The City Waiters Limited V. Jimoh Adio (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Leading Judgment)

This is an appeal from the decision of the Kwara State High Court (the trial court) sitting in Ilorin Judicial Division. The judgment appealed against was delivered on 10/4/2013 when the trial Court granted the reliefs of the plaintiff (respondent) under the Undefended List procedure.

The Respondent (as plaintiff) instituted an action against the appellant (as defendant). The claim was for:

1. A sum of six Hundred and Forty Thousand Naira (N640,000.00) only being the balance of the total rent of the lease commencing from 16th December, 2010 and terminates on the 15th December, 2011 owed by the defendant.
2. A sum of one Million, Nine Hundred and Twenty Thousand Naira (N1,920,000.00) only being the total sum of arrears of rent of the claimant’s business premises for the period of 16th December, 2011 to 15th December, 2012.

The respondent filed an 18 paragraph affidavit along with the writ.

The particulars of claim together with the affidavit in support was placed on the Undefended List pursuant to Order 23, Rule 1 of the Kwara State High Court (Civil Procedure) Rules 2005. The facts relied on are set out in the affidavit in support of the claim.

The crux of the plaintiffs/respondent’s case in the trial Court was to be found in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 of the affidavit in support of the particulars of claim, that is to say:

“4. That I know as a fact that the Claimant is the owner of the business premises known and called Destiny Deluxe villa, situate at Tipper Garage Road, off University of Ilorin Road, Tanke, Ilorin, Kwara State.

5. That I know as a fact that sometimes in December, 2010, the defendant approached the claimant with an offer to lease the said claimant’s business premises with its fittings and facilities.
6. That sequel to the above paragraph, the claimant leased the said business premises together with its fittings and facilities to the defendant for a period of one year commencing from 16th December, 2010 and terminating on the 15th December, 2011 to the tune of one Million, Nine Hundred and Twenty Thousand Naira N1,920,000.00) only.
7. That the yearly rent of N1,920,000.00 only was agreed upon by the parties having agreed that the sum of one Hundred and sixty Thousand Naira (N160,000.00) only shall be the agreed monthly rent for the use of claimant’s business premises.
8. That I also know as a fact that the defendant made an advance payment of one Million, Two Hundred and Eighty Thousand Naira (N1,280,000.00) only to the claimant with the covenant to pay the balance of six Hundred and Forty Thousand Naira (N640,000.00) only within 3 months of being in occupation of the said business premises.
9. That as a result of the covenant above, the claimant let use of the said business premises by the defendant as a yearly tenant.
10. That contract to the agreement between the parties, the defendant failed and or refused to pay the balance of the rent of the lease as agreed despite the claimant’s repeated demand of same.
11. That sequel to the above paragraph, the claimant through the office of his counsel, John Olusola Baiyeshea & Co, wrote a letter to the defendant dated 10th July, 2012, demanding for the said balance and also giving the defendant Notice to quit and deliver up possession, but the defendant refused to accept the letter. The said letter is herewith attached and marked as EXHIBIT A.
12. That the office of the counsel to the claimant consequently re-sent the letter to the defendant through “DHL Express” (a registered post) and the defendant took delivery of same in its office on 31st July, 2012. Copy of the shipment delivery record acknowledging the receipt of the said letter is herewith attached and marked as EXIIIBIT B.
13. That the defendant failed and or refused to reply the caimant’s letter despite the receipt of same and the defendant is still in default of rent to the sum of Six Hundred and Forty Thousand Naira (N640,000.00) only being the balance of the one year lease from 16th December, 2010 and terminating on the 15th December, 2011.
14. That I also know that to date, the defendant is still in possession of the said business premises and is still in arrears of rent to the sum of one Million, Nine Hundred and twenty Thousand Naira (N1,920,000.00) only for the lease of the claimant’s business premises up to the period of 16th December, 2011 to 1st December, 2012.
15. That I know as a fact that the defendant has no defence to this action.

The above are the essential facts placed before the trial Court on the 5/11/2012. The processes have been served on appellant through its Counsel on 20/2/2012 and were fixed for hearing on 10/4/2013. On the 10/4/2013 when the case came up for hearing, the appellant and his Counsel were present in the Court, but did not file notice to defend. The trial Court thereafter, entered judgment in favour of the respondent on that same day of 10/4/2013 and granted ail the reliefs sought.

Unhappy with, the judgment of the trial court, the appellant appealed to this court with the leave of this court granted on 15/1/2014. The appeal was filed on 5 grounds. From the 5 grounds of appeal, the appellant distilled two (21 issues for determination in the appellant’s brief dated 9/5/2014 and filed same day. The issues are as follows:-

1. Whether, having regards to the facts and circumstances of this case, the trial court was right in granting the reliefs of the respondent under the undefended List when the money claimed was un-liquidated and when the claim was pre-mature and incompetent.
2. Whether, given the facts and circumstances of this case, the trial court ought not to have adjourned the proceedings in the suit till another date instead of proceeding to deliver judgment on 10/4/2013 against the appellant when the court did not sit in the morning and parties to this case have agreed among themselves and took a new date.

The respondent on the 13/6/2013, in his brief which was dated 13/6/2014 filed its distilled, 2 issues for determination, and they are:-

1. Whether the learned trial Chief Judge erred in law by entering judgment in favour of the respondent in view of the appellant’s failure to file it’s intention to defend an affidavit disclosing defence as required by order 23, Rule 3(1) on the return date when the respondent’s writ had established a prima-facie case against the appellant. (Grounds 1, 2, 3, 4 and 5 of the grounds of appeal).
2. Whether the learned trial Chief Judge was in order to have entered judgment in favour of the respondent on the date fixed for hearing, when the Court could not sit on the matter in the morning, but later sat at 11.00am and the appellant and it’s counsel were present at the proceedings (Ground 4 of the grounds of appeal).

The appellant, in arguing issue No. 1, submitted that the trial court was wrong in granting the reliefs sought by the respondent. His reason is that in granting the reliefs the learned trial Judge did not consider whether or not, from the affidavit evidence of the respondent, the claim was for a liquidated sum demand and/or that the respondent was entitled to the claim. That the trial court did not assess the respondent’s evidence relied upon as the foundation of the claim before the proceeding to judgment.

That the affidavit evidence which accompanied the respondent’s claim is not only porous and directionless but vague and thematic which is not enough and do not support the claim of the respondent. This is because the claims of N640,00.00 and that of N1,920,000.00 based on a purported lease agreement in respect of a property described as Destiny Deluxe Villa, Tanke, Ilorin, that document was not produced/tendered before the trial Court to convince the trial Court that the appellant was a lesee in the property and that both parties agreed to the amount claimed by the respondent.

It was further submitted that since a claim premised on a lease agreement can only be determined by the Court based on the content of the lease, therefore, failure to produce, before the trial Court, the purported lease agreement alluded to in paragraph 6, 7, and 10 of the respondent’s affidavit in this case, rendered the claim unconvincing, weak and unestablished, for the trial Court to enter judgment for the respondent.

On the sum claimed, the appellant submitted that it was uncertain and un-liquidated and pre-mature. His reason is that since the purported lease agreement was said to have terminated on the 16/12/2011, then there should be no more lease agreement relationship between the parties after 16/12/2011 and therefore no agreement for another lease for the period of 16/12/2011-16/12/2012- It further submitted that throughout the entire evidence for the respondent, there is no evidence of any subsequent agreement to pay a specific amount of money for the purported occupation of the premises after 16/12/2011 in the form of mesne profit for over a property.