Chief Abiodun Oniru & Anor V. Raimi Fagbemi (1972)
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B. A. COKER, J.S.C.
The applicants herein were the respondents in an appeal which was heard by this court and dismissed on the 2nd February, 1972. The substantive action was concerned with an Order of Possession against the present respondents who were the defendants to the action. As plaintiffs the present applicants claimed that the defendants, now respondents, were their customary tenants and that as they had denied the title of their landlords they had, inter alia, forfeited all rights of occupation of the lands concerned.
They therefore claimed or sought and obtained an order for possession of the lands and premises. After the determination of the case by the High Court, Lagos, in favour of the plaintiffs, the defendants appealed to this court and whilst their appeal was pending in this Court they applied for an order for stay of execution of the Order of Possession until the determination of their appeal to this Court. Their application for a stay of execution was heard on the 9th November, 1971, and the following notes were recorded by this Court at the hearing of that Motion:-
“COURT: It appears that rent is about 500 Pounds – 600 Pounds a month.
Chief D.O. Coker for respondent: Justice of the case will be met if all tenants pay into Court. No tenant would like to be thrown out as it as a good business centre. The court now has an official receiver. The applicants have not paid rents to the respondent for more than 20 years, and yet now he wants to continue to collect rents.
The Court intervenes and after due negotiation, it was finally agreed, and by consent the following Orders are made:-
(1) That the applicant Raimi Fagbemi deposit in this Court not later than 5th December, 1971, a sum of 1,000 pounds as a deposit against rents collected or to be collected by him while the appeal is heard.
(2) That the 2nd applicant Ashiatu Akinwumi for her part deposit a sum of 500 pounds as deposit against rent collected or to be collected by her, also on or before 5th December, 1971.
(3) That the appeal be fixed for hearing during the week beginning January 24th, 1972.
(4) That if records of appeal are not ready before the date fixed for hearing the Court will have to reconsider the matter with a view to asking for more deposits from the applicants.
(5) That stay of execution be granted subject to the above. 10 guineas costs to the respondent.”
This was the order made by the Court on the 9th November, 1971, and as we have stated before the substantive appeal was disposed of in this Court on the 2nd February, 1972, some three months after the date of the order for the payments into Court by way of deposit of 1,000 pounds by the first respondent and 500 pounds by the second respondent.
The present application was filed in this Court on the 3rd May, 1972, and seeks an order:-
“To release and pay over to the plaintiffs/respondents all the sums of money paid into Court by the defendants/appellants as per Court Order dated the 9th November, 1971.”
At the hearing, counsel for the applicants before us urged the facts of the case as had been set out in the affidavit supporting the motion but surprisingly the application was opposed by learned counsel on behalf of the respondents, the first of whom, Raimi Fagbemi, had indeed filed a counter-affidavit. Paragraphs 2, 3, and 4 of his counter-affidavit read as follows:-
“2. That with further reference to paragraph 4 of the said affidavit I say that the sum of 1,000 pounds which this Honourable Court asked me to pay into court was expressed by this Honourable Court to be by way of deposit or security against any sums of money which I have or might collect on the land in dispute between the date of judgment of the High Court and the dettermination of the appeal herein.
- That I collected a total sum of 400 pounds between the date of the High Court judgment and the determination of the appeal herein.
- That the names of the tenants and the amounts collected from them as compiled by my clerk is now produced and shown to me marked RF1.”
The document described by the 1st respondent as Exhibit RF1 shows a total collection from some 19 tenants of an amount of 400 pounds. Learned counsel for the respondent submitted that in the substantive action there was no claim for arrears of rent against the respondents and that the amount ordered to be deposited in Court on the 9th November, 1971, was a security against the surrender of rents actually collected by the respondents and that therefore the present applicants are only entitled to an amount of 400 pounds as stated on Exhibit RF1, that being the total amount of rent actually collected.
The argument of learned counsel for the respondents clearly misconceives the whole case and we have no hesitation in rejecting it. The argument overlooks the following facts in particular which were either found against the respondents at the trial or clearly and indisputably emerge from the proceedings at the present stage:-
(i) the respondents were customary tenants of the applicants.
(ii) They had denied the title of the applicants, their over-lords, and furthermore contrary to the terms of their holding they had let out portions of the land in their occupation to rent-paying tenants from whom they were collecting rents.
(iii) The approximate amount of those rents had been ascertained by the Court and indeed agreed by the respondents themselves, i.e., at any rate by their conduct in Court on the 9th November, 1971.
(iv) Judgment for possession was given against them on the 12th July, 1971, and although they got an order for a stay of execution of that judgment from this Court, they were made aware of the facts that they were being protected from the operation of the order determining their lawful occupation and that under no circumstances were they entitled after the judgment of the Court to retain or continue to retain the fruits or benefits of their unlawful act of letting out the lands without authority.
As stated before, we are not in agreement with learned counsel for the respondents and without doubt have come to the conclusion that the applicants are ex debito justitiae entitled to the order which they are now seeking. The affidavit of the 1st respondent has purposely omitted any assurance on the part of the respondents to desist from letting out portions of the lands concerned and the brazen attempt of the respondents to retrieve part of what was deposited in Court in the circumstances of the deposit is but another way of manifesting their impertinence.
The motion succeeds and an order issued as prayed. The Registrar of this Court is hereby ordered to pay out forthwith to the applicants the amount of money now standing on deposit in this Court by virtue of our order dated the 9th November, 1971. The respondents to the Motion will pay the costs of the application fixed at 12 guineas.
SC.186/1971
