Вы находитесь на странице: 1из 10



SUIT NO: FCT/HC/CV/2002/11
DATE: 28/02/12
The Plaintiffs claim against the Defendant vide his Writ of Summons and Statement of
Claim is for:
a. An Order of this Honourable Court directing the Defendant to immediatel
vacate and deliver u! !ossession of the four "edroom Du!le# $ith t$o %&'
rooms "os (uarters together $ith the a!!urtenances thereto situate at Plot
)*" Constitution Avenue+ ,adu$a -state+ Abu.a to the Plaintiff.
b. /esne !rofit from the &0
October+ &121 until .udgment is given in this suit at
the rate of N208, """."" !er month until !ossession is given u!.
c. Out of Poc3et e#!enses for this action.
The Writ of Summons+ Statement of Claim and all other !rocesses $ere served on the
Defendant on the &
da of /arch+ &122.
One A.H. -natto -s4. entered a!!earance for the Defendant through a /emorandum of
A!!earance on the 5610622.
On the 21
da of /a+ &122+ a 7otice of change of Counsel $as filed on behalf of the
Defendant b one Slvanus -.O.". /ali3i -s4.
The Defendant failed+ refused and or neglected to file an Statement of Defence.
On the )
da of 8ul+ &122+ the Plaintiff o!ened his case. He gave evidence for himself
and called no other $itness. He said orall that his name is Henr 9emi Osobu. That he
lives at 7o. &: Samora /ichael Street+ Aso3oro+ Abu.a.
That he is a ;egal Practitioner. He confirmed filing a Witness Statement on Oath on the
da of 9ebruar+ &122. He identified same and ado!ted it as his oral testimon.
He de!oses as follo$s:
2. That < am the Plaintiff in this suit and the beneficial and legal o$ner of a four
"edroom Du!le# $ith t$o room "os (uarters together $ith a!!urtenances
situate at Plot )*" Constitution Avenue+ ,adu$a -state+ Abu.a.
&. That via a lease agreement made on the 21
da of Se!tember+ &11: $ith the
Defendant+ < leased out the said four "edroom Du!le# $ith t$o rooms "os
(uarters $ith the a!!urtenances thereto to the Defendant to hold same for a
term of one ear.
0. That the lease agreement too3 effect and commenced on the &0
da of
October+ &11: and la!sed on the &&
da of October+ &115 $ith an o!tion to
rene$ for a further term at a earl rent of N1,#00,000.00 onl
). That at the e#!iration of the lease agreement made on the 21
da of
Se!tember+ &11:+ mentioned in !aragra!h 0 above+ the Defendant $ithout
rene$ing the lease agreement continues in the occu!ation of the !remises
$ithout !aing the agreed rent to me.
=. That the lease agreement in !aragra!h 0 above ela!sed on the &&
*. That the Defendant $as in arrears of rent for one ear commencing from the
October+ &115 to &&
October+ &11> for the sum of N1.# M$%%$&'.
:. That < $as desirous of recovering !ossession of the !remises from the
Defendant and after serving the re4uisite statutor notices on the Defendant+ <
instituted an action in suit 7o. 9CT6HC6C?6=>>621+ Henr 9emi Osobu and
/rs. Anie3eme Ade$a 9aboro against the Defendant.
5. That the Defendant !leaded $ith me to settle the suit mentioned in !aragra!h
: above out of Court @
>. That < being a !eace loving citiAen of 7igeria and considering the !lea of the
Defendant agreed to settle the matter out of Court.
21. That < and the Defendant thereafter signed Terms of Settlements and a
Tenanc Agreement on the 2
da of A!ril+ &121 $herein the Defendant
underta3es to !a her rent $hich commenced from the &0
da of October+
&11> to &&
da of October+ &121.
22. That His ;ordshi!+ Honourable 8ustice A.A.<. "an.o3o of the 9CT High Court
7o. 2= ,udu on the 2&
da of A!ril+ &121 entered the said Terms of
Settlement as consent .udgment.
2&. The Defendant refused+ failed and or neglected to obe and abide b the
consent .udgment but rather came u! $ith different e#cuses of her inabilit
to !a the .udgment sum.
20. The Defendant on the 2
da of 8ul+ &121 through her husband !resented t$o
!ostdated che4ues.
2). The first che4ue $ith che4ue leave 7o. =:*&1>): is dated 01615621 $hich
$as to cover the .udgment sum.
2=. The Defendant in further moves to deceive me issued che4ue 7o. =:*&1>)5
dated 0161>621 for another tenanc to commence from October &121.
2*. The Defendant ensured < did not !resent the che4ues for !ament on the due
dates as she 3e!t bringing e#cuses and that there is no credit et in the said
&*. That m Counsel "arrister ?ictor AgunAi called the Defendant on the &5
of October+ &121 for !ament but the Defendant refused to !ic3 his call and
avoided me and m Counsel for a ver long time.
&:. As a result+ < $as left $ith no o!tion than to a!!l for the attachment of the
Defendants !ro!ert in e#ecution of the consent .udgment in suit 7o.
9CT6HC6C?6=>>621 and same $as carried out.
&5. A ?aluer $as a!!ointed b the Court to evaluate the !ro!erties attached and
he estimated it to a sum $hich is far less than the .udgment sum.
&>. The Defendant has failed to com!l $ith !aragra!h & of the Terms of
Settlement and the Tenanc Agreement dated 2
A!ril+ &121 b failing and
refusing to !a the agreed rent before the 01
da of 8une+ &121.
01. The Defendant has also breached !aragra!h ?< of the tenants covenant $ith
the landlord not to use the !ro!ert for an !ur!ose other than for residential
02. The Defendant has converted the said !remises to his office $here he habours
different 3ind of !eo!le in the name of business associates to enable him carr
out his deceitful and fraudulent activities.
0&. "eing a retired civil servant+ < have been suffering from the acts of the
Defendant $ho too3 over m !ro!ert for over three ears $ithout !ament of
00. That < am no$ desirous of ta3ing over !ossession of the said !ro!ert. <
issued a : das 7otice of O$ners <ntention To Becover Possession on the 20
da of 8anuar+ &122 $hich $as served on the Defendant.
The Plaintiff claims as !er the Writ of Summons.
The Plaintiffs Witness %PW2' tendered the follo$ing documents:
-#hibit CA D Tenanc Agreement and Terms of Settlement dated 2
A!ril+ &121.
-#hibit C" D : Das 7otice of O$ners <ntention To Becover Possession dated 20
8anuar+ &122.
The Defendant $as absent+ neither $as he re!resented. The suit $as therefore
ad.ourned to 2061:622 for crossEe#amination and defence.
One -seigbe a!!eared for the Defendant holding brief for /ali3i. He said he filed a
motion on 7otice dated 561:622 and !referred to move same. On the da the motion
came u!+ the Defendant $as absent $ith his Counsel and the said motion $as struc3 out.
The Defendants right to crossEe#amine and enter his defence $as also foreclosed.
The Plaintiff thereafter filed and served his $ritten address dated 0622622 $hich he
ado!ted as his oral argument.
He raised a sole issue for determination $hich is+ $hether b -#hibits CA and C"
tendered b PW2+ the Plaintiff has !roved his case against the Defendant to entitle him
for .udgment.
He argued that the Plaintiff+ b -#hibits CA and C" tendered b PW2+ has successfull
!roved his case against the Defendant so as to entitle him to the .udgment of this Court.
That -#hibit CA is binding on the !arties.
He relies on the case of METIBAYE VS NARELLI INTL LTD (2009) 16 NWLR (PT
1167) PAGE 326 AT 349.
The Plaintiffs Counsel contends that the tenanc being for a ear certain $hich
commenced on &0
October e#!ired b efflu#ion of time on the &&
da of October+
<n res!ect of /esne !rofit+ Counsel relies on the case of ODUTOLA VS PAPERSA!
(NIG.) LTD (2006) 1" NWLR (PT 1012) 470 #$ P#%& 49' ( 6.

He further argued that facts !leaded b a Plaintiff are deemed admitted if the are not
controverted. That the Defendant did not controvert the averments in the Plaintiffs
Claims as she failed+ refused and or neglected to file a defence challenging this action.
That the uncontroverted Statement of Claim is deemed admitted.

He contends that from the totalit of his submission+ the Court should resolve the sole
issue in his favour and enter .udgment for the Plaintiff as !er the Statement of Claim.
< have carefull gone through the evidence of the sole $itness and the -#hibits CA and
-#hibit CA is the Tenanc Agreement bet$een the Plaintiff and the Defendant. The
agreement is dated 2
da of A!ril+ &121. Sur!risingl+ it is for a tenanc that runs from
October+ &11> to &&
October+ &121. There is no evidence before me that the
tenanc $ill have a retroactive effect.
Ho$ever+ from the evidence before the Court and the !leadings+ the tenanc $as to be
for a ear certain.
Ho$ever+ !aragra!h C%iii' of -#hibit CA $hich is the Tenanc Agreement+ reads:
)I* $+& &,&*$ $+& $&*#*$ -&.#/0$1 2* 3#42*% $+& 1#2- 5&*$ 6&*$27*&- 2*
3#5#%5#3+ 2 7. $+& T&561 7. S&$$0&6&*$ 2* 1/2$ N7. 8T9:9V9'99910
M5. :&*54 8&62 O17;/ #*- M51. A*2&<&6& A-&=# 8#;757 #1 #$ #*- =+&*
-/&> #*- $+& 0#*-075- -&125&1 $+#$ $+& $&*#*$ 1/55&*-&51 3711&1127* 7. $+21
3573&5$4 7 -#41 *7$2?& 6/1$ ;& %2,&* $7 $+& $&*#*$ ;&.75& $+& 0#*-075- ?#*
&@&?$ $+& $&*#*$ $+&5&.576A
The Plaintiffs Witness Statement on Oath is e#actl the same thing $ith the Statement
of Claim $ord for $ord. The Witness Statement on Oath is undated $ith sentences as:
(T)* +,$- +.$/ $+ )*0*12 3%*,-*-F
(T)* +,$- T*04+ &5 S*//%*4*'/ ,'- T*','62 A70**4*'/ ,%% -,/*- 1
A30$%, 2010 ,0* )*0*12 3%*,-*- ,'- +),%% 1* 0*%$*- .3&' ,/ /)* )*,0$'7
&5 /)* +.$/.F
<t is trite la$ that evidence is not !leadings+ neither are !leadings evidence and cannot
be so construed. Pleadings must be couched as averments $hile evidence should be
couched as testimonies of a $itness in Court based on the !leadings and or averment.
To do other$ise and then co! !leadings verbatim b merel changing the headings
leaves much to be desired.
The evidence of the sole $itness is that the Defendant failed to com!l $ith !aragra!h &
of -#hibit C" $hich is the terms of settlement and -#hibit CA $hich is the Tenanc
Agreement. That the Defendant also breached !aragra!h vi b converting the said
!remises to an office. He testifies that he is desirous of ta3ing over !ossession of the
said a!artment and he issued and served : das 7otice of O$ners <ntention to Becover
Possession on the 20
da of 8anuar+ &122. He claims as !er the Writ of Summons.
9rom -#hibit CA+ !aragra!h C %iii'+ $hich is the Tenanc Agreement states+ in the event
that the tenant defaults in !aing the said rent mentioned in !aragra!h & of the Terms of
Settlement as at and $hen due+ and the landlord desires that the tenant surrenders
!ossession of the !ro!ert+ : das notice must be given to the tenant before the landlord
can e.ect the tenant therefrom.
The evidence before me is that the tenant had breached the Terms of Settlement as
contained in !aragra!h & and the Tenanc Agreement.
<n the circumstance + !aragra!h C%iii' !rovides the 3ind of notice to be given.
<n -#hibit CA $hich is the Tenanc Agreement bet$een the !arties+ there is an e#!ress
sti!ulation that $hen the landlord desires the tenant to surrender !ossession of his
!ro!ert+ he shall give the tenant : das 7otice before he can be e.ected.
<t is settled la$ that before a tenant is e.ected from the !remises he la$full occu!ies+
he must be served $ith the !rescribed statutor notice to determine the tenanc. This is
3no$n as the Quit Notice. The duration of the notice $ill de!end on such !eriod
other$ise agreed b the !arties.
On the e#!iration of a notice to 4uit+ if the tenant remains adamant and fails to deliver
u! !ossession of the !remises+ a further notice titled Notice to Tenant of Owners
Intention To Apply To Recover Possession $ill be issued. <t is onl after the e#!iration
of the second

7otice that the landlord can ta3e out a Writ of Summons or a Plaint
against the tenant or !erson refusing to deliver u! !ossession.
See GAMBARI VS GAMBARI (1990) ' NWLR (PT 1'2) '72 A
I:ENA:O VS UBO:U!WU (1997) 2 NWLR (PT 4"7) 2'7 #$ 2'9 ( 260 S.
The e#!ress sti!ulation as !er -#hibit CA is that : das 7otice must be given. That is+
the agreement bet$een the !arties. The Plaintiff did not tender an such 7otice to 4uit
but issued and served a : das 7otice of O$ners <ntention to Becover Possession+
-#hibit C".
Section : of the Becover of Premises Act states:
)W+&* #*- 17 177* #1 $+& $&56 75 2*$&5&1$ 7. $+& $&*#*$ 7. #*4 35&621&1
+&0- ;4 +26 #$ =200 75 .75 #*4 $&561 &2$+&5 =2$+ 75 =2$+7/$ ;&2*% 02#;0& $7
$+& 3#46&*$ 7. #*4 5&*$ &*-1 75 21 -/04 -&$&562*&- ;4 # =52$$&* *7$2?& $7
C/2$ #1 2* 8756 B> 75 D =+2?+&,&5 21 #3302?#;0& $7 $+& ?#1& 75 21
7$+&5=21& -/04 -&$&562*&- #*- $+& $&*#*$ D. *&%0&?$1 75 5&./1&1 $7 C/2$
#*- -&02,&5 /3 3711&1127*D $+& 0#*-075- 75 +21 #%&*$ 6#4 ?#/1& $+&
3&517* 17 *&%0&?$2*% $7 ;& 1&5,&- =2$+ # =52$$&* *7$2?& #1 2* 8756 E.A
The Plaintiffs onl $itness $ho is the Plaintiff himself having relied on the fact that the
Defendant is being e.ected because of a breach of the agreement and Terms of Settlement
ought to give the re4uisite : das (uit 7otice en.oined b !aragra!h C%iii' of the
Agreement and Sections : and 5 of the Becover of Premises Act.
The failure of the Plaintiff to give the said : das C(uit 7otice before the 7otice of
O$ners <ntention to Becover Possession+ as in -#hibit C"+ is fatal to his case.
The onus of !roof lies on the Plaintiff and he must succeed on the strength of his o$n
case and not on the $ea3ness of the defence. The Defendant did not give evidence.
ABASI VS. ONIDO (199") ' NWLR (PT. '4") 3 49 A..
N!WO VS IBOE (199") 7 NWLR (PT ''") 3'4 S.
U:E VS E!E (199") 9 NWLR (PT '64) 34 S
<t is not al$as that .udgment is entered in favour of the Plaintiff $hen the evidence
adduced is unchallenged. <n such a case+ the evidence in su!!ort of the Plaintiffs claim
must not onl be unchallenged+ it must be credible+ incontrovertible and must su!!ort
the Plaintiffs claim.
"3') P 4"".
<n MADARA VS :ALILU (2000) 8WLR (PT.19) 433> the Court of A!!eal follo$ed
suit+ !er Salami 8CA+ $hen it held:
)I$ 21 *7$ #0=#41 $+#$ # 3#5$4 357-/?&1 /*?+#00&*%&- #*-
/*?7*$5#-2?$&- &,2-&*?& $+#$ @/-%6&*$ 21 &*$&5&- 2* +21 .#,7/5D.
U*?+#00&*%&- #*- /*?7*$5#-2?$&- &,2-&*?& 21 *7$ 14*7*467/1 =2$+
3577. ;4 ?5&-2;0& &,2-&*?&.F
<n BU:ARI VS OBASANEO (200') ALL 8WLR (PT 273) 1 #$ 4"> the Su!reme Court
)E,&* =+&5& $+& &,2-&*?& #--/?&- ;4 $+& P0#2*$2.. 21 /*?+#00&*%&-> $+&
7/5$ 1$200 +#1 # -/$4 $7 &,#0/#$& $+& &,2-&*?& #--/?&- $7 1&& 2. 2$ 21
?5&-2;0& &*7/%+ $7 1/1$#2* $+& ?0#26.A
While it is true that the Defendant failed to file a defence+ neither did he give evidence+
and he is ta3en to admit the facts !leaded b the PlaintiffG the facts !leaded and the
evidence given must be credible enough to sustain the claim.
<n the circumstance of this case+ the Plaintiff failed to !rove his case as en.oined b
Sections :+ 5 and 2>%2' of the Becover of Premises Act Ca!. =)) ;a$s of the
9ederation of 7igeria+ 2>>1.
Conse4uentl+ the suit fails and it is hereb struc3 out.
Parties absent.
?ictor AgunAi for the Plaintiff.
8udgment delivered.
Hon. 8udge.