3PLR – A.O.OYEKOYA V. G.B. OLLIVANT (NIGERIA) LTD
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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A.O.OYEKOYA
SUPREME COURT OF NIGERIA
SUIT NO. S.C. 557/66
3PLR/1969/86 (SC)
BEFORE THEIR LORDSHIPS:
COKER
LEWIS
MADARIKAN JJ.S.C.
REPRESENTATION
Sotubo – for the Plaintiff/Appellant
Coker – for the Defendant/Respondent
MAIN JUDGEMENT
LEWIS, J.S.C.:
In Suit J/45/63 the plaintiff endorsed his writ of summons to the following effect –
“The plaintiff’s claim against the defendants is for the sum of £3127.1 s.7d (three thousand one hundred and twenty-seven pounds one shilling and seven pence) being special and general damages for unlawful ejectment of the plaintiff and trespass committed by the defendants against the plaintiff’s goods at 144 Akarigbo Street, Shagamu, Ijebu-Remo by wrongfully entering into the plaintiff’s shop and living apartment.
On the 16th of April the defendants wrongfully entered the plaintiff’s shop and living apartment at 144 Akarigbo Street, Shagamu and removed the plaintiff’s stock in trade and personal effects without the plaintiff’s knowledge and consent.
The plaintiff is a credit customer of the defendants.
PARTICULARS OF DAMAGES Special damages
Cost of stock in trade removed and not returned £681.1Os. 7d.
Cost of personal effects removed and still missing 44. 11 s. Od. General Damages 2000. Os. Od. £3127. Is. 7d
That defendants have failed or neglected to pay despite repeated demands”.
On the 14th of December, 1965 Oyemade J. (as he then was) in the Ijebu-Ode High Court dismissed the claim of the plaintiff against the defendant company with 35 guineas costs and against that decision the plaintiff has appealed to this Court.
The plaintiff was employed by G. B. Ollivant Ltd. and entered into a ser-vice agreement (ex. ‘1’) with G. B. Ollivant Ltd. That company was tenant of a shop at 144 Akarigbo Street, Shagamu and on the 3rd of May, 1955 permission was given by that company for the plaintiff to occupy rooms behind the shop in a letter which read:-
THE ALL NIGERIA LAW REPORTS 1969 79
- O. OYEKOYA V. G. B. OLLIVANT (NIGERIA) LTD.
Mr. A. O. Oyekoya,
c/o Messrs. G. B. Ollivant Ltd. Shaganut
3rd May, 1955.
Dear Sir,
I refer to your letter of 25th April, 1955, and confirm my agreement to you and your family living on the premises behind our Shagamu shop.
This permission is given on the strict understanding that should we, for any reason, wish you to vacate the premises, you will do so at a month’s notice.
Yours faithfully,
p.p. G. B. OLLIVANT LIMITED, (Sgd.) J. J. RAMWELL General Manager
Later G. B. Ollivant Ltd., was taken over by the defendant company which accepted the liabilities of the former company and the plaintiff entered into a fresh service agreement with the defendant company and otherwise remained on the premises at 144 Akarigbo Street, Shagamu. On the 2nd of March, 1962 the defendant company took possession of the shop and the plaintiff moved his goods into the apartment of the shop where he was living and on the same day the defendant company served on him a letter dated the 27th of February, 1962 (ex.‘6’) which gave him 7 days notice to vacate the premises he was occupying. The defendant company in fact did not attempt to eject him till the 16th of April, 1962 when the 1st defendant’s witness, the Acting Manager of the defendant company, together with one Mr. Archer and one Chief Banjo went to 144 Akarigbo Street, Shagamu and made an inventory (ex. ‘12’) of the goods of the plaintiff which were there and later removed them to a U. A. C. store nearby where they were delivered to the plaintiff on the 27th of June, 1962. The plaintiff then complained that all his goods were not there and the missing goods as shown in ex. ‘13’ became the subject matter of the claim for special damages in the action.
Now the learned trial judge in his judgment held that whilst the plaintiff was entitled to 30 days notice and only got 7 days notice in the letter (ex. W), nonetheless, the defendant company did not try to eject him till 45 days after serving the notice on him so that the learned trial judge held that he had nothing to complain about. He further believed the evidence of the defendant company as to what goods of the plaintiff were on the premises as shown by ex. ‘12’ and rejected the plaintiff’s claim that the missing goods were there.
The 1st point taken by Mr. Sombo for the appellant is that the plaintiff was, according to the agreement (ex. W), entitled to one month’s notice, not 30 days as found by the learned trial judge, and that he was only given 7 days so that the defendant company could not rely on the notice and the plaintiff was entitled accordingly to damages and he craved in aid Yaskey v. The Freetown City Council 1 WA.C.A. 297 to show that following that case the plaintiff was entitled to one month’s notice expiring at the end of the month following on the current month of the tenancy. Mr. Sotubo then submitted that the defendant company was not entitled to eject the plaintiff forcibly but should have taken an action for ejectment. He finally submitted that the learned trial judge should have accepted the evidence of the plain-tiff of what goods he had on the premises as only the 1st defendant’s wit-ness, the acting manager, in fact knew what goods were in two locked rooms and that witness had alleged that one of the plaintiff’s wives was there, yet this was never put to her under cross-examination when she gave evidence earlier in the hearing for the plaintiff. If this Court was against him on that point he asked us for an award of general damages.
Mr. Coker for the respondent agreed that the defendant company had not served the proper notice but he sought to rely on Mobil Oil (Nigeria) Ltd. v. Johnson [1961] All N. L. R. 93 where at page 101 Ademola C. J. F. said-
“In the present appeal, it is clear to me from the agreement itself (exhibit ‘A’) as well as from the circumstances of the whole matter and the conduct of the parties that it was never intended that a tenancy should be created; that the relationship between the parties was no more than that of a licensor and licensee.
This disposes of the first part of the appeal. There is a second question. Was the respondent wrongly ejected? Was the notice served on him a good and valid notice? The plaintiff in his writ claimed £5,000 for tress-pass committed by the defendant for unlawful entry. In paragraph 8 of his statement of claim he said the unlawful entry was in breach of the agreement exhibit ‘A’. The claim was made and the damages of £900 were awarded on the basis that he (the respondent) was a lessee. It is clear that as a licensee (which was his true relationship to the appellant) he cannot maintain this action for a claim for damages for tress-pass. He would, of course, be entitled to 30 days notice under the agreement exhibit ‘A’. It is not disputed that a notice was served upon him. But according to his (the respondent) evidence, which the learned judge accepted, the respondent did not receive the notice till the 7th of August, 1956, and not on the 1st August, 1956 as was intended. As his privilege as a licensee could only be withdrawn by giving him 30 days notice under the agreement, it would appear the notice which was served upon him late was unreasonble to the extent of the seven days delay and he would be entitled to damages on the principle of Minister of Health v. Bellotti and Holiday [1944] 1 All E. R. 238. The damages, it was agreed, would be for loss of earnings for the seven days prior to the 7th August, 1956, the date he received the notice. On the calculation of the learned trial judge when he awarded £75 for half a month’s earnings, it would appear that all the respondent is entitled to is the sum of £37.10s.0d”.
to show that the plaintiff was only a licensee and could not succeed on his claim for trespass. When this Court, however, pointed out to Mr. Coker that the claim was not only for trespass but also for unlawful ejectment he agreed that this was similar to the claim in the Mobil Oil case (supra) for unlawful entry and that the plaintiff had a cause of action. He nonetheless submitted that the plaintiff was only entitled to a month’s notice so that as he was left undisturbed for 45 days which was longer than a month he could not succeed in the claim for damages on the authority of the Mobil Oil case (supra).
In our view Mr Coker’s submission as to the effect of the decision in the Mobil Oil case (supra) misconceives what was there decided and does not take account of how the present appeal differs. In the Mobil Oil case (supra) the plaintiff was entitled to 30 days notice and as he was ejected 7 days before the 30 days expired he was entitled, as both parties there agreed, to damages for loss of earnings for the 7 days. These damages, however, were in effect special damages and took no account of general damages which the counsel appearing in the appeal for Mobil Oil does not seem to have pursued unlike counsel in the present appeal. The Mobil Oil case (supra) also differs in that there the plaintiff was entitled to 30 days notice whilst here the plaintiff was entitled to one month’s notice and it is clear that the month must expire at the end of a current month so that, as here the notice was given on the 2nd of March, 1962. If it had been properly worded it would have expired at the earliest on the 30th April, 1962, i.e. in 59 days. See Yaskey v. The Freetown City Council (supra) and Precious v. Reedie [ 1924] 2 K. B. 149.
The plaintiff was therefore wrongly ejected some 14 days before the earliest time he could have been rightly ejected with a proper notice and is entitled to damages accordingly. Apart from agreement a licensee is entitled to a reasonable time before the licence is determined and if it is determined earlier the licence is revoked but if the licensor ejects the licensee prior to the expiration of a reasonable time then he must pay damages. See Minister of Health v. Bellotti [1944] 1 All E.R. 238 where Goddard L.J. (as he then was) said at page 245:-
“On the other point, it seems to me the position is this: If a licensor determines the licence, he is bound to give a reasonable time within which the determination is to take effect, so that the licensee can collect himself, his property or whatever it may be, from the premises in respect of which the licence has been withdrawn. He is bound to give a reasonable time, and if he does not and takes proceedings before the reasonable time has elapsed, he loses his action. But although he may not give a reasonable time, it seems to me that that does not put an end to the withdrawal of the licence. The licence has been withdrawn and the withdrawal becomes effective when a reasonable time has expired. The fact that he may have limited a time which, as in this case, was unreasonable, and in this case wholly unreasonable, does not justify the licensee in sitting down and doing nothing. He should have begun to make arrangements, or attempted to make arrangements to remove himself, and by the time the proceedings had started on Sept. 22, he had had ample time.”
Had there been no agreement in this case, we cannot see on any score that 45 days would have been an unreasonable period of notice, but by the agreement he was entitled to one month’s notice, which meant, as the notice was given on the 2nd of March, that he had in effect, as we have indicated, 59 days notice.
We cannot see moreover that the learned trial judge was shown to have been wrong to have come to the conclusion he did after seeing the witnesses when he held he believed the evidence of the defendant company rather than that of the plaintiff as to what goods of the plaintiff were actually on the premises on the 16th of April, 1962, so that in our view the plaintiff could not succeed on his claim for special damages of some £1127.1s.7d. in this regard. The plaintiff is however, as we have indicated, entitled to general damages for the wrongful ejectment 14 days earlier than he should have been ejected, but as he was clearly on his own evidence not making much use of the premises at the time as he was then in Lagos these damages could only be nominal and we accordingly award him on this head £100 damages.
The judgment of the High Court of Ijebu Ode in Suit J/45/63 together with the order as to costs is accordingly set aside and judgment is entered for the plaintiff for £100 damages. The plaintiff is entitled to his costs in the High Court which we assess at 85 guineas and in this Court which we assess at 64 guineas.
Appeal allowed.
