Mr. Jerry Ibekwe V. Mr. Nelson Nweke (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of Honourable Justice K.O. Alogba delivered on the 21st of October 2008 at the High Court of Lagos State, Ikeja Judicial Division, whereby he entered Judgment in favour of the Claimant/Respondent against the Defendant/Appellant for mesne profits for the use and occupation of the premises in use at the rate of fifty thousand naira per month, from 1st day of July 2005 until possession is ordered to be given up.

The genesis of this case is that the Respondent Nelson Nweke (as Claimant in the lower Court) had claimed against the Appellant (as Respondent) for

(i) Possession of property described as a four-bedroom semi-detached duplex together with the two rooms boy’s quarters and other appurtenances thereto situate at No 21A Nelson Nweke Street, Magodo, GRA, Lagos.

(ii) Mesne profit for the use and occupation of the premises in the sum of one million, one hundred thousand naira of the rate of N50,000.00 per month from 1st July 2005-30th April 2007 and at the rate of N50,000.00 per month from 21st April 2007 until possession is given up.

(iii) Cost of this action – pages 1 – 2 of the Record of Appeal.

FACTS OF THE CASE

The Appellant occupied as a tenant, property described on the Writ of Summons and as claimed by the Respondent, which tenancy commenced on the 1st of July 2003 and expired on the 30th of June 2005. The Appellant did not renew the tenancy, neither did he yield up possession of the premises to the Respondent.

However, by letter dated 2nd August 2006, he expressed his desire to renew his tenancy in the premises for another term of 2(two) years commencing from the 1st of July 2005 to the 30th of June 2007. By letter dated 1st September 2006, the Respondent accepted this offer of renewal.

The Appellant did not pay the renegotiated rent.

The Respondent, consequent on this, instituted an action for the recovery of the premises from the Appellant. This case was heard on its merits.

The learned trial Judge found for the Respondent by holding the following:

(1) That the Appellant original tenancy was determined on the 30th day of June 2005, by effluxion of time and thus could only be entitled to a Notice of Intention to apply to recover possession, as he no longer at the time had any tenancy in existence which needed to be determined – pages 152 and 153 of the Record of Appeal.

(2) That the Appellant made an offer to the Respondent for another term which was accepted by the Respondent, subject to the terms therein contained. However, despite the acceptance, Appellant did not comply with the terms, therefore there was no agreement or renewal of the tenancy – page 153 of the Record of Appeal.