3PLR -B. AGUSTO V O. JOSHUA

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B. AGUSTO

V

O. JOSHUA
(No. 1)

FEDERAL SUPREME COURT OF NIGERIA

3PLR 150/1961

28TH MAY, 1962.

BEFORE THEIR LORDSHIPS

SIR LIONEL BRETT, F.J. (Presided)

JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Lead Judgment)

SIR VAHE BAIRAMIAN, F.J.

MAIN ISSUES

REAL ESTATE – LANDLORD AND TENANT – Possession – Tenant disputing title of his landlord – Whether permissible.

PRACTICE AND PROCEDURE – ESTOPPEL – Tenant disputing landlord’s title – Whether permissible.

REPRESENTATION:

Moore, Q. C. (with him Ugboma and Ariyo) -for the Plaintiff/Appel­lant.

Lardner -for the Defendant/Respondent.

TAYLOR, F.J. (Delivering the Lead Judgment): The plaintiff/appellant sued the defendant/respondent in the Magistrates Court of Lagos for:­

1. Possession of No. 2 Strachan Street, Ebute-Metta with the shed and saw-mill thereon;

2. £393 as arrears of rent, and

3. Mesne profits for June, 1959 at the rate of £15, a month until pos­session is given up.

On the 17th day of December, 1959 the learned Chief Magistrate en­tered judgment for the plaintiff in the sum of £332 as arrears of rent and an order was made that the defendant do give up possession on or before the 28th February, 1960.

The Defendant appealed against this judgment to the High Court which, on the 30th April, 1960, confirmed the judgment in so far as it related to the order for arrears of rent, but set aside the order as to possession and costs. It is against the order as to possession that the plaintiff, who will henceforth be referred to as the appellant, has appealed to this Court. The facts of the case, which on appeal have not been challenged, are as follows:

One Adewunmi, by virtue of exhibits 1 and 2 dated 7th July, 1941 and 16th February, 1940 respectively, purchased the property known as No. 2 Strachan Street, Ebute-Metta. The Conveyance attached to exhibit ‘1’ con­tains a plan showing the area as abutting on the lagoon. This Conveyance is executed by the Oloto family. Adewunmi erected and operated a saw mill on the land and began to reclaim the land abutting on the lagoon by filling the water with sawdust from his mill and thereon erected a Sawyer’s pit. He ob­tained a licence for the reclaimed portion from the Colony Lands Officer. He also erected a Sawyer’s winch on the reclaimed area. In 1947 or thereab­outs, (the evidence is scanty on this point), Adewunmi let the portion with the saw-mill and that reclaimed, to the present respondent i.e portions `B’ and `C’ on exhibit ’4′. After the letting and up to 1952, the defendant, at the request of Adewunmi, paid the licence fees for and on behalf of the latter. On the 12th April, 1951 the appellant, for the consideration of £2,000 paid to Adewunmi, purchased an area of land which according to the Deed of Con­veyance (exhibit 3) is said to be contained in the plan attached to the Certifi­cate of Purchase of 8th February, 1940. This Certificate was not made an exhibit, but is not however, disputed in this appeal that the area comprised the portions `B’ and `C’ on exhibit `4′. The respondent was notified of this on the 19th April, 1951 when he was informed, by exhibit `25′, to begin paying his rents to the appellant, which he did. On the 3rd January, 1953, however, he began paying the licence fees to the Lands Officer and obtained a receipt in the name of his company, The United Nigeria Timber Co. There is no­thing in the Conveyance to show that the appellant knew of or was aware of this fact.

The sole point that arises in this appeal is whether the appellant is enti­tled to possession of the area reclaimed. The respondent’s main contention here is that he is a tenant of the Crown of this reclaimed portion and there­fore the notice to quit can only affect the portion ‘B’ which he held as tenant of the appellant. The learned Judge on appeal held as follows:­

“There can be no question, and the contrary has never been argued, that it was Adewunmi who put the defendant into occupa­tion of the land – that is, the reclaimed area of land- that he now occupies. There can also be no question that this reclaimed area of land was never owned by Adewunmi that it was a parcel of crown land which Adewunmi himself was permitted to occupy under licence from the Crown. It was an express term of this licence – temporary Occupation licence No. 02568 – that “Neither this licence nor any of the rights conferred by it shall be transfer­red to any other person; nor shall the land hereinabove de­scribed or any part of it be sublet.” How it can be said that the re­lationship of landlord and tenant existed between Adewunmi and the defendant in respect of the land described in this tempor­ary occupation licence I utterly fail to understand.”

And a little lower down the judgment goes on as follows:

“The licence was a revocable permission which passed no interest in the land nor a right to its possession.”

It should be mentioned that during the proceedings in the Chief Magis­trate’s Court an application was filed on the 15th October, 1959 signed by J.O. Ojosipe, purporting to have done so on behalf of the 2nd defendant – i.e. the Chief Federal Lands Officer – seeking an order that the latter be joined in the suit. The affidavit in this application was sworn to by an Inspec­tor of the Lands and Survey Division, Ministry of Lagos Affairs, who de­posed that the land is Crown land and that the interest of the Crown will be jeopardized if the applicant is not made a party in the Suit for possession. This application was heard on the 16th October before the appellant’s case (i.e. plaintiff in that Court) was closed. The applicant, appearing through a different Counsel, is recorded as having withdrawn his application, and the Motion was struck out. The defence however called the deponent of the af­fidavit, whose name is Leo Attah Ekpo, to give evidence, which he did, claiming that the land was Crown land.

The only issue before us is as to which of the two parties in this appeal is en­titled to possession. I think it would be wise in these proceedings to say as lit­tle as possible about the right of the Crown over this reclaimed area in rela­tion to possession, as distinct from title, which is not in dispute, leaving that to be determined if and when it should arise. The position here is that we have the appellant and the respondent deriving whatever title or right they may have had to the property in dispute and the adjoining land, from Adewunmi. Adewunmi put the respondent in possession as a monthly ten­ant of the whole undivided premises both in dispute , and not in dispute, at a rent of £17 a month. He then assigned or sold his interest in the whole of the land to the appellant who continued to receive rent from the respondent in respect of the whole area. The respondent, as I have said, unknown to the appellant, sought to and did obtain a licence in respect of the reclaimed por­tion from the Crown in his own name, and now sets up this title as against the appellant. Chief Moore, Q.C., has argued for the appellant that the respon­dent is estopped from doing this, and in this respect his grounds 1(f) (g) (h) (k) (1) (n) (o) and the misdirection complained thereunder as well as ground 2(a) in my view sufficiently deal with this all-important point. The way I look at the point in issue is this. Adewunmi who put the present respondent in possession of portions ‘B’ and ‘C’ in exhibit ‘4’ was receiving rent of £17 a month from the latter as his landlord of both portions (rightly or wrongly in respect of portion ‘C’). Adewunmi then sold his interest to the appellant, who continued the relationship previously existing between Adewunmi and the respondent by becoming the respondent’s landlord at the rate, which was later increased to £19 a month. In my view the respondent cannot now seek to split up these two portions `B’ and ’C’ and say that he holds ’B’ of the appellant, and seek to create a new and different tenancy, or position or re­lationship, as to ‘C’, saying that he holds it of the Crown, and more so when the Crown sought to be joined and then withdrew the application. He is es­topped from so doing. This principle is stated by Lord Denman, C.J. in the case of Doe V Mills 2 Ad. and El. Reports 17 at page 18, in these words:

“I think that if one yielded to this application, we should con­travene the rule that a tenant is not to dispute the title of his land­lord. The tenant would then have nothing to do, in order to bring the landlord’s right into question, but to part with the property to another person.”

or, as LORD ELLENBOROUGH said in the case of Balls V Westwood, 2 Campbell 11, at page 12:

“The security of landlords would be infinitely endangered if such a proceeding were permitted. Had the defendant, upon the pre­mises being seized by the lord of the manor, disclaimed holding of the plaintiff, we might enquire into the validity of the seizure and consider who is legally entitled to the premises; but the same tenancy continues which was created by the original demise, and the tenant must still pay rent to the lessor whose title he then rec­ognised.”

In my view this appeal must succeed and the judgment of the High Court is set aside and that of the Chief Magistrate restored, although for dif­ferent reasons. As to the costs of this appeal in the High Court and this Court

I would order that each party bears his costs in both appeals as the point on which the appeal turns was not raised by the appellant in the lower Court.

BAIRAMIAN, F.J.: I concur.

BRETT, F.J.(Dissenting): I find myself unable to agree with the opinion of the majority of the Court and I shall state my reasons briefly. The facts have already been set out and I need not repeat them. If we are at liberty to con­sider the full facts then I have no hesitation in agreeing with the decision of the High Court, and my view, in brief, is that if the appellant wished to rely on an estoppel he should have done so in the Court of first instance and not waited until towards the conclusion of his argument on the second appeal, to raise it as a point not even mentioned in his grounds of appeal.

The rule governing estoppel as against a tenant or licensee is contained in S.151 of the Evidence Ordinance, which sets out in substance the rule of common law. This is dealt with at greater length in Woodfall on Landlord and Tenant (25th Edition), paragraph 28, pages 17-18, which reads in part:

“As against an assignee or lessee of the reversion, the tenant can­not impeach the validity of his own lease, nor controvert the les­sor’s title; but the assignment itself may be disputed ….. Payment of rent to a claiming assignee of the reversion is prima facie evi­dence of the claimant’s title.”

When the respondent first indicated the nature of his defence it became ap­parent that he was seeking to exercise his right of disputing the assignment as regards the reclaimed land, and it would no doubt have been premature to raise any question of estoppel at that stage, but the appellant did not confine himself to giving evidence as to the payment of rent to him, on which I agree that an estoppel might have been founded, and after calling evidence show­ing the course of the dealings with the reclaimed land he sought to rely on his rights as riparian owner, not on the doctrine of estoppel. There are, I realise, no pleadings in a Magistrate’s Court, but, as LORD MORRISON, P. said in Sanders V Sanders, (1952) 2 All F.R. 767, an appeal from petty sessions in a matrimonial case:

“When an estoppel is asserted it should, whether by the formality of pleading, as in the High Court, or in some other appropriate way, be brought to the notice of the tribunal alleged to be af­fected by it, and, having been brought to the notice of the Court, it should be supported by specific evidence of the matters from which the estoppel is said to arise.”

It is true that the text-book writers are not entirely agreed on the strict necessity of pleading an estoppel by conduct (see, for example, Phipson on Evidence (9th Edition), page 704) and that there seems to be no authorita­tive decision on the point, but to allow an estoppel to be invoked at this stage means that the Court deliberately closes its eyes to evidence as to the true state of affairs adduced without objection in the Court of first instance not only by the respondent but by the appellant himself. I do not consider that an appeal Court is required to do that, and I should have been in favour of dis­missing the appeal, but as the majority of the Court take a different view the judgment of the Court will be as proposed by Taylor, F.J.

Appeal Allowed.