Cobra Limited & Ors. V. Omole Estates and Investment Ltd.(2000)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
This is an appeal against the judgment of the Lagos High Court delivered on 22nd day of April, 1994. The respondent was the Plaintiff in Suit No. LD/2951/92 before the Lagos High Court, where it claimed against the Appellant as the Defendant the following:
“1. Possession of the one Duplex situate at No. 10B Lalupon Close, S. W. Ikoyi, Lagos State.
- N125,000 (One Hundred and Twenty-Five Thousand Naira) being arrears of rent from the 10th day of December, 1990, to the 9th day of December, 1991.
- N83,332.88 (Eighty-Three Thousand, Three Hundred and Thirty-Two Naira, Eighty-Eight Kobo) for use and occupation of the premises for eight months from the 10th day of December, 1991 to the 9th day of August, 1992.
- Mense profits at the rate of N10,416.61 (Ten Thousand, Four Hundred and Sixteen Naira, Sixty Kobo) per month being at the pro-rata monthly rate of the otherwise annual rent of the said premises from the 10th day of August, 1992 until possession is given..”
Pleadings were filed exchanged and issues joined. Trial proceeded with Mr. Adebanjo Adeniyi, the only witness and Estate Officer of the Respondent testifying. The Appellant’s only witness, Francis Onyema-Ifie, a Director, gave evidence. Counsel concluded their address on 23/3/94. The learned trial Judge in a reserved judgment entered judgment for the Respondent on 22/4/94. Dissatisfied with the said Judgment the Appellant filed three Grounds of Appeal in this court from which the following three issues were formulated for determination viz:
“(A) Whether the Learned Trial Judge was justified in granting an order for possession.
(b) Whether the Learned Trial Judge was correct in holding that the rent for the period 10/12/90 – 9/12/91 was N125,000 and not N50,000 as contended by the Appellant.
(c) Whether the Learned Trial Judge was correct in awarding N83,332.88 for use and occupation of the premises for 8 months from 10/12/91- 9/8/92 till possession is given up…”
Also dissatisfied with the process of execution of the said Judgment by the Respondent the Inter pleader claimants filed two grounds of appeal and distilled there from a single issue for determination as follows:
“(A) Whether the Lower Court gave the appellant an opportunity of a FAIR HEARING by dismissing their claims on 13/12/94.”
The Respondent filed two briefs of argument, on the same day, that is, on 9/11/99 in response to the Defendant/Appellant’s brief and another in response to the Inter pleader Claimant’s/Appellant’s brief. Issues formulated in the two briefs were adopted by the Respondents in its Briefs. Briefs were adopted by respective parties at the hearing of this appeal.
The peculiar nature of this Appeal requires my consideration of the main appeal first. Thereafter the Inter Pleader Claimants Appeal would be appropriately be treated. For the complaint of the Inter Pleader Claimants, is that their goods were wrongfully seized in execution of the judgment when the lower court failed to follow the procedure in Inter Pleader proceedings and thereby denied the claimants their Constitutional Right to a fair hearing.
The three issue particularly (a) and (b) raised in the main appeal by the Appellant dovetail into each other. They will be taken and treated together. Issue (c) dealing with the award of mesne profits will be treated separately.
The relevant facts pleaded by the Plaintiff may be summarised thus:
(1) The Plaintiff now the Respondent is a limited liability company with its principal place of business at Okesa/Benin Road, Ilesha, Osun State.
(2) The Defendant now the Appellant is a Limited Liability company with its principal place of business at No. 33, Hawley Street, Lagos, Lagos State.
(3) The plaintiff is the owner of the one Duplex, lying and being at No. 10B, Lalupon close, S. W. Ikoyi.
(4) The defendant is a yearly tenant in respect of the plaintiff’s property situate at No. 10B, Lalupon Close, S. W. Ikoyi and the said property was let to the defendant at the annual rent of N125,000.00 with effect from 10th day of December, of every year.
(5) Sometime in October, 1990, the plaintiff held a meeting with the defendant. At the meeting, it was agreed that at the expiration of the defendant’s tenancy on the 9th day of December, 1990, the defendant shall vacate and deliver up possession of the property known as No. 10B, Lalupon close, S. W. Ikoyi as the plaintiff is desirous of occupying same.
(6) On the 3rd day of June, 1991 the plaintiff instructed its solicitor Mr. Olumuyiwa Aduroja to give the defendant all the necessary statutory notices to vacate and deliver up possession of the property known as No. 10B, Lalupon close, S.W. Ikoyi in default of which an action be instituted against the defendant; the defendant shall at the trial of this suit rely on the said letter of instructions in further proof of its case.
(7) The plaintiff through its solicitor gave the defendant notice dated 24th June, 1991, to quit the premises; photocopy of the said notice is hereby attached with the writ of summons.
(8) When the defendant refused to vacate the premises as requested by the notice mentioned in paragraph 7 above the plaintiff’s solicitor gave to the defendant notice dated 8th January, 1992, of the plaintiffs’ intention to recover possession of the premises by delivering the notice to the defendant personally, photocopy of the said notice is hereby attached.
(9) The tenancy has been determined by notice to quit by the plaintiff’s solicitor on the 24 day of June, 1991 and the notice of owner’s intention to recover possession dated 8th January, 1992, also delivered to the defendant personally.
(10) Notwithstanding the said notices mentioned herein the defendant has failed, refused or neglected to deliver up possession of the said premises and still detains the same.
(11) The amount now outstanding against the defendant is N208,332.88 (Two Hundred and Eight Thousand, Three Hundred and Thirty-Two Naira, Eighty-Eight Kobo), being arrears of rent and for use and occupation.
(12) The plaintiff avers that it needs the property for its own personal use.
The defendant filed statement of defence. The relevant parts of the statement of defence may be summarised thus:
(1) The defendant denies each and every allegation of facts contained in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 of the statement of claim and puts the plaintiff to the strict proof thereof.
(2) The defendant admits each and every allegation of facts contained in paragraphs 1, 2, 3, of the statement of claim.
(3) With further reference to paragraphs 4, 5, 6 of the statement of claim the defendant avers as follows:
(a) The defendant is a yearly tenant in respect of the plaintiff’s property situate at No. 10B, Lalupon close S.W. Ikoyi, (hereinafter referred to as the “Demised Premises”).
(b) The agreed Annual Rent on the demised premises was N50.000 (Fifty Thousand Naira) per annum as evidenced by a letter Ref. BA/32/5 dated 17/5/90 written by M/S. Banjo Adeniyi & Company the plaintiff’s solicitors stating inter alia, that the rent due on the demised premises was N50,000 per annum effective from 10/12/89 to expire on 9/12/90.
(c) By a letter dated 9/12/88 the defendant paid to the above mentioned M/S Banjo Adeniyi & Company the sum of N25,500 being renewal of rent less 15% withholding tax on the demised premises for the period 10/12/88 to 9/12/89.
(d) By a letter dated 14/12/90 Ref: BA/32/5 the above mentioned M/S Banjo Adeniyi & company returned the defendant’s cheque for N50,000 which was meant to cover the rent for 10/12/90 up to and including 9/12/91.
The defendant hereby pleads its letter dated 12/10/90 by which the said cheque for N50,000 was forwarded to M/S Banjo Adeniyi & Company aforesaid.
(4) With further reference to paragraphs 7, 8, 9, 10 of the statement of claim the defendant avers as follows:
(a) The defendant shall contend at the trial of this action that the plaintiff herein did not issue or serve any valid Notice according to law.
(b) The defendant’s yearly Tenancy was not at any time material to this suit lawfully determined or at all.
(c) By a letter dated 23/1/91 M/S Banjo Adeniyi, purported to terminate the defendant’s Tenancy afore-mentioned. The defendant received concurrent Notice to Quit from two different solicitors acting for the plaintiff at different times.
(5) With further reference to paragraphs 11, 12, 13 of the statement of claim the defendant avers as follows:
(a) The defendant denies owing the sum of N208,332.88K as arrears of rent and for use and occupation as therein alleged. The agreed rent is N50,000 per annum.
(b) The plaintiff is desirous of increasing rent on the demised premises arbitrarily and does not require the demised premises for its own personal use as alleged or at all. The defendant did not agree to any arbitrary increase in rent beyond the N50,000 aforesaid.
At the trial the respondent’s only witness testified on its behalf in conformity with its statement of claim while a number of documents were admitted as Exhibits. Similarly, the appellant’s only witness testified on its behalf tendering a number of documents as Exhibits. From their evidence it is not in dispute that the respondent is a Limited Liability Company and the owner of one Duplex, lying and being at No. 10B, Lalupon Close S. W. Ikoyi Lagos. That the appellant is a limited Liability Company with its principal place of business at No. 33, Hawley Street, Lagos is a yearly tenant in respect of the respondent’s property for which the said tenancy commenced on 10/12/87 for N30,000. After the first three years it was increased to N50,000. In December, 1990 when the rent for 1990/1991 became due the appellant forwarded a cheque for N50,000 being the old rent, to the respondent. The respondent promptly rejected the cheque and returned it vide Exhibit ‘F’ dated 14/12/90, since it had demanded for the new rent of N125,000 per annum vide Exhibit ‘E’ dated 17/7/90, payable for two years in advance. Part of Exhibit ‘F’ reads:
“We are surprised to receive your said letter and the cheque of N50,000 enclosed. For clarity purposes, our letter of 28/4/89 mentioned in your letter had been overtaken by events. It is true that we offered to renew your tenancy for two years but you rejected the offer by paying for only one year and your tenancy was renewed for one year only. Our letter of 17/5/90 refers. We subsequently wrote you on the 17th of July, 1990 on the rent increase as instructed by the owners of the property.
Your cheque for N50,000 is hereby returned. You are, to let us have your cheque for N250,000 which is the new rent for 2 years together with the receipt for the withholding tax on the amount…”
By Exhibit “G.” dated 23/1/91, the respondent had requested the appellant to give up possession of its property. That letter reads in part thus:
“Please refer to our letter of 17/5/90 whereby your tenancy was renewed for one year only. Your said tenancy expired on 10/12/90. You are requested to move out of the property. Please redecorate the interior of the property and hand over the keys to the undersigned.
Yours faithfully,
For: Banjo Adeniyi & Co.
(Sgd.) ………………
Banjo Adeniyi Esq. ”
Exhibit ‘C’ dated 8/1/92 is the Notice of owners’ intention to apply to recover possession. Exhibit ‘D’ which is dated 3/6/91 is the letter of instruction from the respondent to its solicitor to issue out the necessary Statutory Notices to the appellant to recover possession of the said property. The respondent served the appellant, Statutory Notice of six months, Exhibit “B.” on 24/6/91, which notice expired on 31/12/91 even though the tenancy was due to expire on 9/12/91. It is the contention of the appellant that the Notice to Quit, Exhibit “B.” is defective as it does not determine the tenancy at the end of the current term of the tenancy. It is submitted by the learned counsel for the appellant that this Notice to Quit instead of giving the appellant notice to terminate the tenancy at the end of the current term of the tenancy which was due on 9/12/91, it stated that the said notice was to take effect on 31/12/91.
First, I take the issue of notice to quit. The notice Exhibit “B.” reads:
“I, Olumuyiwa Aduroja, as Agent/Solicitor to Omole Estates and Investments Limited, Ilesha, your Landlord and on her behalf give you Notice to quit and deliver up possession of the Duplex together with the appurtenances thereto situate at No.10B, Lalupon Close, S. W. Ikoyi, in the Lagos State of Nigeria on the 31st day of December, 1991.
Dated this 24 day of June, 1991,
Yours faithfully,
(Sgd.)……..
OLUMUYIWA ADUROJA
Solicitor to the above-named Omole
Estates and Investments Limited.”
“It is clear from the pleadings and evidence on record including Exhibits ‘D’, and ‘H’ – H3′ that the appellant’s rent were payable annually. This fact was conceded by the parties. It is therefore my view that the appellant was a statutory yearly tenant, who is entitled to half a year’s notice. The next question is whether Exhibit ‘B’ could validly determine the tenancy. I hold the view that it could. Notice to quit may be given at any time earlier than the date which will fit in for six months in the case of a yearly tenancy. As it has been stated above the appellant had contended that the notice was defective because it merely fixed the effective date on 31/12/91 which was a date other than 9/12/91 on which the actual current term of the tenancy would expire. I do not hold this view. All the law requires is six months notice. It does not matter that the respondent did not terminate the tenancy on 9/12/91. This will not invalidate the notice. The notice to quit is not short of the required statutory six months notice. The learned counsel for the appellant referred to African Petroleum Ltd v. J. K. Owodunni (1991) 8 NWLR (Pt. 210) 391 in aid of his submission. That case is distinguishable from the instant case. In that case Exhibit ‘L’ the purported Notice to Quit given by the defendant was held defective in two material respects namely:
(i) Instead of giving the tenant a six months’ notice which was necessary to determine a yearly tenancy it gave him only eight days; and
(ii) Instead of giving the tenant the notice to terminate the tenancy at the end of the current term of the tenancy, it gave him notice at the middle of the term. (Italics mine).
It is not usual for a tenant to accept a notice shorter than that provided by statute though the parties could by agreement accept a shorter notice: See Re. Three Fall (1880) 15 CH.D. 274p. 281 and 282: Allison v. Scargall (1920) 3 K.B. 443.C It is settled that once a valid notice to quit has been served the tenancy is automatically determined at the expiration of the notice See Udih v. Izedonmwen (1990) 2 NWLR (Pt.132) 357. P.366.
However, I am of the opinion that where a tenant is given a longer notice than that provided by statute, unless it is shown that the landlord stands to gain by it while the tenant is shown to have been prejudiced, the tenant may find it an uphill task to have such notice invalidated. See Awobiyi & Son v. Igbalaiye Brothers (1965) 1 All NLR 163. In my opinion the notice to quit in the present case complies with the law and is accordingly valid.
It is also contended by the appellant that, there was no evidence led by the respondent’s witness as to the validity of the service of the Notice to Quit. Exhibit ‘B’ and the Seven Days Notice – Exhibit ‘C’ as there was no evidence that either E or both Exhibits ‘B’ and ‘C’ were served as required by section 78 of the Companies and Allied Matters Decree 1990. That Exhibits ‘B’ and ‘C’ not being processes issued by a law court, do not qualify to be tagged as Court processes. It is therefore submitted by the learned counsel that these Exhibits as any other documents might have been served on the appellant company by leaving them at or sending them by post to the registered or head office of the defendant company. That there was no Certified True Copy of Form CO 6 tendered to prove the registered office of the appellant company nor was evidence led to show that No. 33 Hawley Street, Lagos was either the Registered Office or the Head Office of the defendant company.
It is trite that the service of process on the defendant so as to defend the relief sought against him is a fundamental condition precedent required before the court can exercise competent jurisdiction. See Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 587, at 594: Schroeder & Co. v. Major & Co. Ltd (1989) 2 NWLR (Pt.101) 1.
It is not in dispute that the appellant is a Limited Liability Company with its principal place of business at No. 33 Hawley Street, Lagos, Lagos State. This is admitted by the appellant in its paragraph 2 of the statement of defence reproduced above. What is admitted, needs no further proof. It is not for the respondent to now prove that the Headquarters of the appellant is at No.33 Hawley Street or elsewhere for the purpose of service of processes or other documents relevant to this case. Order 6 Rule 11 of the High Court of Lagos Civil Procedure Rules 1972, now Order 7 Rule 11 of the High Court of Lagos State Civil Procedure Rules 1994, both provide thus:
“In the absence of any statutory provision regulating service of process on a corporation or registered company, every writ of summons or other documents requiring personal service may be served on a corporation authorised to sue and be sued in the name of an officer or trustee, or on a registered company, by delivering such process to any director, secretary, or other principal officer of the corporation or company or by leaving it at the registered office of the corporation or company or its principal place of business within the jurisdiction.”
The rule provides three possible alternative modes of personal service, namely:
“(i) By delivering of process to any secretary or other principal of the Corporation or Company.
(ii) By leaving the process at the registered office of the Corporation or Company.
(iii) By leaving the process at its principal place of business within the jurisdiction.
It is on record that the defendant was duly served with Exhibit ‘B’ and ‘C’. At page 21 (lines 18 – 25) of the record, PW 1 testified thus:
“After I was given a Notice to quit by the said letter dated 24/6/91 to serve on the defendant and I did so at their office at 33 Hawley Street, Lagos the same date tendered no objection, admitted and marked Exhibit ‘B’. After the expiration of the notice, the defendant did not vacate, I was given seven days notice of Landlord’s intention to recover possession which I served on the defendant letter dated 8/1/92, no objection, admitted and marked Exhibit ‘C’ at p. 31 of the record, DW1 – one Francis Onyema Ifie appellant company Director acknowledged receipt of Exhibits ‘B’ and ‘C’ at 33, Hawley Street, Lagos being the principal place of business of the appellant company. He testified as follows:
“I live at 10B, Lalupon Street, S.W. Ikoyi. I am Company Director in COBRA Ltd. I received a quit notice between June/July from another solicitor O. Aduroja & Co. It was not served on me personally or any other Director of the Company. Exhibit ‘B’ is the said Notice. I also received another Notice Exhibit ‘C’. I was served as on the same process as Exhibit ‘B’, (Italics mine)
I am of the view that D.W.1 who is the Director of appellant was regularly served. He tendered Exhibit ‘P’, ‘F’, ‘G’. He admitted receiving Exhibit, ‘B’ and ‘C’ as the appellant Director. The appellant was duly served as required by law. He is the Director of the appellant Company. The fact he clearly admitted when testifying in Court, having pleaded same.
The next crucial issue is whether the learned trial judge was right in deciding that the rent for the period 10/12/90 – 9/12/91 was N125,000 and not N50,000 as contended by the appellant. As stated above, it is not in dispute that by Exhibit ‘D’ dated 17/5/90, the rent payable from 10/12/89 to 9/12/90 was N50,000, By this Exhibit the appellant was informed that its tenancy of the property was renewed only for a term of one year effective from 9/12/89 – 10/12/90. It was in Exhibit ‘E’ dated 17/7/90 that the respondent informed the appellant that unless they are ready to pay a revised rent of N125,000 per annum with two years payment in advance, the tenancy would not be renewed. It is trite law that this court will not interfere with the findings of facts of the trial court unless it is shown that such findings were not based on the evidence before it, or were the result of wrong inference on evidence led, and therefore such findings did not arise from a proper exercise of the opportunity of seeing and hearing the witnesses which appeared before it. The learned trial Judge held that the rent for 10/12/90 – 9/12/91 is N125,000 and not N50,000 as contended by the appellant. The reason given by the learned trial Judge was that because the appellant did not acknowledge the letter of increase of rent Exhibit ‘E’ sent to it although it agreed receiving it. And therefore by Exhibit ‘F’ appellant was making a counter-offer which the respondent did not accept. No contract is valid where the offer made is not acceptable by the party to whom it is made. It is a question of offer and acceptance. Appellant has clearly indicated in Exhibit ‘F’ his financial difficulties, when it sent N50,000 with promise to “make further payments as soon as funds were available.” I do not see how the appellant was in breach of contract as held by the learned trial Judge when it did not accept the term of the contract. The issue of rent between the landlord and tenant is a matter of agreement. The Agreement may be express or implied. The relationship between them too is a contractual one. And being a matter of contract its term cannot be altered by either party without the agreement of the other. See Udih v. Izedonmwem (supra). Unless the landlord and the tenant are ad idem a landlord’s unilateral decision to increase the amount of rent payable will be ineffective. A unilateral increase of rent is an offer or a proposal made by the landlord. Where as in this case the tenant refuses to pay the landlord the proposed rent, it is left for the landlord who stands to gain where the new rent is accepted by the tenant, to promptly take necessary steps as required by law to terminate the tenancy. Appellant’s refusal to pay increased rent is not in anyway tantamount to an obligation to pay the increased rent. Consequently where there is no agreement on an increase in rent the status quo ought to be maintained and this means that the agreed rent should therefore subsist. I do find that the learned trial Judge misdirected himself when he drew wrong conclusions from the evidence led before him. His evaluation of evidence before him leading to his finding that the rent is N125,000 and not N50,000 is perverse. This is clearly a misapprehension of the facts before him. See Are v. Ipaye (1990) 2 NWLR (Pt. 132) P.298 at 313 G-H; Mba- Ezev-Okufo (1990) 2 NWLR (Pt.135) P.787 at 795 F-G.
Having so held that the respondent has effectively determined the tenancy on 9/12/91 by its Notice to quit the respondent is only entitled to the arrears of rent accruing to that day. The respondent is therefore entitled to arrears of rent of N50,000 from 10/12/90 to 9/12/91. The appellant’s tenancy was determined by Exhibit ‘C’ but in spite of this it stayed for another 8 months till the 9th of August, 1992. The appellant is liable to pay the respondent mesne profits. In a claim for mesne profit, a landlord by implication is challenging the continued occupation of the premises by the tenant whom he now regards as a trespasser and is therefore claiming damages which he has suffered through being out of possession of the premises. The respondent claims N10,416.61 monthly being at pro-rata annual rent for the premises from 10th day of August, 1992 until possession is given. This translates to N125,000 which the learned trial Judge awarded. Having held that respondent is only entitled to N50,000 per annum as agreed rent, the mesne profit would be N5,208.30 per month being at pro-rata monthly rate of the otherwise annual rent of the respondent’s premises from 8 January 1992 till possession is given up. I have used the previous rent as a guide and correct measure for the mesne profits, although it would have been desirable to have a qualified estate valuer to assess the rental value of the premises: See Marine and General Assurance Co. Ltd. v. Rossek and Another (1986) 2 NWLR (Pt.25) P.750.
The respondent also claim N83,332.88K for use and occupation of the premises for 8 months. In an appropriate case damages for use and occupation can be awarded if proved. The one witness called by the respondent to testify said nothing about this claim; yet the learned trial Judge held the appellant liable. He simply said as follows in his judgment:
“Defendant is also on evidence liable to pay the sum of N83.332,88 for use and occupation of the premises for eight months from the 10th day of December, 1991 to the 9th day of August, 1992..”
The claim of N83.332.88 was pleaded by the respondent but no evidence was led to justify this claim. It is in this regard that I set aside the award of N83.332.88 being damages for use and occupation of the premises for 8 months.
On the question of Inter pleader Claimant/Appellant, I find it quite strange that one of the Claimants who is the Director of the appellant in the substantive suit decided to make it a straight fight with himself and Agbacon Limited (formerly known as Agbarha Construction Nigeria Ltd) on the one hand and against the parties in the substantive suit on the other hand. But for this fact this appeal should have been conveniently consolidated. However, from the two grounds of appeal filed by the Inter pleader Claimant/Appellant hereinafter to be referred to as the “Appellants” a single issue is formulated thus:
“Whether the Lower Court gave the appellants an opportunity of a Fair Hearing by dismissing their claim on 13/12/94.”
The Judgment Creditor/Respondent hereinafter to be referred to as 1st respondent in its Brief adopts and agrees with the sole issue formulated for determination by the appellants. The 2nd appellant did not file any Brief. At the hearing Briefs of respective parties were adopted. The 2nd respondent through their counsel filed Civil Form 17 and declined intention to be present at the hearing of the appeal. They however aligned themselves with the arguments in the appellant’s Brief that the lower court did not follow the procedure on Sheriffs Inter pleader summons or at all. The ruling on Inter pleader summons was delivered on 13/12/94. I have carefully gone through the processes in support of the Inter pleader summons, and the Counter-Affidavit against it on pages 56-58 and 67-69 of the Record of Appeal. I have also considered arguments of Counsel taken on the Inter pleader Summons on the 5/12/94 on pages 67 – 70 of the record. I am of the view that the learned trial Judge fully accorded the appellant a fair-hearing before dismissing the appellants’ application. The appellants did not show how the procedure adopted by the learned trial Judge fails to accord them fair hearing. There is no express requirement in the hearing of an Inter pleader application for the learned trial Judge to take oral evidence. The learned trial Judge has used his discretion judicially and judiciously. In this case, he decided on affidavit evidence and documents placed before him. He found the following facts which are not contradicted.
(1) That most of the items seized such as the Peugeot 505 Saloon Car S.R. by its Certificate of Insurance Exhibit ‘A’ belonged to Co Limited, the appellant in the substantive suit.
(2) That the electronic typewriter, split air conditioners etc wherein purchased in the name of Agbarha Construction (Nig.) Ltd. known as Agbacon of which the 1st claimant is the Chairman. He is also the Company Director of Cobra Ltd.
(3) The appellants have nothing to show to trial court when or whether there was a change of name from Agbarha Construction Nigeria Limited to Agbacon Limited.
(4) All the three companies have their principal place of business at Hawley Street, Lagos.
The learned trial Judge was right in dismissing the Inter pleader/appellant summons based on affidavit evidence and the documents placed before him.
The Inter pleader claimant should not act fraudulently so as to defeat judgment creditor’s interest by claiming that the title to the seized goods are vested in the third party.
In Okwoche v. Dibia (1994)2 NWLR Part 325 at P.195 at page 205 this case per Uwaifo JCA (as then was) had this to say:
“The good faith of the claimant in the present case is certainly come into question as a crucial issue having regard to the question in nature of the alleged transfer of the vehicle under which judgment debtor would endeavour to avoid his obligation to the judgment creditor. The fraudulent transfer took place no doubt, after the case of execution had been delivered to the sheriff. The claimant cannot be said to have established his claim upon the facts. It must be said that he has discharged this burden before he can be granted relief. He has, in my view, from the totality of the evidence failed in regard…”
It is in the light of what have been said above that I feel that the learned Judge gave the Inter pleader/Claimant an opportunity of being heard been dismissing their claims. I also affirm that decision.
On the whole, this appeal is meritorious as it partly succeeds. The respondent is entitled to N50,000 per annum as agreed and not N125,000 per annum arbitrarily fixed by the respondent. Mesne profits shall be N5,20830K per annum from 8/1/92 till possession is given up. The appellant is to give up possession that the one Duplex situate at No. 10B, Lalupon Close. S.W. Ikoyi. Lagos immediately if not so done already.
The appellant is entitled to cost of N1,000 as assessed in the court below N1,000 in favour of the respondent in this court
Other Citations: (2000)LCN/0668(CA)
