Whether Service of Writ of Summons on Tenant Constitutes Adequate Notice, Rectifies Irregularity in Service of Statutory Notice(s)


BANKOLE & ANOR v. OLADITAN

CITATION: (2022) LPELR-56502(CA)

In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos

ON FRIDAY, JANUARY 14, 2022

Suit No: CA/L/514/2014

Before Their Lordships:

JOSEPH SHAGBAOR IKYEGH Justice, Court of Appeal
OBIETONBARA OWUPELE DANIEL-KALIO Justice, Court of Appeal
MUHAMMAD IBRAHIM SIRAJO Justice, Court of Appeal

Between

  1. REV. JOSEPH O. TOFIJI BANKOLE – Appellant(s)
  2. LEJEM INTERNATIONAL NURSERY & PRIMARY SCHOOL

And

MR. OLAYINKA OLADITAN – Respondent(s)
(For himself and on behalf of the Executors of the Late Chief Oladipo Oladitan)

LEADING JUDGMENT DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, J.C.A.

FACTS

The late Chief Oladipo Oladitan was the owner and landlord of a storey building with appurtenances thereto situate at and known as No.19, Nnobi Street, Ikate, Surulere, Lagos, which he let out to the appellants for use as an office and a school.

Following the failure of the appellants to pay their rents regularly, Chief Oladipo Oladitan started the process of recovering possession of the property from the appellants before his demise on June 17, 2002. Having obtained Letters of Probate as Executor/Executorixes of the Estate of late Chief Oladipo Oladitan, the other two Executorixes authorized one of them, in person of the respondent, to commence legal proceedings against the appellants. The respondent, as claimant, took out a writ of summons at the High Court for possession of the property, arrears of rent, mesne profit and interest on the total sum owed. The appellants, as defendants filed a statement of defence and the matter proceeded to trial.

The trial Court entered judgment for the respondent. Dissatisfied with the judgment, the appellant lodged an appeal at the Court of Appeal.

ISSUES FOR DETERMINATION
The Court of Appeal adopted the issues formulated by the appellants and respondent as follows: The appellants’ issues for determination:

  1. Whether failure to serve notice personally where personal service is required nullifies the notice served.
  2. Whether the 2nd defendant can be sued in its name and whether the claimant can maintain the present suit without a formal introduction as to his new capacity.

The respondents’ issues for determination:

  1. Whether service of the notice of owner’s intention to apply to recover possession of premises (Exhibit C11) served on the 1st appellant was proper service.
  2. Whether the respondent (and the executors of the estate of the late Oladipo Oladitan) can maintain this action without having formally introduced themselves to the appellants as their landlords and whether the 2nd appellant can be sued in its own name.

APPELLANTS’ SUBMISSIONS
On issue 1, the learned counsel for the appellants, argued that the notice of owner’s intention to recover possession of premises (Exhibit C11), served on the wife of the 1st appellant was not properly served on the 1st appellant in line with the provisions of SECTION 28 OF THE RENT CONTROL AND RECOVERY OF RESIDENTIAL PREMISES LAW CAP, R6, LAWS OF LAGOS STATE, 2004 AND ORDER 6 RULE (1) OF THE MAGISTRATES’ COURT RULES OF LAGOS STATE, 2004, which requires service to be personal. He submitted with reference to the case of AKINRIMISI VS. MAERSK NIGERIA LTD & ANOR (2013) 3-4 SC (PT.1) P. 56, that failure to serve the Notice of Owner’s Intention, Exhibit C11, personally on the 1st appellant is a breach of his right to fair hearing as service on his wife is not good service.

On issue 2, appellants’ counsel submitted that since the 1st appellant carries on business in the name and style of Lejem International Nursery and Primary School, the 2nd appellant is only an alias of the 1st appellant and therefore the suit against the 2nd appellant ought to be in the name of the 1st appellant. He relied on the authority of SLB CONSORTIUM LTD VS. NNPC (2001) 4 SC (PT.1) P.99.

Counsel contended that upon becoming executor of the estate, the respondent must, first of all introduce himself as the landlord and also make a formal demand for the debt owed before he can sue the appellants. He cited the case of KOLO VS. FIRST BANK NIG. (2003) FWLR (PT.179) 1316.

RESPONDENT’S SUBMISSIONS
On issue 1, learned counsel for the respondent submitted that the RENT CONTROL AND RECOVERY OF RESIDENTIAL PREMISES LAW, 2004 does not make provisions for the mode of service of statutory notices but provides in SECTION 28 for service of Court process. That the law requiring service of statutory notices does not require that the notice must be received only by the tenant in person. Counsel further contended that ORDER 6 RULE 1 OF THE MAGISTRATES’ COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES relied upon by the appellants’ counsel does not apply to service of statutory notices, which are issued and served by landlords or their agents, but service of Court process.

Respondent’s counsel argued that service of the statutory notice on the 1st appellant who handed it over to his wife, who held herself out as the representative and Proprietress of the 2nd appellant, is good service. He relied on the case of CHIAZOR & ANOR VS. ALHAJI TUKUR & ANOR (2007) ALL FWLR (PT. 354) 394 @ 406 and urged the Court to hold that the service of Exhibit C11 on the 1st appellant is good and proper service.

On issue 2, in response to the submission of appellants’ counsel that the respondent upon becoming the executor of the estate, must first of all, introduce himself as the landlord and also make a formal demand for the debt owed, respondent’s counsel stated with reference to the letters (Exhibits C8 and C9) written by the 1st appellant and his wife to the respondent and other executors of the estate of late Chief Oladipo Oladitan dated November 16, 2001 and March 29, 2004, that a landlord already known to the tenant does not need to introduce himself again to the tenant before he can sue the tenant for recovery of possession.

On whether the 2nd appellant can be sued in its name, counsel referred to ORDER 13 RULE 28 OF THE HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES, 2004, and the cases of IYKE MEDICAL MERCHANDISE VS. PFIZER INC. & ANOR (2001) 10 NWLR (PT.722) 540 @ 553; as the authorities that permitted the respondent to sue the 2nd appellant in its name.

RESOLUTION OF ISSUES
On issue 1, the Court aligned with the finding of the trial Court only to the extent that service on the wife of the 1st appellant is good service on the 2nd appellant. But that the said service does not amount to good and proper service on the 1st appellant. The Court then went further to explain that for service on the 1st appellant to be effectual, it must be done personally, or by substituted means, if ordered by the Court. The Court pointed that no such order was sought for and obtained in the instant case.

The Court posited that service of the notice of owner’s intention to recover possession on the wife of the 1st appellant would have been good and valid service on the 1st appellant if it has been shown that the wife accepted the service on the instruction of the 1st appellant. See NDUBUISI VS. SHOBANDE (2013) LPELR-22770(CA). That no such evidence was adduced before the trial Court.
Thus, the Court held that there was no effective and valid service of the notice in question on the 1st appellant.

The Court stated the fact that the appellants urged the Court to invalidate the writ of summons commencing the action at the trial Court as same was based on an invalid notice of owner’s intention to recover possession, whose validity is the condition precedent to the initiation of proceedings in Court. On this point, the Court referred to the case of PILLARS NIGERIA LIMITED VS. WILLIAM KOJO DESBORDES & ANOR (2021) LPELR-55200 (SC) @ PAGES 24-26, and explained that the era of tenants relying on technicalities of service of statutory notices to defeat the claim of property owners by illegally holding unto such properties is no longer applicable.

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 constitutes sufficient notice to the appellants that the respondent wants to recover possession of the property together with arrears of rent.

On issue 2, the Court stated the position of the law that as a general rule, only natural persons, that is to say, human beings and juristic or artificial persons such as body corporates are competent to sue and be sued. That a non-existing person, natural or juristic, can neither institute an action in Court nor will an action be allowed to be maintained against him. See AYORINDE & ORS VS. AIRAT ONI & ANOR (2000) 3 NWLR (PT.649) 348; (2000) LPELR-684 (SC).

The Court however contrary to the position taken by the appellants, stated that the 2nd appellant can be sued in its trade name even though it cannot sue in that name. The Court placed reliance on ORDER 13 RULE 28 OF THE HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES, 2004, which was the extant Rule as at 2008 when the instant suit was filed and which provides thus:

“Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such a name or style as if it were a firm name, and, so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.”

See also the case of IYKE MEDICAL MERCHANDISE VS. PFIZER INC. & ANOR (2001) 10 NWLR (Pt.722) 540 @ 553.

In response to the submission of the appellants’ counsel that the respondent upon becoming the executor of the estate must first of all, introduce himself as the landlord and also make a formal demand for the debt owed before he can sue, the Court held same as preposterous and stated the fact as seen in the record of appeal that the appellants wrote to the Oladitan family on March 29, 2004 after the demise of Chief Oladitan pledging to embark on considerable instalmental payment of the accumulated rents with effect from October, 2004. The Court then aligned with the submission of the Respondent’s counsel that there is no need for formal introduction, as the appellants’ landlord is already known to the appellants.

HELD
The appeal was dismissed and accordingly, the judgment of the trial Court was affirmed.

APPEARANCES:
UNREPRESENTED. – For Appellant(s)
COUNSEL WAS SERVED HEARING NOTICE BY EMAIL AND SMS.

UNREPRESENTED. – For Respondent(s)
COUNSEL WAS SERVED HEARING NOTICE BY EMAIL AND SMS.

Compiled by LawPavilion


Share:

Leave a Reply

Your email address will not be published.