3PLR – M.A. BALOGUN V. LAGOS EXECUTIVE DEVELOPMENT BOARD HIGH COURT OF

M.A. BALOGUN

V.

LAGOS EXECUTIVE DEVELOPMENT BOARD

HIGH COURT OF LAGOS

23RD JANUARY, 1963

(1963) LLR 13.

3PLR/1963/54  (HC-L)

 

 

BEFORE:

DE LESTANG, C.J.

REPRESENTATION

Noibi for the appellant.

Adewunmi for the respondent.

MAIN ISSUES

REAL ESTATE – LANDLORD AND TENANT-Notice to quit-Notice given by solicitor not authorized in writing—Whether notice valid-Recovery of Premises Act, section 7.

REAL ESTATE – LANDLORD AND TENANT-Recovery of Premises-Several Cases for possession by the same landlord against different tenants-Verbal application for consolidation­ – Order for consolidation-Whether valid-Magistrates’ Court (Civil Procedure) Rules, Order XI r. 1.

Words and Phrases-”Agent.”

MAIN JUDGMENT

DE LESTANG, C.J.:-This is a tenant’s appeal against a decision of the Magistrate’s Court, Yaba, ordering him to pay £35 arrears of rent, mesne profits at the rate of £2-10s per month from October, 1962 and to give up possession of the premises in suit on the ground of arrears of rent.

 

The tenant /appellant was neither present nor represented at the hearing in the Court below and the decision was accordingly given in his absence. He appeals on several grounds.

 

The fir.;, is that the seven days notice of intention to recover possession was bad because it was given by the landlord’s solicitor who was not proved to have been authorized in writing to do so.

 

Section 7 of the Recovery of Premises Act requires the seven days notice, which is a condition precedent to obtaining an order for possession, to be given by the landlord or his agent and “agent” is defined in section 2 as meaning “any person specially authorized to act in a particular manner by writing under the hand of the landlord.” Thus it was held in Ayiwoh v. Hadji Akorede 20 N.L.R. 4 that a solicitor, unless specially authorized in writing by the landlord could not serve a statutory notice required by section 7 of the Act. There was clearly no evidence in the present case that the solicitor was authorized in writing by the landlord, con­sequently he was not entitled under the Act to give the seven days’ notice. That notice is accordingly invalid and the order for posses­sion cannot therefore stand.

 

Another ground of appeal reads

 

“The learned trial Magistrate erred in law in granting the plaintiff’s application to consolidate the cases enu­merated at page 8 of the Record of Appeal.”

 

It would appear that on the day fixed for hearing of the present case there were 13 other cases for possession by the same landlord against different tenants. The landlord was represented by his solicitor but none of the tenants was either present or represented by a legal practitioner. The landlord’s solicitor made a verbal application for the consolidation of all 14 cases which the learned Magistrate granted.

 

It is contended for the appellant that an application for consolida­tion can only be made on notice to the other party and consequently must be in writing. This contention is in my view correct and it is only necessary to quote Order XI Rule 1 of the Magistrates’ Court (Civil Procedure) Rules to show that this is so. That Rule reads

 

“Actions or matters pending in the same Court may be consolidated by Order of the Court of its own motion or on the application of any party on notice.”

 

I stress the words “on notice.” The Order for consolidation was therefore bad. While on this subject I should like to point out that cases of recovery of premises should not in general be consoli­dated as such question as hardship or reasonableness can only he decided on the facts of each case. So consolidation serves no useful purpose and can only complicate matters.

 

There are two other grounds of appeal but in view of my decision on the two grounds above it is not necessary to consider them. The appeal is allowed. The decision of the Court below together with the order for costs is set aside and a retrial is ordered before another Magistrate having jurisdiction. The appellant will have the costs of this appeal which I assess at x;10-10s (ten guineas). The cost of the first trial will abide the result of the retrial.

 

Appeal allowed. Decision of trial Court set aside and retrial before another Magistrate ordered.

 

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