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:
- 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.
- 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.
- 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”.
- 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:
- “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.
- 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
- “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.
- 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.
- 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.
- It is not the duty of the defendant/appellant to aid the plaintiff/respondent to prove service of the statutory notice.
- 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).
- 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:
“The learned Justices of the Court of Appeal erred in law in holding that Service of Notice of Breach of Covenant dated 27th September, 1988 (Exhibit E) was properly pleaded and proved by the plaintiff/respondent at the trial Court.”
There is no ground of this appeal complaining against the decision of the Court of Appeal confirming the decision of the trial Court that the respondents pleaded and proved service of notice to quit (Exhibit G). Therefore, the part of issue 1 that questions the said decision of the Court of Appeal concerning the pleading and proof of the service of notice to quit (Exhibit G), not being derived from or related to any ground of this appeal is incompetent and is hereby struck out. As this Court has established in a long line of cases overtime, any issue raised for determination in an appeal that is not based on or covered by any ground of the appeal is not valid for consideration and must be struck out. See for example MODUPE V THE STATE (1988) 9 SCNJ1 AND REGISTERED TRUSTEES OF THE APOSTOLIC FAITH MISSION & ANOR V UMO BASSEY JAMES & ANOR (1987) 7 SCNJ 167.
I will now determine issue no. 1 to the extent that it questions the decision of the Court of Appeal affirming the decision of the trial Court that the respondents pleaded and proved service of statutory “Notice of Breach of covenant (Exhibit E).
The decision of the Court of Appeal questioned here reads thusly:
“On learned counsels submission that the manner of pleading the Notice of Breach (Exhibit E) offends Order 17 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 1994. Order 17 Rule 4 of the High Court of Lagos State (Civil Procedure) Law (1994) Cap. 61 stipulate as follows:
“Every pleading shall contain, and contain only a statement in a summary from of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to prove.”
The above provision is explicit and unequivocal. Pleadings should contain facts and not evidence. Documentary evidence need not be specifically pleaded in order to be admissible as long and facts and not the evidence by which such a document is covered are expressly pleaded. See Okonkwo v Co-operative and Commerce Bank (Nig.) Plc & 2 Ors (2003) 8 NWLR (PT. 822) 347. The plaintiff/respondent in paragraph 9 of their amended statement of claim pleaded sic letters and notice of breach of covenant. The contents of these documents are facts. When a document is referred in a pleading it ought to betide to the facts for which it has been cited. Where the facts are stated in respect of the breach and not directly tied to the document notice of breach pleaded. It should suffice as in the instance cases. See the authors of Bullen & Leake: Precedents of Pleading (12th Edition) page 44.
The case of G.N.I.C. Ltd v. Ladgroups Ltd (1986) 4 NWLR (Pt. 33) CA 72 is not opposite to the present circumstances. In Ladgroups Ltd. case, the document “Insurance Policy and Certificate” was pleaded and nothing else.
When the main thrust of the case was the entitlement to compulsory excess by reason of the conditions stipulated in the policy. This compulsory excess was not pleaded and Court of Appeal held that to plead document alone without the effect is to plead evidence. It is indisputable that the respondent did not plead in the amended statement of claim, the name of the legal practitioner that issued the notice of breach of covenant, he merely pleaded Mr. Grant briefed a legal practitioner. However, the contents of document were scattered all through the pleadings. The fact on the averred breach were pleaded. Moreover, the appellant as defendant in the lower Court did not object, when the notice of breach of covenant was tendered in the lower Court through the PW1. See (page 174) before it was admitted as Exhibit E. He has waived that special right and cannot raise the issue at this stage. Moreso when the essence of pleading is to avert surprise and the plaintiff/respondent in their amended statement of claim in paragraph 9(a) and10 pleaded reasonable information that a legal practitioner was brief and also the notice of breach of covenant. I must however add that it is imperative that utmost care be observed whilst drafting pleadings in order to ensure material facts are stated. In the instance case, learned counsel for the plaintiff/respondent should have pleaded the name of the legal practitioner briefed by Mr. G. Desbordes(deceased) for identification of counsel. Nevertheless, the absence of any objection to the document going on as an exhibit is that the appellant was not taken unawares as regard notice of breach pleaded. The inference drawn is that of awareness. Consequently, he is estopped from raising same at a later stage.
On issue of whether the respondent should have pleaded the legal effect of the notice of the breach as a fact before it is tendered. This is a clear misconception of the modern rule on pleadings. The strict rigid old legal terminology of pleading have since changed in line with new procedures. The pleader is not bound to sate the legal result of a document pleaded or fact pleaded. See Supreme Court decision in Ezewani v Onwordi (1986) 4 NWLR Pt. 33 SC. 27. Any attempt to so state legal effect will amount to argument in pleading. Any legal consequence which the facts admit should be reserved for argument in brief. See Re Vandervells’ Trust 1974 3 NWLR per Lord Denning at page 264.
Mr. Anaenugwu urged the Court to invoke Section 149 (d) of the Evidence Act in view of the failure of the plaintiff/respondent to call Mr. Alade Akinsode or whoever effected service of Exhibit E to testify as to mode to service. The appellant in their amended statement of defence on paragraph 4 pleaded a general traverse and in paragraph 5 tried to respond to paragraph 9 by pleading that based on the agreement between plaintiff and defendant they submitted a building plan. This response is not a denial of the existence of the notice of breach, Exhibit E. The general traverse in paragraph 4 is equally not of value in particular when DW1 in evidence admitted service of notice of intention after the denial in the pleading. The learned trial judge rightly held that Exhibit E and G were served on the appellant. This issue fails.
There is no ground of this appeal complaining against the decision of the Court of Appeal that the appellant is estopped from contending that the notice of breach of covenant was not pleaded as it was tendered and admitted in evidence as Exhibit E without its objection to its admissibility. By not appealing against this decision, the appellant accepted it as correct, conclusive and binding upon it. Having accepted the decision as correct, conclusive and binding upon it, it cannot validly argue in this appeal that Exhibit E was not pleaded or sufficiently pleaded. It is trite law that in an appeal against a judgment, a party who did not appeal against a finding, holding or decision, accepts it as correct, conclusive and binding and cannot argue against it. See IYOHO V EFFIONG (2007) 4 SC (PT. 11) 90 and DABUP V KOLO (1993) 12 SCNJ.
The argument of an appeal against a decision must refer to the decision being argued against and show that the decision is wrong for some reason. An argument would be ineffective and invalid if it does not refer to the decision complained against and does not demonstrate why it is wrong. In our present case, the Court of Appeal had considered Order 17 Rule 4 High Court of Lagos State (Civil Procedure) Rules 1994 and decided that the Notice of Breach of Covenant was pleaded, that the contents of the document were scattered all through the pleadings, that the facts of the averred breach was pleaded, that the appellant did not deny the existence of the Notice of Breach of Covenant, that the general traverse in paragraph 4 of its amended statement of defence is of no value, that even though the name of the legal practitioner that issued the notice of breach of covenant to the appellant, should have been pleaded, but failure to do so is of no moment because the document being in evidence, the appellant is aware of its contents, that since the appellant did not object to the admissibility of the notice of breach in evidence as exhibit, he is estopped from contending that it is not sufficiently or properly pleaded, that having pleaded the document, there was no need to plead its legal effect, as that would amount to argument in a pleading, that the trial Court rightly held that Exhibit E was served on the appellant. Learned counsel for the appellant cannot show that the above decision is wrong by arguing that the respondents should have alleged positively, precisely and distinctively the evidence and service of the notice of breach of covenant in their statement of claim, that the pleading in paragraph 9 of the amended statement of claim is not sufficient, that the mode, time of service and the person that effected service of the notice should have been pleaded. The argument does not allege or even show that the decision is wrong.
Let me now consider the issue of service of the Notice of Breach of Covenant (Exhibit E). The trial Court disbelieved DW1’s testimony that he was not served with the said notice. The Court affirmed the decision of the trial Court on the credibility of the witnesses in the following words:
“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. For an appellate Court to overturn the finding of the lower Court on the issue of credibility, the reason must be very strong and cogent. The learned counsel for the appellant’s contention that the lower Court found Exhibit K sufficient proof of service of Exhibit E and G is not reflected in the judgment of the Court with the greatest respect to the learned counsel, he must limit himself to what is specifically stated in the body of the judgment and not on what can be inferred. Where the finding of a trial Court is borne out from the evidence placed before it. An appellate Court has no jurisdiction to interfere. See OWIE V. IGHIWI (2005) 5 NWLR (PT. 917) SC 184.” As I had held herein, the appellant abandoned its appeal in ground 1 against this decision of the Court of Appeal affirming the decision of the trial Court on the creditability of PW1 and DW1. Having struck out that ground, the decisions is left unchallenged and thereby accepted by the appellant as correct, conclusive and binding upon it. Learned counsel for the appellant has correctly restated the law on the requirements of proof of service of the notice of breach of covenant. But having accepted as correct the decision of the Court of Appeal concurring with the decision of the trial Court believing PW1 that Exhibit E was served on the appellant and disbelieving DW1’s denial of such service, the brilliant arguments of learned counsel on the legal requirements of proof of service of notice of breach of covenant become valueless. It is settled law that a party who has not appealed against a finding or holding in the judgment appealed against cannot validly argue contrary to that finding or holding. Having accepted as correct the decision of the Court of Appeal affirming the decision of the trial Court that it believed PW1 that the Exhibit E was served on the
appellant, the appellant cannot argue that the service of the notice was not proved.
In the light of the foregoing, I resolve issue no. 1 in favour of the respondent.
Let me now determine issue no. 4 which ask: “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.
Court of Appeal had found that “It is obvious from the documentary evidence on communication between the counsels on issue of rent that the lower Court rightly found that at the time suit was instituted on 13/5/93, the appellant had paid his rent up to 21/12/91. Exhibit D dated 6/8/1985 was written by the late Grant Desbordes demanding for arrears of rent. Exhibit K is another letter from the defendant acknowledging being in arrears and a cheque of N12,000.00 enclosed. This cheque was subsequently returned for renewal. Exhibit N written on 23/4/1992 reflected that the outstanding arrears as at that date was N27,000.00. Exhibit N, the respondent counsel made it clear to the appellant that they have been instructed to terminate the lease. A further cheque of N16,500.00 per Exhibit O was forwarded to the respondent counsel. Exhibit O is dated 4/5/1992. By letter Exhibit O, a cheque of the appellant for N4,500.00 was returned to them. The respondent through communication by his lawyer and conduct was unequivocal in his determination to pursue the forfeiture of the lease thus the collection of arrears of rent before he went to Court cannot amount to a waiver, the communication between counsel for the respondent with the appellants have nothing therein to infer waiver, rather the demand was for arrears.
Furthermore, respondent determination to conclude case in Court cannot amount to waiver.”
The above decision of the Court of Appeal concurred with the finding of the trial Court thusly:
“This way the defendant paid its rent after the initial three years rent paid before the signing of Exhibit O was totally unreasonable. The defendant denied the owner of the land rent for several years inspite of his letters, Exhibits C and C1 and Exhibit D1 as at 1985, the defendant was in default of rent for 6 years and inspite of the demand, it failed to pay and the lessor did not receive any rent until he died.
In 1991 when the defendant’s DW1 saw the plaintiffs’ lawyer, he wrote Exhibit L to propose payment of outstanding rent and he enclosed his cheque for N12,000.00, It was this cheque that was returned to DW in the letter of plaintiff’s counsel dated 23/4/92 as it was not paid in through an oversight. It is Exhibit N which was cancelled and there was no payment made to the plaintiff. In its place, the defendant rent a cheque of N16,500 through a letter dated 4/5/92 – Exhibit O in respect of the rent account therefore creating credit facility without their consent of the plaintiffs. Prior to this payment of N16,500 – the defendant paid the sum of N10,500 – making the total rent paid by the defendant to the plaintiffs N27,000.00 to cover 12 years from 21/12/80 to 21/12/91.
The submission that the defendant had paid up to 1995 is totally erroneous and misconceived.
This suit was instituted on 13/5/93. In Exhibit B, the rent is due for payment on 21st December every year and payable in advance whether formally demanded or not. Apart from the payment of 3 years rent before the signing of Exhibit B, the defendant failed to pay in accordance with the contract. The defendant even while making an effort to pay rent more than a decade in arrears failed to pay on scheduled date and so irregularly therefore causing confusion. It is not surprising that the defendant deliberately falsified the years for which rent has been paid, since this case was brought to Court in 1993. The defendant was still in arrears of rent. The notices given in Exhibit C and H which all expired by 31/10/92 were issued when the defendant was still owing rent. Therefore, the rent paid by the defendant covered only part of what was owed the plaintiffs and the debt continued to grow.”
Ground 5 of this appeal complained against the above holding of the Court of Appeal that the trial Court rightly found that at the time the suit was filed on 13/5/1993, the appellant had paid his rent up to 21/12/91.
The issue the appellant raised for determination from this ground of appeal is different from the complain in the ground. While the issue raised for determination is whether the respondents waived their right to forfeiture by demanding and collecting rent up to 1995 before the notice to quit (Exhibit A) was allegedly issued, ground 5 from which the issue is derived complains that the Court of Appeal erred in law when it held that the trial Court rightly found that at the time the suit was instituted on 13/5/93, the appellant had paid his rent up to 21/12/91.
As it is, issue no. 4 is not derived from ground 5 or any other ground of this appeal. It is therefore incompetent and is accordingly struck out.
In any case, the issue and even the ground 5 of this appeal to which it purports to relate cannot be validly argued for the following reasons: One of the specific findings of the trial Court with which the above decision of the Court of Appeal generally concurred with is that “defendant deliberately falsified the years for which rent has been paid, since this case was brought to Court in 1993”. There is no ground of this appeal against the Court of Appeal concurrence with that specific finding. By not appealing against the concurrence with that finding, the appellant accepted it as correct, conclusive and binding upon it. Also in his appeal against the judgment of the trial Court, the appellant did not complain against that finding in any of the 4 grounds of the appeal to the Court of Appeal.
Having accepted as correct the finding that it deliberately falsified the years for which the rent has been paid, the appellant cannot validly argue that the Court of Appeal erred in law in concurring with the finding of the trial Court that at the time the suit was instituted on 13/5/1993, the appellant had paid his rent up to 21/12/1991. As it is, the arguments under issue no. 4 have no value.
In the light of the foregoing, I resolve issue no. 4 in favour of the respondents.
In the light of my determination of issues nos. 1 and 4, no useful purpose would be served determining issues no 2 and 3.
On the whole, this appeal fails as it lacks merit. It is hereby dismissed.
The appellant shall pay costs of One Million Naira to the Respondents.