Conoil PLC V. Alhaji Mohammed Inuwa Dutse (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA-AJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Kano State High Court, holden at Kano in Suit No. K/30/2013, delivered on 30/5/2013 by Hon. Justice Tani Yusuf Hassan (as he then was), wherein the Claims of the Respondent for determination of leaseholdwere granted.

The Respondent’s Claims at the lower Court against the Appellant vide the Originating Summons dated and filed on 17/1/2013 contained at pages 2-4 of the records were as follows:

1. A declaration that the defendant’s tenancy at the demised premise situate along Zaria/Kano-Maiduguri road, Kano,

expired 28th February, 2012 and by effluxion of time. 2. A declaration that the Defendant is by virtue of clause 2(f) of the indenture dated 9th April, 1973 and entered into between the plaintiff and the Defendant duly bound to give possession including the building erected thereon to the plaintiff upon the expiration of its lease on February 28, 2012.

3. An order mandating the Defendant to give possession of the demised premises including the building erected thereon at Kano, Zaria/Kano-Maiduguri Road with

all the appurtenance without let or hindrance to the plaintiff,

4. A declaration that the Defendant having failed to deliver possession of the demised property to the plaintiff by February 2012, the plaintiff is entitled to the mesne profit on a pro-rata basis from the Defendant from March 2012 until possession is finally given to him by the Defendant.
5. An order directing the Defendant to pay mesne profit to the plaintiff on pro-rata basis from March 2012 until possession is finally given to the plaintiff by the Defendant.

The facts of the case are that the Respondent herein, who was the plaintiff at the lower Court granted lease on a bare land to the Appellant upon which the Appellant built its Gyadi Gyadi Petrol Service Station at the Kano/Zaria-Maiduguri Road, Kano. The Appellant used to pay the rent as well as ex gratia payments in lieu of appointment of the Respondent as a dealer of the station. Sometime in April 2008 when the rent fell due, the Respondent filed a suit No. K/142/2008 against the Appellant to recover possession of the developed property, mesne profit and the ex-gratia payment in lieu of his dealership appointment. While

the matter was pending, the parties commenced negotiation and reached agreement on the rent for five (5) years at N1 million per annum, Ex-gratia payment in lieu of dealership appointment for five (5) years at N120,000.00 per annum and the Appellant to pay the Respondent’s Counsel professional fee for instituting the action against the Appellant at N600,000.00. The Appellant accordingly paid the Respondent a total sum of N5.6 million for the agreed 5 years rent and ex-gratia payment to cover the period of 1st March 2007 to 28th February 2012 and the Respondent’s Counsel’s professional fee in the sum of N600,000.00 minus VAT amounting to N570,000.00.

The terms of settlement in the above regard were prepared and the Appellant and its Solicitor signed the engrossed copies and sent them to the Respondent and his Counsel to execute the same to enable parties and their counsel adopt same in Court as Terms of Settlement. The Respondent and his Counsel after collecting all the payment stated above from the Appellant refused and reneged from signing the engrossed copies of the Terms of Settlement. The Respondent and his Counsel also failed/refused to abate suit NO.

K/142/2008 and the case had ever since been pending. In 2012, the Appellant indicated interest to renew its rent but the Respondent through his counsel wrote the Appellant asking them to vacate. This is without resort to clause I of the indenture, clause 5 of the engrossed terms of settlement agreed upon in 2008 and clauses 5(a) & (b) of the indenture.

After written addresses were adopted, the trial Judge delivered his judgment on 30/5/2013 in favour of the Respondent as contained at pages 147-157 of the records. The Appellant, dissatisfied with the said judgment, appealed vide a Notice of Appeal dated and filed on 10/6/2013, wherein 5 Grounds of Appeal were raised as herein under reproduced without their particulars:

GROUND OF APPEAL:

GROUND 1:

The learned trial judge erred in fact when he held:

“In the instant case the facts of the case were not in dispute. The defendants counter affidavit relates mainly to the suit No. K/142/2008 which is not the issue before the Court and which case has been taken over by event on the mutual agreement of the