Mrs. A. A. Lisboa V. Ibrahim M. Fawa & Anor (1972)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, AG. J.S.C.

The appellant, who was the plaintiff in Suit LD/371/69 instituted an action in the High Court of Lagos State, claiming possession of a dwelling house at 3, Payne Crescent, Apapa, from the defendants. She also claimed mesne profits and water rate from the two defendants and from the 1st defendant the sum of 1,000pounds as damages for breach of covenant.

Pleadings were ordered and duly filed. The relevant averments in the Statement of Claim are as follows –

“2. In November, 1966. The first defendant took a lease of the premises from the plaintiff for a term of two years at an annual rent of 500pounds per annum payable in advance.

3. The said lease contained covenants by the first defendant, among other things, to pay his rent; to pay water rates in respect of the premies and not to assign or underlet or part with the possession of the premises without the prior written consent of the plaintiff.
4. The first defendant also covenanted to deliver up to the plaintiff the premies in good condition and repair at the expiration of the term of the lease.
5. The 1st defendant in breach of his covenants neglected to pay water rates of the premies during the term.
6. The 1st defendant also in clear breach of his covenant parted with the possession of the premises during the term to the second defendant and that without the written consent or approval of the plaintiff.
7. In putting the second defendant into possession of the premises the 1st defendant tricked and or employed dubious means to get the plaintiff into believing that he 1st defendant was paying rent of the premises for the years beginning December 1968 when in actual fact, he was merely trying to force the second defendant on the plaintiff as the latter’s tenant.
8. In the course of the manouvers averred in paragraph 7 above, the 1st defendant gave a cheque for 250p to the plaintiff and which cheque was dishonoured by his bank. The plaintiff had to refer the matter to the police, before he paid the 250pounds in cash.
9. The plaintiff has persistently requested the 1st defendant to deliver up the premises to her in accordance with his covenant since the expiration of his term but he refused.
10. Consequently, the plaintiff served on both defendants a notice in writing dated 24th June, 1969, of her intention to recover possession of the premises.”

The 1st defendant in his Statement of Defence averred as follows:-

“1. The defendant denies the facts contained in paragraphs 5, 6, 7, 8, and 9 of the Statement of Claim and puts the plaintiff to the strictest proof of the facts contained therein.

2. The defendant is not in a position to deny or affirm the facts contained in paragraphs 1, 2, 3, and 4 of the Statement of Claim and puts the plaintiff to the strict proof of these facts.
3. The defendant further avers that the plaintiff refused to give to him a copy of the Lease Agreement which was at all time in her (plaintiff’s) possession and despite repeated demands for the same he (the defendant) is still without a copy of this agreement.
4. The defendant avers that apart from the falsehood of the facts contained in paragraph 7 of the Statement of Claim the defendant will contend that the said paragraph is vexatious and very embarrassing and should be expunged from the Statement of Claim.
5. The defendant avers that on the 27th of January, 1969 the plaintiff personally issued a receipt to the second defendant, for the sum of 250pounds as money paid for rent for six months from December, 1968, to May, 1969, in respect of the premises the subject matter of this action 3, Payne Crescent, Apapa.
6. The plaintiff was informed and agreed to the possession of the premises being taken up by the 2nd defendant.
7. The plaintiff knew and recognized the fact that the 2nd defendant is in occupation and possession of the premises the subject matter of this action.
8. The plaintiff’s solicitors confirmed the statements contained in paragraph seven above in his letter of the 11th December, 1968, to the defendant and another dated 28th of November, 1968, to the 2nd defendant.
9. The defendant shall contend at the hearing of the case that the plaintiff cannot be heard anymore to dispute the possession of the 2nd defendant on the premises the subject matter of the action.

The 2nd defendant averred in his Statement of Defence as follows;

“1. The 2nd defendant is not in position to admit or deny paragraph 1 of the Statement of Claim and puts the plaintiff in strict proof thereof.

2. The 2nd defendant is not in a position to admit or deny paragraphs 2, 3, 4, 5, 6, 8, and 9 of the Statement of Claim and puts the plaintiff in strict proof thereof.
3. With reference to paragraph 7 of the Statement of Claim, the 2nd defendant denies the allegation that he was forced on the plaintiff as a tenant and avers that he (2nd defendant) paid a sum of two hundred and fifty pounds (250pounds) being rent for the period December, 1968 to May, 1969 directly to the plaintiff and was issued with a receipt dated the 27th day of January, 1969, duly signed by the plaintiff.

4.The 2nd defendant further avers that as a result of the payment of 250pounds (as stated in paragraph 3 above), he will contend at the trial that he occupies the said premises, 3, Payne Crescent, Apapa, the subject matter of this suit with the knowledge and approval of the plaintiff.

5.The 2nd defendant avers with further reference to paragraph 7 of the Statement of Claim, that he instructed his solicitor W. L. Dosumu, Esq. to forward a further sum of 125pounds by cheque being rent for the period of June 1969, to August, 1969, to the plaintiff, care of her Solicitor MESSRS. TUNJI BRAITHWAITE & CO., the receipt of which had not been acknowledged up till now.

6. The 2nd defendant avers that there is no specific agreement between the plaintiff and himself whether rent in respect of the subject matter of this suit is to be paid yearly or half-yearly, or quarterly or monthly.
7. The 2nd defendant is not in a position to admit or deny paragraph 10 of the Statement of Claim and puts the plaintiff in strict proof thereof

The case came up for hearing on 28th and 29th May 1970. The plaintiff gave evidence and called two witnesses. The defendants elected not to call evidence.

The learned trial Judge, Dosumu J., delivered his judgment on the 8th of June, 1970, and dismissed the claims of the plaintiff. It is against this judgment that plaintiff has appealed to this court.

It is perhaps pertinent , at this stage, to refer to this portion of the records of proceedings in the lower court before evidence was heard on the 29th May, 1970, and which reads

“Court: I observe that the action is both for possession of the premises and damages for breach of covenant. What is your ground for possession

Braithwaite: The grounds which possession is sought against the defendants (1) effluxion of time (2) breach of covenant not to sublet or assign, (3) failure to deliver up possession.”

The plaintiff in her evidence tendered the lease between the 1st defendant and herself and this was admitted as Exhibit A. The lease is for a period of two years commencing from 1st of December 1966. The rent reserved on Exhibit A is 500pounds per annum for the whole of the premises. It is not in dispute that the 1st defendant paid the rent for the two years which expired at the end of November 1968. In May, 1968, whilst the lease was still subsisting, the 1st defendant informed the plaintiff that “since his people had arrived” he found the premises too small to accommodate them all, and he had to move to another premises leaving his people behind. At the expiry of the period of the lease the plaintiff sought for 1st defendant but did not see him until January 1969. When the plaintiff eventually saw him she requested for the keys of the premises, in order to resume possession. The 1st defendant directed her to one Saidi who, he said was in the house at 3 Payne Crescent. The keys were not however handed over to the plaintiff.

Sometime in February, 1969, the 1st defendant gave the plaintiff a cheque for 250pounds as rent for a half year period, that is for 1st December, 1968, to 31st May, 1969. A receipt for this amount was issued sometime in January 1969, to the 1st defendant, and tendered in evidence as Exhibit ‘H’. The cheque for 250pounds was however dishonoured. A report was made to the police. The constable who dealt with the matter is P.W.3 and the relevant portion of his evidence reads:

“On the third February, 1969, as a result of a complaint by the plaintiff at the Central C.I.D. of bounced cheque issued to her, I was directed by my Superior Officer S. Momoh to go into the matter. I went with the plaintiff together with her lawyer to an address opposite the Kingsway at Apapa. She identified the 1st defendant as the person who gave her the cheque. The 1st defendant asked me to sit down and he rang the telephone somewhere. Some five minutes later the 2nd defendant came in and the two spoke their language. The 1st defendant said that it was the 2nd defendant who issued the cheque. I disclosed my identity to him and he said that the cheque bounced as a result of his mistake. The 1st defendant implored me to follow them to the Bank, and we all left for the Bank at Creek Road. From there we went to the C.I.D. and they had interview with O.C. Fraud. The defendant explained why the cheque bounced and they apologised to the plaintiff for the embarrassment caused her.”

This witness was not cross-examined. The 1st and 2nd defendants, as earlier stated, elected not to call evidence at the trial. From the evidence, the following facts were established;-

1. That plaintiff leased her property to 1st defendant for a term of two years at an annual rental value of 500pounds.
2. That the term expired at the end of November, 1968 but the 1st defendant refused to give up possession and also failed to exercise his right to renew the lease.
3. That on the 27th January, 1969, the 1st defendant gave a cheque for 250pounds to the plaintiff and requested her to issue a receipt for the amount in the name of 2nd defendant, who was at that time unknown to the plaintiff.
4. That the cheque for 250pounds was dishonoured and 1st defendant on being apprehended by the police sent for the 2nd defendant and that 1st defendant begged that the issue of the cheque was due to a mistake and later paid a sum of 250pounds in cash to the plaintiff.
5. That at all material times the plaintiff never regarded the 2nd defendant as her tenant and did not at any time give her consent either orally or in writing to the 1st defendant to sublet the premises to the 2nd defendant.
6. That it was provided in a covenant in the lease that 1st defendant must obtain written consent from the plaintiff before sub-letting or assigning the lease.

The learned trial Judge held that by virtue of the receipt Exhibit H issued by plaintiff to 1st defendant wherein the name of 2nd defendant was inserted, the relationship of landlady and tenant was thus created as between plaintiff and 2nd defendant,. The cheque for which Exhibit H was issued was dishonoured, and the evidence, which was not contradicted was to the effect that it was 1st defendant who gave her the cheque for the rent due for the half yearly period from December 1968 to May 1969. With respect to the learned trial Judge, we do not see how any legal relationship could be created by Exhibit H. Exhibit H was not a valid receipt for what subsequently happened to the cheque. The 2nd defendant never gave evidence that Exhibit H was issued to him by the plaintiff or that he have a cheque for 250pounds to the plaintiff as his landlady. He did not give evidence that he was in possession of the property by virtue of Exhibit H. The learned trial Judge misconstrued the issue triable on the pleadings and therefore came to an erroneous conclusion with regards to Exhibit H that is to say that by virtue of Exhibit H the 2nd defendant became the tenant of the plaintiff.

On the issue of a written consent the learned trial Judge proceeded to consider Exhibit ‘G’, which was a letter from plaintiff’s solicitor to the 2nd defendant, as sufficient evidence from which it could be inferred that there was a waiver of the breach of covenant against subletting without written consent. Exhibit ‘G’ reads-

“Mr. Anis Saidi,

18, Creek Road,

Apapa.

Dear Sir,

Re: 3, Payne Crescent, Apapa

We are solicitors to Mrs. A. A. Lisboa, the owner of the above-named premises.

We are informed that you (are) now in occupation of the said premises without the consent nor approval of our client. It is true the former tenant, Mr. Fawaz who claims you are his relation, mentioned that fact that you might be taking over from him to our client. But nevertheless, it is for you to approach our client and enter into an agreement as to your occupation of the house.

We now give you notice that unless you pay the sum of 500pounds on or before December 1st, 1968, we shall have to eject in addition to claiming damages from you and from Mr. Fawaz for your unlawful occupation of the house.

TAKE NOTICE FURTHER that our client is quite willing to enter into terms with you, but on your payment of the 500pounds representing one year’s rent in advance by the date aforesaid.”

With respect we failed to see what portion of this letter constitutes such a waiver.

The learned trial Judge held further that because the plaintiff was aware of the breach of covenant against subletting without consent, and that having requested payment of the rent in the letter (Exhibit ‘G’) then, of course, the plaintiff could not be heard to complain of the breach. The learned trial Judge did not consider that unless there is evidence of conduct or words of the plaintiff, from which a waiver could be said to have been established, he could not be justified in holding, as he did, that there was a waiver. The 2nd defendant did not give evidence of any consent (let alone a written consent) by the plaintiff or any waiver for that matter. In the absence of such evidence, we are unable to support that portion of the judgment where the learned trial Judge held that Exhibit ‘H’ paid along with Exhibit ‘G’ constitutes a waiver.

On appeal before us, the appellant’s counsel contended that since the plaintiff had denied that she consented to the occupation of her property by the 2nd defendant, then such occupation was unlawful. We are satisfied that there was abundant evidence before the learned trial Judge that at no time did the plaintiff agree to the occupation of her property by the 2nd defendant, and that she did not agree that 1st defendant should sublet the premises to the 2nd defendant. That, in our view, should have disposed of the claim for possession for the breach of covenant made.

Much argument had been put forward by the respondents’ counsel on the effect of certain sections of the Recovery of Premises Act, as well as the Rent Control Act, 1965, (which replaces the Rent Restriction Act). In our view, the sections referred to are irrelevant for the consideration of this appeal.

The appeal succeeds and it is allowed. The judgment of the learned trial Judge dismissing the claim for possession is set aside as well as the order for costs. In substitution thereof we order that the 1st and 2nd defendants should give up possession of the premises on or before the 29th of February, 1972.

There was a claim for mesne profits for use and occupation of the premises from the 1st of December, 1969, up to date of this judgment, at the rate of 500pounds per annum. The learned trial Judge completely failed to decide this claim although there was uncontradicted evidence before him in support of the claim. This point was raised before us and we consider that on the evidence before the learned trial Judge he should have given judgment on the mesne profits as claimed. We now make the order for the payment of mesne profits payable for the period 1st of December, 1969, to 29th of February, 1972, is 1,125pounds. Judgment will therefore be entered in favour of the plaintiff/appellant against the 1st defendant for the amount of 1,125pounds as mesne profits.

With regard to the dismissal of the claim for refund of water rate dues, and general damages for breach of covenant, we are in agreement with him because no evidence was led in support of the two items of claims. In the result, the appeal is allowed. Judgment is entered for the plaintiff as follows:-

1. The 1st and 2nd defendants are hereby ordered to give up possession of 3, Payne Crescent, Apapa on or before the 29th of February, 1972.
2. The plaintiff/appellant is awarded 1,125pounds as mesne profits for use and occupation of the premises by the 1st defendant for the period of 2 years and 3 months, that is, from the 1st of December, 1969, to the 29th of February 1972.

And this shall be the judgment of the court:-

The plaintiff/appellant is awarded costs of 66 guineas against the defendants/respondents in this court and 91 guineas in the lower court.

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Other Citation: (1972) LCN/1543(SC)