IN THE MAGISTRATES’ COURT OF LAGOS STATE
IN THE APAPA MAGISTERIAL DISTRICT
HOLDEN AT COURT NO.4, MOBIL ROAD, APAPA
FRIDAY THE26THDAY OF AUGUST 2016
BEFORE HIS HONOUR MAGISTRATE M.A. ETTI
SUIT NO: MCA/727/2015
MRS RONKE SALAAM … … … … … CLAIMANT
BAYO OSAGIE … … … … … DEFENDANT
J U D G M E N T
The claim against the defendant is for the possession of a Two-Bedroom flat at Block 123, Flat 2, Amuwo-Odofin Housing Estate, Mile 2, Lagos State and mesne profits at the rate of N16,700.00k per month from 1 September 2014 until possession is given up. The claimant (CW1) gave evidence and tendered exhibits viz: Written Deposition (exhibit 1); copy of Quit Notice (exhibit 2); copy of Notice of Owner’s Intention To Recover Possession (exhibit 3); Additional Witness Statement on Oath (exhibit 4); Letter of Instruction (exhibit 5).
CW1 adopted her written deposition to the effect that the defendant is a yearly tenant who pays N200,000.00kper term. The claimant requires the premises for personal use because she will soon retire from public service by the end of 2016.The premises also require substantial repair. Paragraphs 6 to 8 of the claimant’s written deposition (exhibit 1) read as follows:
(6) ‘…on the 18th in (sic) June 2014 I caused my lawyers Messrs (sic) Pinheiro and Company to issue the defendant a statutory notice to quit the property on the 31st of December2014…’
(7) ‘…the defendant received the afore-said notice but has failed to deliver up possession…’
(8) ‘…upon the expiration of the said notice…a seven days (sic) notice of owner’s intention to apply to recover possession was also issued to the defendant on the 5th January 2015…’
The case of the defendant was that when his last rent expired in 2014, he offered the 2015 rent to the claimant who rejected same without any reason. He was served the quit notice (exhibit 2) by courier on 25 June 2014 and not on 18 June 2014. He was not served the Notice of Owner’s Intention (exhibit 3) either on 5 January 2015 or on any other day. He did not receive any Notice of Owner’s Intention from a Mr. Olawale Alli. He does not know Mr. Olawale Alli. It was when he was served the Writ by the sheriff that he saw exhibit 3 for the first time.
The written deposition of the defendant was admitted in evidence as exhibit 6. The learned counsel for the defendant submitted one issue for determination: whether the plaintiff (sic) has proved her case vis-à-vis the evidence given in this case to merit the judgment of the Honourable Court.
The submission on behalf of the defendant can be summarized as follows:
- ‘PW1 (sic) neverdebunk (sic) the fact that it was though (sic) courier that DW1 was served with the 6 months (sic) notice and never provided proof of delivery…’. See paragraph 5.3 of the written address.
- Furthermore, ‘the mode of service was not stated, the date, time and place where the DW1 was served. This is evidence(sic) in Exhibit 1 tender (sic) by PW1 (sic)’. See paragraph 5.4 of the written address.
- ‘The evidence of the PW1 (sic) and her counsel that one Wale Alli received Exhibit 3 and not the defendant’ is contrary to her evidence that she personally served DW1. See paragraph 5.5 of the written address.
- The two grounds of possession namely substantial repair and personal use were abandoned because ‘there was no scintilla of evidence led or adduced by PW1 (sic)’ to support them. See the last submission in paragraph 5.5 and paragraph 6.1 of the written address.
The following statutory and judicial authorities were cited: Section 18(1) Tenancy Law of Lagos State 2011; sections 20, 24, 131(1) & 133(1) Evidence Act 2011; Oyovbiare v Omamurhonu (2001) FWLR (pt. 68) 1129 SC; Leadway Assurance Co. Ltd v Zeco Nig. Ltd. (2004) 11 NWLR (pt.884) 309;Hilary Parm Ltd v Maltira (2007) 14 NWLR (pt.1054) 2010.
The learned counsel for the claimant adopted the lone issue identified on behalf of the defendant.
The submission on behalf of the claimant can be summarized as follows:
- Having admitted that he was served the claimant’s written deposition which the claimant said was served through Olawale Alli, the defendant’s denial of knowing Olawale Alli who the claimant stated was given the Notice of Owner’s Intention should not be believed. Section 18 Tenancy Law of Lagos State 2011 allows ‘delivery of the statutory notice on an adult residing at the premises (the said OlawaleAlli)’. See paragraph 3.06 of the written address.
- The quit notice (exhibit 2) was not served by courier service but was served directly on the defendant as evidenced by his acknowledgement on exhibit 2. The document speaks for itself. Section 125 Evidence Act 2011 and Oladapo v Stanbic IBTC Bank Plc (2014) LPELR-22449 CA were cited in support.
There is no requirement of law that a landlord must state in the quit notice that he requires possession for personal use. ‘The defendant’s contention that the Plaintiff’s (sic) failed (sic) to adduce evidence as to the ground for substantial repair in the instant suit is unfounded in law and not provided in any law whatsoever’. See paragraph 3.09 of the written address.
The issues are:
- Whether the tenancy was validly determined.
- Whether service of the Notice of Owner’s Intention was proved.
- Whether the grounds for possession were proved.
- Whether the claimant is entitled to possession and mesne
Parties are on common ground on the following:
- There is a landlord and tenant relationship between the parties.
- The tenancy is a yearly tenancy and its annual rental value is N200,000.00k
- The defendant’s last rent expired in 2014.
- The defendant was served a quit notice (exhibit 2) in June 2014 to expire on 31 December 2014.
Parties are at variance on the following:
- Whether the defendant offered his 2015 rent but was rejected by the claimant.
- Whether the defendant received the Notice of Owner’s Intention (exhibit 3) from Olawale Alli who was served the said notice for onward transmission to the defendant.
With respect, except to show that the claimant was wrong as regards the mode of service, the argument on behalf of the defendant on the service of the quit notice (exhibit 2) was a mere academic exercise because the defendant admitted that he was served albeit by courier service.
Exhibit 2 has an acknowledgment which purports to show that the defendant received it on 25 June 2014. The acknowledgment comprises his name, a signature and the date. The defendant did not deny those particulars of the acknowledgment. His evidence in paragraph 6 of his written deposition (exhibit 6) that he was served by courier service on 25 June 2014 makes the whole argument over the mode of service of the quit notice a mere academic exercise with no useful purpose in this suit.
Why did the learned counsel for the defendant canvass arguments in paragraphs 5.0 to 5.3 of her written address over proof of service of the quit notice by courier when the defendant had admitted service (including the date of service as stated in exhibit 2) and the matter of service of the quit notice was no longer a live issue before the court?
Having admitted service of the quit notice including the alleged date of service, the mode of service was no longer relevant. Indeed, it is a violation of Rule 32(2)(a) of the Rules of Professional Conduct 2007 which provides that ‘a lawyer shall not state or allude to any matter which he has no reasonable basis to believe is relevant to the case’.(Underline supplied). It would have been a useful argument if the defendant had contested the length of notice or some other material particulars of the contents of the quit notice.
Is it not an established rule of evidence that what is admitted needs no further proof? See sections 20, 21 & 123 Evidence Act 2011; U.B.A. v Jargaba (2007) 11 NWLR (pt. 1045) 247SC.Rule 32(2)(e) of the Rules of Professional Conduct 2007 provides that, ‘In appearing in his professional capacity before a court or tribunal, a lawyer shall not intentionally or habitually violate any established rule of procedure or of evidence’.
Since there was no attack on exhibit 2 and no defect has been identified in it, I hold that the tenancy was validly determined. Issue 1 is answered in the affirmative.
The basic rule of evidence is he who asserts must prove: section 131 Evidence Act 2011;C.P.C. v I.N.E.C. (2011) 18 NWLR (PT.1279) 493 @ 540 SC. Each party must prove its assertion. At any point when an opposing party denies an assertion, the issue turns on whether the denial is sufficient to shift the onus. When an assertion is general, a general denial is sufficient. But when an assertion contains certain material particulars, those particulars must be specifically denied: Nishizawa Ltd. vs. Jethwani (1984) ALL NLR 470 @ 484-5; (1984) 15 NSCC 877 @ 889-890; Nwosu v. I.S.E.S.A. (1990) 2 NWLR (pt. 135) 688 @ 721, 735 SC. Ogunsola v. Usman (2002) 14 NWLR (pt.788) 636 @ 657 CA.
In paragraph 7 of his written deposition (exhibit 6) the defendant denied being served the Notice of Owner’s Intention (exhibit 3) in the following words:
‘I was not served with any 7 days (sic) notice of owner’s intention on the 5th day of January 2015 or any other date as purportedly claimed by the Plaintiff (sic)’.
That denial was a response to paragraph 8 of the claimant’s written deposition (exhibit 1)which runs thus:
‘…a seven (7) days (sic) notice of owner’s intention to apply to recover possession of the property was also issued to the defendant on the 5th January 2015’.
The denial given by the defendant cannot be said to be insufficient as no other particulars of service were given in the testimony of the claimant. The name, Olawale Alli, came up because exhibit 3 has his acknowledgement that he received the Notice of Owner’s Intention on 6 January 2015.
It is important to note that proper service on a tenant of residential premises ‘shall be personal service’: section 18 Tenancy Law of Lagos State 2011. And the first mode of personal service is ‘service on the tenant in person’: section 18 (a) Tenancy Law 2011. Any mode of service shall be ‘service in such a manner that it can be established to the satisfaction of the Court that the person to be served will have knowledge of any of the notices: section 17 (2)Tenancy Law 2011.
It has been held that it is good service where a process is served on a person who hands it over to the right person: Panache Comm. Ltd v. Aikhomu (1994) 2 NWLR (pt. 327) 420 @ 430-1 CA. It means that where service is disputed as in this suit, the claimant must satisfy the court that the defendant eventually received the Notice of Owner’s Intention from Olawale Alli who was served the said Notice of Owner’s Intention or the defendant should be taken to have received it by implication or circumstantial evidence.
In the instant case, neither is it established that the defendant received the document nor has it been shown that there is a link between the defendant and the recipient of the document, Olawale Alli. The acknowledgement merely shows the recipient’s name, date and signature. Who is Olawale Alli? Where did he receive the document? What is his connection or relationship with the defendant? Is it reasonable to believe that Olawale Alli must have passed the document to the defendant? These are questions that the claimant ought to have answered in her evidence or in the evidence extracted from the defendant so as to make the disputed service fit the provisions of section 18 (b) Tenancy Law of Lagos State 2011 and also satisfy the provisions of section 17 (2) Tenancy Law 2011.
It was argued on behalf of the claimant that having admitted that he was served the claimant’s written deposition which the claimant said was served through Olawale Alli, the defendant’s denial of knowing Olawale Alli who the claimant stated was given the Notice of Owner’s Intention should not be believed.
With respect, it is not in evidence that the claimant served her written deposition on the defendant through Olawale Alli. By the proof of service in the court’s file, the written deposition of the claimant was served on the defendant by Ladipo Oluranti, the sheriff of this court, on 26 January 2016 and the defendant did not deny it. It is not only speculative and untenable but also a deliberate distortion of facts to argue that the defendant was served the claimant’s written deposition through Olawale Alli and the defendant cannot therefore deny knowledge of Olawale Alli and by implication the defendant must have received the Notice of Owner’s Intention from Olawale Alli.
Although, I must point out here that the said proof of service states that the defendant was pointed out to the sheriff ‘by Olawale Alli (Brother)’, that alone does not prove that the defendant knows Olawale Alli or that Olawale Alli gave the defendant the Notice of Owner’s Intention. Again I must point out that the said proof of service has a copy of the claimant’s written deposition attached to it with an endorsement showing a date, a signature and the name Olawale Alli. However, the proof of service is prima facie evidence which this court must not ordinarily ignore without credible contrary evidence. And the said endorsement on the attachment without more cannot dislodge it.
In paragraph 8 of her written deposition CW1 merely stated that the Notice of Owner’s Intention was ‘issued to the defendant on the 5th January 2015’ without stating the mode of service when she knew that she served somebody else who she hoped would pass the document to the defendant. I’m afraid, she left that gap unfilled and her burden of proof not discharged.
Upon that defendant’s denial of service which I have found to be sufficient, the burden of proof shifted onto the claimant to adduce further proof on service of the Notice of Owner’s Intention which she failed to do: section 133(2) Evidence Act 2011; G.& T. Invest. Ltd. v. Witt & Bush Ltd. (2011) 8 NWLR (pt.1250) 500 & 531 SC; Buhari v INEC (2008) 19 NWLR (pt.1120) 246 @ 354-5 SC. Having failed to do that, I hold that the claimant did not prove service of the Notice of Owner’s Intention.
It should be noted that the Notice of Owner’s Intention is a statutory notice that must be served to empower the court among other things to grant an order of possession: sections 16 to 18 & 24 Tenancy Law 2011: African Petroleum Ltd v. Owodunni (1991) 8 NWLR (Pt.210) 391 SC; Obijiaku v. Offiah (1995) 7 NWLR (pt.409) 510 @ 524 SC.
With respect, the argument on behalf of the claimant that section 18 of the Tenancy Law of Lagos State 2011 allows delivery of the statutory notice on an adult residing at the premises overlooks the fact that, where service is adequately denied as in the instant suit, delivery of a document is not the same as proof of service of a document. Delivery is one fact on its own; proof of the delivery is another fact that must be established even if by implication or circumstantial evidence. Suffice it to say that the former is an assertion, the latter is evidence.
It follows, therefore, that having failed to give satisfactory evidence of service of the Notice of Owner’s Intention, the requirement for an order of possession was not completely fulfilled. And that disposes of the issue of possession and any other issue or relief that relates to or depends upon it. Issue 2 is answered in the negative.
The issue of whether the grounds for possession were proved as provided in section 25 Tenancy Law of Lagos State 2011 has become academic in the light of my resolution of Issue 2 above that service of the Notice of Owner’s Intention which is a requirement for an order of possession was not proved. There is no need to consider Issue 3 any longer as such a consideration will amount to a wasteful exercise: Atake v. Afejuku(1994) 9 NWLR (Pt. 368) 379 SC; Shell Pet. Dev. Co. (Nig.) Ltd. v. Isaiah (2001) 11 NWLR (Pt.723)168 SC; Skye Bank PIc v. Akinpelu (2010) 9 NWLR (Pt. 1198) 179 SC.
Having held that service of the Notice of Owner’s Intention was not proved and that the requirement for an order of possession was not completely fulfilled I hold that the claimant is not entitled to possession: Coker vs. Adetayo (1996) 6 NWLR (Pt.454) 258 SC.
However, possessory claim and monetary claim are severable and their ingredients are distinct. Thus a claimant who fails to prove his claim on possession may succeed in his claim on arrears of rent or mesne profits: Obijiaku v. Offiah (1995) 7 NWLR (pt.409) 510 @ 524 SC.
It is not in dispute that the annual rental value is N200,000.00k and that the defendant’s last rent expired in 2014. What is not clearly stated in evidence is the tenancy period. The parties have left that issue to guesses. But it is in evidence that the tenancy commenced in September 1997. Does it mean that the tenancy period is September to August so that the defendant’s last rent expired not just in 2014 as both parties testified but on 31 August 2014? On the Writ or Plaint the claimant prayed for mesne profits at the rate of N16,700.00k per month ‘from September 2014till possession is given up’.
It would, therefore, appear that, in the circumstances of this suit, when both parties testified that the last rent paid by the defendant expired in 2014, they meant 31 August 2014. It follows that the defendant was in arrears of rent from 1 September 2014 to 31 December 2014 when his tenancy was determined by the quit notice (exhibit 2): Debs v. Cenico Nigeria Ltd. (1986) 3 NWLR (Pt.32) 846 SC. Thus the mesne profits accrue from 1 January 2015: Ayinke v. Lawal (1994) 7 NWLR (pt.356) 263 @ 273-4 SC.
Erroneously, the claimant lumped together both claims as mesne profits which were claimed from 1 September 2014 until possession is given up even though the quit notice did not expire till 31 December 2014: Odutola v. Papersack (Nig.) Ltd (2006) NWLR (Pt.1012) 470 SC. However, the claimant is only entitled to arrears of rent and not mesne profits from 1 September 2014 (after the last rent paid by the defendant expired) to 31 December 2014 (when the quit notice expired). This distinction is important so that this court does not fall into the same error by awarding mesne profits as claimed from 1 September 2014 when the tenancy had not determined: Osawaru v. Ezeiruka (1978) 6-7 S.C. (Reprint) 91; Omotesho v Oloriegbe (1988) 4 NWLR (pt. 87) 225 SC; Udih v Izedonmwem (1990) 2 NWLR (pt. 132) 357 SC; Nigerian Construction & Holding Co. Ltd. v Owoyele (1988) 4 NWLR (pt. 90) 588 SC.
Although it is settled that a court does not award what is not claimed by a party: Ekpenyong v. Nyong(1975) 2 S.C. 71 @ 81- 82, a court of law and equity as this court will not deny a party any relief to which that party is entitled merely because the relief is wrongly described as mesne profits instead of arrears of rent: Falobi v Falobi (1976) 10 NSCC 576;Osawaru v. Ezeiruka (1978) 6-7 S.C. (Reprint) 91;Obijiaku v. Offiah (1995) 7 NWLR (pt.409) 510 SC.
As there is no dispute over when the last rent of the defendant expired and since the tenancy was duly determined as held above, the claimant is entitled to arrears of rent and mesne profits even though the claim for possession is refused: Obijiaku v. Offiah (1995) 7 NWLR (pt.409) 510 @ 524 SC.
On the judicial authorities cited above, it is settled that expiration of the tenancy determines the point of termination of arrears of rent and the point of commencement of mesne profits.
However, mesne profits are terminated by delivery of possession or creation of new tenancy or loss of reversionary right. None of those factors exists in this suit.
Consequently, judgment is entered as follows:
- IT IS THIS DAY ADJUDGED that the claimant is NOT ENTITLED to recover against the defendant the possession of the Two-Bedroom flat at Block 123, Flat 2, Amuwo-Odofin Housing Estate, Mile 2, Lagos State.
- IT IS FURTHER ADJUDGED that the claimant do recover against the defendant arrears of rent from 1 September 2014 to 31 December 2014 at the rate of N16,700.00k per month and mesne profits at the same rate from 1 January 2015 until possession is given up.
Cost of N50,000.00is awarded against the defendant.