Doyin Awoyale SAN & Co

25/12/2022

22/11/2021

Rules, Regulations and Guidelines of the Central Banks of Nigeria made pursuant to the Central Bank Act and the Bank and Other Financial Institutions Act (BOFIA) constitute Subsidiary Legislations for which the Court shall take judicial notice within the meaning of Section 122 (2) of the Evidence Act 2011.

IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
On Friday, the 21st day of May, 2021

AMINA ADAMU AUGIE, JSC
UWANI MUSA ABBA AJI, JSC
MOHAMMED LAWAL GARBA, JSC
SAMUEL CHUKWUDUMEDI OSEJI, JSC
EMMANUEL AKOMAYE AGIM, JSC


ACCESS BANK PLC

V

MR. FOLORUSHO OGBOJA

(Lead Judgement delivered by Honourable JusticeSamuel ChukwudumediOsejiJSC)

Facts of the case:
The Respondent who was a customer of the Appellant, applied for overdraft facilities from the Appellant. He was given a form of acceptance which he filled. He paid all the principal sum and interest of the facilities as requested by the agreement. He applied for another facility but defaulted on payment of the principal sum and interest for 1 year. The facility accumulated interest and charges. The Respondent thus instituted an action claiming inter alia that the Appellant cannot unilaterally increase or charge interest rates on the facility; that all the increased interest rate charges were null and void and an injunction, restraining the Appellant from selling any of his property via public auction. The trial Court entered judgment for the Appellant. Dissatisfied, the Respondent lodged on appeal to the Court of Appeal. The Court of Appeal dismissed the trial Court’s judgment and entered judgment for the Respondent. Also dissatisfied, the Appellant lodged an appeal to the Supreme Court.

Judgment of the court and reason
On whether the rules, guidelines, and regulations made by the Central Bank of Nigeria can be regarded as laws made by National Assembly, so as to make the rules, guidelines and regulations enjoy recognition by way of judicial notice like laws made by the National Assembly.
​The court reiterated that the main grouse of the Appellant is that the Rules, Guidelines and Regulations made by the Central Bank of Nigeriacannot be regarded as laws made by the National Assembly as to enable the Courts take judicial notice of them. Furthermore, that having not pleaded the rate as stipulated by the Central Bank of Nigeria, the trial Court was right to have discountenanced the Central Bank of Nigeria Guidelines/ Regulations relied on by the Respondent because it is in consonance with the decision in Okoro v. Okoro (2009) All FWLR (pt. 489) 480, to the effect that Courts cannot take judicial notice of such guidelines and Regulations without evidence in support.
​Now, it is provided in Section 122 (2) of the Evidence Act 2011, that the Court shall take judicial notice of all laws or enactments and any Subsidiary Legislation made under them having the force of law now or previously in force in any part of Nigeria. The use of the word “shall” in a statute, Subsidiary Legislation or Rules of Court creates a mandatory requirement that such provisions must be obeyed. “Shall’ is used to express a command or strict directive to the letter. The court relied onOnoche v. Odogwu (2006) 2 SCNJ 96; Ifezue v. Mbadugha (1984) SCNLR 84. Their lordships stated as a matter of emphasis that the law is trite that no fact of which the Court must take judicial notice need be proved and such fact which the Court must take notice are clearly set out in Section 122 (2) Of the Evidence Act 2011. Also in Amaechi v. Inec& Ors (No.3) (2007) 18 NWLR (pt. 1065) 105; Peenok Investment Ltd v. Hotel Presidential Ltd (1998) 12 SC 1; Ado Ibrahim & Co Ltd v. Bendel Cement Co. Ltd (2007) LPELR -188 (SC); Lafia Local Government v. Executive Governor Nasarawa State & Ors (2012) 17 NWLR (pt.1328) 94.
On the contention by learned Counsel for the Appellant that Rules, guidelines and Regulations made by the Central Bank of Nigeria cannot be regarded as laws made by the National Assembly for the purpose of recognition by the Court by way of Judicial Notice.
​Section 57 of the Bank and Other Financial Institution Act (BOFIA) Act as amended, provided that: -
57 (1)​“The Governor may make regulations published in the Federal Government Gazette or in any other medium, pursuant to the objective of the Act.
57 (2) without prejudice to the Provisions of Subsection (1) the Governor may make rules and regulations for the operation and control of all institutions under the Supervision of the Bank”.
​“Furthermore, Section 51 of the Central Bank Act 2007, provides that the board shall have power to make and alter rules and regulations for the good order and management of the Bank”
Section 33(1) of the said Act provide thus: -
33(1) “In addition to any of its Powers under this Act, the bank may: -
(a)​Require persons and institutions having access thereto at all reasonable times to supply in such forms as the Bank may from time to time direct, information relating to or touching or concerning matters affecting the economy of Nigeria and
(b)​Issue guidelines to any person and any institution under it supervision”.
From the above provision of the statutes the Court held that, it is clear the Central Bank of Nigeria has the statutory clout to make Rules, Regulations and guidelines with regard to monetary policy and control of the banking industry. Such Rules, Regulations and Guidelines, in their lordships humble view, constitutes or can genuinely be classified as Subsidiary Legislation. A Subsidiary Legislation or enactment is one that is made subsequent to and pursuant to the authority derived from the principal statute or enactment. It thus derives its force or efficacy from the principal statute to which it is complimentary or subsidiary. That is to say that Subsidiary Legislation, subject to their conformity with the principal law which provide the source of their existence and substance, enjoy the same clout of authority and efficacy as the principal law. Their lordships placed reliance on Section 18 (1) of the Interpretation Act. Also AdeboyeAmusa v. The State (2003) 4 NWLR (pt. 811) 595; Mayaki v. Lagos City Council (1971) 9 SC 81 at 92; Adene v. Dantunbu (1994) 2 NWLR (pt.328) 509 at 534.
The conclusion of the matter is that judicial notice of a Subsidiary Legislation is taken as having the force of Law without any further proof and as earlier stated, the Rules, Regulations and guidelines of the Central Banks of Nigeria made pursuant to the Central Bank Act and the Bank and Other Financial Institutions Act (BOFIA) constitute Subsidiary Legislations for which the Court shall take judicial notice within the meaning of Section 122 (2) of the Evidence Act 2011.


Representation
Tunde Adeoye, Esq., (with him, T. O. Ajayi, Esq. and Daniel Ojo, Esq.) - for the Appellant
Prince A. A. Ojopagogo, Esq., - for the Respondent
Reported in (2021) Modern Weekly Law Reports (MWLR) pt 29 p. 1-54
(Modern Weekly Law Reports (MWLR) is a publication of Doyen Law Publishers Limited)

22/11/2021

The mere flight by someone from the scene of crime, per se is not evidence that the person committed the crime.

SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRIDAY, 7 MAY 2021

BEFORE THEIR LORDSHIPS
MUSA DATTIJO MUHAMMAD, JSC
CHIMA CENTUS NWEZE, JSC
HELEN MORONKEJI OGUNWUMIJU, JSC
ABDU ABOKI, JSC
TIJJANI ABUBAKAR, JSC

IBRAHIM OLAYIWOLA

V

THE STATE
(Lead Judgement delivered by Honourable Justice ABDU ABOKI, JSC)


Facts of the case:
The Appellant was arraigned before the High Court of Kwara State, for the offences of conspiracy to commit Armed Robbery and Armed Robbery, contrary to Section 6(a) and 1(2) (a) of the Robbery and Fi****ms (Special Provisions) Act, Laws of the Federation of Nigeria, 2004, in that the Appellant and others, while armed with guns, robbed one Abdulrahman Aliyu, a Filling Station Attendant at Rockfield Petrol Station, Ilorin on 18 February 2011. The Appellant pleaded not guilty to the charge. The trial Court found the Appellant guilty and sentenced him to death by hanging. Upon appeal to the Court of Appeal, the Court of Appeal upheld the trial Court’s conviction and sentence. Further aggrieved, the Appellant lodged an appeal to the Supreme Court.
​
Issue for determination:
Whether the lower Court was right in affirming the conviction and sentence of the Appellant for the offences of conspiracy and Armed Robbery, pursuant to Sections (6)(a) and 1(2)(a) of the Robbery and Fi****ms (Special Provisions) Act.
Counsel’s Argument:
Learned Counsel for the Appellant submitted that the Respondent herein did not lead credible evidence to show that there was an agreement between the Appellant and any other accused person to commit an offence.
Learned Counsel argued that the Appellant was not arrested at the scene of the crime considering that he was arrested along the road while he was coming from the bush, where he had gone to excrete.
The learned Counsel insisted that there was no nexus between the Appellant and the other accused persons to found the offence of conspiracy.
On the offence of Armed Robbery, the learned Counsel canvassed for the Appellant that the Respondent did not prove the elements of the offence of armed robbery against the Appellant. He relied on the case of State v. Salawa (2011) LPELR-8252 (SC).
Learned Counsel for the Appellant stated further that the Appellant was arrested out of suspicion, and suspicion, no matter how strong, cannot found a conviction. He cited the case of Olagesin v. State (2013) All FWLR (pt. 1690) 1703.
Relying on the case of Olagesin v. State supra the learned Counsel insisted that the Appellant’s defence of alibi was not considered by either the Court below, or the trial Court.
For the Respondent, it is submitted that the Court below was right in affirming the conviction of the Appellant for the offence of Conspiracy to commit Armed Robbery as charged. Learned Counsel for the Respondent invited the Court’s attention to the extra judicial statements of the Appellant at pages 11 -12 of the Record, and noted that the Appellant gave a vivid and concise statement of the plans and the Court below had no choice but affirm the judgment of the trial Court.
It is the view of learned Counsel for the Respondent that from the totality of the evidence adduced, the Prosecution had discharged the onus placed on it by law. He opined that the defence of alibi, being raised by the Appellant herein, was neither raised at the Court below nor at the trial Court and this Court is urged to dismiss the appeal and affirm the judgment of the Court below.
In reply, it is submitted for the Appellant that even where the defence of alibi was not raised at the preliminary stage, a Court is bound to consider all the defence available to the Accused which himself did not raise, especially where the accused is facing a trial where his life is at stake.
​
Judgment of the court and the reason:
The Court reiterated that in criminal matters such as the one we are faced with, the standard of proof is beyond reasonable doubt. This is a principle that is fundamental and sacrosanct and in establishing that required standard of proof, all the essential elements or ingredients must be proved on that standard. This is because the ingredients are cumulative and none should be found lacking before the proof beyond reasonable doubt is said to have been met. Therefore, once all those vital ingredients are established altogether beyond reasonable doubt, the Court is enabled to convict the accused.
Relying on the case of Bello v State (2007) 10 NWLR (pt. 1043) 546 it was held that the essential elements of the offence of armed robbery on which the Appellant was charged thereof are:
a.​That there was a robbery or series of robberies
b.​That the robbery was with arms.
c.​That the Accused Person was the Armed Robber or one of the armed robbers.
It was further held that the most vital ingredient is whether the Appellant was the armed robber, or one of the Armed Robbers?
On the necessity of identification, the trial Court stated:
“....The 1st Accused Person was arrested and he led the Police to arrest the other accused persons... There is no necessity of identification parade in respect of the Accused Persons. There is nothing to show that there is doubt on the identification of any of the Accused Persons.... There is evidence of the commission of the offences even outside the confession by the evidence of PW2, PW3 and PW4...”
On when an identification parade would become necessary, their lordships relied on the decision of Per Ariwoola, J.S.C in Agboola v. State (2013) LPELR- 20652 SC, held as follows:
“Generally, Identification evidence is evidence tending to show that the person charged with an offence is the same as the person who was seen committing the offence. Therefore, whenever the trial Court is confronted with identification evidence, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the Accused before the Court was the person who actually committed the offence with which he is charged. Identification parade, otherwise known as lineup, is a police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime. See Black’s Law Dictionary, 9th Edition, page 1014. Ordinarily, identification parade is said not to be a sine qua non for identification in all cases where there have been a fleeting encounter with the victim of a crime, if there is yet other pieces of evidence leading conclusively to the identity of the perpetrator of the offence. An identification parade would become necessary only in the following situations of visual identification:
(a)​ Where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence;
(b) ​Where the victim was confronted by the offender for a very short time; and
(c) ​Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused.”
The learned Counsel for the Appellant urged the court to hold that there was need for an identification parade because the appeal at hand, fits into the criteria stated above by this Court in Agboola v. State supra.
​Their lordships held that, the posture of the learned Counsel for the Appellant cannot fly, in view of the fact that evidence on record indicates that the Appellant was arrested at the scene of the crime.
What is more is that the evidence of the Respondent’s witnesses, thoroughly corroborated the Extra Judicial Statements of the Appellant.
One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the Prosecution, as done in this matter, the charge is proved beyond reasonable doubt.
Relying on the decision of per Rhodes-Vivour JSC, in Nwaturuocha v. State (supra), it was held as follows:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the Accused Person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. This Court will not interfere with concurrent findings of the trial Court and the Court of Appeal on issues of fact except where the findings are perverse, or there is established a miscarriage of justice or a violation of principles of law or procedure....
Nweze, JSC stated that as a general proposition, where a trial Court is confronted with the question of identification of an accused person, it should be satisfied that the evidence of identification, which the Prosecution marshalled, establishes his guilt beyond reasonable doubt. His lordship relied on Ukpabi v. The State (2004) 34 WRN 133, (2004) 7 SC 189, 199-200.
The Court was of the view that, the trial Court carefully considered and evaluated the evidence in this case and came to the correct decision, as affirmed by the Court below, that the case against the Appellant has been proved beyond reasonable doubt.
Their lordships held that, the defence of alibi fades into insignificance in the light of clear evidence to the contrary. Their lordships held that, the law is settled that the mere flight by someone from the scene of crime, per se is not evidence that the person committed the crime. However, where there is cogent, sufficient and accepted evidence fixing the accused at the scene of crime, particularly where the suspect took to his heels, was pursued by a mob or group of persons and apprehended, especially with some or all the exhibits, or the subject matter of the crime.... the defence of alibi, put up by the suspect, is demolished. Their lordships relied on the case of Emeka v. The State (2001) LPELR-1125 SC.
The decision of the lower Court which upheld the conviction of, and sentence on the Appellant.

Representation
Dr. Oladoyin Awoyale, (with him, Philip Akpans) - for the Appellant.
Kolade Obafemi - for the Respondent

Reported in (2021) Modern Weekly Law Reports (MWLR) pt 22 p. 420-440
(Modern Weekly Law Reports (MWLR) is a publication of Doyen Law Publishers Limited)

22/11/2021

A Governor, as Chief Executive of the State has no power to dissolve, truncate or suspend a democratically elected Local Government Council and unilaterally appoint his cronies.


IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRIDAY, THE 7TH DAY OF MAY, 2021

BEFORE THEIR LORDSHIPS
KUDIRAT M. O. KEKERE-EKUN, JSC
JOHN INYANG OKORO, JSC
EJEMBI EKO, JSC
IBRAHIM MOHAMMED MUSA SAULAWA, JSC
ADAMU JAURO, JSC

BETWEEN

BASHORUN MASUN AJUWON & 10 Ors

AND

GOVERNOR OF OYO STATE & 6 Ors
​

(Lead Judgement delivered by Honourable Justice Ejembi Eko, JSC)

Facts of the case:
The Appellants were duly elected into the offices of Chairman and Councilors of Oyo State Local Government Council for a term of 3 years in March 2018, which tenure was to expire in 2021. In 2019, the Respondents’, purporting to act under Sections 11 and 21 of the Oyo State Local Government Law of 2001, dissolved their offices merely 10 months into the assumption of office. The Appellants, who perceived this move from the Respondents, had earlier by way of Originating Summons before the Federal High Court, sought for the determination of whether the Respondents can dissolve democratically elected Local Government Chairman and Councilors and handpick non-elected Transition/Caretaker Committees, in violation of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The trial Court granted the Appellants reliefs and granted anorder of injunction, restraining the Respondents from dissolving the offices of the Appellants and removing them from office. In May 2019, the Respondents, in violation of the order of the High Court, dissolved the democratically elected Local Government Councils in Oyo State; and then sought to appeal the orders of the Oyo State High Court. The Court of Appeal on 15 July 2020, allowed the appeal of the Respondents, and set aside the judgment of the trial Court. Dissatisfied, the Appellants lodged an appeal to the Supreme Court.​
​
Issues for determination:
Whether in the light of Section 7(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Executive Governor of Oyo State can rely on Sections 11 and 21 of the Local Government Law of Oyo State, 2001 (as amended) to dissolve a democratically elected Local Government Council and replace them with unelected Caretaker or Transitional Committee.

Judgment of the Court and the reason
Their Lordships held that the general qualification for judicial review of administrative actions is that the Claimant or the applicant must have the standing or locus standi to challenge the administrative action. He must have an interest cognisable in that he has been sufficiently affected by the administrative action; and for the case to be “ripe” for adjudication or judicial consideration the issues involved must be real, present and imminent; and not merely abstract or hypothetical: Their Lordships relied on Cases and Materials on Administrative Law in Nigeria – Iluyomade & Eka, 2nd Edition (1992) Page 98. Their Lordships held that in the instant case, the enactment of Sections 11 and 21 of the Local Government Law by the House of Assembly (6th Defendant) empowering either the Governor (1st Defendant) or the House of Assembly to truncate the tenure of democratically elected Local Government Councils, and in their place, to appoint unelected Caretaker Committees, poses real threat to those elected Local Government Chairmen and Councilors. The issue viewed particularly viz-a-viz Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that guarantees the system of democratically elected Local Government Councils, is real and live. It is neither hypothetical nor academic.
Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides:
“The system of Local Government by democratically elected Local Government councils is under this Constitution guaranteed; and accordingly, the Government of every state shall, subject to Section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and function of such councils.” (Underlining mine)
​Section 1 (1) and (3) of the Constitution provides:
“1. (1) This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
​(3) ​If any other law is inconsistent with the provisions of this Constitution, the ​​​Constitution shall prevail, and that other law shall, to the extent of the ​​​inconsistency be void.”
Section 11 of the Local Government Law of Oyo State empowers the 1st Respondent to set up a 7-Member Transitional Committee, one of whom shall be the Chairman to run the affairs of the Local Government Council where its tenure has expired and no election has been held to reconstitute it, or where it has become “impractical to immediately conduct elections” to fill the vacancies thereby created. Section 21 further empowers the 1st Respondent to suspend or remove from office, any democratically elected Chairman or Vice-Chairman.
Their Lordships held that when a party has locus standi to request adjudication he is said to have the right, in law, to seek the adjudication upon a legal grievance or cause of action. Their Lordships placed reliance on Adesanya v. The President of Nigeria (1981) 2 NCLR 358 at 393. Their Lordships held further that, the Claimants, in the instant case, derived their mandate from the electorates (and not the Defendants) to manage the affairs of their respective Local Government Councils for 3 years on behalf of the people who elected them. Sections 11 and 21 of the Local Government Law, which they alleged are inconsistent with Section 7(1) of the Constitution, posed and continue to pose real, imminent and ominous threat to the security of their tenure. Sections 11 and 21 of the Law, unless lawfully quashed, remain a perpetual threat hanging over their heads like the Sword of Damacles, thus, subjecting them to the whims and caprices of the Governor and the House of Assembly. The danger, if not hazard, posed by Section 11 and 21 of the Local Government Law of Oyo State, to the system of democratically elected Local Government Councils was/is real and imminent. It was/is not speculative, as the lower Court erroneously held to deny the Claimants access to Court.
Their lordships held further that the question the lower Court should have asked itself, but failed to ask is: whether the Claimants were genuine Claimants seeking the Court to decide whether Sections 11 and 21 of the Local Government Law were ultra vires Section 7(1) of the Constitution? Their lordships relied on the decision of his Lordship, Pats Acholonu, JSC in Ladejobi v. Oguntayo (2004) 15 NWLR (pt. 904) 149 (SC) at page 171 which stated that
“It is important to always bear in mind that ready and easy access to the Court for the determination of his civil rights and obligations by a genuine Claimant is one of the attributes of civilised legal system. For a genuine Claimant, not a busy body, easy accessibility to the Court for the determination of the civil rights and obligations is a basic constitutional right, by virtue of Sections 6(6)(b) and 17(2)(c) of the Constitution’’.
It is for this reason that his Lordship, Pats Acholonu, JSC (supra), warned thatlimiting the opportunity for citizens to seek redress in Courts of law by rigid adherence to the principle of locus standi (which is whether a person has the standing to sue and seek redress in Court) could be dangerous.
Their Lordships held that, the misconception by the State authorities that the Constitution does not intend to grant and guarantee autonomy to the Local Government is only a brain wave nurtured by sheer aggrandisement and meglomaniac instinct to conquer and make the Local Government mere parastatals of the State. That is the very mischief Section 7(1) of the Constitution has set out to address, and it must be so read and construed purposefully.
Their Lordships relied on the decision of Nweze, JSC, has put it in Governor of Ekiti State v. Olubunmi (supra), which stated that ‘‘the intendment of the Constitution is to vouchsafe the inviolability of the sacred mandate which the electorate, at that level, democratically donated to the Local Government Chairman and Councilors’’.
His lordship Ejembi Eko, JSC stated that
“It is almost becoming universal phenomena that the democratically elected Governors have constituted themselves a specie most dangerous to democracy in this country. They disdainfully disregard and disrupt democratically elected Local Government Councils and appoint their lackeys as caretaker committees to run affairs of the Local Governments. It should be reiterated as Abdullahi, PCA and Ndukwe-Anyanwu, JCA did say, respectively in Abubakar v. A. G., Federation (2007) 3 NWLR (pt. 1022) 601 (CA) at 619 and A. G. Benue State v. Umar (CA) (supra) at 363, that an elected person is not an employee of anybody except the electorate that voted him in. It is only the electorate that can fire him. Democratic elections should always be sacrosanct in this country, like in any other country, for democracy to thrive. Local Government Chairman and Councilors, being persons duly elected by the people cannot just be removed and their councils dissolved whimsically and arbitrarily by any other elected persons in clear abuse of their office and powers. It is not right in law and under the Constitution to do that’’.
Their Lordships held that since they can no longer re-instate the Appellants to complete their respective terms, the Appellants on the basis of ubi jus ibi remedium, cannot go without any remedy. On the authority of A.G. Benue State v. Umar (SC.199/2007 of 15 April 2008); Governor of Ekiti State v. Olubunmi & Ors (supra), together with Section 22 of the Supreme Court Act, their Lordships hereby ordered that the Claimants/Appellants be each paid the salaries and allowances they were each entitled to be paid for the balance of the period from 29 May 2019 ending on 11 May 2021, when the respective tenures they were elected for would end. Their Lordships held that the 1st Defendant/Respondent, shall forthwith pay the said salaries and allowances of the Appellants as ordered. Their Lordships held further that the Attorney-General of Oyo State, the 2nd Respondent herein (being also an authority or person charged mandatorily or obligated by Section 287 of the Constitution to enforce decisions and orders of Courts), shall cause to be filed, on or before 7 August, 2021 an affidavit (under the hand of the incumbent of that office), attesting to the payment of salaries and allowances hereby ordered to be paid to the Claimants/Appellants in compliance with this order(s).
Their Lordships ordered the 1st Respondent to pay costs of N20,000,000.00 (Twenty Million Naira) to the Appellants.
​The appeal was allowed.

Representation:
Yusuf Ali, SAN (with him, Adekunle Sobaloju, Esq; Alex Akola, Esq; N. N. Adegboye, Esq. and Oladele Oyelami, Esq.) - for the Appellants.
Otunba Kunle Kalejaiye, San (with him, Akintola Kalejaiye Esq and D. D. Owoeye, Esq.) - for the 1st - 6th Respondents.
Yusuf Olatunji Ogunrinde, Esq. (with him, Joseph Adeoye, Esq.) - for the 7th Respondent

Reported in (2021) Modern Weekly Law Report (MWLR) pt. 33 P. 491-564
(Modern Weekly Law Report (MWLR) is a publication of Doyen Law Publishers Limited)

22/11/2021

IMMEDIATELY A WRIT IS FILED TO REGAIN POSSESSION, THE IRREGULARITY OF THE NOTICE IF ANY, IS CURED

Supreme Court of Nigeria
Holden at Abuja

On Friday, the 5th day of February, 2021

Before Their Lordships
OLABODE RHODES-VIVOUR, JSC
MUSA DATTIJO MUHAMMAD, JSC
HELEN MORONKEJI OGUNWUMIJU, JSC
ABDU ABOKI, JSC
EMMANUEL AKOMAYE AGIM, JSC

BETWEEN:

PILLARS NIG. LTD

AND

WILLIAMS KOJO DESBORDES & 1 Or

(Lead Judgement delivered by Honourable Justice Emmanuel Akomaye Agim, JSC)
Facts of the case:

The cause of action in this appeal is the contract of lease for a plot of land at plot B, Sabiu Ajose Crescent, Surulere Lagos. The contract of lease was completed on 24 October 1977, when the Respondent as lessor entered into a 26 year Developer’s lease to erect a building within 2years on or before 1979 on payment of annual rent payable in advance. The suit was initiated by the Respondents as lessor in 1993 to recover the property due to non compliance with leasing terms of erecting a building on the land. Both lower Courts found that the Appellant as lessee breached the terms of lease. The 1st issue and complaint is that the Court of Appeal was wrong to affirm the judgment of the trial Court that the Respondent pleaded and proved service of statutory “Notice of breach of covenant” Exhibit E. It is trite that facts only and not the evidence to prove the facts need to be pleaded. Specific documentary evidence need not be pleaded as long as the facts relating to the document are expressly pleaded.

The Appellant in this appeal in formulating ground one in the notice of appeal, complained about the decision of the Court of Appeal affirming the decision of the trial court accepting PW 1’s evidence as credible against the testimony of DW1. However, in formulating the issues for determination, the first issue formulated questioned whether the Court of Appeal was right in affirming the decision of the trial Court that the Respondent did plead and proved service of statutory notices of breach of covenant Exhibit E and Notice to Quit Exhibit G as required by law. The issue did not emanate from the first ground of appeal.

Issue for determination

Whether the Court of Appeal was right in affirming the decision of the trial Court that the Respondents did plead and prove service of Statutory Notice of Breach of Covenant (Exhibit E) and Notice of Quit (Exhibit G) as required by law.

Judgment of the court and the reason

The Supreme Court held that an issue is derived from a ground where the subject matter of the issue is the same as the subject matter of the complaint in the ground. Any issue raised for determination in an appeal that is not based on or covered by any ground of the appeal is not valid for consideration and must be struck out. In this instant appeal, no issue was distilled from Ground one in the Notice of Appeal. By not raising any issue for determination from the said ground one, the Appellant herein has abandoned the ground one and same was struck out.

In resolving the issue questioning the decision of the court of appeal which affirmed the decision of the trial Court to the extent that the Respondents pleaded and proved the service of statutory “Notice of Breach of Covenant (Exhibit E), relying on Order 17 Rule 4 of the High Court of Lagos State Civil Procedure) Law (1994), Cap. 61 which provides that: “Every pleading shall contain, and contain only a statement in a summary form the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.” the Supreme Court held that the provisions of Order 17 Rule 4 of the High Court of Lagos State Civil Procedure) Rules (1994) Cap is explicit and unequivocal. Pleadings should contain facts and not evidence. Documentary evidence need not be specifically pleaded in order to be admissible, as long as facts and not the evidence by which such a document is covered are expressly pleaded. Their Lordships relied on Okonkwo v. Co-operative and Commerce Bank (Nig.) Plc & 2 Others (2003) 8 NWLR (pt. 822) 347. The Court stated that the Plaintiff/Respondent in paragraph 9 of their Amended Statement of Claim, pleaded letters and Notice of Breach of Covenant. The contents of these documents are facts. When a document is referred to in a pleading, it ought to be tied to the facts for which it has been cited. Where the facts are stated in respect of the breach and not directly tied to the document, notice of breach if pleaded, it should suffice as in the instance cases. It is imperative, that utmost care be observed whilst drafting pleadings in order to ensure material facts are stated. Their Lordships relied on The Authors of Bullen & Leake: Precedents of Pleading (12th Edition) page 44.

On issue of whether the Respondent should have pleaded the legal effect of the Notice of the Breach as a fact before it is tendered. The Supreme Court held that to plead the legal effect of the Notice of the Breach as a fact before it is tendered is a clear misconception of the modern rule on pleadings. The strict rigid old legal terminology of pleading have since changed in line with new procedures. The pleader is not bound to state the legal result of a document pleaded or facts pleaded. Any attempt to so state legal effect will amount to argument in pleadings. Any legal consequence which the facts admit should be reserved for argument in brief.
Appellant counsel Mr. Anaenugwu urged the Court to invoke Section 149 (d) of the Evidence Act, in view of the failure of the Plaintiff/Respondent to call Mr. Alade Akinsode or whoever effected service of Exhibit E to testify as to the mode of service. The Appellant in their Amended Statement of Defence on paragraph 4, pleaded a general traverse and in paragraph 5, tried to respond to paragraph 9 by pleading that based on the agreement between the Plaintiff and Defendant, they submitted a Building Plan. This response is not a denial of the existence of the Notice of Breach Exhibit E. The general traverse in paragraph 4 is equally not of value particularly when DW1 in evidence admitted Service of Notice of Intention after the denial in the pleading. The learned trial Judge rightly held that Exhibits E and G were served on the Appellant. This issue fails.
The Court stated that there is no Ground of this Appeal complaining against the decision of the Court of Appeal that the Appellant is estopped from contending that the Notice of Breach of Covenant was not pleaded as it was tendered and admitted in evidence as Exhibit E without its objection to its admissibility. By not appealing against this decision, the Appellant accepted it as correct, conclusive and binding upon it. Having accepted the decision as correct, conclusive and binding upon it, it cannot validly argue in this appeal that Exhibit E was not pleaded or sufficiently pleaded. It is trite law that in an appeal against a judgment, a party who did not appeal against a finding, holding or decision, accepts it as correct, conclusive and binding and cannot argue against it. As held in Iyoho v. Effiong (2007) 4 SC (pt. 11) 90 and Dabup v. Kolo (1993) 12 SCNJ 1.
The Supreme Court further stated that the argument of an appeal against a decision must refer to the decision being argued against and show that the decision is wrong for some reason. An argument would be ineffective and invalid if it does not refer to the decision complained against and does not demonstrate why it is wrong.
Agreeing with the lead judgment Honourable Ogunwumiju, JSC held that the strongest point made by the Appellant is that the Respondent had waived their right to forfeiture by demanding and collecting rent till 1995. His Lordship agreed with the decision of the Court below in agreeing with the High Court that even though the Respondent collected rent till 1991, there was a letter by the Respondent’s Counsel- Exhibit N written in 1992 clearly showing an intention to terminate the lease. The fact that a landlord collected rent on a property still in occupation or possession of the tenant after Notice to Quit has been issued cannot by any stretch of the law, equity or imagination amount to a waiver of the Notice to Quit even where the notice had expired and the tenant refused to yield possession in time. The Notice to Quit would subsist until it is formally rescinded by the landlord and/or when a fresh tenancy agreement is entered into.
His Lordship, Honourable Ogunwumiju, JSC, held that equity demands that wherever and whenever there is controversy on when or how a Notice of Forfeiture or Notice to Quit is disputed by the parties, or even where there is irregularity in giving of a Notice to Quit, the filing of an action by the landlord to regain possession of the property has to be sufficient to the tenant that he is required to yield up possession. Whatever form the periodic tenancy is, whether weekly, monthly, quarterly, yearly etc., immediately a writ is filed to regain possession, the irregularity of the Notice if any, is cured. Time to give notice should start to run from the date the writ is served. The ruse of faulty notice used by tenants to perpetuate possession in a house or property which the landlord had slaved to build and relies on for means of sustenance cannot be sustained in any just society under the guise of adherence to any technical rule.
The Court held further as follows:
I am not saying here that statutory and proper Notice to Quit should not be given. Whatever form the periodic tenancy is, whether weekly, monthly, quarterly, yearly etc., immediately a writ is filed to regain possession, the irregularity of the Notice if any, is cured. Time to give notice should start to run from the date the writ is served. If for example, a yearly tenant, six months after the writ is served and so on. All the dance drama around the issue of the irregularity of the notice ends. The Court would only be required to settle other issues if any, between the parties. This appeal has absolutely no merit and it is hereby dismissed.

Appeal Dismissed
Representation
Chigbo Anaenugwu, with him, V. I. P. Ozumba - for the Appellant.
Tochukwu Onyiuke (with him, Nnemeka Otagburuagu and Adaeze Anah) - for the Respondents
Reported in (2021) Modern Weekly Law Reports (MWLR) pt 13 P. 585-608
(Modern Weekly Law Reports (MWLR) is a publication of Doyen Law Publishers Limited)