Legalpedia Electronic Citation:  legalpedia SC. 545/2015
Areas Of Law:
Appeal, Court, Landlord And Tenant, Law Of Evidence, Lease, Practice And Procedure
Summary Of Facts:
The Respondent, being the owner of the property situate at Plot 12,Block B, Ogba Industrial Estate, Ogba, Lagos State comprising 2(two) warehouses measuring approximately 20,800 square feet and an office block with a 4(four) bedroom flat leased same to the Appellant. The Respondent however instituted an action against the Appellant in 1999 for the recovery of the said premises and by mutual agreement of the parties, Terms of settlement was prepared and same became the judgement of the court. By the Terms of settlement, it was stated that the Appellant shall vacate and deliver possession of the property to the Respondent on or before 31st December 1999. Consequently, 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 to be paid 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 however requested for an extension of the deadline for payment and at a 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 delayed payment of rent.
Upon failure of the Appellant to pay the interest on delayed rent, the Respondent issued and served a Notice to Quit and subsequently a Notice of Owners Intention to Apply to recover possession on the Appellant. The Respondent as Plaintiff filed a suit claiming an order directing the Defendant to deliver up possession of the property, the sum of 4,500,000.00 (Four Million, Five Hundred Thousand Naira) being Mesne profit for the period of 1st January, 2003 to 31st December, 2004 at the rate of 2,250,000.00 (Two Million, Two Hundred And Fifty Thousand Naira) per annum among others. The Appellant in its statement of defence contended that the statutory notices were not served on it but admitted owing the Respondent profit for the said period. The trial granted the Respondent’s claim. Dissatisfied with the trial court’s judgement, the Appellant appealed to the Court of Appeal which dismissed same. The Appellant has further appealed to this court.
Issue For Determination
Whether there is sufficient admissible evidence on record that the respondent issued and served statutory notice on the appellant.
TENANCY- WHETHER SERVICE OF A NOTICE TO QUIT IS MANDATORY WHERE TENANCY IS FOR A TERM CERTAIN
“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 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.” PER M. U. PETER-ODILI, J.S.C.
SERVICE OF NOTICE- WHETHER ANY SERVANT OR AGENT OF A CORPORATE BODY CAN TESTIFY AS TO THE SERVICE OF A NOTICE ON BEHALF OF THE COMPANY
“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 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 Anyaebsi v RT Briscore Nia. Ltd (1987) 2 NWLR (Pt.59) 84; Kate Enterprises Ltd v Daewoo Nigeria (supra).”PER M. U. PETER-ODILI, J.S.C.
ADMISSIBILITY OF EVIDENCE BY AGENT OF A COMPANY- WHETHER EVIDENCE BY ANY AGENT OR SERVANT OF A COMPANY WHO DID NOT TAKE PART IN A TRANSACTION ON BEHALF OF THE COMPANY IS ADMISSIBLE
“What I am grappling to put across is well captured in the case of the Supreme Court, Saleh v B. 0. 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)
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 3CA (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.” – PER M. U. PETER-ODILI, J.S.C.
PROOF OF SERVICE- WAYS OF PROVING SERVICE
“Salami JCA upheld the various ways of proving service in the case of Agbaje v Fashola (2008) 6 NWLR (PL 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.”- PER M. U. PETER-ODILI, J.S.C.
BURDEN OF PROOF- WHETHER THE BURDEN OF PROOF IN CIVIL CASES IS STATIC
“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:-
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts 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 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 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.”PER M. U. PETER-ODILI, J.S.C.
BURDEN OF PROOF – BURDEN OF PROOF IN CIVIL CASES
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 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”. – PER M. U. PETER-ODILI, J.S.C.
MESNE PROFITS – MEANING OF MESNE PROFITS
“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”.– PER M. U. PETER-ODILI, J.S.C.
COMPETENCE OF COURT – BASIS ON WHICH THE COMPETENCE OF A COURT IS DETERMINED
“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”.
– PER M. U. PETER-ODILI, J.S.C.
CONCURRENT FINDINGS OF LOWER COURTS – INSTANCES WHERE THE SUPREME COURT WILL DISTURB THE CONCURRENT FINDINGS OF LOWER COURTS
“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.ll) 133 at 138.” PER M. U. PETER-ODILI, J.S.C.
UNDISPUTED FACTS – STATUS OF UNDISPUTED FACTS IN PROCEEDINGS
“It is trite that facts not disputed are taken as established and therefore need no further proof. The court can legitimately act on such undisputed fact: Odulaja v. Haddad (1973) 11SC 35; Hon. Kehinde Odebunmi & Anor v. Ojo Oyetunde Oladimeji & Ors (2012) LPELR – 15419 (CA).” PER E. EKO. J.S.C.
Statutes Referred To:
Evidence Act 2011.
Recovery of Premises Law CAP. 118, Laws of Lagos State 1973
Supreme Court Rules
Supreme Court, Act 2004
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