Messrs Dee’s Dynasy (Nig) Ltd. V. Mrs. Ade Amoke Ola (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Lagos State High Court which was delivered on the 8th day of May, 2007.

By a writ of summons and a statement of claim dated 1st March, 2005 and 28th of February, 2005 respectively which were both filed on the 1st of March 2005, the Appellant herein claimed the following reliefs: –

“1. A Declaration that the notice to quit dated 2nd August, 2004 together with the letter/Notice to Claimant indicating the Defendant’s intention to take possession of the premises dated 10th December, 2004 are defective, irregular, ineffective and inoperative.

2. An Order setting aside the aforesaid Notices.
3. An Order of perpetual injunction restraining the Defendant whether by herself, her servants, agents, representatives, privies, appointees, from evicting, ejecting or taking possession of the leased plot occupied by the claimant at No. 3A Osha Street, Opebi, Lagos State pursuant to the aforesaid notices dated 2nd August, 2004 and 10th December, 2004 respectively.
4. A Declaration that by virtue of the Tenancy Agreement dated 21st day of February, 2000, the claimant’s tenancy is still valid and subsisting for next 2 years commencing from 21st day of February, 2005 to 20th day of February, 2007 at the existing prevailing rent of N250,000.00 (Two Hundred and Fifty Thousand Naira only) as agreed by the parties.
5. Further and other reliefs.
6. Cost of this action as assessed.”

The Respondent’s statement of defence and counterclaim is dated 13th April, 2005 and filed on the 14th April, 2005. This statement of Defence and counter-claim was further amended. The amended statement of defence and counterclaim is dated 18th day of May, 2005 and filed on the 19th May, 2005. At paragraph 35 of the statement of defence, the Respondent set out the following counterclaim:

”(a) Possession of the half of a plot of land situate at No. 3A, Osho Street, Opebi, Ikeja, Lagos.

(b) Mesne profit at the rate of N250,000.00 per month from 21st February, 2005 until possession is given up.

(c) An order compelling the claimant to perform all terminal obligations under the tenancy that is payment of all outstanding utility bills accrued and returns the land to a tenantable condition.

(d) Cost.”

Issues having been joined the case was set down for trial. On the 8th day of May, 2007, Mr. Agbolahan, learned counsel for the Respondent made the following admission at page 90 of the printed record: –

“Indeed this is a simple matter. Based on the writ of summons, we submit to judgment that the claimant’s tenancy expired on 20/02/07, and that he should pay arrears of rent at the rate of N250,000.00 per annum. In addition we pray as per our counterclaim for possession. We pray that the claimant should vacate the premises forthwith since by his our(sic) declaration the tenancy has lapsed.”

At this stage, Mr. Ademuwagun, learned counsel for the Appellant in reply to the question as to when his client will vacate the premises on the face of admission by the Respondent said: –

“I have to consult with my client. I do not know when we can leave. I ask for the cost of this act in the sum of N10,000.00 since the defendant has submitted to judgment.”

At this stage the learned trial Judge proceeded to deliver judgment upon the admission of parties as follows: –