Nigerian Joint Agency Limited V. Arrow Engineering And General Transport Company Limited (1970)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, J.S.C. 

The present appellants were the plaintiffs in the Lagos High Court where they had instituted an action (Suit No. LD.663/68) against the defendants, now respondents, claiming possession of the warehouse and office premises situate at No. 52 Warehouse Road, Apapa (hereinafter referred to as the premises), and mesne profits at the rate of (pound)83-6s-8d per month from the 1st of June, 1967, until possession is given up.

The salient facts relied upon by the parties and accepted by the learned trial judge were not in dispute at the trial.
They may be summarised thus:-
(1) The defendants became the tenants of the plaintiffs in respect of the premises for a term of 3 years commencing from the 1st of June, 1964 “with a mutual option to renew for a further period” at an annual rent of (pounds)1,000 payable in advance.
(2) The terms of the tenancy were set out in letters exchanged between the parties. The letters were admitted in evidence at the trial and marked exhibits A and B.    .

Exhibit A is a letter dated the 21st of May, 1964, addressed to the defendants by the plaintiffs.
It reads as follows:
“We confirm the conversation between yourself and Mr Spiering when it was agreed that you would rent our warehouse, situated at 52 Warehouse Road, Apapa on the following terms:-
1. Rent (pounds)1,000 per annum payable in advance before 1st June each year.
2. Contract period for three years with a mutual option to renew for a further period. We are to erect side fencing with a gate.
4. We are to paint the front of the building (fencing the road) and the small inside office.
5. All other repairs, including the main entrance are for your own account.
6. Any internal or external alterations must have our prior approval.

An agreement on the above terms will be drawn up by our solicitors and forwarded to you for signature. In the meantime would you kindly acknowledge receipt of this letter”
In reply to exhibit A, the defendants sent exhibit B to the plaintiffs, It reads
as follows:
“Thank you for your letter of the 21st instant, on the above. We enclose herewith our cheque for (pounds)1,000 (one thousand pounds) being one year advance rent as from 1st of June, 1964.
We confirm accepting the terms and conditions as per your letter of the above date. Furthermore we are not responsible for any rates.”
(3) The plaintiffs purported to determine the contractual tenancy by serving on the defendants a notice (exhibit C) date the 20th of December, 1966. The notice is in the following terms:

“We hereby give you notice to quit and deliver up possession of the warehouse and premises with the appurtenances situate at No. 52 Warehouse Road, in the district of Apapa in the Federal Territory of Lagos which you hold of us as tenant thereof on the 1st of June next.”
(4) On the 8th of November, 1968, the plaintiffs also served on the defendants a notice (exhibit D) of intention to recover possession.

The notice reads as follows:
“We, Nigerian Joint Agency Limited do hereby give you notice, that unless peaceable possession of the premises situated at Number 52 Warehouse Road in the district of Apapa, Lagos State which were held of us under a tenancy for a period of three years from the 1 st day of June, 1964 which expired on the 1st day of June, 1967, and which premises are now held over and detained from the said Nigerian Joint Agency Limited be given to Nigerian Joint Agency Limited on or before the expiration of seven clear days from the service of this notice we Nigerian Joint Agency Limited shall on Saturday next, the 16th day of November at 9 o’clock of the same day, at the Lagos High Court, apply to the court to issue a warrant directing-an appropriate person to enter and take possession of the said premises, and to eject any person there from.”

In a reserved judgement, the learned trial judge found as follows:
(1) That upon a proper construction of exhibits A and B, the parties created a tenancy for a fixed period of three years with an option to renew; and
(2) That the defendants were not granted an option to renew.

The learned judge then proceeded to consider the validity of exhibit D which is in the form of a statutory notice as prescribed in the Schedule to the Recovery of Premises Act. After expressing the view that the tenancy had expired on the 31st of May, 1967, the learned judge observed as follows:

“If the tenancy expired on the 31st of May, the tenant should vacate the premises on that day so as to make it possible for a new tenant to enter the premises the following day if need be. If Mr Impey’s argument is correct it means that the tenant whose terms expired on a particular date may vacate the premises at 12.01 a.m. of the following day.”

and also stated that:
“In my view, the 31st of May, 1967 means precisely what it says, de die in diem. The notice of intention, exhibit D, served on the defendant is invalid because it wrongly describes the date of termination of the tenancy as provided by the Recovery of Premises Act.”

In conclusion, the learned trial judge dismissed the plaintiffs’ claim solely on the ground that the notice of intention to recover possession (exhibit D) is invalid for the reasons already stated: but before doing so, he felt obliged to pass strictures on the Recovery of Premises Act by saying:

“It is surprising that although several judges of the High Court have described this piece of legislation variously as “hybrid”, “antiquated”, “out of date”, etc., nothing has been done by the Legislature to repeal it. I do not intend to add further to the superlatives that have been expressed on this Act.”

Against this judgement, the plaintiffs have appealed to this Court. At the hearing of the appeal, Mr Impey for them submitted that the lower court rightly found that the tenancy was for a fixed period of three years and that it commenced on the 1st of June, 1964; but he contended that the learned judge was in error in coming to the conclusion that the tenancy expired on the 31st of May, 1967, and not on the 1st of June, 1967, as stated by the plaintiffs in the notice-exhibit D.