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(2018) LPELR-44353(SC)

In The Supreme Court of Nigeria

On Friday, the 20th day of April, 2018


Before Their Lordships

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria





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This appeal borders on Recovery of Premises. 
This appeal is against the judgment of the Court of Appeal Lagos Division which dismissed the appeal and affirmed the judgment of the High Court of Lagos.

The Respondent, being the owner of the property situate at Plot 12, Block B, Ogba Industrial Estate, Ogba, Lagos, 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/975/99, 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 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 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 appellant's 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 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. 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. CW in his evidence-in-chief as contained in his deposed witness statement on 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 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 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. 

Further dissatisfied, an appeal was lodged to the apex Court.

The appeal was determined on a lone issue viz:

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

The appeal was dismissed. The judgment of the Court of Appeal affirming the decision and orders of the trial High Court was affirmed.

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