A.S. COKER VS ADEYEMI ADETAYO & ORS (1996)

A.S. COKER VS ADEYEMI ADETAYO & ORS

(1996) LCN/2694(SC)

In the Supreme Court of Nigeria

Monday, June 10, 1996

Case Number: SC. 219/1992

RATIO

INTERPRETATION OF STATUTE: PROVISION OF THE STATUTE ON THE RECOVERY OF PREMISES

The Recovery of Premises Law Cap. 118 of Laws of Lagos State, 1973, and the Rent Control and Recovery of Residential Premises Edict No. 9 of 1976 which was amended by the Rent Tribunals (Abolishing and Transfer of Functions) Law,1981. Under Edict No. 9 of 1976 both Magistrate and High Courts have been empowered to handle cases of recovery or ejection of any tenant from any premises under certain conditions. Those conditions have been specified in the second schedule of the Edict of 1976 as follows: “A tribunal (now Magistrate’s Court) shall…….. have power, to make or give an order of ejectment for recovery of possession of any premises to which this Edict applies for ejectment of a tenant there from………. if (i) the premises are reasonably requited by the landlord for occupation for:- (i) himself; or (ii) any son or daughter of his over 18 years of age; or (iii) his father or mother; ……….. By s.40 of the Edit “landlord” is defined as follows:- “Landlord in relation to any premises means the person entitled to the immediate reversion of the premises or if the property therein is held in joint tenancy or tenancy in common, any of the persons entitled to the immediate reversion and includes: a. the attorney or agent of any such landlord; …………..” There can be no doubt that under the above sections of the Edict, a landlord can recover possession of any premises to which the Edict applies if the premises are reasonably required by the landlord for occupation for himself, any or his sons or daughters over 18 years of age of his father or mother- PER MOHAMMED JSC.

COURT PRACTICE: INTERFERENCE WITH THE FINDINGS OF A TRIAL COURT

An appellate court will not ordinarily interfere with the findings of fact made by a trial court except in circumstances such as where the trial court has not made a proper use of the opportunity of seeing and hearing witnesses at the trial or where it has drawn wrong conclusions from accepted credible evidence or has taken an erroneous view of the evidence adduced before it or its findings of fact are perverse, in the sense that they do not flow from the evidence accepted by it. The above findings of the two appellate courts below are fully supported by the evidence before the trial court and accepted by the learned Chief Magistrate; Sotuminu (Mrs.) and it is clear to me that both appellate courts were right in not disturbing them. See Okpiri v. Jonah (1961) All NLR 102 at 104-105; (1961) 1 SCNLR 174; Benmax v. Austin Motor Co. Ltd. (1955) A.C. 307; Maja v. Stocco (1968) 1 All NLR 141 at 149; Woluchem v. Gudi (1981) 5 S.C. 291 at 295-296, 326-329 etc. In the same vein, this court will no interfere with concurrent findings of facts made by the courts below where there is sufficient evidence in support of such findings and where there is no substantial error apparent on the record of proceedings such as some miscarriage of justice or violation of some principle of law and procedure. Where, however, such findings are shown to be perverse or patently erroneous and that a miscarriage of justice will result if they are allowed to remain, this court will interfere. See Chinwendu v. Mbamali (1980) 3-4 S.C. 31 at 75; Lamai v. Orbih (1980) 5-7 S.C. 28; Woluchem v. Gudi (1981) 5 S.C. 291 at 326; Lokoyi v. Olojo (1983) 2 SCNLR 127 at 131; Igwego v. Ezeugo (1992) 6 NWLR (Pt.249) 561 at 585 etc- PER IGUH JSC.

INTERPRETATION OF STATUTES: INTERPRETATION OF THE PROVISION OF AN ACT

It is therefore right to assume that the Interpretation of the provisions of that Act in issue was resolved having regard to the intention of the legislature by its enactment and the peculiar social and other circumstances prevailing at the time of its promulgation- PER IGUH JSC.

JUSTICES:

S.M.A BELGORE

I.L KUTIGI

E.O. OGWUEGBU

U. MOHAMMED

A.I IGUH

APPELLANTS

A.S COKER

RESPONDENTS

ADEYEMI ADETAYO & OTHERS

BELGORE, JSC. (Delivering the Judgment by the Court):

The appellant occupies the ground floor flat on a monthly tenancy basis at the rate of N45.00 per month. He was served a Notice to Quit under Recovery of Premises Law. The flat is in the premises of 5/7 Ajasa Street, Lagos. The tenancy had expired on 26th December, 1982 and by a Notice of the “Owners” Intention to Apply to Recover possession” of the said flat “now being held over and detained” by the appellant, the appellant was notified that the respondents would apply for Form 8 under Recovery of Premises Law if notice to quit given to the appellant on 26th November, 1982 was not complied with by 17th February, 1983 they would apply to Magistrate Court to ask for court order to take possession.

The plaintiffs, seven in number, are brothers and sisters of the same father who originally owned the property, it devolved on them at his death. The flat consists of a living room and two bedrooms and appurtenances and as earlier said was on N45.00 monthly rent to the appellant since 1961. Apparently the appellant was a tenant in the house since the lifetime of the father of the respondents who died in 1967. The fourth respondent, Adewale Adetayo, was arriving from Bulgaria where he had gone to study and it was decided by the plaintiffs/respondents to accommodate him in the flat now in issue; this gave rise to notice of intention to recover the flat from the appellant.

When the 1st plaintiff, Adeyemi Adetayo (P.W.1) went to serve the Notice of Intention to Recover on the appellant he was violent and refused to accept it, pushing the 1st respondent in the process. The Notice was sent in the Despatch Book of Davis, Esqr., of counsel to respondents. Nonetheless the Notice was served. It was after this that on 9th February, 1983 Notice to Quit was served on him. He was rude and warned P.W.1 and others not to come to his floor or flat again. He threw the Quit Notice on the floor. At the time of the action, even though his stay by the monthly tenancy had expired, he was owing arrears of rent in the sum of N1,490.00, i.e. from March 1980 to December 1982. The defendant then became a nuisance on the premises. Gas escaped from his cooker on four occasions, and on one occasion the Fire Brigade had to be called to save the house from burning down; the incident caused stampede as the appellant was away from the flat when the gas leak occurred. He insulted the 7th respondent many times calling her a bush woman and threatened to “teach her a lesson,” and that her counsel, Mr. Davis, would be sent out of Nigeria because he was “a foreigner.” He kept on threatening he would kill P.W.1. He stacked heaps of planks in front of the block of flats and became a nuisance as it caused obstruction. The planks were there at the time P.W.1 was testifying in Magistrate Court. The door to the flat in question had to be forced open during gas leak and the gas cylinder was found to be leaking as the main valve was left open. Other act of nuisance was pouring of water on the children of the respondents in brazen assault.

To all these the only defence offered by the appellant was that he made several attempts to pay rents which were refused and that he finally paid the rent arrears into the court which solicitor to plaintiffs refused to collect.

The magistrate, in her judgment, gave possession to the plaintiffs and found that the plaintiffs consented to the flat being made available for the use of one of them about to return from Europe. She also found in nuisance as the act of the appellant in letting open the gas valve was also dangerous to the premises. She also made order for mesne profits. By his own evidence the appellant said he never paid any rent between 1977 and 1979 and that he volunteered to pay only after solicitor to the plaintiffs, Mr. Davis, spoke to him. He then testified inter alia as follows:

“I am sued for a sum of N1,490.00, but I told Mr. Davis to allow me to pay for the period he took over, but he refused. I have never asked for receipts from Mr. Davis or the Legal Trustees. I made a payment of N1,900.00 into the court in August, 1983 in the name of Mr. Davis and he refused to collect it.”

This evidence is a clear admission by appellant that he became a nuisance as a tenant, defaulting in payment of rents and not even paying for almost two years but scrambled, so to say, when faced with possibility of legal eviction to pay.

In our law on Recovery of Premises there is hardly any ambiguity in what a landlord can do in getting possession back from a defaulting or unfriendly tenant; so it is clear how possession can be recovered when the premises is required for use of the landlord or family. For monthly tenancy, one month’s notice is required, for yearly tenant six month’s notice is required. In other cases the notice required is that embodied in the tenancy agreement between the parties. But failure to pay rent as and when due and without any reasonable explanation for such default, or bringing on the premises things or creating on the premises situations that threaten not only the safety of premises and occupiers but render quiet occupation impossible the intention to recover must be served on the party followed by Notice to Quit to be decided by the court. Similarly when the premises is required for overriding convenience of the family Notice of intention to recover is sufficient to lead to recovery of the premises. All these remedies could be invoked individually or cumulatively if they do exist. The case of IRC v. Hinchy (supra) has no place in the clear words and spirit of Recovery of Premises Law Cap 118 Vol. 6 Laws of Lagos State 1973, and Rent Control Recovery of Residential Premises Edict of 1976.

The High Court and the Court of Appeal through which this case passed on appeal from the Magistrate Court cannot be faulted as the facts they relied upon for their various decisions are amply covered by the laws applicable. I find no merit in this appeal and the appellant for all the delay he caused in this case has been kindly treated by the respondents who even never opposed prayer for stay of execution when the appeal came to this court.

I dismiss the appeal as totally lacking in merit and affirm the decision of the Court of appeal. The appellant shall pay N1,000.00 as costs in this appeal to the respondents jointly and severally.

KUTIGI, JSC.

I agree with the judgment just read by my learned brother Belgore, JSC. The lower courts were right in their application of the law to the facts of the case. Their decisions are affirmed and the appeal dismissed with N1,000.00 costs against the appellant.

OGWUEGBU, JSC.

I had a preview of the judgment of my learned brother Belgore, JSC. and I am in full agreement that the appeal should be dismissed. The court below was right when it held that any of the plaintiffs can recover possession of the premises for use of any or some of their members in the absence of any opposition by any of them. I too dismiss the appeal and abide by the order as to costs made in the lead judgment.

MOHAMMED, JSC.

I entirely agree with the opinion of my learned brother, Belgore, JSC. in the judgment just read, that this appeal is totally lacking in merit. Recovery of Premises in Lagos State is governed by two legislations. The Recovery of Premises Law Cap. 118 of Laws of Lagos State, 1973, and the Rent Control and Recovery of Residential Premises Edict No. 9 of 1976 which was amended by the Rent Tribunals (Abolishing and Transfer of Functions) Law,1981. Under Edict No. 9 of 1976 both Magistrate and High Courts have been empowered to handle cases of recovery or ejection of any tenant from any premises under certain conditions. Those conditions have been specified in the second schedule of the Edict of 1976 as follows:

“A tribunal (now Magistrate’s Court) shall…….. have power, to make or give an order of ejectment for recovery of possession of any premises to which this Edict applies for ejectment of a tenant there from………. if (i) the premises are reasonably requited by the landlord for occupation for:-

(i) himself; or

(ii) any son or daughter of his over 18 years of age; or

(iii) his father or mother; ………..

By s.40 of the Edit “landlord” is defined as follows:-

“Landlord in relation to any premises means the person entitled to the immediate reversion of the premises or if the property therein is held in joint tenancy or tenancy in common, any of the persons entitled to the immediate reversion and includes:

(a) the attorney or agent of any such landlord; …………..”

The facts as given through the evidence, clearly shows that the title of the respondents who are the landlords of the appellant to the ground floor flat is not in dispute. The respondents established to the satisfaction of three lower courts that they want to recover the flat from the appellant in order to accommodate their brother, Adewale Adetayo, on his arrival from Bulgaria

The law, as I reproduced above, is quite clear that on such a request the landlord or landlords can recover the premises for the occupation of a member of their family as has been specified in schedule II to Edict of 1976.

Learned counsel for the appellant, Mr. Seyi Sowemimo, in his submission in support of this appeal, referred to the opinion of R.E. Meggary in his book on the Rents Act 1967 which reads thus:

“Two or more persons can together constitute the “Landlord” for this purpose if they are solely beneficially entitled to the reversion and the premises are requited as a residence for all of them or for a person who is a child or parent of both or all of them. It is otherwise if they require possession merely for one of themselves or for a parent or child of one of them or where the “Landlord” consists of three persons; only two of whom require the premises for their own occupation, even if the third is their mother and so require the premises for their occupation. These difficulties can often be avoided by a composite landlord granting a reversionary lease to the person for whom possession is required.”

Mr. Sowemimo thereafter argued that the definition of “Landlord” in S.40 of the Rent Control and Recovery of Residential Premises Law 1976, of Lagos State, does not help because it reads as follows:

“Landlord” in relation to any premises means the person entitled to the immediate reversion of the premises or if the property therein is held in joint tenancy or tenancy in common, any of the persons entitled to the immediate reversion.”

Unless Mr. Sowemimo wants to pretend no to have observed it, the provisions of schedule II of Edict of 1976 makes it abundantly clear that a landlord (or landlords) can recover premises for his occupation or the occupation of his or their children and parent. Meggary’s opinion, reproduced above, could be distinguished from the clear provision of schedule II of Edict of 1976. The learned counsel further argued that there was a lacuna in the provisions of schedule II of Edict of 1976 where the law refers to the landlord requiring occupation for “himself’. Counsel submitted that the sub-clause was capable of being interpreted to mean “themselves or anyone of them.” This again is a weak argument because under the Interpretation Act, Cap. 192, section 14(b), it has been provided that words in singular include the plural and words in the plural include the singular.

The learned justice of the Court of Appeal, Mr Ubaezonu, is quite correct therefore, to hold that any of the plaintiffs who are the landlords can recover the premises for the use or occupation of any of some of their members in the absence of opposition by any of them. There is no lacuna in schedule II to the Rent Control and Recovery of Residential Premises Edict No. 9 of Lagos State.

For these reasons and the fuller reasons given in the lead judgment I hereby dismiss this appeal. I also award N1,000 in favour of the respondents.

IGUH, JSC.

I have had the privilege of reading in advance, the judgment just delivered by my learned brother, Belgore, JSC. and I agree that this appeal is without merit and should be dismissed.

I desire however to make a few comments on the first issue only by way of amplification.

The facts that gave rise to this appeal have been fully set out in the lead judgment and no useful purpose will be served by my repeating them all over again. It suffices to state that the first issue for determination in this appeal as agreed to by the parties is –

“1. Whether several persons who are landlords in respect of one and the same premises can succeed on a claim for recovery of premises on the Ground of Personal Use by establishing, without more, the fact that one of them requires the premises for his personal use.”

The appellant’s submission in respect of issue 1 is that where several persons who are landlords claim recovery of possession of their premises or apartment on the ground of personal use, they must, to succeed, establish that they all require the premises or apartment for their joint use. In this regard, reliance was placed on the English decisions in Mclntyne and Another v. Hardcastle (1948) 1 All E.R. 696; Baker v. Lewis (1946) 2 All E.R. 59; Sharpe v. Nicholas (1945) 2 All E.R. 55 and the decisions of the High Court of Lagos State in Abudu v. Liasu (1976) 4 C.C.H.C.J. 1145. It was conceded that although these decisions were not binding on the court below, they nevertheless provided sufficient persuasive authorities for its guidance.

The respondents, for their part, submitted that it was as a result of the unduly rigid and inflexible interpretation placed on paragraph (h), schedule 1 to the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933 by the law courts in England that they were able to arrive at their rather controversial decisions. It is their contention that the decision in McIntye v. Hardcastle, supra, is entirely unrealistic contrary to natural justice and defies common sense. Attention was drawn to paragraph (i) of schedule 2 of the Rent Control and Recovery of Residential Premises Edict, 1976 of Lagos State. Under this law, a landlord can recover possession of any premises without proof of suitable alternative accommodation if, inter alia, the premises is required by the landlord for occupation for himself, his son or daughter above the age of 18 years or his father or mother. If a landlord or landlords can recover possession of premises for their sons, daughters, father or mother, ought they not to be able to recover possession when the premises are required for one of joint landlords, they queried. It is their submission that several landlords of a premises can succeed on a claim for recovery of possession of the premises on the ground of personal use by establishing that one of them requires the premises for his own personal use.

It is common ground that the premises in issue in the present case is the ground floor flat comprising of one sitting room, two bedrooms and appurtenances situate at 5/7 Ajasa Street, Lagos. There is abundant evidence, and it was nowhere controverted, that the said premises is in the joint ownership of the plaintiffs respondents. It is also not in dispute that the respondents are the landlords thereof and that the appellant was their tenant. The learned Chief Magistrate, at the end of trial, found, and this was affirmed by both the appellate High Court and the Court of Appeal, that appropriate statutory notices to quit and of seven days notice of intention to recover possession of the premises were duly served by the respondents to the appellant as required by law.

One of the grounds for which the plaintiffs sought recovery of possession of the premises in issue is personal use by one of the landlords, the 4th plaintiff, who was returning finally to Nigeria from Bulgaria after five years of absence. In this regard, P.W.1, Adeyemi Adetayo, the first plaintiff testified inter alia as follows:-

“In 1982, there was a meeting of the plaintiffs in respect of our brother, also a plaintiff in this case concerning his arrival from Bulgaria in order to provide accommodation for him. This our brother is the 4th plaintiff – Adewale Adetayo. It was decided that the 4th plaintiff should occupy the Ground Floor Flat. There was a Memorandum prepared to this effect. This is the Memorandum, tendered, no objection admitted and marked Exhibit “B.”.”

He was not cross-examined on the point and the learned trial Chief Magistrate after a close consideration of the evidence stated thus-

“On the ground of personal use, I find as of fact from the evidence of the 1st, 3rd and 4th plaintiffs who testified before me and in accordance with Exhibit “B” signed by the plaintiffs, that it was with their consent and wishes that the 4th plaintiff should occupy the Ground floor flat of the said premises.”

A little later in her judgment, the learned Chief Magistrate observed –

“I also find as of fact from the evidence of the plaintiffs that the 4th plaintiff reasonably requires the said premises for personal use and the onus of proving greater hardship has not been discharged by the defendant from the facts placed before me. I therefore, find for the plaintiffs on the ground of personal use as well.”

The above findings were, rightly in my view; affirmed both by the appellate High Court and the Court of Appeal. In the words of the appellate High Court presided over by Agoro, J.,

“……. there could be no doubt from the oral testimony of Mr. Adeyerni Adetayo (P.W.1) and Mrs. Elizabeth Adeyemi Shadare (Nee Adetayo) (P.W.3) that at a family meeting attended by the plaintiffs, except the 4th plaintiff who was away to Bulgaria, it was decided that the 4th plaintiff should occupy the Ground

Floor Flat at Nos. 5/7 Ajasa Street, Lagos. I am satisfied that the wishes of the other plaintiffs have been ascertained regarding the use of the said Flat by Mr. Adewale Adetayo (4th plaintiff). On the question of hardship, there was evidence by the 4th plaintiff himself which the learned trial Chief Magistrate accepted that the said Flat was required to settle Mr. Adewale Adetayo who returned from Bulgaria sometime in 1983. He now resides with his sister at Satellite Town, an arrangement which Mr. Adewale Adetayo said was very inconvenient for him.

Indeed, he was forced to put off his marriage because of his accommodation problems in Lagos. I am, therefore, satisfied that the learned Chief Magistrate was quite justified when she said that the balance of convenience was with the plaintiffs as against the defendant who failed to establish that he would suffer greater hardship. See: Schedule 11 paragraph (1) to Act No.9 of 1976. I am, therefore, satisfied that the learned trial Chief Magistrate was justified in her finding of fact that the 4th plaintiff reasonably required the said premises for his personal use.”

In the same vein, this court will no interfere with concurrent findings of facts made by the courts below where there is sufficient evidence in support of such findings and where there is no substantial error apparent on the record of proceedings such as some miscarriage of justice or violation of some principle of law and procedure. Where, however, such findings are shown to be perverse or patently erroneous and that a miscarriage of justice will result if they are allowed to remain, this court will interfere. See Chinwendu v. Mbamali (1980) 3-4 S.C. 31 at 75; Lamai v. Orbih (1980) 5-7 S.C. 28; Woluchem v. Gudi (1981) 5 S.C. 291 at 326; Lokoyi v. Olojo (1983) 2 SCNLR 127 at 131; Igwego v. Ezeugo (1992) 6 NWLR (Pt.249) 561 at 585 etc. As I have already observed, the findings in issue are fully supported by evidence before the court and they are neither perverse nor patently erroneous and I have no reason to disturb them.

Reverting now to the legal issue under consideration, the appellant has cited and relied on a number of English decisions in support of his contention. It is necessary to point out that those foreign decisions would appear to have been based on the provisions of the Rent and Mortgage Interest Restriction (Amendment) Act, 1933 of England. It is therefore right to assume that the Interpretation of the provisions of that Act in issue was resolved having regard to the intention of the legislature by its enactment and the peculiar social and other circumstances prevailing at the time of its promulgation. At all events, those decisions are strictly speaking not binding on the court below and I think Ubaezonu, JCA., who delivered the lead judgment with which Kolawole and Kalgo, JJCA, agreed in the present appeal was quite right when he found himself unable to be bound by them. I also agree with the Court of Appeal’s treatment of the Lagos High Court decisions cited before it in apparent support of the appellant’s contention.

In the Abudu Wahab case, de-Lestang, CJ, followed McIntyne case (supra) in its entirety, holding that “where there are more than one person constituting the landlord, they cannot bring themselves within paragraph (h) of First Schedule to the Increase of Rent (Restriction) Ordinance unless the premises are required for occupation by all of them.” The Court of Appeal was unable to accept this proposition as, quite rightly, nowhere has the Statute made any such provision. With profound respect to the learned Chief Justice and for other reasons which I will presently give, I too, find myself unable to endorse this decision of the High Court However, in the Abudu v. Liasu case, supra, Adefarasin, C.J. refused to order possession in the absence of evidence as to the wishes of the other joint landlords.

The laws governing the recovery of possession of premises in Lagos State at all material times are: The Recovery of Premises Law, Cap. 118, Vol. 6, Laws of the Lagos State of Nigeria, 1973 and the Rent Control and Recovery of Residential Premises Edict No.9 of 1976 as amended by the Rent Tribunals (Abolition and Transfer of Functions) Law 1981. Section 25(1) (a) of Edict No. 9 of 1976 confers jurisdiction on the court to make an order for recovery of possession in respect of premises under conditions specified in the Second Schedule thereto. Under paragraph (i) of Schedule II of the said Edict, a landlord can recover possession of any premises to which the Edict applies without proof of suitable alternative accommodation if the premises are reasonably required by the landlord for occupation for.

“(i) himself, or

(ii) any son or daughter of his over 18 years of age; or

(iii) his father or mother……”

There are also the provisions of section 40 of Edict No.9 which defines the term “landlord” as follows-

(a) the attorney or agent of any such landlord…..”

There can be no doubt that under the above sections of the Edict, a landlord can recover possession of any premises to which the Edict applies if the premises are reasonably required by the landlord for occupation for himself, any or his sons or daughters over 18 years of age of his father or mother.

In the present case, the seven plaintiffs are admittedly the lawful owners and landlords of the premises in issue. It cannot therefore be in dispute that under the said sections of Edict No.9 of 1976, the plaintiffs may recover possession of the premises where, inter alia, it is required for occupation for any of their sons, daughters, father or mother. And I ask myself why if there are two or more landlords, they will be able to recover the premises for the personal use of the son, daughter, father or mother of one of them but cannot recover the same for the personal use of one of the landlords. I have sought in vain and can find no sensible answer to this question. Accordingly, I am left with no other alternative than to hold that the correct position of the law applicable in Lagos State is that if it is the wish of the landlords that their premises should be recovered for the use of one or more only of their number, the landlords are entitled to recover the premises in question. I cannot accept that no order for recovery of possession can be made if the premises is required for the use of only one of several landlords of the premises. I will therefore resolve issue 1 against the appellant.

It is for the above and the more elaborate reasons contained in the lead judgment of my learned brother that I, too, dismiss this appeal. I abide by the order for costs therein made.

Appeal dismissed.

COUNSELS

Seyi Sowemimo for the Appellant.

Respondents absent and unrepresented