Adelanwa Bamgboye
14 October 2008
Lagos — Miss Olasimbo Ogunyemi, who lives in a two bedroom executive flat at No 24/26, Boyle Street, Onikan, Lagos, has been ordered not only to vacate the building, but to also pay the sum of N1,898,855 as arrears for the rent of the apartment from June 30, 1999 to June 30, 2004 and service charge on the amount from March 31, 2002, to March 31, 2004 to Debayo and sons limited.
Presiding Judge, Hon. (Mrs.) Justice Opeyemi Oke, of the Lagos High Court, Igbosere, who gave the order in a judgement delivered in a suit filed by Debayo and Sons Limited against Miss Ogunyemi, also ordered her to pay profit on the rent at the rate of N25,000 per month from July 1, 2004 till she gives possession of the land and N100,000 as cost of the suit.
In the suit, ID/970/06, filed by Debayo and sons against Ogunyemi, the claimant sought a declaration that it is entitled to possession of the apartment which was let out to the defendant as tennat from year to year under the rent of N0.3 million per year and which tenancy was determined by notice to quit given by the claimant on April 29, 2003.
The claimant averred that it served a notice of intention to recover possession of the said apartment and notwithstanding the notice, the defendant refused to vacate the building.
Besides, the claimant demanded the sum of N1, 898,855.00 as arrears of the rent of the apartment from June 30, 1999 to June 30, 2004 and service charge on the amount from March 31, 2002, to March 31, 2004, while also demanding for profit on the rent at the rate of N25,000 per month from July 1, 2004 till possession of the property is given up by the defendant.
After filing the necessary papers in court in compliance with Order 3 Rule 2 of the High Court of Lagos State Civil Procedure Rules, 2004 and serving the defendant, the defendant refused to enter appearance in court or file a defence in the suit and neither did she appear throughout the proceedings at the court
Arguing on the merits of its case, the claimant averred that the defendant is a bad tenant who owes over four years rent and refused to pay up despite repeated demands, adding that the last time she paid her rent was sometimes in June 1999, when she paid the sum of N150,000. representing part payment of the service charge on the property.
According to the counsel of the claimant, the firm of Messers Fox and Company, Estate Valuers and Agents were employed by the claimant to manage the property and they wrote several letters of demand to the defendant which was ignored.
The claimant further stated that apart from the huge amount of arrears of rent owed by the defendant, it intends to carry out substantial repairs on the property and urged the court to give judgement for the possession of the bedroom and the arrears owed by the defendant.
In her decision, Justice Oke noted that the standard of proof in civil cases is based on preponderance of evidence as against the standard of proof in criminal cases which is proof beyond all reasonable doubt.
The judge further noted that in civil cases, the burden of proof is generally on the claimant as the onus is on the claimant to prove the averments on his statement of claims and on the defendant to proof the averment on his statement of defence
'Proof of preponderance of evidence means that the evidence adduced by the claimant should be put on one side of imaginary scale and the evidence adduced by the defendant on the other hand be put on the other side of the scale to see which weighs better,' the judge said.
Justice Oke stated that the claimant's testimony remained unchallenged before the court, despite all opportunities given to the defendant to defend the action and expressed satisfaction with the evidence presented by the claimant in support of the claims.
Moreover, the judge noted that facts that are positively or directly denied or challenged by the adversary are treated by the court as having established the truth of the matter in question and an admission of the averment, pleading or evidence relating to it.
However, the high court judge pointed out that a claimant in a civil action must succeed on the strength of his case and not the weakness of the defendant's case, as a claimant is expected to provide strong convincing evidence to establish his case before the court notwithstanding the absence of a defence by the defendant.
'A claimant in such a situation should not assume that the road to victory is a smooth and easy ride without bumps and road blocks to overcome, I have gone through the testimony of the witness and the exhibits tendered by the claimant in support of his claims and I have no doubt in my mind that it has established the claims before the court. The court is therefore under compelling duty to enter judgment in favour of the claimant,' she concluded
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