Ayinke Stores Ltd V. Mr. S.A. Ola Adebogun (2008)
LawGlobal-Hub Lead Judgment Report
CHIDI NWAOMA UWA, J.C.A.
The Respondent as Plaintiff at Ibadan High Court claimed the following reliefs as endorsed in his writ of summons:
“(a) Possession of the 4 shops situate at 33 Abeokuta Road Ijebu Ode which the defendant (holds) as a yearly tenant of the plaintiff;
(b) The sum of N30,000:00 being arrears of rent for September, 2001 to June, 2002;
(C) Mesne profit at the rate of N3;000:00 per month from July, 2002 until possession is delivered;
(d) The sum of N60,000:00 being damages for breach of the tenancy agreement and
(e) Cost of this action.”
The defendant entered a conditional appearance, filed a statement of defence and counter-claimed. The counterclaim was later withdrawn and struck out on 21/2/05.
From the records, hearing in the trial court commenced on the 5th day of February, 2004 and ended on 21/2/05 with the close of the plaintiff’s case.
The defence did not call evidence but rested its case on that of the plaintiff’s.
The learned counsel for the appellant (the defendant) addressed the court on 12th day of May, 2005 in the absence of the parties while the Respondent’s counsel addressed the court, on 9th of June, 2005 judgment was reserved for Tuesday 19th July, 2005 it was not delivered until 21st October, 2005 when judgment was delivered in favour of the Defendant/Respondent.
The learned trial judge struck out the claim for possession which had been settled and withdrawn, granted arrears of rent in the sum of N3,000:00 per month from July 2002, to August 2004, general damages of N5,000:00 and costs of N5,000:00 to the plaintiff.
The Defendant/Appellant contend that because of several adjournments by the court registrar without any justifiable excuse as to the whereabouts of the learned trial judge, the appellant and counsel were not aware of the date the judgment was delivered and that hearing Notice was not issued after the long absence from court by the trial judge. Further that judgment was delivered after the mandatory statutory three (3) months period for delivery of judgment.
The Defendant/Appellant was not satisfied with the judgment of the court below and filed a Notice of Appeal which prayed for the following reliefs:-
(i) The Appellant prays the court to allow the Appeal, set aside the judgment of the court below on grounds of unconstitutionality, lack of jurisdiction, fair hearing and evaluation of evidence or
(ii) To remit the case back to the court below for retrial before another judge where this court is not minded to set aside the judgment of the court below in the present Appeal.
From the four grounds of appeal three issues were distilled for determination. They are:
(i) “Whether the judgment of the court below delivered outside the constitutional and statutory period of 3 months and characterized by glaring indices of memory lapses which has occasioned substantial miscarriage of justice is valid or liable to be set aside.
(ii) Whether in the circumstances of this case the court below properly assumed jurisdiction, evaluated the evidence and or granted fair hearing to the Appellant’s case.
(iii) Whether it would not amount to double compensation in possession matter to award arrears of rent, mesne profit and general damages all at the same time,”
The respondent did not file any brief of argument and this court made an order on 5/2/07 that the appeal be heard on the appellant’s brief alone.
In respect of the first issue, the learned counsel for the appellant in his brief of argument submitted that the resolution of this issue depends on the interpretation and deductions given to Section 294 (1) of the 1999 Constitution, the reasons if any given by the trial judge for delivering the judgment outside the statutory three months period, the character of the oral and documentary evidence adduced and evaluation thereto, also the pleadings and proceedings of the court. The learned counsel argued that the learned trial judge’s inability to cope with its schedule of work should not be visited on the appellant for whatever reason that led to the delivery of the judgment outside the three months period. He conceded that by virtue of section 294 (5) of the 1999 Constitution and the authorities of The Registered Trustees & Anor V.E.O. Adeosun & Anr (1986) 3 NWLR Part 30 page 561 and Gufwat VS. State (1994) 2 NWLR part 327 p. 435 pages 450 and 451. paragraphs H, A-G, a judgment delivered outside the statutory period is not invalid, null and void where reasons are given for the delay.
By virtue of Section 294 (5) above where a party complaining of such non-compliance has suffered a miscarriage of justice by reasons thereof and or shows that the judgment was characterized by glaring indices of memory lapses of the facts of the case and position of the Law, such judgment becomes void, invalid and liable to be set aside. He argued further that the judgment was characterized by glaring indices of memory lapses on the part of the learned trial judge which occasioned a miscarriage of justice, the learned counsel summarized these in paragraph 3.4 (i) – (xiii) of his brief of argument.
He urged us to set aside the judgment of the trial court and if not, to consider issues two and three.
Section 294 (1) of the constitution provides:
“(1) Every court established under the constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. ”
But subsection (5) of the same section provides: section 294 (5)
“(5) The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
No doubt from the records, the judgment in the trial court was delivered outside the three months period within which the decision of the court ought to have been delivered after final addresses. However, section 294 (1) above should not be read, interpreted and applied in isolation. It should be read with Section 294 (5) in mind. By the latter provision the decision of the court is not to be set aside or treated as a nullity on the ground of non-compliance with subsection (1) above.
“Solely on the ground of non-compliance with the provisions of the section.”
See Ifezue v. Mbadugha & Anor (1984) 5 S.C. 79 and the case of Registered Trustees v. Adeosun (supra)
From the summary in paragraph 3.4 (i) – (xiii) of the appellant’s Brief of Argument in which it was alleged that the judgment of the trial court was: “characterized by glaring indices of memory lapse” nowhere was it evident of any memory lapses by the learned trial judge, nothing was pinpointed by the learned counsel to prove such lapses if at all.
It was alleged also that by the judgment being delivered outside the statutory period “occasioned substantial miscarriage of justice.”
There is nothing on record to show that the appellant suffered a miscarriage of justice by reason of the non-compliance which would result in the decision being set aside or treated as a nullity by this court. I am of the opinion that the delivery of the judgment one (1) month, twelve (12) days after the three (3) months statutory period did not occasion a miscarriage of justice to the appellant and I so hold.
On the other hand, the first issue as formulated by the learned appellant’s counsel which bordered on section 294 (1) of the 1999 Constitution did not arise from the judgment of the trial court against which the appellant has appealed.
The purpose of an appeal is to look into grievances arising from the judgment, the issue of the delivery of the judgment by the trial judge outside the statutory period of three months was not raised in the trial court and no decision was taken on it. It is now a fresh issue. A matter not raised and decided by the trial court may not ordinarily be raised on appeal for the first time without leave unless it is of fundamental importance such as the issue of jurisdiction. Jurisdictional issues touch on the competence of adjudication and is one of the few exceptions where fresh issues may be raised without leave. In the present case, the first issue does not fall under the exception. No leave was sought and obtained by the appellant to raise the unconstitutionality of the delivery of the judgment outside three months. See Owners, M/V Gongola Hope V.S.C. Nig. Ltd (2007) 15 NWLR. 189 and Eze v. A.G. Rivers State (2001) 18 NWLR (pt 746) 524.
In the circumstance the first issue which covered the first ground of appeal is incompetent and is hereby struck out.
In respect of issue two, the learned appellant’s counsel in his brief of argument submitted that whether the court below properly assumed jurisdiction, evaluated the evidence and or granted fair hearing to the appellant depended on answers he posed in questions raised in paragraphs 4.1 (a) – (g) of his Brief of Argument.
4.1 (a) – (g) reads:
“(a) At what stage is jurisdiction conferred on the court. Is it at the point of instituting the action or after or during the proceedings of the case or put in another way what determines jurisdiction.
(b) What is the subject matter at the point of instituting this action or put in another way what are the requirements in Landlord and tenant relationship before the court can assume jurisdiction.
(c) From the state of pleadings and evidence before the court was the appellant served with all the requite statutory Notices.
(d) Was the respondent’s solicitors authorized in writing as required by Law before exhibits C and D were purportedly issued.
(e) Can given up possession in August 2004 confer jurisdiction on the court as at 20th August 2002 when this suit was instituted.
(f) Did the learned trial judge properly evaluated the evidence before the court below.
(g) Does the appellant’s counsel have the right of reply on point of Law after the Respondent’s counsel has finished addressing the court.”
He argued that jurisdiction is either conferred by statute or determined by the subject matter of the cases at the commencement of the action. In the present ease, being action for possession, arrears of rent and mesne profit which requires mandatorily by law Statutory Notices i.e. Quit Notice and seven (7) days Notice as well as letter of authority to issue same these should be in place before the court could assume jurisdiction in possession matter. On failure of the landlord to serve valid statutory Notice of Intention to recover premises on the tenant he relied on the case of Eleja vs Bangudu (1994) 3 NWLR part 334 page 534.
He argued that no seven (7) days notice of owner’s intention to apply to court was issued and served on the appellant and no letter of authority in writing authorising respondent’s solicitors to issue Exhibit ‘C’ and ‘D’.
Further that Exhibit ‘D’ is not valid to determine a yearly tenant, being a one month notice, issued on 17th May, 2002 and to determine the tenancy on 30th June, 2002. That as at the time of instituting the action for possession on 20th August, 2002 the tenancy of the appellant had not been determined in accordance with the law. Learned counsel argued that the respondent was in breach of paragraph 5 of Exhibit ‘B’ (on page 74 of the records) vide Exhibit ‘F’ page 78 of the records) by increasing the rent before the expiration of four years, and that without any tenancy agreement or evidence led to that effect, the learned trial judge held that the appellant was in breach of the tenancy agreement. Finally, that the trial court ab intio lacked jurisdiction to entertain the matter, and the learned trial judge did not properly evaluate the evidence before the court. He urged this court to hold that from the evidence before the trial court, the learned trial judge wrongly assumed jurisdiction without the service of the mandatory statutory notices, including a valid Quit Notice and seven (7) days of owner’s intention to apply to court before any court could assume jurisdiction.
There is no doubt that the respondent’s case as plaintiff in the trial court was for recovery of possession, followed by arrears of rent, mesne profit and damages. The latter reliefs sought are hinged on the first for possession. There existed between the parties a landlord/tenant relationship. It is clear from the pleadings and evidence on record that the appellant’s rent was payable annually. The appellant was a yearly tenant. This fact is not disputed.
Paragraph 19 (a) of the plaintiff’s Amended Statement Of Claim reads:
“Whereof the plaintiff claims as follows:
(a) Possession of the 4 shops situate at 33 Abeokuta road, Ijebu Ode which the defendant holds as a yearly tenant of the plaintiff.”
The PW1 under cross examination at page 61 of the printed record also agreed that the defendant is a yearly tenant, when he stated thus:
”I agree that the defendant is a yearly tenant.”
Also on page 71 of the record in the learned plaintiff’s counsel’s acknowledgement of this fact in his address when he submitted that:
“The plaintiff give (sic) evidence that the Defendant is a yearly tenant and also tendered Exhibit ‘D’ – Quit Notice”
It is well established and acknowledged by the plaintiff/respondent that the defendant/appellant was a yearly tenant.
It is therefore my humble view in that the appellant was a statutory yearly tenant who is entitled to half a year’s notice. See Cobra Ltd v. Omole Estate & Inv. Ltd (2000) 5 NWLR (pt. 655) 1 at 12.
Even though the appellant gave up possession in August 2004 during the pendency of this matter, there is need to look at the date this action was instituted, 20/8/2002 against the appellant for recovery of possession, whether the respondent’s claim was properly before the trial court.
In the Supreme Court case of Sule v. Nigeria Cotton Board (1985) 2 NWLR (pt 5) page 17, It was decided that in cases of recovery of possession such as this, the service of the Notice of Intention to recover premises on the tenant is a condition precedent to the exercise of jurisdiction. In the absence of a valid quit notice under the law, the claim of the respondent as plaintiff for the recovery of possession would not be considered to have been properly constituted.
Exhibits C and 0 were supposedly Quit Notices said to have been issued and served on the appellant. An action for recovery of premises has to strictly comply with the procedure as provided in the Recovery of Premises Law.
Firstly, the landlord has to prove that he gave authority to counsel to act on his behalf. In the present case there is nothing on record to show that such authority was given by the respondent as plaintiff to his solicitor, in writing as required by law before Exhibits ‘C’ and ‘D’ were issued.
Secondly, the Statutory Notices must be issued to determine the tenancy, in this case six months’ notice, since I have earlier held that the appellant was a yearly tenant. See Cobra Ltd v. Omole Estate & Inv. Ltd. (2000) 5 NWLR (pt.655) 1 at 12.
A look at Exhibits ‘C’ and ‘D’ titled “Notice to Quit” respectively, written and issued by Biyi Odugbesan Esq of Adebiyi Odugbesan & Co the Solicitors to the respondent, there is nothing to show therein or anywhere else on record that Exhibits ‘C’ and ‘D’ were issue and served on the appellants on the authority (in writing) of the respondent. These Exhibits having been issued without the requisite authority are invalid and of no effect.
Thirdly, the tenant ought to be served the landlord’s notice of intention to apply to court for possession. See Sule v. Nigeria Cotton Board (supra)
In the present case such Notice of the landlord’s intention to recover possession was not served on the appellant. Any procedure outside the one provided for the recovery of premises is fatal. See Pan Asian Ltd. v. N.I.C.O.N. ltd (1982) 13 NSCC 293, also Cedar v. M.G.A. Plc (2001) 18 WRN 144 at 161.
In Iheanacho v. Uzochukwu (1997) 2 NWLR (pt 487) 257 at 269 270 per Iguh JSC laid down the procedure for recovery of premises. A landlord desiring to recover possession of premises let to his tenant must first determine the tenancy, by service on the defendant of an appropriate notice to quit on the determination of the tenancy, the tenant should be served with the statutory 7 days notice of his intention to apply to the court to recover possession of the premises. Thereafter, the action could be filed in court.
In the present case, the well laid out procedure for recovery of premises was not followed before the action was instituted on 22/8/02.
It is clear from the pleadings and evidence before the trial court as rightly argued by the learned appellant’s counsel that as at the date the action was instituted the appellant was a yearly tenant and required six months notice to quit. Assuming Exhibit ‘C’ was a valid notice, the issuance of Exhibit ‘D’ cancels Exhibit ‘C’. Exhibit D is a one month’s Notice, any way one looks at it the appellant was not issued with a valid and/or appropriate notice, therefore his tenancy was not determined. As at 22/8/02 the tenancy of the appellant had not been determined in line with the provisions of the law, the giving up of possession by the appellant in August 2004 does not correct the anomaly.
There was no written authority by the landlord to the solicitor before issuing the purported notices. There was no seven days notice of owner’s intention to recover possession served on the appellant, which is a condition precedent to the exercise of jurisdiction by the trial court.
It is the law that for a court to assume jurisdiction, the following requirement must be satisfied:
a. That the court is properly constituted as regards number and qualification of members of the bench and no member is disqualified for one reason or another.
b. That subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.
c. The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See Madukolu v. Nkemdilim (1962) 2 SCNLR P. 341. A.G., Anambra State v. A-G, Federation (1993) 6 NWLR (pt.302) page 692. Any decision taken by a court without jurisdiction would be an exercise in futility no matter how well reasoned and decided. The case must be Initiated by due process and must fulfill any condition precedent for the court to exercise its jurisdiction. See also Oloriode v. Oyebi (1984) 1 SCNLR 390, Saleh v. Monguno (2003) 1 NWLR (Pt.801) page 221 and Amadasun v. Ume (2007) (part 1051) 13 NWLR p. 214. The trial court had no jurisdiction to go into hearing the matter, the case not having been properly instituted by due process of law as required in recovery of possession matters.
Part of Issue two touched on evaluation of evidence by the trial court and lack of fair hearing as the appellant’s counsel alleged he could not exercise his right of reply on point of law after the defendant/respondent’s counsel addressed the court.
Having held that the trial court had no jurisdiction to entertain the matter it would be an exercise in futility for this court to look into evaluation of evidence and lack of fair hearing or otherwise by the trial court also raised in the second issue.
Issue three is in respect of award of arrears of rent, mesne profit and general damages, these are hinged on the second issue. Having held that the trial court had no jurisdiction to entertain the action in the first place not having been properly instituted, there would be no need to go into this issue. It is therefore unnecessary to consider the submissions made by learned counsel in issue three and the resolution thereafter.
In sum, the service of valid quit notices is a precondition for the recovery of possession, as said earlier the claim of the respondent was not brought by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction in reliance on the case of Madukolu v. Nkemdilim (supra) and Sule v. Nig. Cotton Board (supra) in cases of recovery of possession, the service of the notice of intention to recover premises on the tenant Is a condition precedent to the exercise of jurisdiction.
In absence of such service of valid quit notice under the law, the claim of the respondent was not properly instituted therefore the respondent’s claim should have been struck out. Ekpere v. Aforiji (1972) 3 SC 113.
I hold that the appeal has merit, accordingly the appeal succeeds and it is hereby allowed. The judgment of the trial judge of 21st October, 2005 entering judgment in favour of the respondent is hereby set aside, instead, a judgment striking out the respondent’s claim is hereby substituted.
The Appellant is awarded costs of N20,000:00.
Other Citations: (2008)LCN/2640(CA)
