Felix O. Osawaru V. Simeon O. Ezeiruka (1978)
LawGlobal-Hub Lead Judgment Report
ANIAGOLU, J.S.C.
The appellant before us was the defendant in an action instituted by the respondent in the then High Court of Midwestern State of Nigeria in the Warri Judicial Division in Suit W/169/73 in which the claim was
1.for possession of premises comprising 12 rooms and 2 stores situate at 47 Ginuwa Road, Warri, “let” by respondent to the appellant on a rent of N76.00 per month.
2.N2,964 (two thousand, nine hundred and sixty-four naira) being mesne profits from September, 1970 to November, 1973 at the rate of N76.00 per month, and further mesne profits at the rate of N76.00 per month, being the rate of rent of the said twelve rooms and two stores from the 1st of December, 1973 until possession is given up. The grounds on which possession was demanded were set out in the writ as
“1. Personal use
- That the tenant (defendant) is guilty of a breach in the Tenancy Agreement
- Substantial repairs
- To prevent premises being used as a Brothel.”
The trial came before Ekeruche, J., who delivered a considered judgment on 3rd June 1976 granting possession of the premises, within one week, to the respondent but non-suiting him on his claim for arrears of rents and mesne profits. From the said judgment, the appellant has appealed to this court.
In the notice of appeal dated 4th June 1974, the appellant filed one ground of appeal namely the omnibus ground that the judgment was against the weight of evidence. A motion dated 20th March 1978 was filed on behalf of the appellant by his counsel Dr. D. D. Mowoe, asking for leave to file and argue additional grounds of appeal. The additional grounds were set out in a schedule to the motion containing 7 additional grounds. That motion was pending and was not heard when another motion dated 13th April 1978 was filed on behalf of the appellant by Chief R. A. Akinyemi, of counsel, seeking the leave of this court to file and argue additional grounds of appeal. Before us, Chief Akinyemi who argued the appeal for the appellant abandoned the earlier motion filed by Dr. Mowoe. That motion was struck out. He proceeded with his own motion. There were 3 additional grounds which he sought to argue. They complained of errors in law. But grounds 1 and 2 contained no particulars and the nature of the errors in law complained of as required by Order VII Rule 2(2) of the Supreme Court Rules. Those grounds were accordingly struck out. The appellant was then left with, and was allowed to argue, the omnibus ground as contained in the original memorandum of grounds as contained in the original memorandum of grounds of appeal and one additional ground of appeal (numbered 4) which reads:
“4.The learned trial Judge erred in law to have non-suited plaintiff’s claim for arrears of rent and mesne profits.
Particulars of Errors of Law
(a) The learned trial Judge erred in failing to observe that if properly construed the provisions of Section 19 of the Recovery of Premises Law Cap. 110 Laws of Western Region of Nigeria applicable in Bendel State were not complied with in that the date of determining the tenancy as contained in the Writ of Summons contradicts the dates on the Statutory Notices. (b) There was no evidence of Personal Service of the Statutory Notices as laid down by Section 28 of the Recovery of Premises Law Cap. 100 Laws of Western Region of Nigeria applicable in Bendel State.
(c) The learned trial Judge in his judgment said “as the evidence relating to the claim for rents and mesne profit stands it is clear that plaintiff cannot recover thereon because he has failed to prove the amount, if any, actually owing by the defendant. The proper order therefore should be dismissal and not non-suit.”
Before we deal with the argument of counsel on the appeal we think we should draw attention to a point which is apparent on the face of the record. The respondent in the second arm of his said particulars claimed-
N2,964 (two thousand, nine hundred and sixty-four Naira) being mesne profits from September, 1970 to November, 1973 at the rate of N76.00 per month, and further mesne profits at the rate of N76.00 per month, being the rate of rent of the said twelve rooms and two stores from the 1st of December, 1973 until possession is given up.
The learned trial Judge in his judgment held:
“It is clear from the plaintiff’s evidence that what he described as mesne profits amounting to N2,964 is actually not mesne profits but unpaid rents.” There appears to be a misunderstanding of the term “mesne profits”. The respondent claimed the N2,964 as being mesne profits from September, 1970 to November, 1973 at the rate of N76.00 per month….The one month notice to quit given by the respondent to the appellant (according to the writ) was dated 13th July, 1970 and expired on 31st August, 1970. Therefore, the appellant was holding over after that date. The rents due up to that date were arrears and not mesne profits. The amounts due after that date would properly be termed “mesne profits” since the tenancy had been determined by that date and any further occupation by the appellant after that date was a holding over which technically was a trespass but of a kind arising specially from particular relationship of landlord and tenant. In an arrears of rent claim the tenant is deemed to be lawfully and validly in possession, but is owing rent. In such a claim for arrears of rent the landlord is not challenging the validity of the continued occupation of the premises by the tenant; indeed, he concedes that the tenant is validly and legally in possession. But in a claim for mesne profits the landlord by implication is challenging the continued occupation of the premises by the tenant whom he now regards as a trespasser, and is therefore claiming damages which he has suffered through being out of possession of the premises. Mesne profits being, therefore, damages for trespass can be claimed from the date when the defendant ceased to hold the premises as a tenant and became a trespasser. (See Butterworth’s Words and Phrases Legally Defined, 2nd Edition P. 251). The word “mesne” was derived from the Latin word “Medius” meaning middle, intervening or intermediate (see Earl Jowitt’s: The Dictionary of English Law, 1959 Edition P. 1167). And so a landlord in claiming for “mesne profits” is claiming for the profits intermediate from the date the tenant ought to have given up possession and the date he actually gives up possession. It is therefore damages for trespass the measure of which is the amount the tenant had been paying as rent for the corresponding period when he was lawfully in occupation as a tenant. Discussing “mesne profits” in Bramwell v. Bramwell (1942) 1 All ER 137 at 138, Goddard, LJ., observed “An action of ejectment was a personal action and could only sound in damages. Then it became a mixed action in which not only damages but the property itself could be recovered, and it is preserved now in the action brought in the High Court, and, I think, in the county court, because a claim for mesne profits can be joined with an action for the recovery of the land, the mesne profits is only another term for damages for trespass, damages which arise from the particular relationship of landlord and tenant.”
This view of the proper meaning of mesne profits was accepted by this court in K. Nwosu v. J. Otunola (1974) 1 All NLR 533. At p. 539 the court observed that: “Chief Williams asked the appellant be granted, in the alternative, damages (i.e., mesne profits) and an injunction.”
It would follow from the foregoing that in the instant appeal, the respondent could legally claim for mesne profits as he did “from September 1970″ when the tenancy had been determined by a legal notice to quit.
The facts placed before the trial court on which its decision was based were that the respondent who was a trader on building materials owned, possessed and lived in a premises numbered as 47 Ginuwa Road, Warri with his family. When civil war broke out in Nigeria he left Warri and went and lived at Onitsha. In 1970, after the end of the hostilities, he went to Warri and found the appellant in occupation of 47, Ginuwa Road Warri. The respondent requested the appellant to deliver possession of the premises to him but the appellant asked him to give him time to find alternative accommodation. Both agreed that time should be given and in the meantime that the appellant should pay rent of 42 Pounds (N84) per mensem beginning from May, 1970. The appellant paid the rent for May 1970. Thereafter they entered into a tenancy agreement (Exhibit 1) dated 18th June, 1970.
By Clause 2(a) of the Agreement, the appellant undertook to pay the sum of 42 Pounds (forty-two pounds) promptly on the first working day of each month to the landlord, through the Standard Bank (Nigeria) Limited.”
Following the promulgation of the Midwestern State Rent Edict, this amount was reduced to 38 Pounds (N76.00). In July 1970, the respondent, eager now to return permanently to Warri, gave instruction (Exhibit 2) to his Solicitor, F.E.S. Ideh, Esq., to take necessary legal steps to recover possession of the premises from the appellant. This resulted in the one month’s notice to quit dated 13th July 1970, given to the appellant and the seven days’ notice of intention to recover possession dated 16th October 1970, copies of both of which were annexed to the Writ of Summons. The respondent swore in evidence he had no other accommodation in Warri for himself and his family and for him to carry on his business. Secondly, he wanted to restructure the buildings on the basis of a plan approved by the Authorities (Exhibit 4). He could not carry out those amendments to the buildings as long as the appellant was in occupation.
Thirdly, the appellant was using the premises as a brothel; and finally, the appellant paid rents up to August 1970 and thereafter defaulted. It was all agreed that the appellant was not living in the premises. He had his own personal house where he was living. The respondent had a large family of two wives and sixteen children, two of whom were in the University and four in secondary schools. The appellant swore he was a hotelier and was carrying on his hotel business at the premises selling liquor therein for which he had liquor licences for the years 1969, 1970 and 1971 (Exhibits 6, 7, and 8). He denied he was using the premises as a brothel and denied he was owing any rents, stating that he paid up his rents to the respondent through the Standard Bank Ltd., Warri up to 31st May 1974. In a carefully considered judgment the learned trial Judge held that the respondent had satisfied him on the evidence that he was entitled to an order for possession pursuant to the Recovery of Premises Law Cap. 110 Laws of Western Nigeria which applied to the Midwestern State of Nigeria. He therefore made an order for possession. On the issue of arrears of rent the learned trial Judge non-suited the respondent on the ground that-
“he has failed to prove the amount, if any, actually owing by the defendant.”
For the appellant it was argued on ground 4 of the additional grounds that the learned trial Judge erred in law in not dismissing the respondent’s claim for arrears of rent since he found that the respondent had failed to prove the amount. We are unable to accept appellant’s contention that this part of the claim ought to have been dismissed. Indeed, we are satisfied that the learned trial Judge erred in law in not giving judgment for the respondent against the appellant for the amount he claimed. We cannot, however, enter judgment for the respondent for the amount he claimed since he did not appeal against the order of the trial Judge. As we have earlier stated, Clause 2(a) of the tenancy agreement required the appellant to pay the rents for the premises into the account of the respondent in the Standard Bank of Nigeria Limited, Warri. In evidence-in-chief the respondent testified as follows:
“I entered into an agreement of tenancy with the defendant. I produce the agreement; tendered and admitted as Exhibit 1. He paid rents up to August 1970. Thereafter he paid no rents. I have not checked my account at Standard Bank (Nig.) Ltd., to find out whether he had paid my rent into my account.”
Appellant’s counsel, Chief R.A. Akinyemi, contended that by reason of the above last sentence, the respondent could not say that his rents had not been paid since he had not checked his account in the bank in order to be in a position to categorically state that the rents had not been paid and the onus was upon him to prove that the amount he claimed as rents was in fact being owed. In civil cases, while the burden of proof in the sense of establishing the case, initially lies on the plaintiff (Constantine Line versus Imperial Swelting Corporation (1942) AC 154, 174), the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses. The general rule which is enshrined in the maxim Ei qui affirmat non ei qui negat incumbit probatio has been provided for in Sections 134 to 136 of the Evidence Act Cap. 62. In particular, sub-section 2 of Section 136 has provided that:
“If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.”
The respondent in the present appeal had testified that the appellant paid his rents up to August 1970 and no more. Towards the end of his evidence-in-chief, he averred:
“The defendant now owes the rents for September 1970 to March 1973 totalling N2964.00. He owes me N80.00 for December 1973 to April 1974 totalling N3344.00.” With the above evidence before the court the burden had shifted to the appellant to satisfy the court that he had paid and he could discharge this burden either by producing the teller with which he paid the money into the account of the respondent in the Standard Bank (Nigeria) Ltd., in accordance with Clause 2(a) of the agreement, Exhibit 1, or failing that, by calling the Bank officers to produce the statement of account of the respondent in the Bank to show by entries therein that he had paid, or by producing a receipt or receipts given to him by the respondent if he paid direct to the respondent, or by adducing any other admissible evidence, oral or documentary, establishing that he had paid the respondent. We do not think that the appellant had discharged the burden which had shifted to him upon the respondent’s testimony that he had not checked his bank account to know if the appellant had paid the rents into it. It was the appellant’s duty to adduce positive evidence of payment in the face of the respondent’s positive assertion that he had not paid. As we have said, the court wrongly non-suited the plaintiff when it ought to have given judgment for him on that claim.
We now turn to the ground of appeal which complains that the judgment was against the weight of evidence. We must immediately point out that the owing of rents is a proper and legitimate ground for ejectment of a tenant. The learned trial Judge did not, however, base his order for possession on arrears of rent and since the respondent did not appeal, that issue must be allowed to rest. The other reasons for which the respondent required possession of the premises as given in the claim were:
(i) that he needed it for his personal occupation
(ii) to prevent it being used as a brothel
(iii) that he needed it to effect substantial repairs
(iv) that the appellant was guilty of a breach of the tenancy agreement.We shall deal with the reasons separately.
But before then it will be convenient for us to deal with an issue of law which has arisen in the judgment. The trial Judge in the course of the judgment stated:
“Learned counsel for the defendant contended that the Rent Increase Restriction Law Cap.111 Volume V, Laws of Western Nigeria applied in the present case, particularly Sections 12 and 13 thereof.
Cap.111 mentioned earlier is a law to control and regulate increase of rents in urban areas and Warri is one of those area. These proceedings, however, do not relate to increase of rent. They relate to recovery of premises and recovery of unpaid rents and mesne profits. So that Cap.111 clearly “does not apply to these proceedings.”
The learned trial Judge then set out Sections 12 and 13 of the Rent (Increase Restriction) Law Cap. 111 Volume 5 Laws of Western Nigeria and continued: “My view is that those sections are meant to give a tenant whose case comes under Cap.111 some protection which a tenant whose case comes under Cap.110 would get. The present case comes under Cap.110 and so consideration of Cap. 111 clearly does not arise. It would have been otherwise if it was a provision in Cap.110 that was importing into the application of Cap.110 a provision of Cap.111. The only relevant law to be considered, therefore, is Section 19 of Cap. 110.” It was true, as stated by the Judge, that the proceedings in this case related to recovery of premises and recovery of unpaid rents and mesne profits but the learned trial Judge, with all due respect, was in error when he stated that “Cap. 111 clearly does not apply to these proceedings”, because Cap.111 clearly applies together with Cap. 110.
In the Recovery of Premises Law (Cap.110), the long title reads: “A Law to make provision for the Recovery of Possession of Premises” while the Rent (Increase Restriction) (Cap.111) is long-titled:
“Law to Control and Regulate the Increase of Rent and Recovery of Possession of Premises in Certain Areas.”
In an earlier period, in interpretation of Statutes, titles to statutes were not considered part of the statutes and were on that ground held to be excluded from consideration in construing the statutes. (See: Salked v. Johnson (1848) 2 Exhibit 256 per Pollock, CB., R. v. Wilcock (1845) 7 QB 317, per Lord Denman, CJ.). But the modern view, which appears now to be settled law, is that the title of a statute is an important part of the enactment and may be referred to for the purpose of ascertaining its general scope (See: Jones v. Sherrington (1908) 2 KB 539, per Sutton, J., at 547; Jeremiah Ambler & Sons Ltd. v. Bradford Corporation (1902) 2 Ch. 585, per Romer, LJ., at 594). Indeed, in Haines v. Herbert (1963) 1 WLR. 1401 at 1404, Harman, LJ., began a discussion of Part 1 of the Landlord and Tenant Act, 1954 by saying:
“It is to be observed that the long title starts in these words: An Act to provide security of tenure for occupying tenants under certain leases of residential property at low rents’. In other words, it was intended to help people who had residences at low rents of lease-hold property and, as is well known, was intended to give some security of tenure to those who held under long leases.”
Thus he employed the long title in aid to find the scope and intendment of the enactment. While of course the long title may be called in aid, it may not be looked at to modify the interpretation of plain language (Re Wykes, decd. (1961) Ch. 229 at 242, per Buckley, J.).
Bearing these principles in mind, it is clear that Cap.110 and Cap.111 were intended to make provisions, inter alia, for recovery of premises as between landlord and tenant. Cap.111, makes provisions for recovery of premises while Cap. 111, apart from containing some sections dealing with recovery of premises makes also provisions dealing with increase in rents. Cap.111 talks of recovery of possession of premises “in certain areas”. Warri, where the premises in the instant appeal is situate, had been made, as from 13th August 1942, one of those areas by virtue of Public Notice No. 218 of 1st July 1943 (see the Footnote at p.319 of Cap.111 Volume V). Section 13(1) and (2) of the Rent (Increase Restriction) Law provides as follows:
“13 (1) No order or judgment for the recovery of possession of any premises to which this Law applies or for the ejectment of a tenant therefrom shall be made or given unless the court considers it reasonable to make such order or give such a judgment, and either-
(a) the court has power so to be under the provisions set out in the Second Schedule to this Law; or
(b) the court is satisfied that suitable alternative accommodation is available for the tenant.
(2) Accommodation shall be deemed to be suitable if it is, in the opinion of the court reasonably suitable to the needs of the tenant and his family as regards proximity to place of work, to the means of the tenant and to the needs of the tenant and his family as to extent and character and in the case of business premises, in such accommodation is, in the opinion of the court reasonably suitable and no appreciable loss will be cause to the tenant by the transfer of the business.”
Under Section 13(1)(a), the court may make an order for ejectment of a tenant without the necessity of being satisfied that an alternative accommodation is available for the tenant, where the court considers it reasonable to make the order, in all the nine cases (a) to (i) set out in the Second Schedule to Section 13. The cases applicable to the facts of this appeal are (a), (e), and (i). We shall consider these in dealing with the grounds set out by the respondent in demanding possession from the appellant. Under (a), the court may order ejectment of the tenant where
“(a) the rent lawfully due by virtue of this law is in arrear for one month after it has become due.”
As we had earlier stated, we are satisfied that the respondent had proved that the appellant was owing him substantial amount of arrears of rent in respect of several months. On this alone the respondent was entitled to an order for possession. The respondent had in his second ground, in his claim for wanting possession stated:
“2. That the tenant (defendant) is guilty of a breach in the Tenancy Agreement.”
By Clause 2(a) of the tenancy agreement, the appellant had contracted to pay the rent of 42pounds “promptly on the first working day of each month to the Landlord, through the Standard Bank (Nigeria) Limited.” In owing the substantial arrears of rent as aforestated, he was in breach, as stated by the respondent, of the tenancy agreement- a breach for which the law has provided he should be ejected notwithstanding that there may not be an alternative accommodation provided. Under (e), the court again may eject the tenant where:
“(e) the tenant or any person residing or lodging with him or being his sub-tenant has been guilty of conduct which is a nuisance or annoyance to adjoining occupiers, or has been convicted of using the premises or allowing the premises to be used for an illegal purpose, or that the premises have been used as a brothel or that the condition of the premise has deteriorated owing to acts of waste by, or the neglect or default of, the tenant or any such person, and where such person is a sub-tenant or lodger, that the tenant has not taken such steps as he ought reasonably to have taken for the removal of such sub-tenant or lodger;”
(Underlining is ours)
This provision gives a landlord right to remove a tenant who is using his premises, among other things stated in the Act, as a brothel. The tenant does not have to be convicted in a court of law for using the premises as a brothel before being ejected (as in the case of using the premises for an illegal purpose where a prior conviction is necessary). It is enough that the court is satisfied that he has been using the premises as a brothel. The learned trial Judge found as a fact that the appellant was carrying on a brothel in the premises. He held:
“I am satisfied on the evidence before me and I believe the plaintiff that the defendant is carrying on a brothel business in the said premises and I do not believe the defendant is carrying on a hotel business any more in the said premises.”
Further on in his judgment he said: “In the face of my finding that he is carrying on a brothel business in the premises the defendant deserves to be evicted forthwith. I, however, consider that he should be given some period during which he should pack his things from the premises.”
Chief Akinyemi had argued that the respondent had not proved that the appellant was using the premises as a brothel maintaining that he did not call witnesses to that effect. We are however satisfied that in the special circumstances of this case the learned trial Judge was entitled to make the finding he made on the evidence before him. As provided in Section 178 of the Evidence Act except as specially provided in that section, no particular number of witnesses shall in any case be required for the proof of any fact. Special provisions in the section were made for treason and treasonable offences, perjury, exceeding speed limit, sedition and sexual offences.
Lastly, under (i), the law gives the court the power to make an order ejecting a tenant where:
“(1) the premises are reasonably required by the landlord for occupation for –
(i) himself; or
(ii) any son or daughter of his, over eighteen years of age; or
(iii) his father or mother; Provided that an order or judgment shall not be made or given on any ground specified in paragraph (i) of the foregoing provisions of this Schedule if the court is satisfied that having regard to all the circumstances of the case, including the question whether other accommodation is available for the “landlord or the tenant, greater hardship would be caused by granting the order or judgment than by refusing to grant it.”
To make an order under this heading the court has to be satisfied that the landlord reasonably requires the premises for occupation for himself, his son or daughter of over eighteen years of age or for his father or mother. Even where the court is satisfied as aforestated it can still refuse to eject the tenant where greater hardship will be caused by making the order than by refusing it.
The lower court heard both sides. Although the Judge held that Cap.111 did not apply he made a finding of fact should it be found that he was wrong. After setting out the provisions of item (i) of the second schedule to Section 13 of Cap. 111 he made the following finding: “Assuming for the purpose of argument or as a matter of law that Cap.111 applied, I am satisfied on the evidence before me that the plaintiff has satisfied the requirement of paragraph (i). I am satisfied that the plaintiff wants the premises at No.47 Ginuwa Road, Warri, for occupation by himself and his family and that no impediment exists in his way by virtue of paragraph (i) of Cap. 111.”
Having been satisfied that the respondent had satisfied the conditions required by law in item (i) of the schedule and that he required the premises for occupation of himself and his family, the court had to make an order for possession in his favour. By arguing that the learned trial Judge was unreasonable in making the order, Chief Akinyemi was near to adopting the same line of reasoning as did counsel for the tenant in the recent English case of Kennealy & Anor. v. Dunne & Anor. (1977) 3 All ER 837, where the trial Judge construed the term “required” by the landlord as contained in Case 10 of Part. II of Schedule 3 to the Rent Act 1968 as importing an objective standard of reasonableness, but this view was rejected on appeal where it was held that a landlord had to prove no more than that he had a genuine desire and a genuine immediate intention to use the dwelling house as his residence or as a residence for members of his family. Even in the instant appeal where the Act contains the words “reasonably required” the evidence before the court showed that the respondent’s desire to have the premises was not only genuine but was also reasonable. Here was the respondent who before the Nigerian Civil War lived with his family and carried on his trade in building materials in the premises. He fled to Onitsha with his family by reason of the hostilities. Now that the war was over, he wished to return to Warri to resume his trade- his means of livelihood. He had the responsibility of caring for and looking after, two wives and sixteen children, two of whom were in the University and four in secondary schools. What better and more reasonable circumstances than these could there be for an owner of premises to want to resume possession of the premises
At the conclusion of the hearing of his appeal we did not call upon counsel for the respondent, Mr. A. K. Sikuade, to reply, We are satisfied that there is no merit in the appellant’s appeal which we hereby dismiss. The judgment of the court below, including its order for costs, is hereby affirmed. The respondent is hereby awarded the costs of this appeal which we assess at N330.00.
Other Citation: (1978) LCN/2021(SC)
