Pillars (Nig) Ltd V. Desbordes & Anor (2021)

LAWGLOBAL HUB Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.S.C.

This appeal was commenced on 24/6/2009 when the appellant herein filled a notice of appeal against the judgment of the Court of Appeal at Lagos delivered on 8/5/2009 in appeal no.CA/L/859/2006 affirming the judgment of the High Court of Lagos delivered on 8/12/200 in LD/148/93 and dismissing the appeal against it. The notice of appeal contains 5 Grounds of appeal.

Both sides have filed, exchanged and adopted their respective briefs as follows – appellant’s brief and respondent’s brief.

The appellant’s brief raised the following issues for determination:

1. Whether the Court of Appeal was right in affirming the decision of the trial Court that respondents pleaded and proved service of statutory “Notice of Breach of Covenant “(Exhibit E) and “Notice of Quit” (Exhibit G) as required by the law.
2. Whether it was proper for the lower Court to deviate from the original dispute before it and decided the appeal on an entirely different issue raised suo motu without giving the parties the opportunity of addressing it on the new issue raised at the hearing of the appeal.
3. Whether the lower Court exercised its discretion judiciously and judicially by striking out issue numbers 3.0(b) and (c) raised by the defendant/respondent in its brief of argument in the lower Court against counsel’s application for merger of “Issues A & B”.
4. Whether the plaintiffs/respondents have waived their right to forfeiture by demanding and collecting rent up to 1995 before the purported Notice to Quit (Exhibit a) was allegedly issued in line with the averments in paragraph 22 of the defendant/appellants’ statement of defence.

The respondents’ brief raised two issues for determination as follows:

1. “Whether based on the concurrent findings of both the trial Court and the lower Court, this Honourable Court is bound to dismiss the appellant’s appeal. Relating to grounds 1, 2, 3 and 5 of appellant’s notice of appeal.
2. Whether the lower Court was right when it struck out issue 3(b) and C raised by the defendant/appellant in its brief of argument.

I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief. Let me start with issue 1 which asks: whether the Court of Appeal was right in affirming the decision of the trial Court that respondents pleaded and proved service of statutory “Notice of Breach of Covenant “(Exhibit E) and “Notice of Quit” (Exhibit G) as required by the law.

The appellant states in its brief that issue no. 1 is related to grounds 1 and 2 of this appeal. This statement is correct in respect of only ground 2 of this appeal, issue no. 1 has no relationship with ground 1 of this appeal that reads thusly:

“The learned Justices of the Court of Appeal erred in law in holding as follows:

‘I am of the firm view that the trial judge came to the right conclusion that the evidence in support of service of notice and the fact that defence after denying in their pleading later admitted service of notice of intention are strong basis for the Court to accept PW1’s evidence as credible against DW1 testimony.”

PARTICULARS OF ERROR

1. “Service of statutory notices is a condition precedent to the institution of the action (for forfeiture of lease and therefore fundamental, as it goes to the root of the action) as to vitiate the entire proceedings for failure to establish same.
2. Issues were joined by the parties on the services of the statutory notice to quit. The burden of proof of the said notice (Exhibit G) is on the plaintiff/respondent. The Rules of pleadings that he who asserts must prove is applicable.
3. The plaintiffs/respondents did not lead evidence of mode of service neither did they lead evidence of the person that effect the service of the statutory notice.
4. It is not the duty of the defendant/appellant to aid the plaintiff/respondent to prove service of the statutory notice.
5. The admission of the DW1 that service of Exhibit H (the notice of the lessor’s intention to recover the possession) was effected on the defendant/appellant is not sufficient proof of Exhibit E (Notice of Breach of Covenant) and G (Notice of Quit).
6. Service of Exhibit E and G being fundamental cannot be inferred. Strict proof of same is very important.

This ground complains about the decision of the Court of Appeal affirming the decision of the trial Court accepting PW1’s evidence as credible against the testimony of DW1.

The issue no. 1, which purports to derive from ground 1 of this appeal questioned whether the Court of Appeal was right in affirming the decision of the trial Court that the respondents did plead and prove service of statutory notice of breach of covenant (Exhibit E) and Notice of Quit (Exhibit G) as required by law. The subject matter of the question in this issue is obviously different from the subject matter of the complain in Ground 1 of this appeal. Therefore, it is wrong to say that the issue is related or derived from the said ground. An issue is derived from a ground where the subject matter of the issue is the same as the subject matter of the complain in the ground. As it is, no issue is distilled from ground 1 of this appeal. By not raising any issue for determination from it, the appellant abandoned the ground. It is hereby struck out.

Let me also state here that to the extent that issue no. 1 questions the decision of the Court of Appeal concerning the Notice to Quit (Exhibit G) it has no relationship with any of the grounds of this appeal.

Ground 2 which it purports to be related to, questions the decision of the Court of Appeal in respect of only the Notice of Breach of Covenant (Exhibit E) and nothing more. The said ground 2 reads thusly: