The Military Administrator, Federal Housing Authority & Anor V. C. O. Aro (1991)

LawGlobal-Hub Lead Judgment Report

M. A. BELGORE, J.S.C. 

The appellant, Federal Housing Authority let in the respondent into one of the houses erected by them at FESTAC Town. Lagos by virtue of Mortgage Lease Agreement entered into by the two. The agreement was entered into in 1977 but the respondent was let into possession of the flat physically in February, 1982.

He was in possession for forty-seven months before dispute arose between them. It appeared the respondent was several months in arrears of his mortgage payment. However, after notice was served on the respondent that the appellant would take possession, the respondent rushed and made part payment of the arrears allegedly due. He was left in possession. Sooner, though another arrears built up and he was finally notified that the appellants would take possession. The respondent rushed to Court asking for the following:

(i) that the respondent was still the mortgagor/lessee of the said premises;

(ii) that the appellants could not eject the respondent except by order of court;

(iii) that the notice served on the respondent by the appellants was null and void, and

(iv) that by acceptance of arrears of rent, the appellants had waived their right to eject the respondent from the said premises.

(v) He also claimed an injunction restraining the appellants, their agent and/or servants from entering and ejecting the respondent from the said premises; and

(vi) N100.000.00 damages for unlawful ejectment.

Apparently knowing that the appellants were bent upon evicting him and taking possession of the house, the respondent rushed again to court to ask for interlocutory injunction so that he be left in peace in the house, for according to him he was not in arrears of payment. The motion for interlocutory injunction was supported by detailed affidavit whereof the respondent denied owing any arrears and deposing that if the appellant succeeded in ejecting him, he would suffer irreparable damage as the house could be sold to somebody else which would bring serious complications. The counter-affidavit by Johnson Agbabune an Executive in Legal Department of the appellant deposed that all allegations of not being in arrears of mortgage repayment were untrue and that the respondent had arrears of N2,136.87 to pay and for that reason he was ejected from the house on 17th November, 1985, an allegation in further affidavit by the respondent.

Learned trial Judge, looking at the affidavits, gave an interim stay that the respondent be left in possession.

It is to be pointed out that the appellants’ counter-affidavit alleged the respondent having been ejected on 17th November, 1985, the house was re-allocated to another person. The respondent countered in further affidavit that he made further payments, received by the appellants on 18th and 21st November 1985. The court granted the interim injunction asked for. An interlocutory appeal was lodged against this decision to Court of Appeal which on the 20th January, 1987 dismissed the appeal. Thus the appeal to this court.

The grounds of appeal read as follows:

(1) “That Court of Appeal misdirected itself in law in upholding the order of mandatory injunction despite the fact that a new innocent tenant has been let in possession under the doctrine of caveat emptor.