A.S. Coker V. Adeyemi Adetayo & Ors (1996)
LAWGLOBAL HUB Lead Judgment Report
BELGORE, J.S.C.
The appellant occupies the ground floor flat on a monthly tenancy basis at the rate of N45.00 per month. He was served a Notice to Quit under Recovery of Premises Law. The flat is in the premises of 5/7 Ajasa Street, Lagos.
The tenancy had expired on 26th December, 1982 and by a Notice of the “Owners” Intention to Apply to Recover possession” of the said flat “now being held over and detained” by the appellant, the appellant was notified that the respondents would apply for Form 8 under Recovery of Premises Law if notice to quit given to the appellant on 26th November, 1982 was not complied with by 17th February, 1983 they would apply to Magistrate Court to ask for court order to take possession.
The plaintiffs, seven in number, are brothers and sisters of the same father who originally owned the property, it devolved on them at his death. The flat consists of a living room and two bedrooms and appurtenances and as earlier said was on N45.00 monthly rent to the appellant since 1961.
Apparently the appellant was a tenant in the house since the lifetime of the father of the respondents who died in 1967. The fourth respondent, Adewale Adetayo, was arriving from Bulgaria where he had gone to study and it was decided by the plaintiffs/respondents to accommodate him in the flat now in issue; this gave rise to notice of intention to recover the flat from the appellant.
When the 1st plaintiff, Adeyemi Adetayo (P.W.1) went to serve the Notice of Intention to Recover on the appellant he was violent and refused to accept it, pushing the 1st respondent in the process. The Notice was sent in the Despatch Book of Davis, Esqr., of counsel to respondents. Nonetheless the Notice was served. It was after this that on 9th February, 1983 Notice to Quit was served on him. He was rude and warned P.W.1 and others not to come to his floor or flat again. He threw the Quit Notice on the floor.
At the time of the action, even though his stay by the monthly tenancy had expired, he was owing arrears of rent in the sum of N1,490.00, i.e. from March 1980 to December 1982. The defendant then became a nuisance on the premises. Gas escaped from his cooker on four occasions, and on one occasion the Fire Brigade had to be called to save the house from burning down; the incident caused stampede as the appellant was away from the flat when the gas leak occurred.
He insulted the 7th respondent many times calling her a bush woman and threatened to “teach her a lesson”, and that her counsel, Mr. Davis, would be sent out of Nigeria because he was “a foreigner.” He kept on threatening he would kill P.W.1. He stacked heaps of planks in front of the block of flats and became a nuisance as it caused obstruction. The planks were there at the time P.W.1 was testifying in Magistrate Court. The door to the flat in question had to be forced open during gas leak and the gas cylinder was found to be leaking as the main valb was left open. Other act of nuisance was pouring of water on the children of the respondents in brazen assault.
To all these the only defence offered by the appellant was that he made several attempts to pay rents which were refused and that he finally paid the rent arrears into the court which solicitor to plaintiffs refused to collect.
The magistrate, in her judgment, gave possession to the plaintiffs and found that the plaintiffs consented to the flat being made available for the use of one of them about to return from Europe. She also found in nuisance as the act of the appellant in letting open the gas valb was also dangerous to the premises. She also made order for mesne profits. By his own evidence the appellant said he never paid any rent between 1977 and 1979 and that he volunteered to pay only after solicitor to the plaintiffs, Mr. Davis, spoke to him. He then testified inter alia as follows:
“I am sued for a sum of N1,490.00, but I told Mr. Davis to allow me to pay for the period he took over, but he refused. I have never asked for receipts from Mr. Davis or the Legal Trustees. I made a payment of N1,900.00 into the court in August, 1983 in the name of Mr. Davis and he refused to collect it.”
This evidence is a clear admission by appellant that he became a nuisance as a tenant, defaulting in payment of rents and not even paying for almost two years but scrambled, so to say, when faced with possibility of legal eviction to pay.
In our law on Recovery of Premises there is hardly any ambiguity in what a landlord can do in getting possession back from a defaulting or unfriendly tenant; so it is clear how possession can be recovered when the premises is required for use of the landlord or family. For monthly tenancy, one month’s notice is required, for yearly tenant six month’s notice is required. In other cases the notice required is that embodied in the tenancy agreement between the parties. But failure to pay rent as and when due and without any reasonable explanation for such default, or bringing on the premises things or creating on the premises situations that threaten not only the safety of premises and occupiers but render quiet occupation impossible the intention to recover must be served on the party followed by Notice to Quit to be decided by the court. Similarly when the premises is required for overriding convenience of the family Notice of intention to recover is sufficient to lead to recovery of the premises. All these remedies could be invoked individually or cumulatively if they do exist. The case of IRC v. Hinchy (supra) has no place in the clear words and spirit of Recovery of Premises Law Cap 118 Vol. 6 Laws of Lagos State 1973, and Rent Control Recovery of Residential Premises Edict of 1976.
The High Court and the Court of Appeal through which this case passed on appeal from the Magistrate Court cannot be faulted as the facts they relied upon for their various decisions are amply covered by the laws applicable. I find no merit in this appeal and the appellant for all the delay he caused in this case has been kindly treated by the respondents who even never opposed prayer for stay of execution when the appeal came to this court.
I dismiss the appeal as totally lacking in merit and affirm the decision of the Court of appeal. The appellant shall pay N1,000.00 as costs in this appeal to the respondents jointly and severally.
KUTIGI, J.S.C.: I agree with the judgment just read by my learned brother Belgore, J.S.C. The lower courts were right in their application of the law to the facts of the case. Their decisions are affirmed and the appeal dismissed with N1,000.00 costs against the appellant.
OGWUEGBU, J.S.C.: I had a preview of the judgment of my learned brother Belgore, J.S.C. and I am in full agreement that the appeal should be dismissed.
The court below was right when it held that any of the plaintiffs can recover possession of the premises for use of any or some of their members in the absence of any opposition by any of them. I too dismiss the appeal and abide by the order as to costs made in the lead judgment.
MOHAMMED, J.S.C.: I entirely agree with the opinion of my learned brother, Belgore, J .S.C. in the judgment just read, that this appeal is totally lacking in merit. Recovery of Premises in Lagos State is governed by two legislations. The Recovery of Premises Law Cap. 118 of Laws of Lagos State, 1973, and the Rent Control and Recovery of Residential Premises Edict No.9 of 1976 which was amended by the Rent Tribunals (Abolishing and Transfer of Functions) Law, 1981. Under Edict No.9 of 1976 both Magistrate and High Courts have been empowered to handle cases of recovery or ejection of any tenant from any premises under certain conditions. Those conditions have been specified in the second schedule of the Edict of 1976 as follows:
“A tribunal (now Magistrate’s Court) shall ……have power to make or give an order of ejectment for recovery of possession of any premises to which this Edict applies for ejectment of a tenant therefrom if (i) the premises are reasonably required by the landlord for occupation for:-
(i) himself; or
(ii) any son or daughter of his over 18 years of age; or
(iii) his father or mother; ……..”
By s.40 of the Edit “landlord” is defined as follows:-
“Landlord in relation to any premises means the person entitled to the immediate reversion of the premises or if the property therein is held in joint tenancy or tenancy in common, any of the persons entitled to the immediate reversion and includes:-
(a) the attorney or agent of any such landlord”
The facts as given through the evidence, clearly shows that the title of the respondents who are the landlords of the appellant to the ground floor flat is not in dispute. The respondents established to the satisfaction of three lower courts that they want to recover the flat from the appellant in order to accommodate their brother, Adewale Adetayo, on his arrival from Bulgaria.
The law, as I reproduced above, is quite clear that on such a request the landlord or landlords can recover the premises for the occupation of a member of their family as has been specified in schedule II to Edict of 1976.
Learned counsel for the appellant, Mr. Seyi Sowemimo, in his submission in support of this appeal, referred to the opinion of R.E. Meggary in his book on the Rents Act 1967 which reads thus:
“Two or more persons can together constitute the “Landlord” for this purpose if they are solely beneficially entitled to the reversion and the premises are required as a residence for all of them or for a person who is a child or parent of both or all of them. It is otherwise if they require possession merely for one of themselves or for a parent or child of one of them or where the “Landlord” consists of three persons, only two of whom require the premises for their own occupation, even if the third is their mother and so require the premises for their occupation. These difficulties can often be avoided by a composite landlord granting a reversionary lease to the person for whom possession is required.’”
Mr. Sowemimo thereafter argued that the definition of “Landlord” in S. 40 of the Rent Control and Recovery of Residential Premises Law 1976, of Lagos State, does not help because it reads as follows:
“Landlord” in relation to any premises means the person entitled to the immediate reversion of the premises or if the property therein is held in joint tenancy or tenancy-in -common, any of the persons entitled to the immediate reversion.”
Unless Mr. Sowemimo wants to pretend not to have observed it, the provisions of schedule II of Edict of 1976 makes it abundantly clear that a landlord (or landlords) can recover premises for his occupation or the occupation of his or their children and parent. Meggary’ s opinion, reproduced above, could be distinguished from the clear provision of schedule II of Edict of 1976. The learned counsel further argued that there was a lacuna in the provisions of schedule II of Edict of 1976 where the law refers to the landlord requiring occupation for “himself’. Counsel submitted that the sub-clause was capable of being interpreted to mean “themselves or anyone of them”. This again is a weak argument because under the Interpretation Act, Cap. 192, section 14(b), it has been provided that words in singular include the plural and words in the plural include the singular.
The learned justice of the Court of Appeal, Mr Ubaezonu, is quite correct therefore, to hold that any of the plaintiffs who are the landlords can recover the premises for the use or occupation of any or some of their members in the absence of opposition by any of them. There is no lacuna in schedule II to the Rent Control and Recovery of Residential Premises Edict No.9 of Lagos State.
For these reasons and the fuller reasons given in the lead judgment I hereby dismiss this appeal. I also award N1,000 in favour of the respondents.
SC.219/1992
