Francis Nebedum V. Chief Magistrate B. A. Labisi & Anor. (2000)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

The 2nd respondent as plaintiff before the Magistrate Court, Court 1, Apapa in Suit No. MCA/302/91, brought a claim against the appellant as the defendant for arrears of rent and possession in respect of a flat situated at 59, Oluwa Street, Olodi, Ajegunle which the appellant was alleged to have occupied as the tenant of 2nd respondent.

The records of court show that on 21/3/91, the appellant pleaded liable to the claim for arrears for the rent but resisted the claim for possession. Judgment was accordingly given against the appellant for the sum of N2,400.00k being arrears of rent. The claim for possession was adjourned to 2/5/91.

The appellant later brought notice of preliminary objection before the learned Magistrate contending that the court had no jurisdiction to hear the suit. The ground for the notice of preliminary objection was stated thus:

“That this suit not being a Landlord/Tenant matter simpliciter but a matter which borders on ownership of property is outside the jurisdiction of this Honourable Court.”

The learned Chief Magistrate i.e. 1st respondent on 11/6/91, overruled the objection.

The appellant did not appeal against the ruling of the 1st respondent overruling his notice of preliminary objection. Rather, he brought an application before the lower court (Coram Famakinwa J.), pursuant to Order 53 rules 1, 2, 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 praying for the following:

“1. For leave to apply for the Orders of certiorari and prohibition to set aside or quash the liability of N2,717.00k entered against the applicant herein by first respondent and to prohibit the further hearing/trial in Suit No. MCA/302/91, by the first respondent herein B. A. Labisi Esq., Chief Magistrate Grade One for lack of jurisdiction.

2. That all proceedings in the said suit No. MCA/302/91, be stayed until after the hearing of this application.
3. And for such further order or orders as the Honourable Court may deem fit to make this (sic) circumstances”.

After arguments, Famakinwa J. on 7/11/94, dismissed the application.

Dissatisfied with the dismissal of his application, the appellant has brought this appeal on two grounds of appeal which read thus:

“(1) Error in Law

The learned trial Judge erred in law when he held that the proper option open to the appellant was to against appeal the decision of the court of first instance, despite the uncontradicted affidavit evidence before the court showing that the second respondent lacks locus standi in the matter and thereby ousting the jurisdiction of the first respondent.

Particulars of Error

There was uncontradicted affidavit evidence that there was no tenant/landlord relationship between the appellant and the second respondent but on the contrary there was a tenancy agreement between the applicant and a limited liability company Exhibits F.N. 6 and F.N.7 respectively.