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31ST MARCH, 1969


3PLR/1969/59  (HC-L)





Osomo (Mrs) – for the Defendant/Appellant

Anumonye for Balogun – for the Plaintiff/Respondent



The plaintiff in the Court below, now the respondent, sued the defendant in respect of arrears of rent payable for the latter’s occupation or tenancy of the premises situate at 32 Bishop Street Lagos. The sum due was £26.8s.0d. for the months July to December, 1964, January 1965 to September, 1966. A claim was also made for £1 a month for mesne profits until possession is delivered. In addition to the ground of arrears of rent, the plaintiff also seeks an order for possession on the ground of personal user.

There are two material facts which are not in dispute in this case on appeal. Firstly that defendant had been paying rents to the plaintiff between 1959 and 1964 and receipts were issued to him for he said this:-


“I agree that between 1959 to June, 1946 the plaintiff issued over 25 receipts to me. I read all receipts given to me by the plaintiff.”


Secondly that since 1964 the defendant has not paid rent to the plaintiff. In his evidence the defendant would however have the Court believe in spite of the evidence of payment of rent that:-


“All the monies I have been paying to the plaintiff are not in respect of rent but water rates. I stopped paying plaintiff any money since 1964.”


Yet a little earlier still he said that:-


“I told the plaintiff that I would co-operate with him in the payment of water rates. I know that the room in question belonged to him before the death of my Aunt.”


In the next breath he stated that:


“I know that the room in question became my absolute property in 1954” and yet he paid rents to the plaintiff for 5 years.

The appellant’s case on appeal from the Judgment of the Court below for the plaintiff for arrears of rent and possession on or by 31st May, 1967 is based on two contentions. In the first place it is argued that the action should have been instituted by the plaintiff in a representative capacity; representative because, I take it the plaintiff is not the sole owner of the property. He is merely the head. This ground is of course in complete conflict with and must be taken as alternative to the other contention that there was an issue of title raised which the Trial Court had no jurisdiction to try.


The first point can be summarily dismissed for the evidence of the plain-tiff as to ownership of the room in question could not have been more positive. This is his evidence on the point:-


“The whole premises belong to both my late father and Suberu Dawodu. The whole premises belong to the whole children of my father. The whole house has been given to me by my father before he died. Thus I am the sole owner of the premises.”


I now turn to the contention as to an issue of title being raised by the defendant for it was on this ground only that I called on the respondent to reply. Mr. Noibi for the appellant, contended that it was the duty of the learned trial Magistrate once an issue of title was raised, to try the issue in order to see whether it is a genuine issue, and that if he finds this to be so to decline to continue with the suit. Learned counsel urged that by not taking this line of action the Magistrate was doing the very thing he was excluded from doing by s.14(2)(a) of the Magistrate’s Court (Lagos) Act. That sub-Section is to be read together with ss.3. They provide that:


“Subject to the provisions of any other Ordinance, a Chief Magistrate (and all other Magistrates) shall not exercise original jurisdiction in any cause or matter which:


(a)     raises any issue as to the title to land, or to any interest in land; or …….


My attention here was also drawn to the case of Oluwo & Another v. Adebowale 4 F.S.C. 143 where Mbanefo F.J. as he then was said as obiter dictum at page 145 as follows dealing with the same subsection of Section 14:


“Although not stated expressly the proviso should be read with the qualification that the issue as to title must be raised bonafide. Whether the issue is raised bonafide or not is an interlocutory matter for the Magistrate to decide on the evidence before him, and, ordinarily, he should decide it as soon as the issue is raised, before assuming or continuing to exercise jurisdiction to hear the case.”


Although this is obiter, I am of the view, with the greatest respect, that it correctly states the law and I would here like to give emphasis to the words: “whether the issue is raised” and “as soon as the issue is raised.” In short the issue MUST and I repeat MUST be raised. Now how is it to be raised? In the present case on appeal the defendant was served with Form G which enjoins him to send in a defence in these words:


“If you dispute the claim or have a counter claim you should within 7 days after the service of the summons on you, inclusive of the day of service, send to the Registrar a defence or counter-claim for which the form below may be used…..”


The form attached and in which the defendant was to send his defence was never completed and certainly never dispatched to the Registrar. The defendant appeared in Court and was represented by Mr. Noibi on the 17th November, 1966 and his plea is recorded as:


“The defendant pleads not liable. The defendant is resisting possession.”


When the suit was again called on the 2nd December, 1966 the defendant appearing through Learned Counsel made the same plea though differently worded. On neither of these occasions nor on the written form supplied by the Court for stating a defence was any defence, plea or issue of title raised and the case proceeded to hearing. It is more important to note that even during the hearing of the defence which oscillated between title being in the plaintiff and the defendant at no stage did Learned Counsel RAISE an issue of title and submit to the Court that he was so doing. In such circumstances it would have been obligatory on the Court to try the issue and give a ruling.


I have over and over again endeavoured to impress on Courts below that in cases in which statutory forms are sent by the Registry to parties to complete and state their defence, plea or counter claim, it is obligatory on the defendants to notify the Courts of such defence, plea or counter claim. The plaintiff is entitled to know what case will be set up by the defendant, and this before the hearing begins. Where a defendant has a special defence such as in the case on appeal it MUST and I repeat MUST be raised in Form G before the hearing. If this is not done the defendant is not entitled to be heard on such a special defence without leave of the Court and on such terms as to the Court shall seem just having regard to the particular circumstances of the case.


If, as in the present case, no defence or issue of title is raised in Form G or by objection by Learned Counsel which would require a ruling the Court is not expected to descend the arena because a defendant in his evidence chooses to vacillate between title being in the plaintiff in one breath and in the defendant in the next.

The laxity on the part of the parties or their Counsel in not completing the statutory forms sent round by the Registry was also disapproved by the Supreme Court in Bisiriyu Ajose v. H.A. Agusto & Others S.C. 565/65 to which my attention was drawn by Mr. B. Balogun for the respondent. Mr. Justice Bairamian J.S.C. said that:-


“The suit is framed as between landlord and tenant; the plaintiff’s claim is possession, arrears of rent, and mesne profits. The defendant’s Counsel pleaded orally:-


‘Not liable for rent arrears, and resists possession’


his evidence was that he had become the tenant of the superior land-lord-which must have come as a surprise. We deprecate that course of conduct on the part of the defendant’s counsel who did not explain why the defendant was not liable for rent arrears and why he resisted possession.”


The case of Fowler v. Fowler 1964 L.H.C.R. 31 at 33 bears up my earlier contention as to the raising of the issue of title. In that case Onyeama J. said that:-


“The Magistrate was mindful of the need to consider the claim of title set up by the defendant. He ruled that the issue was not raised bonafide. In his ruling he set out the portion of the Judgment of the Federal Supreme Court in Oluwo v. Adebowale already quoted …….


In the instant case, the question of title not having been raised during the proceedings until learned counsel addressed on it at the close of the case there was nothing on which the learned Magistrate could give a ruling or try as a preliminary or interlocutory matter.


Having read the proceedings and having heard learned counsel on appeal there can be no other conclusion than that the defendant and his witness did not depose to a bonafide contention as to title. I have used the word “deposed to” as distinct from “raised” deliberately for the latter word is not appropriate to describe what took place in these proceedings.


The appeal is dismissed with costs assessed at 30 guineas to the respondent.


Appeal dismissed.



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