L.B. Agusto V. P.o. Joshua (1962)

LawGlobal-Hub Lead Judgment Report

TAYLOR, F.J 

The plaintiff/appellant sued the defendant/respondent in the Magistrates Court of Lagos for:-

1. Possession of No. 2 Strachan Street, Ebute-Metta with the shed and saw-mill thereon;

2. £393 as arrears of rent, and

3. Mesne profits for June, 1959 at the rate of £15, a month until possession is given up.

On the 17th day of December, 1959 the learned Chief Magistrate entered judgment for the plaintiff in the sum of £332 as arrears of rent and an order was made that the defendant do give up possession on or before the 28th February, 1960.

The Defendant appealed against this judgment to the High Court which, on the 30th April, 1960, confirmed the judgment in so far as it related to the order for arrears of rent, but set aside the order as to possession and costs. It is against the order as to possession that the plaintiff, who will henceforth be referred to as the appellant, has appealed to this Court. The facts of the case, which on appeal have not been challenged, are as follows:

One Adewunmi, by virtue of exhibits 1 and 2 dated 7th July, 1941 and 16th February, 1940 respectively, purchased the property known as No. 2 Strachan Street, Ebute-Metta. The Conveyance attached to exhibit ‘1’ contains a plan showing the area as abutting on the lagoon. This Conveyance is executed by the Oloto family. Adewunmi erected and operated a saw mill on the land and began to reclaim the land abutting on the lagoon by filling the water with sawdust from his mill and thereon erected a Sawyer’s pit. He obtained a licence for the reclaimed portion from the Colony Lands Officer. He also erected a Sawyer’s winch on the reclaimed area. In 1947 or thereabouts, (the evidence is scanty on this point), Adewunmi let the portion with the saw-mill and that reclaimed, to the present respondent i.e. portions `B’ and `C’ on exhibit ’4. After the letting and up to 1952, the defendant, at the request of Adewunmi, paid the licence fees for and on behalf of the latter. On the 12th April, 1951 the appellant, for the consideration of £2,000 paid to Adewunmi, purchased an area of land which according to the Deed of Conveyance (exhibit 3) is said to be contained in the plan attached to the Certificate of Purchase of 8th February, 1940. This Certificate was not made an exhibit, but is not however, disputed in this appeal that the area comprised the portions `B’ and `C’ on exhibit `4. The respondent was notified of this on the 19th April, 1951 when he was informed, by exhibit `25, to begin paying his rents to the appellant, which he did. On the 3rd January, 1953, however, he began paying the licence fees to the Lands Officer and obtained a receipt in the name of his company, The United Nigeria Timber Co. There is nothing in the Conveyance to show that the appellant knew of or was aware of this fact.

The sole point that arises in this appeal is whether the appellant is entitled to possession of the area reclaimed. The respondent’s main contention here is that he is a tenant of the Crown of this reclaimed portion and therefore the notice to quit can only affect the portion ‘B’ which he held as tenant of the appellant. The learned Judge on appeal held as follows:

There can be no question, and the contrary has never been argued, that it was Adewunmi who put the defendant into occupation of the land – that is, the reclaimed area of land- that he now occupies. There can also be no question that this reclaimed area of land was never owned by Adewunmi that it was a parcel of crown land which Adewunmi himself was permitted to occupy under licence from the Crown. It was an express term of this licence – temporary Occupation licence No. 02568 – that “Neither this licence nor any of the rights conferred by it shall be transferred to any other person; nor shall the land hereinabove described or any part of it be sublet.” How it can be said that the relationship of landlord and tenant existed between Adewunmi and the defendant in respect of the land described in this temporary occupation licence I utterly fail to understand.”

and a little lower down the judgment goes on as follows:

“The licence was a revocable permission which passed no interest in the land nor a right to its possession.”

It should be mentioned that during the proceedings in the Chief Magistrate’s Court an application was filed on the 15th October, 1959 signed by J.O. Ojosipe, purporting to have done so on behalf of the 2nd defendant – i.e. the Chief Federal Lands Officer – seeking an order that the latter be joined in the suit. The affidavit in this application was sworn to by an Inspector of the Lands and Survey Division, Ministry of Lagos Affairs, who deposed that the land is Crown land and that the interest of the Crown will be jeopardized if the applicant is not made a party in the Suit for possession. This application was heard on the 16th October before the appellant’s case (i.e. plaintiff in that Court) was closed. The applicant, appearing through a different Counsel, is recorded as having withdrawn his application and the Motion was struck out. The defence however called the deponent of the affidavit, whose name is Leo Attah Ekpo, to give evidence, which he did, claiming that the land was Crown land.

The only issue before us is as to which of the two parties in this appeal is entitled to possession. I think it would be wise in these proceedings to say as little as possible about the right of the Crown over this reclaimed area in relation to possession, as distinct from title, which is not in dispute, leaving that to be determined if and when it should arise. The position here is that we have the appellant and the respondent deriving whatever title or right they may have had to the property in dispute and the adjoining land, from Adewunmi. Adewunmi put the respondent in possession as a monthly tenant of the whole undivided premises both in dispute, and not in dispute, at a rent of £17 a month. He then assigned or sold his interest in the whole of the land to the appellant who continued to receive rent from the respondent in respect of the whole area. The respondent, as I have said, unknown to the appellant, sought to and did obtain a licence in respect of the reclaimed portion from the Crown in his own name, and now sets up this title as against the appellant. Chief Moore, Q.C., has argued for the appellant that the respondent is estopped from doing this, and in this respect his grounds 1(f) (g) (h) (k) (1) (n) (o) and the misdirection complained thereunder as well as ground 2(a) in my view sufficiently deal with this all-important point. The way I look at the point in issue is this. Adewunmi who put the present respondent in possession of portions ‘B’ and ‘C’ in exhibit ‘4’ was receiving rent of £17 a month from the latter as his landlord of both portions (rightly or wrongly in respect of portion ‘C’). Adewunmi then sold his interest to the appellant, who continued the relationship previously existing between Adewunmi and the respondent by becoming the respondent’s landlord at the rate, which was later increased to £19 a month.

In my view the respondent cannot now seek to split up these two portions `B’ and ’C’ and say that he holds ’B’ of the appellant, and seek to create a new and different tenancy, or position or relationship, as to ‘C’, saying that he holds it of the Crown, and more so when the Crown sought to be joined and then withdrew the application. He is estopped from so doing. This principle is stated by Lord Denman, C.J. in the case of Doe V Mills 2 Ad. and El. Reports 17 at page 18, in these words:

I think that if one yielded to this application, we should contravene the rule that a tenant is not to dispute the title of his landlord. The tenant would then have nothing to do, in order to bring the landlord’s right into question, but to part with the property to another person.”

Or, as LORD ELLENBOROUGH said in the case of Balls V Westwood, 2 Campbell 11, at page 12:

The security of landlords would be infinitely endangered if such a proceeding were permitted. Had the defendant, upon the premises being seized by the lord of the manor, disclaimed holding of the plaintiff, we might enquire into the validity of the seizure and consider who is legally entitled to the premises; but the same tenancy continues which was created by the original demise, and the tenant must still pay rent to the lessor whose title he then recognised.”

In my view this appeal must succeed and the judgment of the High Court is set aside and that of the Chief Magistrate restored, although for different reasons. As to the costs of this appeal in the High Court and this Court  I would order that each party bears his costs in both appeals as the point on which the appeal turns was not raised by the appellant in the lower Court.

Other Citation: (1962) LCN/0988(SC)