Splinters Nigeria Limited & Anor V. Oasis Finance Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of Ojikutu Oshode J. of the High Court of Lagos State, in Suit No. LD/490/2004 delivered on 21st day of September 2008 granting the Respondent possession and mesne profits at the rate of N5,145,000.00 (Five million, one hundred and forty-five thousand naira) per annum from 31st December 2005 until possession is given up.

The facts that led to the institution of the suit at the lower court as deduced from the Claimant/Respondent’s amended statement of claim are as follows:

The Respondent sometime in 1991 leased the parcel of land known as Plot ‘B’ Idejo Towers (henceforth referred to as the Premises) from the Lagos State Development and Property Corporation for a term of fifty years only. Thereafter, the Respondent took possession and did piling work on the premises with a view to erecting a high-rise building of over 10 floors thereon. After completion of the piling work, but before commencement of the building in September 1999 the Respondent noticed some persons trespassing on the premises.

After several correspondences between the Respondent and the trespasser, the Respondent was prevailed upon to lease the vacant premises to the trespasser, the 1st Appellant. By a deed of sub-lease, the Respondent herein subleased the Premises to the 1st Appellant for a term of two years certain from January 1, 2000 till December 31, 2001 at the yearly rent of N650,000.00 (Six hundred and fifty thousand Naira) per annum. The 1st Appellant thereafter let the 2nd Appellant into possession. The sublease was renewed for another period of one year to expire on 31st December, 2002, and subsequently for another period of one year from January 1, 2003 till December 31, 2003.

Before the expiry of this last term on the 31st day of December 2003, the Respondent, not desirous of renewing the sub-lease caused their solicitors to issue and serve on the 1st Appellant the relevant statutory notices to quit. When the Appellant refused to vacate the premises at the determination of the sub-lease, the Respondent as claimant then issued a writ of Summons on the Appellants as defendants claiming possession for personal use and mesne profits at the rate of N650,000.00 per annum. The Defendants/Appellants were served on 23rd November 2004. They filed and served their Statement of Defence on 15th March 2005.

The Claimant/Respondent thereafter amended their Statement of Claim pursuant to the Order of Court dated 12th September 2006. They now claimed mesne profit at the rate of N5,145,000.00 per annum as the current rentable value of the premises. The Defendants/Appellants did not amend their statement of defence despite taking several adjournments for the purpose. Trial commenced in the suit on 31st October, 2006 with the examination in chief of the Claimant’s 1st witness. 19 documents were tendered through him, At the close of examination-in-chief of C.W.1 the court adjourned till 5th and 6th December, 2006 for cross examination at the instance of the Defendants’ Counsel who indicated his intention to amend their Statement of Defence.

Despite many adjournments all at the instance of the Defendants, they still failed to amend their statement of defence or attend court to cross-examine CW1. Finally, on the 14th of February, 2007 when the matter again came up for continuation of hearing, the Defendants’ Counsel was not present in court. After the submissions of the Claimant’s Counsel, the court gave a considered ruling foreclosing the Defendants from cross-examining C.W.1. Just after the ruling was delivered, the Defendants’ Counsel entered the court room and applied that C.W.1 be recalled. The Claimant’s Counsel not objecting, the court obliged him and recalled C.W.1. The Defendants’ Counsel then cross-examined C.W.1.

The Claimant’s 2nd witness, C.W.2, was also examined in chief, cross examined and re-examined by the Claimant’s Counsel. The matter was then adjourned to 21st March 2007 for continuation of trial. The case again suffered several adjournments all at the instance of the Defendants. Again finally, the court on the 2nd of May, 2007 heard submissions of the Claimant’s Counsel and allowed the Claimant lead their last witness, C.W.3. Thereafter the matter was adjourned to 23rd May 2007 to enable the Defendants’ Counsel cross examined C.W.3 and open their case, but the Defendants’ Counsel after several adjournments did not appear and did not file any motion to amend their statement of Defence. On the 30th of January, 2008 the Defendants’ counsel attended court and cross-examined C.W.3. The Claimant then closed its case.

The Defendants’ Counsel again asked for an adjournment to amend their Statement of Defence and open their defence. The Court granted them seven days to file whatever papers they wished to file and adjourned the matter to the 19th and 26th March, 2008 for the Defendant to open their defence. The court did not sit on both dates due to public holidays and the matter was adjourned to 8th of April, 2008. The Claimants Counsel wrote to the Defendants counsel informing him of the new adjourned date. The Claimant’s Counsel was in court on 8th of April, 2008, but the Defendants and their Counsel were again absent from court. On the application of the Claimant’s Counsel the court in the exercise of its powers under Order 30 Rule 2 of the High Court Rules closed the case of the defence. Final written addresses were ordered to be filed in accordance with the provisions of the Rules.

The matter was thereafter adjourned to 16th June, 2008 for adoption of final written Addresses. On that 16th June, 2008, H. M. Sambo Esq appeared for the Defendants (holding the brief of Mr. Tokunbo Ayanniyi). The Claimant’s Counsel adopted his final written address without any objection from the Defendants Counsel as shown in the record of Appeal page 278. Judgment was reserved to 30/10/2008. The court did not sit on 30/10/08. On 21st November 2008, the day judgment was to be delivered, the Defendant/Appellants’ Counsel attended and informed the Court, that they filed an application seeking leave re-open their defence. The Claimant/Respondent had filed a counter-affidavit in opposition.

The Court heard the parties on the application and gave a considered ruling dismissing it. The Court thereafter ordered the Claimant/Respondent to re-adopt its final Written Address as the three months within which judgment should have been delivered had lapsed. The Defendants/Appellants Counsel raised no objection.

The Court thereupon delivered judgment granting the Claimant possession and mesne profits at the rate of N5,145,000.00 (Five million, one hundred and forty-five thousand naira) per annum from 31st December 2005 until possession is given up.

The Defendants being aggrieved by the judgment filed a notice of appeal in this Court with five major grounds of appeal and two omnibus grounds. In accordance with the rules of the Court, the parties filed and exchanged briefs of argument. Out of the grounds of appeal, the Appellants distilled four issues for determination as follows: