Ademola a. Odunsi & Anor V. Dr. Stephen R. Abeke (2002)

LawGlobal-Hub Lead Judgment Report

A. OGUNTADE, J.C.A.

The respondent (hereinafter referred to as the plaintiff) at the Lagos High Court in suit No. LD/1940/96 claimed against the appellant (Hereinafter referred to as either defendants or 1st & 2nd defendants) for the following reliefs:

“1. An order of possession of that property known, addressed and described as No. 4 Oyewunmi Close, Surulere, Lagos, which property is presently being held over and detained by the defendants in this suit.

2. An order directing the defendants to pay the sum of N600, 000.00 (Six hundred thousand naira) as mesne profits on the said property in dispute from the 1st of April, 1992 to the 1st of April, 1976 at the rate of N150, 000.00 per annum and thereafter at the said rate pro rate up to and after the judgment of this court until vacant possession is granted.”

The parties filed and exchanged pleadings after which the suit was heard by Rhodes-Vivour J. On 24/6/98, the learned trial judge in his judgment granted the plaintiff’s claims. The defendants were dissatisfied. They brought an appeal against the judgment on five grounds of appeal. The issues formulated for determination are these:

1. Whether the relationship of landlord and tenant exist between the parties.
2. Whether the tenancy had been validly terminated.
3. Whether an order for mesne profit is justifiable in the circumstances.

The respondent adopted the above as the issues arising for determination. All the three issues for determination dovetail into each other and can be conveniently taken together. I intend to so take them. It is necessary that/first examine closely the pleadings of parties upon which the case was heard and the evidence called in support thereof.

In paragraphs 5 to 11 of the statement of claim the plaintiff averred:

“5. The Plaintiff avers that he became the beneficial owner of the said property in dispute, when sometime in March 1992, he paid the sum of N1.1m (One Million One Hundred Thousand Naira) to the former owners of the property the estate of Michael Abiodun Joseph through its only surviving executors one Chief Raphael Ajaja Fashola.

6. The Plaintiff avers that soon after the said purchase the Defendant through the 1st Defendant challenged his authority and ownership of the property in dispute which challenge was resolved by Adeyinka J. in suit No. LD/3626/93 in which he declared that the Plaintiff was the beneficial owner of the property in dispute and was entitled to recover possession of some from the Defendants on service of the relevant statutory notices.
7. The Plaintiff avers that the Defendants since March 1992 have not paid any rents on the property in dispute to him or to any other person and had not paid any rents either prior to that time to his predecessor-in-title.

The Plaintiff avers that by Notices dated the 22nd day of Nay 1996, one addressed to the 1st Defendant and another to the 2nd Defendant the Plaintiff through his Solicitors, having first instructed them to so do, notified the Defendants of his intention to apply to recover possession of the property in dispute that is 4, Oyewunmi Close, Surulere, Lagos of his intention to apply to the High Courts for a summons to eject any person therefrom should they fail to surrender possession of the property on or before the 31st day of May 1996.

9. The plaintiff avers that as at the time of filing this suit, the Defendants have continued to hold over the said property in dispute thereby depriving the Plaintiff of its use.
10. The Plaintiff avers that the current annual rental value of the property is N150, 000 (One Hundred and fifty Thousand Naira) and that not only is the Plaintiff’s refusal to pay any form of rents or hand over the property detrimental to the Plaintiff’s interest. Plaintiff has continued to, expend its resources on rents in an alternative property.
11. The Plaintiff shall at the trial of this suit rely on all the relevant receipts, documents, statutory notices; Court processes especially those in suit No. LD/3626/93 including the Judgment the Court therein.

The defendants in paragraphs 3 to 7 of their Statement of defence averred:

“3. The Defendants admit paragraph 3 of the Statement of Claim only to the extent that the 2nd Defendant was granted a lease of the property in question but deny that the said lease has been determined.

4. The Defendants deny paragraph 4 of the Statement of Claim and would contend that their tenancy has not been terminated nor have they been served the relevant notices.
5. That with regards to paragraphs 5 and 6 of the Statement of Claim the Defendants have appealed the Judgment of Adeyinka J. mentioned therein and that the matter is now pending in the Court of Appeal.
6. The Defendants admit as alleged in paragraph 7 of the Statement of Claim that they have not paid any rent to the Plaintiff since 1992 because there is a dispute on the property which is also the subject of appeal as per paragraph 5 above but deny that any of the rents prior to the dispute is outstanding.
7. The Defendants admit receiving the notices dated 22nd May 1996 pleaded in paragraph 8 of the Statement of Claim but will contend that they were not properly served as required by law.”

It is important to observe here that the plaintiff became owner of the property in respect of which the defendants were sued for possession in 1992 by purchase from the previous owners. The defendants as the plaintiff pleaded challenged plaintiff’s ownership of the property. However, ownership was resolved in favour of the plaintiff in suit No. LD/3626/93 by Adeyinka J in a judgment. The defendants agreed with all these in their statement of defence save that they asserted that the judgment of Adeyinka J was being challenged on appeal.

In his evidence at the trial the plaintiff testified at page 9 thus:

“After purchase I did not move into the premises because the defendant refused to vacate the property.”

And at page 11, plaintiff testified: