Mrs. H. B. Adejumo V. David Hughes and Company Limited (1989)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.C.A.

The question of a Judge taking suo motu a legal point and basing his judgment on the legal point so taken without calling on counsel to address him on it crops up in this appeal. One of the main issues for determination, however, is whether a tenant for a term of years who holds over with the consent of the landlord after the expiration of the lease and continues to pay rent at the yearly rate under the expired lease agreement should be regarded as a yearly tenant.

The appellant in this appeal, Mrs. H. B. Adejumo, was the plaintiff in the High Court. She is the owner of the premises situate at No. 2 Aromire Avenue, Ikeja. By a lease agreement dated October, 1982, she demised to the defendant, David Hughes and Company Ltd., the said premises for a term of two years at an annual rent of N17,000.00 from the 1st of November, 1981, to 31st October, 1983, paying in advance the total rent of N34,000.00.

The defendant paid the two years rent before the lease was executed and the payment was acknowledged in the lease agreement.

It was provided in the lease that if at the expiration of the term of the lease, the lessee shall be desirous of continuing in possession of the demised premises for a further term of two years and shall give to the lessor at least three months notice in writing, the lessor shall grant at the expiry of the lease a new lease of the premises for a further term of two years at an amount of rent to be mutually agreed.

Although a formal renewal of the lease was not made, the defendant remained in possession with the tacit consent of the plaintiff who continued to collect every year in “bits and pieces” invariably in advance, a total sum of N17,000.00 per annum as rent up to October, 1987. In effect, the total sum of N34,000.00 for two years was not paid in advance from November, 1983.

By writ of summons dated 15th December, 1987, filed along with a statement of claim of 38 paragraphs, the plaintiff initiated an action against the defendant claiming:

(a) Immediate possession of the house and premises at No.2 Aromire Avenue, Ikeja, Lagos. On the following grounds:

(1) Personal use by her and her daughter who is a legal practitioner.

(2) Substantial repairs.

(b) The sum of N15,972.74 being damages for breach of repairing covenant.

(c) An order that the defendant signs the draft tenancy agreements it refused to sign.

(d) An order that the defendant pay all electricity and telephone bills and other rates and taxes due on the premises as at 31st October, 1987.

(e) An order that the defendant pay mesne profit at the rate of N2,000.00 per month viz, N24,000 per annum for loss of use and occupation from 1st November, 1987 to the date of Judgment and at same rate from the date of Judgment to when possession is given up.