Whether Writ Of Summons Can Serve As Statutory Notice To Quit

In the Supreme Court of Nigeria Holden at
Abuja On Friday, the 5th day of February, 2021

Before Their Lordships
Olabode Rhodes-Vivour
Musa Dattijo Muhammed
Helen Moronkeji Ogunwumiju
Abdu Aboki
Emmanuel Akomaye Agim

Justices, Supreme Court
SC.105/2010

Between

Pillars Nigeria Limited … …… Appellant

And

.1. William Kojo Desbordes
2. Mrs. Doris N. Forson (Nee Desbordes) …… Respondents
(Substituted for Mr. Louis Desbordes and
Mr. Albert Desbordes on 14th May, 2018)

(Lead Judgement delivered by Honourable Emmanuel
Akomaye Agim, JSC)

Facts

The Respondents as Lessor, entered into a contract of lease with
the Appellant for a plot of land situated at Plot B, Sabiu Ajose
Street, Surulere, Lagos. The contract was a 26-year Development
Lease for the erection of a building within two years, to be
completed on/or before 1979 on payment of annual rent payable in
advance. The suit was initiated by the Respondents as Lessors in
1993, to recover the property due to non-compliance with leasing
terms of erecting a building on the land.
Both the trial court and the Court of Appeal, found that the
Appellant as Lessee breached the terms of the lease. Dissatisfied
with the decision of the Court of Appeal, the Appellant further
appealed to the Supreme Court.

Issues for Determination

The following issues were considered by the Apex Court –

1. Whether the Court of Appeal was right by affirming the
decision of the trial court, that the Respondents pleaded and
proved service of statutory “Notice of Breach of Covenant” (Exhibit
E) as required by the law.

2. Whether the Plaintiff/Respondents waived their right to
forfeiture by demanding and collecting rent up to 1995, before the
purported Notice to Quit was allegedly issued in line with the
averments in the Defendant/Appellant’s Statement of Defence.

Arguments

Counsel for the Appellant submitted on Issue One, that the
manner of pleading the Notice of Breach of Covenant offends Order
17 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules,
1994 which stipulates that pleadings should contain only statement
in a summary form of the material facts on which the party pleading
relies for his claim/defence, but not the evidence by which they
are to be proved. Counsel argued that the Respondents ought to have
pleaded the legal effect of the Notice of the breach as a fact,
before it is tendered. He argued further that the name of the legal
practitioner who issued the said Notice should have been pleaded,
and that failure to call one Mr. Alade Akinsote, who effected the
service as a witness was questionable, and that the court should
invoke the provision of Section 149(d) of the Evidence Act (now
Section 167(d), to hold that Counsel for the Respondents withheld
evidence.
Countering the submission, counsel argued on behalf of the
Respondents that the statutory notices were validly served, and
that despite the denial by the Appellant, DW1 admitted in evidence,
service of the said processes subsequent to the denial in the
pleadings. More so, the Appellant did not object to tendering of
the said document(s) at trial in the suit, and so, cannot be heard
to complain at the Supreme Court.
Regarding the second issue, it was the submission of counsel for
the Appellant that the rent paid was subsisting till the year,
1995, and that the receipt of arrears of payment during the
subsistence of the statutory notice(s), necessarily destroyed the
validity of such Notice.

Court’s Judgement and Rationale

Deciding the first issue, the court restated the trite position
of law, that pleadings should contain facts and not evidence.
Documentary evidence need not be specifically pleaded to be
admissible in evidence, so long as the facts by which such document
is covered, are expressly pleaded – OKONKWO v COOPERATIVE AND
COMMERCE BANK (NIG.) PLC & 2 OTHERS (2003) 8 NWLR (Pt. 882) 347. In
this case, the Notice of breach of covenant was pleaded, and the
facts of the averred breach were pleaded. The Appellant did not
deny the existence of the Notice of Breach of covenant, and the
general traverse in paragraph 4 of its Amended Statement of Defence
is of no value. 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. Further,
the document being in evidence, the Appellant did not object to the
admissibility of the notice of breach in evidence as exhibit, he is
thus, estopped from contending that it is not sufficiently or
properly pleaded; more so, as the essence of pleadings is to ensure
that parties do not spring surprises on opponents.

Further, it was submitted for the Appellant that the Respondents
should have pleaded the legal effect of the notice of the breach as
a fact, before it was tendered. Their Lordships held that, the
position of the Appellant stemmed from a misconception on the
modern rule of pleadings, as the old legal terminology of pleadings
have since changed in line with new procedures. The pleader does
not need to state the legal result of a document or facts pleaded,
as this will amount to argument in pleading – EZEWANI v ONWORDI
(1986) 4 NWLR (Pt. 33) SC. 27. Having pleaded the document, there
was no need to plead its legal effect, as that would amount to
argument in a pleading. In all, the trial court rightly held that,
Exhibit E was served on the Appellant. Learned counsel for the
Appellant, could not show that the above decision was wrong.

On 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 of Appeal affirmed
the decision of the trial court, on the credibility of the
witnesses. The Appellant abandoned its appeal against the decision
of the Court of Appeal, affirming the decision of the trial court
on the credibility of PW1 and DW1. 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 judgement 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.

Deciding issue two, the Supreme Court held that the strongest
point made by the Appellant, was that the Respondents had waived
their right to forfeiture by demanding and collecting rent till
1995. However, there is no valid ground of appeal on the holding of
the Court of Appeal that the Appellant deliberately falsified the
years for which rent had been paid. The Apex Court agreed with the
inference of the Court below in affirming the decision of the High
Court, that even though the Respondents collected rent till 1991,
there was a letter by counsel for the Respondents – Exhibit N
written in 1992 clearly showing an intention to terminate the
lease. The fact that a landlord collected rent on a property still
in occupation or possession of the tenant after notice to quit,
cannot by any stretch of the law, equity or imagination amount to a
waiver of the notice to quit, even where the notice had expired,
and the tenant refused to yield possession in time. The notice to
quit would subsist until it is formally rescinded by the landlord,
or when a fresh tenancy agreement is entered into.

Even if the initial notice to quit was irregular, the minute the
Writ of Summons dated 13/5/1993 for repossession was served on the
Appellant, it served as adequate notice. Equity demands that
wherever and whenever there is controversy on when or how notice of
forfeiture or notice to quit is disputed by the parties, or even
where there is irregularity in giving notice to quit, the filing of
an action by the landlord to regain possession of the property has
to be sufficient notice on the tenant, that he is required to yield
up possession.

Their Lordships clarified that, while statutory notice may be
given as the situation requires (whatever form the periodic tenancy
is, whether weekly, monthly, quarterly, yearly etc.), immediately a
Writ is filed to regain possession, the irregularity of the Notice,
if any, is cured. Time to give notice, should start to run from the
date the Writ is served. If for example, a yearly tenant, six
months after the Writ is served and so on. All the dance drama
around the issue of the irregularity of the Notice, ends
thereby.

Appeal Dismissed.

Representation

Chigbo Anainugwu with V.I.P Ozumba for the Appellant.

Tochukwu Onuike with Nnemeka Otagburuagu with Adaeze Anah for
the Respondents.

Reported by Optimum Publishers Limited, Publishers of the
Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin &
Co.)

In the Supreme Court of Nigeria Holden at
Abuja On Friday, the 5th day of February, 2021

Before Their Lordships
Olabode Rhodes-Vivour
Musa Dattijo Muhammed
Helen Moronkeji Ogunwumiju
Abdu Aboki
Emmanuel Akomaye Agim

Justices, Supreme Court
SC.105/2010

Between

Pillars Nigeria Limited … …… Appellant

And

.1. William Kojo Desbordes
2. Mrs. Doris N. Forson (Nee Desbordes) …… Respondents
(Substituted for Mr. Louis Desbordes and
Mr. Albert Desbordes on 14th May, 2018)

(Lead Judgement delivered by Honourable Emmanuel
Akomaye Agim, JSC)

Facts

The Respondents as Lessor, entered into a contract of lease with
the Appellant for a plot of land situated at Plot B, Sabiu Ajose
Street, Surulere, Lagos. The contract was a 26-year Development
Lease for the erection of a building within two years, to be
completed on/or before 1979 on payment of annual rent payable in
advance. The suit was initiated by the Respondents as Lessors in
1993, to recover the property due to non-compliance with leasing
terms of erecting a building on the land.
Both the trial court and the Court of Appeal, found that the
Appellant as Lessee breached the terms of the lease. Dissatisfied
with the decision of the Court of Appeal, the Appellant further
appealed to the Supreme Court.

Issues for Determination

The following issues were considered by the Apex Court –

1. Whether the Court of Appeal was right by affirming the
decision of the trial court, that the Respondents pleaded and
proved service of statutory “Notice of Breach of Covenant” (Exhibit
E) as required by the law.

2. Whether the Plaintiff/Respondents waived their right to
forfeiture by demanding and collecting rent up to 1995, before the
purported Notice to Quit was allegedly issued in line with the
averments in the Defendant/Appellant’s Statement of Defence.

Arguments

Counsel for the Appellant submitted on Issue One, that the
manner of pleading the Notice of Breach of Covenant offends Order
17 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules,
1994 which stipulates that pleadings should contain only statement
in a summary form of the material facts on which the party pleading
relies for his claim/defence, but not the evidence by which they
are to be proved. Counsel argued that the Respondents ought to have
pleaded the legal effect of the Notice of the breach as a fact,
before it is tendered. He argued further that the name of the legal
practitioner who issued the said Notice should have been pleaded,
and that failure to call one Mr. Alade Akinsote, who effected the
service as a witness was questionable, and that the court should
invoke the provision of Section 149(d) of the Evidence Act (now
Section 167(d), to hold that Counsel for the Respondents withheld
evidence.
Countering the submission, counsel argued on behalf of the
Respondents that the statutory notices were validly served, and
that despite the denial by the Appellant, DW1 admitted in evidence,
service of the said processes subsequent to the denial in the
pleadings. More so, the Appellant did not object to tendering of
the said document(s) at trial in the suit, and so, cannot be heard
to complain at the Supreme Court.
Regarding the second issue, it was the submission of counsel for
the Appellant that the rent paid was subsisting till the year,
1995, and that the receipt of arrears of payment during the
subsistence of the statutory notice(s), necessarily destroyed the
validity of such Notice.

Court’s Judgement and Rationale

Deciding the first issue, the court restated the trite position
of law, that pleadings should contain facts and not evidence.
Documentary evidence need not be specifically pleaded to be
admissible in evidence, so long as the facts by which such document
is covered, are expressly pleaded – OKONKWO v COOPERATIVE AND
COMMERCE BANK (NIG.) PLC & 2 OTHERS (2003) 8 NWLR (Pt. 882) 347. In
this case, the Notice of breach of covenant was pleaded, and the
facts of the averred breach were pleaded. The Appellant did not
deny the existence of the Notice of Breach of covenant, and the
general traverse in paragraph 4 of its Amended Statement of Defence
is of no value. 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. Further,
the document being in evidence, the Appellant did not object to the
admissibility of the notice of breach in evidence as exhibit, he is
thus, estopped from contending that it is not sufficiently or
properly pleaded; more so, as the essence of pleadings is to ensure
that parties do not spring surprises on opponents.

Further, it was submitted for the Appellant that the Respondents
should have pleaded the legal effect of the notice of the breach as
a fact, before it was tendered. Their Lordships held that, the
position of the Appellant stemmed from a misconception on the
modern rule of pleadings, as the old legal terminology of pleadings
have since changed in line with new procedures. The pleader does
not need to state the legal result of a document or facts pleaded,
as this will amount to argument in pleading – EZEWANI v ONWORDI
(1986) 4 NWLR (Pt. 33) SC. 27. Having pleaded the document, there
was no need to plead its legal effect, as that would amount to
argument in a pleading. In all, the trial court rightly held that,
Exhibit E was served on the Appellant. Learned counsel for the
Appellant, could not show that the above decision was wrong.

On 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 of Appeal affirmed
the decision of the trial court, on the credibility of the
witnesses. The Appellant abandoned its appeal against the decision
of the Court of Appeal, affirming the decision of the trial court
on the credibility of PW1 and DW1. 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 judgement 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.

Deciding issue two, the Supreme Court held that the strongest
point made by the Appellant, was that the Respondents had waived
their right to forfeiture by demanding and collecting rent till
1995. However, there is no valid ground of appeal on the holding of
the Court of Appeal that the Appellant deliberately falsified the
years for which rent had been paid. The Apex Court agreed with the
inference of the Court below in affirming the decision of the High
Court, that even though the Respondents collected rent till 1991,
there was a letter by counsel for the Respondents – Exhibit N
written in 1992 clearly showing an intention to terminate the
lease. The fact that a landlord collected rent on a property still
in occupation or possession of the tenant after notice to quit,
cannot by any stretch of the law, equity or imagination amount to a
waiver of the notice to quit, even where the notice had expired,
and the tenant refused to yield possession in time. The notice to
quit would subsist until it is formally rescinded by the landlord,
or when a fresh tenancy agreement is entered into.

Even if the initial notice to quit was irregular, the minute the
Writ of Summons dated 13/5/1993 for repossession was served on the
Appellant, it served as adequate notice. Equity demands that
wherever and whenever there is controversy on when or how notice of
forfeiture or notice to quit is disputed by the parties, or even
where there is irregularity in giving notice to quit, the filing of
an action by the landlord to regain possession of the property has
to be sufficient notice on the tenant, that he is required to yield
up possession.

Their Lordships clarified that, while statutory notice may be
given as the situation requires (whatever form the periodic tenancy
is, whether weekly, monthly, quarterly, yearly etc.), immediately a
Writ is filed to regain possession, the irregularity of the Notice,
if any, is cured. Time to give notice, should start to run from the
date the Writ is served. If for example, a yearly tenant, six
months after the Writ is served and so on. All the dance drama
around the issue of the irregularity of the Notice, ends
thereby.

Appeal Dismissed.

Representation

Chigbo Anainugwu with V.I.P Ozumba for the Appellant.

Tochukwu Onuike with Nnemeka Otagburuagu with Adaeze Anah for
the Respondents.

Reported by Optimum Publishers Limited, Publishers of the
Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin &
Co.)