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25TH FEBRUARY, 1972.

SUIT NO. SC 309/1970.

3PLR/1972/89  (SC)



(1972) 2 S.C. (REPRINT) 97













Mr. O. A. Braithwaite (with him Mr. A.O. Olatera), for Appellant

Mr. M. Ameen (with him A.A Ogundele), for 1st Respondent Mr. Olorunimbe for 2nd Respondent.


Land Law – Recovery of Premises – Mesne Profits – Unlawful transfer of possession to another party – Letter requesting payment of rent – If waiver of breach.


SOWEMIMO, Ag. J.S.C. (Delivering the Judgment of the Court): The appellant, who was the plaintiff in Suit LD/371/69 instituted an action In the High Court of Lagos State, claiming possession of a dwelling house at 3, Payne Crescent, Apapa from the defendants. She also claimed means profits and water rate from the two defendants and from the 1st defendant the sum of £1,000 as damages for breach of covenant.


Pleadings were ordered and duly filed. The clevant averments in the Statement of Claim are as follows:


“2.     In November 1966, the first defendant took a lease of the premises from the plaintiff for a term of Two years at an annual rent of £500 per annum payable in advance.


  1. The said Lease contained covenants by the first defendant, among other things, to pay his rent; to pay water rates in respect of the premises and not to assign or underlet or part with the possession of the premises without the prior written consent of the plaintiff.


  1. The first defendant, also covenanted to deliver up to the plaintiff the premises in good condition and repair at the expiration of the term of the Lease.


  1. The 1st defendant in breach of his covenants neglected to pay water rates of the premises during the term.


  1. The 1st defendant also in dear breach of his covenant part with the possession of the premises during the term to the second defendant and that without the written consent or approval of the plaintiff.


  1. In putting the second defendant into possession of the premises the 1st defendant tricked and or employed dubious means to get the plaintiff into believing that he 1st defendant was paying rent for the premises for the year beginning December 1968 when in actual fact, he was merely trying to force the second defendant on the plaintiff as the letter’s tenant.


  1. In the course of the maneuvers averred in paragraph 7 above, the list defendant gave a cheque for £250 to the plaintiff and which cheque was dishonoured by his bank. The plaintiff had to refer the matter to the Police, before, he paid the £250 in cash.


  1. The plaintiff has persistently requested the 1st defendant to deliver up the premises to her in accordance with his covenant since the expiration of his tern but he refused.


  1. Consequently, the plaintiff served on both defendants a notice in writing dated 24th June, 1969 or her intention to recover possession of the premises.”


The 1 at defendant in his Statement of Defence averred as follows:


“7.     The defendant denies the facts contained in paragraphs 5, 6, 7, 8, and 9 of the Statement of Claim and puts the plaintiff to the strictest proof of the facts contained therein.


  1. The defendant is not in a position to deny or affirm the facts contained in paragraphs 1, 2, 3, and 4 of the Statement of Claim and puts the plaintiff to the strict proof of these facts.


  1. The defendant further avers that the plaintiff refused to give to him a copy of the Lease Agreement which was at all time in her (Plaintiff’s) possession and despite repeated demands for the same he (the defendant) is still without a copy of this Agreement.


  1. The defendant avers that apart from the falsehood of the facts contained in paragraph 7 of the Statement of Claim in the defendant will contend that the said paragraph is vexatious and very embarrassing and should be expunged from the Statement of Claim.


  1. The defendant avers that on the 27th of January, 1969 the plaintiff personally issued a receipt to the second defendant, for the sum of £250 as money paid for rent for six months from December, 1968 to May, 1969 in respect of the premises the subject matter of this action 3, Payne Crescent, Apapa.


  1. The plaintiff was informed and agreed to the possession of the premises being taken up by the 2nd defendant.


  1. The plaintiff knew and recognised the fact that the 2nd defendant is in occupation and possession of the premises the subject matter of this action. 8. The plaintiff’s Solicitors confirmed the statements contained in paragraph seven above in his letters of the 11th December, 1968 to the defendant and another dated 28th of November, 1968 to the defendant.


  1. The defendant shall contend at the hearing of the case that the plaintiff cannot be heard anymore to dispute the possession of the 2nd defendant on the premises the subject matter of the action.


The 2nd defendant averred in his Statement of Defence as follows:


“1.     The 2nd defendant is not in position to admit or deny paragraph 1 of the Statement of Claim and puts the plaintiff in strict proof thereof.


  1. The 2nd defendant is not in a position to admit or deny paragraph 2, 3, 4, 5, 6, 8, and 9 of the Statement of Claim and puts the plaintiff in strict proof thereof.


  1. With reference to paragraph 7 of the Statement of Claim, the 2nd defendant denies the allegation that he was forced on the plaintiff as a tenant and avers that he (2nd defendant) paid a sum of two hundred and fifty pounds (£250) being rent for the period December, 1968 to May, 1969 directly to the plaintiff and was Issued with a receipt dated the 27th day of January, 1969 duly signed by the plaintiff.


  1. The 2nd defendant further avers that as a result of the payment of £250 (as stated in paragraph 3 above), he will contend at the trial that he occupies the said premises, 3, Payne Crescent, Apapa, the subject matter of this Suit with the knowledge and approval of the plaintiff,


  1. The 2nd defendant avers with further reference to paragraph 7 of the Statement of Claim, that he instructed his Solicitor – W.L. Dosunmu Esq. to forward a further sum of £125 by cheque being rent for the period of June, 1969 to August, 1969 to the plaintiff care of her Solicitors Messrs. Tunji Braithwaite AND Co. the receipt of which has not been acknowledged up till now.


  1. The 2nd defendant avers that there is no specific agreement between the plaintiff and himself whether rent in respect of the subject matter of this suit is to be paid yearly or half-yearly, or quarterly or monthly.


  1. The 2nd defendant is not In a position to admit or deny paragraph 10 of the Statement of Claim and puts the plaintiff in strict proof thereof.


The case came for hearing on 28th and 29th May, 1970. The plaintiff gave evidence and called two witnesses. The defendants elected not to call evidence.


The learned trial Judge, Dosunmu, J. delivered his judgment on the 8th of June, 1970 and dismissed the claims of the plaintiff. It is against this judgment that plaintiff has appealed to this Court.


It is perhaps pertinent, at this stage, to refer to this portion of the records of proceedings in the lower court before evidence was heard on the 28th May 1970 and which reads –


“Court:        I observe that the action is both for possession of the premises and damages for a covenant. What is your ground for possession?


Braithwaite:          The grounds which possession is sought against the defendants effluxion of time (2) breach of covenant to sublet or assign, (3) failure to deliver up possession.”


The plaintiff in her evidence tendered the lease between the 1st defendant and herself and this was admitted as Exh. “A”. The lease is for a period of two years commencing from 1st of December, 1966. The rent reserved on Exh. “A” is £500 per annum for the whole of the premises. It is not in dispute that the 1st defendant paid the rent for the two years which expired at the end of November, 1968. In May 1968, whilst the lease was still subsisting, the list defendant informed the plaintiff that “since his people had arrived” he found the premises too small to accommodate them all, and he had to move to another premises leaving his people behind. At the expiry of the period of the lease the plaintiff sought for 1st defendant but did not see him until January, 1969. When the plaintiff eventually saw him she requested for the keys of the premises, in order to resume possession. The 1st defendant directed her to one Saidi who, he said was in the house at 3 Payne Crescent. The keys were not however handed over to the plaintiff.


Sometime in February, 1969 the 1st defendant gave the plaintiff a cheque for £250 as rent for a half year period, that is for 1st December, 1968 to 31st May, 1969. A receipt for this amount was issued sometime in January 1969 to the 1st defendant, and tendered in evidence as Exh. “H”. The cheque for £250 was however dishonoured. A report was made to the police. i he constable who dealt with the matter is P.W.3 and the relevant portion of his evidence reads –


“On the third February, 1969 as a result of a complaint by the plaintiff at the Central C.I.D. of a bounced cheque issued to her, I was directed by my Superior Officer S. Momoh to go into the matter. I went with the plaintiff together with her lawyer to an address opposite the Kingsway at Apapa. She Identified the 1st defendant as the person who gave her the cheque. The 1st defendant asked me to sit down and he rang the telephone somewhere. Some five minutes later the 2nd defendant came in and the two spoke their language. The 1st defendant said that it was the 2nd defendant who issued the cheque. I disclosed my identity to him and he said that the cheque bounced as a result of his mistake. The 1st defendant implored me to follow them to the Bank, and we all left for the Bank at Creek Road. The two defendant(s) entered the Bank and came out with a bundle of money in their hand. From there we went to the C.I.D. and they had interview with O. C. Fraud. The defendants explained why the cheque bounced and they apologised to the plaintiff for the embarrassment caused her.”


This witness was not cross-examined. The 1st and 2nd defendants, as earlier stated, elected not to call evidence at the trial. From the evidence the following facts were established:-


  1. The plaintiff leased her property to 1st defendant for a term of two years at an annual rental value of £500.


  1. That the term expired at the end of November, 1968 but the 1st defendant refused to give ”up possession and also failed to exercise his right to renew the lease.


  1. That on the 27th January, 1969 the 1st defendant gave a cheque for £250 to the plaintiff and requested her to Issue a receipt for the amount in the name of 2nd defendant, who was at that time unknown to the plaintiff.


  1. That the cheque for £250 was dishonoured and 1st defendant on being apprehended by the police sent for the 2nd defendant and that 1st defendant begged that the Issue of the cheque was due to a mistake and later paid a sum of £250 in cash to the plaintiff.


  1. That at all material times the plaintiff never regarded the 2nd defendant as her tenant and did not at any time give her consent either orally or in writing to the 1st defendant to sublet the premises to the 2nd defendant.


  1. That it was provided in a covenant in the lease that 1st defendant must obtain written consent from the plaintiff before sub-letting or assigning the lease.


The learned trial Judge held that by virtue of the receipt Exh. “H” issued by plaintiff to 1st defendant wherein the name of 2nd defendant was inserted, the relationship of landlady and tenant was thus created as between plaintiff and 2nd defendant. The cheque for which Exh. “H” was issued was dishonoured, and the evidence, which was not contradicted was to the effect that it was 1st defendant who gave her the cheque for the rent due for the half-yeady period from December 1968 to May, 1969. With respect to the learned trial Judge, we do not see how any legal relationship could be created by Exh. “H”. Exh. “H” was not a valid receipt for what subsequently happened to the cheque. The 2nd defendant never gave evidence that Exh “H” was issued to him by the plaintiff or that he has a cheque for £250 to the plaintiff as his landlady. He did not give evidence that he was in possession of the property by virtue of Exh. “H”. The learned trial Judge misconstrued the issues triable on the pleadings and therefore came to an erroneous conclusion with regards to Exh. “H” that is to say that by virtue of Exh. “H” the 2nd defendant became the tenant of the plaintiff.


On the issue of a written consent the learned trial Judge proceeded to consider Exh. “G”, which was a letter from plaintiff’s Solicitor to the 2nd defendant, as sufficient evidence from which it could be inferred that there was a waiver of the breach of covenant against subletting without written consent. Exh. “G” reads –


“Mr. Ants Saidi, 18, Creek Road, Apapa.


Dear Sir,


Re: 3, Payne Crescent, Apapa


We are Solicitors to Mrs. A. A. Lisboa, the owner of the above-named premises.


We are informed that you (are) now in occupation of the said premises without the consent nor approval of our client. It is true the former tenant, Mr. Fawaz who claims you are his relation, mentioned that fact that you might be taking over from him to our client. But nevertheless, it is for you to approach our client and enter into an Agreement as to your occupation of the house.


We now give you notice that unless you pay the sum of £500 on or before December, 1st 1968 for the year beginning therefrom, we shall have to eject in addition to claiming damages from you and from Mr. Fawaz for your unlawful occupation of the house.


TAKE NOTICE FURTHER that our client is quite willing to enter into terms with you, but on your payment of the £500 representing one year’s rent in advance by the date aforesaid.”


With respect we failed to see what portion of this letter constitutes such a waiver. The learned trial Judge held further that because the plaintiff was aware of the breach of covenant against subletting without consent, and that having requested payment of the rent in the letter (Exh. “G”) then, of course, he plaintiff could not be heard to complain of the breach. The learned trial Judge did not consider that unless there is evidence of conduct or words of the plaintiff, from which a waiver could be said to have been established, he could not be justified in holding, as he did, that there was a waiver. The 2nd defendant did not give evidence of any consent (let alone a written consent) by the plaintiff or any waiver for that matter.


In the absence of such evidence, we are unable to support that portion of the judgment where the learned trial Judge held that Exh. “H” read along with Exh. “G” constitutes a waiver.


On appeal before us, the appellant’s counsel contended that since the plaintiff had denied that she consented to the occupation of her property by the 2nd defendant then such occupation was unlawful. We are satisfied that there was abundant evidence before the learned trial Judge that at no time did the plaintiff agree to the occupation of her property by the 2nd defendant, and that she did not agree that 1st defendant should sublet the premises to the 2nd defendant. That, in our view, should have disposed of the claim for possession for the breach of covenant made.


Much argument had been put forward by the respondents’ counsel on the effect of certain sections of the Recovery of Premises Act, as well as the Rent Control Act, 1965 (which replaces the Rent Restriction Act). In our view, the sections referred to are irrelevant for the consideration of this appeal.


The appeal succeeds and it is allowed. The judgment of the learned trial Judge dismissing the claim for possession is set aside as well as the Order for costs. In substitution thereof we order that the 1st and 2nd defendants should give up possession of the premises on or before the 29th of February, 1972.


There was a claim for mesne profits for use and occupation of the premises from the 1st of December, 1969 up to date of this judgment, at the rate of £500 per annum. The learned trial Judge completely failed to decide this claim although there was uncontradicted evidence before him in support of the claim. This point was raised before us and we consider that on the Evidence before the learned trial Judge he should have given judgment on the mesne profits as claimed. We now make the order for the payment of mesne profits claimed. The total mesne profits payable for the period 1st of December, 1969 to 29th of February, 1972 is £1,125 as mesne profits.


With regard to the dismissal of the claim for refund of water rate dues, and general damages for breach of covenant, we are in agreement with him because no evidence was led in support of the two items of claim. In the result, the appeal is allowed. Judgment is entered for the plaintiff as follows:


  1. The tat and 2nd defendants are hereby ordered to give up possession of 3, Payne Crescent, Apapa on or before the 29th of February, 1972.


  1. The plaintiff/appellant is awarded £1,125 as mesne profits for use and occupation of the premises by the 1st defendant for the period of 2 years and 3 months, that is, from the 1st of December, 1969 to the 29th of February, 1972.


And this shall be the judgment of the Court:


The plaintiff/appellant is awarded costs of 66 guineas against the defendant/respondent in this Court and 91 guineas in the lower Court.


Appeal allowed.


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