CHEMIRON INTERNATIONAL LTD V STABILINI VISINONI LTD

CORAM

OBASEKI, JUSTICE SUPREME COURT

PARTIES

CHEMIRON INTERNATIONAL LTD   APPELLANTS

STABILINI VISINONI LTD RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Defendant/Appellant was a tenant of the Plaintiff/Respondent at a property known as Plot 12, Block B, Ogba Industrial Estate, Ogba. The Plaintiff/Respondent had earlier on taken out a writ against the Defendant/Appellant for recovery of possession of the said premises, and they \ agreed on some terms of settlement wherein the Defendant/Appellant agreed to give up possession of the premises on or before the 31st December, 1999.  But by a letter dated the 5th of October, the Defendant/Appellant requested for an extension of the lease for another 3 years, and this request was granted by the Plaintiff/Respondent on certain conditions one of which was that the Defendant/Appellant would pay 50% rent advance. The renewal of the tenancy was therefore for a term of 3 years commencing from 1st January 2000 and to terminate on the 31st of December, 2002. The term of the tenancy expired by effluxion of time and the Plaintiff/Respondent solicitors issued a quit notice dated the 31st of March, 2004 and a Notice of owners intention to recover possession. The Defendant/Appellant however failed to deliver up possession of the premises to the Plaintiff/Respondent; hence they instituted an action against the Defendant/Appellant at the High Court of Lagos State, Ikeja, claiming possession of the said premises, mesne profit, and interest accruing as a result of delayed payment on the rent for the tenancy. At the end of the trial, judgment was entered in favour of the Plaintiff/Respondent and the Defendant/Appellant was order to deliver up possession of the premises to the Plaintiff/Respondent. Displeased by the decision of the trial court, the Defendant/Appellant has appealed to this court.

HELD

Appeal Dismissed

ISSUES

Whether the trial Judge has jurisdiction in this case to enter judgment against the Appellant as she did on 4/7/2012 when the Respondent has not fulfilled the condition precedent to invoke the jurisdiction of the court for failure to issue and serve statutory notices on the Appellant.

Whether the Appellant has not been denied fair hearing when the trial Judge failed and refused to consider the Appellant’s submission that the firm of Babalakin and Company having not been instructed in writing to do so cannot give legally credible and admissible evidence as to service of the statutory notices on the appellant?

RATIONES DECIDENDI

PLEADINGS – PARTIES ARE BOUND BY THEIR PLEADINGS AND ARE NOT ALLOWED TO STRAY OUTSIDE THE PLEADINGS

“Parties are also bound by their pleadings and no party will be allowed to go outside the pleadings, see Anyanwu V Uzowuaka (2009) 13 NWLR (Pt 1159) 445 where the Supreme Court held as follows:
”Parties as well as the courts are bound by the issues raised by the parties in the pleadings.”
And Obafemi V P.D.P. (2012) LPELR 80 34 (CA) thus:
“Parties are bound by their pleadings and cannot be allowed to stray outside the pleadings save on amendment of the pleadings if granted to accommodate the new case raised by the parties which was not the case here.” PER Y. B. NIMPAR, J.C.A

BURDEN OF PROOF IN CIVIL CASES – THE BURDEN OF PROOF IN CIVIL CASES IS NOT STATIC BUT SHIFTS –DEFINITION OF “SHIFTING OF BURDEN OF PROOF”

“Proof in civil trials is not static as in criminal cases because the burden keeps on shifting until it comes to rest on who would lose if no further evidence is proffered. See Kate Enterprises V Daewoo; Nnaemeka Okoye V Ogugua Nwankwo (2014) LPELR – 23172 (SC) where the Supreme Court described shifting the burden of proof thus:
“Black describes it “Shifting the burden of proof, which he defines as: Transferring it (i.e. burden of proof) from one party to the other, or from one side of the case to the other, when he upon whom it rested originally has made out a PRIMA FACIE case or defence by evidence, such a character that it then becomes incompetent upon the other to rebut it by contradictory or defensive evidence.” PER Y. B. NIMPAR, J.C.A

RECOVERY OF POSSESSION OF PREMISES – PROCEDURE FOR RECOVERY OF POSSESSION OF PREMISES

“By the Recovery of Premises Law Cap 118, Laws of Lagos State 1973, the Landlord is required to issue and serve a 7days Notice of Owner’s Intention to recover possession, this position was reaffirmed by the Supreme Court in the case of Iheanacho V Uzochukwu (Supra) where the court held thus:
“A Landlord desiring to recover possession of premises let to his tenant shall: (a) Firstly, unless the tenancy has already expired, determine the tenancy by service on the tenant an appropriate notice to quit. (b) On the determination of the tenancy, he shall serve the tenant with the statutory 7 days Notice of Intention to apply to the court to recover possession of the premises. (c) Thereafter, the Landlord shall file his action in court and may only proceed to recover possession of the premises according to law in term of the judgment of the court in the action. See also Ayinke Stores Ltd V Adebogun (2008) 10 NWLR (Pt 1096) 612”. PER Y. B. NIMPAR, J.C.A

JOINING OF ISSUES – ISSUES ARE JOINED ON PLEADINGS NOT ADDRESSES OF COUNSEL

“Issues are joined on pleadings not addresses of counsel. PER Y. B. NIMPAR,J.C.A

COMPETENT WITNESS – WHETHER ALL PERSONS CAN BE REGARDED AS COMPETENT WITNESSES

“The Evidence Act provides for who is a competent witness. Section 175 (1) provides thus:
“All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, any other cause of the same kind.”
Generally, therefore all persons are competent to testify, see the cases of Odogwu V The State (2009) LPELR – 8506 (CA); Yusuf V N.T.C Ltd (1971) 6 SC 39 at 41.” PER Y. B. NIMPAR,J.C.A

CASES IS ON THE PREPONDERANCE OF EVIDENCE

“In a civil claim, the standard of proof is on the preponderance of evidence which is on the balance of probabilities, see Lawal Owosho & Ors V Michael Adebowale Dada (1984) LPELR – 2857 (SC) and Ayorinde & Ors V Sogunro & Ors (2012) LPELR – 7808 (SC) which held thus:
“Proof in civil cases is on preponderance of evidence that means one side’s position outweighs the other. In civil matters the onus of proof shifts from the Plaintiff so the defendant and vice versa. The onus always rests on the party who could fail if no evidence is adduced on either side. Evidence led by the respondents is of such high quality that the learned trial Judge was right to reject evidence led by the appellants and grant the respondent their reliefs.” PER Y. B. NIMPAR,J.C.A

AUTHORITY OF A LEGAL PRACTITIONER TO APPEAR IN COURT – IT IS ONLY A PARTY REPRESENTED BY A LEGAL PRACTITIONER THAT CAN CHALLENGE HIS AUTHORITY TO APPEAR IN COURT

“It is not the law that counsel must tender his letter of authorization to prove instruction to handle a matter in any court which includes Landlord and Tenant matters, See Ajakaiye V FRN (Supra) which held as follows:
“It is a trite and well established principles of law, that when a lawyer (legal practitioner) appears in a court of law and announces that he is duly instructed by a party, the court will have no business inquiring into his authority to appear. The only person that can challenge a legal practitioner’s right or authority to appear in a court of law, is the party he claims to be representing.” PER Y. B. NIMPAR, J.C.A

STANDARD OF PROOF IN CIVIL CASES – STANDARD OF PROOF IN CIVIL RECOVERY OF POSSESSION OF PREMISES – DUE SERVICE OF OWNERS INTENTION TO RECOVER POSSESSION IS A CONDITION PRECEDENT TO RECOVERY OF POSSESSION OF PREMISES

“It is conceded that due service of the owners intention to recover possession is a condition precedent to recovering possession of premises and that if not complied with, affects the jurisdiction of the court, see Madukolu V Nkemdilim (1962) 1 ALL NLR 587, Skenconsult (Nig) Ltd V Ukey (1981) 1 SC 6 and Ikom Local Government V Chenlex Group Ltd (Supra)”. PER Y. B. NIMPAR,J.C.A

PLEADINGS – PURPOSE OF PLEADING

“A contest between parties is usually circumscribed by the pleadings of both sides and the purpose of pleadings is to give notice to the other side on the case he is expected to meet in court during trial, see Ukaegbu & Ors V Ogoji & Ors (1991) 6 NWLR (Pt 196) 127 where it held thus:
“It is now generally accepted, that the main function of pleadings in litigation made up of the statement of claim of the Plaintiff and the statement of defence of the defendant is to enable the parties ascertain as much as possible the various matters actually in dispute and in which there is agreement.” PER Y. B. NIMPAR,J.C.A

PRESUMPTION OF AUTHORITY OF A COUNSEL TO ACT FOR A PARTY – NO PARTY OR THE COURT CAN QUESTION THE AUTHORITY OF A COUNSEL TO ACT FOR A PARTY

“Only the client can question learned counsel not a party in the suit, see also Nnakwe V The State (2013) LPELR 2094 (SC) following FRN V Adewunmi (2007) 10 NWLR (Pt 1042) 399 where it clearly stated that no court can question the authority of a counsel to act for a party, there is always a presumption of authority which can only be rebutted by hard evidence adduced by the other party and this can only be done on pleaded facts. There are no facts that would require evidence of authorization”. PER Y. B. NIMPAR, J.C.A

RESOLUTION OF ISSUES – DUTY OF A JUDGE TO RESOLVE ALL ISSUES PRESENTED TO IT

“Ordinarily, a trial Judge is duly bound to resolve all issues presented to it for resolution”. PER Y. B. NIMPAR,J.C.A

SERVICE OF NOTICE – METHOD OF SERVICE OF NOTICE ON A TENANT

“The law requires that service of notice be effected properly on the tenant or occupier failing which the processes may be served by posting. Section 28 of the same law requires that service be effected in the manner as service of civil processes in the Magistrate Court.” PER Y. B. NIMPAR, J.C.A

CASES CITED

STATUTES REFERRED TO

Court of Appeal Rules, 2011.

Evidence Act, 2011

Recovery of Premises Law Cap 118, Laws of Lagos State 1973

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