OBELE V. ONYEKWELU BROS. LTD

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT COURT NO. 28, IKEJA
TODAY THURSDAY THE 29TH DAY OF JUNE. 2006
BEFORE THE HONOURABLE JUSTICE M. OLOKOBA-JUDGE

SUIT NO. AP/12A/05
RT/K/3020/99

BETWEEN:
PATRICK OBELE } APPELLANT
AND
ONYEKWELU BROTHERS LTD. }RESPONDENT

JUDGMENT

This is an appeal from the judgment of the Rent Control and Recovery of Residential Premises Tribunal holding at the Oshodi/Isolo Local Government which Judgment was delivered on the 7th day of October, 1999; and by which judgment the appellant was ordered to vacate the two-bedroom flat and premises with the appurtenances situate at No. 16, Alhaja Adijat Lawal Close, Mafoluku, Oshodi, Lagos State.
By a plaint dated the 31st day of May, 1999 the respondent as plaintiff sued the appellant as defendant claiming possession of a 2-bedroom flat situate at No. 16, Alhaja Adijat Lawal Close, the town not being stated.
At the hearing, the plaintiff called only one witness while the defendant rested his case on that of the plaintiff.
The case of the plaintiff in the Tribunal as same appears in the records is that the plaintiff/respondent appointed the defendant (appellant herein) as caretaker of the houses situate at Nos. 10, 16, 18, 20, and 22 Adijatu Lawal Close Mafoluku, Lagos orally. As part of his remuneration for the performance of the office, the respondent allowed the appellant to occupy as a tenant a 2-bedroom flat at No. 16, i. e. one of the houses of which the appellant was appointed caretaker.
The appellant according to the respondent did not perform the office faithfully as he failed to render account to the respondent of all the rent collected in respect of the houses of which he was caretaker. This situation persisted up to the time of the death of the managing director of the respondent.
Thereafter several demands for accounts and the rendering of the moneys collected by the appellant were made but refused or neglected to comply and even went ahead to claim ownership of No. 16 and No. 20, According to the only witness called by the respondent, he, at a stage offered to give the ownership of No. 16 to the appellant free only if he would render an account on the other houses. The appellant made no answer but in stead went ahead to lay claim to the ownership of No. 16 and 20 aforesaid as he was paying tenement rate in respect of the premises in his own name. The offer of No. 16 to him was then withdrawn.
Upon the above activities of the appellant the respondent served a seven days notice on him which was admitted as exhibit H by the Tribunal. This was served on the appellant but he refused to vacate the premises.
In their judgment the learned Chairman and the other members of the Tribunal found that the appellant was the respondent's tenant at will in respect of the premises the subject matter of the action. The tribunal also held that the activities of the appellant summarised above were incompatible with the relationship of landlord and tenant and, citing the case of Francis Okagbue & Ors. vs. Janet Romaine (1982) 5 S. C. page 133, held that the appellant had engaged in activities constituting a challenge to the title of the landlord and had thereby determined the tenancy. It was therefore proper to serve him with only the seven (7) days notice exhibit H.
The learned Tribunal Chairman considered sections 13 and 14 of the Rent Control and Recovery of Residential Premises Edict 1997 and citing again the case of Okagbue vs. Romaine (Supra) decided to let the demands of justice override crude technicality as he saw it. It decided that under section 13 of the Edict aforesaid there are two ways by which a tenancy may be determined. One was where the statutory notice to quit has been issued and the other according to the tribunal is where the "term of interest of the tenant determines" and according to Okagbue vs. Romaine (Supra) a tenancy at will is determined when either party engages in activities incompatible with the continuance of the tenancy. The appellant according to the tribunal had by the above activities determined the tenancy and because of the obligation of the court to do justice and not be fettered by any technicality that may be engendered by the rules of procedure, the respondent had succeeded in proving his claim and was entitled to judgment. Judgment was entered for the respondent and the appellant was ordered to vacate the premises forthwith.
Dissatisfied with the judgment, the appellant appealed to this court. Four (4) grounds of Appeal were filed. There are no issues formulated from the 3rd and 4th grounds of appeal. They are deemed abandoned and are struck out. - See Ogun vs. Asemah (2002) 4 NWLR (Pt. 756) page 208; Atunrase vs. Philips (1996) 1 NWLR (Pt. 427) page 637.
The second ground of appeal which I take first for convenience reads as follows:-
2. The Tribunal erred in laws when it held:
"Even if the plaintiffs letter dated 4th day of September, 1998 exhibit C2 is an offer there is no acceptance of such an offer by the defendant. The plaintiff's letter dated 15th day of October, 1998 exhibit D stipulated conditions to be fulfilled this it could only amount to a counteroffer if EXHIBIT D is an offer from the plaintiff to the defendant. The defendant has not accepted the offer and the plaintiff the offeror reserved the right to –withdraw the offer".

Particulars of error:
(a) The Tribunal has no jurisdiction to entertain any matter which raises issue of jurisdiction to land;
(b) The effect of EXHIBITS D, E and F is that issue of title to land has been raised;
(c) By attempting to construe Exhibits D, E, and F the Tribunal is clearly deciding issues affecting title of land.
Again, I have carefully gone through the issue formulated for determination by the appellant. I cannot see any part of the issue which has arisen from the second ground of appeal. The ground of appeal is therefore also deemed abandoned and struck out. - See Ogun vs. Asemah (Supra) and Atunrase vs. Philips (Supra). There therefore remains only ground one of the grounds of appeal and I quote it verbatim:-
1. The learned Chairman and members of the Rent Control and Residential Premises Tribunal (sic) of Oshodi /Isolo Local Government (hereinafter referred to as "the Tribunal") erred in law when they held in their judgment as follows:-
“I have considered sections 13 and 14 of the Rent Edict together with the decision of Okagbue vs. Romaine (1982) 5 S. C. page 133. The Tribunal is a Court of Law as well as a court of equity. The Tribunal has a duty to do justice and justice must not be sacrificed on the alter of technicalities. "

Particulars of error.
(a) The plaintiff alleged in his plaint and in the evidence of the P.W. 1 that the defendant is a tenant at will.
Under Section 14 (1) of the Rent Control Law 1997, a tenant at will is entitled to be given a week's notice in form B or form C;
(b) The decision in Okagbue vs. Romaine is not germane to the case before the Tribunal being a decision based on the common law and not on the provision of the Rent Control Law;
(c) The relevant decision is that of Pan African Company Ltd. vs. National Insurance Corporation (Nig.) Ltd. (1982) 9 S. C. page 1 which was based on the construction of Section 15 of Law 9 of 1976 which section is in pari materia with section 13 of the 1997 Law;
(d) The Tribunal is set-up to administer the Rent Control and Recovery of Residential Premises Law 1997. The powers of the Tribunal are circumscribed within the four comers of that enabling law.
Consequently the Tribunal has no power to exercise vaguely described equitable jurisdiction in disregard of the clear provisions of the enabling law.
Clearly, in my view, this ground of appeal is a complaint directly against the finding of the Tribunal that the case of Okagbue vs. Romaine was relevant to the case before the court and that since by that case a tenancy is determined when either party engages in activities inconsistent with the tenancy, the tenancy in this case was determined by the activities of the defendant in the case, appellant herein which were inimical to the continued existence of tenancy. By this finding, complains the appellant, the Tribunal disregarded the provisions of sections 13 and 14 of the Rent Control and Recovery of Residential Premises Law No. 6 of 1997 which stipulates that a tenancy at will may only be determined by the issuance of a 7-days' notice. The complaint in summary is to the effect that the Tribunal has no power to set aside the provisions of the Rent Control and Recovery of Residential Premises Law No. 6 of 1997 (hereinafter referred to Law No. 6) and instead proceed to apply the principles of common law as stated in the case of Okagbue vs. Romaine (Supra) in the pursuit of what it regarded as justice.
The issues that are in this appeal according to the appellant's counsel are as follows:-
1. Whether the learned Chairman and members of the Rent Control and Recovery of Residential Premises (sic) were right in holding that a tenancy at will could be determined by means of only Notice of Owner's intention to apply to recover possession (7 days' notice) without the prerequisite of notice to quit;
2. Whether on the facts and the evidence before the Tribunal it came to a right conclusion in holding that the Appellation (sic) was a tenant-at-will.
On the first issue for determination, it seems to me proper to correct an error that appears in that issue. The judgment of the Tribunal as far as I can understand same does not seem to me to hold anywhere that the tenancy could be determined by means of a notice of owners intention to recover possession. What it seems to me to have held is that the inimical activities of the appellant had determined the tenancy (according to its application of the case of Okagbue vs. Romaine) making it only necessary to serve the 7 days notice on the appellant. Still, it is apparent from the issue as formulated that the appellant is, attacking the judgment of the tribunal on the ground that the latter was wrong to have discounted the service of the Notice to Quit as a prerequisite for the valid determination of the tenancy. The first issue therefore is whether or not the Tribunal was right to have held that the respondent had no need to determine the tenancy by means of a notice to quit.
The second issue as formulated does not appear to me to arise from the sole ground of appeal under consideration. I therefore have no intention of considering it. This leaves the only issue as the issue as to whether or not the Tribunal was right to have held that upon the evidence before the court and in the circumstances of this case the respondent needed to not serve the statutory notice to quit on the appellant as the tenancy had been otherwise validly determined.
The respondent's counsel formulated the issues in this appeal thus:-
"Whether the final Tribunal was right in entering judgment in favour of the plaintiff/respondent"
I do not think this issue that arises from the ground of appeal because it is a vague reference to the general complaint of the appellant concerning his dissatisfaction with the judgment. It does not arise directly from ground one of the grounds of appeal which complains specifically about a particular finding of the Rent Tribunal viz: - Failure to apply provision of the Rent Control and Recovery of Residential Premises Law and choosing to, in effect, apply the common law in the pursuit of what it sees as justice unfettered by technicalities. I therefore prefer the formulation of the issues
by the learned counsel for the appellant as amended by the court i. e. Whether or not the Tribunal was right to have held in effect that it was not necessary to determine the tenancy by means of a notice to quit, the tenancy having been otherwise validly determined by the alleged conduct of the appellant.
Arguing this issue learned counsel for the appellant submitted that on the face of the plaint, the plaintiff stated that the tenancy was determined by the service of a 7-days' notice and this was repeated in the evidence of the witness for the plaintiff in court. It is the contention of learned counsel that the 7 days' notice of intention to recover possession is in law insufficient to determine a tenancy at will.
Learned counsel referred to sections 13 and 14 of Law no 6 and submitted as a tenant at will, for a definition of which the learned counsel for the appellant referred to the case of Pan-Asian African Co. Ltd. vs. NICON (1982) 9 S. C. page 1, the appellants tenancy could only be determined by one week's notice which was not served on the appellant in this case.
Learned counsel attacked the Tribunal's finding that the tenancy could otherwise be determined and the reliance it placed on the case of Okagbue vs. Romaine (Supra) which case according learned counsel only stated the position of the common law as there was no rent control issue involved.
The case according to learned counsel was a suit for trespass and injunction and not recovery of residential premises. Learned counsel submitted that the tribunal was in error when it, after considering the provisions of sections 13 and 14 of Law No 6 dismissed them with the following words:-
"I have considered sections 13 and 14 of the Rent Edict together with the decision of Okagbue vs. Romaine (1992) 5 S. C. page 113. The Tribunal is a court of law as well as equity. The Tribunal has a duty to do justice and justice must not be sacrificed on the alter of technicalities" when it would only be doing justice according to law if it adhered to the provisions of Law No. 6.
It finally urged the court to resolve the issues in the appeal against the respondents to allow the appeal.
In his written reply briefs learned counsel for the respondent in so far as same is relevant to the issue submitted that in the case of Pan-Asian African Co. Ltd. vs. NICON Ltd. (1982) 9 S. C. page 1 the Supreme Court had interpreted a similar provision to section 13 of Laws No. 6 to mean that it was unnecessary to serve any notice on the appellant for the determination of the tenancy had been determined and all the respondent needed to do was to serve the appellant with the seven days' notice which was done in this case. He supported the decision of the Tribunal on the ground that the Tribunal heard the evidence and was entitled to believe what it heard since there was no evidence in contradiction. He reiterated the propriety of serving only a seven days' notice of intention to apply to recover possession as the tribunal held, citing the case Okagbue vs. Romaine (Supra).
Now sections 14 of Law No. 9 provides inter alia as follows:-
(1) Where there is no express stipulation as to the notice to be given by either party to determine the tenancy, the following periods of time shall be given -
(a) "in the case of a tenancy at will or a weekly tenancy, a week's notice"
Section 13 of the Law is clear. No action for possession may be brought except the statutory notices had been first served. - See International Polymera Systems Ltd. vs. Mr. Robert Glover & Anor. (2002) 7 NWLR (Pt. 765) page 124; Pan- Asian African Co. Ltd. vs. NICON Ltd. (1982) 5 S. C. page 1.
The law therefore is that for the landlord to commence ejectment proceedings against the tenant, he must have served him with statutory notices as stipulated by law. The law (Law No. 6) has stipulated the notices to be issued to each type of tenancy. It has stipulated, for a tenancy-at-will a week's notice. It follows therefore that failure to serve the notice or give evidence of its service translates to the tenancy not having been validly determined and any proceedings brought for the ejectment of the tenant upon determination of the tenancy is incompetent and must be dismissed.
I have read the case of Okagbue vs. Romaine (Supra) and I am in agreement with learned counsel for the appellant that it is wholly irrelevant to a case of landlord and tenant based on a Rent Control Statute such as this. That case only stated the position of the common law with regard to activities which at common law could determine a tenancy. The claim in that suit is for trespass, injunction and damages. It has nothing to do with the law of landlord and tenant as contemplated by the Rent Control Legislations. It is a grave error to apply the case to cases circumstanced the case in hand. This is a case that is founded upon and regulated by legislation. The Tribunal itself was set up by legislation which prescribes its powers. - See 7 of Law No. 6 which gives the Tribunal its jurisdiction. It would appear to me totally wrong to depart from the legislation setting up the Court of Tribunal as in this case in purported quest for justice.
The Tribunal remarked that it arrived at its decision in order to do justice unfettered by technicalities. One may ask: to whom has justice been done by delivering justice that is obviously not according to law in this case? Is the Rent Control and Recovery of Residential Premises Law No. 6 of 1997 a mere document containing technicalities? It is a notorious fact that the legislation was promulgated for the protection of the rights of tenants. If the law lays down conditions that the landlord must meet before ejecting a tenant, is the right of the tenant not infringed and injustice consequently done to him if the court cavalierly dismisses the failure of the landlord to meet the conditions as a mere technicality? Can that be justice done to the tenant?
To my mind justice delivered not according to law may in certain circumstances amount to an act of injustice since it encourages each judge (and every judge is human) to bring in their personal preferences and prejudices into the act of adjudication, particular paradigms not being followed. I do not regard the Law No. 6 and any other law as Just mere technicalities.
It is a legislation, a statutory, binding, substantive law, not an adjectival law which may contain what may in some circumstances, be regarded as technicalities. The laws are made to be obeyed and followed and not to be set aside by the court in the pursuit of any ideal, justice inconclusive, as to do so will reduce the ideal to a mere phantom invoked at the whim of the pursuer. The Law No. 6 was promulgated for the regulation of landlord and tenant relationships with reference to residential premises with a view to protecting the rights of tenants, any departure therefore from its provisions is an attempt to go contrary to the intendment of the legislation and to thwart its objectives which act naturally to translates to the infringement of the rights of tenants as protected by the statute. I do not think the court should engage in it. The duty of the court is to declare the law not to make it and in the determination of matters placed before it, it must be dispassionate. – See So Mat Sonka Nig. Ltd. vs. Adzege (2001) 9 NWLR (Pt. 718) page 312.
I hold in the final analysis that the tribunal fell into grave error in making an order of possession against the appellant without any statutory notice determining the tenancy being first served on him as required by law No. 6 of 1997. The appeal therefore succeeds and the judgment of the Rent Tribunal for the Oshodi/Isolo Local Government delivered on the 7th day of October, 1999 in Suit No. RT/K/3026/99 is hereby set aside. In its place an order dismissing the suit is substituted. Cost of N5,000.00 is awarded to the appellant.


OLOKOBA
JUDGE

19/06/2006