Madam C. S. T. Kodesoh Vs Madam Ayinke Aro (1972)

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COKER, JSC.

The appellant was the defendant and the respondent the plaintiff in an action instituted by the plaintiff in the High Court, Ikeja, Lagos State and in which the writ was endorsed for the following claims:-

“(a) Possession of all that piece or parcel of land situate, lying and being at Ikeja and which is more particularly described in the Deed of Lease dated 14th day of February, 1953 and registered as No. 34 at page 34 in volume number 964 of the Register of Deeds kept in the Land, Registry, Lagos.

(b) Injunction restraining the defendant his agents and servants from further remaining on the said land.”

The statement of claim avers that the land in dispute belongs to the plaintiff, that the land was the subject- matter of a previous court case by the plaintiff against the same defendant, that the case subsequently went on appeal to the Supreme Court where the lease purported to be made in favour of the defendant was set aside on the ground of fraud of the defendant and that the defendant instead of vacating the land still remains therein in occupation despite the requests of the plaintiff for her to leave.

On the other hand, the defendant’s statement of defence traverses all the principle averments in the statement of claim, denies that the judgment of the Supreme Court has the meaning being attached to it by the plaintiff and avers in substance that before the execution of the lease referred to and annulled by the Supreme Court the defendant had been a tenant of the plaintiff on part of the land later comprised in the said lease, that that tenancy now subsists on the cancellation of the lease and that in any case the defendant’s tenancy had not been determined according to law. Paragraphs 4, 15 and 17 of the statement of defence in particular state as follows:-

“4. The defendant admits paragraph 3 of the statement of claim to the extent that by a deed of lease dated 14th February, 1953 and registered as No. 34 at page 34 in Volume 964 of the Register of Deeds kept in the office at Lagos the area in dispute was described, but denies any other averments contained in the said paragraph.

15. The relationship of landlord and tenant between the plaintiff and the defendant has existed since 1943 in respect of the Caroline Hotel and some surrounding land which the defendant used as garden.

17. The defendant shall raise all available legal and equitable defences available to him at the trial of this action. At the trial the plaintiff gave evidence in support of her statement of claim. She testified in effect that some time in 1943 she had let at a monthly rent of £2.10/ to the defendant premises consisting of 10 rooms at Orile Ikeja; that some 10 years later the defendant approached her and requested her to lease to her some agreed portion of the plaintiff’s land around the ten-roomed premises which the defendant was then using as the Caroline Hotel. The plaintiff further testified that she agreed to this, that a formal Deed of Lease was prepared and executed by both parties and including the land of the ten-roomed premises which used to be let separately. She testified further as follows:

“I sued her because she said that the lease of the land covers my premises as well as portion of the land leased to other people by me. She caused a survey of the land to be made which is larger than the area of land I leased to her the cause was heard at Ikeja High Court and I won the case. The defendant appealed to Supreme Court and the judgment of the High Court was upheld.”

The defendant also gave evidence and called three witnesses. She gave evidence to the same effect as her statement of defence and stated that since the judgment of the Supreme Court she had given up the larger area and had only occupied the premises known as the Caroline Hotel, i.e. the ten-roomed premises originally let to her in 1943. She however admitted that the Supreme Court has set aside the lease of 1953. Her witnesses gave evidence that they used to pay her rents before in respect of the premises adjoining the Caroline Hotel occupied by them but that at the time of the present action they were paying their rents to the plaintiff. In a reserved judgment the learned trial Judge, Dosunmu, J., summarised the cases as presented both by the plaintiff and by the defendant as follows:- “It was only the house that was let out to the defendant. But in 1953 she agreed to let out to her in addition, but separately an area of land surrounding the 10 room house at a rent of £30 per annum. The defendant, later on, made her execute a deed of lease comprising a larger area of land together with the 10 room house at a rent of £30 per annum. This is the lease agreement that was declared voidable on the finding of fraud against the defendant. On the other hand the defendant testified that initially in 1943 she took the tenancy of the 10 room house which she now uses as Caroline Hotel together with its garden, all measuring about 21/2 acres from the plaintiff at a rent of £2/10-per month payable yearly. Her husband attorney also supported this piece of evidence that some ten years later, and for a consideration of £50 – the plaintiff gave her a lease of the whole area of land measuring some 5 acres with the Caroline Hotel on it for the rent of £30 per annum.”

The learned trial Judge preferred and accepted the plaintiff’s testimony that all the defendant had hired from her in 1943 was the ten-roomed house and no adjoining lands. The learned trial Judge rejected (and we express no opinion on the propriety of this at this stage) the submission of learned counsel for the plaintiff that the 1943 agreement had merged in the 1953 lease and held that although the defendant had done all that she could do to repudiate the 1943 tenancy the plaintiff had not either expressly or impliedly accepted her repudiation of that tenancy. The learned trial Judge eventually gave judgment for the plaintiff against the defendant and made the following orders:-

“The order which I make therefore is that the defendant do give up possession to the plaintiff with immediate effect all that piece or parcel of land comprised in the deed of lease Exhibit A together with the buildings thereon with the exception of the 10 room premises known as Caroline Hotel. With the making of this order for possession, it seems to be unnecessary to make an order of injunction to restrain the defendant her agent/and servant from remaining on the said land. But I do hope it will continue to be unnecessary to do so if there is no act of trespass on it.”

Both the plaintiff and the defendant have appealed against that judgment to this court. Learned counsel for the defendant had complained that although the learned trial Judge had held that the 1943 tenancy agreement still substituted he did not as he should have done direct that the “premises” involved in the 1943 tenancy agreement included “contiguous lands of some 21/2 acres”. On the other hand, learned counsel for the plaintiff submitted that the Deed of Lease embodying the 1953 leasehold agreement which was produced in evidence at the trial as Exhibit “A” clearly merged into it the 1943 agreement and that the learned trial Judge was in error of law to have held otherwise. Learned counsel for the plaintiff also submitted that as the lease Exhibit “A” was annulled by this court on the grounds of fraud in previous proceedings between the parties this court should not now accede to the suggestion of the defendant that she should be allowed to keep the fruits of her own fraud. There can be no doubt as to the real intention of the parties at the time when the lease Exhibit “A” was executed. The plaintiff testified to the effect that she thought the defendant would thereafter continue to pay her the rent of £2.10/- in respect of the ten-roomed premises but that the defendant refused to do this stating that the lease had now covered the entire premises let to her. The defendant herself testified that the lease Exhibit “A” dated the 14th February, 1953, covered all the premises let to her by the plaintiff and that she thereafter paid the plaintiff rent only as provided in the lease. This was the view of the defendant of the situation and the plaintiff accepted such rent from her and continued so to accept the rents in that way until she took her action in 1963 by which she succeeded in getting Exhibit “A” rescinded.

On these facts which are abundantly clear, it is difficult if possible at all to resist the inference that the defendant had repudiated the 1943 tenancy agreement and that the plaintiff had acquiesced in such repudiation. This however is not the end of the matter nor is any such finding necessary to decide the present controversy between the parties. It was contended for the plaintiff that there was a merger by the 1953 lease of the 1943 tenancy agreement whereas for the defendant it was contended before us that there was no such merger. We have already pointed out that on the issue as to whether the 1943 tenancy agreement had been repudiated there should have been a finding that it clearly was so repudiated. Manifestly, a deed operated by way of merger. The evidence in this case is clear that the land involved in the 1953 lease Exhibit “A” included whatever might have been the subject-matter of the 1943 tenancy agreement and both parties to the case unequivocably testified to this effect. The defendant ceased after the execution of Exhibit “A” in 1953 to pay the rent of £2.101- per month which she used to pay on the 1943 tenancy agreement and the plaintiff only accepted rent thereafter on the basis of these facts, it is inconceivable to hold otherwise than that the agreement of 1943 had been merged in the 1953 lease. Indeed, we now decide that there had been such a merger and that after the creation of Exhibit “A” in 1953, the 1943 tenancy agreement pro tanto ceased to have any effect whatsoever.

Now, the 1953 lease Exhibit “A” was the subject-matter of the Supreme Court judgment in the previous litigation between the parties. The judgment of this court in the case, i.e. SC.600/66 given on the 3rd July, 1970, was pleaded and admitted in evidence in the present proceedings as Exhibit “B”. Concerning the Deed of Lease this court observed in Exhibit “B” as follows:-

“We are satisfied that the facts pleaded in the statement of claim amount in law to an allegation of fraud; and that if the learned judge had considered, as he ought to have done, whether fraud was proved, he would have had no difficulty in coming to the conclusion that it was proved. On the totality of the evidence, we have no hesitation in holding that fraud was proved.” Later on and in the course of the same judgment the following observation occur:- “Fraud having been established as pleaded, we are of the view that the plaintiff is entitled to judgment in terms of the amended writ. The result is that the appeal of the defendant fails on all grounds and it is hereby dismissed.”

This court proceeded to award judgment to the plaintiff in the terms of her amended writ which had asked for the 1953 lease to be set aside. It is evident that the only vestige of right by which the defendant could have remained in possession of the plaintiff’s property was the lease Exhibit “A” which had been set aside. The defendant therefore has no further right to remain on the land. It was however contended on her behalf that she had not been ejected from the land in the fashion of a tenant, but she was no more a tenant since the judgment of this court, the statutory definition of a tenant not being applicable to her. In the end we allow the appeal of the plaintiff and dismiss the appeal of the defendant. We make the following orders:-

(i) The judgment of the High Court, Ikeja (Dosumu, J.), in Suit No. IK/224/70 is set aside but not the order for costs.

(ii) We order that judgment be entered for the plaintiff in the suit in the terms of her writ and that the defendant do give up possession of all the premises including the Caroline Hotel which is covered by the Deed of Lease dated the 14th February, 1953, Exhibit “A” in these proceedings and registered as No. 34 at p.34 in Volume 964 of the Register of Deeds kept in the Lands Registry Office in Lagos on or before the 30th June, 1972.

(iii) The defendant shall pay to the plaintiff the costs of this appeal fixed at 46 guineas.

Other Citation: (1972) LCN/1450(SC)