Chemiron International Limited V. Stabilini Visinoni Limited (2018)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The respondent as plaintiff filed the suit on 23/3/2005 claiming the following:-

1. An order directing the defendant to deliver up possession of the property situate at Plot 12, Block B, Ogba Industrial Estate, Ogba Lagos State comprising the following:

(a) 2 (two) warehouses measuring approximately 20,800 square feet.

(b) An office block with a (four) bedroom flat above.

2. The sum of N4,500,000.00 (Four million, five hundred thousand naira) being Mesne profit for the period of 1st January, 2003 to 31st December, 2004 at the rate of N2,250,000.00 (Two million, two hundred and fifty thousand naira) per annum.
3. Mesne profit at the rate of N187,500.00(one hundred and eighty seven thousand five hundred naira) per month from 1st January, 2005 until possession is delivered.
4. Interest on the sum of N4,500,000.00 (four million, five hundred thousand naira) at the rate of 21% per annum from 31st December 2004 until the entire sum is liquidated.
5. The sum of N122,765.02 (one hundred and twenty two thousand, seven hundred and sixty five naira two

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kobo) as interest payable on delayed payment on rent for the tenancy,

6. Interest on the sum of N122,765.02 (one hundred and twenty two thousand, seven hundred and sixty five naira two kobo) at the rate of 21% per annum from 22nd February, 2000 until the entire sum is liquidated.
7. Cost of action.

On the same 23rd March 2005 the Respondent filed its statement of claim, statement on oath by Adebayo Adetunji and eight exhibits.

On 4th January 2006, the Appellant filed its statement of defence, statement on oath by Murphy Ozor and Anthony Okonkwo and one exhibit.

This was the state of pleadings when the Respondent commenced trial in this suit on 6th Jury 2010 before Hon. Justice I. O. Kasali.

This appeal is against the judgment of the Court of Appeal Lagos Division or Court below or lower Court (coram: S. D. Bage JCA (as he then was), S. C. Oseji, T. B. Nimpar JJCA), which Court dismissed the appeal and affirmed the judgment of the High Court of Lagos per I. O. Kasali J.

BACKGROUND FACTS

The Respondent, being the owner of the property situate at Plot 12, Block B, Ogba Industrial Estate, Ogba, Lagos, Lagos

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State comprising of 2 (two) warehouses measuring approximately 20,800 square feet and an office block with a 4 (four) bedroom flat above, leased the aforementioned property to the appellant. By a writ of summons dated 8th April 1999, the Respondent instituted an action against the appellant in suit No. ID/875/99, for the recovery of the aforementioned premises. By mutual agreement of the parties, Terms of settlement was prepared and executed between the parties on 22nd April 1999 and same was made the judgment of the Honourable Court on 15th June 1999. It was a fundamental term of the Terms of settlement that the appellant shall vacate and deliver possession of the aforementioned property together with its appurtenances, to the respondent on or before 31st December 1999.

By a letter dated 5th October 1999 a bank draft for the sum of N3,375,000,00 (Three million, three hundred and seventy five thousand Naira) being 50% of the rent payable in respect of the three (3) years term granted, to be made on 29th December 1999 and a cheque for the balance of the rest post date to a date not later than forty five days from 29th December 1999. The tenancy was for a

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term certain of three (3) years to commence from 1st January 2000 and terminate on 31st December 2002.

The Appellant agreed to the terms stipulated in the aforementioned letter dated 28th December 1999. However, by a letter dated 29th December 1999, the appellant requested for an extension of the deadline for payment from 29th December 1999 to 7th January 2000. On 22nd February 2000, the Executive Director of JECON, the parent company of the appellant had a meeting with the solicitors to the respondent to discuss payment of the arrears of rent in respect to the subject property. At the meeting it was agreed that the appellant would pay the sum of N122,765.02 (One hundred and twenty two thousand, seven hundred and sixty five naira, two kobo) as interest on the delayed payment of rent. Consequent to this discussion, the respondent wrote a letter dated 30th March 2000 to relate the terms agreed upon at the meeting to the appellant. Till the date of the writ of summons the appellant had not paid the agreed sum of N122,765.02 (one hundred and twenty two thousand seven hundred and sixty five naira two kobo) which is the interest payable on delayed

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rent.

The tenancy was for a term certain and became determined by effluxion of time on 31st December 2002 but the appellant failed, refused and/or neglected to deliver possession of the subject property. The respondent consequently, caused it solicitors, Messrs Babalakin & Co. to issue a Notice to Quit to the Appellant dated 31st March 2004. Consequent upon the failures of the appellant to deliver up possession of the demised premises at the expiration of the tenancy, the Respondent caused its solicitors, Messrs Babalakin & Co., to issue and serve on the Appellant a Notice of Owners Intention to Apply to recover possession dated 4th January 2005.

The appellant filed its statement of Defence on 4th January 2006 along with statements on oath of its witnesses. The appellants case being that it was not served with the statutory notice i.e. Notice to Quit dated 31st March 2004 and Notice of Owner’s intention to recover possession dated 4th January 2005. The appellant admitted owing the respondent profit for the period of 2003 to date but that a grant of the reliefs sought by the respondent would bring hardship to the appellant’s

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business and it was expensive to relocate the business of the appellant if the reliefs were granted.

Further to the admissions in the appellant’s statement of Defence, the Respondent filed an application dated 22nd May 2006 for an order of Court entering judgment for the admitted paragraphs of the statement of defence.

The Honourable Court heard and granted the said application and delivered a ruling against the appellant as per paragraph 7 of the statement of Defence. (At page 30 of the Records of Appeal). The Court ordered the appellant to pay the sum of N4,5000,000.00 (four million five hundred thousand Naira) being Mesne profit for the period of 1st January 2003 to December 2004. Judgment was also given to the respondents for Mesne profit at the rate of N187,000.00 (One hundred and eighty seven thousand Naira) per month from 1st January 2004, until possession is delivered.

The respondent opened its case on 6th July 2010 and called only one witness, namely, Mr Adetunji Adebayo, the property manager of the Respondent company (hereinafter referred to as CW). CW in his evidence-in-chief as contained in his deposed witness statement on

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oath stated under oath that the Respondent being the owner of the subject property leased the same out to the appellant for a term certain of three years.

The term of the lease was from the 1st January 2000 to 31st December 2002 and at an annual rent of N2,250,000.00 (two million two hundred and fifty thousand naira.) CW also gave evidence that the lease being one that was for a term certain expired by effluxion of time on the 31st December 2002, however the appellant refused to deliver up possession as per the agreement in the lease. CW further stated that consequent upon the failure of the appellant to deliver up possession, the Respondent caused its counsel Messrs Babalakin & Co. to issue a Notice to Quit dated 31s March 2004 on the Appellant, a copy of the said Notice to Quit was tendered in evidence and marked Exhibit P4A.

The appellant still failed to give up possession of the said premises when the respondent further caused its counsel Messrs Babalakin & Co. to serve on the appellant a Notice of Owner’s Intention to Apply to Recover Possession.

A copy of the said Notice was admitted in evidence and marked Exhibit P4B. He

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stated that the Notice to recover possession lapsed on 11th January 2005 and the appellant had still failed to deliver up possession to the Respondent, hence the filing of the suit.

Under cross-examination, CW maintained that both Exhibits P4A and P4B were served on the appellant by the law firm of Babalakin & Co. acting under the instructions of the respondent. The respondent thereafter closed its case.

The appellant opened its case on 28th October 2010 and called to the witness box one Anthony Okonkwo, who gave evidence under oath that he was the production manager of the Appellant and that by virtue of his schedule of duties, he was familiar with the facts of the matter. He further stated that the appellant was a tenant of the respondent and said that he was aware of the lease agreement.

He admitted that the appellant was in deficit of arrears of Mesne Profit owed to the Respondent. He stated that the reason why the appellant has not delivered possession is that it would take long time and large amount of money to relocate the appellant’s business from the premises.

He further stated under oath that he has never seen a

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copy of the statement of claim nor the Statement of Defence. He maintained that the witness statement which he deposed to was prepared for him and he just merely signed it.

Judgment was delivered in High Court on 4th July 2012 in favour of the Respondent. Dissatisfied with the decision of the High Court, the appellant filed an appeal which was dismissed at the Court of Appeal on 30th April 2015 and the decision of the High Court was affirmed.

At the hearing on 23rd January 2018 learned counsel for the appellant, Isaac M. Boro Esq. adopted the brief of argument filed on 21st August 2015 in which were identified two issues for determination, viz:-

1. Whether the Court of Appeal was right to hold in its judgment that the appellant was served the seven days notice of owner’s intention to apply to recover possession of the disputed premises thereby conferring jurisdiction on the trial Court (Issue distilled from grounds 1, 2, and 3).
2. Whether the concurrent findings of fact by the trial Court and the lower Court to the effect that the appellant was served 7 days notice of owner’s intention to apply to recover possession of the

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disputed premises is borne out of the records and if not whether that has not resulted in miscarriage of justice to the appellant (Issue distilled from grounds 4 & 5).

O. Akoni SAN, learned counsel for the respondent adopted its brief of argument filed on 22/12/2015 and deemed filed on 1/11/17 though settled by Mobolaji Kuti Esq. In it is distilled a single issue, which is thus:-

Whether there is sufficient admissible evidence on record that the respondent issued and served statutory notice on the appellant.

Learned counsel for the appellant submitted that the records at the trial Court show that the appellant was not served statutory notices particularly the 7 days notice of owner’s intention to recover possession and so the concurrent findings of fact of the two Courts below are perverse and have to be set aside. That if this Court holds that the appellant was not served the 7 days notice of owners intention to recover possession as it is wont to do, it becomes clear that at the time that trial Court entered judgment against the appellant, it had no jurisdiction to do so. That this Court should set aside the judgment of

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the lower Court and enter judgment in favour of the appellant pursuant to Section 22 of the Supreme Court, Act 2004 and Order 8 Rule 12 (1) (2) of the Supreme Court Rules.

He cited in aid the following cases:-

Sule v Nigerian Cotton Board (1985) 1 All NLR 291; Iheanacho v Uzochukwu (1997) 2 NWLR (Pt.457) 269; Ayinke Stores Ltd v Adebogun (2008) 10 NWLR (Pt.1096) 612; Pan Asian African Co v NICON (1982) All NLR 229; African Petroleum Ltd v Owodunni (1991) 8 NWLR (Pt.210) 391; Kate Enterprises Ltd v Daewoo (1985) 2 NWLR (Pt.5) 116; Saleh v B.O.N. Ltd (2006) 6 NWLR (Pt.976) 316.

Learned counsel for the respondent contended that it is trite that where an appellant as in this case does not formulate an issue in his brief of argument to cover a ground of appeal, that ground will be deemed abandoned and so would apply to grounds 4 and 5 of the grounds of appeal. He cited Araka v Ejeagwu (2000) 15 NWLR (Pt.692) 684 at 699.

Learned Senior Counsel submitted further that the respondent being a body corporate carries out its affairs and responsibilities through its agents and servants and the service also carried out by appointed

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agents of the respondents Messrs Babalakin & Co and so the facts as shown in evidence clearly display that service was done according to law. He cited Anyaebosi v R. T. Briscoe Nig. Ltd (1987) 2 NWLR (Pt.59) 84; Kate Enterprises Ltd v Daewoo Nigeria (supra) etc. That this Court should presume that the respondent had followed the natural course of business as it relates to service of statutory notice. He relied on Section 149 (c) of the Evidence Act 1945 (now Section 167 (c) of the Evidence Act 2011.

He stated on that the law is clear that there are various ways of proving service of a document on a person. He cited Agbaje v Fashola (2008) 6 NWLR (Pt.10820) 90 at 142; Nlewedim v Uduma (1995) 6 NWLR (Pt.402) 383.

O. Akoni SAN submitted further that the burden of proof in civil cases is not static and shifts from one party to another and the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. That, it being so the appellant failed to discharge the

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burden placed on him that it was not served with the Notices. He cited SPDC (Nig.) Ltd v. Emehuru (2007) 5 NWLR (Pt.1027) 347 at 372; Itauma v AkpeIme (2000) 12 NWLR (Pt.680) 156; Ihekoronye v Hart (2000) 15 NWLR (pt.692) 840.

That appellant in its Statement of Defence admitting owing mesne profits and mesne profit is only payable where a tenancy has expired and this admission lends weight to the case of the respondent as it removed the obligation on the respondent to serve as Notice to Quit. He relied on Agbamu v Ofili (2004) 5 NWLR (Pt.867) 540 at 570; Odutola v Paper Sack (Nig.) Ltd (2006) 18 NWLR (pt.1012) 470; Ekwegh v Ike (2005) All FWLR (Pt.260) 158; Madukolu v. Nkemdilim (1962) 1 All NLER 587.

Indeed there is no disputing the submission of the respondent that Grounds 4 and 5 of the Grounds of Appeal are abandoned, no issues really having been drawn from those grounds curiously the Grounds 4 and 5 with the particulars are thus:-

GROUND 4:

The Court of Appeal erred in law when it held as follows:-

“Furthermore, it is not the law that counsel must tender his letter of authorization to prove instruction

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to handle a matter in any Court which includes landlord and tenant matters.

GROUND 5:

The Court of Appeal misdirected itself on the law and the facts as follows:-

In distilling issue NO.2, the appellant crafted thus:

2. Whether the concurrent findings of fact by the trial Court and the lower Court to the effect that the appellant was served 7 days notice of owners intention to apply to recover possession of the disputed premises is borne out of the records and if not whether that has not resulted in miscarriage of justice to the appellant (Issue distilled from grounds 4 & 5).

The situation portrays in effect an abandonment of the said grounds 4 and 5 and the issue 2 did not emanate or draw from the said grounds of appeal. Therefore the issue 2 is not covered by any ground of appeal, the said grounds 4 and 5 are taken as abandoned and the said issue 2 would naturally suffer a similar fate since the issue stands on its own without the appeal’s founding ground and so struck out. I am relying on the case of Araka v Ejeagwu (2000) 15 NWLR (pt.692) 684 at 699 per Katsina-Alu JSC (as he then was).

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It is evident that the sole issue of the respondent is the appropriate one to be utilised for our purpose taking along the only surviving issue of the appellant.

The gravamen of this appeal is anchored on the appellant’s argument that Exhibit P4B (seven day’s notice of owners intention to recover possession) was not served on the appellant which appellant asserted was not served on it. From the record, appellant did not object to the admissibility of Exhibits P4A and P4B which are Notices to Quit and owner’s intention to recover possession respectively, From the evidence Exhibit P4A was received by one Abraham Damola, a staff of the appellant on the 31st March 2003 while Exhibit P4B was also received by one Okoro in the employment of the appellant on 4th January 2005. Those facts were rendered by the sole witness of the respondent in Court and not contradicted under cross-examination. Also of note is that the appellant did not give evidence at the trial on the service or non-service of the statutory notices and not lead evidence denying that the persons who acknowledged the notices were not employed by appellant.

Of note also is that the tenancy of

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the appellant was for a certain term of three (3) years and by virtue of Section 7 of the Recovery of Premises Law CAP. 118, Laws of Lagos State 1973 there was no necessity to serve a notice to Quit before initiating a recovery of premises action when the tenancy as in the case at hand is for a term that is certain. For effect, I shall quote the said Section 7 thus:-

Section 7 of the Recovery of Premises Law CAP 118, Laws of Lagos State 1973 (“the RPL) provides that:-

When and as soon as the term or interest of the tenant of any premises determines or has been duly determined by a written notice to quit as in Form B, C, or D, in Schedule 1 to this Law such tenant or if such tenant does not actually occupy the premises or only a part thereof is actually occupied, neglects or refuses to quit and deliver up possession of the premises or any part thereof, the landlord of the said premises or his agent may cause the person or neglecting or refusing to quit and deliver up possession to be served with a written notice as in Form E signed by the landlord or his agent of the landlord’s intention to proceed to recover possession on a date not

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less than seven days from the date of service of the notice.

From the said provision all the respondent needed provide was service of seven days to the appellant and that was done. That position was affirmed by this Court in the case of Iheanacho v Uzochukwu (1997) 2 NWLR (Pt.487) 269-270.

Again quite difficult to get used to is the posture of the appellant that CW was not the person who served the statutory notices on the appellant but a lawyer in the Law firm of Babalakin & Co and so he was not the proper person to testify on those notices and that the respondent ought to have called a witness from Babalakin & Co. That argument is really hard to take as the respondent being a body corporate carries out its affairs and responsibilities through its agents and servants who are human persons. This was restated by this Court per Coker- JSC in Kate Enterprises Ltd v Daewoo Nigeria Ltd (1985) 2 NWLR (Pt5) 116.

In that regard nothing stopped a body corporate as the respondent to get the functions carried out by a legal firm acting on its behalf which firm would in turn utilise whatever human agent it so wished. In doing so

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the requirement of the law is met. Also as a follow up is that any servant or agent of the company or the legal firm acting for the company would meet the requirement of testifying as to that service carried out by the company or firm. It is not necessary that it is only that person who carried out the function on behalf of the company that must testify. Not at all, as any official of the company well equipped with the transaction and or related documents would suffice to testify. See Anyaebosi v RT Briscoe Nig. Ltd (1987) 2 NWLR (Pt.59) 84; Kate Enterprises Ltd v Daewoo Nigeria (supra).

What I am grappling to put across is well captured in the case of the Supreme Court, Saleh v B. O. N. Ltd (2006) NWLR (Pt.976) 316 at 326 – 327 thus:

“A company is a juristic person and can only act through its agents or servants. Consequently, any agent or servant can give evidence to establish any transaction entered into by a juristic personality. Even where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company. Such evidence is nonetheless relevant and admissible and will not be discountenanced or rejected as hearsay evidence….” (Underlining mine)

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That principle was adopted in Comet S. A. Nigeria Ltd v Babbit Nig Ltd (2001) 7 NWLR (pt.712) pg.442, 452 para. B, per Galadima JCA (as he then was) held that:

“Companies have no flesh and blood. Their existence is a mere legal abstraction. They must therefore, of necessity, act through their directors, managers and officials. Any official of a company well placed to have personal knowledge of any particular transaction in which a company is engaged can give evidence of such transaction.”

From the evidence proffered and the backing legal principles this Court is safe to presume that the respondent had followed the natural course of doing business as it relates to service of statutory notices in keeping with the provision of Section. 149 (c) of the Evidence Law Act 1945 now replaced by Section 167 (c) of the Evidence Act 2011 and it provides as follows:-

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to

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the fact of the particular case, and in particular the Court may presume-

(c) that the common course of business has been followed in particular case.

Salami JCA upheld the various ways of proving service in the case of Agbaje v Fashola (2008) 6 NWLR (Pt.1082) 90 at 142.

“Where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such person can be established by: (a) dispatch book indicating receipt; or (b) evidence of dispatch by registered post; or (c) evidence of witness, credible enough that the person was served with the document.

See also Nlewedim v Uduma (1995) 6 NWLR (Pt.402) 383.

I would want to go back to the assertion of the appellant of the improper or non service of the Statutory Notices by stating that the law is now trite as backed by Section 131 of the Evidence Act 2011 that he who asserts must prove. In fact I shall quote the provision thus:-

SECTION 131-

“Whoever desires any Court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts

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exist.”

That provision is supported by the fact that the burden of proof in civil cases is not static as it shifts from one party to another. Firstly the burden of proving the existence or nonexistence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may come up from the pleadings. Therefore if the party adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom the judgment would be given if no more evidence were adduced and so on successively until all the issues in the pleadings have been dealt with. Having stated the principles as it is on burden of proof and situating them to the case at hand with the attendant facts where the respondent had discharged its burden showing that it effected the services and what should follow would be the rebuttal by the appellant and this has not come. That is, the appellant did not give any evidence at the trial on the service or non- service of the statutory notice nor deny that those persons who

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allegedly acknowledged the service of statutory Notices as their employees were not so employed by appellant. Interesting in appellant’s statement of Defence paragraph 7 is averred thus:-

“The Defendant admits owing the mesne profit for the period 1st January 2003 till date, not because it does not want to pay but because the claimant has refused to accept same.”

From the above, clearly the appellant has not carried out his burden of proof when it shifted to him. See SPDC (Nig) Ltd v Emehuru (2007) 5 NWLR (pt.1027) 347 at 372; Itauma v Akpe-Ime (2000)12 NWLR (pt.680) 156, Ihekoronye v Hart (2000) 15 NWLR (Pt.692) 840. The relevant Section 133 of the Evidence Act would be helpful here thus:-

Section 133 of the Evidence Act 2011, provides that:

“In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court

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that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively, until all the issues in the pleadings have been dealt with.

Getting back to the mesne profit which the appellant admitted in its pleading paragraph 7 and by that admission, the respondent needed do nothing else in proof therefore. The implication is as captured by my learned brother Augie JCA (as he then was) in Agbamu v Ofili (2004) 5 NWLR (pt.867) 540 at 570 thus:

“Mesne profits are therefore the profit accruing from the date the defendant ceases to hold the premises as a tenant to the date he gives up possession.”

The implication of introducing the admission of mesne profit in the statement of Defence is that the appellant recognised that the tenancy had been validly terminated by effluxion of time and acknowledged that it was well reminded of that fact even through the appellant chose to hold over. Indeed what comes across is that weak assertion or struggle to impugn the legitimacy of those who effected the service in a way to continue to hold on to

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what legally the appellant has no ground to stay on. See Odutola v Paper Sack (Nig) Ltd (2006) 18 NWLR (Pt.1012) 470; Ekwegh v Ike (2005) ALL FWLR (Pt.260) 158.

I accept the contention of the respondent that the appellant’s submission that the Court lacked jurisdiction is erroneous in law as Exhibits P4A and P4B were duly issued and served. The respondent had met the fundamental components which determine the competence of the Court on which it can exercise jurisdiction as stated in the locus classicus of Madukolu v Nkemdilim (1962) 1 ALL NLR 587 per Bairamian FJ as follows:-

“put briefly, a Court is competent when:

(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;

(2) The 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; and

(3) The case comes before the Court initiated by the due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.”

The trial Court’s jurisdiction being founded on

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fact that the Court is properly constituted, the subject matter within the competence of the Court and the condition precedent which in this instance is the seven days notice of owner’s intention to recover possession having been fulfilled, nothing barred the Court from proceeding as it did to entertain the suit and determine it. I rely on Ayinke Stores Ltd v Adebogun (2008) 10 NWLR Pages 631.

From what is before the Court, there is nothing on which departure from the concurrent findings of fact of the two Courts below could be hung. In keeping with the policy of this Court which has become trite, the Supreme Court will not disturb concurrent findings of the two lower Court unless it is shown that such findings were perverse or that there was a substantial error either in the substantive or procedural law, which if not corrected will lead to a miscarriage of justice.

See Ben v State (2006) 7 SC (Pt.11) 133 at 138.

In the case at hand there is no basis to interfere or upset those concurrent findings and I have no option than to uphold them.

This appeal lacks merit and I dismiss it as I affirm the judgment of the Court of Appeal

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in its affirmation of the decision and orders of the trial High Court.

I award the sum of N500,000.00 costs to the respondent to be paid by the appellant.

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SC.545/2015