3PLR – IMAM KELANI AND ORS. V. D.A. JONES

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

IMAM KELANI AND ORS.

V.

D.A. JONES

HIGH COURT, LAGOS

31ST MAY, 1966

SUIT NO. LD/16A/66.

3PLR/1966/82  (HC-L)

 

BEFORE:

SOWEMIMO, Ag. C.J.

 

REPRESENTATION

Ojikutu – for the Appellants

Davis – for the Respondent

MAIN ISSUES

REAL ESTATE

APPEAL from Magistrate’s Court.

MAIN JUDGEMENT

SOWEMIMO, Ag. C.J.:-This is an appeal against a ruling by the learned Magistrate, Mr Bamgboye, delivered on the 4th day of December, 1965.

There was a writ of summons filed before the lower Court in which the appellant and others, whose names were not disclosed, were claiming possession of an apartment at 146 Bamgbose Street, Lagos, from the defendant, on two grounds, arrears of rent and personal use.

When the case came before the Court for hearing, Mr L. V. Davis took a preliminary objection that neither the writ of summons nor the statutory notice served on the defendant disclosed fully the parties taking action against the respondent. In reply Mr Ojikutu, who appeared for the appellant in the lower Court and in this Court, conceded the fact that the names of the plaintiffs in the case ought to be fully disclosed and therefore sought leave to amend the writ. He however maintained that it was unnecessary to disclose the names of all who claimed to be the landlords in serving statutory notices to quit on a tenant.

The ground of appeal, and there is only one ground which has been argued, is that the learned Magistrate erred in law in holding that the names of all joint landlords must appear on statutory notices served on a tenant, otherwise those notices are bad. In support of this contention Mr Ojikutu has referred me to the judgment of Sir Clement deLestang, Chief Justice, reported in 1962 Law Reports of the High Court of Lagos, entitled Ashimawu Adubiaran v. Alhadji Rufai Etti and Others and it was held as indicated in the headnote of that case:-

(1)     That any one of several joint landlords or his agent, as defined by the Recovery of Premises Act, may give a valid notice to quit to a tenant;

(2)     that the proper service of a valid notice to quit is a prerequisite of an order for possession.

The learned Chief Justice at page 105 of the judgment under reference said inter alia in considering the contention that the notice served was not valid:-

“I think the definition of landlord in the Recovery of Premises Act is a complete answer to both these contentions. Landlord is defined to mean ‘the person entitled to the immediate reversion of the premises or if the property therein is held in joint tenancy or tenancy in common, any of the persons entitled to the immediate reversion, and includes the attorney or agent of any such landlord.’ The effect of this definition is in my view that any one of several joint landlords or his agent, as defined by the Act, may give the notice. Moreover at Common Law a notice to quit by one joint lessor was sufficient to put an end to periodic tenancy (Doe d. Aslin v. Summersett, 1 B and Ad. 135 which was applied in Leek and Moorlands Building Society v. Clark (1952) 2 Q.B. 788). These contentions accordingly fail.”

On the face of the notice which was filed along with the writ of summons and which are at pages 4 and 5 of the record of appeal, it is not indicated who are the others who claim jointly with one Imam Kelani to be either the landlords or owners of the premises which is the subject matter of this suit.

As the learned Magistrate rightly drew attention at page 11 of the record, the other ground shown on the particulars of claim is that of personal use and it is absolutely necessary in serving statutory notices for the names of the persons to be shown who are entitled to the recovery of the premises under the ground which was stated on the writ of summons.

The case which Mr Ojikutu cited shows that the agent showed the names of four out of the five people who were entitled to the property and the contention of the learned Chief Justice was that since it was a joint tenancy as between the owners, any one of them could have claimed recovery of the premises and could have validly served the notice required by law. In this case the names of the people were not disclosed in the statutory notice at all. These notices could not be amended during the proceedings and it was therefore necessary in any case that until evidence is taken could it be determined what was the interest of the different persons claiming as landlords, in the property but at least the names of such persons ought to have been stated. If one adopts Form C as was done by the solicitor who served the notices on the defendant, then he is bound to comply with that form by stating the names of all those who claim to be the landlords of the defendant. I therefore agree with the learned Magistrate that in order to succeed in this case, whilst the Counsel for the appellant himself has conceded that his writ of summons must be amended to show the names of all the plaintiffs who are claiming possession, I hold that this concession also extends to statutory notices to be served. In the circumstances therefore, I dismiss the appeal with costs assessed at six guineas.

 

Appeal dismissed.

 

 

error: Our Content is protected!! Contact us to get the resources...
Subscribe!