered by this Court, was commenced in this Court by a Writ of Summons dated the15 th day of July, 2009, and filed by Counsel for the Plaintiff, Hardy Chude Akus Esq., of Akus & Co. (Nobles Chambers), Suites 45/46 Dansville Plaza; Plot 859, Gudu District, Besides AP Filling Station, Abuja. In his Writ of Summons, Counsel for the Plaintiff stated that the Plaintiff was the Lawful Attorney in respect of a 6-Bedroom Detached House with two Rooms Servant Quarters situate at No. 64B Lake Chad

2 2 Crescent, Maitama, Abuja. While the Defendant was a yearly Tenant, paying N4,000, (Four Million Naira) only as rent per annum, which tenancy had expired since 30 th June, 2009 and the Defendant has refused to deliver up possession of the demised property inspite of repeated notices given to and or demands for the Defendant to yield up possession of the said property to the Plaintiff. The Plaintiff whereof claims from the Defendant as follows:- (1) An Order for possession of the 6-Bedroom detached House with two Rooms Servant Quarters known and described as No. 64B Lake Chad Crescent, Maitama, Abuja. (2) Mense Profit at the rate of N333, (Three Hundred and Thirty-Three Thousand Naira only) per month from the date of expiration of rent till possession is given up to the Plaintiff. (3) An Order of Court directing the Defendant to put the said No 64B Lake Chad Crescent, Maitama, Abuja in good and tenantable condition and to pay all outstanding utility bills. (4) And the sum of N400, (Four Hundred Thousand Naira only), being the cost of the Suit. Attached to the Writ of Summons is a 13-Paragraph Statement of Claim embodying the four claims itemized above; a 12-Paragraph Witness Statement on Oath of Miss Blessing Alozie dated 15 th July, 2009; a 4-Page Power of Attorney dated 10 th January, 2006 donated by Dr. Lawrence Ojemeni to Cardiff Properties Limited; a 6-Page Tenancy Agreement dated 1 st July, 2006 and witnessed on the 7 th and 11 th July, 2006 but filed in Court on 15 th July, 2009; Notice to Quit dated 1 st January, 2009 from Dandi Akurunwa & Co. to the Managing Director, Petroleum Financial Corporate Limited, Plot 1163, Oshumenyi Close, Maitama, Abuja; Domestic Airway Bill dated 19 th January, 2009; Notice to Quit Reminder dated 27 th May, 2009 from AKUS & Co. (Nobles

3 3 Chambers) to the Managing Director, Petroleum Financial Corporate Limited, Plot 1163 Oshumenyi Close, Off Lake Chad Crescent, Maitama, Abuja; EMS Speed Post Receipt dated 27 th May, 2009; Notice to Tenant of Owner s Intention to Apply to Recover Possession dated 1 st July, 2009; F.C.T. High Court Certificate of Service dated 2 nd July, 2009; Client s Billing Account dated 10 th July, 2009 from AKUS & Co; to Cardiff Properties Ltd., Suite D8 Bobsar Complex, Plot 1035 Michika Street, Ahmadu Bello Way, Garki II, Abuja and a Pre-Action Counseling Certificate dated 10 th July, 2009 and signed by Hardy Clude Akus Esq., Counsel for the Plaintiff. In his reaction to the Plaintiff s Writ of Summons and other Originating processes, Counsel for the Defendant, Solomon Tunyan Esq., filed a Memorandum of Appearance dated 23 rd July, 2009; an 8- Paragraph Statement of Defence dated 23 rd July, 2009; a Certificate of Pre-Action Counseling as well as an 8-Paragraph Defendant s Witness Statement on Oath deposed to by Alhaji Abdullahi Alfa dated 27 th July, The Defence Witness was however not called to testify at the close of the Plaintiff s case on 20 th April, Said Defence Counsel Solomon Tunyan, after P.W. 1 was recalled for cross-examination by him, at the conclusion of his cross-examination on 20 th April, 2010 when the Court was about to adjourn the case for the Defendant and its Counsel to open their defence: Counsel for the Defendant informs the Court that he will not be calling any Witness With the Counsel for the Parties duly completing the filing and exchange of their pleadings, the trial Court then called on the Counsel for the Plaintiff to open his case by inviting the first Witness for the Plaintiff to the Witness Box to commence his evidence-in-chief.

4 4 The first Plaintiff Witness, who gave her names as Miss Blessing Alozie, resided at No. 19 Baba Agba Abdulkarim Street, Federal Ministry of Works & Housing Estate, Gwarimpa Estate, Phase 1, Abuja. Miss Alozie, an Estate Surveyor by Profession, told the Court that she was a Staff of the Plaintiff Company situate at Suite D8, Bobsar Complex, Michika Street, Off Ahmadu Bello Way, Garki II, Abuja, F.C.T. and the Head of the Management Department of the Plaintiff Company. P.W. 1 also informed the Court that she knew the Defendant in this case as Petroleum Financial Corporate Limited, and as one of the Plaintiff s Clients, Dr. Lawrence Ojemeni, adding that the Plaintiff was the Estate Manager of Dr. Ojemeni s Property situate at No. 64B Lake Chad Crescent, Maitama, Abuja. She told the Court that she (P.W.1) recalled that on the 15 th day of July, 2009 she did file her Witness Statement on Oath before this Court in respect of this case, explaining that if she saw a copy of it, she could identify it through her name, signature, etc. The P.W.1 clearly identified her Witness Statement on Oath dated 15 th July, 2009 and urged the Court to accept it as her evidence in this matter. Counsel for the Plaintiff then applied for the Court to adopt the Witness Statement on Oath of P.W. I as her evidence-in-chief in this Suit. The application was granted and the Witness Statement on Oath of P.W.1 was adopted by the Court before the case was adjourned to 29 th October, 2009 for continuation of hearing. The details of the Witness Statement on Oath of Witness Alozie are hereby summarized by the trial Judge. The first Plaintiff Witness, Miss Blessing Alozie, of Suite D8 Bobsar Complex, Ahmadu Bello Way, Garki II, Abuja and a Staff of Cardiff Properties Limited, in her Witness Statement on Oath dated 15 th July, 2009, told the Court that, the Plaintiff, Dr. Lawrence Ojemeni (MFR), was the Lawful Attorney or the beneficial and the rightful owner of the 6-Bedroom Detached House with two 2-

5 5 Room Servant Quarters situate at No. 64B Lake Chad Crescent, Maitama, Abuja. The Power of Attorney between Dr. Lawrence Ojemeni and Cardiff Properties Limited shall be relied upon at the trial of this Case. The Witness further stated that the Defendant as a tenant to Dr. Lawrence Ojemeni was presently occupying and or residing at No. 64B Lake Chad Crescent, Maitama, Abuja. Witness Alozie informed the Court that the Defendant took possession of the 6-Bedroom Detached House with 2-Room Servant Quarters situate at No. 64B Lake Chad Crescent, Maitama, Abuja on the 1 st day of July, 2006 for a term of three years, adding that the Tenancy Agreement of 1 st July, 2006 to 30 th June, 2009 between Dr. Lawrence Ojemeni and the Defendant was pleaded in the Statement of Claim of the Plaintiff and shall be relied upon at trial. She said that the Defendant s tenancy in respect of the demised premises expired by effluxion of time on the 30 th day of June, 2009 and that the Plaintiff, as the Lawful Attorney in respect of the demised property, prior to the expiration of the Defendant s tenancy, duly caused the requisite Notice to Quit dated 1 st January, 2009 from the Law Office of Dandi Akurunwa & Co., to be issued to the Defendant. The Witness also explained that one month before the expiration of the Defendant s tenancy, the Plaintiff caused a Reminder Notice dated 27 th May, 2009 through the Law Office of Akus & Co., to be sent to the Defendant and which Reminder Notice was equally copied to the Landlord and the Plaintiff, adding that the said Reminder Notice as well as the Courier Slip/Bill were pleaded by the Plaintiff in is Statement of Claim. That upon the expiration of the Defendant s tenancy on 30 th June, 2009, Witness Alozie stated that the Defendant had up till date, refused, failed and or neglected to yield up possession of the rented premises to the Plaintiff despite all prior Notices Served on it and was aware that

6 6 currently, the Landlord now desired to make personal use of the demised property occupied by the Defendant. The Witness emphasized that because of the Defendant s attitude of unduly holding over possession of the demised premises and there depriving the Landlord the use of it inspite the Defendant s tenancy having come to an end as well as prior service of Notice to Quit and other Notices on the Defendant, the Plaintiff caused to be served on the Defendant, the mandatory seven (7) days Notice of Owners Intention to Apply to Court to Recover Possession of the rented property. He told the Court that she was aware that a Court Official duly served the said seven days Notice on the Defendant and equally deposed to an Affidavit of having effected the said service on the Defendant, stressing that the said seven days Notice and the Affidavit of service both dated 1 st July, 2009 and 2 nd July, 2009 respectively, shall be founded upon at trial. Also, that despite the said Notices, the Defendant had refused, failed and or neglected to yield up possession of the said premises to the Plaintiff. Finally, Witness Alozie deposed to the fact that the Plaintiff retained the services of the Law Firm of Akus & Co., for the purpose of recovering possession of the demised premises from the Defendant and incurred the sum of N400, (Four Hundred Thousand Naira only) as Solicitors fees, adding that the Receipt of Payment dated 10 th July, 2009 was hereby pleaded. In view of the above facts, P.W. 1 stated that the Plaintiff claimed against the Defendant the following reliefs:- 1. An Order for possession of the 6-Bedroom Detached House with two Rooms Servant Quarters known and described as No. 64B, Lake Chad Crescent, Maitama, Abuja. 2. Mense Profit at the rate of N333, (Three Hundred and Thirty three Thousand Naira only) per month from the date of

7 7 expiration of rent ( the tenancy) till possession is given up to the Plaintiff. 3. An Order of Court directing the Defendant to put the said No. 64B Lake Chad Crescent, Maitama, Abuja in good and tenantable condition and to pay all outstanding utility bills. 4. And the sum of N400, (Four Hundred Thousand Naira only) being the cost of this Suit. The Witness concluded her Witness Deposition on Oath by informing the Court that she made the above Statement believing its contents to be true and correct and in compliance with the provisions of the Oaths Act, Cap. 01 Laws of the Federation of Nigeria, 2004 and Order 4 Rule 15(c) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, On the resumed hearing of the case on that date, Counsel Muoemeka and Tunyan appeared for the Plaintiff and Defendant respectively. P.W.I, who was still on Oath, continued with her testimony, explaining that she could recall that on 7 th October, 2009 she did apply for the Court to adopt her Witness Statement on Oath, which was so adopted by the Court on that day, stressing that in Paragraph 1 of her Witness Statement on Oath, she deposed to the fact of the donation of a Power of Attorney by Dr. Lawrence Ojemeni (MFR) to the Plaintiff as his Lawful Attorney. P.W. 1 told the Court that she could recognize the said Power of Attorney if she saw it through the Parties on it, including the names and signatures of the Donor and Donee of the said Power of Attorney, etc. P.W. I actually identified the original copy of the Power of Attorney and for that reason, Counsel for the Plaintiff applied to tender the Power of Attorney in evidence under Sections 93 and 94(1) of the Evidence Act, Cap. E14 Laws of the Federation of Nigeria, 2004 and as pleaded in

8 8 Paragraph I of the Plaintiff s Statement of Claim and referred to in Paragraph 1 of the Witness Statement on Oath of P.W. 1. Counsel for the Defendant did not object to the admissibility in evidence by the Court of the Power of Attorney dated 10/1/2006 and donated by Dr. Lawrence Ojemeni to the Plaintiff, Cardiff Properties Limited, The Power of Attorney was admitted in evidence and marked as Exhibit 1 by the trial Court. Witness Alozie further testified that it was true that she did depose to in Paragraph 3 of her Witness Statement on Oath the fact of a Tenancy Agreement being entered into by Dr. Ojemeni and the Defendant, adding that if she saw a copy of the Tenancy Agreement in question, she could recognize it through its caption, the names of Dr. Ojemeni, the Defendant and signatures of the Parties and their representatives. P.W. 1 clearly identified the Tenancy Agreement as the original copy before Counsel for the Plaintiff applied to tender the Tenancy Agreement entered into by the Defendant and Dr. Lawrence Ojemeni and dated 1 st July, 2006 in evidence under Sections 93, 94(1) and 96 of the Evidence Act, Cap. E14 Laws of the Federation of Nigeria, 2004 and as pleaded in Paragraph 5 of the Statement of Claim and deposed to in Paragraph 3 of the P.W. I s Statement on Oath. The Tenancy Agreement was admitted in evidence and marked as Exhibit 2 by the trial Judge without objection by the Defence Counsel. P.W. I further stated that it was true that in Paragraph 5 of her Witness Statement on Oath, she did depose to the fact of having served the Defendant through the Law Firm of Dandi Akurunwa & Co. a Notice to Quit the demised property managed by the Plaintiff, explaining that if she saw a copy of the said Quit Notice, she would recognize it through Red Star Express Courier Service Receipt issued for the Service. Witness Alozi added that the Red Star Express Courier Service Domestic Way

9 9 Bill Receipt No dated 19/1/2009 was original copy, while the Quit Notice dated 1/1/2009 from Counsel for the Plaintiff was a photocopy. Counsel for the Plaintiff thereafter applied to tender the Notice to Quit dated 1/1/2009 in evidence under Section 97(1)(a)(i) and (ii) of the Evidence Act, Cap. E14, L.F.N., 2004 and as pleaded in Paragraph 7 of the Statement of Claim and deposed to in Paragraph 5 of P.W.I s Witness Statement on Oath. While the Domestic Way Bill Receipt from the Red Star Express Courier Company dated 19/1/2009 was tendered in evidence under Sections 93 and 94(1) of the Evidence Act, Cap. E14 Laws of the Federation of Nigeria, 2004 and as pleaded in Paragraph 7 of the Statement of Claim and as deposed to in Paragraph 5 of P.W. I s Witness Statement on Oath. Counsel for the Defendant objected to the admissibility of the two documents in evidence on the ground that the Notice to Quit was a photocopy and the Receipt from the Red Star Express Courier Company was not acknowledged by the Defendant. In opposing the objection of the Defence Counsel, Counsel for the Plaintiff told the Court that the rule of admissibility of documents was relevancy of the documents to the case of the Party seeking to tender the document in evidence and referred the Court to Section 6 of the Evidence Act, Cap. E14 Laws of the Federation of Nigeria, Counsel for the Plaintiff also referred the Court to Section 97(1)(a)(i) of Cap. E14 L.F.N to urge the Court to over-rule the objection of Counsel for the Defendant. The Court over-ruled the objection of the Defence Counsel, adding that the P.W. I s reference to Fedex Courier Company had been explained away by her as being the Parent Company of Red Star Express Courier Company through which the Notice to Quit was sent to the Defendant. Besides, if the P.W. I talked about Fedex Courier Service instead of Red Star Express Courier Company, this was a misnomer that

10 10 could be cured by the Court using its discretionary power to correct the discrepancy in the names of the Courier Companies. The Court added that Counsel for the Plaintiff had pleaded the two documents in the statement of claim and tendered them in evidence under the relevant provisions of the Evidence Act, namely: Sections 93 and 94 of Cap. E14 L.F.N for the Red Star Express Courier Company s Receipt of 19/1/2009; while Section 97(i)(a)(i) of the Evidence Act, Cap. E14 Laws of the Federation of Nigeria, 2004 was relied upon in tendering the Quit Notice of 1/1/2009. On the whole, it was the view of this Court and that there was no merit in the objection of the Defence Counsel and was accordingly overruled by the Court. The Notice to Quit dated 1/1/2009 addressed to the Managing Director of the Defendant Company by the Law Firm of the Dandi Akurunwa & Co., Garki II, Abuja was admitted in evidence and marked as Exhibit 3; while the Red Star Express Courier Company Receipt No dated 19/1/2009 was admitted in evidence and marked as Exhibit 4 before the case was adjourned to the 1 st day of December, 2009 for continuation of hearing. The Court did not sit on 1 st December, 2009 but sat on 25 th January, 2010 where Counsel Muoemeka and Tunyan appeared for the Plaintiff (which was represented by P.W. 1) and Defendant respectively. P.W. I, who was still on Oath, then continued with her evidence in-chief. She told the Court that it was true that on 7 th October, 2009 she did urge this Court to adopt her Witness Statement on Oath and which the Court did before she proceeded to give further oral evidence leading to the tendering of the Exhibits 1 to 4 on that day in this Court. On the reliefs sought from the Court by the Plaintiff, P.W. I said she wanted the Court to grant all the reliefs contained in the Plaintiff s Statement of Claim dated and filed in this Court on 15 th July, That

11 11 was all the evidence of the P.W. I as far as her evidence-in-chief was concerned. The case was there and then adjourned to 16/2/2010 for P.W. I to be cross-examined by the Defence Counsel. On the resumed sitting of the Court on 16 th February, 2010, Counsel Muoemeka appeared for the Plaintiff, which was represented by P.W. 1, while the Defendant and its Counsel were not in Court and no reasons were communicated to the Court why they were absent in Court on that day. The trial Judge explained that the Defence Counsel jointly took that date with Counsel for the Plaintiff on 25 th January, In view of the unexplained absence from Court by the Defendant and its Counsel, the Court observed that Counsel for the Plaintiff was not happy that a big Law Firm of Karina Tunyan (SAN) & Co. could not afford to send a Counsel to the Court in the absence of Defence Counsel Solomon Tunyan. It stressed that what was more worrisome to the Counsel for the Plaintiff was that Counsel Emmanuel Onuoha Ete was in Court that same day from that Chambers and was duly informed about the need for him to stay behind and handle this case but he bluntly refused to do so. Counsel for the Plaintiff therefore applied that P.W. I be discharged from the Witness Box and the Defendant foreclosed from cross-examining her thereafter in Court. The application to discharge P.W. I from the Witness Box was granted and P.W. I was discharged from the Witness Box by the Court. Counsel for the Plaintiff then closed his case for the Defendant and its Counsel to enter their defence in the case on the next adjourned date, failing which they would be shut out of defence in this case. The case was thereafter adjourned to the 2 nd day of March, When the Court reconvened on the next adjourned date of 2 nd March, 2010, the Plaintiff and its Counsel were inexplicably absent from Court; while Counsel Tunyan appeared for the Defendant, which was not

12 12 Court. The Defence Counsel did not take kindly to the conduct of Counsel for the Plaintiff applying to the Court on the last hearing date of 16/2/2010 to discharge P.W. I from the Witness Box because he was in touch with the Plaintiff Counsel before that date to intimate him about his (Defence Counsel s) inability to be in Court on 16/2/2010. In view of that explanation, the Defence Counsel asked for an adjournment to enable him file a Motion on Notice to recall P.W. I for cross-examination by him and the case was there and then adjourned to the 24 th day of March, 2010 for continuation of hearing. The Court did not sit on 24 th March, 2010 but sat on 20 th April, 2010 where Counsel Muoemeka appeared for the Plaintiff, which was represented by P.W. 1; while Counsel Tunyan appeared for the Defendant, which was not in Court. Counsel for the Defendant/Applicant then moved his Motion on Notice dated 3/3/2010 and brought pursuant to Order 7 Rule I; Order 46 Rule 1 of the Rules of this Court, 2004 as well as the inherent powers of this Court as provided for in Section 6(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria as amended. The Motion on Notice prayed the Court for one specific and one ancillary reliefs as contained in the Motion Papers with a 6-Paragraph supporting Affidavit deposed to by Isaac Mazo, a Clerk in the Chambers of Karina Tunyan (SAN) & Co., Solicitors to the Defendant/Applicant, as well as a 2-Page Witness Address filed pursuant to Order 7 Rule 23 of the Rules of this Court, Counsel relied on all the Paragraphs of the supporting Affidavit and his Written Address to move his Motion, praying the Court to grant his lone and specific relief contained therein. Counsel for the Plaintiff/Respondent did not oppose the application. Accordingly, the lone and specific relief of an Order of this Court granting leave to the Defendant/Applicant to recall P.W. I for the purpose

13 13 of being cross-examined by the Defence Counsel, was granted as urged upon the Court by Counsel for the Defendant/Applicant. When P.W. I, who was still on Oath, was recalled to the Witness Box for cross-examination by the Defence Counsel, she told the Court that even though she had already given evidence in this case, she had been a Staff of the Plaintiff Company close to eight years. She said that Exhibit 1, which was the Power of Attorney donated to the Plaintiff by the Landlord/Donor, Dr. Lawrence Ojemeni (MFR), gave the Plaintiff the authority to institute this action against the Defendant, adding that it was the only document that empowered the Plaintiff to sue the Defendant on behalf of the Donor of Exhibit 1. P.W. I was shown Exhibit I, which she correctly identified as the authority for instituting this action by the Plaintiff against the Defendant. Exhibit 1 was stamped and sealed with the Red Seal, while Exhibit 2 was the Tenancy Agreement entered into by the Parties in this case. So too was Exhibit 3, the Quit Notice, with P.W. 1 adding that all those documents or Exhibits were in evidence before the Court. Exhibit 3 gave the Defendant six months Notice to terminate his tenancy with the Plaintiff on 30/6/2009, which was served on the Defendant on 1/1/2009. P.W. I was asked to look at Article 16(4) of Exhibit 2, the Tenancy Agreement, which she (P.W.I) read to the Court thus: To return the building to its original state at commencement of the tenancy before vacating the property. A one-month period (is) allowable. This includes painting, fixtures and fittings, etc. P.W. 1 said the one month period allowed or given to the Defendant to put the demised property in a tenantable condition was to last till the end of July 2009, stressing that the one month period of grace was to allow the Defendant put the demised property in its tenantable condition

14 14 before yielding up possession of the property to the Plaintiff and that during that one month s period of grace, the Defendant was still in lawful occupation of the demised property. P.W. I was asked to look at Article 17 of Exhibit 2 which reads: Article 17 (DELIVERY OF NOTICES): Except as otherwise stipulated in this Agreement, all notices and other issues connected with this Agreement shall be sent by fax, cable or by notice in hand written-delivered, or by registered airmail, postage prepaid, return receipt requested. All such notices shall be effective upon receipt. The notices shall be addressed, unless otherwise advised in writing to: The Agent: Messrs Cardiff Properties Limited of Suite D8, Bobsar Complex, Ahmadu Bello Way, Garki II, Abuja and the Tenant at No. 2A Lake Chad Crescent, Maitama, Abuja. The Witness testified that the Quit Notice was sent to Plot 1163 Oshumeyi Close, Maitama, Abuja as the Corporate Office of the Defendant as contained in Exhibit 2, explaining that if the Defendant engaged a Counsel for the Plaintiff, it would be improper to do so. On re-examination, P.W. I told the Court that if the Plaintiff was writing to the Defendant, it was the Defendant s Address that must be used in writing to it. And that was all for P.W. 1 in terms of examinationin-chief, cross-examination and re-examination. The Plaintiff then formally closed its case at that stage. When the case was about to be adjourned for the Defendant to open its defence, Counsel for the Defendant informed the Court that he would not be calling any Witness and that was also the case for the Defendant.

15 15 The Court gave Counsel for the Plaintiff 21 days with effect from that day (i.e. 20 th April, 2010) to file and serve his Final Written Address pursuant to Order 36 Rule I of the Rules of this Court, 2004; while the Defence Counsel was given 21 days to file and exchange his Final Written Address with effect from the date he was served with the Plaintiff s Written Address pursuant to Order 36 Rule I of the Rules of this Court, 2004 and seven days were given for the Counsel to the Plaintiff to file and serve his Reply Address on being served with the Defendant s Final Written Address pursuant to Order 36 Rule 4 of the Rules of this Court, The case was then adjourned to the 15 th day of June, 2010 for the adoption of the Final Written Addresses of Counsel for the Parties for Judgment by the trial Court. The Court sat on that date where Counsel Muoemeka appeared for the Plaintiff, which was not in Court, while Counsel S. E. Ijeh (Mrs.) appeared for the Defendant, holding the brief of Counsel Solomon Tunyan. The business of the Court that day was to adopt the final Written Addresses of Counsel for the Parties for its Judgment. But this was not to be as Counsel for the Plaintiff did not file his Final Written Address. He however filed an Application seeking for an extension of time within which Counsel for the Plaintiff might file his Final Written Address out of time as well as an Order deeming the Final Written Address of the Plaintiff as duly filed and served. The Court thereafter directed Counsel for the Plaintiff/Applicant to move his Motion on Notice dated and filed in Court on 28 th May, 2010 and which was brought pursuant to Order 20 Rule 3(1) of the Rules of this Court, 2004 was well as under the inherent jurisdiction of this Court as preserved in Section 6(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria as amended. The Motion prayed the Court for two specific and one ancillary reliefs as contained in the Motion Papers and

16 16 supported by a 6 Paragraph Affidavit sworn to by Mary Ayuba, a Litigation Secretary in the Law Firm of AKUS & Co. (Nobles Chambers), Counsel for the Plaintiff/Applicant, to which was annexed Exhibit A, that was the Final Written Address of Counsel for the Plaintiff/Applicant, and a 2-Page Written Address filed pursuant to Order 7 Rule 23 of the Rules of this Court, Counsel Muoemeka relied on all the Paragraphs of his supporting Affidavit, Exhibit A and the Written Address in support of his Motion to move his application, praying the Court to grant his Application in terms of the reliefs contained in his Motion Papers. Counsel for the Defendant/Respondent did not oppose the Application. The Court granted the Application and the two specific reliefs of an Order of this Court extending the time within which the Plaintiff/Applicant might file and serve his Final Written Address in this Suit out of time as well as an Order of this Court deeming the Final Written Address as duly filed and served, were granted by the Court as prayed by Counsel for the Plaintiff/Applicant. Counsel for the Defendant was given 14 days with effect from that day to file and serve his Final Written Address pursuant to Order 36 Rule I of the Rules of this Court, While Counsel for the Plaintiff was given 7 days with effect from the date he was served with the Final Written Address of the Defendant to file his Reply Address, if any, under Order 36 Rule 4 of the Rules of this Court, The case was at that stage adjourned to the 7 th day of July, 2010 where the Court did not sit but sat on 16 th July, 2010 where Counsel Muoemeka and Counsel Ineighan Legbe appeared for the Plaintiff and Defendant respectively. Counsel for the Plaintiff/Applicant then moved his Motion on Notice dated and filed in Court on the 6 th day of July, The said Motion was brought pursuant to Order 20 Rule 3(1) of the Rules of this Court, 2004 as well as under the inherent jurisdiction of this Court as preserved under

17 17 Section 6(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria. The Motion prayed the Court for two specific and one ancillary reliefs as contained in the Motion Papers of the Plaintiff/Applicant. The Motion was supported by a 6-Paragraph Affidavit deposed to by Grace Nwadire, Counsel in the Law Firm of AKUS & CO. (Nobles Chambers), Solicitors to the Plaintiff/Applicant, to which was annexed Exhibit A, that is the Reply Address to the Defendant s Final Written Address, as well as a 2-Page Written Address. In moving his Application, Counsel for the Plaintiff/Applicant relied on all the Paragraphs of the supporting Affidavit, Exhibit A as well as his Written Address filed pursuant to Order 7 Rule 23 of the Rules of this Court, He therefore prayed the Court to grant the two specific reliefs contained in his Motion Papers. Counsel for the Defendant/Respondent did not oppose the Motion. The Court granted the two specific reliefs of an Order of this Court extending the time within which the Plaintiff/Applicant might file and serve its Reply Address to the Defendant s Final Written Address in this Suit out of time as well as an additional Order of this Court deeming the said Reply Address to the Defendant s Final Written Address as duly filed and served, the appropriate filing fees having been paid, were granted by the Court as prayed by Counsel for the Plaintiff/Applicant. Counsel for the Plaintiff also applied for the adoption of the Plaintiff s Final Written Address and the Reply Address to the Defendant s Final Written Address dated 28/5/2010 and 6/7/2010 respectively and filed under Order 36 Rules I and 4 of the Rules of this Court, 2004 by the Court for its Judgment. The Court granted the application of Counsel Muoemeka and the Plaintiff s Final Written Address and Reply Address to the Defendant s Final Written Address were adopted by the Court for its Judgment.

18 18 Counsel for the Defendant equally applied for the Court to adopt the Defendant s Final Written Address dated 17/6/2010 and filed pursuant to Order 36 Rule I of the Rules of this Court, 2004 for its Judgment. The application was granted and the Final Written Address of the Defence Counsel was adopted by the Court for its Judgment. In commencing his Final Written Address dated 28 th May, 2010 in support of the Plaintiff s Suit, Counsel for the Plaintiff, Muoemeka Esq., told the Court in his Introduction that the Plaintiff prior to 30 th June, 2009, was the Landlord of the Defendant/Tenant who occupied the demised premises known and described as No. 64B Lake Chad Crescent, Maitama, Abuja (formerly No. 2A Lake Chad Crescent, Maitama, Abuja) and duly entered into a yearly tenancy agreement between the Parties for three years certain with effect from 1 st July, 2006 to 30 th June, He said that the tenancy expired on 30/6/2009 and the Defendant till date had continued to illegally hold over the demised property, adding that the tenancy was for three years certain duration and the Defendant paid N4,000, for the three years lease. Counsel for the Plaintiff submitted that prior to the termination of the Lease/Tenancy, the Plaintiff caused mandatory statutory Notices to be served on the Defendant (Exhibits 3 and 7): vide Red Star Express Courier Domestic Way Bill No of 19 th January, 2009 (Exhibit 4) and Speed Post Courier Services Receipt of 27 th May, Counsel for the Plaintiff also explained that the Plaintiff additionally wrote the Defendant a Reminder Letter (i.e. Notice to Quit Reminder Letter dated 27/5/09) in connection with the expiration of the said tenancy. But inspite of those legal steps taken by the Plaintiff to bring the landlord/tenant relationship between it and the Defendant lawfully and peacefully to an end, the Defendant was still illegally holding over the

19 19 demised property. Where upon the Plaintiff sued the Defendant in this Court claiming inter alia against the latter: (I) An order for possession of the 6-Bedroom Detached House with two Rooms Servant Quarters known and described as No. 64B Lake Chad Crescent, Maitama, Abuja; (II) Mense Profit at the rate of N333, (Three Hundred and Thirty-Three Thousand Naira only) per month from the date of expiration of rent till possession is given up to the Plaintiff; (III) An Order of Court directing the Defendant to put the said No. 64B Lake Chad Crescent, Maitama, Abuja in good and tenantable condition and to pay all outstanding utility bills; (IV) And the sum of N400, (Four Hundred Thousand Naira only), being the cost of this Suit. Counsel Muoemeka submitted that the Plaintiff filed its Statement of Claim and Witness Statement on Oath together with the Writ of Summons in this Court on the 15 th day of July, 2009 and called only a lone Witness, Miss Blessing Alozie, a Staff in the Plaintiff Company, who gave evidence as P.W. 1. He further stated that P.W. 1 gave evidence-in-chief on 7 th October, 2009; 29 th October, 2009 and 25 th January, 2010 before the Court adjourned the case to 16 th February, 2010 for cross-examination of P.W. 1 by the Defence Counsel, who did not appear in Court on the said date to cross-examine P.W. 1. The Defendant was absent from Court and not represented by its Counsel and they were therefore foreclosed from cross-examination of P.W. 1 by the Court upon the oral application of Counsel Muoemeka before the case was adjourned to 2 nd March, 2010 for defence. The Court sat on that day, where Defence Counsel Tunyan brought a Motion on Notice No. FCT/HC/M/2321/10 dated 3 rd March, 2010 for recall of P.W. I for the purpose of being cross-examined and the Motion

20 20 was granted on 20 th April, 2010 without objection by Counsel for the Plaintiff and P.W. I was recalled for cross-examination by the Defence Counsel on that day. Counsel Muoemeka told the Court that the Plaintiff called only one Witness, Miss Blessing Alozie, who testified as P.W. I, stressing that the Plaintiff filed Statement of Claim and Witness Statement on Oath along with the Writ of Summons dated and filed in Court on the 15 th day of July, He said the summary of the Plaintiff s case was that it let the property in issue to the Defendant as a yearly tenant, paying monthly rent of N333, and the Defendant therefore paid the sum of N4,000, (Four Million Naira) as three years tenancy rent from 1 st July, 2006 to the 30 th June, 2009, adding that the tenancy had long expired but the Defendant still illegally held over the demised property inspite of all Statutory Notices served on it. On the evaluation of the P.W. 1 s evidence, Counsel for the Plaintiff submitted that P.W. 1 in her evidence-in-chief adopted her Witness Statement on Oath and urged the Court to grant the Plaintiff all the reliefs sought, inclusive of the monthly Mesne Profit of N333, from 1 st July, 2009 till when the Defendant finally delivered possession, adding that the following documents were tendered in evidence before the Court, admitted and marked as Exhibits through P.W. I. These included: (i) Power of Attorney from Dr. Lawrence Ojemeni to the Plaintiff admitted in evidence by the Court and marked as Exhibit 1. (ii) Tenancy Agreement between the Plaintiff and the Defendant admitted in evidence and marked by the Court as Exhibit 2. (iii) Quit Notice served on the Defendant admitted in evidence and marked Exhibit 3 by the trial Court. (iv) Courier Slip as evidence of service of Quit Notice admitted in evidence and marked as Exhibit 4.

21 21 (v) Reminder Notice of Expiration of Defendant s Tenancy from AKUS & Co. admitted in evidence and marked as Exhibit 5 by the Court. (vi) Courier Slip as evidence of service of Reminder Notice to Quit admitted in evidence and marked as Exhibit 6. (vii) 7 days of Owner s Intention to apply to Court to recover possession of the demised property admitted in evidence by the Court and marked as Exhibit 7. (viii) Affidavit of Service as Proof of Service of the said 7 days Notice admitted in evidence and marked as Exhibit 8. (ix) Solicitor s Receipt of N400, issued to the Plaintiff by AKUS & Co. for prosecution of this case was admitted in evidence by the trial Court and marked as Exhibit 9. The Plaintiff Counsel also contended that upon cross-examination, the P.W. I mentioned that she was a Staff in the Plaintiff s Company for eight years, stressing that the Defence Counsel s cross-examinations were basically on Exhibits I (the Power of Attorney); Exhibit 2 (the Tenancy Agreement) and the Quit Notice (Exhibit 3) and the Plaintiff Solicitors Receipt of N400, (Exhibit 9), which basically revolved around technicalities and particularly in Exhibit 2 (Tenancy Agreement). He explained that upon re-examination, the P.W. I mentioned that notwithstanding Article 17, if the Plaintiff was writing to the Defendant, it was the Defendant s Address that would be provided as Address for Service as it would be absurd to write the Defendant and put the Plaintiff s Address, stating that the Defence elected not to call evidence and rested their case on the Plaintiff s case. On issues for determination, Counsel for the Plaintiff formulated the following issues for determination by the Court:

22 22 (1) Whether from summation of evidence before the Honourable Court, the Plaintiff has established a case so as to merit a grant of the reliefs sought? (2) And whether from the peculiarity of this case, the strict rule of technical justice can prevail over substantive justice? In argument on the first issue above, Counsel for the Plaintiff told the Court that the Plaintiff had superfluously established his case to merit a grant of the reliefs sought and there existed a clear-cut dichotomy vis-àvis burden of proof in civil cases and criminal cases. He said for the former (i.e. civil cases), it was always on credible evidence and proof on the balance of probability or preponderance of evidence; while for the latter it was always proof beyond reasonable doubt. Counsel for the Plaintiff then referred the Court to the following locus classicus cases off: SPDC NIG. LTD. VS. EDAMKWE & OTHERS (2009) LPELR SC 60/2003; THE LIQUIDATOR OF EFUFU (P.M.S.) LTD. VS. ADEYAFA (1970) A.M.L.R. 13; AMOKOMOWO VS. AUDUD (1985) 1 N.W.L.R. (PART 3) 530; ODULAJA VS. HADDAD (1973) 11 S.C. 357; OKUARUME VS. OBABOKOR (1966) N.M.L.R. 17; FALUYI VS. ODERINDE (1987) 4 N.W.L.R. (PART 64) 153 AND ONWUKA VS. OMOGUI (1992) 3 N.W.L.R. (PART 230) 393, In the case of E.K. ODULAJA VS. A.F. HADDAD (1973) 11 & 12 S.C. 216 at page 221, the Supreme Court held that: It is trite law that a civil case is decided on a preponderance of probabilities and that the onus of adducing further evidence is on the person who would fail if such evidence were not produced...

23 23 Also, in ALHAJI GANIYU AMOKOMOWO VS. ALHAJI IMAM GAFARU ANDU (1985) 1 N.W.L.R. (PART 3) 530 at Page 531, the Supreme Court held in its Ratio 2 thus: All the evidence adduced in a civil case by both Parties should be placed on an imaginary scale in order that the trial Judge may determine the preponderance of each case Counsel Muoemeka further stated that the matter before the Court was a civil case, and in particular a tenancy matter, explaining that the scale of justice preponderated and/or tilted in favour of the Plaintiff. He contended that the Plaintiff s pleadings averred, deposed to and adopted on the 1 st day of July, 2006, the Defendant took a tenancy of the Plaintiff s property at No. 64B Lake Chad Crescent, formerly 2A Lake Chad Crescent, Maitama, Abuja and paid the sum of N4,000, for a three year duration with effect from 1 st July, 2006 to 30 th June, 2009, adding that the tenancy expired by effluxion of time on the 30 th day of June, 2009 and that a breakdown of the payment showed that the monthly value of the rent was N333,000.00, which P.W. 1 led evidence in that direction also. He argued that the tenancy was for a term of three years and terminated by effluxion of time on 30 th June, In that connection, Counsel Muoemeka submitted, the Defendant was not even entitled to Quit Notice and Notice of Owner s Intention to Apply to Recovery of Possession of the demised Property for purposes of terminating the said tenancy because by 30 th June, 2009, the tenancy automatically terminated by sheer force of law and by effluxion of time and did not require any extraneous or ceremonial formality to duly terminate same. He therefore cited and relied on the case of ALHAJI J.A. ODUTOLA & ANOTHER VS. PAPERSACK NIGERIA LTD. (2006) 28 N.S.C.Q.R. 470

24 24 Ratios 10, 11 and 12 at pages , where the Supreme Court, per Onu and Onnoghen, JJ.S.C., held thus: (10) I am of the firm view that from the moment a year s rent became due and payable by the Respondent but remained unpaid, the yearly tenancy, if any, created by the conduct of the Parties thereto, came to an end by effluxion of time and the Respondent thereupon became a tenant at will to the 1 st Appellant by continuing or remaining in possession of the property. In other words, the Respondent at that stage is said to be holding over the property and in that capacity, became a tenant at will (11) I hold the considered view that from the moment a year s rent became due and payable by the Respondent but remained unpaid, the yearly tenancy, if any, created by the conduct of the Parties thereto came to an end by effluxion of time and the Respondent thereby became a tenant at will to the 1 st Appellant by continuing in possession of the property. In law we describe the Respondent at that stage as holding over the property and in that capacity it became a tenant at will. The situation of failure to pay rent continued from Yet learned Counsel and the Court of Appeal contend that there was a yearly tenancy (12) It is not disputed that a tenancy at will is determinable by seven days notice of intention of the Landlord to recover possession which was duly complied with in this case. Even if six months notice was given, it does not per se, change the nature and legal character of the tenancy in issue Counsel for the Plaintiff contended that the services of Statutory Notices (e.g. Notice to Quit, etc.) admitted as Exhibits 3 was a surplusage

25 25 and it was a clear indication that the Plaintiff came to this Court of Justice and Equity with clean hands as he who comes to equity must come with clean hands and he who seeks equity must do equity. Counsel for the Plaintiff maintained that the Defence Counsel challenged the Addresses for Service of the said Statutory Notices (Exhibits 3 and 7) as not complying with the mode of service provided under Article 17 of the Tenancy Agreement, adding the Article 17 provided inter alia: That all Notices shall be addressed to the Plaintiff, Messrs Cardiff Property Limited, of Suite D8, Bobscar Complex, Ahmadu Bello Way, Garki II, Abuja and the Defendant at No. 2A Lake Chad Crescent, Maitama, Abuja. He also argued that it was a notorious fact in Abuja that the then F.C.T. Administration under Mallam Ahmed El-Rufai re-numbered houses in the F.C.T. and that at the time the Tenancy Agreement was entered into, the demised property was situate at No. 2A Lake Chad Crescent, Maitama, Abuja, explaining that when the Notices were issued, the demised premises had been re-numbered as No. 64B Lake Chad Crescent, Maitama, Abuja. This was a notorious fact that the Court could take judicial notice of under Section of the Evidence Act, Cap. E14 L.F.N. 2009, Counsel for the Plaintiff told the Court, as neither the Plaintiff nor the Defendant pleaded this fact, the same went to no issue and should be expunged from the records of this Court. He therefore referred the Court to the case of LANA VS. UNIBADAN (1987) 4 N.W.L.R. (PART 64) 245. Counsel Muoemeka submitted that assuming but without conceding that No. 64B Lake Chad Crescent, Maitama, Abuja and No. A2 Lake Chad Crescent, Maitama, Abuja were different places, the mistake could not avail the Defendant because the Quit Notice ought not to be served on the Respondent (Defendant) in the first place as their tenancy was

26 26 tenancy for a certain term and expired by effluxion of time and required no further procedure like a Quit Notice to formally determine same but only required seven days Notice of Owner s Intention to apply to Recover Possession of the demised property. He therefore cited the case of ODUTOLA VS. PAPERSACK NIGERIA LTD. (2006) 28 N.S.C.Q.R. 470 Ratios 10, 11 and 12 at pages 500, 505 and 506 or (2006) S.C. 60. On the Issue of service of seven days Notice of Owner s Intention to Apply to Recover Possession of the demised property from the Defendant, Counsel for the Plaintiff submitted that it was a Court process and was not subject to prescriptions in Article 17 of the Tenancy Agreement (i.e. Exhibit 2) nor subject to the said Article 17 as per mode of service, and save otherwise or as an Order of Court provided to the contrary. And this was more so as No. 24 Lake Chad Crescent, Maitama, Abuja was the same as the former No. 2A Lake Chad Crescent, Maitama, Abuja. He further stated that the Defendant remained liable to pay Mesne Profit at the rate of N330, per month from 1 st July, 2009 till whenever the Defendant finally delivered up possession to the Plaintiff. Counsel Muoemeka urged the Court to use its discretion to review the said Mesne Profit upwards as Mesne Profit was usually higher than the rent. This was particularly so as, the value of the demised property had long appreciated since 2006 when the Defendant took a lease of the property. This, he said, was because Mesne Profits was a special kind of monetary compensation against a tenant who wrongfully refused to deliver up possession of the demised property on the expiration of the tenancy agreement between the Parties and thereby became a trespasser and paid damages because he had no agreement with the Landlord to hold over the demised property, Counsel for the Plaintiff

27 27 therefore referred the Court to the following cases: PETGAS RESOURCES LTD. VS. LOIUS N. MBANEFO (2007) 6. N.W.L.R. (PART 1031) 545 at page 560; DEBS VS. CENICO LTD. (1986) 3 N.W.L.R. (PART 32) 846; EMKA CHIANN, LAW OF LANDLORD AND TENANT, CASES AND COMMENTS SECOND EDITION at page 262 and ODUTOLA VS. PAPER SACK NIG. LTD. (2006) supra Ratio 9 at page 496. In PETGAS RESOURCES LTD. VS. LOUIS N. MBANEFO (2007) 6 N.W.L.R. (PART 1031) 545 at pages , Counsel Muoemeka stated, the Court of Appeal, held per Denton-West, J.C.A. that: The Plaintiff claims mesne profit for that period. Now, at the end of the tenancy the tenant is duty bound to yield up possession. If he fails he becomes a trespasser. This is so because his continued possession is a wrongful act. Being a trespasser, he is liable to pay damages for trespass. It is that damages that is called mesne profit. Learned Counsel Muoemeka further submitted that the Defence Counsel during cross-examination of P.W. 1 questioned that the Defendant pursuant to Article 16(4) of the Tenancy Agreement (Exhibit 2), was entitled to one month period of grace allowable, stressing that for purpose of lucidity, the said Article 16(4) provides inter alia: To return the building to its original state at commencement of the tenancy before vacating the property. A one month (period of grace) is allowable Counsel for the Plaintiff further argued that the one month period of grace allowable only applied where the Defendant, while in occupation, had defaced and altered the structures of the property, explaining that in such a case the Defendant must return the property to its original state. He told the Court that in such circumstance and after 30 th June, 2006, the

28 28 Defendant would be entitled to a further one month period of grace to carry out renovation of the rented property. Counsel Muoemeka maintained that the property was still in its original state, as nothing on record, whether from the Plaintiff s pleadings or the Defendant s pleadings, suggested a defacing or alteration of the structures of the property as all that was needed of the Defendant under the Tenancy Agreement (Exhibit 2) was to yield up vacant possession of the demised property to the Plaintiff by the 30 th day of June, He emphasized that the Defendant and its Counsel did not even lead any evidence to prove the fact that they defaced or altered the structures of the demised property to justify the entitlement to one month s period of grace to return the property to its original form. Counsel argued that in the absence of any evidence to the contrary from them, the Court would judge from evidence before it that the Defendant s tenancy expired on 30 th June, 2008, adding that the Defendant did not contradict this fact. The Defendant, Counsel submitted, by not leading evidence to rebut all those pieces of evidence added by the Plaintiffs sole Witness, was deemed to have admitted them. He referred the Court to the following cases: JOHNNY VS. EDOJA (2007) ALL F.W.L.R. (PART 365) 527 at 544; ATTORNEY-GENERAL OF ABIA STATE VS ATTORNEY- GENERAL OF THE FEDERATION(2005) 5 S.C. (PART 1) 63 AT PAGES ; AJOMALE VS. YADUAT (NO. 2) (1991) 5 N.W.L.R. (PART 191) 266 and OGUNLEYE VS. ONI (1990) 2 N.W.L.R. (PART 135) 745. In ATTORNEY GENERAL OF ABIA (ANAMBRA) STATE VS. ATTORNEY GENERAL OF THE FEDERATION & 35 OTHERS (2005) 5 S.C. (PART 1) 73 at pages , the Full Panel of the Supreme Court, per Niki Tobi, J.S.C., held, that: