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IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION


HOLDEN AT APO
BEFORE HIS LORDSHIP, HON. JUSTICE U. P. KEKEMEKE
SUIT NO: FCT/HC/CV/2002/11
COURT CLERK: JOSEPH BALAMI ISHAKU
DATE: 28/02/12
BETEEN:
MR. HENRY FEMI OSOBU!!!!!!!!!!!!!!!!!.PLAINTIFF
AND
MRS. ANIEKEME ADEA FABORO !!!!!!!!!!!!DEFENDANT
JUDGEMENT
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
rd
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 &
nd
da of /arch+ &122.
One A.H. -natto -s4. entered a!!earance for the Defendant through a /emorandum of
A!!earance on the 5610622.
2
On the 21
th
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 )
th
da of 8ul+ &122+ the Plaintiff o!ened his case. He gave evidence for himself
and called no other $itness. He said orall that his name is Henr 9emi Osobu. That he
lives at 7o. &: Samora /ichael Street+ Aso3oro+ Abu.a.
That he is a ;egal Practitioner. He confirmed filing a Witness Statement on Oath on the
&
nd
da of 9ebruar+ &122. He identified same and ado!ted it as his oral testimon.
He de!oses as follo$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
th
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
rd
da of
October+ &11: and la!sed on the &&
nd
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
th
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 &&
nd
October+
&115.
*. That the Defendant $as in arrears of rent for one ear commencing from the
&0
rd
October+ &115 to &&
nd
October+ &11> for the sum of N1.# M$%%$&'.
:. 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
st
da of A!ril+ &121 $herein the Defendant
underta3es to !a her rent $hich commenced from the &0
rd
da of October+
&11> to &&
nd
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&
th
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! $ith different e#cuses of her inabilit
to !a the .udgment sum.
20. The Defendant on the 2
st
da of 8ul+ &121 through her husband !resented t$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.
0
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
account.
&*. That m Counsel "arrister ?ictor AgunAi called the Defendant on the &5
th
da
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
st
A!ril+ &121 b failing and
refusing to !a the agreed rent before the 01
th
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
!ur!ose.
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 $ithout !ament of
rent.
00. That < am no$ desirous of ta3ing over !ossession of the said !ro!ert. <
issued a : das 7otice of O$ners <ntention To Becover Possession on the 20
th
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
st
A!ril+ &121.
-#hibit C" D : Das 7otice of O$ners <ntention To Becover Possession dated 20
th
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 $hich
commenced on &0
rd
October e#!ired b efflu#ion of time on the &&
nd
da of October+
&121.
<n res!ect of /esne !rofit+ Counsel relies on the case of ODUTOLA VS PAPERSA!
(NIG.) LTD (2006) 1" NWLR (PT 1012) 470 #$ 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 $itness and the -#hibits CA and
C".
-#hibit CA is the Tenanc Agreement bet$een the Plaintiff and the Defendant. The
agreement is dated 2
st
da of A!ril+ &121. Sur!risingl+ it is for a tenanc that runs from
&0
rd
October+ &11> to &&
nd
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
th
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:
5
)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 $hen the evidence
adduced is unchallenged. <n such a case+ the evidence in su!!ort of the Plaintiffs claim
must not onl be unchallenged+ it must be credible+ incontrovertible and must su!!ort
the Plaintiffs claim.
See GREEN ANGER AGRO INDUSTRIES LTD VS YUSU8U (2003) 12 NWLR (PT
"3') P 4"".
>
<n MADARA VS :ALILU (2000) 8WLR (PT.19) 433> the Court of A!!eal follo$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
held:
)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.
Signed.
Hon. 8udge.
&561&62&.
21