3PLR – AKEJU V SHONIBARE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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AKEJU
V
SHONIBARE
HIGH COURT OF LAGDS
10TH JUNE 1968
SUIT NO. LD/19A/68
3PLR/1968/15 (SC)
BEFORE
TATLOR, C.J.,
BETWEEN
DAUDA AKEJU
AND
REPRESENTATION
Adewale (for Adufalu) – for the Defendant/Appellant
Sofola (for Branco) – for the Plaintiff/Respondent
MAIN ISSUES
REAL ESTATE – Landlord and Tenant-Recovery of Premises—Notice of intention to recover possession wrongly stating date on which tenancy was determined Whether proper-Recovery of Premises Act.
MAIN JUDGEMENT
TAYLOR, C.J.:-
The plaintiff now respondent, sued the defendant/appellant in the Magistrates’ Court, Lagos State, claiming possession of the rooms occupied by the latter on three grounds as amended to wit:- (a) personal use; (b) substantial repairs and (c) arrears of rent.
After evidence had been heard, the learned trial Magistrate dismissed the claim on the grounds of arrears of rent and requirement of the premises for personal use and allowed the claim for possession on the second ground that the premises required substantial repairs.
The appeal filed by the appellant is apart from the omnibus ground based on three matters.
It is urged:
(i) That the Court below erred in holding that the statutory notices were duly served
(ii) That the 7 days Notice exhibit ‘G1’ is bad in law, and
(iii) That the evidence showed that the building was to be demolished and not repaired.
I can summarily dismiss the first ground and the general ground. They are grounds of appeal based on facts and the credibility of the witnesses. The learned trial Magistrate accepted the evidence of service of the Notices as deposed to by the third witness for the respondent, Samuel Alaba Fadugbe, and exhibits ‘G’ and ‘G 1’ as well as the evidence of the respondent himself. I have not been persuaded that he erred in accepting the evidence led as to service of the Notice. With the exception of the evidence as to requirement of the premises in order to do substantial repairs, and with which I shall later on deal, there is no substance in the ground of fact. I shall now pass on the second ground.
It is an accepted fact that the exhibit ‘G’ the Notice of intention to apply to recover possession does not state the date on which the tenancy was deter-mined but rather states the date on which the Notice to Quit was prepared and dispatched. The learned trial Magistrate held that:
“It is a fact in this case that exhibit ‘G1’ the 7 days notice, stated that the tenancy of the defendant was determined on the 26/2/67, this of course was the date when the plaintiff’s Solicitor gave the said notice. The tenancy of the defendant was actually determined on the 31/3/67. I have carefully considered this point, but I am of the view that the 7 days-Exhibit ‘G l’ is valid in law.”
A little latter on the learned Magistrate held that:-
“In my way of thinking, it could not be said that defendant was misled by incorrectly stating that the tenancy of the defendant was determined on 26/2/67 in the 7 days Notice. I would say in passing that this is the carelessness of the solicitor who prepared and signed the 7 days Notice….
Learned counsel for the defence goes to mere technicalities of the law.
In my view also, the Court has to do substantial justice and avoid technicalities.”
I would with respect draw the attention of the learned Magistrate to the words of the Lord Chief Justice of England in the case to which I have often made reference in many appeals from the Magistrates’ Court this type of case. It is the case of Bowden v. Rallison 1948 64 TLR 398 at in this where the learned Lord Chief Justice said that:-
“The Act is full of pitfalls, and very technical. Considerations apply to it. Parties would be very much better advised if they took the advantage which they now have of proceeding in the County Courts.”
Obtaining possession of premises. It is, moreover, a technical isolation made up of portions of different English Acts. s.7, for a portion of s. I of the Small Tenements (Recovery) Act 1838 up for consideration in Bowden v Rallison (1948) 1 A.E.R. held in that case that a notice which wrongly described the wrongly described the time when the tenancy was determined That case has been followed and applied by this Court.”
It is also pertinent to note that Sir Clement de Lestang held that the mistake that was made could not possibly have prejudiced the ten t, but in spite of that the notice was held to be bad. The notice in this case as in that case the 7 days notice of intention to proceed to recover possession. It was dated 17th May, 1961 but stated that application would be m e to recover possession of the premises on the 29th April, 1961, an obvious mistake for 29th May, 1961. At page 17 and a little lower on the learned Chief Justice held that:-
Then again in the case to which the learned Magistrate’s attention was drawn i.e. Awoniui v. Madam Alimotu Eletu 1963 Lagos High Court Report 16 the learned Chief Justice of Lagos Sir Clement de Lestang said at page 17 that:- I
to a conclusion of fact without evidence before him that the error was one arising from “the carelessness” of the solicitor involved. Exhibit `G’ is in conflict with exhibit `Gl’ and though the latter purported to and did deter-mine the tenancy on the 31st March, 1966, the former alleges that the tenancy was determined on the 26th February, 1966. The latter, i.e. exhibit “G” is bad in law. It is true that this is a technical point and that the error did not prejudice the tenant but the regularity or “validity” of the Notices and/or their receipt by the tenant is a condition precedent to an order for possession being made. It therefore goes to jurisdiction. I must with the same reluctance that my predecessor, Sir Clement de Lestang felt in the case to which attention has been drawn allow this appeal.
Although it is not necessary I propose for the future guidance of the Court below to deal with the ground of requiring possession to do substantial repairs. The learned trial Magistrate held on this point that:”
“From the steps taken so far by plaintiff I am of the view that he is genuinely anxious to carry out the substantial repair to his premises. Thus, in this case, I find that the plaintiff has proved to my satisfaction that the premises is in bad state of repairs and that the premises requires substantial repairs. Thus the plaintiff succeeds in his action on the ground of substantial repairs.”
It is always necessary for Courts of first instance to scrutinize the evidence in claims for possession on the grounds of the premises requiring substantial repairs in order to see whether the claim is genuine or not. If genuine, the Courts should consider the powers given to them by the proviso contained in the Second schedule to the Rent Restriction Act paragraph (h) which states that: –
11 . . . . Provided however that the Court may impose a condition for return of the tenant when the repairs are completed.”
This is a discretionary power given to the Court and whether exercised or not exercised there should be reasons given for its exercise or non exercise. It is not of course a power that can be exercised without evidence as to the nature of the repairs and the length of time required to effect repairs and the willingness of the tenant to return to the premises. Such evidence must be on record.
Returning to the facts of this case the landlord/respondent stated inter alia that:-
“The defendant has two buildings in Lagos ….. I bought No. 27A Ricca for my personal use.”
A little later on the witness stated that:-
“I want to pull down the whole building now and rebuild the premises.”
Now it seems to me from the evidence that regardless of whether the respondent is allowed to repair or demolish the building his real reason for wanting possession is to use the premises in its rebuilt or repaired state for his personal use. In his evidence he also gave reasons why his present premises are inconvenient for himself and his family, and the learned Magistrate has found, from which there has been no appeal, that the balance of hardship falls on the appellant.
The judgement on this point reads thus:
“Putting all the facts together, I have come to the decision that the defendant is likely to suffer greater hardship if an order for possession is granted against him. Thus the plaintiff fails on the ground of personal use for possession.”
But in not making use of the proviso the learned trial Magistrate has unwittingly given the respondent what. He seeks, i.e. to repair or rebuild the premises for his personal use. It is against instances of this sort that the proviso was inserted.
Finally Courts of trial must bear in mind the words of the Second Schedule in this respect for paragraph (h) talks of “substantial repairs” and not demolition of the building and where as in the case on appeal the real requirement of the landlord is to demolish the building and erect another, the claim should be refused.
For the reasons given earlier in the judgement the Notice of intention to apply for the recovery of possession being bad this appeal must succeed and the judgement of the Court below is set aside. In its place I make an order of dismissal of the claim. The appellant is entitled to his costs in the Court below assessed at 7 guineas and in this Court assessed at £9.13s.4d. Out-of-pocket expenses and Counsel Costs of 20 guineas making a total of £30.13s.4d.
Appeal allowed: Judgement of Court below set aside: Order of dismissal substituted.
