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MYLES JOHN ABBOTT, F.J. (Presided)
LIONEL BRETT, F.J. (Read the Judgment of the Court)
PERCIVAL CYRIL HUBBARD, AG. F.J.
REAL ESTATE – LEASE: Landlord and Tenancy –Valid notice to determine an annual lease
TORT: Trespass – Damage to temporary buildings
TORT: Defence to liability – Volenti non fit injuria – Plaintiff aware that they must by all means be demolished whether damages recoverable.
Mr. M.E.R. Okorodudu, for the Appellant.
Mr. S.O. Lembo (Miss Odujirin with him) for the Respondent.
BRETT, F.J. (Delivering the Judgment of the Court): These are cross-appeals from the judgment of Duffus, J., in the High Court of the Western Region awarding the plaintiff £504 special damages and £50 general damages on a claim for the wrongful destruction of property and the wrongful determination of a tenancy. The defendant appeals against the whole judgment, and the plaintiff against the general damages awarded.
The defendant holds a Crown lease of a piece of land at No. 10 Market Road, Ward, and in June, 1954, he made an oral grant of a sublease of part of the land to the plaintiff at a rent of £36 per annum. The sublease was an annual one, running from the 1st October in one year to the 30th September in the following year. The plaintiff is a produce buyer working on commission for John Holt & Co. Ltd., and his object in taking the sublease was to build a store in which to keep produce. Under byelaws, enacted under the Townships Ordinance, temporary buildings could only be erected on the land with the permission of the local authority, now the Warri Urban District Council, and in 1954 permits were issued by the local authority for the erection of a temporary structure to be used as a store, and another to be used as an earth closet and office.
The permits were issued to the defendant as holder of the Crown Lease, but the purpose for which they were obtained was to enable the plaintiff to put up the buildings he needed for his business, and it was he who informed the local authority when the store was completed, quoting the reference number of the permit in his letter, Exhibit 12. This fact clearly indicates that the plaintiff knew of the conditions on which the permits were issued, and implies that he accepted them. The permits, which were produced as Exhibits 6 and 7, take the form of letters addressed to the defendant and each contains a paragraph which reads as follows:
‘The temporary building must be removed by you within 30 days of notice having been given by me and in any case not exceeding two years of its erection.”
As early as June, 1956, the defendant indicated that he wished to put an end to the sublease, and on the 8th July, 1957, he wrote a letter to the defendant, Exhibit 2F, purporting to terminate it with effect from the 30th September, 1957. Duffus, J., rightly held that six months notice was required to terminate the sub lease, and that Exhibit 2F was ineffective for the purpose. This is so whether the Increase of Rent (Restriction) Ordinance applies to the demised premises, as Duffus, J., held, or not, and I find it unnecessary to consider the submission made by Mr. Okorodudu in arguing the defendant’s appeal, to the effect that it does not apply. If that Ordinance does apply, then possession can only be obtained by following the procedure laid down in the Recovery of Premises Ordinance, but it is immaterial whether possession was sought under the Recovery of Premises Ordinance or at common law, since in either case half a year’s notice would be required. Mr. Okorodudu made the further submission that if possession is sought under the Recovery of Premises Ordinance half a year’s notice may be given, in the case of a yearly tenancy, to expire on any date, but in the first place it is not pretended that half a year’s notice was given in this case, and secondly the submission seems to me to be plainly wrong.
On the 9th August, the Ward Urban District Council addressed a letter to the defendant, Exhibit 20, requiring him to demolish the temporary building used as store within 20 days, and stating that if he did not the building would be demolished by the Council and the cost charged against him. This letter he passed on to the plaintiff, again calling on him to quit: Exhibit 2G. On the 10th September the plaintiff addressed a letter to the Council, asking for renewal of the permit. A manuscript inter office note, undated, states that the application should have been made through the defendant, and no reply was received by the plaintiff at any time. On the 11th September the Council addressed two letters to the defendant concerning temporary buildings. The first, Exhibit 21, refers to Exhibit 20 and invites the defendant to explain why he should not be prosecuted for failing to demolish the building after two years. The second, Exhibit 22, states that one of his temporary buildings was built without any approved plan, and calls on him to pull it down, under penalty of court action for breach of the byelaw.
About midday on the 12th September, the defendant, accompanied by six other men, committed what appears to have been a true trespass vi et armis, by entering on the land with hammers, crowbars, matchets and other implements, and demolishing the plaintiff’s buildings. Later that day he addressed a letter to the plaintiff, Exhibit 23, saying that owing to the plaintiff’s refusal to demolish the buildings he had taken it upon himself to do so, and calling on him to collect the remains. The plaintiff’s clerk Smart Oki, was driven away by the defendant when he went to look at the place that evening and on the following morning, and the plaintiff does not appear to have made any attempt at physical reentry by himself or his agents, thereafter. He took a lease of other premises for his business at the greatly increased rent of £240 per annum, and his commission as a produce buyer, which had been rising annually to a total of £538:18s:1 1d in the year ending 30th September 1957, fell to £143 in the following twelve months.
The plaintiff claimed damages for the wrongful destruction of his store, office and earth closet, and for the wrongful determination of his tenancy, and in his Statement of Claim he gave items of special damage amounting to £1,510:4s. Duffus, J., found for him on both heads, on the ground that the defendant had committed a trespass and illegally demolished the plaintiff’s buildings, and had also wrongly determined the plaintiff’s tenancy; in another passage of his judgment he says: “This is both a trespass and a breach of the defendant’s implied covenant for quiet enjoyment.” He awarded special damages of £204 for the extra rent which the plaintiff had to pay for the premises he took, and £300 for loss of profit, as against the £500 claimed; he also awarded £50 general damages.
The plaintiff, in his appeal, complains of the reduction of the special damages for loss of profits from £500 to £300, but I agree with Duff us, J., that he had not proved that his earnings on commission would have been £643 or more in the year ending the 30th September, 1958, if it had not been for the defendant’s tortious action and in my view his appeal as to the amount of special damages awarded must fail in any event. It is a more difficult question, whether the special damages awarded are recoverable at all. The plaintiff put up his buildings knowing that it was a condition of the permit to erect them that the defendant was required to demolish them not later than two years after they had been erected. Mr. Okorodudu submits that even If the entry on the land was tortuous, the rule volend non fit injuria applies to the demolition of the buildings, and if he is correct in this submission the plaintiff cannot recover any damage, special or general, which flowed purely from the demolition of the buildings.
In my view this submission is well founded. The plaintiff was aware of the conditions attached to the permission to build before he took advantage of it to put up his buildings and I do not consider that he can recover damages from the defend ant merely because the defendant has complied with those conditions. We are not been referred to any reported decision which is precisely in point but I would apply the reasoning of Viscount Haldane, L.C., in Herd v. Weardale Steel, Coal and Coke Company Limited (1915) A.C. 67, where the claim was for false imprisonment. Viscount Haldane said at p.71:
“If a man gets into an express train and the doors are locked pending its arrival at its destination, he is not entitled, merely because the train has been stopped by signal, to call for the doors to be opened to let him out. He has entered the train on the terms that he is to be conveyed to a certain station without the opportunity of getting out before that, and he must abide by the terms on which he has entered the train. So when a man goes down a mine, from which access to the surface does not exit in the absence of special facilities given on the part of the owner of the mine, he is only entitled to the use of these facilities (subject possibly to the exceptional circumstances to which I have alluded) on the terms on which he has entered. I think it results from what was laid down by the judicial Committee of the Privy Council in Robinson v. Balmain New Ferry Co. (1910) A. C. 295 that that is so. There was a pier, and by the regulations a penny was to be paid by those who entered and a penny in getting out. The manager of the exist gate refused to allow a man who had gone in, having paid his penny, but having changed his mind about embarking on a steamer, and wishing to return, to come out without paying his penny. It was held that that was not false imprisonment; volenti non fit injuria. The man had gone in upon the pier knowing that those were the terms and conditions as to exit, which he had accepted:”
The next question is whether the items of special damages awarded did flow purely from the demolition of the buildings. The sub lease not having been lawfully terminated, the plaintiff was entitled in law to remain in possession of the land until the 30th September, 1958, but he was forbidden by the Township bye laws to put up any fresh buildings without the permission of the Urban District Council, and the defendant, to whom alone such permission would have been granted, was under no legal obligation to apply for it. Even if the plaintiff had had the use of the land without buildings he would still have had to hire a store for keeping the produce he bought, and so far as the evidence goes the use of the land without buildings would not have served to reduce his loss of profits. It would appear, therefore, that the increased rent and the loss of profits did flow purely from the demolition of the buildings, and I would reverse that part of the judgment which awarded £504 special damages.
The general damages awarded remain to be considered. The plaintiff’s claim was for damages for the wrongful destruction of his property and the wrongful determination of the tenancy; and contains no reference to the trespass to the land. In one passage of his judgment Duffus, J., says: “this is both a trespass and a breach of the covenant for quiet enjoyment” and he regarded the sublease as having been determined. As I have already said, I do not consider that the tenancy was determined, and the question is whether the general damages included an element of compensation for the tortious entry on the land, in which case, since no argument has been addressed to us to show that the plaintiff could not recover on this score, the award must stand. On the whole, I am of the opinion that they did. In another passage, Duffus, J., found that the defendant “committed a trespass and illegally demolished the plaintiff’s buildings:, thereby distinguishing between the two, and although on a strict view of the claim and pleadings it might be said that the tortious entry on the land was not the trespass complained of this is not a point for an appeal court to take of its own motion.
Mr. Lambo has submitted that the general damages were inadequate, and the cross-appeal asks that they should be increased. I agree with Duffus, J., that the defendant did show an evident desire to rid himself of the plaintiff as a tenant, but I also agree with him that it is not a case for exemplary damages. No doubt it suited the defendant’s book to comply with the order of the Urban District Council, and It seems to be true that the rule requiring temporary buildings to be demolished after two years is not uniformly enforced, so that he might have obtained an extension if he had applied for it. Nevertheless, there are no circumstances of aggravation in any way comparable to those in Loudon v. Ryder (1953) 2 Q.B. 202, to which Mr. Lambo referred us, and I would not disturb Duffus, J.’s assessment of general damages.
To summarise, I would allow the defendant’s appeal to the extent of reversing the award of £504 special damages and leave the award of general damages unchallenged. I would dismiss the plaintiff’s cross-appeal. I would award the defendant 30 guineas costs on the appeal and cross-appeal.
Abbott, F.J. I concur. Hubbard, Ag. F.J. I concur.
Appeal of defendant allowed in part.
Cross-appeal of plaintiff dismissed.