3PLR – JOHNSON V. EWUTUYA

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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JOHNSON

V.

EWUTUYA

COURT OF APPEAL

 (1996)

3PLR/1996/62  (CA)

OTHER CITATIONS

1 NWLR (PT 427) 740

 

BEFORE THEIR LORDSHIPS

UWAIFO JCA

AYOOLA, JCA

PATS-ACHOLONU JJCA

 

REPRESENTATION

  1. Adeniran – for appellant

Chief. A.O. Onofe – for respondent

 

MAIN ISSUES

REAL ESTATE/LAND LAW- Declaration of title,

– Rent/Mesne Profits,

– Payment of purchase price along with possession,

PUBLIC LAW AND JURISPRUDENCE- Illiterates protection law

The property in dispute originally belonged to Teko Adelanvi who had a head lease for a term of 67 years from 14 September, 1939. He later sold it to Madam Otomewo and Exh 15 was shown to be an acknowledgment of the full purchase price received from her for the assignment of the unexpired lease.

Appellant was one of the tenants in that property at the time ownership and possession changed hands. Following Madam Otomewo’s death, the appellant wrote a letter dated 19/7/93 to one Moses Otomewo (an administrator of the deceased’s estate) explaining why he was unable to pay his rent which was in arrears. In other words he had acquiesced to the land-lordship of Madam Otomewo and her successors in title.

Appellant sued Moses Otomewo claiming that the disputed land belongs to the children of Teko Adelanvi. The said Moses Otomewo died before Judgment was delivered. He was replaced by Chief Etuntuya, the present respondent.

Trial court dismissed appellants claims or grounds that he has no locus standi. The court also gave Judgment in favour of the respondent in respect of the respondent’s counter claim for title to the disputed land but refused the claim for recovery of possession from the appellant on grounds of unsatisfactory evidence.

Appellant dissatisfied, appealed.

 

{Issues:}

 

  1. Whether the trial court correctly decided that the appellant did not have the necessary locus standi to prosecute the suit.

 

  1. Whether in view of the provisions of the Illiterates protection law, the documents, relied upon by the trial court could sustain the decision.

 

MAIN JUDGEMENTY

{Held – summary}

Unanimously dismissing the appeal.

 

  1. Exh 15 along with possession by the respondent herein which she evidenced through receipt of rents from her tenants, gave her an equitable title. Possession was thus rested in the respondent and that alone entitled her to a declaration of statutory right of occupancy in her favour.

 

  1. A tenant whose tenancy is subsisting pays rent. Since the appellant is still the tenant of the respondent and was not ordered by the court to give up possession what he should pay is called rent and not mesne profits although the amount remains the same whether it is rent or mesne profits.

 

  1. The Illiterates protection law is intended to protect illiterates. It can be relied on only by an illiterate or his privy not by a stranger without locus standi.

 

Lead Judgment Delivered by Uwaifo JCA

 

The house and landed property known as No. 8 Obalende Road and No 7 Ajeniya Street (both in Obalende Area), Lagos once belonged to late Teko Gayon Adelanvi. He got a head lease for a term of 67 years from the Governor and Commander-in-Chief of Nigeria (now the Lagos State Government) with effect from 14 September, 1939. The deed of lease was executed on 27 February, 1940 and registered as No 62 at page 62 in volume 504 in Lagos of the Register of Deeds: Exhibit 1.

 

The plaintiff was one of the tenants in that house at the time ownership and possession changed from Teko Adelanvi to Madam Natiwuru Otomewo. Exhibit 15 is a document headed Certificate No D278314 dated 11 April, 1967 issued by Teko Adelanvi to Madam Otomewo in acknowledgment of the full purchase price of £6,700:- received from her for the assignment of the unexpired lease. There is no dispute that Madam Otomewo was then put in effective possession of the property in question.

 

The plaintiff cannot truly deny this fact and the land-lordship of Madam Otomewo. Even after Madam Otomewo had died, the plaintiff addressed a letter dated 19 July, 1983 to Moses P. Otomewo (one of the Administrators of her estate) in reply to an earlier letter dated 5 July, 1983. Therein he admitted two relevant facts. First, he said ” I moved into a room and a parlour 20 years ago under the original owner late Mr. Teko Gayon who later sold this estate to late Madam Otomewo. There was another tenant in the room and parlour when I move in That has changed hands so many times before Madam handed it to me two years before her death. I recall that in August, 1982 you told me not to pay to the then rent collector, because he has not given proper account to the family. “The second fact relates to his default in payment of rent. He stated why as follows: “The reasons for the accumulation of rents was due to your instruction in August, 1982 and my father’s death, January, 1982 which I already mentioned to you”.

 

In spite of these available facts the plaintiff (now also appellant) out of his own bat brought an action against Moses P Otomewo on 7 March, 1984. The claim which was later amended asked for five reliefs including declarations, order for account, perpetual injunction and appointment of a receiver in respect of the said property. I need only set out the first relief which reads:-

 

“A declaration that the house and landed property situate at and known as 8, Obalende Road and 7, Ajeniya Street, in Obalende Area of the City of Lagos, belongs to children of late Teko Adelanvi by virtue of a deed of lease dated 27th day of February, 1940 and registered as No 62 at page 62 in volume 504 at the Lands Registry, Lagos and not the late Chief Madam Onoluwuru Otomewo as claimed by the defendant”.

 

The said Moses P. Otomewo died before judgment was delivered by the lower court He was substituted with the present defendant, Chief Mrs. Anna Ewutuya on 13 September, 1989 and on that same date Ayorinde J sitting at the High Court, Lagos delivered judgment in which he dismissed the plaintiff’s claim in its entirety. The learned trial Judge held that the plaintiff had no locus standi to sue: he was not a beneficiary of the estate of Teko Adelanyi; he was not a privy of Adelanyi in any way; and he had no authority to maintain the action. The learned trial Judge described the plaintiff aptly, in my view, as an interloper or a busybody; and considered him as having wasted time on a hopeless cause.

The defendant counter-claimed for four reliefs in effect, namely:

 

(a)     A declaration that she is the person entitled to a statutory right of occupancy

 

(b)     An order for possession of the apartment occupied by the plaintiff.

 

(c)     N7,488.00 arrears of rent from January, 1976 to September, 1985 at N64.00 per month

 

(d)     Mense profits from October, 1985 at the rae of N64.00 per month. The leaned trial Judge granted the declaration arrears of rent and mesne profits. But he refused to order possession on the grounds that the evidence led by the defendant on that relief was unsatisfactory. The defendant had asked for possession on the grounds that the plaintiff had constituted himself a nuisance as a tenant, that the property was in need of substantial repairs and that it was needed for personal use.

 

The defendant has not appealed against the refusal to grant her possession of the apartment occupied by the plaintiff. The plaintiff appealed against the judgment on six grounds which I may paraphrase as follows: The learned trial Judge erred:

 

(1)     For dismissing the plaintiff’s claim without going to the merits of it

 

(2)     For coming to the conclusion that he plaintiff lacked locus standi

 

(3)     For holding that the plaintiff was an interloper or busybody

 

(4)     For admitting in evidence a deed of assignment not legally admissible

 

(5)     For holding that the evidence of the defendant in support of the counter-claim was not controverted whereas the plaintiff in fact filed a defence to the counter-claim. The sixth ground which I should call No 6 was the omnibus ground that the judgment was against the weight of evidence.

 

It will be observed that the first three grounds are framed around the question whether the learned trial Judge correctly decided that the plaintiff did not have the necessary locus standi to prosecute the claim. The plaintiff/appellant thereafter formulated four issues for determination. The first one which purports to relate to the first three grounds of appeal asks: whether the trial Judge who dismissed the claim of the plaintiff because he lacked locus standi could properly give judgment on the counter-claim for the defendant against the interest of the children of Teko Adelanvi without joining the as necessary parties. The plaintiff/appellant then went on to canvass argument in his brief and through the oral argument of his counsel before us that once the learned trial Judge held that the plaintiff had no locus standi “the counter-claim of the defendant ought to have suffered the same fate” Indeed learned counsel for the appellant repeatedly used the idiomatic expression, “what is good for the goose is good for the gander”. I shall deal with this a little later on. But I must first consider the propriety of the said issue I vis-a-vis the grounds of appeal 1,2 and 3.

 

As I said earlier the grounds of appeal 1,2 and 3 are simply to the effect whether the learned trial Judge was right to have held that the plaintiff lacked locus standi to prosecute the cause of action and to regard him as an interloper or a busybody, and thereby dismiss the claim. The appellant has not formulated any issue on this nor did he, at any rate, proffer any argument along those grounds of appeal. All he argued is that if the Judge dismissed the claim on grounds of lack of locus standi, then he ought to have dismissed the counter-claim on the same grounds. That seems impliedly to concede that the learned trial Judge was right on the question of locus standi. There is however no ground of appeal upon which to base that issue as formulated and that argument on it as proffered. It is very well settled that an issue for determination must relate to a ground or grounds of appeal filed for it to be competent. see Olowosago v Adebanjo (1988) 4 NWLR (pt 88) 275; Okpala v Ibeme (1989) 2 NWLR (pt 102) 208. it has in fact been said that since an issue for determination in an appeal must be consistent with and fall within the scope of a ground or grounds of appeal filed, it cannot be formulated to be wider than the said ground or grounds of appeal from which it derives its existence: See Egbe v Alhaji (1990) 1 NWLR (pt 128) 546 at 590 per Karibi-Whyte JSC.

 

In the present case, not only is issue I not consistent with grounds 1, 2 and 3 of the appeal, it is far wider also than what those grounds contemplate. Therefore it is plain that the issue is incompetent, and must, together with the argument based on it, be struck out: See Akinbinu v Oseni (1992) 1 NWLR (pt 215) 97 at 118-119; Ogunlade v Adeleye (1992) 8 NWLR (pt 260) 409 at 420. I hereby do so. The result is that since no argument was canvassed on those grounds of appeal, they are considered abandoned: See Chukwuoquor v Obuora (1987) 3 NWLR (pt 61) 454; African Petroleum Ltd v Owodunni (1991) 8 NWLR (pt 210) 391.

 

Before I consider issues 2,3 and 4, I should perhaps ex abundanti cautela (or may be ex gratia) having regard to my view on issue I, comment that the learned trial Judge dismissed the plaintiff’s claim because he sought to fight a cause of action in which he has no interest at all except that he tried to do so on behalf of some other persons without their authority. However, as a person having a relationship of tenant and landlord with the defendant but who turned round to question the title of the landlord (the defendant) the defendant competently counter-claim against him to assert his title, demand arrears of rent and seek possession. The reasons given for seeking possession did not satisfy the learned trial Judge. it would be in the circumstances a misconception if the plaintiff were to contend that because he was declared not to have the locus standi to prosecute a cause of action undertaken by him, no doubt misguidedly, he could not be seen to have the capacity to defend an appropriate cause of action against him as an individual. he would not be heard to complain that the children of Teko Adelanvi ought to have been joined to defend his own wrong with him when there is no cause of action against them: See Afolayan v Ogunrinde (1990) 1 NWLR (pt 127) 369 at 386,396.

 

Issue 2 is whether the learned trial Judge was right to have relied on documents signed by Teko Adelanvi who was an illiterate. Reliance was placed on the Illiterates protection Law. The Illiterates’ Protection Law is intended for the protection of an illiterate: S.C.O.A. v Okon (1959) NCNLR 562 at 567; Djukpan v Orovuyovbe (1967) NMLR 287. It can be relied on only by him or his privy not by a stranger without locus standi like the plaintiff.

 

As regards issues 3 and 4, the same disability will generally debar the plaintiff/appellant from canvassing them. But I like to say specifically in respect of issue 3 that the certificate No D278314 dated issued by the said Teko Adelanvi as a receipt (Exhibit 15) together with the fact of possession given to Madam Otomewo by the said Adelanwi, which she evidenced through receipt of rents from her tenants gave her an equitable title. Possession was thus vested in her: See Abioye v Yakubu (1991) 5 NWLR (pt 190) 130 at 222. That fact alone entitled her to a declaration of her statutory right of occupancy claimed on her behalf in this case by the defendant: See Ngene v Igbo (1991) 7 NWLR (pt 203) 358 at 372-373; also section 34 (2) of the Land Use Act, 1978.

 

If I may add, Exhibit 20 is evidence of the Military Administrator of Lagos State’s consent to the assignment. It is contained in a letter reference No E.100/306/66 dated 21 December, 1966 addressed to Teko Adelanvi C/o Natiwuru Otomewo, 28, Ikoyi Road, Lagos the body whereof reads:

 

“1      I have the honour to refer to your letter dated 17th November, 1965 and to inform you that the Military Administrator of the Federal Territory has consented to the proposed assignment on the terms set out in the draft submitted by you.

 

  1. will you please endorse the engrossed Deed and Registry copy as follows:-

I consent to the transaction herein contained

Dated the ………..day of…………19………….

Military Administrator of the Federal Territory.

 

  1. You may now prepare the endorsements in respect of the transaction and submit them to the Chief Federal Land Officer for endorsement”.

 

The deed of assignment together with Transfer Forms in duplicate was presented later for the endorsement of the Military Administrator: See Exhibit 23; But the Transfer Forms were returned so that “the language or languages by which the documents were explained to the parties should be stated in the columns provided”. See Exhibit 24. There is no evidence as to whether this was complied with.

However, the said Teko Adelanvi had earlier on 15 April, 1966 addressed a letter (Exhibit 22) to the tenants in which he described himself as “Yours Old Landlord’ said:

 

“For your information you are hereby notify (sic) that my building at No 8, Obalende Road, Obalende and No 7, Ajeniya Street, Obalende has been sold to Madam Otomewo who is now your Landlady commenced as from 4th February, 1966.

 

I think the learned trial Judge was justified in making the declaration of the defendant’s statutory right of occupancy of the said property as claimed on behalf of the Administrators of the estate of Madam N. Otomewo.

 

Finally, I think in further regard to issue 4 the plaintiff/appellant has completely misconceived the evidence. I have already shown that since he has not appealed against the decision that he had not locus standi, he cannot be heard to dispute the evidence as to the installments in which the purchase price of the property was paid. However, on the facts, the documentary evidence is clear that two agreements dated 10/2/65 (Exhibit 16) and 22/3/65 (Exhibit 17) show that the purchase price of £6,700:- was to be paid by given installments. On 7/4/67, that is, some two years later, the said Teko Adelanvi signed a document headed Transfer of Leasehold Land under the Registration of Titles Act Cap 181 (exhibit 18) in which he acknowledged the receipt of the said £6,700: On 11/4/67, he signed another document (exhibit 15) in which he said Inter alia:

 

“I Teko Adelanvi of No. 8, Ajeniya Street, Obalende, Lagos, previous leasehold owner of No 7, Adeniya Street, and 8 Obalende Road, hereby certify that Madam Natiwuru Otomewo of 28 Ikoyi Road Lagos, has paid me the full purchase price of my Leasehold Property described above..The purchase price was £6,700 (six Thousand Seven Hundred Pounds).

 

I cannot conceive of any evidence more definite than as stated above that the purchase price was fully paid and duly acknowledged.

 

I find no merit whatsoever in this appeal. The learned trial Judge was right to hold that the plaintiff was a tenant of the estate of Madam Otomewo who was badly in arrears. He ordered arrears of N7,488.00 as rent from 1976 to September, 1985 to be paid by the plaintiff and mesne profits from them on. The plaintiff is still a tenant of an apartment in that property since the learned trial Judge did not order him to give up possession. What he should pay therefore as from October, 1985 is called rent not mesne profits. But the amount remains the same whether it is rent properly so-called or called mesne profits in error: see Attorney-General Bendel State v Aideyan (1989) 4 NWLR (pt 118) 646 at 679-680 per Nnaemeka-Agu JSC Umenyi v Ezeobi (1990) 3 NWLR (pt 140) 621 at 628. That amount in the present case remains at N64,00 per month until the defendant decides either to review the rent to reflect the present day realities and/or take steps to terminate the tenancy by the proper procedure and get rid of a defaulting and highly undesirable tenant. In the meantime the arrears of rent come to this: from 1976 to September, 1985 N7,488.00; and from October, 1985 to April, 1995 i.e. 115 months at N64.00 per month N7,360.00 Total, N15,848.00 which the plaintiff/appellant is hereby ordered to pay up to the defendant/respondent for the benefit of the estate of Madam Natiwuru Otomewo.

 

In the circumstances, I dismiss this appeal with N3,000.00 cost to the defendant/respondent against the plaintiff/appellant.

Ayoola and Pats-Acholonu JJCA concurred

 

{Nigerian cases referred to:}

  1. Bendel state v Aideyan (1989) 4 NWLR (Pt 118) 646

Abioye v Yakubu (1991) 5 NWLR (Pt 190) 130

Afolayan v Ogunde (1990) 1 NWLR (Pt 127) 369

AP Ltd v Owodunni (1991) 8 NWLR (Pt 210) 391

Akinbinu v Oseni (1992) 1 NWLR (Pt 215) 97

Chukwuqor v Obuora (1987) 3 NWLR (pt 61) 454

Djukpan v Onwuyoube (1967) NMLR 287

Egbe v Alhaji (1990) 1 NWLR (pt 128) 546

Njene v Igbo (1991) 7 NWLR (pt 203) 358

Ogunlade v Adeleye (1992) 8 NWLR (Pt 260) 409

Okpala v Ibeme (1989) 2 NWLR (Pt 102) 208

Olowosago v Adebanjo (1988) 4 NWLR (Pt 88) 275

SCOA v Okon (1959) SCNLR 562

Umenyi v Ezebi (1990) 3 NWLR (Pt 140) 621

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