Afribank Nigeria Plc V. Ubana Ebri Ubana (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

The Respondent was the Plaintiff in Suit No. HUG/12/2010 at Ugep Division of the High Court of Cross River State which suit was commenced through the Writ of Summons filed with the Statement of Claim filed on 26th March, 2010 for the relief stated on the Writ of summons thus:

“WHEREOF the Claimant claims from the Defendant the sum of N30 Million (Thirty Million Naira) only for breach of contract.”

The claim was also stated in paragraph 17 of the Statement of Claim.

The salient facts of the relationship of the parties are in paragraphs 3, 5, 9, and 11 of the Statement of Claim as follows:

“3. Claimant states that in 1988, he entered into an agreement wherein the Defendant rented the property (building) of the claimant for her financial business of banking. The property is located at Obojukwa-Abanankpai, Nko in Yakurr Local Government Area of Cross River State.

5. It is further averred that in a letter Ref. No. AEC.ROPH/252/09/2009 dated 14th day of September, 2009 the Defendant wrote to the claimant notifying him of the expiry of the lease by 31st December, 2009 and Defendant’s management’s intention not to renew the agreement. The letter is hereby pleaded.
6. Claimant aver that he then notified the Defendant of his disappointment of the Defendant’s behaviour in not taking steps to make good the defaced areas of the property before that day 8/12/09. Defendant was also informed of increase in rent if the Defendant was minded to continue in the occupation of the property. The letter from the claimant to Defendant dated 8/12/09 is hereby pleaded.
7. Defendant held on to the property in January, February, and March 2010. Claimant was left with no option than to remind Defendant of that continuous occupation of his property against the agreement in a letter dated 3rd March 2010. The letter is hereby pleaded.”

The Appellant was the Respondent’s tenant in the property located at Obojukwa Abanankpai Nko, cross River State under a lease agreement that expired on 31st December, 2009. The Appellant had, through its letter dated 14th September, 2009 intimated the Respondent with its intention not to renew the agreement and suggested a pre-vacation inspection of the premises which the parties conducted on 7th November, 2009. When it became apparent that the Appellant was not taking steps to vacate the premises, the Respondent wrote a letter to the Appellant dated 8th December, 2009 wherein the Respondent expressed displeasure in the Appellant’s failure to make adequate arrangements to enable him take possession of the property on 31/12/2009. The Respondent however said in the same letter that:

“However, we want to remind you that your current rent expires on 31 December, 2009. Note also that rent on same property has been increased to N3,000,000.00 (Three Million Naira) only per year with effect from 1st January, 2010.”

Also in the letter of 3rd March, 2010, the Respondent said inter alia:

“Your present hold up to the property after its expiry date of December, 31st 2009 is not only a trespass, but it is causing some bad blood within the family.

However, the period so extended by you, that is (1/1/2010 – 31/12/2010) shall be paid for at the rate of N3, 000,000.00 (Three Million Naira) only. This position was brought to your notice early enough, See attached.”

The Appellant did not respond to the letters but remained on the property. The Respondent took no further or other step in respect of the leasehold but proceeded to file the Writ and Statement of Claim in commencement of this action against the Appellant.

The Appellant as the Defendant did not file any process in reaction to the claim. A “HEARING NOTICE FOR PRETRIAL CONFERENCE” was served on the Appellant who also did not attend the Conference. At the Pretrial Conference held on 26/4/2010, the Respondent testified and tendered his Statement on Oath filed on 26th March, 2010 while his four “correspondences” with the Defendant (Appellant) were admitted together as exhibit 1. The Court then adjourned for judgment which was delivered on 9/6/2010 by Hon. Justice Michael Edem who concluded as follows:

“Judgment be and is hereby entered for the claimant. In the light of the claimant’s loss of his goodwill in the family, loss of road construction clientele, loss of potential tenants and severe economic loss and hardship, (paragraphs 14, 15 and 16 of the Statement on Oaths refer), I consequently assess and award damages in the sum of N10 Million Naira to the claimant. N5, 000 cost in favour of the claimant.”