Alhaja Sabalemotu Ayinke V. Alhaji Muniru Lawal & Ors (1994)

LawGlobal-Hub Lead Judgment Report

IGUH, J.S.C

In the Chief Magistrates court of the Lagos Magisterial District, holden at Yaba, Lagos State, the plaintiff, by a writ of summons filed on the 4th May, 1982 claimed against the defendants as follows:-

(i) Possession of one storey building consisting of 10 shops and 5 office apartments situate at No. 1, Aro Street, otherwise also known as No. 88B Docemo Street, Lagos; and

(ii) N1,000.00(One thousand Naira) per annum for the use and occupation of the said building and premises from the 15th July, 1978 until possession is given up.

The case duly proceeded to trial and evidence was led on behalf of the parties. At the conclusion of hearing, the learned trial Chief Magistrate after a review of the evidence entered judgment for the plaintiff against the defendants jointly and severally in the following terms-

It is hereby adjudged that the plaintiff do recover from the defendants possession of the premises; that is to say, that one storey building consisting of 10 shops and 5 rooms/offices at No. 1 Aro Street, also known as 88B Docemo Street, Lagos. It is further adjudged that the plaintiff do recover from the defendants jointly and severally the sum of N4,000.00 for use and occupation of the said premises from period 15/7/78 to date. It is ordered that the defendants having over stayed for four years should give up to the plaintiff immediate possession of the said premises.

The Defendants being dissatisfied with this judgment of the learned Chief Magistrate appealed to the High Court of Lagos which on the 2nd day of April, 1986 allowed the appeal and set aside the judgment and orders of the Chief Magistrates Court. Aggrieved with the said judgment of the High Court, the plaintiff with the leave of the High Court, appealed to the Court of Appeal, Lagos Division, which in a unanimous decision allowed the appeal on the 29th June, 1987 and restored the judgment of the Chief Magistrate. The Court below however reduced the amount awarded by the learned Chief Magistrate as mesne profits for the use and occupation of the said premises from N 1,000.00 to N2.00 per annum. The defendants were ordered to give up possession of the premises claimed by the plaintiff forthwith.

Dissatisfied with the said judgment of the Court of Appeal, the defendants, now appellants, on the 29th September, 1987 filed their notice and grounds of appeal to this court against this decision. The plaintiff, now cross-appellant, also filed a cross-appeal to this Court against only that part of the decision of the Court of Appeal which reduced the mesne profits awarded to him from N1,000.00 to N2.00 per annum.

The main appeal which was filed by the defendants was however not pursued and the same was on the 23rd June, 1993 struck out by this court for want of prosecution. This court is now concerned with the plaintiffs cross-appeal only.

I shall hereinafter refer to the plaintiff and the defendants in this judgment as the cross/appellant and cross-respondents respectively.

The cross-appellant, in his brief of argument, identified one single issue as calling for determination in this appeal. This issue is framed thus –

Whether or not a landlord can compute claim from a tenant holding over, and should be awarded, mesne profits at a rate higher than the annual rent reserved in the tenancy agreement between him and his tenant.

Although served with the cross-appellants brief together with the hearing notice in respect of this appeal, the cross-respondents neither filed their cross-respondents brief nor did they appear in court for the hearing of this appeal. I will now proceed to examine the issue as formulated by the cross-appellant as it seems to me clear that a determination thereof is enough to conclude this appeal.

It is desirable for a better appreciation of the issue that has arisen for consideration in this appeal to observe that the learned trial Chief Magistrate after a thorough evaluation of the evidence before him made inter alia the following findings of fact, namely –