IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY HOLDEN AT HIGH COURT OF JUSTICE WUSE ABUJA ON THE 14 TH DAY OF FEBRUARY, 2013 BEFORE HIS LORDSHIP: HON. JUSTICE M.M. KOLO COURT NO. HIGH COURT THIRTY TWO (32) SUIT NO. FCT/HC/CV/2793/2012 BETWEEN:- EXPRIMA CENTURY NIGERIA LIMITED..PLAINTIFF AND MR. AJAYI OLUWANIYI MOSES.DEFENDANT JUDGMENT The plaintiff claims against the defendant as follows: 1) An order of this Honourable Court for recovery of premises of the property 3 bedroom apartment (Block A, Flat 6) located behind VIO s Office, Mabushi District, Abuja, particularly designated as plot 837,839 and 841 Marshal Height Estate, Mabushi, Abuja the defendants tenancy having expired on 16 th September, 2011 without subsequent renewal. 1
ii) Mesne profit estimated at N70, 833.00 (equal to the rent if structured monthly) per month from 16 th September, 2011, when the tenancy expired until possession is recovered. iii) Monthly interest at the rate of 10% of the rent from 16 th September, 2011 till judgment is delivered and thereafter 5% interest from the date judgment is delivered until the entire sum is liquidated. iv) The cost of instituting this action estimated at N100, 000 In order to establish its case, the plaintiff called one witness. However, for the defendant, service of Court processes were effected on him by substituted means, to wit, by pasting the processes of this Court at his last known place of aboard which is the premises, the subject matter of the litigation vide certificate of service dated 12/6/12. The defendant throughout the proceedings that lasted about six to seven months neither appeared in Court to testify nor called any witness to testify on his behalf in spite of hearing notices served on him at all adjournments. As made out in the witness statement on oath of PW1 Prisca Ozoilesi the Secretary to the plaintiff Company who has the authority of the plaintiff to testify told the Court that the 2
plaintiff is the landlord of the defendant over the property 3 bedroom apartment Block A Flat 6, located behind VIO s Office Mabushi District, Abuja particularly designated as plot 837, 839 and 841 Marshal Height Estate Mabushi Abuja for a term of one year which the defendant was let in to possession as a tenant on 17/9/07 at the rent of N650, 000. He stated that the defendant at the expiration of the one year tenure 17/9/07 to 16/9/08 paid and renewed the tenancy for another one year from 17/9/08 to 16/9/09. There were subsequent renewals until the tenancy expired on 16/9/11. He told the Court that the above tenancy expired 16/9/09 and the defendant renewed for another one year at the rent of N700,000 at the expiration of which he subsequently renewed for another one year at the agreed rent of N700,000 all paid to the plaintiff s agent which expired 16/9/11. Witness further stated that before the expiration of the tenancy the plaintiff wrote the defendant via a correspondence dated 14/5/11 through its solicitor reminding him that its tenancy would expire by effluxion of time on 16/9/11 and offered him a renewal at the rent of N850, 000 if he chooses to continue as tenant or to yield up possession at the said expiration. 3
He testified to the fact that the defendant has refused to renew his tenancy after expiration on 16/9/11 and he was issued 7 days notice of owner s intention to recover possession after expiration of which he has refused to delivered up possession. The plaintiff was neither cross examined nor re examined and that was the plaintiff s case. Since the defendant chose not to participate in the proceedings as earlier stated, his right of defence was foreclosed and the learned counsel for the plaintiff was allowed to file and adopt its written final address which was dated 26/11/12 and filed on 27/11/12. It was adopted before the Court on 5/12/12. It is noteworthy that the following documents were tendered and admitted in evidence through PW1 i.e. Tenancy agreement between the plaintiff and the defendant, re-renewal of tenancy and the 7 days notice and marked Exhibits A, B and C respectively. The written final address of the plaintiff is of 7 or 8 page wherein it formulated an issue for determination, to wit, whether the plaintiff is entitled to the reliefs sought having regard to its pleading, the evidence laid in this case and the failure of the defendant to defend the suit. 4
The learned counsel argued that the plaintiff has established by Exhibits A and C that the defendant s tenancy expired by effluxion of time on 16/9/11 and it was duly served a 7 days notice of owner s intention to apply to recover possession. He cited the cases of Ayinla v Osunsedo (1973) 8 CCS, Tinuola v Okon (1966) 2 ALL NLR 188. He stated that the bedrock on which the plaintiff s case stand is Exhibit A He referred to paragraph 4 (b) which provides: That if and when the tenant s annual term determined by effluxion, the tenant shall be entitled to a notice of owner s intention to recover possession only. He contended that this is the agreement between the plaintiff and the defendant and their relationship, thus, governed by Exhibit A and they are therefore bound by a document which they append their signatures. He relied on the following cases Bank of the North Ltd & Anor v Haruna Aliyu (1997) 7 NWLR PT 612, 622 at 633 and Faage v Tokur (2007) All FWLR (PT 387) 816 at 898 Paragraph C and also referred to Section 8 of the Recovery of Premises Act, Abuja on length of notice agreed by parties and Odutola v Paper Sack (Nig) Ltd (2006) 18 NWLR PT 1012, 470. 5
The learned counsel submitted that it has satisfied the requirements of the law as shown from the foregoing having served the defendant the 7 days notice required by effluxion of time and therefore entitled to possession of the property. He also submit that mesne profit will enure to a plaintiff fora period stayed over by the tenant after the expiration of the tenancy and that the same accrues from the expiration of the tenancy at the current rental value. He cited Ayike v Lawal (1994) 7 NWLR PT 356 at 263 to buttress him submission. The learned counsel asserted that, it is trite law that failure of a defendant to defend a suit is an admission of the claims of the plaintiff as was held in Ogunleye ve Arewa (1959) SC NLR 603. He maintained that the failure of the defendant in this case to file a statement of defence renders the claims of the plaintiff and the evidence led by it as unchallenged. He referred to the following cases. Waziri v Abubakar (2005) 1 NWLR, PT 908, 450 at 452, Nwadike v Ibekwe (1987) 4 NWLR (PT 67) 718 Abdullahi v Raji (1998) 1 NWLR (PT 534) 481 Mobil Production (Nig) Unlimited v Monokpo (2003) 3 NWLR (PT 753) 48. On the issue of interest claimed by the plaintiff, he referred to paragraph 7 of his statement of claim and urged the Court to grant the entire claims of the plaintiff. Adopting the lone issue 6
formulated by the plaintiff, by Exhibit A, the tenancy agreement entered into between the plaintiff and the defendant, the tenancy of the defendant supposedly expired by effluxion of time on 16/9/11. The defendant did not make any move to renew his tenancy with the plaintiff and was consequently served with Exhibit C the 7 days notice of owner s intention to recover possession. Under the recovery of premises law, I do not think the defendant is entitled to any notice other than Exhibit C, the 7 days notice served on him. Section 8 sub Section 1 (a) of the Recovery of Premises Act applicable to the FCT Provides: 8 (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 shall be given (a) In the case of a tenancy at will or a weekly tenancy a week s notice. See also Alhaji J.A. Odutola & Anor v Paper Sack Nig Ltd (2006) NWLR (PT 1012) 470 and PAN ASIAN AFRICAN COMPANY LTD V NICON (1982) ALL NLR 229. 7
In the instant case, I note, there is even an express stipulation in Exhibit A as to notice to be given and this is buttressed in paragraph 4 (b) of Exhibit A wherein it provides: That if and when the tenant s annual term determined by effluxion, the tenant shall be entitled to a notice of owner s intention to recover possession only. From the circumstances of this case I will not hesitate to hold that Exhibit C, the 7 days notice served on the defendant was proper and valid in law. It now takes me to the issue of unchallenged evidence raised in the plaintiff s written final address. It is trite, I agree that where evidence is neither contradicted nor challenged by the opposite party, the Court must act on it. Let me also add that the evidence must be credible. The law is well settled that where the evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seized of the case to act on such unchallenged evidence before it. Per Iguh JSC (Page 33, Paragraphs C D) in Olohunde v Adeyoju (2000) 10 NWLR (PT 676) 562 see also the following cases Isaac Omoregbe v Daniel Lawani (1980) 3 4 SC 108 at 117 Odulaja v Haddad (1973) 11 SC 357. Nigerian Maritime 8
Services Ltd v Alhaji Bello Afolabi (1978) 2 SC 79 at 81 Abel Boshali v Allied Commercial Exporters Ltd 1961 2 SC NLR 322, 1961 ALL NLR 917. The defendant did not respond to exhibit B and the Court should ordinarily hold that the contents therein are admitted to the extent that they were neither contradicted nor challenged see paragraph 5 of the plaintiffs statement of claim and paragraph 8 of his witness statement on oath. I think Exhibit B, the renewal notice vis-a- vis paragraph 6 of the witness statement of claim require re consideration. It is averred in paragraph 6 of the plaintiff s statement of claim thus: The plaintiff however before the expiration of the tenancy as aforesaid wrote the defendant via a correspondence dated 14/7/11 through the plaintiff s solicitors, reminding him that his tenancy will expire by effluxion of time on 16/9/11 and offered him a renewal at the rent of N850, 000 (the current value of the house) if he chooses to continue as a tenant or to yield up possession at the said expiration. 9
In Exhibit B, I am particularly concerned with the issue of increase in rent to N850, 000 I have stated earlier that there is no evidence from the other side on this aspect but that does not mean that the plaintiff shall not adduce credible evidence in establishing the increase in rent. He must do that even on minimal proof. See BURAIMOH V BAMGBOSE (1989) 2 NWLR (PT 109) 352 AWO OMAMMA & ORS V NWOKORO 2012 LPELR 7949 CA. On the face of Exhibit B, the original letter was stated to have been received by Mrs. Ajayi and not Mr. Ajayi the plaintiff in this case. It is stated in Exhibit B that the tenancy of the plaintiff was to expire by effluxion of time on 31/8/11 as against 16/9/11 contained in all other documents and the evidence of the only witness of the plaintiff. There is also alteration in the address of the defendant and incomplete address of the premises the document was alleged to have been served. In FIRST BANK OF NIG PLC V MR. EFOBI EFFIONG BAM (2010) LPELR 4160 (CA) it was held: This principle of unchallenged evidence however does not create a flood gate for every type of evidence. To qualify for belief and reliance by a trial Court, such unchallenged evidence must be credible 10
in all circumstances and must be cogent enough to sustain the claim of the plaintiff. Further on exhibit B, the fact that notice of increase was served does not make it authomatically effective. There must be consensus ad idem for it is an offer or proposal by the landlord. There was no evidence of any correspondences between the landlord and the tenant i.e. the plaintiff and the defendant on that note. See Cobra Ltd & ors v Omole Estates And Investment Ltd (2000) 1 NWLR (PT 655) 1 it was held thus: The issue of rent between the landlord and Tenant is a matter of agreement. The agreement may be express or implied. The relationship between them too is a contractual one. And being a matter of contract its term cannot be altered by either party without the agreement of the other. See Udih v Izedonmwen (1990) 2 NWLR (PT 132) 357 Page 366. Unless the landlord and the tenant are ad idem a landlord s unilateral decision to increase the amount of rent payable will be ineffective. A unilateral increase of rent is an offer or a proposal made by the landlord. 11
For the reasons adduced as regards Exhibit B, it is beyond contention that the evaluation of evidence and the ascription of probative value to such evidence are primarily within my domain and I will not act or rely on Exhibit B although unchallenged. However, as regards other part of the plaintiff evidence that have remained credible and unchallenged I will accept them as having been admitted to that extent. In view of the foregoing therefore, I hold that the plaintiff is entitled to the possession of the property 3 bedroom apartment (Block A, Flat 6) located behind VIO s office, Mabushi District, Abuja particularly designated as plot 837, 839 and 841 Marshal Height Estate Mabushi Abuja. It now takes me to the issue of mesne profit which is the 2 nd relief sought by the plaintiff. He claims mesne profit estimated at N70, 833 (equal to the rent if structured monthly) per month from 16 th September, 2011 when the tenancy expired until possession is recovered. The expression mesne profit is used to describe the sum due to a landlord from the time his tenant ceases to hold the premises as tenant to the time such tenant gives up possession. Mesne profits are the rents and profits which a trespasser has, or might have received or made during his occupation of the premises, and which therefore he must pay over to the true 12
owner as compensation for which he has committed. See Odutola v Paper Sack Nig Ltd (2007) vol 1 MJSC 129 at 149 paragraphs A B (SC), African Petroleum Ltd Owodunni (1991) 8 NWLR (PT 210) 391 and Debs v Cenico Nig Ltd (1986) 3 NWLR (PT 32) 846. In Ayinke v Lawal (1994) 7 NWLR (PT 356) 263 it was held that an action for mesne profit does not lie until either the landlord has recovered possession or the tenants interest in the land has come to an end, or his claim is joined with a claim for possession. In the instant case, I have no doubt that the tenancy of the defendant came to an end by effluxion of time on 16/9/11 and thus entitled to mesne profits immediately thereafter from 17/9/11. However, on relief 3, I am unable to find any justification in granting monthly interest at the rate of 10% of the rent from 16/9/11 the date of default till judgment. As regards the other part of the relief which is 5% interest sought from the date of judgment until the entire sum is liquidated, the plaintiff is entitled to same under O 39 r 7 of the rules of this Court and I so hold. On the whole, having regard to the pleading, the evidence laid by the plaintiff in this case and the failure of the defendant to 13
defend this suit I hold that the plaintiff has established his claims against the defendant and judgment is accordingly entered for the plaintiff against the defendant in the following terms. Relief 1 succeeds Relief 2 (Mesne profit) also succeeds and couched at the rate of N58, 333.33k per month from 17/9/11 until possession is recovered. Relief 3 succeeds in part and interest rate is calculated at 5% from the date judgment is delivered until the entire sum is liquidated and Relief 4 also succeeds. The cost of instituting this action is accessed at N100, 000 Signed Hon. Judge 14/2/13 Counsel for the plaintiff. We are very grateful for the erudite judgment. 14