Felix George And Company Limited V. L. A. Afinotan & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Ondo State, Akure delivered by his Lordship Honourable Justice O.O. Akeredolu, on the 6th day of August, 2009 in Suit No. AK/42/2007.

By a writ of summons dated and filed the 15th day of February, 2007 and a statement of claim dated and filed 31st May, 2007 the plaintiffs (herein 1st and 2nd Respondents) instituted an action against the defendants constituting the appellant and the 3rd to the 5th respondents herein seeking a declaration, injunctive orders and damages.

While the appellant being the 4th defendant at the lower court filed his defence and counter-claim, the 3rd -5th respondents as the 1st – 3rd defendants filed their joint statement of defence as shown at pages 13-17 of the record. The 1st – 2nd respondents (plaintiffs at the lower court) filed a “Reply to 4th Defendant’s Statement of Defence and Plaintiffs’ Defence to Counter Claim”. See pages 18-19 of the record. The reply to the statement of defence of the 1st -3rd defendants is contained on pages 72-73 of the record.

Pleadings were filed and exchanged after which the case proceeded to trial on 12th December, 2007. The plaintiffs called two witnesses to support their claim. The 1st – 3rd defendants jointly called one witness while the 4th defendant/counter-claimant called one witness in their respective cases.

At the close of hearing, written addresses were filed and exchanged. The learned trial Judge in a considered judgment delivered 6th August, 2009 granted three (3) out of the five (5) reliefs sought by the plaintiffs and dismissed the 4th defendant’s counter-claim in its entirety. It is against this decision that the 4th defendant/counter-claimant (herein the appellant) is now before this court on appeal.

STATEMENT OF FACTS

The case is centered around lease agreements executed between the lessor (appellant herein) of the demised property comprising a Saw-mill structure lying and situate along Alade, Akure Road, Alade Idanre to the lessee (2nd respondent herein) together with its operating licence for a fixed period of term and duration. The 1st respondent is the Chairman/Managing Director of the 2nd respondent.

Two different lease agreements were executed between the lessor and lessee over the property. The first dated the 17th day of April, 1991 which was tendered before the trial court as Exhibit A1 was for a renewable term of five (5) years, while the 2nd lease dated the 3rd day of April, 1995 and equally tendered in evidence at the trial court as Exhibit AZ. See pages 4 and 7 of the records. Before the expiration of the said 5 years period, the parties entered into another lease agreement in respect of the same demised property for another period of ten (10) years commencing from the expiry date of the first lease agreement (Exhibit A1). Exhibit A2 was thus executed.

During the subsistence of the leasehold cumulative period of fifteen years allowed as in Exhibits A1 and A2, the 2nd Respondent installed a brand new CD6 machine along with other machines for Sawmill operation and also built a permanent office factory on the demised premises. In 1994, there was a fire outbreak at the demised premised which led to the loss of office buildings on the demised premises.

By a letter dated the 25th day of January, 1995 the 2nd respondent requested for ten (10) years lease and permission to build permanent structures of about ten (10) offices and a mini-factory that would house a multiple Rip-Saw machinery as stated in Exhibit A3 which request was granted.

Also, the 2nd respondent was operating its Saw-mill business in the demised premises with the Operation License and Hammer that was issued by the 5th respondent to the 4th respondent which according to the 2nd respondent was handed over to it by a Director of the Appellant, Mrs. Akinseye. The 2nd respondent claimed that the Operation License and the Hammer were appurtenances attached to Exhibits A1 and A2 (lease agreements) respectively. The 2nd respondent using the said Sawmill Operating License, operated the sawmill business for fifteen (15) years and annually renewed the license which is evidenced by Exhibits “A16”, “A16a” & “A16b, respectively.

Upon the determination of the lease agreement as contained in Exhibit A2, the appellant’s counsel by a letter dated 26th April, 2006 issued a quit notice to the 1st respondent as the Chairman/Chief Executive Officer of the 2nd respondent. The 2nd, respondent replied the appellant’s counsel which reply was admitted before the trial court as Exhibit A11 as contained on page 100 of the records. The 2nd respondent wrote another letter dated 7th of June, 2006 pleading with the appellant for renewal of tenancy or an outright sale of the demised premises. The letter was marked as Exhibit 12. The request was turned down by the appellant who wrote a letter through his counsel to the 1st respondent dated 6th July, 2006 which was marked as Exhibit A4 as contained on page 85 of the records.

As the 2nd respondent would not yield up possession of the demised premises after the expiration of the tenancy in April, 2006, the appellant wrote a letter dated 24th November, 2006 to the 5th respondent for cancellation of the Saw-mill License of the appellant which was being renewed and used by the 2nd respondent in running the Sawmill business. The said letter was admitted at the trial court as Exhibit A13. The 5th respondent afterwards wrote a letter of cancellation of the said Sawmill License to the appellant dated 31st January, 2007 and marked Exhibit A14 as contained on page 108 of the records.