I.S. G. VEMBEH for the Plaintiff Plaintiff is in Court. Defendant in Court. JUDGEMENT

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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 13 TH DAY OF JUNE, 2013 SUIT NO: FCT/HC/CV/4357/12 BETWEEN: MONICA LEWNSKY GUMS PLAINTIFF AND UGOCHUKWU ONOVO DEFENDANT I.S. G. VEMBEH for the Plaintiff Plaintiff is in Court. Defendant in Court. JUDGEMENT The plaintiff is the agent/caretaker of a one bedroom apartment lying and situate at N0:18, U road phase1 Federal Housing Estate Lugbe Abuja. She tendered letter from the owner of the property. (Alhaji Aliyu Habibu) authorizing her to manage the house (Exhibit A1). The defendant took a one year lease at a rent of =N=400, (Four Hundred Thousand Naira), and was issued with a receipt (Exhibit A2) by the defendant. When the defendant did not indicate his interest to renew his tenancy, the plaintiff approached him and he promised to vacate at the end of his tenancy. The plaintiff served the defendant with three months quit notice on the 18 th April At the expiration of the quit notice, she also caused to be served on the defendant, a 7days Notice of owners intention to recover possession dated 18 th July The defendant has refused and or neglected to deliver possession of the premises despite the service of the notices on him. Plaintiff has instituted the instant suit and claims against the defendant as follows:

2 (a)a declaration that the refusal, neglect or failure by the defendant to deliver vacant possession of the one bedroom apartment to the plaintiff after several demands is unlawful, illegal and unconstitutional. (b)a declaration that the continual stay of the defendant in the one bedroom apartment, lying and situated at N0 18 (U) Road phase 1 Federal Housing Estate Lugbe, Abuja is an act of trespass to the said property. (c)an order directing the defendant to vacate the one bedroom apartment and its appurtenance situate and lying at N0 18 (U) Road phase 1 Federal Housing Estate Lugbe, Abuja. (d)an order directing the defendant to pay the sum of Four Million (=N=4,000,000.00) only being damages for trespass to one bedroom apartment lying and situate at N0 18 (U) Road phase 1 Federal Housing Estate, Lugbe Abuja. The plaintiff testified as the sole witness. She adopted her statement on oath on the 20/03/13. The substance of her statement on oath is akin to the statement of claim. She was cross examined by the defence counsel and discharged accordingly. The defendant did not file any pleading. In accordance with the provision of Order 36 Rule 1 of the High Court Civil Procedure Rules, both counsel filed and exchanged written address. Each adopted his written address on the 2/5/13. The defendant counsel formulated two issues for determination namely: (1) Whether or not the purported plaintiff who is an agent of a disclosed Principal can maintain this suit in her own name instead of that of the disclosed Principal. (2) Whether or not Exhibit A4 (the purported 7days Notice of owners intention to apply to Court to recover possession), and Exhibit A3 (the purported three months notice to quit) before the Court are regular and effective pursuant to Sections 7& 8 (1) (D) of the Recovery of Premises Act

3 and not caught up by the provisions of Section 9 of the Recovery of Premises Act to confer jurisdiction on the Honorable Court to entertain the suit. On the other hand, counsel to the plaintiff Mr. Mbalian formulated one issue for determination to writ: Whether having regard to the state of the pleadings and evidence led at the trial, the plaintiff has proved her case to entitle her to the reliefs sought. I have considered all the issues formulated by both counsel in their respective written address and found them germane to the determination of the claims of the plaintiff. I therefore adopt them as such. With regard to Issue 1, Learned defence counsel Mr. Nuhu Usman stated that the plaintiff is an agent of a disclosed Principal and ought to have sued in the name of the Principal (Alhaji Aliyu Habibu) instead of suing in her own name. The plaintiff on the writ according to the defence counsel ought to have been (Alhaji Aliyu Habibu) suing through his agent/caretaker (Monica Lewinsky) and not otherwise. He buttressed his argument with the following cases. (a) ARJANDAS HIRA NAND MELOENI (SUING THROUGH HIS ATTORNEY LATEPH AKINGBADE ADENIYI) VS.FIVESTAR INDUSTRIES LTD (2002) 1SCNJ 85 R5. (b) UNITED NIGERIA COMPANY LTD VS. JOSEPH NAHMN &ORS (2001)9 NLWR 117. He urged the Court to hold that the purported plaintiff in the case at hand being an agent or caretaker of the owner of the property can only maintain an action in the name of the owner of the property. He also submitted that a default in the title of a suit is not a technicality, it is fundamental and goes to the root of the suit. Let me quickly point out that the defendant did not call any evidence in rebuttal of the plaintiff s statement on oath. The evidence of the plaintiff therefore

4 remains unchallenged and uncontroverted. The defendant by implication admitted all that was said by the plaintiff in his pleadings and statement on oath. It is trite that evidence not challenged by the opposite party who has the opportunity to do, invariably can be acted upon by the Court. See the case of I. B. N. VS. ATLANTIC TEXTILES MANUFACTURING CO. LTD (1996) LPELR 1518 (SC). From the pleadings and evidence of the plaintiff, it is undisputed that she acted as the agent to the owner of the property, Alhaji Aliyu Habibu. Furthermore the receipt evidencing the transaction between her and the defendant boldly has the name of the plaintiff. LEWINSKY printed on it and she signed as the person who received the sum of Four Hundred Thousand Naira being the rent for one year from the defendant. The defendant never said he knew who the owner of the property was or that the plaintiff introduced Alhaji Aliyu Habibu to him as the owner of the premises as at the time he let the property. A disclosed Principal is a Principal whose name or identity is known to the third party at the time of transaction. Also the letter of authority given to the plaintiff by the owner of the property to manage the said premise was not controverted or disputed by the defendant. Let me also add that by the provisions of Section 2 of Recovery of Premises Act, a Landlord is defined as any person entitled to the immediate reversion of the premises, and includes the attorney or agent of the Landlord. The plaintiff has tendered Exhibit A1, a letter of authority from the owner of the property Alhaji Aliyu Habibu. She has also tendered all the statutory notices that were issued in her name as the agent to the owner of the property. In the absence of any evidence to the contrary, the reversionary right in the property resides in her as the agent/landlord of the property she is therefore competent to sue in her name as the plaintiff in this suit. The defence counsel also argued that the defendant is a yearly tenant and is thus entitled to six months quit notice as against three months notice (Exhibit A3) served on him by the plaintiff. He also stated that the purported 7days Notice of owners intention to recover possession was dated 18 th of July 2012 while the

5 plaintiff intended to apply to Court on the 25 th of July Also from the certificate of service, the defendant was served with the Notice on the 18 th of July2012, and therefore had only six clear days notice as against the 7 clear days stipulated by the Recovery of Premises Act. He contended that the 7days Notice is invalid and ineffective. He urged the Court to hold that plaintiff s case is premature and incompetent. He relied on the cases of EZEAMA VS. EJIDIKE (1962) 6 ENLR 185 HIGH COURT (EAST), AKEJU VS. SHONIBARE (1968) 2 ANLR 159 HIGH COURT (LAGOS). Learned counsel prayed for the dismissal of the suit. On the contrary, the plaintiff s counsel submitted that the plaintiff s case is premised on trespass simpliciter and not yearly tenancy. That the tenancy of the defendant having commenced from 3 rd June 2011 and expired on 3 rd June 2012 was fixed and determined by effluxion of time. He referred to Exhibit A2, the receipt for payment of rent by the defendant. He also relied on the authority of ODUTOLA VS. PAPERSACK NIG LTD (2000) 12 SCNJ Pg 188, counsel submitted that when a fixed tenancy has run out of its time, the tenant becomes a trespasser or at best only a tenant at will. He further submitted that the defendant is only entitled to seven days Notice of owners intention to apply to recover possession which was duly served on him. That the service of Exhibit A3, the three months notice to quit is superfluous and constitutes no legal bar to the plaintiff s action. He urged the Court to so hold. In the instant case, there was no formal tenancy agreement between the parties, however the transaction is embodied in Exhibit A2, the receipt for payment of rent, and indicated on it is the tenancy period which reads: 3/6/2011 to 3/6/2012. There was no renewal of the tenancy by the defendant. Defence counsel relied on the provision of Section 8 of Recovery of Premises Act. This Section as stated in the sister case is applicable to periodic tenancies that run from time to time. Also Section 8 (1) (A) is in respect of a yearly tenancy which is determinable by a half year notice and not a fixed tenancy. In my humble view the defendant does not qualify to be described as a tenant at will. A tenancy at will is a tenancy for no fixed term but determinable at the will of either the Landlord or the tenant. The nature of tenancy created by the parties is

6 for a fixed term. I therefore agree with the plaintiff s counsel that the defendant is only entitled to 7days Notice of owners intention to recover possession, his tenancy having expired by effluxion of time. The service of three months notice to quit on him is a mere surplusage it has no effect on the plaintiff s action and I so hold. On the validity of the seven days Notice of owner s intention to recover possession, the plaintiff s counsel argued that the defence counsel never pleaded the inadequacy of notices. He submitted that the defendant having failed to plead the material facts cannot raise the question of the cuffs by way of cross examination. In my opinion the adequacy or validity of statutory notices is a matter of mixed law and fact. It is not in dispute that the defendant was served with Exhibit A4, the fact on record speaks for itself. Furthermore the validity of Notice determining a tenancy is fundamental to the institution of the plaintiff s claim for recovery of possession. It is a pivot upon which the jurisdiction of the Court to adjudicate on the matter rests. The term jurisdiction is described by his Lordship Bello CJN of blessed memory in the case of UTI &ORS VS. ONOYVWE & ORS (1991) 1NWLR Pt 166 Pg 166 as blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. An opposing party does not need to file pleadings before jurisdictional issue of this nature is raised. In the instant case, the 7days Notice which is the subject of the objection is before the Court as an exhibit. The validity of a statutory notice touches on the jurisdiction of the Court and is therefore of no moment if the fact was not pleaded but elicited during cross examination. I have proceeded to examine the said 7days Notice (Exhibit A4). It was issued and on the 18 th of July 2012 and was served on same day see Exhibit A5, the certificate of service. The plaintiff stated therein that she shall on the 25/7/12 next apply to the Court to issue a warrant directing an appropriate person to enter and take possession of the said premises and to eject any person there from.

7 By the provision of Section 8 of Recovery of Premises Act the Landlord shall proceed to recover possession not less than 7days from the date of service of form E, i.e. the 7days Notice to recover possession or the defendant. By a simply mathematical calculation, the period between date of service on 18 th of July th of July 2012 when the plaintiff intended to apply to Court was not up to 7 clear days. In computing the seven days notice, the days of its service and of its expiry are not counted. The notice is therefore inadequate and not valid. The learned plaintiff counsel had equally contended that the issue of inadequacy of the notice as raised by the defence counsel is a mere technicality. He said a new legal position taken by the Court has been in enacted under Section 13 (4) of the Lagos Tenancy Law. This new law counsel stated had put paid to the rule in the case of A.P. VS. OWODUNNI (1991) 8 NWLR (2001) Pg 371. In the new law notices are held to be valid even when they expire after the anniversary or date of termination of the tenancy. Although the learned counsel has not cited any authority to back up the new legal position he alluded to, I however agree with him that the issue as raised by the defence counsel is technical in nature, but unfortunately that is still the position with the Recovery of Premises Act applicable to Federal Capital Territory Abuja. The law is more in favour of the tenants than the Landlord. Any failure to observe the procedure Laid down in the Act may be fatal to the plaintiff s case. This in my firm view is anti-investment and calls for urgent repeal to meet with the reality of our times. It is therefore unfortunate that despite the fact that this action was filed long after the expiration of the date given in the Seven (7) days notice, I am constrained by the provision of Section 7 of the Recovery of Premises Act to refuse the plaintiff s claim for possession because the Notice served on the defendant was invalid. The Court lacks jurisdiction to entertain the plaintiff s claim. It is hereby struck out. All other claims also fall with it like a pack of card. I.S.G. VEMBEH: We are grateful for the judgement. SIGNED HON JUDGE 13/06/2013