Judgment
EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment): 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 8/12/200 in LD/148/93 and dismissing the appeal against it. The notice of appeal contains 5 Grounds of appeal.
Both sides have filed, exchanged and adopted their respective briefs as follows – appellant’s brief and respondent’s brief.
The appellant’s brief raised the following issues for determination: 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. 2. Whether it was proper for the lower Court to deviate from the original dispute before it and decided the appeal on an entirely different issue raised suo motu without giving the parties the opportunity of addressing it on the new issue raised at the hearing of the appeal. 3.
Whether the lower Court exercised its discretion judiciously and judicially by striking out issue numbers 3.0(b) and (c) raised by the defendant/respondent in its brief of argument in the lower Court against counsel’s application for merger of “Issues A & B”. 4. 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.
The respondents’ brief raised two issues for determination as follows: 1. “Whether based on the concurrent findings of both the trial Court and the lower Court, this Honourable Court is bound to dismiss the appellant’s appeal. Relating to grounds 1, 2, 3 and 5 of appellant’s notice of appeal. 2. Whether the lower Court was right when it struck out issue 3(b) and C raised by the defendant/appellant in its brief of argument.
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief. Let me start with issue 1 which asks: 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.
