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MRS. AYO JOHNSON
16th April, 1971
SUIT NO. S.C. 294/1968.
CWLR (1971) 10
CHILDREN AND WOMEN LAW: Elderly Women and Business – Possession of Market Stall – Failure to comply with statutory requirement as to monthly stallage payment in advance leading to eviction from a shop held for over 25 years – Effect
Women and Justice Administration – Morality and Court Orders – Where strict interpretation of clear statutory provisions may lead to seemingly harsh outcomes – Duty of Court thereto
BEFORE THEIR LORDSHIPS:
LEWIS, UDOMA, SOWEMIMO, JJ.S.C.
Smith for the Appellants.
Osisanya for the Respondent.
REAL ESTATE/LAND LAW – LANDLORD AND TENANT:- Statutory tenancy/stallage – Rents prescribed to be payable in advance – Ejection arising from failure to do so in one month after 25 years of compliance – Whether ground for ejection – Rights of licensee under Lagos Market Bye-Laws – When a person is deemed to have come lawfully into possession of a stallage
ADMINISTRATIVE LAW: Decision made in full compliance with statutory law – Whether moral considerations can be used to upstage it – ejection of elderly licensee from shop after 20 years of compliance because of failure to pay one month in stallage in advance – How treated
PRACTICE AND PROCEDURE – COURT:- Whether can make orders which cannot be enforced
SOWEMIMO, J.S.C. (delivering the judgement of the Court):-
In Suit No. LD/354/67, which was tried at the High Court of Lagos State, “the plaintiffs claims from the defendants jointly and severally are as follows:-
“1. N600 being special and general damages for the wrongful ejectment of the plaintiff by the defendants from the market stall No. A3/24, Obada Market, Sabo, Yaba, Lagos, committed on the 23rd February, 1967 and thereafter continued.
The learned trial judge, Adedipe J., in his judgement ordered:
(a) N100 as general damages, against the 1st defendant/appellant with 50 guineas costs;
(b) the 2nd defendant should return to the plaintiff’s stall, all the articles removed from the stall, as early as possible;
(c) injunction restraining the two defendants/appellants from “ejecting the plaintiff from her stall, No. A3/24”;
(d) the present occupier one Mrs. Mary Tifase, who was not a party to the suit, to vacate the stall “forthwith”; and
(e) all rents paid by the plaintiff to the Rents Assessment Board to be paid over to the 2nd defendant as stallages due from plaintiff to 2nd defendant from the date of the judgement which was 8th day of July, 1968.
The two defendants have appealed against the judgement. Five grounds of appeal were filed and argued before us on behalf of the two appellants.
The case for the plaintiff in the lower court was that she was allocated a market stall by 2nd defendant about 25 years ago and the “rent” in 1967 was 15s. per month payable in advance. The plaintiff in her statement of claim averred that 1st defendant who was a servant of the 2nd defendant was the market master, and by virtue of that office collected `rents’ or stall fees from the plaintiff and other occupiers of stalls in Obada Market, Sabo, Lagos. In paragraphs 4 to 8 the plaintiff averred as follows:-
“4. For the month of January, 1967 the plaintiff made every effort to get the defendant accept the rent for that month but for reasons best known to the 1st defendant he persistently concealed his whereabouts from the plaintiff.
(a) returned the postal order to the plaintiff without any explanation; and
(b) also sent along with the postal order, but under separate cover, a letter dated 16th February, 1967 notifying the plaintiff of re-allocation of the stall to another person.
In reply to the above averments the defendants in paragraphs 4 to 6 of their statement of defence averred:-
“4. The defendants deny paragraph 4 of the statement of claim but aver that the 1st defendant made himself available at the market at all material times for the collection of stallages.
The evidence of the plaintiff, which the learned trial judge believed, is that sometime in January 1967 she had occasion to travel to Ibadan, and requested one Lucy, to whom she gave the monthly stallage fee of 15s. for January 1967, to pay to the 1st defendant. On her return on 6th January 1967, she was told certain things as a consequence of which she went to the house of the 1st defendant. On plaintiff’s enquiry the 1st defendant told her that he was not aware that the stall was hers. There was, however, no evidence of the offer of the “rent” by plaintiff to 1st defendant on this occasion. There was the allegation that 1st defendant demanded `kola’ from plaintiff, and suggested that he could assist her in getting her stall rented at a higher fee which she rejected. It was also alleged that on a date in January 1967, when the plaintiff went to see the 1st defendant to pay her rent for that month, which was then in arrears, it was rejected. With regard to the latter allegation about offer and rejection, the learned trial judge made no finding one way or the other, despite the fact that the 1st defendant had denied that there was any offer of payment. It is not in dispute however that up till 10th February, 1967 (exh. B-B1), the rent for January 1967 had still not been paid, although the “rents” for the subsequent months from February 1967 was paid to the Rent Assessment Board. The plaintiff herself admitted that her stall was declared vacant since February 1967, and re-allocated to one Mrs. Tifase.
What has to be decided is whether the plaintiff had a legal right to be in the stall as a licensee under the Lagos Market By-Laws. By-law 4 reads:-
“All tolls and stallages shall be paid quarterly, half yearly or yearly in advance at the office of the town Clerk, Lagos Town Council, or in such other manner or to such person as the Council may direct, and any person selling food or merchandise or carrying on his trade or stalling in a market without having first paid such tolls or stallages may be ejected as a trespasser, and shall be liable to imprisonment for ten days or, to a fine of ten shillings, and to a further fine of ten shillings for every day beyond the first day during which he continues the offence.”
On the plaintiff’s evidence as supported by the receipts which she tendered, previous tolls or stallages up to December 1966 were paid monthly-reference exhibits A to A4. Since there is no provision in the by-law just quoted, for payment of stallage in any such manner, other than quarterly, half yearly or yearly in advance, it must be held that under that by-law the plaintiff had been paying her stallages monthly, and that the 2nd defendant had so approved of such payments. By Government Notice No. 266 of 1958 the fees, tolls and stallages were fixed on monthly basis as from the 1st day of April, 1959 as at pages 1068 and 1069 in Vol. 8 of Cap. 93 of the Laws of the Federation of Nigeria and Lagos, 1958. The concluding portion of that Notice reads:-
“All fees, tolls and stallages shall be payable in advance.”
Since the plaintiff had not paid either by way of fees or tolls or stallages for the month of January 1967, in advance she has contravened by-law 4 and therefore she was liable to be ejected as a trespasser.
The learned trial judge in his judgement said inter alia:-
“If even the 1st defendant had declared the stall vacant under by-law 4, on the evidence before me I would say that he acted mala fide. Here is an elderly woman who had been in possession of a stall for 25 years, and merely because she was a few days late in the payment of the stallage fees, and did not give ‘kola’, the 1st defendant maliciously took her stall from her, and re-allocated it to another person. All within a few days. . .. On the evidence before me. I find that the plaintiff was wrongly ejected from her stall No. A3/24, at Obada Market, Sabo, Yaba, by the 1st defendant.”
With respect, the learned trial judge was in error because by-law 4 is quite specific that failure to pay a stallage in advance makes the holder of a stall liable to be ejected as a trespasser, and we do not see what law or by-law the learned trial judge had relied upon for his conclusion, and there is no other provision in the Lagos Market By-Laws dealing with this matter. Whatever moral claims the plaintiff may have had to be allowed to continue to occupy the stall in question after having done so for 25 years, we can but be concerned with the legal rights. The finding that the 1st defendant acted mala fide in declaring the stall vacant because the plaintiff was in arrears and was therefore wrongful is based upon a misconception as no question of mala fides can arise as to whether by-law 4 was or was not in fact complied with when it was on Mr. Osisanya’s own concession only in January that the fee for that month was offered by or on behalf of the plaintiff so ipso facto that was in arrears for the month of January when the plaintiff was in actual occupation of the stall. We therefore hold that on the evidence before the learned trial judge and on the provision of by-law 4, the plaintiff was properly and lawfully ejected from her stall.
[…defendant alone on the basis that the 1st defendant had wrongfully ejected the plaintiff. Since we have held that the learned trial judge was in error in holding that she was “wrongly ejected”, then the award of general damages must be set aside. There was the order also that the 2nd defendant should return to the plaintiff all the articles removed from the stall. We do not know under what item of claim this order was based, and the learned trial judge did not, as pleaded in paragraph 9 of the statement of claim, hold that the articles mentioned therein were in the possession of the 2nd defendant. As a matter of fact, he made no award in respect of the special damages which the plaintiff claimed under this paragraph of the statement of claim.
Although the plaintiff had been ejected from the stall which is the subject matter of the claim since the 23rd February, 1967, the learned trial judge in his judgement on the 8th July, 1968 made an order restraining the two defendants from ejecting the plaintiff from her stall. We are at a loss as to how this order is intended to be carried out. We are in no doubt, whatsoever, that if the learned trial judge had properly considered that the plaintiff had been rightly and lawfully ejected, this order would not have been made as it is incapable of performance. There is also the order of the learned trial judge that the present occupier, one Mary Tifase who had been in possession since February 1967, should vacate the stall forthwith. Although she was not a party to the claim, the learned trial judge was in error to have so ordered as her occupation of the stall was lawful. She was lawfully put in possession of the stall, and had not committed any breach of by-law 4. She is entitled to remain in possession of the stall.
With regard to the order that all rents paid by the plaintiff to the Rent Assessment Board should be paid over to the 2nd defendant, the learned trial judge did not state under what law the order was made because the plaintiff was not in possession for the period for which she alleged she paid rents to the Rent Assessment Board. We are not unaware that the order said that the rent was to be regarded as that due from the date of the judgement, which is the 8th July, 1968, we do not see under what provision of the by-law this order was made.
We wish to add that although the plaintiff had at certain times paid her ‘rent’ (-actually fees-) in arrears exhibits A to A4 refers, there is no provision in the Lagos Market By-Laws allowing any person to contract out of it, and in respect of fees, stallages and tolls it is clearly stated both in by-law 4 and the Government Notice No. 266 of 1958, that all fees, tolls, and stallages shall be payable in advance.
The appeal will therefore be allowed. The judgement of the learned trial judge, and the orders made thereunder together with the award of 50 guineas costs are hereby set aside. In substitution thereof we made the following orders:-