3PLR – AJOSE V AGUSTO
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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AJOSE
V
AGUSTO
SUPREME COURT OF NIGERIA
11TH JANUARY, 1968.
SUIT NO. SC 565/1965.
3PLR/1968/13 (SC)
BEFORE
BETWEEN
BISIRIYU AJOSE
AND
- H. A. AGUSTO
- B. A. YUSUF
- S. A. YESUFU
REPRESENTATION
Coker – for the Appellant
Onofowokan – for the Respondents
MAIN ISSUES
TENANCY – Landlord and Tenant – Title to land – Magistrate’s Court – Jurisdiction – Question of title to be raised bona fide – Tenant disputing rnesne landlord’s title – Tenant being threatened by eviction by overlord of land – For tenant to succeed the overlord must have good title to eject and den Land to exercise that right.
MAIN JUDGEMENT
BAIRAMIAN, J.S.C. (Delivering the Judgment of the Court):
In this appeal the defendant complains of the decision of Somolu J (as he then was) of January 29, 1965 (in Case No. HK/6A/64) dismissing his appeal from the judgment of the Magistrate’s Court at Ikeja (I. A. Onalaja, Esq. on December 20, 1963, in suit No. MIK/677/62).
The suit is framed as between landlord and tenant; the plaintiff; claim is pos-session, arrears of rent, and mesne profits. The defendants counsel pleaded orally.
“not liable for rent arrears, and resists possession;”
his evidence was that he had become the tenant of the superior landlord – which must have come as a surprise. We deprecate that course of conduct on the part of defendant’s counsel who did not explain why the defendant was not liable for rent arrears and why he resisted possession.
The defendant had been occupying the house for years as the tenant of a de-ceased person who built it on land of which he was the lessee; after that person’s death he paid rent to one or another of the plaintiffs; eventually he stopped paying, hence the suit.
It was a mud house, and it was becoming dilapidated. On September 22, 1960 (Exhibit O) the defendant agreed with B.A. Yesufu and S. A. Yesufu (plaintiffs No. 2 and No. 3) that he should make certain repairs and erect some out-houses and that they should repay him. According to his evidence, when he was rebuilding the house, the two families of Jimo Aileru, on behalf of Ojuwoye Community, and Kari-mu Alase and Oladega Alase for Alase family, prevented him; as a result of what the Alase family told him, he paid them £20 on December 17, 1960 (exhibit M) for a lease to him personally: and the family gave him a deed of lease on 1st November, 1961 (exhibit K). In fact he submitted a plan to erect a building – six shops etc – and obtained approval on 24th March, 1961 (exhibit L1).
On the other hand, the plaintiffs paid £60 on 18th May 1962 to Jimo Aileru and others, who gave a receipt:-
“for all lessors and families of Ojuwoye Town land Mushin”
(exhibit C); the learned Magistrate says in his judgment that plaintiffs attorned to Jimo Aileru.
The judgment goes on to say that there was a relationship between landlord and tenant, but the identity of the overlord was not clear: that down to September, 1961, the defendant said he was the plaintiff’s tenant, and that the lease he took from the Alase family on 1st November, 1961, was an afterthought. And the learned magistrate goes on to say that he did not believe the witness Arubo, who as a member of the Alase family testified that the plaintiffs had given up possession, or forfeited their lease because they did not pay rent, and that consequently the family stopped the defendant from rebuilding but later gave him a lease. Says the judgment:-
“If the Alase family wanted to contest the title to the land, the best course would be to go to the High Court for a declaration of title.”
The Magistrate gave judgment for the plaintiffs for £60 arrears of rent for the period August, 1961 to November, 1962, but not possession: this he thought it would be inequitable to grant in view of the expenses incurred by the defendant as a result of exhibit O – the agreement with the plaintiffs. The claim for mesne profits was for the period December 1, 1962, until delivery of possession; they were not granted.
It is convenient at this point to quote from the evidence in cross-examination of the defendant: he said:-
“After I received exhibit O 1 obtained the approved plan (exhibit L and Lt) from Ikeja Town Planning Authority. It was in pursuance of the written authority exhibit O that I got the exhibit L7 from Ikeja Town Planning Authority to rebuild the house. It was after I obtained exhibit L and L1 that I started to rebuild the house on my own. It was then the delegates of Alase came and attempted to stop me from rebuilding the house. They told me that they had taken the said plot of land from Seidu. And if I wanted to do anything thereon I should pay money for the lease of the land. Hence I paid the £20 for which I obtained the receipt exhibit M.”
We note that the date of exhibit O (the agreement between plaintiffs and defendant for repairs and outhouses) In September 22, 1960; that of Lt (the permit to build) is 24 March, 1961; but the date of M (the receipt for £20 from the Alase family) is 17 December, 1960. This is odd; and odd it is also that in the lease (exhibit K) of November 1, 1961, from the family, the defendant is to hold the land as from that date, to pay five pounds a year in advance, and to make a first payment of ten pounds in advance for two years before execution of the deed of lease: not a word about the twenty pounds in M, the receipt of 17 December, 1960.
Another odd feature In the case is that the Alase family was not mentioned in cross-examination of Sule Yesufu (one of the plaintiffs): he said he did not know before the death of his brother (the lessee of the land and builder of the mud-house) who the overlord was, but in 1962 Jimo Aileru asserted his claim and he, Yesufu, paid him £60 on May 1, 1962, for rent appears: exhibit C. Again when Ajagbe gave evidence for the plaintiff, he said in cross-examination that he knew the overlords were the Ojuwoye Community; there is no note that he was asked any question about the Alase family: this family was first spoken of by the defend-ant. And the learned magistrate’s Impression was that this family took advantage of the defendant’s anxiety to have a lease on his own and seduced him from his allegiance to the plaintiffs. It is clear enough that he was not content to do only what he agreed to with the plaintiffs – repairs and outhouses – but wanted shops etc.; he wanted to rebuild completely, and so the trouble started.
Finally – and this is very important – there is no sound evidence that the lease of the ground given to the deceased who built the mudhouse was ever terminated. Be it assumed for the sake of argument only, that the Alase family were the over-lords who gave that lease to the deceased: (His name was Z.A. Yesufu; the defendant’s witness Arubo of the Alase family refers to him as Seidu and says that he had died about five years before, that is before November, 1963). Arubo says in chief that Seidu told Aina Edu Alase, about a year before Seidu’s death, that he would give up the land as he had no money to pay the rent, then already ten years in arrear. But clearly never gave up the land: for even after his death the defend-ant paid rent to S. A. Yesufu (the third plaintiff); and it was not until the defendant began rebuilding that Arubo spoke to him. There is no suggestion anywhere in the evidence that the Alase family gave the deceased Seidu notice to quit: Arubo says his family condoned the long arrears of rent he owed; nor is there any suggestion that his family gave notice to quit to the plaintiffs. Thus – it being assumed merely for argument’s sake that the Alase family were the overlords – they never terminated the lease to Seidu of the ground. All that has a bearing on the point that the magistrate had no jurisdiction to hear the suit as the question of title was involved, which point he rejected.
That point of jurisdiction was also raised on appeal before Somolu J., who, however, agreed with the magistrate that the defendant’s claim of title as being the very tenant now of the overlord, and no longer the undertenant of the mesne lord, was not made in good faith, but was a collusive act to defeat the claim of the plain-tiffs. And this is the major complaint in the defendant’s further appeal to the Supreme Court, which has been argued by Mr. D. O. Coker, citing these cases:
(1) Hill v. Saunders (1825) 4 Barn. and Cress. 529- 537; 28 Rev. Rep. 375. (2) The Mayor, etc. of Poole v. Whitt (1846) 15 Meeson and Welsby 571-579, 71 Rev. Rep.765.
(3) Charles Mountnoy v. William Collier (1853) 1 El and B1 630-641; 93 Rev. Rep. 317.
(4) Watson v. Lane (1956) 11 Ex. 769-774, 105 Rev. Rep. 782.
Mr. Coker concedes that originally the plaintiffs were the mesne landlord of the defendant, but contends that the defendant was being threatened with eviction by the overlord of the land and that was enough on the cases he cites. He points out that the plaintiffs came to regard Aileru as the overlord, whilst his client treated with the Alashe family: and he submits that, although the’ magistrate did not believe Arubo of the Alase family, a question of title was involved on which the magistrate could not adjudicate. And as for Agusto v. Joshua (1962) 1 A.N.L.R. 312, on which the plaintiffs rely for the doctrine that a tenant cannot dispute his landlord’s title, Mr. Coker replies that the point of threat was not decided there.
In case (1) – Hill v. Saunders – there was a lease from the plaintiff and his wife with a covenant for payment in favour of the plaintiff and his wife and the heirs or assigns of the wife. She died, leaving one J. A. as her heir. The plaintiff sued for rent. The defendant pleaded that the premises were the estate of the wife, that the plaintiff had nothing in them but in favour of his wife, and that upon her death his estate ceased; that her heir threatened to evict the defendant un-less he attorned, and so he was compelled to attorn and become tenant to the heir. The plaintiff admitted the facts in the defendant’s plea; judgment was given for the defendant, and the case argued upon a writ of error. There was a consensus of opinion among the judges that the defendant was not estopped from showing that the husband’s interest had ceased upon the death of his wife.
From case (2) The Mayor et. of Poole v. Whitt – it is enough to quote this pas-sage from the judgment of Pollock C.B. (at p.770 of 71 Rev. Rep):-
“Now, If a party, having a good title to eject the occupier of demised premises, goes there and demands to exercise that right, and the tenant says, ‘I will change the title under which I now hold, and will consent to hold under you,’ that according to good sense, is capable of being well pleaded as an expulsion.”
We note that the party must have a good title to eject and demand to exercise that right. In the case in hand there is no evidence that the Alase family had a good title to eject; and on the defendant’s evidence that family was not seeking to eject but only to prevent him from erecting a new building and that was why he became their tenant. (Incidentally, in The Mayor etc. case, as no title in Parr to eject the defendant was shown, the attornment to Parr did not establish any expulsion: for Parr’s elegit only entitled him to the reversion expectant on the mortgages by the lessors).
In case (3) – Mountnoy v. Collier Coleridge said at p.322 of 93 Tev. Rep) as follows:-
“It is clear that, in some cases, a tenant, though he may not show that the landlord had no title at the time he made the demise, may show that the title, which the landlord then had, has subsequently expired, or been defeated.”
The question in the case was whether one Ingram or the plaintiff had the title to the premises; it arose as follows. One Cotton had occupied the ‘Shoulder of Mutton’ and also the ‘Raven’s Nest,’ When Cotton died, the plaintiff came into pos-session apparently as his personal representative, and he let the ‘Shoulder of Mutton’ to the defendant at a yearly rent. Ingram gave the plaintiff notice to quit both premises. The ‘Raven’s Nest’ was admittedly held of Ingram to whom the plaintiff gave it up. Cotton, and later the plaintiff, paid Ingram 10/- for something other than the ‘Raven’s Nest,’ and in right of such payment Ingram set up a claim to the ‘Shoulder of Mutton’ and the rest of the premises, and gave notice to the defendant not to pay any more rent to the plaintiff. The defendant had paid rent to the plaintiff for the half-year up to Lady Day, and if Ingram’s notice to quit was good (the County court judge decided it was) the plaintiff’s title had expired. The plaintiff said 10/- was paid for part of the ‘Shoulder of Mutton;’ the defendant said it was for the whole, and wished to prove it by calling evidence of declarations made by Cotton; but the county court judge would not allow such evidence to be called. On appeal it was decided by the judges that the evidence was admissible. Coleridge J. said as follows: (at p.323 of 93 Rev. Rep):-
“Now in general, the declarations of a deceased tenant are admissible to show under whom he held: and certainly I can see no reason why they should not be admitted here. Then if they are admitted, and prove what is expected, the question will rise, whether, if a tenant from year to year sublets, and sues the sub-tenant for use and occupation, it is competent for the sub-tenant to show, as a defence, that before the period of occupation for which he is sued, the mesne tenant’s interest had determined, and that the head landlord claims from him the rent for that period. I do not think it is necessary, for the purpose of constituting such a defence, that the sub-tenant should actually have given up the possession or that the head landlord should actually have evicted him, If there has been a claim and a new arrangement equivalent to an eviction and fresh taking. All that it is necessary to decide in this case is, that the Judge ought to have received this evidence, on which a question might arise as to the title between the plaintiff and Ingram: and as soon as the Judge is satisfied that the question of title is bona- fide raised, he should stop the cause, and go no further.”
In the case In hand we must ask ourselves this question: Was the Interest of Seidu, the mesne tenant, or of the plaintiffs after his death, determined? We have already said it never was; Nor was it suggested by the defence that it was.
Finally from case (4) – Watson v. Lane it will be enough to quote from the judgment of Pollock C.B. (at p. 786 of 105 Rev. Rep.) this sentence:-
‘The estoppel on the tenant merely amounts to this, that he is estopped from disputing the title of his landlord to the extent of the interest granted by the lease, but he is not estopped when the lease has terminated:’
The facts were as follows. The Plaintiff was the mortgagor having the equity of redemption; he demised the premises for a term, with a covenant that the defendant would when it was up deliver the premises to him with the fixtures in them. A few days after the term was up the plaintiff demanded possession: he did so on 10 April, 1955; but the defendant did not give it up. On 13th April, the mortgagee gave notice to the defendant to pay the rent, and deliver up the premises to him: and he afterwards sold the premises and fixtures to the defendant. The plaintiff sued the defendant for the value of the fixtures. The decision was that he was en-titled to nominal damages only. Pollock C.B. observed that before the plaintiff sued for delivery of possession the mortgagee gave notice of his title, and so the defendant was In the same situation as if he had been ejected on the 13th of April by tide paramount; and then follows the sentence we have quoted above We do not think this case helps the defendant.
We have gone through the cases cited at some length and are satisfied that they do not help the argument for the defendant that there was a bona fide question of title raised, as for example in Mouninoy v. Collier which required the Magistrate not to hear the suit.
Now the learned Magistrate awarded £80 arrears of rent for August 1961 to November, 1962, but the High Court ordered the defendant to pay £130 as rent from December 1, 1962 to January 31, 1965; and the defendant has complained of this order. Learned counsel for the plaintiffs referred to Dunlop v. Macedo (1891) 8 T.L.R. 43 as showing that a claim for mesne profits can be claimed together with ejectment. (He could have referred to section 10(2) of the Recovery of Premises Law, cap. 110 of the 1959 Laws of Western Nigeria). If counsel means that the High Court order could be supported as an order for mesne profits, he should have given notice of this proposed contention, and then the court would have had the benefit of argument – which we have not had; and so we must decline to ex-press any opinion. We are concerned with an order for rent for a period after the suit was brought (it was brought before December, 1962). We have noted that the plaintiffs did not crossappeal from the magistrate: we also note that Somolu J. did not invite argument on whether he could order rent for a period after the suit was brought; and we think that he ought not to have ordered payment of any such rent In those circumstances, but left it open for the plaintiffs to claim in another suit if they wished.
It remains to thank both the learned counsel. Mr. Coker has helped with cases, and we are grateful for his industry. It seems to us, however that on the evidence there was no bona fide question of title raised in the case in hand. If in a case like this a magistrate were to be stopped from hearing the case, it would erode his jurisdiction in landlord and tenant suits to a vanishing point ultimately.
The defendant’s appeal from the High Court decision of January 29, 1965 in case No. HK/6A/64 is allowed to this extent only, namely that the order on him to pay £130 as rent from December 1, 1962, to January, 1965, is set aside but with-out prejudice to any claim the plaintiffs may make, and apart from that the appeal is dismissed with fifteen guineas costs in favour of the plaintiffs.
Appeal dismissed.
