3PLR – P.O. JOSHUA V. L.B. AGUSTO (No. 2)

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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P.O. JOSHUA

V.

L.B. AGUSTO (No. 2)
FEDERAL SUPREME COURT OF NIGERIA

F.S.C. 150/1961

25TH JULY, 1962

3PLR/1962/78  (FSC)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided)

JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Ruling of the Court)

REPRESENTATION:

Lardner -for the Applicant.

Moore, Q.C., (with him Agusto) -for the Respondent.

MAIN ISSUES

REAL ESTATE – APPEAL – Right of appeal to Privy Council – Appeal against decision bet­ween Landlord and tenant- Value of property for the purpose of appeal – How ascertainable.

PRACTICE AND PROCEDURE – APPEAL – Right of appeal to Privy Council – Section 114(1) (a) of 1960 Con­stitution – Dispute between landlord and tenant- Assessment of value of property in dispute – Annual rental value to be deciding factor.

MAIN JUDGMENT

TAYLOR, F.J. (Delivering the Ruling of the Court):         I shall throughout this Ruling, for the purposes of convenience, refer to the parties as plaintiff and defendant. The defendant is in two separate motions asking this Court (1) for conditional leave to appeal to Her Majesty in Council from the Judgment of this Court dated the 28th May, 1962, and (2) for a stay of execution pend­ing the determination of such appeal.

In respect of the first application, Mr. Lardner moving on behalf of the defendant, relied on s.114(1)(a) of the Constitution of the Federation of Nigeria as giving the defendant a right of appeal as of right where the matter in dispute, to use the words of the section:­

“is of the value of five hundred pounds or upwards or where the appeal involves directly or indirectly a claim to or question re­specting property or a right of the value of five hundred pounds or upwards ………..

He added that the Affidavits filed in the motion disclose that the appeal involves the determination of a right of the defendant to possession of the area in dispute, which right was, to him, worth more than £500. No counter-af­fidavit has been filed by the plaintiff in this matter, but our attention was drawn by Chief Moore to a statement in the Writ of Summons placing the an­nual rent of the whole premises, of which the subject matter of the appeal is a part, at £180, and that this fact was never controverted at the hearing, as a result of which the learned Acting Chief Magistrate was vested with jurisdic­tion.

 

It would, at this stage, be convenient to set out as shortly as possible the facts involved in the substantial appeal.

 

The plaintiff is a purchaser from one Adewunmi of certain portion of land abutting the lagoon, of which the portion in dis­pute forms part by virtue of certain acts of reclamation done by Adewunmi and his tenant, the defendant. The defendant was paying to Adewunmi a rental of £17 a month for the whole pre­mises, which was later increased to £19 a month when the plain­tiff purchased the property. The defendant was in arrears of rent and the plaintiff sued him for such arrears and for possession. The defendant was ordered to give up possession by the learned Acting Chief Magistrate and an order was made for payment by him to the plaintiff of the sum of £332 as arrears of rent.

 

There was no appeal lodged against the order for arrears of rent, and in re­spect of the order for possession the defendant only contested the order in so far as it affected the portion reclaimed on the grounds that he was paying an Occupation Licence Fee to the Crown and that as such he was a tenant of the Crown and not of the plaintiff. The sole point on appeal therefore was as to whether the plaintiff was entitled to possession of the area reclaimed.

 

As to the basis of Computation of the value of the right or property in­volved, I would here refer to and endorse the Judgment of Bairamian, J. (as he then was) in the case of Logios v. Custodian of Enemy Property, 19 N.L.R. 34, where he says this, at page 36:­

 

“This section 3, (West African Court of Appeal Ordinance) in so far as is relevant to the case in hand, provides as follows:­

 

An appeal shall lie to the Court of appeal (viz. the West Af­rican Court of Appeal):­

 

(a)     from all final judgments and decisions of the Supreme Court ……………………..

 

(ii)     determining, directly or indirectly, a claim or ques­tion respecting property or any civil right or other matter, where such property, civil right or other mat­ter is of the value of fifty pounds or upwards.

 

The dispute here is between landlord and tenant. The rent pay­able for the house was four pounds a month. The tenant does not claim a title to the house itself; so the value of the house itself is not the criterion. His “property” or “civil right” is merely his lease from month to month. The word “property” has a wide meaning and may be taken to include leasehold property, as it does, for example, in bankruptcy in regard to the realizing of the assets of the debtor. In the case in hand the value of the subject­-matter is four pounds and no more; or if one felt inclined to take section 19(1)(b) of the Magistrates’ Courts Ordinance as the basis to decide the value by, one could say the annual value or rent was £48 and take this amount as the value of the subject-mat­ter in this case; but this is as far as one could go. It follows that an appeal does not lie.”

 

In the present application Mr. Lardner has put the annual rental value of the land as being “at least £80” in paragraph 4 of his affidavit. This is a matter between Landlord and Tenant, and the present defendant has never at any time asserted title to the property in dispute. The value therefore of his right to possession would be at the most, assessed on a yearly basis, £80 as deposed to. This would therefore not give him a right of appeal.

 

Both of these applications are dismissed with costs assessed at eight guineas to the Respondent.

 

ADEMOLA, C.J.F.:          I concur.

 

Applications dismissed.

 

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