MS. B. A. Benson V. Microcred Microfinance Bank Nigeria Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against part of the Judgment of Hon, Justice J.S Abiriyi of the High Court of Kaduna State delivered on the 4th of May 2012 in Suit No. KDH/KAD/838/2011.

The Appellant, as Plaintiff had, by her statement of claim before the lower Court, sought the following reliefs:

“(a) A declaration that there was a valid and subsisting five (5) years tenancy agreement dated 1st June, 2009 through 11th day of May, 2014, which was wilfully breached by the Tenant (the Defendant herein).

(b) A declaration that the Plaintiff herein (landlord) by virtue of the subsisting Tenancy Agreement dated the 1st day of June, 2009, is entitled to receive from the tenant (the Defendant) herein the sum of N60,792,018.00 (Sixty Million, Seven Hundred and Ninety-two Thousand, Eighteen Naira only) after allowing for inflation for the periods June, 2009 – May, 2011, including service charges being payment for accrued rent based on the tenor of the said Tenancy Agreement with effect from the 10th day of May, 2011 when the said rent is due for payment.

(c) An order of the Honourable Court compelling and or directing the Defendant herein as the Tenant to pay for the remaining three (3) years rent which accrued on the 10th May, 2011 which he failed and or neglected to pay same.

(d) Damages in the sum of N20,000,000.00 (Twenty Million Naira only)

(e) The legal cost of the suit.”

In proof of her claim the Appellant called one witness, the Respondent similarly called one witness. The trial Judge, following the conclusion of evidence and exchange of written addresses, delivered Judgment, granting the 1st relief sought by the Appellant. He refused the 2nd and 3rd reliefs and granted the 4th relief for damages, however reducing the amount downwards.

Dissatisfied with the Judgment, the Appellant filed a Notice of Appeal on the 5th of June 2012. She filed an Amended Notice of Appeal, dated and filed on 12th September 2012 and which, by leave of the Court given on 8th of August 2013, was deemed properly filed. The parties exchanged Briefs of Argument. The Appellant’s Brief of Argument was settled by Abubakar Garga Gunda LP of Nafiu Baba Ahmed & Co, in which six issues for determination were raised, while the Respondent’s Brief of Argument was settled by Dele Olaniyan of Dele Olaniyan & Co., raising therein a single issue for the Court’s determination.

The Respondent’s Counsel, at the hearing of the appeal, directed the court’s attention to his Preliminary objection filed to the hearing of the appeal, arguments in respect of which he had incorporated in his Brief of Argument. If the Preliminary Objection is granted and the Court finds there to be no substance to the appeal, the same, he urged, should be struck out.

Before proceeding to the determination of the main appeal, it is necessary therefore to consider the Preliminary Objection.

The Preliminary Objection of the Respondent is for the following:

“1. An order striking out grounds 1 and 2 of the Notice of Appeal and issues 1 and 2 formulated therein for being incompetent.