Concurring Judgment of the Supreme Court in Pillars (Nig.) Ltd. Vs. Desbordes & Anor – A Case of Giving with the Right Hand and Taking with the Left Hand

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By Adolphus Nwachukwu

INTRODUCTION

The dispute between Landlords and Tenants or Lessor and Lessee has been on from time immemorial. It is a grudge war that cannot be settled even though both parties’ relationship will never end. Even the Holy Book talked about the tenants in a vineyard that ended up killing the landlord’s son.  It is a case of the more you look the less you see. It is an inevitable war because as long the earth is the habitation of man/woman there must always be a landlord and a tenant.

 FACTS OF THE CASE OF PILLARS (NIG.) LTD. VS. DESBORDES & ANOR. (2021) LPELR- 55200 (SC)

The Appellant/Defendant (‘appellant’) and the Respondent/Plaintiff (‘respondent’) in that case entered a 26-year development lease (‘contract of lease’) for a plot of land, at Plot B, Sabiu Ajose Crescent, Surulere, Lagos State on 24 October 1977. The respondent was to erect a building within two years on or before 1979 upon payment of annual rent payable in advance.

During the tenure of the lease, a dispute arose between the parties that led the respondent to issue and serve on the appellant a notice to quit, a notice of owner’s intention to apply to recover possession and a notice of breach of the covenant in the lease agreement. In 1993, the respondent commenced an action at the High Court of Lagos State (‘Court’) to recover possession, due to non-compliance by the appellant with the terms of the lease. The Court entered judgment in favour of the respondent which said judgment was affirmed by the Court of Appeal (‘COA’). Piqued by the judgment of the COA, the appellant further appealed to the Supreme Court (‘SCN’). 

JUDGMENT OF THE SUPREME COURT

On 5 February 2021, the SCN per the leading judgment of Honourable Justice Emmanuel Akomaye Agim (‘Agim, J.S.C.’) entered judgment in favour of the respondent.

One fundamental issue, that decided the appeal was whether the COA was right in affirming the judgment of the Court that held that the respondent pleaded and proved service of statutory “Notice of Breach of Covenant “(Exhibit E) and “Notice to Quit” (Exhibit G) on the appellant as required by the law?

The SCN based its finding on the fact that the appellant’s witness, (‘DW1’) admitted service of the seven days’ notice of owner’s intention to apply to recover possession (Exhibit H) on the appellant but denied service of notice of breach of covenant (Exhibit E) and Notice to Quit (Exhibit G). This also supported the finding of the Court which was affirmed by the COA to the effect that the evidence in support of service of the notice to quit and the admission by the appellant’s witness (‘DWI’) that the appellant was served with the notice of owner’s intention were strong basis to accept the evidence of the respondent’s witness (‘PW1’) as credible against the evidence of the appellant’s DW1. The SCN also held that there was no ground of appeal (‘GOA’) in the appellant’s Notice of Appeal (‘NOA’) complaining against the decision of the COA that affirmed the finding  of the Court that the respondent pleaded and proved service of notice to quit (Exhibit G).

It was on this basis that the SCN held that part of issue 1 in the Appellant’s Brief of Argument which questioned the decision of the COA concerning the pleadings and proof of the service of the notice to quit (Exhibit G), not being derived from or related to any of its GOA, the said issue 1 was incompetent and was accordingly struck out. The implication is that the above finding of the COA which was not appealed against was deemed admitted by the appellant. It is a settled law that it is only a party affected by the decision of a court that can appeal against it. See Mobil Producing (Nig.) Unlimited vs. Monokpo [2003] 18 NWLR (Pt.852)346 at 398-399 paras. F-F(SC); Osho vs. Foreign Finance Corporation [1991] 4 NWLR (Pt.184) 157 at 188H(SC).Therefore, a person like the appellant in that case that fails to appeal a decision of a court against him is deemed to have accepted the decision as correct, conclusive, binding, and cannot argue against it.

 THE CONCURRING JUDGMENT OF THE SUPREME COURT

This could have been the appropriate time to let sleeping dogs lie in respect of the appeal. See Geoffrey Chaucer – Troilus and Criseyde, circa 1830. However, in his concurring judgment, Honourable Justice Helen Moronkeji Ogunwumiju, J.S.C., (‘Ogunwumiju, J.S.C.’) probably infuriated by the antics of the appellant/tenant in that case held thus:

“The justice of this case is very clear. The Appellant has held on to property regarding which it had breached the lease agreement from day one. It had continued to pursue spurious appeals through all hierarchy of Courts to frustrate the judgment of the trial Court delivered on 8/2/2000 about twenty years ago. After all, 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. The ruse of faulty notice used by tenants to perpetuate possession in a house or property which the landlord had slaved to build and relies on for means of sustenance cannot be sustained in any just society under the guise of adherence to any technical rule. 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. I am not saying here that statutory and proper notice to quit should not be given. 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 drama around the issue of the irregularity of the notice ends. The Court would only be required to settle other issues if any between the parties. This appeal has absolutely no merit and it is hereby dismissed.”

INTERROGATION OF THE CONCURRING JUDGMENT OF OGUNWUMIJU, J.S.C.

Before ironing out the above creases, it is important that his Lordship acknowledged that the appellant in that case used bogus appeals to remain in possession for twenty (20) years. His Lordship also noted that even where notice to quit was irregularly issued or served, the minute the writ of possession was served on the appellant, it served as adequate notice. However, his Lordship traded on fine margins when his Lordship held that he was not advocating that statutory and proper notice to quit should not be issued and served on a tenant . This is a wise statement because statutory notice is provided in the statute and services of pre action notices or notices is a constitutional issue that bothers on fair hearing. See Section 13(1) of the Lagos State Tenancy Law, 2011.

The first critical and compelling point to make is that since the SCN found in its leading judgment that the appellant’s issue 1 in the Appellant Brief of Argument did not arise from ground 1 of the NOA, it means that the finding of the COA on this point had been sustained. Thus, the decision on the service of the notice to quit ended at the COA as the SCN did not have the opportunity to decide that issue. This is because none of the appellant’s issues had any nexus with ground 1 of its GOA which was eventually struck out.

Therefore, since issue 1 of the Appellant Brief of Argument did not emanate from ground 1 of the appellant’s NOA, the SCN lacked the requisite jurisdiction to make a finding on that point. See Osinupebi vs. Saibu & Ors. (1982) 7 S.C. 104 at 110 and 11; Okpala vs. Ibeme (1989) 2 NWLR (Pt.102) 208 at 221 (C.A.). The trite position of the law is that issues for determination must arise from the grounds of appeal otherwise they are incompetent and liable to be discountenanced together with the argument arising from it. See Dahiru vs. Kamale [2005] 9 NWLR (Pt. 929) 8; Ansambe vs. B.O.N. Ltd. [2005] 8 NWLR (Pt.928) 650; Zaga vs. Aman [2005] 10 NWLR (Pt. 33) 299.  Hence any issue formulated outside an appellant’s ground of appeal will be deemed to be irrelevant and ought to be discountenanced and struck out. See Akinbinu vs. Oseni (1992) 1 NWLR (Pt.215) 97 at 118/119 (S.C.); Ugo vs. Obiekwe (1989) 1 NWLR (Pt.99) 566; Modupe vs. State (1988) 4 NWLR (Pt.87) 130.

Another germane point is that his Lordship’s judgment is a concurring judgment not the leading judgment of the SCN in that case. More importantly, since the judgment of Hon. Justice Ogunwumiju, J.S.C. was a concurring judgment, it was under a legal duty not to depart from the leading judgment of Hon. Justice Agim, J.S.C. It is trite law that a concurring judgment has equal weight with or as a leading judgment. It edifies and adds to the leading judgment. It can even at times be an improvement of the leading judgment when the justice adds to it, certain aspects which the leading judgment did not remember to deal with.

However, a concurring judgment is not expected to deviate from the leading judgment rather it must be in agreement with the leading judgment. Thus, a concurring judgment which does its own thing, in its own way, outside the precincts of the leading judgment is on a frolic of its own as it is no longer a concurring judgment but a dissenting judgment stricto senso. See Olufeagba vs. Abdul-Raheem [2009] 18 NWLR (Pt.1173) 384 at 454-455,paras.F-B(S.C); Emeka Nwana vs. Federal Capital Development Authority & 5 Ors. (2004) 13 NWLR (Pt.889) 128 at 140-141; (2004) 7 SCNJ 90 at 97-98(SC). In the present case, the concurring judgment is a dissenting judgment and not a concurring judgment in the narrow sense of it and therefore does not represent the judgment of the SCN in the case of Pillars (Nig.) Ltd. vs. Desbordes & Anor. (2021) LPELR- 55200 (SC) . Thus, the concurring judgment should be treated with circumspect because of the red herring raised in the concurrent judgment of the SCN.

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Likewise, to the extent that his Lordship emphasized thus: I am not saying here that statutory and proper notice to quit should not be given it means that his Lordship was not attempting to destroy the law and the prophets as encapsulated in the Recovery of Premises Edict, No.9 of 1976. The law in operation when the cause of action in Pillars (Nig.) Ltd. vs. Desbordes & Anor. (supra) arose and accured which lead to the action filed at the Court. It is a settled law that the law in operation or in force or existing at the time the cause of action arose is the law applicable for determining a case. See Nigeria National Petroleum Corporation vs. Orhiowasele (2013) 13 NWLR (Pt.1371) 211; Sifax (Nig.) Ltd. vs. Migfo (Nig.) Ltd. [2018] 9 NWLR (Pt. 1623) 196 at 170, paras. E-F; G (SC); Mufutau Alawode & Ors. vs. M. A. Semoh (1959) 4 FSC 27 at pages 29-30.

Moreover, to the extent that his Lordship made it expressly clear that he was not saying that statutory notices should not be issued and served, then that part of his finding is an obiter dictum which is not binding on the lower Courts. This writer is fortified by this position because his Lordship, who is an embodiment of the law could not have approbated and reprobated on when and how to issue and serve statutory notices. The SCN cannot on the one hand hold that once a suit is filed, it serves as adequate notice to the tenant and turn around to hold that the regime of issuing and serving statutory notices has not been abolished or abrogated. The law is settled that one cannot approbate and reprobate or blow hot and cold at the same time. See, A.G., Rivers State vs. A.G., Akwa Ibom State [2011] 8 NWLR (Pt.1248) 31 at 99, paras.D-H; 129, paras.E-H; CBN vs. ARIBO [2018] 4 NWLR (Pt.1608) 130 at 168B-C, 170-171G-A(SC).

More importantly, the SCN with respect cannot through its judgment strike down a provision of a statute like the Recovery of Premises Edict, 1976 or the Lagos State Tenancy Law, 2011 (the extant law) without inviting parties to address it on the constitutionality or otherwise of the statute. In the present case, the SCN could not have struck down a part of the Recovery of Premises Edict of Lagos State of 1976 when it was no longer an issue before it. This writer is of the firm view that once the SCN found that issue 1 of the ABA did not arise from ground 1 of its NOA, and struck down ground 1 of the NOA because no issue was raised from it, the SCN was functus officio on that point. See generally G., Fed. vs. The Punch (Nig.) Ltd [2019] 15 NWLR (Pt.1694)90 at 58-59(SC), Akanke Olowu & Ors. vs. Amudatu Abolore & Anor (1993) LPELR – 2613(SC), (1993) 5 NWLR (Pt.293) 255-384, (1993)6 SCNJI 1.

Therefore, due to the action and inaction of the appellant in Pillars (Nig.) Ltd. vs. Desbordes & Anor. (supra) , the apex Court was not offered the opportunity to decide on the issue of service of statutory notices. This is the mischief behind the trite principle of law that Courts have no duty or power to expand the jurisdiction conferred on them by statute or the constitution but can expound their jurisdiction. See, African Newspapers Ltd. vs. F.R.N. (1985) 1 ALL NLR 50 at 175; [1985] 2 NWLR (Pt.6) 137 at 165. Even in the process of expounding the jurisdiction conferred on a court, there is a need for a court to decline jurisdiction where its exercise will determine issues a court has no jurisdiction to hear and determine. See, Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 545 paras. B, 549, paras.C-D(SC).

Again, based on the principle of separation of powers, courts including the SCN cannot strike down a provision of a statute unless it had interpreted same and found same to be unconstitutional. In other words, constitutional powers of the Lagos State House of Assembly to enact the Recovery of Premises Edict, 1976 (now a law based on the principle of existing legislation) was not eroded by the finding of his Lordship. This is because his Lordship was unequivocal that he was not saying statutory notices should not be issued and served as provided in the statute.

What is more, our written constitution recognizes the doctrine of separation of powers between the three arms of government [Legislative, Judicial and Executive] in its sections 4, 5 and 6. This to ensure efficiency, check arbitrary use of powers and non-interference in the work of the different organs of government. See, G., Abia State & Ors. vs. A.G., Federation (2002) 6NWLR [Pt.763] 264/285/6, INEC vs. Musa (2003) 3NWLR (Pt.806) 72 at 157; Unongo vs. Aku & Ors (1983)1NSCC 563/585 and Section 4(2) of the 1999 Constitution (as amended). In the case of A.G., Abia State & Ors. vs. A.G., Federation (2003) 4 NWLR [Pt.809] 124 at 177, the SCN per Belgore, J.S.C. (as he then was but later C.J.N.) stated that: “The principle behind the concept of separation of powers is that none of the three arms of government under the Constitution should encroach in the powers of the other.”

Therefore, subject to section 4(8) and (9) of the Constitution of the Federal Republic of Nigeria (‘CFRN’), 1999 (as amended) the duty of courts is to interpret, but not to make laws in the guise of interpretation. See Ogbonna vs. President of Nigeria (1990) 4 NWLR [Pt.142] 124 at 138; Abia State & Ors -v- AGF (2003) 4 NWLR [Pt. 809] 124 at 224. In carrying out its interpretative judicial assignment, the court must ensure that the mischief which a statute was made to deter is arrested and not an interpretation to defeat the purpose of the statute. See, G., of the Federation vs. Abubakar [2007] 10 NWLR (Pt.1041) 1 at 80-81, 119-121, 123(S.C.). Again, where the language used in the provision of a statute and/or the Constitution is plain and unambiguous, effect must, of necessity, be given to its plain and ordinary meaning because it is that clear and unambiguous language that best conveys the intention of the law maker. In the present case, the provision of the Recovery of Premises Edict, 1976 now the Tenancy Law of Lagos State, 2011 are plain and unambiguous about the issuance and service of statutory. See, A.G., of the Federation vs. Abubakar [2007] 10 NWLR (Pt.1041) 1 at 144-145, paras. H-C; 148, paras.C-E; 173-174, paras.F-C. (S.C.).

WHETHER THE COURT OF APPEAL RIGHTLY FOLLOWED THE CASE OF PILLARS NIGERIA LIMITED VS. WILLIAM KOJO DESBORDES & ANOR (2021) LPELR-55200 (SC) @ PAGES 24-26

Reminiscent of the danger of a single story, the COA in the case of Bankole & Lejem International Nursery & Primary School vs. Oladitan (for himself and on behalf of the executors of the Late Chief Oladipo Oladitan) – (2022) LPELR-56502(CA) followed the concurring judgment of Ogunwumiju, J.S.C., in the case of Pillars Nigeria Limited vs. William Kojo Desbordes & Anor (2021) LPELR-55200 (SC) @ pages 24-26.

In that case, late Chief Oladipo Oladitan, as a landlord leased his one storey building with its appurtenances, situate at and known as No. 19, Nnobi Street, Ikate, Surulere, Lagos State, to the appellants as his tenants for use as an office and a school. Following the failure of the appellants to pay their rents regularly, the late Chief Oladitan started the process of recovering possession of the property from the appellants before his demise on 17/06/2002.

Having obtained Letters of Probate as Executor/Executrix of the Estate of late Chief Oladitan, the other two Executrixes authorized the respondent to commence legal proceedings against the appellants. The respondent took out a Writ of Summons for possession of the property, claimed arrears of rent, mesne profit, interest on the arrears of rent owed by the appellants as the tenant of the demised premises. The appellants filed their statement of defence and the matter proceeded to trial. Upon the conclusion of trial, the HCLS entered judgment in favour of the respondent/plaintiff for possession, arrears of rent, mesne profit, interest, and cost of the action.

The issue for determination in that case as it relates to the subject matter of this paper was: Whether the service of the Notice of Owner’s Intention to Apply to Recover Possession of the demised Premises (Exhibit C11) on the 1st Appellant through his wife was proper service?

In the leading judgment of the COA, Muhammad Ibrahim Sirajo, J.C.A. held that it was not in doubt that the two notices issued in the case and meant for services on the 1st and 2nd appellants were served on the 1st appellant’s wife. The Court also held that to the extent that the 1st appellant’s wife held herself out as a representative and proprietress of the 2nd appellant in previous communication, the service of the statutory notice on her was good and proper service. However, his Lordship held that for the service on the 1st appellant to be valid, it must have been done personally, or by substituted means, if ordered by the court which unfortunately was not the case. Besides, his Lordship opined that service of the statutory notice on the wife of the 1st appellant would have been good, proper, and valid service on the 1st appellant, if it was shown by the respondent that the 1st appellant’s wife accepted service based on the instruction of the 1st appellant which was not the case. See Ndubuisi vs. Shobande (2013) LPELR – 22770 (CA). It was on this basis that the COA held that there was no effective and valid service of the statutory notice on the 1st

One would have thought this lack of service which is a fundamental constitutional issue would have ended the matter, however, the COA still had some important issues to decide. The COA then held thus:

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“Gone were the days when cantankerous, troublesome, and unpleasant tenants hold on to technicalities of service of statutory notices to defeat the claim of property owners by illegally holding unto such properties. The Supreme Court has now responded to the sad occasion by coming to the rescue of landlords and property owners whose cantankerous and recalcitrant tenants have over the years been clinging on to the issue of improper service of statutory notices to unjustifiably hold on to the landlords’ properties without payment of agreed rent or complying with the terms of the lease agreement. In the case of Pillars Nigeria Limited vs. William Kojo Desbordes & Anor (2021) LPELR-55200 (SC) @ pages 24-26, the Nigerian Judicial Oracle took a very proactive and practical decision, per Ogunwumiju, JSC, as follows:  …….(quoting the dictum of his Lordship as set out at para. 1.12 above). ……..​To the glory of God, we are now at a new dawn with the above-quoted decision of the apex Court. On the basis of this authority, which I must kowtow, I hold that notwithstanding the irregularity in the service of the Notice to Tenant of Owner’s Intention to Recover Possession of Property on the 1st Appellant, the writ initiating this suit cannot be invalidated as the service of the writ itself constitute sufficient notice to the Appellants that the Respondent wants to recover possession of the property together with arrears of rent. That notice has lasted for five years before the conclusion of the matter by the lower Court. Consequently, I resolve issue 1 against the Appellants and in favour of the Respondent.”

This writer is of the view that the COA went off tangent in its conclusion because of the following reasons. The case of Pillars Nigeria Limited vs. William Kojo Desbordes & Anor (supra) did not decide that good, proper, valid statutory notices should not be issued before applying for possession of a demised premises. The lead judgment of Agim, J.S.C., in Pillars Nigeria Limited vs. William Kojo Desbordes & Anor (supra) did not decide the issue of service of notice to quit in that case, since the appellant’s issues for determination did not relate to the GOA dealing with the service of statutory notice to quit.

Again, the concurring judgment of Ogunwumiju, J.S.C. in Pillars Nigeria Limited vs. William Kojo Desbordes & Anor. (supra) spoke to the high heavens that his Lordship was not speaking ex-cathedra that statutory notices should not be issued and served as provided in the Recovery of Premises Edict, 1976 or the extant law i.e. Lagos State Tenancy Law, 2011.

Also, the issue as to whether issuance and service of writ of summons is an adequate notice to the tenant that the landlord wants to take possession of his demised premises and obviates the need to issue and serve statutory notices before commencing an action was not what was placed before the SCN in the case of Pillars Nigeria Limited vs. William Kojo Desbordes & Anor. (supra). The issue only arose from the concurring judgment of the SCN which is auxiliary to the leading judgment.

Besides, the Recovery of Premises Edict, 1976 the SCN was interpretating in Pillars Nigeria Limited vs. William Kojo Desbordes & Anor. (supra) is different from the Rent Control and Recovery of Premises Law 2004 that the COA was interpreting in the case of Bankole & Lejem International Nursery & Primary School vs. Oladitan – (2022) LPELR-56502(CA).

Even if the SCN raised the issue suo motu, it would have invited the parties to address it on that point before reaching a decision one way or the other. It is trite law that the SCN has the right to raise an issue suo motu as the last court of appeal. However, it is imperative that parties must be given the opportunity to address the SCN thereon in order not to breach the right to fair hearing. See, Omokuwajo vs. Federal Republic of Nigeria [2013] 9 NWLR (Pt.1359) 300 at 328, paras.E-F (S.C.); Dairo vs. U.B.N. Plc [2007] 16 NWLR (Pt.1059) 99 at 138-139 (S.C.). Besides, a hearing cannot be said to be fair if any of the parties is denied the opportunity to be heard or present his case. See, Section 36(1) of the CFRN, 1999 (as amended); Victino Fixed Odds Ltd. vs. Ojo, [2010] 8 NWLR (Pt.1197)486 at 501-502, paras H-E, 504-505, paras.G-B (S.C.); Hambe vs. Hueze (2001) 4 NWLR (Pt. 703) 372.

The position of the law is that when a judge raises an issue on his own motion or raises an issue not in the contemplation of the parties; or an issue not before the Court, the judge is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue one way or the other. This writer is not oblivious of the distinction between when a Court can raise an issue suo motu and look at its records to resolve the issue, and the Court looking into its records suo motu to resolve an issue raised by the parties. In respect of the former, a Court raising an issue suo motu, must invite the parties to address it before making a finding on the issue in its judgment. But in the latter situation where the Court looks at its record to enable it resolve issues already raised by the parties; a Court is not bound to invite the parties to address it.

In Ikenta Best (Nigeria) Ltd. vs. Attorney General Rivers State (2008) 6 NWLR (pt.1084) 642A-C(SC), it was held that a Court can only be accused of raising an issue, matter, or fact suo motu if the issue, matter, or fact, did not exist in the litigation. A Court cannot be accused of raising an issue, matter, or fact suo motu if the issue, matter, or fact exists in the litigation. Thus, a judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences; the judge can arrive at its conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. This is because a court of law is eminently qualified and entitled to look at the content of its file or records and or refer to it in consideration of any matter or issue before it. See Agbareh vs. Mimira (2008) All FWLR (Pt.409) 559 at 589D-F.

Again, the mere fact that parties or the appellant did not adequately argue an issue raised by the Respondent before the Court, does not mean that the issue was not raised. This is because the duty of the Court is to resolve issues raised and in so doing, it should not restrict itself to the limits of the arguments of parties on the issue especially where they are issues of law on the jurisdiction of the Court. What is more, in some special circumstances, the court can raise an issue of law suo motu and decide it without hearing the parties. See Tukur vs. Government of Gongola State (1989)4 NWLR(Pt.117) 517(SC).

It is trite law that there are situations when there would be no need to call a counsel to address the Court on an issue raised suo motu especially when it is predicated on an issue of jurisdiction, a statute which may have a bearing on a case and fairness of proceedings. See Gbagbarigha vs. Toruemi [2013] 6 NWLR (Pt.1350) 289 at 310-311 (SC); Alims Nigeria Ltd. vs. United Bank for Africa (2013) 6 NWLR (pt.1351) 613 at 626. It is only issues of fact that a Court cannot raise suo motu without hearing the parties but in special circumstances, the court can raise issues of law or jurisdiction suo motu without hearing the parties upon it. See Effiom & Ors. vs. CRS Independent Electoral Commission (2010) LPELR-2027(SC). All these should be based on the facts and circumstances of each case. In the present, the point raised and decided by the concurrent judgment of the SCN even though raised and decided obiter did not arise from the issues raised by the parties or from the printed record.

Besides, to the extent that the concurring judgment of Ogunwumiju, J.S.C. stated in Pillars Nigeria Limited vs. William Kojo Desbordes (supra) that the issuance and service of writ of summons to recover possession should serve as adequate notice to quit, that was an obiter dictum that was not binding on the COA. See Okeke vs. Okoli (2000)1NWLR (Pt.642) 641 at 654; Fatola vs. Mustafa (1985) 2NWLR 1438; Dr. Okonjo v. Drodje (1985)10SC 267 at 268. It was not a judicial precedent that is binding on the COA because it is only under the doctrine of stare decisis that the COA is bound to follow the decision of the SCN. See Unilag vs. Olaniyan [2001] FWLR (Pt.56) 778 at 786, (1985) 1 NWLR (Pt.7) 756 (SC); Ibodo vs. Enarofia (1980) 4-5 S.C. 42.

Conversely, when the COA held Bankole & Lejem International Nursery & Primary School vs. Oladitan – (Supra) that it must kowtow to the decision of the SCN in Pillars Nigeria Limited vs. William Kojo Desbordes (supra) it was under a misdirection of the law as to what was decided in that case. This is because having found that the service of the notice to quit on the 1st appellant was irregular, the COA ought to have set aside the service and the suit as far as it affects the 1st

It is settled law that non-service or defective service where service of process is required, renders all proceedings in a suit a nullity as a fundamental condition precedent to vesting the jurisdiction on the court to entertain the suit has been breached. So, the failure to serve the 1st appellant in Bankole & Lejem International Nursery & Primary School vs. Oladitan – (supra) with the notice to quit a condition precedent to the jurisdiction of the court rendered the trial at the HCLS a nullity. See Ojobomere vs. Akporehe (2004) 14 NWLR (Pt. 294) 591; Ebe vs. Ebe (2004) 3 NWLR (PT. 860) 215. In any event, to effect personal service of court’s process on a party, the bailiff or any other officer of court entrusted with the task should satisfy himself that he has found the right man. It is not enough to leave a court process with a person who works in the same office with the person to be served even if the latter undertakes to convey it to him. See Odutola vs. Inspector Kayode (1994) 2 SCNJ 21; Adamu vs. Akukalia [2008] ALL FWLR (Pt.428) 352(CA).

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Also, since the case of Bankole & Lejem International Nursery & Primary School vs. Oladitan – (supra)  would not be properly constituted in the absence of the 1st appellant, as proper parties would not be before the trial Court, the suit ought to have been struck out. It is a settled law that a court would lack the jurisdiction to hear and determine a suit where proper parties are not before the court. See Plateau State vs. A.G., Federation (2006) 1 S.C. (Pt.1) page 1 at 72.

Likewise, the only logical and natural order which ought to have followed the above conclusion of the COA is that the 1st appellant was not served with the statutory notice and that the respondent’s suit at the HCLS was incompetent and allow the appeal rather than dismissing the appeal. This is predicated on the principle that a ruling or judgment ought to flow from the findings or conclusions made by a Court. See, Polycap Ojogbue & Anor. vs. Aje Nnnubia (1972) 1 ALL NLR (Pt.2) 226; (1972) ALL NLR 664 at 669. Thus, having concluded that the 1st appellant was not served with the notice to quit, there was no discretion for the COA to exercise but to apply the law to the facts of the appeal before it. See, Shell Petroleum Development Company of Nigeria Ltd. vs. Chief Caiphas Enoch & 2 Ors. [1992] 8 NWLR (Pt.259) 335 at 345, A-C (S.C.); Ogbechie vs. Onochie [1988] 1 NWLR (Pt.70)370 at 396, paras. D-E (S.C.); Green vs. Green (1987) 3 NWLR (Pt.60 or 61) 481 or 480 at 491 (S.C.); Olayioye vs. Oso (1969) 1 ALL NLR 281; ALL NLR 271 at 275 (S.C.).

Therefore, by dismissing the appellants appeal, the COA with respect showed a misunderstanding of the law or misapplied the correct stated principle of law to the facts of the case of Bankole & Lejem International Nursery & Primary School vs. Oladitan – (supra) (i.e. the 1st appellant was not served the notice to quit before commencing the suit at the trial court). Also, the COA erred in its conclusion (i.e. in applying the law to the facts of the case). Again, the COA reached a conclusion which cannot reasonably be drawn from its finding of fact that the 1st appellant was not served the statutory notice to quit which showed a misconception of the law. See, First Bank of Nigeria Plc vs. T.S.A. Industries Ltd [2010] 15 NWLR (Pt.1216] 247 at 291-292, paras. C-C (S.C.); Calabar Central Co-operative Thrift & Credit Society vs. Ekpo (2008) 6 NWLR (Pt.1083) 362 at 407-409, paras.G-D (S.C.), Ogbechi vs. Onochie (1986) 2 FWLR (Pt.23) 484 (S.C.), (1986) 2 NWLR (Pt.23) 484 at 491, para. F (S.C.); Coker vs. U.B.A. Plc [1997] 2 NWLR (Pt.490) 641 at 664-655 (S.C.).

Furthermore, it is not all judgments and pronouncements of the COA and the SCN that must be followed in subsequent cases. When it comes to judicial or binding precedents, the interpretation placed in one statute or decision in one case can be a precedent to the interpretation of the other only if or when the two statutes or cases are similar and identical. See Chief Nwobodo vs. Onoh & Ors. (1984)1SC 1.

So also, in determining the ratio decidendi of a case, one considers the claim before the Court, the facts, surrounding circumstances of the case and the issues which the Court was called upon to decide. A decision of a higher court becomes an authority only in a like or similar case or question of law and for a prior case to apply as a precedent; the two cases must be close in facts. It will be dangerous to consider any pronouncement of any Court, even the SCN in vacuo and without reference to the peculiar facts of the cases in which those pronouncements were made as those facts framed the issue that were decided. See Clement vs. Iwuanyanwu (1989) 3NWLR (Pt.107) 39 at 53.

Also, in the case of Adegoke Motors Ltd. vs. Adesanya (1989) 3 NWLR (Pt.109) 250 at 265/266 counsel wrongly relied on the case of Nwabueze vs. Okoye (1988) 4 NWLR (Pt.91)664, (1998) 10-11 SCNJ 60 previously decided by the SCN but different from the facts of Adegoke vs. Adesanya(supra). However, the SCN held that to rely on any pronouncements or on the decision in Nwabueze vs. Okoye (supra) in a subsequent case, it was incumbent for counsel, so relying on it, to show that the facts and surrounding circumstances of Adegoke’s case were similar to those of Nwabueze’s This is because failure to do that, the counsel or the Court would be citing those pronouncements out of their proper context and will thus be asking the Court to misapply them.

In the case of Adegoke Motors Ltd. vs. Adesanya (supra) the SCN stated at pages 265/6, viz:

‘It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter must therefore be inextricably and intimately related to the facts of the given case. Citing those authorities without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts…Court’s decisions and pronouncements derive their strength, their persuasive potency, their inspiration and therefore their value as precedent from the facts of the case as pleaded and as presented…’

 See also Odu’a Investment Co. Ltd. vs. Talabi (1997) 10 NWLR (Pt.523)1 at 42, paras. E-G (S.C).

Also, in the case of Fawehinmi vs. Nigeria Bar Association & Ors. (No.2) (1989) 2 NWLR (Pt.105) 558 at 650, Oputa, J.S.C (of blesses memory) observed thus:

“Our case law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the courts like or similar cases. The facts of two cases must be either the same or at least similar before the decision in one can be used as a guide to the decision in another case. What the former decision establishes is only a principle not a rule. They merely form a principium, a starting point. Where one ultimately lands will then depend on the peculiar facts and circumstances of the case at hand.

 So, for the COA to have relied on the case of Pillars Nigeria Limited vs. William Kojo Desbordes (supra), it was incumbent on the COA to show that the facts and surrounding circumstances of the case of Bankole & Anor. vs. Oladitan (supra) supports their Lordships’ contention. But since the COA did not do so, the COA was citing the pronouncement and decision in Pillars Nigeria Limited vs. William Kojo Desbordes (supra), out of its proper context and misapplied that authority. Therefore, having regard to the finding in the case of Pillars Nigeria Limited vs. William Kojo Desbordes (supra), it was wrong for the COA to rely on the case in the case of Bankole & Anor. vs. Oladitan (supra) having regard to the circumstances the concurring judgment was delivered.

CONCLUSION

There is no doubt that the development of the law is the duty of the judges and justices (as the case may be) with the assistance of lawyers. Our courts have times without number made pronouncements that reverberated in the Legal Profession. While these efforts are commendable in terms of social engineering and the development of the law, our apex Court should be circumspect in making these decisions to avoid the lower Court following them hook, line, and sinker. On the other hand, it is important for the lower Court to interrogate the circumstance of a decision before following the decision.

The fact that the COA followed the concurrent judgment of the SCN in the case of Pillars Nigeria Limited vs. William Kojo Desbordes (supra), in the case of Bankole & Anor. vs. Oladitan (supra) was uncalled for. The COA went overboard in following the decision when it was not bound by the doctrine of judicial precedent. There is a distinction between following a decision of the SCN that is obiter dictum and the decision of the SCN that is on the merits. As Legal Practitioners, we should be up and doing and be the guiding lights for our courts. It behoves on Counsel to address the attention of the Court to a particular decision if it is wrongly cited by another counsel. This writer looks forward to the case of Bankole & Anor. vs. Oladitan (supra) finding its way to the Supreme Court so that the issue of service of whether the writ of summons  saves the need to issue and service notice to quit can be settled with finality one way or the other.

Case Citation: PILLARS (NIG.) LTD. VS. DESBORDES & ANOR. (2021) LPELR- 55200 (SC)

Adolphus Nwachukwu is Head Of Maritime, Aviation & Litigation at  Mike Igbokwe (SAN) & Co.

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