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10TH AUGUST, 1955

3PLR/1955/14 (SC)










Ajose-Adeogun for plaintiff.



REAL ESTATE/LAND LAW:- Action by a lessor claiming from his lessee forfeiture of the lease for breach of covenant, possession, and arrears of rent – Whether can be commenced by way of Originating Summons

PRACTICE AND PROCEDURE:- Plaintiff commencing action for forfeiture of lease, possession, and arrears of rent by originating summons – Propriety of

INTERPRETATION OF STATUTES:– Lagos Town Planning Ordinance (Cap. 103)- Sections 12, 38, 50 and 53 – Purpose of





ABBOTT, J: In this action the plaintiffs claim against the defendant

(i)      Forfeiture of the lease dated 16th day of November, 1951 and made between the plaintiff and the defendant.

(ii)     Possession of the land leased to the defendant under and by virtue of above-mentioned Indenture.

(iii)    One thousand one hundred and fifteen pounds, sixteen shillings (£1,115-16s-Od) being arrears of rent for four years (9th November, 1951 to 31st December, 1955)-Ref. Particulars attached.


The “Particulars attached” read as follows:

“By an Indenture made on 16th day of November, 1951, the defendant leased from the plaintiff a parcel of land situate at Apapa and known as Plot No. WK. 1038 in the Apapa Town Plan Layout and which land is more particularly marked and delineated in Plan No. L.E.D.B. S.D/38, at the yearly rent of £381-10s-0d.

The said lease was subject to the covenants and conditions imposed by the Lagos Town Planning (Apapa Town Planning Scheme) Regulations, 1950 and to the special covenants and conditions contained in the said Indenture of 16th November, 1951.

In spite of several requests and warnings, the defendant has failed or neglected to comply with most of the covenants and conditions contained in and implied by the said lease and in particular the following

(a)     Covenant to build on the land in question

(b)     Covenant to pay the rent reserved by the lease.”


It will be seen from the above that this is a perfectly ordinary action by a lessor claiming from his lessee forfeiture of the lease for breach of covenant, possession, and arrears of rent.


The action was commenced by originating summons and, on its first coming before me, when as it happens, no process had been served on the defendant, I took the point that an originating summons was not the right method by which to bring the action.


Mr Ajose Adeogun, plaintiff’s counsel, argues that the plaintiff can come here by originating summons in an action of this kind, and refers to sections 12, 38, 50 and 53 of the Lagos Town Planning Ordinance (Cap. 103) in addition to section 47 which he maintains gives the plaintiff the power to bring the action in this way.


Section 47 of Cap. 103 reads as follows: All matters shall be heard and determined by the Court (i.e., the Supreme Court-see section 2 of Cap. 103) upon an originating summons in the form in the Schedule taken out by the Chairman of the Board.


Section 12 provides (inter alia) that compensation payable in certain circumstances shall, in case of dispute, be awarded by the Court, such compensation being assessed in accordance with the provisions of section 51.


Section 38 (4) provides that certain questions as to compensation for injurious affection shall, in certain circumstances, “be determined by the Court as hereinafter mentioned.”


Section 50 (2) as amended, provides that the Court shall hear and determine all matters herein (and I shall refer to that word later) as if the proceedings had been commenced in the ordinary way by a civil summons issued under the Supreme Court Ordinance and Rules (these last six words being subject to amendments consequential on certain recent events).


Section 53 (3) provides that the Court shall decide, in the event of injurious affection by a scheme or acquisition by the board of land subject to a legal charge, the destination of the compensation as between owner and chargee.


In the first place, Part VII of the Ordinance, headed “Acquisition and Disposal of Land for Scheme,” comprises sections 40 to 56 of the Ordinance.


Two of the sections cited by plaintiff’s counsel, i.e., sections 12 and 38, both introduce into their own operation the machinery for settlement of compensation provided in Part VII; the words “as hereinafter mentioned” in section 38 (4) obviously refer to Part VII because there is nowhere else in the Ordinance any machinery provided for the settlement or assessment of compensation.


Therefore it must be said, in my judgment, that sections 12 and 38 do nothing to support counsel’s contention that, in proceedings for forfeiture of a lease, the plaintiff can come by originating summons.


All the other sections quoted or incorporated by reference in counsel’s submissions are in Part VII. I fully understand the desirability for providing that in these compensation questions an originating summons is the appropriate procedure. It would be very difficult, if not impossible, to frame an endorsement on a writ of summons to ask that the Court should decide, for instance, as between two rival claimants to compensation for land acquired by the plaintiffs, who was entitled to it, or, if the amount of compensation be in dispute between the plaintiff and a claimant, how much it should be.


In the Chancery Division of the High Court of Justice in England, the originating summons is used to obtain the opinion of the Court on, for example, the construction of a will.


Originating summonses are also used in the Divorce Division on application, e.g., to abridge the term of three years which must elapse after the marriage before a petition for dissolution may be presented. The judge hearing the summons then has to decide if there are grounds for abridging the period on the ground, e.g., of exceptional hardship suffered by the petitioner.


The reason for all such matters being commenced by originating summons I can readily understand.


But I am firmly of opinion that section 47 and the other sections in part VII only allow proceedings to be commenced by originating summons if they come under the heading to that part or if the sections in that part providing machinery for assessment and apportionment of compensation are incorporated by reference into a section or sections outside Part VII, as is done in sections 12 and 38.

The word “herein” in section 50 (2) means, in my judgment, “to be dealt with under provisions of this Part.”


I cannot see that any section of Cap. 103. empowers the plaintiffs to bring a perfectly ordinary action for forfeiture of a lease in any other way than in accordance with Order II Rule 1 of the Rules of the Supreme Court which provides (in part) that “Every suit shall be commenced by a writ of summons.”


Another plank in plaintiffs’ counsel’s argument was that if the plaintiff comes by originating summons he does not have to pay fees. I find that plank a very weak one. To begin with I see no reason why the plaintiff should not pay fees. True it is that the second Schedule to the Supreme Court Rules does not appear to provide for fees on an originating summons. If it were incumbent on me (which I do not think it is) to express an opinion on this part of counsel’s argument, I should feel constrained to say that, fees being payable on the issue of a writ, that was yet another reason why the plaintiff should proceed by writ.


Finally, plaintiff’s counsel referred me to section 66 of Cap. 103 which provides (inter alia) that no act done or proceeding taken under Cap. 103 shall be questioned on the ground merely of any defect or irregularity not affecting the merits of the case. I cannot agree that that applies here. I am quite sure that the legislature did not in that section intend to fetter the powers of the Court.


For all the above reasons I held that the plaintiff cannot, in prosecuting their claim in this case, come by originating summons, and I reiterate that such a proceeding is, in my judgment, entirely inappropriate to this claim.


I therefore now order that the summons be struck out.


Summons struck out.


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