Christopher Amah V. Fidelis Ozouli (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice, Enugu State sitting in its appellate jurisdiction on the decision of Senior Magistrate Court No.2, delivered on the 5th May, 2005 wherein it dismissed the present appellant’s appeal before it. The appellant herein was the plaintiff at the Senior Magistrate Court NO.2 (hereinafter to be referred to as the trial court) while the present respondent was the defendant thereat.

At the trial court, i.e the Senior Magistrate Court, the respondent herein as plaintiff filed a complaint against the appellant as defendant claiming as below-

The Plaintiff is entitled to the possession of the premises that is to say A FLAT comprising of one sitting room 3 bedrooms, one kitchen, one bathroom and one toilet with the appurtenances thereto within the premises situate at PLOT 98, Corporative Housing Abakpa Nike in the town of Enugu which was let by the Plaintiff to the defendant for a tenancy from which was let by the Plaintiff to the Defendant for a tenancy from month to month which said tenancy was determined by one month notice to quit dated this 24th day of November, 1992 given by the Plaintiff through his solicitor to the Defendant and the Plaintiff by another notice dated this 16th day of March, 1993 did serve on the Defendant through the court notice in writing of his intention to apply to court to recover possession of the said premises, a duplicate of which notice is hereto attached and that notwithstanding the said notices the said Defendant refused or neglected to deliver up possession of the said premises and still detains (sic) the same

Wherefore, the Plaintiff claims against the Defendant as follows:

1. Possession of the said one flat comprising of one sitting room 3 bed rooms, one kitchen, one bathroom and one toilet with the appurtenances thereto within the premises situated at PLOT 98 Cooperative Housing Abakpa Nike Enugu.
2. N1,000.00 (One Thousand Naira) being arrears of rent at N250.00 per month from September 1992 to December, 1992.
3. …profit at N250.00 (Two Hundred and Fifty Naira) per month from January 1993 till possession is given up.

The facts that gave rise to the institution of the suit at the trial court leading to this appeal are summarised as follows: The appellant is a tenant of the respondent having rented the latter’s flat situated at Plot No 98, Cooperative Housing Estate at Abakpa, Enugu on month to month tenancy agreement. He had been a tenant on the said premises even before the respondent bought the said flat. The appellant during the period of his tenancy effected some repairs in the flat according to him with the consent of the respondent even though the latter denied ever giving such consent for repairs and stated that estimate for the said repairs was never submitted to him for approval or consent as the landlord. The respondent refund to refund to the appellant, the costs of the repairs to the appellant which he allegedly effected and had filed the suit for recovery of possession of the flat in question after giving the tenant (i.e. appellant) notices to quit the said premises without success. At the trial court, the respondent as plaintiff called two witnesses to prove his claim and the appellant/defendant also called two witnesses including himself. At the conclusion of the proceeding/trial, the learned trial Magistrate found in favour of the plaintiff/respondent and made an order for possession in his favour in her judgment delivered on 8th November, 1996. Dissatisfied with this decision of the trial court the defendant appealed to the High Court (hereinafter referred to as the lower court) on 19th December, 1996 vide a Notice of Appeal containing four grounds of appeal. The appeal lodged by the defendant now appellant at the lower court had a chequered history. Initially, it was assigned to Ezeike J. who commenced hearing in the case in earnest. Midway into the hearing of same by Ezeike J, the appellant at the lower court who is also the appellant herein, applied to the then Honourable Chief Judge of Enugu State J.C.N. Ugwu C.J (of blessed memory) for the transfer of the appeal to another Judge for determination on the ground of alleged bias of the presiding judge. The learned honourable Chief Judge granted the application for transfer of the appeal and ordered its transfer to Hon. Justice Emehelu who commenced hearing of the appeal on the grounds of appeal partly heard by Ezeike J. A year and few months later, the case was again transferred back to Ezeike J. who had earlier part-heard the appeal. No reason for this latter transfer to Ezeike .J was borne out on the Record of appeal. The appellant had earlier argued his grounds of appeal before Ezeike .J on 26/3/2003 and the Respondent (also respondent herein) had replied accordingly and the case was adjourned for judgment. (See pages 77 to 78 of the Record).

When the appeal was transferred back to Ezeike .J, His Lordship ordered the learned counsel for the parties to re-address him on the matter in view of the long time it was transferred from his court. See page 80 of the Record. The lower court presided by Ezeike .J then finally delivered its considered judgment in the appeal on 5th May, 2005 after learned counsel made the further addresses wherein it dismissed that appellant’s appeal and affirmed the decision of the learned Senior Magistrate R.O. Nwodo (as she then was and now JCA).

Still aggrieved by the decision of the lower court the appellant appealed to this court and filed Notice of Appeal dated 5th May, 2005 containing five grounds of appeal. His application for leave to file two additional grounds of appeal was later granted by this court bringing the total number of grounds of appeal to seven.

Briefs of argument were filed by learned counsel to the parties in keeping with the rules and practice in this court. The appellant’s undated brief of argument was filed on 13th February, 2007. The Respondent’s brief of argument dated 19th March, 2007 was filed on 20/3/2007.

Out of the seven grounds of appeal filed by the appellant, seven issues for determination of the appeal were formulated by the appellant in his Brief.

These issues read thus:

(1) Whether it was right for the learned trial Judge to affirm the order for possession as made by the Magistrate Court without reasonable or sufficient course shown by the Respondent for that purpose.

(2) Whether it was right for the High Court to affirm the order for possession without the Respondent proving or establishing any of the grounds for seeking possession.

(3) Whether it was right for the High Court to hold that the claim for possession on ground of arrears of rent for three months was proved by the Respondent