⦿ CASE SUMMARY OF:
Pillars Nigeria Limited v. William Kojo Desbordes & Anor. (2021) – SC
by PipAr Chima
⦿ NOTABLE DICTA
* ISSUE MUST BE GOTTEN FROM THE GROUNDS OF APPEAL
An issue is derived from a ground where the subject matter of the issue is the same as the subject matter of the complain in the ground. As this court has established in a long line of cases overtime, any issue raised for determination in an appeal that is not based on or covered by any ground of the appeal is not valid for consideration and must be struck out. – Agim JSC. Pillars v. William (2021)
* PLEADINGS: LEGAL RESULT OF THE DOCUMENT NEED NOT BE STATED
On issue of whether the respondent should have pleaded the legal effect of the notice of the breach as a fact before it is tendered. This is a clear misconception of the modern rule on pleadings. The strict rigid old legal terminology of pleading have since changed in line with new procedures. The pleader is not bound to state the legal result of a document pleaded or fact pleaded. – Agim JSC. Pillars v. William (2021)
* APPEAL: FINDING NOT APPEALED IS BINDING ON PARTY
It is trite law that in an appeal against a judgment, a party who did not appeal against a finding, holding or decision, accepts it as correct, conclusive and binding and cannot argue against it. – Agim JSC. Pillars v. William (2021)
* RENT CAN BE COLLECTED DESPITE SERVICE OF NOTICE TO QUIT
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 The notice to quit would subsist until it is formally rescinded by the landlord and or when a fresh tenancy agreement is entered into. – Ogunwumiju JSC. Pillars v. William (2021)
* WRIT OF SUMMONS REGULARISES DEFECTIVE NOTICE TO QUIT
The ruse of faulty notice used by tenants to perpetuate possession in a house or property which the land lord 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 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, their regularity 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. – Ogunwumiju JSC. Pillars v. William (2021)
⦿ PARTIES
APPELLANT
Pillars Nigeria Limited
v.
RESPONDENT
William Kojo Desbordes & Anor.
⦿ LEAD JUDGEMENT DELIVERED BY:
AGIM, J.S.C.
⦿ APPEARANCES
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ CASE HISTORY
This appeal was commenced on 24/6/2009 when the appellant herein filled a notice of appeal against the judgment of the Court of Appeal at Lagos delivered on 8/5/2009 in appeal No. CA/L/859/2006 affirming the judgment of the High Court of Lagos delivered on 8/12/2000 in LD/148/93 and dismissing the appeal against it.
⦿ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED]
1. Whether the Court of Appeal was right in affirming the decision of the trial court that respondents pleaded and proved service of statutory “Notice of Breach of Covenant” (Exhibit E) and “Notice of Quit” (exhibit G) as required by the law.
RULING: IN RESPONDENT’S FAVOUR.
A. In the instance case, learned counsel for the plaintiff/respondent should have pleaded the name of the legal practitioner briefed by Mr. G. Desbordes (deceased)for identification of counsel. Nevertheless, the absence of any objection to the document going on as an exhibit is that the appellant was not taken unawares as regard notice of breach pleaded. The inference drawn is that of awareness. Consequently, he is estopped from raising same at a later stage.
B. The appellant in their amended statement of defence on paragraph 4 pleaded a general traverse and in paragraph 5 tried to respond to paragraph 9 by pleading that based on the agreement between plaintiff and defendant they submitted a building plan. This response is not a denial of the existence of the notice of breach exhibit E. the general traverse in paragraph 4 is equally not of value in particular when DW1 in evidence admitted service of notice of intention after the denial in the pleading. The learned trial Judge rightly held that exhibits E and G were served on the appellant.
C. It is settled law that a party who has not appealed against a finding or holding in the judgment 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.
2. Whether the plaintiffs/respondents have waived their right to forfeiture by demanding and collecting rent up to 1995 before the purported notice to quit (exhibit a) was allegedly issued in line with the averments in paragraph 22 of the defendant/appellants’ statement of defence.
RULING: IN RESPONDENT’S FAVOUR.
A. In any case, the issue and even the ground 5 of this appeal to which it purports to relate cannot be validly argued for the following reasons. One of the specific findings of the trial court with which the above decision of the Court of Appeal generally concurred with is that “defendant deliberately falsified the years for which rent has been paid, since this case was brought to court in 1993”. There is no ground of this appeal against the Court of Appeal concurrence with that specific finding. By not appealing against the concurrence with that finding, the appellant accepted it as correct, conclusive and binding upon it. Also in his appeal against the judgment of the trial court, the appellant did not complain against that finding in any of the 4 grounds of the appeal to the Court of Appeal.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
* PLEADING SHOULD CONTAIN SUMMARY OF MATERIAL FACT
Order 17 Rule 4 of the High Court of Lagos State Civil Procedure) Law (1994) Cap. 61 stipulate as follows: “Every pleading shall contain, and contain only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to prove.”
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ SIMILAR JUDGEMENTS
