Mrs. H. B. Adejumo V. David Hughes and Company Limited (1989)
LawGlobal-Hub Lead Judgment Report
AKPATA, J.C.A.
The question of a Judge taking suo motu a legal point and basing his judgment on the legal point so taken without calling on counsel to address him on it crops up in this appeal. One of the main issues for determination, however, is whether a tenant for a term of years who holds over with the consent of the landlord after the expiration of the lease and continues to pay rent at the yearly rate under the expired lease agreement should be regarded as a yearly tenant.
The appellant in this appeal, Mrs. H. B. Adejumo, was the plaintiff in the High Court. She is the owner of the premises situate at No. 2 Aromire Avenue, Ikeja. By a lease agreement dated October, 1982, she demised to the defendant, David Hughes and Company Ltd., the said premises for a term of two years at an annual rent of N17,000.00 from the 1st of November, 1981, to 31st October, 1983, paying in advance the total rent of N34,000.00.
The defendant paid the two years rent before the lease was executed and the payment was acknowledged in the lease agreement.
It was provided in the lease that if at the expiration of the term of the lease, the lessee shall be desirous of continuing in possession of the demised premises for a further term of two years and shall give to the lessor at least three months notice in writing, the lessor shall grant at the expiry of the lease a new lease of the premises for a further term of two years at an amount of rent to be mutually agreed.
Although a formal renewal of the lease was not made, the defendant remained in possession with the tacit consent of the plaintiff who continued to collect every year in “bits and pieces” invariably in advance, a total sum of N17,000.00 per annum as rent up to October, 1987. In effect, the total sum of N34,000.00 for two years was not paid in advance from November, 1983.
By writ of summons dated 15th December, 1987, filed along with a statement of claim of 38 paragraphs, the plaintiff initiated an action against the defendant claiming:
(a) Immediate possession of the house and premises at No.2 Aromire Avenue, Ikeja, Lagos. On the following grounds:
(1) Personal use by her and her daughter who is a legal practitioner.
(2) Substantial repairs.
(b) The sum of N15,972.74 being damages for breach of repairing covenant.
(c) An order that the defendant signs the draft tenancy agreements it refused to sign.
(d) An order that the defendant pay all electricity and telephone bills and other rates and taxes due on the premises as at 31st October, 1987.
(e) An order that the defendant pay mesne profit at the rate of N2,000.00 per month viz, N24,000 per annum for loss of use and occupation from 1st November, 1987 to the date of Judgment and at same rate from the date of Judgment to when possession is given up.
A statement of defence of 35 paragraphs was filed on behalf of the defendant. In it the defendant contended that the plaintiff’s action was vexatious and highly scandalous and that it was an abuse of the process of the court and that she was not entitled as claimed or at all and that the action should be dismissed with substantial costs.
The plaintiff and three witnesses testified in support of her claim. Only Davidson Ekundayo Hughes, the Managing Director of the defendant company testified for the defence.
It was the case for the plaintiff that at the expiration of the tenancy agreement at the end of October, 1983, the defendant approached her for the renewal of the agreement for a period of another two years starting from November, 1983, to 31st October, 1985 retaining all the terms and conditions in the first tenancy agreement, Exhibit P1. Although the defendant said that he would instruct its solicitor to prepare the agreement, no such agreement was prepared. A year’s rent was paid by the defendant instalmentally but in advance for the period 1983- 1984. It also paid the rent for 1984 – 1985 instalmentally and in advance.
At the end of October, 1985, the defendant also approached her for another tenancy from 1/11/85 to 31/10/87 also retaining all the terms and conditions of the agreement, at N17,000.00 for the period 1985/86 and N20,000.00 for the period 1986/87. According to the plaintiff the defendant also said it would instruct its solicitor to prepare an agreement. When none was prepared the plaintiff got her solicitor to prepare the draft agreement, Exhibit “P2” with a forwarding letter dated 14/5/87. The plaintiff agreed under cross-examination that the defendant did not make the request for renewal of the tenancy at the end of 1985 in writing. It however paid the rent for 1985/86.
The defendant wrote the letter, Exhibit “P3”, dated 13/7/87 to the plaintiff referring to their discussion of the same date and “to confirm our decision to continue to lease your property for the next two years with effect from November 1, 1987, at the original rate of N17,000.00….all taxes inclusive.” The defendant enclosed a cheque for N2,000.00 as first instalment of payment and went on to say that “the current lease agreement will be renewed by our solicitor retaining all previous conditions.”
The plaintiff in her reply dated 21/7/87, Exhibit “P4”, expressed her shock that the defendant ignored the “previous agreement as to the rent of N20,000…paid by you for the year 1986/87” and rejected the conditions stated in Exhibit “P3.” She went on to say:
“however, if you are willing to exercise your option for renewal of the tenancy for the next 2(two) years it would be on the terms and conditions of the Current Tenancy Year and all payments in full being made in advance 3 months to the expiration of the Current Tenancy Year which is 31st October, 1987.”
Exhibit “P4” was followed by the plaintiff’s letter Exhibit “P5” dated 24/7/87 where she said:
“Further to our discussion on 23rd July, 1987, in respect of the above subject matter at which we agreed on the rent of N20,000.00 per annum for the years 1987 – 1989.
Please find enclosed your UBA cheque No.HO56703 for the sum of N2,000 since it will be contrary to the terms and conditions stated in my letter dated 21st July, 1987.
I would therefore expect a cheque for at least a year’s rent 3 months to the commencement of the new tenancy year.”
The defendant replied thus in Exhibit “P6” dated 27/7/87.
“This is to acknowledge’ the receipt of our own cheque No.HO56703 for the sum of N2,000.00 (Two thousand Naira only) which you returned with your letter dated July 24, 1987. It is still our intention to continue to lease your property which situate at No. 2 Aromire Avenue, Ikeja, for the next two(2) years with effect from November 1, 1987, at the original rate of N17,000.00 (Seventeen thousand Naira only) all taxes inclusive. We have not agreed to increase the rent to N20,000.00 (Twenty thousand naira) as stated in your letter under reference.”
On receipt of Exhibit “P6” the plaintiff instructed her solicitor to write to the defendant that she would no longer renew the tenancy. The solicitor wrote the letter Exhibit “P7” dated 6/8/87 accordingly, and intimated the defendant that at the appropriate time, it would be served the necessary notices towards its eviction and that a writ of summons would be issued for the recovery of the premises and for breach of the covenant to keep the premises in good and tenantable repair.
On the instruction of the plaintiff her solicitor also forwarded two letters to the defendant. The first, Exhibit “P8” dated 16/9/87 reminded the defendant of the, terms and conditions of the tenancy, amongst other things, to maintain the grounds and interior of the premises in good and tenantable repair. The defendant was requested to commence work on the premises and warned of the consequences of failure to repair. The second letter, Exhibit “P9” dated 17/9/87 requested the defendant to make available for inspection on 9/10/87 “all your past receipts for payment of tenement, water and N.E.P.A. Bills and Economic Recovery Fund Receipts.”
On 9/10/87, the plaintiff in company of her daughter, Sijuade Adejumo (P.W.2) who is a lawyer by profession, her lawyer and Mr. Adeniran, the defendant’s accountant, inspected the premises and observed and took notes of the state of disrepair. She then instructed her solicitor to write to the defendant to inform it of the condition of the premises and to effect repairs.
The solicitor wrote the letter, Exhibit “P10” dated 12/10/87 accordingly. The plaintiff invited Sylvester Mbamba, P.W.1, a building draughtsman and Works Supervisor to Mackonell Company Limited to the premises to assess the cost of repairs. He did so and prepared an estimate Exhibit “P11” showing that the total sum for the repairs would be N15,972.74.
The plaintiff then wrote her solicitor the letter Exhibit “P12” dated 5/11/87 instructing him to issue the necessary statutory notices and all other processes towards the recovery of possession of the property. The solicitor prepared Exhibit “P13” dated 10/11/87, the “Notice to tenant of owner’s intention to apply to recover possession” which was served by the plaintiff herself on the Managing Director of the defendant company personally on 11/11/87.
It was also the case for the plaintiff that there was incumbrance on the property in that it was used to secure a loan from the Co-operative Bank Limited for Financial Times Limited (presumably the plaintiff’s company). Judgment was entered for the bank in 1979 for the loan as evidenced by the enrolment order Exhibit “P14.” The plaintiff subsequently came to an agreement with the bank as shown by the letters Exhibits “P15” and “P16” in order that the property might not be sold. She was to liquidate the debt by annual instalmental payment of between N10,000.00 – N12,000.00. She relied on the rent from the property to offset the judgment debt in favour of the bank.
The plaintiff further testified to the effect that the Managing Director of the defendant company owned two duplex buildings at Ikeja G.R.A. and that the defendant company was the owner of a parcel of land at Ojodu, Ikeja. One of the grounds for seeking possession was that the plaintiff needed the premises for her personal use and the use of her daughter (P.W.2), a legal practitioner, as her office.
It was the case of the defence that at the expiration of Exhibit “P1”, the defendant approached the plaintiff when it became necessary for it to remain in the premises. She was agreeable to its request to stay and pay the rent of N17,000.00 per annum. The defendant has since then been paying rent annually in advance, that is, to cover the period 1st November every year to 31st October of the following year.
There were occasions when the plaintiff asked for rent well before the date due for it and the defendant obliged. For instance, in Exhibit “D1”, dated 26/6/86, she requested thus:
“I would be grateful if you could let me have an additional sum of N3,000.00 out of the balance. The rest could be paid much later say by October. Sorry for any inconveniences this might cause you. Thank you for your co-operation.”
The N3,000.00 was paid to her the following day.
The defendant used the premises as an office which is well taken care of and is in good tenantable state. The defendant proposed to build its own office at Ojodu and move there. It did not agree at any time to pay N20,000.00 per annum. D.W.1, the Managing Director of the defendant company, explained under cross-examination that “from 1986 to 1987 we paid N20,000.00 made up of N17,000.00 as rent and N3,000.00 with-holding tax. Between 1985 and 1986 we paid with-holding tax of N2,125.00. In 1984 also, we paid N17,000.00 including with-holding tax.”
In a reserved judgment dated 12/6/88, the learned trial Judge held that the plaintiff wrongly initiated the action with Form No. 1 required by the High Court (Civil Procedures) Rules 1972, instead of applying Form F as demanded by Section 10(1) of the Recovery of Premises Law, Cap. 118, Vol. 6 of the Laws of Lagos State.
The question of the use of the wrong Form apart, the learned trial Judge was of the view that as the defendant did not exercise the option for renewal as clearly stated in Clause 3 of Exhibit “P1”, the terms created by it was extinguished and the defendant therefore became a tenant from year to year.
Being a tenant from year to year, to terminate the tenancy, the defendant must be served half a year’s notice in accordance with Section 8(1)(d) of the Recovery of Premises Law.
The learned trial Judge held that the defendant was not in arrears of rent as stated by the plaintiff and that on the contrary the “evidence pointed conclusively to the fact that it was the plaintiff who when in need of fund used to ask for rent before due date. And the defendant always obliged her.”
He also rejected the plaintiff’s evidence that No. 2, Aromire Avenue her property, was used as collateral for a loan. He concluded that her motive “was to whip-up emotion and sentiment.”
The learned trial Judge also expressed the view that in an action for recovery of possession, plaintiff is not allowed to join other claims in the writ. He however held that the defendant was not in breach of any covenant to repair and that the claim of the plaintiff was speculative.
The learned trial Judge also came to the conclusion that the proposed tenancy agreement, Exhibit “P2” which the plaintiff would like the defendant to sign was an after-thought and that it was “specially manufactured for this case.” Besides, said the learned trial Judge, no law empowers the court to force a defendant to sign a tenancy agreement.
On the question of the defendant being compelled to pay all electricity and telephone bills and other rates and taxes due on the premises, he was satisfied that it was not the business of the plaintiff because the suppliers of the services would withdraw their services to the defendant if it refused to pay them.
Lastly, on the question of mesne profit, the learned trial Judge concluded that as the plaintiff failed to obtain possession, the claim for mesne profit did not arise. The entire suit was dismissed. Each party was however asked to bear her or its own costs.
By her notice of appeal dated 23/6/88. a total of 18 grounds of appeal were filed, some extremely lengthy and supported by copious particulars. I do not consider it necessary to reproduce any of them. Grounds (A), (B) and (C) relate to the question of the form of the writ applied in initiating the action. Grounds (D), (E), (F) and (G) are in respect of the inference drawn by the learned trial Judge that Exhibit “P1” had terminated and that a yearly tenancy was operative. Ground (H) is in respect of the seven days notice as opposed to six months notice. Ground (1) relates to the trial Judge believing the evidence of the defendant where-ever it was in conflict with the evidence of the plaintiff. Ground (J) questions the finding that the plaintiff stated that the defendant was in arrears of rent when in fact there was no such assertion by the plaintiff.
Grounds (K) – (L) touched on the question whether the property was used as a collateral for a loan. Grounds (M) and (N) deal with joinder of claims. Ground (Q) relates to the finding that Exhibit “P2” was an afterthought.
Ground (P) is in respect of payment of N.E.P.A. and other bills. Ground (Q) relates to the question of the refusal of the learned trial Judge to allow the claim for mesne profit.
In his brief of argument, learned counsel for the appellant, Mr. I. O. Iluyomade, formulated 20 issues for determination in the appeal. As in the grounds of appeal, some of the issues are tied up with other issues. I do not intend to go through the exercise of narrowing the issues formulated by learned counsel for the appellant particularly as learned counsel for the respondent has made a fairly good job of them.
The 4 issues succinctly formulated in the respondent’s brief by and large cover the grounds of appeal. It may, however, be necessary for me to refer to one or two of the issues framed by learned counsel for the appellant which are not adequately covered by the issues framed by learned counsel for the respondent.
The four issues framed by the respondent read:
- “Whether the learned trial Judge was right to have held suo motu, in disposing of this action for non-compliance with S.10(1) of the Recovery of Premises Law, Laws of Lagos State (Cap. 118) that the action not being properly constituted lacked jurisdiction. Whether the learned trial Judge placed the correct construction on Clause 3 of Ex. P1.
- Whether the learned trial Judge was right in holding that there was a tenancy from year to year as from 1st November, 1983.
- Whether the learned trial Judge correctly directed himself as to the onus of proof and the relevant evidence having regard to the pleadings and evidence before the Court.”
On the first issue, it is patently clear that at no stage of the proceedings, including the address of counsel for the respondent, did the respondent raise as part of his defence the failure of the appellant to initiate the action with form “F” in accordance with Section 10(1) of the Recovery of Premises Law. It is startling that the learned trial Judge based his decision partly on this point of Law which he raised suo motu. It must have come to the appellant and his counsel like a bolt from the blues as the learned trial Judge read his judgment. A court ought not to give a decision on an issue which was either not raised or canvassed, or of which counsel were not given any opportunity of being heard. See Ogiamien v. Ogiamien (1967) 1 All N.L.R. 191; Animashawun v Osuma (1972) 4S.C. 200 and Yusuff v.N.T.C. Ltd. (1977) 6 S.C. 39).
The learned trial Judge said that he was not unaware of the provision of Section 32 of the Interpretation Act, 1964, which states:
“Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purposes of the enactment by reason only of the difference if the difference is not in a material particular and is not calculated to mislead.”
While learned trial Judge held the view that “the form used in Form 1 is quite different in more than one material particular that it cannot be saved by this section”, he however omitted to state how the use of Form 1 was “calculated to mislead.”
The learned trial Judge then went on to state that when a statute has laid down any procedure, rule or practice as in Section 10 of the Recovery of Premises Law, the court has no jurisdiction unless they are followed. He drew support from Moore v.Tayee (1934) 2 W.A.C.A. 43 at page 45 where Lord Atkin said:
“It is quite true that their Lordships, as every other Court, attempt to do substantial justice and to avoid technicalities; but their Lordships, like any other Court, are bound by the statute law, and if the statute law says there shall be no jurisdiction in a certain event, and that event has occurred, then it is impossible for their Lordships or for any other Court to have jurisdiction.”
In my view the dictum of Lord Atkin is not applicable to this case. The question in Moore v Tayee was whether or not the Provincial Commissioner had jurisdiction to entertain at all appeal from the Native Tribunal. It is elementary that parties cannot by consent or otherwise, vest in a court the jurisdiction it does not have. This is quite different from an enactment prescribing a form for commencing an action and another form is erroneously applied.
The authorities cited by Mr Davies, learned counsel for the respondent, which relate to question of jurisdiction are inapplicable to this case. Section 22 of the Interpretation Act, 1964, which is a statutory provision clearly states that the form used “shall not be invalid for purposes of the enactment by reason of the difference.”
It is trite that where a wrong procedure has been used in commencing an action and was not objected to by the opposite party, the proceedings based on it will be valid. As stated by the Supreme Court in the case of Adebayo v. Johnson (1969) 1 All N.L.R. 176 at page 190, cited by learned counsel for the appellant, where a party failed to challenge the correctness of the procedure at the commencement of the proceedings, “the adoption of a wrong procedure will be no more than an irregularity and would not render the entire proceedings a nullity.”
In certain cases even statutory provisions can be waived. This was made clear by Eso, J.S.C., in the case of Ariori & Ors v Elemo & Ors. (1983) 1 S.C. 13 at pages 50 – 51., where he said:
“A beneficiary under a statute should have full competence to waive those rights once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of the statutory provisions.”
Section 31(1) of the Recovery of Premises Law states that:
“Subject to the express provisions, if in any of the rules, the forms contained in the schedule may, in accordance with any instructions contained in the said forms, and that such variations as the circumstances of the particular case may require, be used in the cases to which they apply, and, when so used, shall be good and sufficient in law.” (Italics mine)
This Section does not specifically or by implication exclude the use of other forms. All it does is to validate the use of the forms in the schedule, including form F. Therefore, from whatever angle one approaches the issue, which the
learned trial Judge introduced suo motu, one gets to the conclusion that he was wrong to have come to his decision that the use of Form 1 by the appellant in commencing the action rendered the action useless.
Although the learned trial Judge said that the error in so doing was enough to dispose of the suit, he however went on, and rightly so, to consider other issues particularly “whether the defendant is a tenant from year to year or tenant for a two year term certain.” He held that it was a tenant from year to year and therefore required six months notice to get it to quit the premises.
Learned counsel for the appellant drew attention to the fact that Exhibit “P1” contained option for renewal clause to be exercised by the tenant in writing at least three months to the expiration of the term thereby created. The appellant gave evidence that at the expiration of the term created by Exhibit “P1”, the respondent approached her to exercise the option to renew for two years from 1st of November, 1983 to 31st October, 1985. According to learned counsel, the respondent also gave evidence that it approached the appellant for the exercise of the option for one year. The learned trial Judge found that the defendant did not exercise the option because of non-compliance with Exhibit “P1” which stated that the exercise should be in writing.
It is not correct to say that the respondent approached the appellant for the exercise of the option in Exhibit 1. All that D. W.1 said was that “At the expiration of Exhibit “P1″, we approached the plaintiff and discovered (sic) that we would like to stay in the premises. She was agreeable to our request for one year at the rent of N17,000.00 per annum.”
Learned counsel argued that by the respondent paying advance rent of N5,000.00 it is deemed by its conduct to have waived the strict provision of Exhibit “P1” that the option should be in writing. Learned counsel cited Okongwu v The State (1986) 5 N.W.L.R. (Pt.44) 721 at 749; Ariori & Ors v. Elemo & Ors. (1983) 1 S.C 13 at 18 and Ezomo v Oyakhire (1985) 1 N.W.L.R. (Pt.2) 195 at 196.
Apart from the fact that there was no option to renew in writing, the tenancy was on a yearly basis. The defendant also paid only a year’s rent in advance. Therefore, if it can be said that by defendant’s conduct it waived the strict provision of Exhibit “P1” that the option should be in writing, which provision may be said to be for the benefit of the defendant, there was no waiver as the term of years and the amount to be paid in advance.
Learned counsel also relied on Exhibit “P2” to prop up the case for the appellant. Exhibit “P2” is the draft agreement dated 14/5/87which the appellant claimed was prepared by her solicitor and that it restored the strict terms contained in Exhibit “Pl.” In my view, learned counsel lost sight of the fact that the learned trial Judge described Exhibit “P2” as “after thought” and that it was “specially manufactured for this case.” The trial Judge obviously believed P.W.1 who said that he had not seen Exhibit “P2” at any time before he testified.
It is true that in Exhibit “P3” dated 13/7/87, the respondent talked of “our decision to continue to lease your property for the next two years with effect from November 1, 1987, at the original rate of N17,000.00… ”
This was obviously an attempt to enter into a formal new agreement and not an exercise of the option created by Exhibit “P1” which terminated on 31st October, 1983. As stated by the learned author of Woodfall on Landlord and Tenant, Vol. 1. 27th Edition, paragraph 653 at page 271:
“Where a tenant for a term of year, holds over after the expiration of his lease, he becomes a tenant on sufferance; but when he pays, or expressly agrees to pay, any subsequent rent, at the previous yearly rate, a new tenancy from year to year may thereby be created upon the same terms and conditions as those contained in the expired lease, so far as the same are applicable to and not inconsistent with a yearly tenancy. This, however, is a matter of evidence rather than of law, the question being what may fairly be inferred as the intention of the parties.”
It is also stated in Halsbury’s Law of England, 4th Edition, Vol 27, paragraph 113, page 92, cited by Mr. Davies, that:
“A tenant who wishes to exercise an option to renew must conform with the condition in the lease as to its exercise, and those conditions will be strictly construed.”
When Exhibit “P1” was executed, the respondent paid two years rent in advance. At the expiration of that lease, the respondent held over with the consent of the appellant and paid thereafter only the one year’s rent in advance. In Exhibit “D1” dated 26/6/86, the appellant begged to be paid additional sum of N3,000.00 out of the balance of one year’s rent in advance. If it was the belief of the parties or even that of the appellant alone that there was a renewal of Exhibit “P1”, she would no doubt have insisted on two year’s rent being paid in advance from November, 1983. In the circumstance I have not the slightest hesitation to saying that there was a tenancy from year to year as from 1st November, 1983.
One of the issues framed by learned counsel for the appellant was whether there was sufficient evidence from the plaintiff in rebuttal of the presumption of yearly tenancy in favour of the defendant. The position is that not only was there no such credible evidence from the plaintiff but also on the showing of the plaintiff it is quite clear that the defendant was a yearly tenant.
Another issue formulated by learned counsel is “what is the effect of a decision based on an improper evaluation of evidence.’” In my view, there was no improper evaluation of evidence that should necessitate this issue framed by learned counsel. There is no doubt that the learned trial Judge was wrong when he said that the plaintiff asserted that the respondent was in arrears of rent. She never said so. This holding of the learned trial Judge is neither here nor there. By Section 8(1)(d) of the Recovery of Premises Law, the defendant ought to have been served six months notice. Having not done so, the action for possession was bound to fail. In my view, all the other claims, which no doubt are incidental to the claim for possession, were also bound to fail.
In his judgment, the learned trial Judge held that in an action for recovery of possession, the plaintiff is not allowed to join other claims in the writ. He relied on the case of Oku v Awanah (1961) 1 All N.L.R. 107 where De Lestang, C.J., held that “a claim for general damages cannot be properly joined with a claim for possession, arrears of rent and mesne profit under the Recovery of Premises Ordinance. ‘ The learned Chief Justice was saying that a special procedure for the recovery of premises although allows a claim for rent and mesne profit, it does not contemplate the joinder of a claim for general damages. However, Order 15 rule 2 of the Lagos State High Court (Civil procedure) Rules states in part:
- “No cause of action save an action for declaration of title shall, unless by leave of the Court or a Judge in Chambers, be joined with an action for the recovery of land except claims in respect of mesne profits or arrears of rent in respect of the premises claimed, Or any part thereof, and damages for breach of any contract under which the same or any part thereof are held, or for any wrong or injury to the premises claimed, and except also claims for payment of principal money or interest secured by or for any other relief in respect of a mortgage or charge of such land.”
It seems to me that the learned trial Judge was not quite right to hold that other claims cannot be joined in an action for recovery of possession. The only claims which appear improper in this action are the claims for (1) an order that the defendant sign the draft tenancy agreement, and (2) an order that the defendant pay all electricity and telephone bills and other rates and taxes due. All the other claims are however bound to fail since the claim for possession fails. The appeal as a whole fails. It is dismissed with costs assessed at N350.00 in favour of the respondent.
Other Citations: (1989)LCN/0094(CA)
