3PLR – ABOABA V. KALAIWO

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

ABOABA

V.

KALAIWO

HIGH COURT OF LAGOS,

LD/46A/61

27th October, 1961

LN-e-LR/1961/1  (HC-L)

BEFORE:

DE LESTANG, J.

BETWEEN

MUSTAPHA ABOABA

JIMOH SHOTUNWA

KAFARU OSHUGBO

AND

1. B. KALAIWO

REPRESENTATION

Ogunsanya for the Plaintiff.

Noibe for the Respondent.

MAIN ISSUES

REAL ESTATE: Landlord and Tenant-Rent Restriction Ordinance, Cap. 186 – Claim for repossession on ground of Abatement Notice for nuisance – Requirement that Landlord must prove impossibility of compliance without ejectment of tenant – Balance of Hardship

TORT: Nuisance – Claim for possession on ground of Abatement Notice-Requirement that Landlord must prove impossibility of compliance without ejectment of tenant-Balance of Hardship.

PRACTICE AND PROCEDURE: Practice and Procedure-Order for retrial; reason: absence of finding on important issue.

MAIN JUDGMENT

DE LESTANG, J.:-

This is a joint appeal by three tenants from a decision of the Magistrate’s Court, Lagos, in two consolidated suits, ordering them to give up possession of the premises to which the Rent Restriction Ordinance applies.

There were two distinct tenancies-appellant 1 MUSTAPHA ABOABA being a tenant of a portion of the premises for which he paid £2-10s per month rent, while appellants 2 and 3, JIMOH SHOTUNWA and KAFARU OSHUGBO, being joint tenants at a rent of £1-10s per month of another portion separated from the former by means of a wooden partition.

The respondent landlord sought possession of both portions on four grounds:

1. that the appellants had been guilty of conduct which is a nuisance or annoyance to adjoining occupiers;
2. that the premises require substantial repairs on account of which it was necessary for the tenants to vacate possession;
3. that the premises are reasonably required by the landlord for occupation for himself, and
4. that the premises are the subject of an abatement notice, and that compliance with the terms of such notice is only possible through the ejectment of the tenants.

The learned Magistrate in a judgment, which I can only describe as unsatisfactory, after dealing with the evidence, made the following findings:

After examining the evidence on both sides and weighed the hardship on each side I find that the balance of hardship is on the side of the Plaintiff and consider it reasonable to grant him POSSESSION to enable him to comply with the requirements of the Health Office as already drawn in the approved L.T.C. plan Exhibit C made by him and to enable him to put the premises to a better use as a shop and not partly a shop and partly a dormitory as it is now being used.

I therefore give judgment for Plaintiff for possession.

It will, firstly, be noticed that the finding does not deal with the claim for possession on the ground of nuisance at all. There was evidence that the tenants worked on their sewing machines all very late in the night, and that the landlord claimed that he was disturbed by the noise. This, however, is not sufficient to constitute nuisance and, in any case, before an order for possession can be made on such a ground, it is necessary for the Court to be satisfied that it is reasonable to make the order.

Secondly, there was no evidence whatever to support ground 2, that the premises required substantial repairs.

Thirdly, it is only on the third ground-personal use-that the question of greater hardship can arise at all, and it is conceded by Mr. NOIBE for the respondent that there was no evidence to support that ground. It follows, therefore, that the reference in the finding to the question of balance of hardship must have been due to a misconception on the pan of the learned Magistrate.

The position being as I have indicated, it would appear that the learned Magistrate based his order on ground 4. Before an order for possession can be made on such a ground, it must be shown that compliance with the terms of the Abatement Notice is only possible through the ejectment of the tenant. There is, in the present case, no finding on this important issue, and the evidence is such that it is not open for this Court to make any such finding.

This appeal is accordingly allowed and the decision of the Court below set aside, together with the order for costs. Having regard to the defects in the judgment, I consider this a proper case in which to order a retrial. There will accordingly be a retrial before another Magistrate. The costs of the first trial, and of this appeal which I assess at Seven Guineas (not including disbursements), will follow the result of the retrial.

Appeal allowed. Retrial ordered.