I. A .O. Adebajo v. Tennessee Nigeria Inc. (1974)
LawGlobal-Hub Lead Judgment Report
T. O. ELIAS, C.J.N.
This is an appeal from the judgment of Kassim, J., in Suit No. LD/529/66 delivered in the High Court of Lagos State on August 21, 1967, in which he non suited the plaintiff in respect of his claim against the defendant for the use and possession of the premises in question, but granted the plaintiff’s other two claims in respect of the Lagos City Council Rates and the defendant’s share of the cost of consumption of electricity on the premises. The plaintiff’s claim against the defendant was for the sum of 2,650: 13:9d made up as follows:
“(1) Use and possession of office space covering approximately.
1,800 square feet on the third floor of 144, Broad Street, Lagos, for the period 16th February to 15th August, 1966, at 3,060 Pounds per annum ………………………….1,530 Pounds
(2) Lagos City Council Rates for the period February, 1965 to August 1966, i.e. 11/2 years at 1/5 of 2,980pounds per annum in respect of the said office space at 10/’97 in the …..447pounds
(3) Share of electricity consumption from February 1965 to 31st October, 1965, plus fixed charge for November, 1965 to August, 1966 to August, 1966……………………
673:13:9d
TOTAL 2,650:13:9d
Pleadings were ordered and were filed. The plaintiff led evidence to show that under the Deed of Lease (Exhibit A), the parties agreed that at the expiration or sooner determination of the lease, the defendant would peaceably yield up to the plaintiff the demised premises, subject to the defendant’s right to exercise an option to renew the lease at any time within six months before its expiry. It is common ground that the lease is a yearly tenancy which took effect from February 16, 1965, that the defendant left the premises in October but kept the keys until August, 1966 when he surrendered them to theplaintiff, and that the defendant never exercised the option contained in the lease. The learned trial judge thereupon proceeded to non-suit the plaintiff in respect of the claim for use and occupation of the premises for the period February 1966 to August 1966 when the tenant held over after the expiry of the lease as contained in the Deed of Lease. The learned trial judge, however, granted the other two claims of the plaintiff, with the amounts of claims substantially reduced in each case.
The present appeal has been brought by the plaintiff/appellant mainly against the non-suit of the claim for use and occupation of the premises. As finally formulated, the grounds of appeal are as follows:
“1. The learned trial judge erred in law in holding that ‘plaintiff’s right is an action for breach of contract’ .
Particulars of Error.
The contract between the parties having determined on the expiration of the lease the plaintiff was entitled to commence an action for use and occupation.
2.Judgment is against the weight of evidence.”
Mr. Ajose-Adeogun, learned counsel for the appellant, contended that the learned trial judge was in error in basing his judgment on the fact that there was none, the Deed of Lease having expired with the date of the expiration of the yearly tenancy in February 1966. He pointed out that both parties are agreed on this point, the plaintiff having averred it in paragraphs 1, 2 and 3 of his Statement of Claim, which the defendant specifically admitted in paragraph 2 of his Statement of Defence. It was his contention that the learned trial judge did not consider these facts and thereby misconceived the point when he ruled as follows:
Having gone carefully through the cases cited by counsel on both sides, and especially the unreported case E.O. O. Fasheun v Pharco (Nigeria) Limited, Lagos, Suit No. WI326166 decided by Taylor, C.J., I hold that the first item of plaintiff’s claim must fail, exhibit A’ is a lease under seal, therefore, the plaintiff has no right to sue the defendant for use and occupation Will & Redman Law of Landlord and Tenant, 14th Edition, Page 336: Halsbury, 3rd Edition, Vol. 23, Page 559, Paragraph 1229. It is quite plain from the above judgment of Taylor, C.J., that plaintiff’s right is an action for breach of contract. I wish to say here also that the tenancy determined by effluxion of time and that surrender is not involved here.”
Learned counsel for the appellant referred us to Halsbury’s Laws of England, 3rd Edition, Vol. 23, paragraph 1229 and Woodfall on Landlord and Tenant, 27th Edition, Vol. 1, pp. 437-438 as authority for the proposition in a 1,800 square feet on the third floor of 144, Broad Street, Lagos, for the period 16th February to 15th August, 1966, at 3,060 per annum … … … 1,530
(2) Lagos City Council Rates
for the period February 1965 to
August 1966, i.e. 1 1/2 years at lIs of
2,980pounds per annum in respect of
the said office space at 10/- in
the … … 447
(3) Share of electricity consumption
from February 1965 to 31st October
1965, plus fixed charge for November
1965 to August 1966 673 13 9d.
————-
Total 2,650 13 9d.
————–
Pleadings were ordered and were met. The plaintiff led evidence to show that under the Deed of Lease (exhibit A), the parties agreed that at the expiration or sooner determination of the lease, the defendant would peaceable yield up to the plaintiff the demised premises, subject to the defendant’s right to exercise an option to renew the lease at any time within six months before its expiry. It is common ground that the lease is a yearly tenancy which took effect from February 16, 1965, that the defendant left the premises in October but kept the keys until August 1966 when he surrendered them to the case like the present one, where a tenant held over after the expiration of the lease, he is liable to pay to the landlord an amount adjudged by the court to be due for the use and occupation of the premises concerned. We think that there is merit in this submission.
Mr. Egbe, learned counsel for the defendant/respondent, on the other hand, contended that the learned trial judge was right in the conclusion he had reached, and that he was even generous by merely non-suiting the plaintiff only on the first item of his claim. His main reason, as far as we could understand his argument, was that there was a contract under seal although it had expired after the one year of the lease, and it was his view that since the respondent was not on the premises all the time and did not in any case enter upon the premises since leaving it in October 1965, the respondent was not liable to pay for the period between February 1966 and August 1966 when he finally surrendered the keys. We are unable to accept this proposition of law.
The appeal, therefore, succeeds and it is allowed. Accordingly, the judgment of Kassim, J., in the Lagos State High Court in Suit No. LD/529166 delivered on August 21, 1967, whereby he non-suited the plaintiff on the claim for use and occupation of the premises, is hereby set aside, including the order as to costs. We, therefore, make the following orders:
(a) Judgment is entered for the plaintiff for the sum of 1,530 against the defendant for his use and possession of the premises in question from February 1966 to August 1966;
(b) The sum of 298pounds awarded by the learned trial judge in favour of the plaintiff as the defendant company’s share of the charges for rates and the sum of 242Pounds: 12:6d. as the defendant company’s share of charges for electricity consumption are hereby affirmed;
(c) The respondent should pay to the appellant costs assess at N160 in the court below and N100 in this Court; and
(d) This shall be the judgment of the Court.
Other Citation: (1974) LCN/1960(SC)
