A. Abdussalalm, Esq. for 2nd-4th Respondents.For RespondentREGISTERED TRUSTEES OF THE LIVING CHRIST MISSION & ORS v. DR. OSITA ADUBA & ANOR (2016)
LawGlobal-Hub Lead Judgment Report
This is an appeal against the judgment of the High Court of Anambra State delivered on 19-11-2012 by His Lordship Vin Agbata J in consolidated suits No 0/390/92 and 0/92/2012.
The respondents who were defendants in the consolidated suits were the first to sue the appellants at Onitsha Magistrate Court in suit No MO/660/92, which suit was transferred to the Anambra State High Court at Onitsha and renumbered as suit No O/92/12. The respondents claimed for-
1. Arrears of rent from the 1st day of June 1991 to the 31st day of May 1992 at the rate of #2,400.00
2. Mesne profits from the 1st day of June 1992 to the 31st day of May 2002 at the rate of #60,000.00 per annum; and #96,000.00 per annum from the 1st day of June, 2002 until possession is given.
3. Possession of the said premises which situate at No. 42 Mba Road Onitsha
4. #100,000.00 being general damages for loss of use of the family house and premises situate at No 42 Mba Road, Onitsha.
The appellants who were plaintiffs in the consolidated suits took out suit No 0/390/92 as a cross action
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claiming for-
1. Declaration of Court that the plaintiffs being special tenants, in the premises the subject matter of litigation in this suit, is entitled to continue to remain in the possession of same.
2. The sum of #3,200,000.00 being special damages against the defendants, that is to say, the cost of the structures which would be equivalent in size to the one the plaintiffs has erected in the premises in dispute.
3. Injunction restraining the defendants, particularly the 1st defendant, from further interference with the plaintiffs occupation and enjoyment of the building in the said premises, No. 42 Mba Road, Onitsha.
Following conclusion of evidence by both sides and after each party had adopted their written final address, the trial Court on 19-11-2012 rendered judgment dismissing the appellants claim and granting the respondents counter claim. This verdict is contained in the concluding part of the judgment thusly- I am, therefore, of the most humble opinion that there is no merit in the claims of the plaintiffs in suit No 0/390/92. The suit is, therefore, hereby dismissed. On the other hand, the
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claims of the defendants, as the plaintiffs in suit No MO/660/92 which was later renumbered 0//92/12, are hereby sustained. The plaintiffs in the consolidated suit shall therefore, pay to the defendants in the consolidated suits the sum of #60,000.00 per annum being mesne profits which is assessed from the 1st day of June 1992 to 31st day of May 2002, and at the rate of #96,000.00 per annum from the 1st day of June 2002 until possession is given up. The plaintiffs in the consolidated suits are, also, hereby ordered to give up immediately, in favour of the defendants in the consolidated suits, the entire premises including the three bedroom flat in the main building and the bungalow of two rooms together with the appurtenances thereto situate at and otherwise known as No 42 Mba road, Onitsha. No order as to costs.
Dissatisfied with this judgment the appellants, on 20-11-2012 commenced this appeal No CA/E/109/2013 by filing a notice of appeal containing 5 grounds for the appeal.
Both sides have filed, exchanged and adopted their respective briefs.
The appellants brief raised the following issues for determination-
ISSUE ONE
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ARISING FROM GROUND ONE
Whether the learned trial judge was right to hold that no special type of tenancy existed between the 1st plaintiff/appellant and late Mr. Osita Aduba with respect to the 2 room bungalow (boys quarter) which they built with the consent of the Osita Aduba other than yearly tenancy based on the mode of payment.
ISSUES TWO ARISING FROM GROUND TWO
Whether the plaintiffs/appellants demand for compensation of the two room boys quarters they built in the premises of late Osita Aduba with his permission is proper and supported by law and commonsense.
ISSUE THREE ARISING FROM GROUND THREE
Whether the learned trial judge was right when he dismissed the entire claims of the plaintiffs/appellants in suit No. 0/390/92 when there is ample evidence led by the plaintiffs/appellants in proof of their case and same were not shaken by the defendants/respondents.
ISSUE FOUR ARISING FROM GROUND FOUR
Whether the learned trial judge was right when he found that the plaintiffs/appellants were duly served with the statutory notices for the recovery of premises.
ISSUE FIVE ARISING FROM GROUND FIVE
Whether the
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judgment delivered by the learned trial judge was against the weight of evidence?
The respondents raised one issue for determination as follows- Whether the Learned trial Judge was right in holding that there was no merit in the claims of the plaintiffs in Suit No. 0/390/92 and dismissed same.
I will determine this appeal on the basis of the issues raised for determination in the appellants brief.
I will now consider and determine issue no. 1.
The undisputed facts of this case are that Late Mr. Osita Aduba, the father of the 1st respondent and husband of the 2nd respondent, was the owner of the property at No 42 Mba Road, Onitsha, which up to 1985 consisted of a one storey building and adjoining land fenced round and from 1985 included a two rooms boys quarter with kitchen and conveniences. The appellants were rent paying tenants of Late Mr Osita Aduba in the one storey building. During their said tenancy in the one storey building they approached their landlord and sought his permission to build the said two rooms boys quarter for their own use as they were in need of more accommodation. The landlord permitted them to build the two
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rooms boys quarter and occupy same free of rents. The appellants contend that a special type of tenancy existed between the 1st appellant and late Mr Osita Aduba under which the appellants occupied the one storey building as rent paying yearly tenants were entitled to occupy the two room boys quarter rent free for as long as they wished.
The trial Court held in respect of this contention that Consequently, I find it very difficult to appreciate the suggestion by counsel that a special kind of tenancy existed between the 1st plaintiff and the late Osita Aduba Exhibit P2 cannot, by any stretch of the imagination, be construed to mean that a special kind of tenancy existed between them. I am of the most humble opinion, on the basis of the evidence before me, that no special type of tenancy existed between the 1st plaintiff and the late Mr Osita Aduba. Following from the mode of payment of their rents, on yearly basis, the 1st plaintiff was simply a yearly tenant of the deceased.
Learned counsel for the appellants argued against this part of the judgment under issue No 1 of their brief that the trial Court was wrong to have held
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that a special kind of tenancy did not exist between the late Mr. Osita Aduba and the appellants, that the trial court was in grave error in that it misinterpreted exhibit P2 to mean that the appellants were yearly tenants in the two rooms boys quarter (bungalow) they built in the premises with the consent of the owner of the premises and were occupying rent free with the consent of the said owner. Learned counsel further submitted that the special tenancy relationship between them in respect of the 2 bed rooms bungalow was created not by exhibit P2 or the mode of payment of rent but by the fact that the appellants who were yearly tenants of late Mr. Osita Aduba in the one storey building, were permitted by him to build the 2 bedroom bungalow and occupy same rent free as long as they wished.
The view of Learned Counsel for the appellants that the trial Court misinterpreted exhibit P2 to mean that the appellants were yearly tenants regarding the two room bungalow is not supported by the express and clear terms of the part of the judgment of the trial Court reproduced herein. The trial Court held that Exhibit P2 cannot by any stretch of imagination,
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be construed to mean that a special kind of tenancy existed between them.
I do not think that there is any need for this hair splitting over whether a special tenancy relationship existed between the appellants and late Mr. Osita Aduba. It is glaring from Paragraphs 5 9 of the further further amended statement of claim that the appellants described the totality of the transactions which include their yearly tenancy in the main building, their building and occupation rent free of the two bed room boys quarter or bungalow with the permission of late Mr. Osita Aduba and the permission granted them to carry out any repairs in No 45 Mba Road as having created a special kind of tenancy. The admitted or undisputed facts of this case show clearly that the yearly tenancy between the appellants and their landlord, late Mr Osita was limited to the main building. The appellants were not yearly tenants of their landlord in respect of the two bedroom bungalow which he permitted them to occupy without paying rents for as long as they wished. They were his tenants at will in the two bedrooms bungalow by virtue of S. 58 of the Landlord and Tenant Act Cap
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76 Vol 5 Revised Laws of Anambra State of Nigeria 1991 which provides that A tenancy at will shall be deemed to be created where the owner of property gives possession of it to another person and such possession is expressed to be determinable at the pleasure of either or both of the parties whether or not any rent is agreed to be payable. S. 56 of the same 76 defines a tenant at will as a person who is in lawful possession of another persons property and whose possession of such property is determinable at the pleasure of either party. The interest which such a possessor has in that property is called a tenancy at will.
The tenancy at will terminated on 20th November 1987, the date their landlord late Mr Osita Aduba died. This is so by virtue of S. 61(a) of the Landlord and Tenant Law Cap 76 which provides that A tenancy at will shall terminate in any of the following circumstance
(a) where the Landlord or the tenant dies.
So as at 2nd October 1992, when the suit leading to this appeal was commenced at the trial Court, the appellants had no tenancy relationship with the late Mr. Osita Aduba or
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his successors. That is why the 1st respondents served appellants exhibit D10 dated 10-10-1989 to vacate the premises. The appellants in exhibit D5, D6, D7 and D8 admitted receiving exhibit D10.
In the light of the foregoing issue No 1 is resolved in favour of the respondents.
Let me now consider issue No 2 in the appellants brief which asks- Whether the plaintiffs/appellants demand for compensation of the two room boys quarters they built in the premises of late Osita Aduba with his permission is proper and supported by law and commonsense
Learned counsel for the appellants argued that since the two rooms bungalow were built with the consent of the landlord, the appellants were entitled to compensation from their Landlord for the said building at the termination of their tenancy by virtue of S. 154 and S. 155 of the Landlord and Tenant Law Cap 76 vol 5 Revised Laws of Anambra State 1991. Learned Counsel for respondents argued that the trial Court rightly dismissed the appellants claim for compensation because they did not prove same.
It is not in dispute that the appellants built the two rooms bungalow
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with the consent of their landlord, that the building was meant to enhance the appellants use and greater enjoyment of No 42 Mba Road and that the building is in a permanent form. It is also not in dispute that the appellants occupied the two room building rent free with the consent of the Landlord from 1986. As I had held herein, the tenancy became terminated by operation of law on 20th November 1987 with the death of their landlord. Even after the termination of the tenancy they have continued to occupy the said two rooms bungalow till date and have continued to resist the demands of the landlords heirs or successors (respondents) that they quit and deliver possession and insist that they would only quit on the condition that the respondents compensate them for the costs of the said two room bungalow.
I agree with the submission of Learned Counsel for the appellants that they were entitled to compensation for the costs of building the two room bungalow.
The trial Court held that- The plaintiff occupied the said bungalow of two rooms free of rents since 1986 up to the present moment. They have, therefore been sufficiently
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compensated with respect therefore.
There is no ground of this appeal complaining against this specific holding of the trial Court 1 that the appellants had been sufficiently compensated for the building by their occupying same rent free from 1986 till date. The omnibus ground 5 that the judgment is against the weight of evidence cannot qualify as a ground of appeal against the specific holding of the trial Court on a specific issue since it is not a complain against the specific holding or finding. The Supreme Court in Akinlagun & Ors v. Oshonoja & Anor (2006)5 SC (pt 11) 100 held that an omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See also Eyinnaya v. The State (2014) LPELR 2292 (CA) in which this Court followed the above cited Supreme Court decision. By not appealing against this holding, the appellants have accepted it as correct, valid and binding upon them. It is trite law that any finding, holding or decision of a Court
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against which there is no appeal or challenge by any lawful legal process, is deemed accepted by the parties to the case as correct, valid and binding upon them. See Iyoho v.Effiong (2007)4 SC (pt 111) 90, SPDC Nig Ltd & Anor v. M. Federal Ltd & Anor (2006)7 SC (pt 11)27, Biariko v. Edeh Ogwuile (2001)4 SC (pt 11) 96 and Amale v. Sokoto Local Government & Ors (2012) LPELR 7842 (SC).
Having accepted as correct the trial Courts holding that they had been sufficiently compensated for the costs of building the two bedrooms bungalow, issue No 2 in the appellants brief becomes incompetent and unarguable. It is a well settled rule of law that a party in an appeal will not be heard to argue contrary to a finding or holding against which he has not appealed. See Awote & Ors v. Owodunm & Anor (1987)5 SC 1 and SPDC Ltd & Ors v. UBN Ltd (2001)7 SC (pt 11) 146.
The jurisdiction of an appellate Court in an appeal is limited to the issues for determination deriving or arising from any of the grounds for the appeal. So it has no jurisdiction to consider an issue concerning a finding, holding or decision of the lower Court against
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which there is no appeal. See Onafowokan & Ors v. Wema Bank PLC & Ors (2011) LPELR 2665 (SC) in which the Supreme Court held that It is trite that the finding and Order of lower Court not appealed against remain valid and subsisting, and without a ground of appeal challenging the finding and Order of the lower Court this Court would lack the jurisdiction to interfere with the said findings or Order.
In the light of the foregoing, I hold that issue No 2 in the appellants brief and the arguments thereunder are incompetent. Accordingly they are hereby struck out.
Let me now consider issues No. 3 and 5 together.
Issue 3 asks- Whether the learned trial judge was right when he dismissed the entire claims of the plaintiffs/appellants in suit No. 0/390/92 when there is ample evidence led by the plaintiffs/appellants in proof of their case and same were not shaken by the defendants/respondents.
Issue 5 asks- Whether the judgment delivered by the learned trial judge was against the weight of evidence?
The appellants case in their pleadings and evidence is that with the consent of
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their landlord, late Mr Osita Aduba, they built a two bed room boys quarter (bungalow), they added one room to the existing two bed rooms on each floor of the main building, increased the height of the compound fence, installed iron protectors round the fence and installed iron gates, that the consent which was oral was confirmed in writing by a letter dated 10th November 1987 and that the appellants paid for all the costs for these improvements on the buildings and premises on No 42 Mba Road under an oral agreement that they should occupy what they built without paying extra rent and without fear of ejection.
The letter of 10-11-1987, which the appellants said confirmed the oral agreement and which they tendered and was admitted as exhibit 2 reads thusly- I enclose herewith the receipt for the rent paid; which by paying on the 1st of November 1987 overlapped by a month and therefore rectified itself by extending the coverage to 31st December 1988. This means that the next rent becomes due on the 1st of January 1989. Now I shall touch on very important point to sweep away the title by our Confused friend on moving from the fine
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accommodation which you provided for him and his wife. The land belongs absolutely to me. I bought it and fully paid for it. I got my friend and lawyer Mr. C.N.A. Okafor to prepare the conveyance dated 12th July 1954. It was registered in Enugu on 9th September 1954 and the deed was signed by the then Director of surveys Enugu Mr. J.H. Keats on the 1st of November, 1954. The building referred to above I know belong to the living Christ Mission and as you are the head it logically belongs to you. As far as I am concerned you can do whatever you like with it at anytime inside the compound and nobody has any right to come inside the compound to challenge you. It is not mine and I have been brought up not to claim or covet what is not mine. You and I have been drawn to each other by the magnet of our strong belief in the fatherhood of God and by our deeds and our relationship, I am sure we have accepted the corollary to that belief which is the brotherhood of man. Your house remains yours as long as I live. As a matter of fact I sincerely request you to be in charge of the whole compound whether I am there or not, and my constant prayer is the God in His mercy
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shall guide and guard us all.
The appellants stated in Paragraphs 9 and 12 of their further amended statement of claim thusly-
9. The plaintiffs aver that the tenancy created by virtue of all the averments in paragraphs 5, 6, 7 above was a special tenancy agreement created between the late Pastor Osita Aduba (Landlord) and the Living Christ Mission (tenants authorized not only to occupy and pay rent in respect of landlords flat but also to built their own structures on the land and occupy same without paying any rent to the landlord therefore).
12. The plaintiffs made it clear to the 1st defendant that the plaintiffs and the late landlord, Pastor Osita Aduba did not envisage the plaintiffs quitting the premises at the instance of the late landlord. Nevertheless the plaintiffs told the defendants that if the defendants would reimburse the plaintiffs what it would cost them to have a replacement of the extra structures erected on the premises, the plaintiffs would pack out.
It was on the basis of their case as briefly stated above that the appellants asserted that they were entitled to remain in possession of the two bed
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rooms bungalow and the main building or the entire premises at No 42 Mba Road until they are compensated for the costs of all the improvements made by them. Their suit No 0/390/92 and the reliefs claimed for was in response to the several efforts including a suit by the respondents to eject them from No 42 Mba Road without agreeing to pay them the said compensation and or first paying the said compensation.
On the other hand, the respondents case in their pleading and evidence is that they admit that the appellants with the consent of late Mr Osita Aduba built the two bedroom bungalow, that late Mr Osita Aduba permitted them to occupy the two bed room bungalow rent free, that the appellants occupied the main building as yearly tenants of late Mr Osita Aduba paying rents therefor annually, that the addition of one bed room on each floor of the main building was carried out by late Mr. Osita Aduba who fully paid for same, that the appellants were not responsible for the costs of the improvement in the main building, that the appellant have not paid rents for their occupation of the main building since 1991, that the respondents are not owing the
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appellants any money or compensation, that the authority given to the appellants to remain on the premises or carry out anything thereon elapsed on 20-11-1987, that the appellants paid rents to the 1st respondent up to 1991 and that the 1st plaintiff terminated the permission given to the appellants by his father, that the appellants after the death of Mr Osita Aduba, without the consent of the respondents raised the wall fence and a huge gate to prevent the respondents having any form of access to the premises and that the appellants refused to quit and deliver up possession of the entire No 42 Mba Road inspite of several efforts and demands from the respondents that they relinquish possession of the said premises. The respondents had to file suit No MO/660/92 renumbered 0/92/2012 against the appellants claiming the reliefs already reproduced herein at page 2 of this judgment.
So both sides joined issues on who paid for the costs of the improvement of the main building, whether the late Mr. Osita Aduba permitted them to raise the wall fence of the compound, put the iron railings on them and erect a huge gate, whether the appellants were entitled to
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remain in possession of No 42 Mba Road forever or until they are compensated for the costs of any improvement on the premises made by them, whether the appellants were in arrears of rent for the main building since 1991 and whether the appellants had been fully compensated for the costs of all the improvements they carried out with the consent of late Mr. Osita Aduba.
With respect to who paid for the costs of improvements in the main building, the trial Court specifically found as a fact that- The plaintiffs, also, lied to the Court when they claimed to have remodeled the main building in the premises at their own expense. Exhibits D13, D14, D15 and D16 showed, clearly, that the late Osita Aduba employed the services of the 3rd plaintiff, who was a building contractor for the reconstruction of the building, and that the late Osita Aduba paid in full for the services rendered.
There is no ground of this appeal complaining against this specific finding of fact that late Mr. Osita Aduba paid for the reconstruction of the main building. By not appealing against this finding, the appellants accepted it as correct, valid and binding upon
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them. See Iyoho v. Effiong (supra) SPDC Nig Ltd & Anor v. X.M. Federal Ltd & Anor (supra) and Amale v. Sokooto Local Government & Ors (supra).
As I held herein the omnibus ground of appeal that the argument is against the weight of evidence cannot qualify as an appeal against the specific finding of fact. See Akinlagun v. Oshomoja & Anor (supra). The appellants who have accepted as correct and valid the trial Courts finding that late Mr Osita Aduba carried out the improvements in the main building and fully paid for same cannot in the appeal argue to the contrary. Therefore the argument of Learned counsel for the appellant that there is no gain saying the fact that the massive and extensive improvements made on the premises in question were actually made by the plaintiffs/appellants by their own expenses by the authorized written consent of their landlord, late Mr Osita Aduba is with respect to the improvements on the main building incompetent and invalid. It is settled law that in an appeal, a party cannot argue contrary to any finding or decision against which he has not appealed. See Awote & Ors v. Owodunni
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& Anor (supra) and SPDC Ltd & Ors v. UBN Ltd (supra).
There is also the issue of the claim for the costs of improvements on the fence and the building of a huge gate by the appellants in the said premises in No 42 Mba Road. The respondents admit that the appellants carried out improvements of the fence and the building of the huge gate and fully paid for same. But they disputed their liability to compensate the appellants for the costs of improving the fence and building the huge gate because the improvements were carried out by the appellants after the death of Mr Osita Aduba when they no longer had any authority to carry out any improvements on No 42 Mba Road. This disputation is contained in paragraphs 18 and 19 of the amended statement of defence thusly-
18 The plaintiffs subsequently, dramatically changed the features of the property by raising the wall fence, installing without consent a huge gate, posthumously and preventing the 1st defendant and his aunt for ever going into 42 Mba Road, Onitsha, even to view it. The 1st defendant and her aunt Marcy Aduba were arrested and prosecuted at the Magistrates Court, Onitsha as a way
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to intimidate them and to put a check from viewing the said compound or having access to the 1st defendants chattels in his fathers compound and first floor apartment. Defendants solicitors letter to the police will be relied upon and other letters also.
19. The defendants received the letter dated 19th March, 1991, but did not receive that dated 20th January 1992. the defendants are not owing the plaintiffs any money and the plaintiff are not entitled to any money hence the authority given to them by the defendants late father had elapsed, on 20th November 1987. The plaintiffs needed another authority from the defendants to do any thing further to the building. The defendants had terminated the authority given to the plaintiffs by late Osita Aduba. The L.C.M. had no authority from Dr. Osita Aduba to undertake any work since Mr. Osita Aduba died. They paid the annual rent to him from 1989 to 1991. The duplicates of the receipts will be relied on.
The appellants did not deny these averments that the improvements on the fence and the building of the gate were done after the death of Mr. Osita Aduba and that following
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his death the appellants no longer had the authority to do any other improvement on the premises. These are new facts which amount to confession and avoidance. If the appellants were desirous of denying the said facts, they should have filed a reply averring to facts denying them. These are allegations of facts that are material to the success or failure of the appellants’ claim for compensation for the costs of increasing the height of the fence, putting the railings thereon and building the huge gate. Where a statement of defence in answer to an averment in the statement of claim, avers to facts that raise new material issues or facts that amount to confession and avoidance as in this case, if the plaintiff does not admit those facts, and wants to deny them, he can only do so by way of filing a reply pleading containing contrary facts. If the plaintiff does not file a reply pleading, he would be deemed by law to have admitted the new material facts in the statement of defence. See Unity Bank PLC v. Bouari (2008)2 – 3 SC (Pt 11)1, Egesimbe v. Onuzurike (2002)9-10 SC 1 and Obot v. CBN (1993) LPELR-2192 (SC).
By not filing a reply pleading denying
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that the said improvements on the fence and building of the gate were done after the death of late Mr. Osita Aduba and that thereafter the appellants had no authority to carry out such improvements, the appellants admitted the facts as true. Order 15 Rule 5(1) of the High Court (Civil Procedure) Rules 2006 provided that-Every allegation of fact in any pleadings if not specifically denied in the pleadings of the opposite party shall be taken as admitted except as against a person under legal disability.
Having admitted that the said improvements were done after the death of late Mr. Osita Aduba, it means that the improvements were done after the termination of the tenancy at will and therefore when the tenant can no longer claim to have the permission of the landlord to carry out further improvements on the property.
In any case, by virtue of S. 154 of the Landlord and Tenant Law, the tenants right to receive compensation from his landlord in respect of unexhausted improvements made by the tenant on the premises can only accrue to the tenant on quitting his holding of the property. The said S. 154 provides that- Where a
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tenant executes on his holding any improvement he shall be entitled, subject to the provisions of Section 15, at the termination of the tenancy, on quitting his holding, to receive compensation from his landlord in respect of any such improvement which continues of any such improvement which continues unexhausted.
Learned Counsel for the appellants has argued that exhibit p2 (also tendered and admitted as exhibit D12) clearly contains the written authority of the Landlord permitting the appellants to carry out all the improvements on the said premises. The trial Court held concerning the con in which and the purpose for which exhibit P2 was written thusly -Having carefully studied the contents of Exhibit P2, it seems to me that in the course of the tenancy relationship between the late Mr. Osita Aduba and the head of the 1st plaintiff Church, the late Mr. Osita Aduba developed a very strong friendly disposition towards him. His love for the man became so strong that some unnamed persons became jealous about it and thus to interfere. It seems to me that one of the pastors or some other persons whom the 1st plaintiff had accommodated in
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the bungalow which they erected in the premises had made some moves which were inimical to the interests of the 1st plaintiff Clearly, this did not go down well with the late Mr. Osita Aduba. Whatever the said unnamed person did or said made the 1st plaintiff very uncomfortable. It therefore became necessary for the late Osita Aduba to write to the 1st plaintiff so as to clear the air with respect to the aforesaid tattle, particularly, as concerning the said bungalow of the 1st plaintiffs.
He, therefore, wrote as follows:- Now I shall touch on very important point to sweep away the tattle by our confused friend on moving from the fine accommodation which you provided for him and his wife You house remains yours as long as I live. It is equally important to note that before the late Mr. Osita Aduba talked about the tattle by their confused friend, in Exhibit P2, he first discussed the more important question of the rents for the premises and the mode for the payment thereof. Accordingly, he wrote as follows- I enclose herewith the receipt for the rent paid which by paying on the 1st of November 1987 overlapped by
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a month and therefore rectified by extending the coverage to 31st November 1988. This means that the next rent becomes due on the 1st of January 1989. Consequently, I find it very difficult to appreciate the suggestion by counsel that a special kind of tenancy existed between the 1st plaintiff and the late Osita Aduba Exhibit P2 cannot by any stretch of the imagination, be construed to mean that a special kind of tenancy existed between them. I am of the humble opinion, on the basis of the evidence before me, that no special type of tenancy existed between the 1st plaintiff and the late Mr. Osita Aduba. Following from the mode of payment of their rents on yearly basis, the1st plaintiff was simply a yearly tenant of the deceased.
There is no ground of this appeal against this part of the judgment of the trial Court. The appellants by not appealing against it, have accepted it as correct, valid and binding upon it.
The said exhibit P2, apart from restating that the 1st appellant remained the caretaker of the premises and no one else did not expressly permit the 1st appellant to carry out any improvements on the premises. In any case,
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whatever relationship it created between the 1st appellant and late Mr. Osita Aduba and whatever permission or authority the 1st appellant had by virtue of exhibit P2 ended with the death of Mr Osita Aduba.
It is obvious from the pleadings and evidence of both sides that the respondents as heirs and successors to the intestate estate of late Mr. Osita Aduba did not permit the appellants to carry out any improvements in the premises including the improvement of the fence and the building of the gate after the death of Mr. Osita Aduba. What this means is that the appellants carried out the improvements of the fence and the building of the gate without the permission of the respondents who now own the premises. Therefore they are not entitled to be compensated for the costs of such improvements and so cannot claim a right to remain in possession of the premises until they are compensated for improvements carried out without the written permission of the owner of the premises. This disentitlement of the tenant to claim compensation for improvements he carried out on the premises without the written consent of the landlord is prescribed in S. 155 of the
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Landlord and Tenant Law (supra) thusly- A tenant shall not be entitled to compensation in respect of any improvement, unless he has executed it with the previous consent in writing of the Landlord.
Considering that the appellants have been sufficiently compensated for the costs of the 2 bedrooms bungalow, that late Mr. Osita Aduba paid for the improvements in the main buildings, that the appellants were not entitled to compensation for the costs of improvements on the fence and the building of the gate because they were carried out without the written permission of the landlord and that the appellants could not receive compensation for any improvement as they had not quit their occupation of the premises, the trial Court rightly held their claim lacked merit and rightly dismissed same.
In the light of the foregoing I hold that issues Nos 3 and 5 are resolved in favour of the respondents.
Let me determine issue No 4 in the appellants brief which asks- Whether the learned trial judge was right when he found that the plaintiffs/appellants were duly served with the statutory notices for the recovery of premises.<br< p=””>
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The part of the judgment of the trial Court complained against under this issue, reads thusly- The issuance and service of exhibits D1 and D2 on the plaintiffs was not in doubt. This is because it immediately gave rise to the exchange of correspondence between the parties. By means of the correspondences, the plaintiffs insisted that they would continue to hold to the premises unless and until their afore stated demands were met. There is therefore no doubt, in my mind that the plaintiffs were duly served with the said statutory notices for the recovery of the premises.
Learned counsel for the appellants argued that the trial Court erred in law when it held that the appellants were duly served with the statutory notices for the recovery of premises, that there is no evidence of the date and how the service of the notices were effected, that exchange of correspondences is not prima facie proof of service of statutory notice, that since there is no evidence of the date and how the service of the notices was effected, the Court lacked the jurisdiction to entertain the suit as service of the statutory notice to quit is a pre-condition
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for initiation of an action for recovery of possession. For these submissions he relied on African Petroleum Ltd v. Owoduni (no citation supplied) and Madukolu & Ors v. Nkemdilim (1962)1 All NLR (pt 562).
Learned counsel for the respondents has argued in reply that the appellants were served with the statutory notice to quit including the owners intention to recover possession (admitted in evidence as exhibits D1 and D2), that to prove the said service, the respondents relied on correspondences exchanged between them and the appellants as a result of the service of the statutory notices on the appellants, that the appellant in those correspondents acknowledged receipt of the said statutory notices.
It is obvious that the notice to quit (exhibit D1) and notice of intention to recover possession (exhibit D2) were filed in the Magistrates Court and therefore can be served by the bailiffs of that Court. Learned counsel for the appellants has correctly stated that there is no bailiffs affidavit of service or proof of service of the said notices. The trial Court acknowledge the absence of the bailiffs affidavit of service of such notices on the
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appellants, when it rather relied on the contents of certain correspondences exchanged between the appellants and the respondents as evidence or proof the service of those notices on the appellants. As rightly pointed out by learned counsel for the appellants, the trial Court did not refer to any particular correspondence that shows proof of such service. It merely referred to correspondences without more. The trial Court should have referred to the contents of particular correspondences that prove such service to show the factual basis for its finding that the correspondences exchanged by the parties after the issuance of the notices show that the appellants were served with the notices.
Learned Counsel for the respondents has referred to exhibits D10 and D17 as the correspondences that show that exhibits D1 and D2 were served on the appellants. I have carefully read the said exhibits D10 and D17. Exhibit D10 is dated 10th October 1989 and was written by the respondent to the 4th appellant asking them to please arrange to vacate the property by March 31, 1991. Exhibit D17 was written by the 2nd respondent to the 4th appellant requesting
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that they comply with the instruction of the 1st respondent that they vacate the premises. Contrary to the finding of the trial Court that the correspondences arose after the issuance of exhibits D1 and D2, exhibit D1, the first and primary notice to vacate the premises was dated 10-10-1989 while exhibit D1 is dated 12th November 1991 and exhibit D2 is dated 4th June 1992. Exhibit D6, captioned Re-Notice to vacate No 42 Mba Road before or on 31st December, 1991 and dated 19-3-1991 was written by 4th appellant to the 1st respondent. Exhibit D7, also captioned Re-vacation of 42 Mba Road and settlement of Expenditure incurred, and dated 7-5-1991 was written by 2nd, 3rd and 4th appellants. These correspondents which admit receipt by the appellants of the 1st respondents notice that they vacate the premises were made before exhibits D1 and D2 were made on 12-11-1991 and 4-6-1992 respectively and so could not have been made in reaction to the service on the appellants of exhibits D1 and D2. So the finding of the trial Court that these correspondences prove the service of exhibits D1`and D2 on the appellants is not correct. However
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the said correspondences prove that the 1st respondents served the appellants notice to quit the premises since 10th October 1989 and the appellants in exhibit D6, D7 and D8 acknowledged receipt of such notice. So the process of ejecting the appellants had started by the service on them of exhibit D10 dated 10-10-1989 long before the issuance of exhibits D1 and D2.
Learned Counsel for the appellant has correctly stated the law that proof of service of the statutory 7 days notice of the landlords intention to proceed to recover possession on a date not less then 7 days from the date of service of the notice prescribed in S. 147 of the Landlord and Tenant Law (supra) is a condition precedent to a valid commencement of an action for recovery of possession of premises and a valid exercise of jurisdiction to entertain same. Exhibit D10 demanding that the appellants arrange to vacate the property by 31-3-1991 satisfied the minimum requirement of a 7 days notice prescribed by S. 147 of the Landlord and Tenant Law. (supra). Even though it is not in the form prescribed therein, it satisfies in substance the requirement of that provision. There is admission
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in exhibits D5, D6, D7 and D8 that the appellants received the said notice.
In view of exhibit D1 and the admission by the appellants of receipt of same in exhibits D5, D6, D7 and D8, the lack of proof of service of exhibits D1 and D2 is of no moment here because S. 62(1) of the Landlord and Tenant Law (supra) provides that The landlord may demand possession of property held by a tenant at will any time he pleases, and such demand may be Oral or in writing, and may be given through a third party provided the tenant has notice of it and Subjection (3) of the same S. 62 of the Act provides that A tenant at will shall not be entitled to reasonable or any periods of notice to quit, nor shall he be obliged to give a reasonable intention to quit.
In the light of the foregoing I resolve issue No 4 in favour of the respondents.
On the whole this appeal fails as it lacks merit. It is accordingly dismissed. The judgment of the High Court of Anambra State, Aguata Judicial Division sitting at Ekwulobia in suit No O/390/92 delivered on 19th November, 2012 per Vin Agbata J is hereby upheld and affirmed.
The appellants shall
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pay costs of N100,000.00 to the respondents.
Other Citations: (2016)LCN/8804(CA)
