A. S. Coker V. Adeyemi Adetayo & Ors (1992)

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EUGENE CHUKWUEMEKA UBAEZONU, J.C.A. 

 This is an appeal from the judgment of Agoro, J. sitting as an Appellate court at the High Court of Lagos State. The plaintiff/respondent sued the defendant/appellant in the Magistrate’s Court for recovery of possession of a flat at the ground floor of the premises situate at No. 5/7, Ajasa Street, Lagos. The plaintiff also claimed arrears of rent and mesne profit. After hearing evidence, the learned trial Chief Magistrate in a reserved judgment gave judgment for the plaintiff for recovery of possession and mesne profit. The defendant had paid the arrears of rent during the hearing. From the judgment of the Chief Magistrate, the defendant appealed to the High Court. The case came up before Agoro, J. of the Lagos High Court. He heard the appeal and in a reserved judgment dismissed the appeal on 1st day of August, 1986. It is from that dismissal that the appeal has come to this Court.

Pursuant to S.221 (1) of the Constitution of the Federal Republic of Nigeria 1979, the defendant/appellant (hereinafter referred to as “the appellant”) applied for and obtained leave of the High Court to appeal to this Court. He also obtained an order for stay of execution pending the determination of this appeal. The appellant thereupon filed his Notice and Grounds of Appeal. Four grounds of appeal were originally filed. Later, the appellant filed, with leave of this Court, three amended grounds of appeal in substitution to the four grounds originally filed. The amended grounds of appeal are as follows:-

“1. The learned Judge of Appeal erred in law in affirming the decision of the trial Magistrate that appellant should give up possession of the flat occupied by him on the ground of nuisance when acts of nuisance complained of was post issue of summons.

Particulars of Error
(i) The leakage of gas of 26th of May, 1983 mentioned by the trial Chief Magistrate and accepted by the Learned Judge of Appeal is post issue of summons for possession and cannot in law be a ground of nuisance of possession.
(ii) There were no dates of other incidents of gas leakage or of placing of planks on frontage of the appellant’s flat to suggest that the said acts were done before the issue of statutory notices and summons for possession.

2. The learned Judge of Appeal erred in law and in fact in holding inter alia:

‘I have examined Exhibit “B” and while it is conceded that 3rd plaintiff (Adebiyi Kehinde Adetayo) did not sign the said document, there could be no doubt from the oral testimony of Mr. Adeyemi Adetayo (P.W.1) and Mrs. Elizabeth Adekemi Shadare (Nee Adetayo) (P.W.3) that at a family meeting attended by plaintiffs (except the 4th plaintiff who was away to Bulgaria) it was decided that the 4th plaintiff should occupy the ground floor flat at Nos. 5/7, Ajasa Street, Lagos.
I am satisfied that the wishes of the other plaintiffs have been ascertained regarding the use of the said flat by Mr. Adewale Adetayo (4th Plaintiff)’.

when the evidence of P.W.1 and P.W.3 relating to wishes of the family is hearsay and contradicts Exhibit ‘B’.

3. Learned Judge of Appeal erred in law in holding inter alia at page 73 line 29 to page 74 line 6.

‘As regards the date of execution of the Letter of Authority marked Exhibit “C”, I should point out that under the provisions of Section 124 of the Evidence Law, Cap. 39, Laws of Lagos State 1973, Exhibit “C” must be presumed to have been executed on 3rd November 1982, in the absence of evidence to the contrary.’

Without considering the provision of S.124 of the Evidence Law as to circumstances where proof of correctness of date must be established.
The appellant filed his brief of argument in this Court on the 24th April 1990 while the respondent filed his own on the 5th June 1990. In his brief, the appellant formulated nine issues for determination as follows:-

“(a) Were acts of nuisance complained of (i.e. leakage of gas and placing of planks) prior or post issue of summons.
(b) If acts of nuisance complained of was post issue of summons can an order for possession be made?
(c) What is the legal position where there are several Landlords and possession is required for personal use of one of the Landlords?

(i) To succeed must all the Landlords require possession for themselves as set out in McIntyre v. Hardcastle (1948) 1 All E.R. 696 and followed in local decisions of Abudu Wahabi v. Dauda Kazeem (1959) High Court of Lagos Reports page 93 and Mudashiru Abudu v. Bello Liasu (1976) 4 CCHCJ 1145.
(ii) Is it sufficient if possession is required by one of the Landlords where the wishes of the other Landlords are clearly indicated as decided in Akale v. Olabisi Adewale (1977) 7 CCHCJ 1569 at 1571.
(d) Was possession required by all the Landlords (i.e. respondents) in this suit.
(e) Was the wishes of all the Landlords (i.e. respondents) in this suit clearly indicated in the trial.
(f) Was exhibit ‘B’ signed by all the respondents and did it clearly set out the wishes of all the respondents.
(g) Was there approval by all the Respondents that premises occupied by appellant be recovered for personal use of the 4th respondent alone.
(h) When was Exhibit ‘C’ letter of instructions signed by all the respondents (6th PW who signed in Bulgaria inclusive).
(i) Was it signed before or after issue of statutory notices Exhibit ‘E’ and ‘F’.”

The respondent in his brief, very inelegantly drafted, formulated five “Questions for Determination.” They are:-