IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT APO BEFORE HIS LORDSHIP, HON. JUSTICE U. P. KEKEMEKE SUIT NO: FCT/HC/CV/2002/11 COURT CLERK: JOSEPH BALAMI ISHAKU DATE: 28/02/12 BETEEN: MR. HENRY FEMI OSOBU!!!!!!!!!!!!!!!!!.PLAINTIFF AND MRS. ANIEKEME ADEA FABORO !!!!!!!!!!!!DEFENDANT JUDGEMENT The Plaintiffs claim against the Defendant vide his Writ of Summons and Statement of Claim is for: a. An Order of this Honourable Court directing the Defendant to immediatel vacate and deliver u! !ossession of the four "edroom Du!le# $ith t$o %&' rooms "os (uarters together $ith the a!!urtenances thereto situate at Plot )*" Constitution Avenue+ ,adu$a -state+ Abu.a to the Plaintiff. b. /esne !rofit from the &0 rd October+ &121 until .udgment is given in this suit at the rate of N208, """."" !er month until !ossession is given u!. c. Out of Poc3et e#!enses for this action. The Writ of Summons+ Statement of Claim and all other !rocesses $ere served on the Defendant on the & nd da of /arch+ &122. One A.H. -natto -s4. entered a!!earance for the Defendant through a /emorandum of A!!earance on the 5610622. 2 On the 21 th da of /a+ &122+ a 7otice of change of Counsel $as filed on behalf of the Defendant b one Slvanus -.O.". /ali3i -s4. The Defendant failed+ refused and or neglected to file an Statement of Defence. On the ) th da of 8ul+ &122+ the Plaintiff o!ened his case. He gave evidence for himself and called no other $itness. He said orall that his name is Henr 9emi Osobu. That he lives at 7o. &: Samora /ichael Street+ Aso3oro+ Abu.a. That he is a ;egal Practitioner. He confirmed filing a Witness Statement on Oath on the & nd da of 9ebruar+ &122. He identified same and ado!ted it as his oral testimon. He de!oses as follo$s: 2. That < am the Plaintiff in this suit and the beneficial and legal o$ner of a four "edroom Du!le# $ith t$o room "os (uarters together $ith a!!urtenances situate at Plot )*" Constitution Avenue+ ,adu$a -state+ Abu.a. &. That via a lease agreement made on the 21 th da of Se!tember+ &11: $ith the Defendant+ < leased out the said four "edroom Du!le# $ith t$o rooms "os (uarters $ith the a!!urtenances thereto to the Defendant to hold same for a term of one ear. 0. That the lease agreement too3 effect and commenced on the &0 rd da of October+ &11: and la!sed on the && nd da of October+ &115 $ith an o!tion to rene$ for a further term at a earl rent of N1,#00,000.00 onl ). That at the e#!iration of the lease agreement made on the 21 th da of Se!tember+ &11:+ mentioned in !aragra!h 0 above+ the Defendant $ithout rene$ing the lease agreement continues in the occu!ation of the !remises $ithout !aing the agreed rent to me. & =. That the lease agreement in !aragra!h 0 above ela!sed on the && nd October+ &115. *. That the Defendant $as in arrears of rent for one ear commencing from the &0 rd October+ &115 to && nd October+ &11> for the sum of N1.# M$%%$&'. :. That < $as desirous of recovering !ossession of the !remises from the Defendant and after serving the re4uisite statutor notices on the Defendant+ < instituted an action in suit 7o. 9CT6HC6C?6=>>621+ Henr 9emi Osobu and /rs. Anie3eme Ade$a 9aboro against the Defendant. 5. That the Defendant !leaded $ith me to settle the suit mentioned in !aragra!h : above out of Court @ >. That < being a !eace loving citiAen of 7igeria and considering the !lea of the Defendant agreed to settle the matter out of Court. 21. That < and the Defendant thereafter signed Terms of Settlements and a Tenanc Agreement on the 2 st da of A!ril+ &121 $herein the Defendant underta3es to !a her rent $hich commenced from the &0 rd da of October+ &11> to && nd da of October+ &121. 22. That His ;ordshi!+ Honourable 8ustice A.A.<. "an.o3o of the 9CT High Court 7o. 2= ,udu on the 2& th da of A!ril+ &121 entered the said Terms of Settlement as consent .udgment. 2&. The Defendant refused+ failed and or neglected to obe and abide b the consent .udgment but rather came u! $ith different e#cuses of her inabilit to !a the .udgment sum. 20. The Defendant on the 2 st da of 8ul+ &121 through her husband !resented t$o !ostdated che4ues. 2). The first che4ue $ith che4ue leave 7o. =:*&1>): is dated 01615621 $hich $as to cover the .udgment sum. 2=. The Defendant in further moves to deceive me issued che4ue 7o. =:*&1>)5 dated 0161>621 for another tenanc to commence from October &121. 0 2*. The Defendant ensured < did not !resent the che4ues for !ament on the due dates as she 3e!t bringing e#cuses and that there is no credit et in the said account. &*. That m Counsel "arrister ?ictor AgunAi called the Defendant on the &5 th da of October+ &121 for !ament but the Defendant refused to !ic3 his call and avoided me and m Counsel for a ver long time. &:. As a result+ < $as left $ith no o!tion than to a!!l for the attachment of the Defendants !ro!ert in e#ecution of the consent .udgment in suit 7o. 9CT6HC6C?6=>>621 and same $as carried out. &5. A ?aluer $as a!!ointed b the Court to evaluate the !ro!erties attached and he estimated it to a sum $hich is far less than the .udgment sum. &>. The Defendant has failed to com!l $ith !aragra!h & of the Terms of Settlement and the Tenanc Agreement dated 2 st A!ril+ &121 b failing and refusing to !a the agreed rent before the 01 th da of 8une+ &121. 01. The Defendant has also breached !aragra!h ?< of the tenants covenant $ith the landlord not to use the !ro!ert for an !ur!ose other than for residential !ur!ose. 02. The Defendant has converted the said !remises to his office $here he habours different 3ind of !eo!le in the name of business associates to enable him carr out his deceitful and fraudulent activities. 0&. "eing a retired civil servant+ < have been suffering from the acts of the Defendant $ho too3 over m !ro!ert for over three ears $ithout !ament of rent. 00. That < am no$ desirous of ta3ing over !ossession of the said !ro!ert. < issued a : das 7otice of O$ners <ntention To Becover Possession on the 20 th da of 8anuar+ &122 $hich $as served on the Defendant. The Plaintiff claims as !er the Writ of Summons. ) The Plaintiffs Witness %PW2' tendered the follo$ing documents: -#hibit CA D Tenanc Agreement and Terms of Settlement dated 2 st A!ril+ &121. -#hibit C" D : Das 7otice of O$ners <ntention To Becover Possession dated 20 th 8anuar+ &122. The Defendant $as absent+ neither $as he re!resented. The suit $as therefore ad.ourned to 2061:622 for crossEe#amination and defence. One -seigbe a!!eared for the Defendant holding brief for /ali3i. He said he filed a motion on 7otice dated 561:622 and !referred to move same. On the da the motion came u!+ the Defendant $as absent $ith his Counsel and the said motion $as struc3 out. The Defendants right to crossEe#amine and enter his defence $as also foreclosed. The Plaintiff thereafter filed and served his $ritten address dated 0622622 $hich he ado!ted as his oral argument. He raised a sole issue for determination $hich is+ $hether b -#hibits CA and C" tendered b PW2+ the Plaintiff has !roved his case against the Defendant to entitle him for .udgment. He argued that the Plaintiff+ b -#hibits CA and C" tendered b PW2+ has successfull !roved his case against the Defendant so as to entitle him to the .udgment of this Court. That -#hibit CA is binding on the !arties. He relies on the case of METIBAYE VS NARELLI INTL LTD (2009) 16 NWLR (PT 1167) PAGE 326 AT 349. = The Plaintiffs Counsel contends that the tenanc being for a ear certain $hich commenced on &0 rd October e#!ired b efflu#ion of time on the && nd da of October+ &121. <n res!ect of /esne !rofit+ Counsel relies on the case of ODUTOLA VS PAPERSA! (NIG.) LTD (2006) 1" NWLR (PT 1012) 470 #$ P#%& 49' ( 6.
He further argued that facts !leaded b a Plaintiff are deemed admitted if the are not controverted. That the Defendant did not controvert the averments in the Plaintiffs Claims as she failed+ refused and or neglected to file a defence challenging this action. That the uncontroverted Statement of Claim is deemed admitted.
He contends that from the totalit of his submission+ the Court should resolve the sole issue in his favour and enter .udgment for the Plaintiff as !er the Statement of Claim. < have carefull gone through the evidence of the sole $itness and the -#hibits CA and C". -#hibit CA is the Tenanc Agreement bet$een the Plaintiff and the Defendant. The agreement is dated 2 st da of A!ril+ &121. Sur!risingl+ it is for a tenanc that runs from &0 rd October+ &11> to && nd October+ &121. There is no evidence before me that the tenanc $ill have a retroactive effect. Ho$ever+ from the evidence before the Court and the !leadings+ the tenanc $as to be for a ear certain. Ho$ever+ !aragra!h C%iii' of -#hibit CA $hich is the Tenanc Agreement+ reads: )I* $+& &,&*$ $+& $&*#*$ -&.#/0$1 2* 3#42*% $+& 1#2- 5&*$ 6&*$27*&- 2* 3#5#%5#3+ 2 7. $+& T&561 7. S&$$0&6&*$ 2* 1/2$ N7. 8T9:9V9'99910 * M5. :&*54 8&62 O17;/ #*- M51. A*2&<&6& A-&=# 8#;757 #1 #$ #*- =+&* -/&> #*- $+& 0#*-075- -&125&1 $+#$ $+& $&*#*$ 1/55&*-&51 3711&1127* 7. $+21 3573&5$4 7 -#41 *7$2?& 6/1$ ;& %2,&* $7 $+& $&*#*$ ;&.75& $+& 0#*-075- ?#* &@&?$ $+& $&*#*$ $+&5&.576A The Plaintiffs Witness Statement on Oath is e#actl the same thing $ith the Statement of Claim $ord for $ord. The Witness Statement on Oath is undated $ith sentences as: (T)* +,$- +.$/ $+ )*0*12 3%*,-*-F (T)* +,$- T*04+ &5 S*//%*4*'/ ,'- T*','62 A70**4*'/ ,%% -,/*- 1 +/ A30$%, 2010 ,0* )*0*12 3%*,-*- ,'- +),%% 1* 0*%$*- .3&' ,/ /)* )*,0$'7 &5 /)* +.$/.F <t is trite la$ that evidence is not !leadings+ neither are !leadings evidence and cannot be so construed. Pleadings must be couched as averments $hile evidence should be couched as testimonies of a $itness in Court based on the !leadings and or averment. To do other$ise and then co! !leadings verbatim b merel changing the headings leaves much to be desired. The evidence of the sole $itness is that the Defendant failed to com!l $ith !aragra!h & of -#hibit C" $hich is the terms of settlement and -#hibit CA $hich is the Tenanc Agreement. That the Defendant also breached !aragra!h vi b converting the said !remises to an office. He testifies that he is desirous of ta3ing over !ossession of the said a!artment and he issued and served : das 7otice of O$ners <ntention to Becover Possession on the 20 th da of 8anuar+ &122. He claims as !er the Writ of Summons. 9rom -#hibit CA+ !aragra!h C %iii'+ $hich is the Tenanc Agreement states+ in the event that the tenant defaults in !aing the said rent mentioned in !aragra!h & of the Terms of Settlement as at and $hen due+ and the landlord desires that the tenant surrenders !ossession of the !ro!ert+ : das notice must be given to the tenant before the landlord can e.ect the tenant therefrom. : The evidence before me is that the tenant had breached the Terms of Settlement as contained in !aragra!h & and the Tenanc Agreement. <n the circumstance + !aragra!h C%iii' !rovides the 3ind of notice to be given. <n -#hibit CA $hich is the Tenanc Agreement bet$een the !arties+ there is an e#!ress sti!ulation that $hen the landlord desires the tenant to surrender !ossession of his !ro!ert+ he shall give the tenant : das 7otice before he can be e.ected. <t is settled la$ that before a tenant is e.ected from the !remises he la$full occu!ies+ he must be served $ith the !rescribed statutor notice to determine the tenanc. This is 3no$n as the Quit Notice. The duration of the notice $ill de!end on such !eriod other$ise agreed b the !arties. On the e#!iration of a notice to 4uit+ if the tenant remains adamant and fails to deliver u! !ossession of the !remises+ a further notice titled Notice to Tenant of Owners Intention To Apply To Recover Possession $ill be issued. <t is onl after the e#!iration of the second
7otice that the landlord can ta3e out a Writ of Summons or a Plaint against the tenant or !erson refusing to deliver u! !ossession. See GAMBARI VS GAMBARI (1990) ' NWLR (PT 1'2) '72 A I:ENA:O VS UBO:U!WU (1997) 2 NWLR (PT 4"7) 2'7 #$ 2'9 ( 260 S. The e#!ress sti!ulation as !er -#hibit CA is that : das 7otice must be given. That is+ the agreement bet$een the !arties. The Plaintiff did not tender an such 7otice to 4uit but issued and served a : das 7otice of O$ners <ntention to Becover Possession+ -#hibit C". Section : of the Becover of Premises Act states: 5 )W+&* #*- 17 177* #1 $+& $&56 75 2*$&5&1$ 7. $+& $&*#*$ 7. #*4 35&621&1 +&0- ;4 +26 #$ =200 75 .75 #*4 $&561 &2$+&5 =2$+ 75 =2$+7/$ ;&2*% 02#;0& $7 $+& 3#46&*$ 7. #*4 5&*$ &*-1 75 21 -/04 -&$&562*&- ;4 # =52$$&* *7$2?& $7 C/2$ #1 2* 8756 B> 75 D =+2?+&,&5 21 #3302?#;0& $7 $+& ?#1& 75 21 7$+&5=21& -/04 -&$&562*&- #*- $+& $&*#*$ D. *&%0&?$1 75 5&./1&1 $7 C/2$ #*- -&02,&5 /3 3711&1127*D $+& 0#*-075- 75 +21 #%&*$ 6#4 ?#/1& $+& 3&517* 17 *&%0&?$2*% $7 ;& 1&5,&- =2$+ # =52$$&* *7$2?& #1 2* 8756 E.A The Plaintiffs onl $itness $ho is the Plaintiff himself having relied on the fact that the Defendant is being e.ected because of a breach of the agreement and Terms of Settlement ought to give the re4uisite : das (uit 7otice en.oined b !aragra!h C%iii' of the Agreement and Sections : and 5 of the Becover of Premises Act. The failure of the Plaintiff to give the said : das C(uit 7otice before the 7otice of O$ners <ntention to Becover Possession+ as in -#hibit C"+ is fatal to his case. The onus of !roof lies on the Plaintiff and he must succeed on the strength of his o$n case and not on the $ea3ness of the defence. The Defendant did not give evidence. ABASI VS. ONIDO (199") ' NWLR (PT. '4") 3 49 A.. N!WO VS IBOE (199") 7 NWLR (PT ''") 3'4 S. U:E VS E!E (199") 9 NWLR (PT '64) 34 S <t is not al$as that .udgment is entered in favour of the Plaintiff $hen the evidence adduced is unchallenged. <n such a case+ the evidence in su!!ort of the Plaintiffs claim must not onl be unchallenged+ it must be credible+ incontrovertible and must su!!ort the Plaintiffs claim. See GREEN ANGER AGRO INDUSTRIES LTD VS YUSU8U (2003) 12 NWLR (PT "3') P 4"". > <n MADARA VS :ALILU (2000) 8WLR (PT.19) 433> the Court of A!!eal follo$ed suit+ !er Salami 8CA+ $hen it held: )I$ 21 *7$ #0=#41 $+#$ # 3#5$4 357-/?&1 /*?+#00&*%&- #*- /*?7*$5#-2?$&- &,2-&*?& $+#$ @/-%6&*$ 21 &*$&5&- 2* +21 .#,7/5D. U*?+#00&*%&- #*- /*?7*$5#-2?$&- &,2-&*?& 21 *7$ 14*7*467/1 =2$+ 3577. ;4 ?5&-2;0& &,2-&*?&.F <n BU:ARI VS OBASANEO (200') ALL 8WLR (PT 273) 1 #$ 4"> the Su!reme Court held: )E,&* =+&5& $+& &,2-&*?& #--/?&- ;4 $+& P0#2*$2.. 21 /*?+#00&*%&-> $+& 7/5$ 1$200 +#1 # -/$4 $7 &,#0/#$& $+& &,2-&*?& #--/?&- $7 1&& 2. 2$ 21 ?5&-2;0& &*7/%+ $7 1/1$#2* $+& ?0#26.A While it is true that the Defendant failed to file a defence+ neither did he give evidence+ and he is ta3en to admit the facts !leaded b the PlaintiffG the facts !leaded and the evidence given must be credible enough to sustain the claim. <n the circumstance of this case+ the Plaintiff failed to !rove his case as en.oined b Sections :+ 5 and 2>%2' of the Becover of Premises Act Ca!. =)) ;a$s of the 9ederation of 7igeria+ 2>>1. Conse4uentl+ the suit fails and it is hereb struc3 out. Parties absent. ?ictor AgunAi for the Plaintiff. 8udgment delivered. Signed. Hon. 8udge. &561&62&. 21