MR. Julius Obidinnu V. MR. Akan Akpan Umoh (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the High Court of Cross River State, Calabar Division Coram Hon Justice Ikpi Okoi Itam, J., delivered on November 18, 2011, in which the learned Judge sitting in appellate jurisdiction, affirmed the decision of the Chief Magistrate’s Court, Calabar per His Worship, E. N. Okokon, Esq., which was delivered on September 22, 2010.

The facts leading to this appeal as presented by the Appellant are as follows: The Appellant is a tenant of the Respondent at the property known and addressed as No 82C, Goldie Street, Calabar. Although the said property was in 2000, uncompleted and uninhabitable, it attracted the interest of the Appellant, who approached the Respondent for permission to complete the property and, reside therein with his family. The Appellant alleged that the parties initially agreed that the Appellant should advance the Respondent the sum of N144,000.00 for the completion of the property, to be commuted into three years rent of N48,000.00 per annum. The Appellant paid this sum but it was not utilized by the Respondent as expected for the

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completion of the structure. The Appellant averred that upon the request of the Respondent, he advanced a further sum of N240,000.00 to the Respondent for the same purpose. And this time it was agreed that the money shall be commuted to further rent at N60,000.00 per annum for four years. But, the Respondent diverted the funds into another project and did not complete the property. Sensing that he might lose his investments the way and manner the Respondent was going, the Appellant decided to personally undertake the completion of the house and forward the bill to the Respondent, which decision was accepted by the Respondent. And the Appellant proceeded to complete the property for which he presented a bill of N297,390.00. This amount was also converted into five years rent at the same N60,000.00 per annum in 2002. On June 5, 2002 the Appellant took possession of the premises.

Upon the computation of all the payments so far made, the Appellant had made a gross payment of N681,390.00, which he alleged was translated to rent for twelve years, beginning from 2002 to 2014. However, on February 12, 2007, Effiom Ironbar & Associates, wrote on behalf of

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the Respondent to notify the Appellant that his tenancy had expired. This claim was not pursued when Mr. Ironbar was approached by the Appellant with the receipts of payments. On December 15, 2008 the Respondent went into the premises to harass the Appellant to vacate, contending that the tenancy had expired. When the Appellant insisted on the subsistence of the tenancy, the Respondent resorted to various means to ensure the Appellant vacated the premises. The Respondent, through the Magistrate Court, had a quit notice served on the Appellant, demanding that he deliver up possession of the property by September 30, 2009. The Appellant then instituted an action at the Chief Magistrate Court, Calabar presided over by E. N. Okokon, Esq. to determine the tenure of his tenancy and for an injunction restraining the Respondent and his agents from further harassment, and for general damages. While testifying, the Respondent incorporated a counterclaim for

1. Possession of the property;
2. Arrears of one year rent at N100, 000.00 per annum;

and;

3. Homage of N80, 000.00 at N10, 000.00 per annum for the eight years the Appellant has stayed in the

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property.

In delivering his judgment on September 22, 2010, the learned trial Chief Magistrate held, inter alia, that ‘the tenancy between the parties is for 9 years only from 1/3/2002 – 28/2/2011’; page 68 of the Record of Appeal. The learned trial Magistrate then made the following orders:

1. That the Plaintiff should pay ‘to the Defendant the balance of N2,610.00 to balance up the sum of N540,000.00, covering rent for 9 years above stated’ (see page 36, lines 26 – 28 of the records of appeal); and
2. That the Plaintiff should pay ‘to the Defendant arrears of yearly N10, 000.00 from 2007 to 2010 amounting to N40, 000.00’ (see page 36, lines 29 -30 of the records of appeal).

?Dissatisfied with this decision, the Appellant appealed to the High Court sitting in Calabar and presided over by Hon. Justice Ikpi Okoi Itam. The learned Judge in a considered judgment delivered on November 18, 2011 upheld the decision of the learned trial Chief Magistrate and dismissed the appeal. Further aggrieved by the decision of the learned Judge, the Appellant invoked the appellate jurisdiction of this Court by Notice of Appeal filed on December 20, 2011. An

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