Mrs. A. A. Lisboa V. Ibrahim M. Fawa & Anor (1972)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, AG. J.S.C.

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 mesne profits and water rate from the two defendants and from the 1st defendant the sum of 1,000pounds as damages for breach of covenant.

Pleadings were ordered and duly filed. The relevant 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 500pounds per annum payable in advance.

3. The said lease contained covenants by the first defendant, among other things, to pay his rent; to pay water rates in respect of the premies and not to assign or underlet or part with the possession of the premises without the prior written consent of the plaintiff.
4. The first defendant also covenanted to deliver up to the plaintiff the premies in good condition and repair at the expiration of the term of the lease.
5. The 1st defendant in breach of his covenants neglected to pay water rates of the premies during the term.
6. The 1st defendant also in clear breach of his covenant parted with the possession of the premises during the term to the second defendant and that without the written consent or approval of the plaintiff.
7. 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 of the premises for the years beginning December 1968 when in actual fact, he was merely trying to force the second defendant on the plaintiff as the latter’s tenant.
8. In the course of the manouvers averred in paragraph 7 above, the 1st defendant gave a cheque for 250p 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 250pounds in cash.
9. 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 term but he refused.
10. Consequently, the plaintiff served on both defendants a notice in writing dated 24th June, 1969, of her intention to recover possession of the premises.”

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

“1. 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.

2. 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.
3. 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.
4. The defendant avers that apart from the falsehood of the facts contained in paragraph 7 of the Statement of Claim the defendant will contend that the said paragraph is vexatious and very embarrassing and should be expunged from the Statement of Claim.
5. The defendant avers that on the 27th of January, 1969 the plaintiff personally issued a receipt to the second defendant, for the sum of 250pounds 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.
6. The plaintiff was informed and agreed to the possession of the premises being taken up by the 2nd defendant.
7. The plaintiff knew and recognized 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 letter of the 11th December, 1968, to the defendant and another dated 28th of November, 1968, to the 2nd defendant.
9. 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.

2. The 2nd defendant is not in a position to admit or deny paragraphs 2, 3, 4, 5, 6, 8, and 9 of the Statement of Claim and puts the plaintiff in strict proof thereof.
3. 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 (250pounds) 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.

4.The 2nd defendant further avers that as a result of the payment of 250pounds (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.

5.The 2nd defendant avers with further reference to paragraph 7 of the Statement of Claim, that he instructed his solicitor W. L. Dosumu, Esq. to forward a further sum of 125pounds by cheque being rent for the period of June 1969, to August, 1969, to the plaintiff, care of her Solicitor MESSRS. TUNJI BRAITHWAITE & CO., the receipt of which had not been acknowledged up till now.

6. 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.
7. 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 up 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, Dosumu 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 29th May, 1970, and which reads

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