In The Court of Appeal

(Enugu Judicial Division)

On Thursday, the 20th day of May, 2010

Suit No: CA/E/298/2006

Before Their Lordships

 Between

 And

AMIRU SANUSI, J.C.A. (Delivering  the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Enugu State sitting in its appellate jurisdiction on the decision of Senior Magistrate Court No.2, delivered on the 5th May, 2005 wherein it dismissed the present appellant's appeal before it. The appellant herein was the plaintiff at the Senior Magistrate Court NO.2 (hereinafter to be referred to as the trial court) while the present respondent was the defendant thereat.

At the trial court, i.e the Senior Magistrate Court, the respondent herein as plaintiff filed a complaint against the appellant as defendant claiming as below-

The Plaintiff is entitled to the possession of the premises that is to say A FLAT comprising of one sitting room 3 bedrooms, one kitchen, one bathroom and one toilet with the appurtenances thereto within the premises situate at PLOT 98, Corporative Housing Abakpa Nike in the town of Enugu which was let by the Plaintiff to the defendant for a tenancy from which was let by the Plaintiff to the Defendant for a tenancy from month to month which said tenancy was determined by one month notice to quit dated this 24th day of November, 1992 given by the Plaintiff through his solicitor to the Defendant and the Plaintiff by another notice dated this 16th day of March, 1993 did serve on the Defendant through the court notice in writing of his intention to apply to court to recover possession of the said premises, a duplicate of which notice is hereto attached and that notwithstanding the said notices the said Defendant refused or neglected to deliver up possession of the said premises and still detains (sic) the same

Wherefore, the Plaintiff claims against the Defendant as follows:

1. Possession of the said one flat comprising of one sitting room 3 bed rooms, one kitchen, one bathroom and one toilet with the appurtenances thereto within the premises situated at PLOT 98 Cooperative Housing Abakpa Nike Enugu.

2. N1,000.00 (One Thousand Naira) being arrears of rent at N250.00 per month from September 1992 to December, 1992.

3. ...profit at N250.00 (Two Hundred and Fifty Naira) per month from January 1993 till possession is given up.

The facts that gave rise to the institution of the suit at the trial court leading to this appeal are summarised as follows: The appellant is a tenant of the respondent having rented the latter's flat situated at Plot No 98, Cooperative Housing Estate at Abakpa, Enugu on month to month tenancy agreement. He had been a tenant on the said premises even before the respondent bought the said flat. The appellant during the period of his tenancy effected some repairs in the flat according to him with the consent of the respondent even though the latter denied ever giving such consent for repairs and stated that estimate for the said repairs was never submitted to him for approval or consent as the landlord. The respondent refund to refund to the appellant, the costs of the repairs to the appellant which he allegedly effected and had filed the suit for recovery of possession of the flat in question after giving the tenant (i.e. appellant) notices to quit the said premises without success. At the trial court, the respondent as plaintiff called two witnesses to prove his claim and the appellant/defendant also called two witnesses including himself. At the conclusion of the proceeding/trial, the learned trial Magistrate found in favour of the plaintiff/respondent and made an order for possession in his favour in her judgment delivered on 8th November, 1996. Dissatisfied with this decision of  the trial court the defendant appealed to the High Court (hereinafter referred to as the lower court) on 19th December, 1996 vide a Notice of Appeal containing four grounds of appeal. The appeal lodged by the defendant now appellant at the lower court had a chequered history. Initially, it was assigned to Ezeike J. who commenced hearing in the case in earnest. Midway into the hearing of same by Ezeike J, the appellant at the lower court who is also the appellant herein, applied to the then Honourable Chief Judge of Enugu State J.C.N. Ugwu C.J (of blessed memory) for the transfer of the appeal to another Judge for determination on the ground of alleged bias of the presiding judge. The learned honourable Chief Judge granted the application for transfer of the appeal and ordered its transfer to Hon. Justice Emehelu who commenced hearing of the appeal on the grounds of appeal partly heard by Ezeike J. A year and few months later, the case was again transferred back to Ezeike J. who had earlier part-heard the appeal. No reason for this latter transfer to Ezeike .J was borne out on the Record of appeal. The appellant had earlier argued his grounds of appeal before Ezeike .J on 26/3/2003 and the Respondent (also respondent herein) had replied accordingly and the case was adjourned for judgment. (See pages 77 to 78 of the Record).

When the appeal was transferred back to Ezeike .J, His Lordship ordered the learned counsel for the parties to re-address him on the matter in view of the long time it was transferred from his court. See page 80 of the Record. The lower court presided by Ezeike .J then finally delivered its considered judgment in the appeal on 5th May, 2005 after learned counsel made the further addresses wherein it dismissed that appellant's appeal and affirmed the decision of the learned Senior Magistrate R.O. Nwodo (as she then was and now JCA).

Still aggrieved by the decision of the lower court the appellant appealed to this court and filed Notice of Appeal dated 5th May, 2005 containing five grounds of appeal. His application for leave to file two additional grounds of appeal was later granted by this court bringing the total number of grounds of appeal to seven.

Briefs of argument were filed by learned counsel to the parties in keeping with the rules and practice in this court. The appellant's undated brief of argument was filed on 13th February, 2007. The Respondent's brief of argument dated 19th March, 2007 was filed on 20/3/2007.

Out of the seven grounds of appeal filed by the appellant, seven issues for determination of the appeal were formulated by the appellant in his Brief.

These issues read thus:

(1) Whether it was right for the learned trial Judge to affirm the order for possession as made by the Magistrate Court without reasonable or sufficient course shown by the Respondent for that purpose.

(2) Whether it was right for the High Court to affirm the order for possession without the Respondent proving or establishing any of the grounds for seeking possession.

(3) Whether it was right for the High Court to hold that the claim for possession on ground of arrears of rent for three months was proved by the Respondent

(4) Whether the High Court considered thoroughly and comprehensively the Appellant's case.

(5) Whether the High Court arrived at a correct decision by affirming the Magistrate court finding on arrears or rent and mesne profits without regard to the legality of the rent 

(6) Whether Exhibit E could be regarded as regular and proper as held by the High Court.

(7) Whether the High Court arrived at a correct decision by asking both counsel to summarise their addresses or to address the court further after the previous address had lasted for more than three months.

On his part, the respondent proposed four issues for determination of the appeal out of the seven grounds of appeal filed by the Appellant. The issues as shown in his unpagenated Brief of argument are set out below:

(a) Whether the High Court found as a fact that the Respondent proved his case in the lower court, to deserve judgment being entered in his favour.

(b) Whether a re-assignment of case after the grounds on which it is assigned to another court were found to be false caused any injustice since both appellant's and respondent's counsel were given equal opportunity to reopen their arguments.

(c) Whether the phrase on or before stated in one month notice served on the Appellant was defective?

(d) Whether the Appellant showed any seriousness on issues not given extensive deliberations.

In treating this appeal, I chose to be guided by the issues for determination formulated by the appellant as they were elegantly couched and straight to the points raised in the grounds of appeal filed. And in doing so also, I shall consider Issues 1, 2 and 3 together as they relate to the vital issue of recovery of possession which is the main pith of the appeal. Also the 4th and 5th issues will be considered together too, while issues 6 and 7 will be considered separately and seriatim. I must however add that the Issues raised in the appellant's brief have also adequately encapsulated the four issues raised in the respondent's brief of argument.

Issues 1, 2 and 3

While arguing these issues, the learned counsel for the appellant submitted that the lower court was in error in affirming the order of possession granted by the Senior Magistrate's court. He said possession is not granted as a matter of course and before granting, a court must ascertain that the landlord seeking possession has satisfied the provision of Sections 172 and 173 of the Anambra State Landlords and Tenants Law Cap 76 applicable to Enugu State (hereinafter referred to as the law). He further submitted that the respondent as plaintiff at the trial court did not adduce evidence to show that he is entitled to the grant of possession as made in his favour by the trial court as provided in Section 172 (2) and 173 of the said law which order or decision the lower court had affirmed, He also argued that before a court grants possession the landlord must establish that he complied with the provisions of Section 173 of the Landlord and Tenant Law See cited and referred to the case of Lasaki v. Dabian (1957) NR NLR 12. It is further submitted on be half of the appellant that the lower court was also wrong in affirming the trial court's decision granting possession on the ground of arrears of rent. It was however conceded by the learned appellant's counsel that under Section 173 (1) of the Law, land possession can be recovered on the grounds of arrears of rent, but possession can only be recovered upon establishing that the rent is lawfully due or the tenant is in arrears for three months after it became due by... virtue of Section 173(1) of the Law. It is again submitted that before a court can make an order for possession on the ground of arrears of rent, the landlord must prove the under mentioned conditions namely:-

(i) the rent be lawfully due in accordance with the law. See Landlords and Tenants (Amendment) Edict No. 1 of 1977. See Gray v. South house (1949) 2 All ER 1019 (ii) the rent must be in arrears for 3 months but in this case the rent is not in arrears for 3 months as his rent could be said to be in arrears for three months in February 1993 hence the trial court was wrong to hold that he was in arrears for 3 months as at December 1992 and the lower court was in error when it affirmed the trial court's finding in that regard.

In his reply on these issues the learned counsel for the respondent submitted that the respondent/plaintiff had duly established the grounds on which possession should be granted to him because he had established that the appellant was in arrears of rent for 3 months. He also proved personal use and also the nuisance caused by the tenant i.e defendant now appellant.

He said he also led credible evidence in support of the grant of possession to him. According to him, some of these credible and legal evidences he led include the valid notices duly served on the appellant. That is to say, statutory notices were duly served by the bail in on the defendant/appellant adding that evidence of such notices issued or served on the defendant/appellant was not contested or challenged by the appellant. He therefore submitted that the two lower courts were right in holding that the respondent herein served all the statutory notices as required by law. See Ezikwu v. Ukachukwu (2004) 19 NSCQR 322. On the period, the appellant was in arrears, it was argued by the respondent that the latter gave evidence that the appellant was in arrears from September 1992 to the day he testified at the trial court (i.e 29/3/1994). He said that period between September 1992 to November 1992 is up to 3 months. 

The learned counsel for the appellant stated in his brief, that the law governing recovery of possession of premises applicable in Enugu State is the Landlord and Tenant Law Cap 76 of Anambra State applicable in Enugu State See Sections 172 and 173 of the said law. With due deference to the learned counsel, I think the relevant law applicable to Enugu State is the Landlord and Tenant Law Cap 101 as contained in the Revised Laws of Enugu State which came in operation on 27th August, 1991. Sections 174 and 175 of the said law provide grounds upon which a court can make an order on recovery of possession. The two sections are reproduced hereunder for ease of reference. They read thus:-

Section 174 (1) reads:-

Notwithstanding anything contained in any other law relating to the recovery of possession of premises under a tenancy, no order or judgment for the recovery of possession of any premises to which Part IX of this Law applies or for the ejectment of a tenant therefrom shall be made or given unless the court considers it reasonable to make such order or give such judgment, and either:-

(a) the court has power so to do under the provisions of section 175, or

(b) subject to subsection (2) the court is satisfied that suitable alternative accommodation is available for the tenant.

(2) For the purposes of this section, where the court considers it reasonable so to do, it shall have power to make or give an order or judgment for the recovery of possession of any premises or for the ejectment of any tenant therefrom without proof of suitable alternative accommodation if anyone or more of the circumstances mentioned in section 174 are proved to the satisfaction of the court.

175. A court shall have power to make and order under subsection

(2) of section 174 if:-

(a) the rent lawfully due by virtue of this Law is in arrears for three months after it has become due: or 

(b) the tenant has been guilty of the breach of an express covenant or agreement of the tenancy: or

(c) not relevant

(d) not relevant

(e) not relevant

(f) not relevant

(g) not relevant

(h) not relevant

(i) the court is satisfied that the tenant has constant quarrels with some other lawful inmates of the premises: or 

(j) the premises are reasonably required by the landlord for occupation for-

(i) himself; or

(ii) any son or daughter of his over eighteen years of age; or

(iii) his father or mother:

Provided that an order or judgment shall not be made or given on any ground specified in subsection 10 of the foregoing provisions of this section if the court is satisfied that having regard to all the circumstances of the case including the question whether other accommodation is available for the tenant, greater hardship would be caused by granting the order of judgment than by refusing to grant it.

The law is now well settled that a tenant is entitled to remain in possession of the property rented by him unless his landlord can show that the tenant has forfeited the right so to remain or has done something which will entitle the landlord to recover possession. See Ejide v. Adode (1959) SCN LR 32. Order of possession is therefore not granted by court as a matter of course. A landlord seeking order for recovery of possession of premises must therefore strictly comply with the procedure laid down therefor and failure to so comply therewith will justify the court to refuse to grant such order for recovery. See Ihenacho v. Uzochukwu (1997) 2 NWLR (Pt 487) 257. Hamidu v. Sahar Ventures Ltd (2004) 7 NWLR (Pt 873) 618. As I said supra, the above provisions of the law have specified the procedure to be followed by a landlord. In the instant case, the appellant is saying that the landlord i.e the respondent did not comply with the procedure mentioned without stating which of the procedure was not followed. In any case, it is noted by me that a valid quit notice was issued and served on the appellant by the landlord's (respondent) /agent/counsel.

As a pre requisite, a notice to quit in order to be valid and effective ought to determine the tenancy based on the terms of the tenancy which as in the instant is a month to month tenancy i.e Exh. E as well as Exh. F which is a seven days notice as required by law. This is evident by the testimony of PW2 the court bailiff. The law also requires that only landlord or his agent could issue a valid quit notice. In this case the quit notices i.e Exhibits E and F were issued by the landlord/respondent solicitor who is his agent. See Paper Sack Nigeria Limited v. Alhaji J. A Odulola & Anor (2004) 13 NWLR (Pt 891) 509 at 517, 518 and 521.

Again, reason for seeking recovery of possession of premises could be due to arrears of rent lawfully due for up to three months as provided by Section 175 of the Law. It has been established by credible evidence led by the plaintiff now respondent that the defendant/appellant did not pay his rent since September 1992. The plaint filed by the plaintiff now respondent at the Magistrate Court dated 19/4/1993 clearly stated that the defendant/appellant was in arrears of payment of his rent from September 1992 to December 1992 which is more than 3 months. It is therefore evident that as at the time the plaintiff instituted this action at the Magistrate Court in April 1993 the defendant now appellant was in arrears of payment of rent for even more than three months. Evidence abound also that the appellant was not a peaceful person as it was established that he accosted or chased the respondent when he went to the flat to collect rent from him and he even threatened to beat him whenever he went there again. It was also established that the defendant was not staying at peace with his co-tenants in the premises. At a time, he also chased out the plaintiff and his wife threatening them that he was an Abakaliki man. These pieces of evidence of breach of peace which were not controvelled, go a long way to show that he was causing nuisance in the premises and that he is a troublesome person.

The defendant/appellant when testifying as DW1 at the trial court did not deny these far reaching accusations made against him which go a long way in establishing the grounds upon which order of recovery of possession could be granted by court, vide the provision of Section 174 and Section 175 of the Law. To my mind therefore, in the light of the surrounding circumstances of this instant case, it will not be correct to say that the respondent as plaintiff at the trial court did not comply with the prerequisites of seeking order of recovery of possession or that he failed to establish the grounds upon which he could apply for the grant of same. In my humble view, the learned Senior Magistrate was correct in finding that the plaintiff had proved his case and was entitle to the order granting him possession as she did. Similarly, the lower court is equally correct in affirming and endorsing the findings of the trial court granting the order for recovery of possession sought by the plaintiff now respondent. These three issues for determination are therefore resolved against the appellant.

Issues 4 and 5

On these issues the appellant submitted that the lower court did not give in-depth consideration of his submissions on each of the grounds of appeal he argued but merely proceeded to dismiss his appeal off handedly. 

He said this is a breach to his fundamental right to fair-hearing. He submitted that if the lower court had considered the issues he raised thoroughly, it would have arrived at different decision. Further, he argued that the judgment he appealed against missed all the critical issues and it thus caused miscarriage of justice and had also breached his fundamental right to fair hearing as enshrined in the 1999 Constitution.

Again on the issue of arrears of rent, the appellant still maintained that he was not in arrears of such rent for up to 3 months adding that three months arrears would be effective as from 1st of March, 1993 and not December 1992. For that reason the learned appellant's counsel posited that the lower court was in error by affirming the decision of the trial Magistrate granting possession on the ground of rent arrears for three months.

Replying, the respondent's counsel submitted that the appellant did not specify or pin-point the point of law which the lower court failed or refused to consider or neglected to consider in its judgment. He said complaint of breach of fair hearing can only be tenably if the appellant was not allowed to argue his appeal when the case was transferred back to the learned judge of the lower court. He said breach of fair hearing does not lie in vacuo but on credible and legal facts.

I am inclined to agree with the learned counsel for the respondent's submission that the appellant while making his submissions on the allegation that the lower court did not consider his submission, he failed to state which aspects of his submissions the lower court failed to consider or pronounce on in its judgment. It is not proper to make spurious allegation without substantiating same. The lower court is a court of record. Any allegation of breach of fair hearing must be substantiated or specifically stated to enable this court pronounce on it or address it. It is not enough to say that the fundamental right to fair hearing of a party was breached without stating what or how such right was breached or denied. As I stated somewhere in this judgment, this case had chequered history in that learned judge of the lower court Hon. Ezeike J initially started hearing the appeal but the appeal was transferred to another judge for determination at the instance of the present appellant who applied for same to the then Chief Judge on ground of bias. After one year and few months, the same case was transferred back to Ezeike J, by the order of the said Chief Judge. When Ezeike J. took cognizance of the appeal after the transfer back to him on 29th day of November, 2004, this is what he stated on page 79 of the record in presence of learned counsel for the respondent.

This matter had got to judgment in this court when it was transferred to another court.

I can see it now back to this court. This is administrative, I have forgotten most of what happened, Counsel on both sides should come back to summarise their addresses. If by the next date any party would not appeal (sic) I will hear the party ready and adjourn for judgment. Hearing notice should be made out and served on J.E. Orji for the appellant. 

This matter is further adjourned to 17/10/05 for addresses. 

(sic)

Sgd for F.K. Ezeike

Judge

29/11/2004

Then afterwards, the court reconvened on 18th January, 2005 but the appellant's counsel did not appear hence it was further adjourned to 17/2/05 for re-address. However, for reason unspecified in the record, the re-address was not taken until on 7/4/2005 when both parties counsel re-addressed or further addressed the court and the lower court later adjourned the matter to 5/5/2005 for delivery of judgment. It is instructive to note, that in the judgment now being appealed against, the lower court made references to some points raised in the addresses earlier made by parties counsel as well as to the further addresses, I must say at this stage, that I am unable to fathom any point which was raised by the appellant or respondent that was not addressed, touched or considered by the learned Judge of the lower court.

Although, it can be noted that the learned Judge summarized some of the points raised, that does not mean that he refused to address, consider or pronounce on them. This in my view, is a matter of style of writing judgment which is adopted by individual judges. Thus since as I said earlier, no issue was pin pointed as having been neglected or glossed over by the lower court, I do not consider the accusation tenable. I therefore resolve the issue against the appellant. I have already dealt with issue five when dealing with issue three on the issue of arrears of rent for 3 months so the fourth and fifth issues are also resolved against the appellant.

Issue 6

I do not think there is any need to dissipate any energy to dispose of this issue which deals with quit notice served on the appellant/defendant i.e Exh E. It is the submission or the learned appellant's counsel that Exh E is defective because, according to him the use or the phraseology on or before the 31st day of January, 1993 rendered it insufficient in law to determine the tenancy. I have closely perused Exh. E and in my view there is not any ambiguity therein. It is clear, explicit and leaves no room to any contrary interpretation. It has to be noted that in the instant appeal the tenancy is month to month tenancy and not yearly tenancy. This is what makes this case distinguishable from the case of Queens Club Garden State Ltd v. Bignel (1924) IKB 117 cited and relied on by the appellant.

The current position of the law is that once a Notice for Quit served on the respondent specified the date on which the tenancy ends, it is valid and effective. The insertion of the phrase on or before in the notice to quit if properly construed means or amounts to an offer to the tenant to accept from him a determination or the tenancy on any earlier date than that raised on which he should give up possession of the premises. See the English case of Dogger v. Shephered (1046) 1 All ER 133. In any case it is my humble opinion that since the defendant/appellant did not say or establish that he was deceived, prejudiced or misled by the use of the said phrase he should not be heard complaining at this stage. I therefore still maintain that Exh E. the Notice of Quit, is valid and effective. The issue is thus resolved in favour of the respondent against the appellant.

Issue 7

This issue has been thoroughly dealt with by me when treating the issue pertaining to breach of fair hearing  i.e issue No.4. I have highlighted above in Issue 4 the reason that informed the lower court for asking learned counsel to re-address it when the case was transferred back to it, that is to say, to remind it or refresh its memory on the issues which it is bound to forget due to effluxion of time. The counsel for the appellant stated that the court would have asked them to give new or fresh address. I think this is a matter of semantics. If the court asked them to readdress it without stating specific point to address it on, nothing prevents an individual counsel to give elaborate or fresh address if he chose to do so. At any rate, the record did not show that any of the learned counsel for the parties asked for permission to give new fresh or detailed addresses but was stopped from doing so by the learned Judge. Had it been any of them attempted to do so and stopped from doing so by the court, that would result to great injustice or occasion miscarriage of justice. That is not the situation in the instant case. Both counsel decided be heard accusing or blaming the lower court on hence none of them would be heard accusing or blaming the lower court on that. None of then was shut out at all or even tagged to a time within which to re-address the court and to my mind no miscarriage of justice was occasioned to any of the party. The issue is also decided against the appellant too.

All the seven issues are therefore resolved against the appellant and in favour of the respondent.

In the result, it is my judgment that the appeal lacks merit. It is therefore dismissed. The judgment of the High Court of Enugu State delivered on 5th May, 2005 in Suit No. E/15A/2002 sitting in its appellate jurisdiction affirming the decision of Senior Magistrate Court II Enugu, is hereby further affirmed by me. N30,000, costs is awarded to the respondent against the appellant.

OLUKAYODE ARIWOOLA, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother, AMIRU SANUSI, JCA, just delivered and I agree entirely with the reasoning therein and the conclusion arrived thereat.

The appeal indeed, lacks merit. It is liable to dismissal and it is hereby dismissed by me. I subscribe to the other orders contained in the leading judgment including order on costs.

JUMMAI HANATU SANKEY, J.C.A.: I agree.

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