IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT APO ABUJA ON THE 1 ST DAY OF NOVEMBER, 2013 BEFORE HIS LORDSHIP HON. JUSTICE CHIZOBA N. OJI PRESIDING JUDGE SUIT NO: FCT\HC\CV\1315\12 BETWEEN: PEARL AND DIAMOND PROPERTIES LTD. PLAINTIFF AND FELICIA OMEIFE DEFENDANT NWORAH VINCENT FOR THE PLAINTIFF DEFENDANT IN COURT JUDGMENT By a writ of summons filed on 19 th December 2012, the Plaintiff claims against the Defendant: a) Possession of all that one (1) bedroom flat situate at Flat 1, Block G, Plot 668, Gwarimpa, Life Camp, Abuja 1
b) N46, 000 only per month as mesne profit for the use and occupation of the said flat from the 28 th day of August 2012 until possession is surrendered to the Plaintiff. c) An order for the Defendant to renovate the Plaintiff s apartment or restore it to the state it was before her occupation d) The cost of this suit. The Defendant was served the originating processes on 24 th May 2013 by substituted means following an order of court made on 15 th May 2013. The Defendant filed no processes neither did she make any appearance whatsoever in this suit, at least not until today. On 16 th July 2013, the Plaintiff opened its case with PW1, Christian Ereaku. He adopted his witness statement on oath sworn on 19 th December 2012. Therein he testified that he is the Estate manager of the Plaintiff, a limited liability company incorporated in Nigeria with its registered office at Nwaora Plaza, Plot 1103 Aminu Kano crescent, Wuse II Abuja, and beneficial owner of the one bedroom flat, flat 1, Block G, situate at Plot 668, Gwarimpa Life Camp, Abuja. That the Plaintiff let out the said one bedroom to the Defendant for a period of one year certain commencing from the 29 th day of August 2011 to the 28 th day of August 2012 at the rate of N500, 000 excluding service charge and rates via a tenancy agreement Exhibit P1. That the tenancy expired on 28 th august 2012; that the apartment is in a sorry state as most of its fittings have been removed or damaged and the walls defaced. That it issued the Defendant a 7 days notice of owner s intention to recover possession dated 29 th October 2012 admitted as Exhibit P2; that the Defendant 2
has held and detained the demised premises without peaceably surrendering same to the Plaintiff. He prayed the court to grant their claims. The Defendant did not appear to cross examine the PW1, despite an adjournment and service of hearing notice to enable her to do so. PW1 was therefore discharged. The court bailiff was subpoenaed only to produce a Certified True Copy of the certificate of service of the 7 days notice of owner s intention on the Defendant which he did. It was tendered from the bar and admitted as Exhibit P3. He did not testify. Thus the Plaintiff closed his case. The Defendant did not defend the action. In his final written address learned counsel for the Plaintiff identified this sole issue for the determination of the court thus: Whether or not from the evidence adduced before the court, the Plaintiff is entitled to the reliefs sought. Learned counsel submitted that in accordance with S. 7 of the Recovery of Premises Act Cap. S. 44 LFN 1990, the Defendant s tenancy having been determined by effluxion of time on 28 th August 2012 the Defendant was served with the 7 days notice of owner s intention to apply to recover possession Exhibit P2 which is valid and competent. In addition, that the 7 days notice of owner s intention to apply to recover possession is the notice required to be served on the Defendant in this instance. See TINUOLA V OKON (1966) ANLR P. 469 AT 470 RATIO 1 AND 2; OBI OKOYE ESSAYS ON CIVIL PROCEEDINGS VOL. 1 P 27 @ PARAGRAPH 21; OLANIYAN V SHOKUNBI (1997) 6 NWLR PT 509 P. 447 AT 453 RATIO 6. 3
Learned counsel further submitted that it is trite law that where a Plaintiff has filed his claims and there is no defence to the Plaintiff s claim the court s only alternative is to give judgment to the Plaintiff. See NWADIKE & ORS V IBEKWE & OR (1987) 2 NSCC P. 1219 AT RATIO 4. He therefore urged the court to enter judgment for the Plaintiff in view of the expiration of the Defendant s tenancy since august 2012, and the fact that the Defendant filed no defence to the suit. I have considered the evidence before me, that of the Plaintiff and the submissions of learned counsel. The Defendant filed no defence and did not cross examine PW1. Thus she left the evidence adduced by the Plaintiff uncontradicted and uncontroverted. The law is trite that evidence that is unchallenged or uncontroverted is deemed admitted and the court can act on it. See OMO V JSC (2000) 7 SC PART II 1 AT 15. BOSHALI V ALLIED COMMERCIAL EXPORTER LTD (1961) ALL NLR 917. Again, it is well settled that where a Defendant offers no evidence whatsoever in defence, the evidence before the trial court obviously goes one way, with no other set of facts or evidence on the opposite side weighing against it. There is nothing to put on the other side of the imaginary scale of justice or balance and, in that case, the onus of proof is naturally discharged on minimal proof. See SKYPOWER AIRWAYS LTD V OLIMA (2005) 18 NWLR (PT 957) 224, NWABUOKU V OTTIH (1961) 1 ALL NLR 487 AT 490. Exhibit P1 is the Tenancy Agreement signed by the Plaintiff and the Defendant. Therein it is expressly stated that the Defendant s tenancy is for a year certain 4
commencing from the 29 th day of August 2011 to the 28 th day of August 2012, at the rent of N550, 000. It is therefore clear from Exhibit P1 that the Defendant s tenancy came to an end by effluxion of time on 28 th August 2012. At the expiration of the term therefore, the Defendant was only entitled to Notice of owner s intention to apply to recover possession before the Plaintiff can proceed to sue for recovery of possession in accordance with S. 7 of the Recovery of Premises Act Cap. 544 LFN 1990. From Exhibit P3 the certificate of service of the bailiff, the said notice of owner s intention to recover possession Exhibit P2 was served on the Defendant on 30 th October 2012 at 8:59am. It states that the landlord shall on 8 th November 2012 apply to court to issue a warrant directing an appropriate person to enter and take possession of the said apartment and eject any person therefrom. It gives the Defendant notice of 7 clear days from 31 st October 2012 to 6 th November 2012. It was signed by Christian Ereaku, Estate Manager of the Plaintiff. Plaintiff s suit was filed on 19 th December 2012. Therefore the 7 days notice of owner s intention to apply to recover possession is valid. The Plaintiff has therefore done all that is required of him to obtain possession from the Defendant. I therefore enter judgment in the favour of the Plaintiff for the possession of Plot 668, flat 1, block G, Gwarimpa, Life Camp, Abuja. The Defendant is ordered to give up vacant possession to the Plaintiff on the 30 th November 2013. As the Defendant remained in possession after the expiration of her tenancy, the Plaintiff is entitled to mesene profit at the rate of the last rent she paid, being N550, 000-12 months =N45, 833.33 (and not N46, 000) per month from 29 th 5
August 2012 to 30 th November 2013 and continues so until possession is surrendered to the Plaintiff. The Plaintiff seeks an order to the Defendant to renovate the apartment or restore it to the state it was in before occupation. I have taken a close look at Exhibit P1 the tenancy agreement wherein the tenant covenanted with the landlord as follows: i. At the determination of the tenancy to renovate the Demised Premises and put in tenantable repair all fixtures, fittings and anything else on it that belongs to the landlord and yield up and surrender to the landlord the Demised Premises. Provided that where after thirty (30 days) of such determination such renovation or repair is not done by the Tenant, the Landlord shall do so and the Tenant shall refund the landlord without disputing the cost of such renovation or repair as shall be sent to him by the Landlord. j) Pursuant to (i) above, the Tenant shall pay the sum of Fifty Thousand Naira (N50, 000.00) only as security deposit. The said sum shall be forfeited at the vacation of the demised premises where and if the tenant fails to renovate the apartment within thirty (30 days) of his vacation of the demised premises. My understanding of the compound reading of these two clauses is that the tenant has an option to renovate within 30 days or forfeit her security deposit. Where the defendant fails to renovate the premise within 30 days of the determination of her tenancy, she shall forfeit the N50, 000 security deposit she shall have paid to the plaintiff upon her vacation of the premises Therefore it is my firm view the tenant has exercised her option not to renovate therefore the landlord is not entitled to any other order for renovation other than the N50, 000 security deposit paid (as expected she would have paid) by 6
agreement, in Exhibit P1 and if the Defendant did not pay same, the Plaintiff is hereby awarded the sum of N50, 000 for renovation of the premises. Nworah: We ask of costs of N5000. Plaintiff is entitled to costs of action which I access at N5, 0000 (Five Thousand Naira). This is the judgment of the court. Defendant: I will pay all I am owing in 2 weeks Nworah: I agree Court: Defendant is to pay the judgment sum on 15 th November 2013. Hon. Justice Chizoba N. Oji Hon. Judge 7