Felix O. Osawaru V. Simeon O. Ezeiruka (1978)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, J.S.C.

The appellant before us was the defendant in an action instituted by the respondent in the then High Court of Midwestern State of Nigeria in the Warri Judicial Division in Suit W/169/73 in which the claim was

1.for possession of premises comprising 12 rooms and 2 stores situate at 47 Ginuwa Road, Warri, “let” by respondent to the appellant on a rent of N76.00 per month.

2.N2,964 (two thousand, nine hundred and sixty-four naira) being mesne profits from September, 1970 to November, 1973 at the rate of N76.00 per month, and further mesne profits at the rate of N76.00 per month, being the rate of rent of the said twelve rooms and two stores from the 1st of December, 1973 until possession is given up. The grounds on which possession was demanded were set out in the writ as

“1. Personal use

2. That the tenant (defendant) is guilty of a breach in the Tenancy Agreement
3. Substantial repairs
4. To prevent premises being used as a Brothel.”

The trial came before Ekeruche, J., who delivered a considered judgment on 3rd June 1976 granting possession of the premises, within one week, to the respondent but non-suiting him on his claim for arrears of rents and mesne profits. From the said judgment, the appellant has appealed to this court.

In the notice of appeal dated 4th June 1974, the appellant filed one ground of appeal namely the omnibus ground that the judgment was against the weight of evidence. A motion dated 20th March 1978 was filed on behalf of the appellant by his counsel Dr. D. D. Mowoe, asking for leave to file and argue additional grounds of appeal. The additional grounds were set out in a schedule to the motion containing 7 additional grounds. That motion was pending and was not heard when another motion dated 13th April 1978 was filed on behalf of the appellant by Chief R. A. Akinyemi, of counsel, seeking the leave of this court to file and argue additional grounds of appeal. Before us, Chief Akinyemi who argued the appeal for the appellant abandoned the earlier motion filed by Dr. Mowoe. That motion was struck out. He proceeded with his own motion. There were 3 additional grounds which he sought to argue. They complained of errors in law. But grounds 1 and 2 contained no particulars and the nature of the errors in law complained of as required by Order VII Rule 2(2) of the Supreme Court Rules. Those grounds were accordingly struck out. The appellant was then left with, and was allowed to argue, the omnibus ground as contained in the original memorandum of grounds as contained in the original memorandum of grounds of appeal and one additional ground of appeal (numbered 4) which reads:

“4.The learned trial Judge erred in law to have non-suited plaintiff’s claim for arrears of rent and mesne profits.

Particulars of Errors of Law

(a) The learned trial Judge erred in failing to observe that if properly construed the provisions of Section 19 of the Recovery of Premises Law Cap. 110 Laws of Western Region of Nigeria applicable in Bendel State were not complied with in that the date of determining the tenancy as contained in the Writ of Summons contradicts the dates on the Statutory Notices. (b) There was no evidence of Personal Service of the Statutory Notices as laid down by Section 28 of the Recovery of Premises Law Cap. 100 Laws of Western Region of Nigeria applicable in Bendel State.

(c) The learned trial Judge in his judgment said “as the evidence relating to the claim for rents and mesne profit stands it is clear that plaintiff cannot recover thereon because he has failed to prove the amount, if any, actually owing by the defendant. The proper order therefore should be dismissal and not non-suit.”

Before we deal with the argument of counsel on the appeal we think we should draw attention to a point which is apparent on the face of the record. The respondent in the second arm of his said particulars claimed-

N2,964 (two thousand, nine hundred and sixty-four Naira) being mesne profits from September, 1970 to November, 1973 at the rate of N76.00 per month, and further mesne profits at the rate of N76.00 per month, being the rate of rent of the said twelve rooms and two stores from the 1st of December, 1973 until possession is given up.

The learned trial Judge in his judgment held: