ADEMOLA A. ODUNSI & ANOR V. DR. STEPHEN R. ABEKE
In The Court of Appeal of Nigeria
On Monday, the 2nd day of December, 2002
GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria
SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
ADEMOLA A. ODUNSI
SKYLINE HOTEL LTD. Appellant(s)
- STEPHEN R. ABEKE Respondent(s)
- A. OGUNTADE, J.C.A. (Delivering the Leading Judgment): The respondent (hereinafter referred to as the plaintiff) at the Lagos High Court in suit No. LD/1940/96 claimed against the appellant (Hereinafter referred to as either defendants or 1st & 2nd defendants) for the following reliefs:
“1. An order of possession of that property known, addressed and described as No. 4 Oyewunmi Close, Surulere, Lagos, which property is presently being held over and detained by the defendants in this suit.
2. An order directing the defendants to pay the sum of N600, 000.00 (Six hundred thousand naira) as mesne profits on the said property in dispute from the 1st of April, 1992 to the 1st of April, 1976 at the rate of N150, 000.00 per annum and thereafter at the said rate pro rate up to and after the judgment of this court until vacant possession is granted.”
The parties filed and exchanged pleadings after which the suit was heard by Rhodes-Vivour J. On 24/6/98, the learned trial judge in his judgment granted the plaintiff’s claims. The defendants were dissatisfied. They brought an appeal against the judgment on five grounds of appeal. The issues formulated for determination are these:
1. Whether the relationship of landlord and tenant exist between the parties.
2. Whether the tenancy had been validly terminated.
3. Whether an order for mesne profit is justifiable in the circumstances.
The respondent adopted the above as the issues arising for determination. All the three issues for determination dovetail into each other and can be conveniently taken together. I intend to so take them. It is necessary that/first examine closely the pleadings of parties upon which the case was heard and the evidence called in support thereof.
In paragraphs 5 to 11 of the statement of claim the plaintiff averred:
“5. The Plaintiff avers that he became the beneficial owner of the said property in dispute, when sometime in March 1992, he paid the sum of N1.1m (One Million One Hundred Thousand Naira) to the former owners of the property the estate of Michael Abiodun Joseph through its only surviving executors one Chief Raphael Ajaja Fashola.
6. The Plaintiff avers that soon after the said purchase the Defendant through the 1st Defendant challenged his authority and ownership of the property in dispute which challenge was resolved by Adeyinka J. in suit No. LD/3626/93 in which he declared that the Plaintiff was the beneficial owner of the property in dispute and was entitled to recover possession of some from the Defendants on service of the relevant statutory notices.
7. The Plaintiff avers that the Defendants since March 1992 have not paid any rents on the property in dispute to him or to any other person and had not paid any rents either prior to that time to his predecessor-in-title.
The Plaintiff avers that by Notices dated the 22nd day of Nay 1996, one addressed to the 1st Defendant and another to the 2nd Defendant the Plaintiff through his Solicitors, having first instructed them to so do, notified the Defendants of his intention to apply to recover possession of the property in dispute that is 4, Oyewunmi Close, Surulere, Lagos of his intention to apply to the High Courts for a summons to eject any person therefrom should they fail to surrender possession of the property on or before the 31st day of May 1996.
9. The plaintiff avers that as at the time of filing this suit, the Defendants have continued to hold over the said property in dispute thereby depriving the Plaintiff of its use.
10. The Plaintiff avers that the current annual rental value of the property is N150, 000 (One Hundred and fifty Thousand Naira) and that not only is the Plaintiff’s refusal to pay any form of rents or hand over the property detrimental to the Plaintiff’s interest. Plaintiff has continued to, expend its resources on rents in an alternative property.
11. The Plaintiff shall at the trial of this suit rely on all the relevant receipts, documents, statutory notices; Court processes especially those in suit No. LD/3626/93 including the Judgment the Court therein.
The defendants in paragraphs 3 to 7 of their Statement of defence averred:
“3. The Defendants admit paragraph 3 of the Statement of Claim only to the extent that the 2nd Defendant was granted a lease of the property in question but deny that the said lease has been determined.
4. The Defendants deny paragraph 4 of the Statement of Claim and would contend that their tenancy has not been terminated nor have they been served the relevant notices.
5. That with regards to paragraphs 5 and 6 of the Statement of Claim the Defendants have appealed the Judgment of Adeyinka J. mentioned therein and that the matter is now pending in the Court of Appeal.
6. The Defendants admit as alleged in paragraph 7 of the Statement of Claim that they have not paid any rent to the Plaintiff since 1992 because there is a dispute on the property which is also the subject of appeal as per paragraph 5 above but deny that any of the rents prior to the dispute is outstanding.
7. The Defendants admit receiving the notices dated 22nd May 1996 pleaded in paragraph 8 of the Statement of Claim but will contend that they were not properly served as required by law.”
It is important to observe here that the plaintiff became owner of the property in respect of which the defendants were sued for possession in 1992 by purchase from the previous owners. The defendants as the plaintiff pleaded challenged plaintiff’s ownership of the property. However, ownership was resolved in favour of the plaintiff in suit No. LD/3626/93 by Adeyinka J in a judgment. The defendants agreed with all these in their statement of defence save that they asserted that the judgment of Adeyinka J was being challenged on appeal.
In his evidence at the trial the plaintiff testified at page 9 thus:
“After purchase I did not move into the premises because the defendant refused to vacate the property.”
And at page 11, plaintiff testified:
“His defence is that he has agreement with one of Estate Agent Chief Adepegba that he would be given first choice to buy but when Chief Adepegba appeared he said there was no such arrangement. There was evidence that he was given first choice but he did not pay the amount family asked for. He offered the family N800, 000. I bought for N1.1m. His offer was not accepted.”
The defendants opened their defence on 16/1/93. 1st defendant testified at page 15 thus:
“I am also the Managing Director of the 2nd defendant Company. The 2nd defendant took lease of the property in 1992. The lease has been tendered as exhibit F. In the course of the lease the 2nd defendant partly developed the property and the executors agreed with 2nd defendant that when the property is to be sold the 2nd defendant would be given first choice. When 2nd defendant took lease of the property copy of Will of deceased owner was shown.”
And at page 20 of the record, the 1st defendant continued:
“It is now used as Residential premises. There is a main block in which my wife and myself reside. There is another block in which other members of my family stay. Both are storey buildings. I am not a tenant in the premises. Yes I am the owner. I do not have title documents to the property. I am in possession of the premises. The tenancy agreement is exhibit ‘F’. Exhibit ‘F’ is for fixed period. It expired in 1987. Since it expired in 1987 I have paid rent. I paid the rent to Mr. Abegunde (the executor of the estate). I paid N5, 000.00 annually. I paid yearly to Mr. Abegunde. I stopped paying in 1992. Between 1992 and now I have not paid any rent. Mr. Abegunde gave me receipt for rent but I do not have them here. Mr. Abegunde is dead now. I think he died in December, 1992.”
When the evidence of the parties is related to each and read along with the facts pleaded by the plaintiff and admitted by the defendants on the pleadings, the picture that emerges may be stated thus:
The defendants became tenants on the premises vide the agreement exhibit ‘F’ in 1982. The tenancy was for a fixed term of five years. The tenancy expired in 1987. It was not renewed formally but the defendants kept paying the agreed annual rents up to 1991. The defendants stopped paying in 1992. The defendants reached agreement with the owners that when the property was to be sold they would be given the first choice to purchase. According to the plaintiff, the defendants were indeed given the first option to purchase but they did not come up with the purchase price demanded by the owners.
The plaintiff then bought the property in 1992. The defendants were at the time the plaintiff bought the property in physical possession as tenants to the previous owners. An ownership dispute ensued between the plaintiff and the defendants as to whom between them had validly acquired title to the property from the previous owners. The plaintiff won before the High Court. The defendant appealed to this court. It is important to bear in mind that the defendant’s resistance to the plaintiff’s title was based on an agreement which the defendant claimed to have reached with the agents of the previous owners. The defendants never challenged the title of the previous owners; and since it was the title of the previous owners that the plaintiff acquired, the defendants inferentially could not be seen as challenging the title of his landlord.
The learned authors of Woodfall Landlord and tenant 27th edition para. 29 at page 18 write:
“Tenant estopped from disputing landlord’s title. It is one of the first principles of the law of estoppel as applied to relations between landlord and tenant that a tenant is estopped from disputing the title of his landlord. This applies to written and oral tenancy agreement as well as to leases under seal. Thus a lessee cannot dispute his lessor’s title by sitting up an adverse title whilst retaining possession.
The defendants on the evidence never set up an adverse title against the plaintiff. If anything, the defendants only acknowledged the title which the plaintiff acquired from the previous owners and wanted that title for themselves. It is a contradiction in terms to say that the defendants who were contending that their former landlords who were the previous owners sold to them and not the plaintiff to say that they were challenging the same title which the plaintiff claimed to have acquired from the same source. The judgment of Adayinka J would appear to have resolved the issue of title as between the plaintiff and the defendants until it is reversed by a higher court.
It was the reasoning of the lower Court that the defendants were not entitled to a notice determining the tenancy because they had challenged the title of the plaintiff. The plaintiff’s counsel would appear to have followed the same reasoning when in his brief he relied on a passage from Woodfall Landlord and Tenant 25th edition at page 1072 where the authored write:
“A disclaimer by a tenant from year to year of the title of his landlord or of the person for the time being entitled to immediate reversion as assignee of the landlord will operate as a waiver by the tenant of the usual notice to quit and will in effect determine the tenancy of the election of the landlord of other person for “a notice to quit is only acquisite where a tenancy is admitted on both sides and if a defendant denies tenancy there can be no necessity to end what he says has no existence.”
I think that the above passage is inappropriate in the circumstances of this case. The plaintiff did not put the defendants in possession of the property as tenants. The defendants were tenants of the previous owners into whose shoes the plaintiff stepped by succession having purchased the interest of the previous owners. Under Section 22(1)(e) of Rent Control and Recovery of Presidential Premises Law, a landlord has a duty to prove his title if such title has accrued since the letting of the premises. A defendant who says that a new owner is not his landlord is only daring him to show that the Law by Section 22(1) (f) in any case requires the Landlord to prove. In Olorunkoye v. Rokosu & Anor 20 N.L.R 118 at 119 De Comarmond S.P.J stated the true legal position between a landlord tenant on the denial of the former’s title thus:
“The rule that a tenant cannot dispute his landlord’s title applies only to the title of the landlord who let him in. This is why; I think Section 19(1) (e) lies down that the landlord must prove his title where the title has accrued since the letting of the premises.”
As the title of the plaintiff accrued to him in this case after the letting of the premises to the defendants, there was no basis for the lower Court to have concluded that the defendants denied the title of the plaintiff.
Another reason relied upon for not giving the defendants a notice of determination of the tenancy was that the tenancy of the defendants with the previous landlords had expired. The question whether or not the tenancy of the defendants had expired by effluxion of time deserves to be examined closely. On the undisputed evidence, the defendants became tenants to the previous landlords in 1982 vide exhibit ‘F’. This was for a fixed term of five years. D.W.1 however testified and his evidence was unchallenged that when the tenancy expired in 1987, they continued to pay the yearly rent of N5, 000.00 up to 1991.
When a tenancy for fixed term of years expires by effluxion of time and the landlord continues to accept rents from the tenant yearly, it will be implied that parties have agreed to convert their tenancy into a yearly one determinable by the length of notice as prescribed by law. At the time the plaintiff bought the property in 1992, the defendant’s tenancy had been converted from one for a fixed term to a tenancy from year to year. Under Section 15(1)(d) of the Rent Control and Recovery of Presidential Premises Law Cap 167, Laws of Lagos State 1994, the defendants were entitled to half a year’s notice to determine their tenancy.
The defendants have also contended that the award of N150, 000.00 per annum as mesne profit was wrong. Has the plaintiffs entitled to mesne profits in the circumstances? In Felix O. Osawaru v. Simeon O. Ezeiruka (1978) 6/7 S.C 135 at 139 and 140 the Supreme Court explained the nature of an action for mesne profits thus:
In an arrears of rent claim the tenant is deemed to be lawfully and validly in possession, but is owing rent. In such a claim for arrears of rent the landlord is not challenging the validity of the continued occupation of the premises by the tenant; indeed, he concedes that the tenant is validly and legally in possession. But in a claim for mesne profits the landlord by implication is challenging the continued occupation of the premises by the tenant whom he now regards as a trespasser, and is therefore claiming damages which he has suffered through being out of possession of the premises. Mesne profits being, therefore, damages for trespass can be claimed from the date when the defendant ceased to hold the premises as a tenant and became a trespasser. (See Butterworth’s Words and Phrases Legally Defined, 2nd Edition P.251).
The word “mesne” was derived from the Latin word “Medius” meaning middle, intervening or intermediate (see Eari Jowitt’s: The Dictionary of English Law, 1959 Edition p. 1167). And so a landlord in claiming for “mesne profits” is claiming for the profits intermediate from the date the tenant ought to have given up possession and the date he actually gives up procession. It is therefore damages for trespass the measure of which is the amount the tenant had been paying as rent for the corresponding period when he was lawfully in occupation as a tenant. Discussing “mense profits” in Bramwell v. Bramwell (1942)1 ALL E.R. 137 at 138. Goddard, L.J., observed:
“An action of ejectment was a personal action and could only sound in damages. Then it became a mixed action in which not only damages but the property itself could be recovered, and it is preserved now, in the action brought in the High Court, and, I think, in the county court, because a claim for mesne profits can be joined with an action for the recovery of the action for the recovery of the land, and mesne profits is only “another term for damages for trespass, damages which arise from the particular relationship of landlord and tenant.”
This view of the proper meaning of mesne profits was accepted by this court in K. Nwosu v. J. Otunola (1974) 1 All N.L.R 533. At p. 539 the court observed that:
“Chief Williams asked the appellant be grunted, in the alternative, damages (i.e. mesne profits) and an injunction.”
It would follows from the foregoing that in instant appeal the respondent could legally claim for mesne profits as he did “from September 1970″ when the tenancy had been determined by a legal notice to quit.”
Now as the plaintiff never determined the tenancy between him and the defendants, he could not be entitled to mesne profits. The defendants continued to remain plaintiff’s tenants under the rent of N5, 000.00 yearly. The lower court ought to have refused the claim for mesne profit.
Lastly is the point raised by the defendants that as only the 2nd defendant was the tenant to the previous owners, the seven days Notice of Intention issued to the parties was invalid. I do not need to consider this point again in view of the larger issue I have decided in favour of the defendants that the tenancy of the defendants was not determined as required by law. I have also found that the relationship of landlord and tenant exists between the parties and that the plaintiff was not entitled to mesne profit.
This appeal succeeds. The judgment by Rhodes – Vivour J given on 24/6/98 is set aside. In its place I make an order dismissing the plaintiff’s claims in their totality. There will be N6, 500.00 costs in favour of the defendants/appellants.
SULEIMAN GALADIMA, J.C.A.: I have read in advance a draft of lead judgment just delivered by my learned brother, OGUNTADE, JCA.
The issues raised by the Appellants were meticulously considered. The main issue decided in favour of the Appellants is that their tenancy was not determined in accordance with the law. I do not see how the Respondent can be entitled to mesne profit when it is found that there is still in existence the landlord/tenancy relationship between the parties.
For the more detailed reasoning leading to the conclusion in the lead judgment, I also agree that this appeal succeeds and abide by the costs as assessed.
MUSA DATTIJO MUHAMMAD, J.C.A.: I had a preview of the lead judgment of my learned brother Oguntade JCA and I agree with him that the Appeal has merit and it be and is hereby allowed. I make the same order as to cost as made in the lead judgment.
Appellant a Legal Practitioner in personFor Appellant
Mrs. H. A. Balogun with Mr. O. IdemudiaFor Respondent