Legalpedia Citation: (2014) Legalpedia (CA) 45911
In the Court of Appeal
Fri Nov 21, 2014
Suit Number: CA/L/422/2012
CORAM
SOWEMIMO, JUSTICE SUPREME COURT
TIJJANI ABUBAKAR – JUSTICE, COURT OF APPEAL
PARTIES
ROTIMI VICTOR AJAYI APPELLANTS
MRS JANE HARRY RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Claimant/Respondent instituted an action against the Defendant/Appellant at the High Court of Lagos State seeking to recover vacant possession of the property being a (5) five Bedroom Semi-detached wings of Duplex at No.10B Alhaji Tokon Street Alaka Estate, Surulere, Lagos; mesne profit and interest thereon until the Defendant/Appellant delivers possession of the subject-matter of the suit. The trial Court entered judgment for the Claimant/Respondent based on the Rent control and Recovery of Residential Premises Edict No. 6 of Lagos State 1977, a Law repealed in 1994. Aggrieved with the judgment of the trial Court, the Defendant/Appellant appealed to the Court of Appeal.
HELD
Appeal Dismissed
ISSUES
1. Whether a judgment given and or premised on a repealed or abolished status is not nullity?
2. Whether as held by the trial court, 7 days notice of intention of owner to apply for possession given to the Defendant/Appellant is valid notice in law and adequate for recovery of possession from the appellant?
3. Whether parties by themselves and on agreement can wave compliance with mandatory statutory provision and thereby confer jurisdiction on the court.
RATIONES DECIDENDI
STATUS OF A WAIVER – WAIVER IS A PRIVATE RIGHT AND FOR BENEFIT OF A PARTICULAR PERSON IN CONTRADISTINCTION TO A PUBLIC RIGHT
“It has been settled that waiver must be is respect of a private right and for benefit of a particular person that is in contradistinction to a public right which one person cannot waive because it is intended for public good, see FASADE V BABALOLA (2003) 11 NWLR Pt 830 26.” PER NIMPAR, JCA
EFFECT OF JUDGMENT GIVEN WITH REFERENCE TO A WRONG/REPEALED LAW – WHERE THE DECISION OF THE TRIAL COURT IS RIGHT MERE RELIANCE ON A WRONG on a wrong reason or law CANNOT VITIATE THE SAID JUDGMENT
“Now would the mere reference to the 1977 law make the judgment liable to reversal? The Supreme Court in the case of GROSVENOR CASINOS LTD V HALAONI (2009) 10 NWLR (Pt 1149) 309 had thus is to say:
“Although the court below relied on the in applicable 1990 Act or law in arriving at its said decision, it is now firmly settled that what an appeal has to declare, is whether the decision of the court below, was / is right. If the judgment of a court is correct, it is not liable to reversal merely because it was anchored on a wrong reason or law. In other words, a mistake or error in a judgment, is immaterial provided it has not occasioned a miscarriage of justice. It is not every mistake or error in a judgment, that necessary, determines an appeal in favour of an appellant.”
See also the cases of AYENI & ORS V SOWEMIMO (1982) NSLC 104; ONAJOBI V OLANIPEKUN (1985) 4. S.C. (Pt 2) 156 at 163 and ODUKWE V MRS OGUNBIYI (1998) 6 SCNJ 102 at 113.” PER NIMPAR, J.C.A.
RIGHT OF A PERSON TO WAIVE STATUTORY PROVISION – A STATUTORY PROVISION CAN BE WAIVED BECAUSE IT CONFERS A PRIVATE RIGHT
“A statutory provision for the benefit of a person can therefore be waived because it confers a private right or protects a private interest.”PER NIMPAR, JCA
NON-REVERSAL OF JUDGMENT BASED ON MERE SLIPS – ONLY SLIPS THAT OCASSION MISCARRIAGE OF JUSTICE CAN LEAD TO A REVERSAL OF JUDGMENT ON APPEAL
“It is not every error in judgment that leads to a reversal of the judgment except if it is substantial and has led to a miscarriage of justice and if the said judgment is perverse.”PER YARGATA BYENCHIT NIMPAR, JCA
RIGHT OF PARTIES TO OPT OUT OF PROVISION OF STATUTORY NOTICES – “PARTIES CAN BY A TENANCY AGREEMENT OPT OUT OF THE STATUTORY PROVISION ON STATUTORY NOTICES DEPENDING ON THE TYPE OF TENANCY
“Parties to a tenancy agreement can opt out of the statutory provision on relevant notices depending on the type of tenancy. The statutory provision on notices is for private benefit and therefore it can be waived as it was done in this case, see the case of ARIORI V ELEMO (1983) LPELR 552 (SC).” PER NIMPAR, JCA
CASES CITED
STATUTES REFERRED TO
1. Rent Control and Recovery of Residential Premises Law of Lagos 2007
2. Lagos State Tenancy Law 2011
3. Rent control and Recovery of Residential Premises Edict No. 6 of Lagos State 1977, a Law repealed in 1994