D. O. Oghene & Sons Ltd. V. W. E. Amoruwa & Anor. (1986)
LawGlobal-Hub Lead Judgment Report
The appellants, who were plaintiffs in the Senior Magistrate’s Court, Sapele, had sued the respondents claiming as follows:-
“The plaintiff is entitled to possession of premises (comprising 2 store rooms) situate at No. 11/4 Market Road, Sapele which were let by the plaintiff to the defendants jointly and severally on a monthly tenancy of N6.00 per month, which said tenancy was terminated by notice to quit given by plaintiff vide (his Solicitor’s letter dated 26th August, 1974 attached and on 6th December, 1974 the plaintiff did serve on the defendants a notice in writing of his intentions to apply to recover possession of the said premises (duplicate of which notice is hereby annexed) by the Deputy Sheriff and that notwithstanding the said Notice the defendants refused and/or neglected to deliver up possession of the premises afore-said and still detains the same.
(2) Wherefore the plaintiff claims possession and N54.00 being arrears of rents at the rate of N12.00 per month being the rents due on the said premises from 1st July, 1974 to 30th November, 1974.
Dated at Sapele this 31st day of December, 1974.
(Sigd.) P.S.J. Ofoborh, Esq.,
Solicitor to Plaintiff
9, Itsekiri Road, Extension,
After the respondents had appeared before the trial Senior Magistrate and had disputed the claim, a Mr. Joseph Okitikpi filed a motion, praying the Court for an order joining him as a defendant in the suit. The motion was duly heard and dismissed.
In the course of this judgment, reference will be made to this motion.
At the trial, the Estate Manager of the appellants, Mr. Harrison Ogariafe, gave evidence on their behalf. He testified that the respondents were the appellants’ tenants, occupying two rooms or stores at No. 11/4 Market Road, Sapele; that the property in question was acquired by the appellants from a Mr. Joseph Okitikpi and in support of which claim he tendered Exhibit E; that the respondents were in arrears of rents; that they were consequently served with the statutory notices to give up possession but had refused to do so.
The respondents’ case, according to the evidence of the 1st respondent, was that it was the man Okitikpi who had let the rooms to him and the 2nd respondent; that the rents were initially paid to the said Okitikpi; that at one stage, Okitikpi wrote a letter to them (Exh.G) directing them to pay the rents to Chief D. O. Oghene and that some years later, he wrote another letter (Exh.H) countermanding his earlier instructions and directing them to discontinue the payment of rents to the appellants. Under cross-examination 1st respondent testified as follows:-
“I was paying to the plaintiff as a tenant of the plaintiff. The representative of the Company now in Court collected rents from me and other tenants. I occupy one store with the 2nd defendant. Mr. Okitikpi was the caretaker of the premises and he put(s) into the premises. It is true I said in that affidavit attached to the motion I filed to join Mr. Okitikpi as a co-defendant, I had said that Okitikpi was the owner of the premises, but this affidavit was prepared by one Solicitor who asked me to sign. I sign (sic) the affidavit at the Registry. The Solicitor was not present. I heard that the owner of the plot is Madam Odometa who is dead.”
After due trial, the learned Senior Magistrate came to the conclusion that the appellants had not been able to establish title to the property as required under section 19(1)(e) of the Recovery of Premises Law, Cap. 110 Laws of Western Nigeria 1959 now Cap.142 Laws of Bendel State, 1976, dismissing the claim of the appellants, he observed as follows:-
“Section 19 (1) (e) of the Recovery of Premises law requires the plaintiff to prove his title, if such title has accrued since the letting of the premises.
It is not being argued that the man Okitikpi was not the one who let the premises to the defendants before they ever started paying rent to the plaintiff. In the case of Shomolu vs. Olayemi 21 N.L.R. 45 the plaintiff called the former landlord (his vendor) as witness and this was regarded as satisfying the requirement of Section 19 (1)(e) of the Law.
It is my considered view that the man Okitikpi should have been called by the plaintiff, and failure to do so has seriously affected the case of the plaintiff.
Besides it appears to me that Exhibit “J” has knocked out the bottom of plaintiff’s case. The man Joseph Okitikpi who purports to have given title of the premises to the plaintiff does not appear to have an interest which he could alienate.
On the face of what I have said I do not consider it proper to grant possession of the premises – the two rooms situate at 11/4 to the plaintiff.
Judgment is hereby entered for the defendants, and the defendants do recover against the plaintiff the sum of N30.00 for cost.”
The appellants being dissatisfied with the judgment of the Senior Magistrate, appealed to the High Court Sapele judicial Division. The High Court considered all the points urged in support of the appeal and allowed the appeal, concluding that in the circumstances of the case it was not necessary that the man Okitikpi sbould be called by the appellants to testify in order to establish their title. The relevant passage of the judgment is as follows:
“The crux of the matter, it appears to me, is what constitutes adequate proof of title by a landlord under section 19(1)(e) of the Recovery of Premises Law of Western Region which is now replaced by the name section in tbe Bendel State Laws. The learned Senior Magistrate felt bound, and that ought to be, by the decision in Onayemi’s case supra.
In that case the new landlord in proving title gave evidence and tendered the purchase deed and in addition called the former landlord and his vendor to say that the defendants were his tenants before he told the property to the new landlord and that he informed the tenants that the property had passed and so should pay rent to the purchaser. In the circumstances, De Comarmond Ag. C. J. as he then was, held that such evidence had satisfactorily established the relationship of landlord and tenant between the parties.
This decision does not say that in every case in which a new landlord claims recovery of premises it is a must that the former landlord must be called. It will be speculation to say what the decision of the Court would have been if the vendor or former landlord in that case did not give evidence. But it would appear that his evidence was the only link between the new landlord and the tenant. That situation is clearly distinguishable from what is before the trial Senior Magistrate in this case. Joseph Okitikpi who is the caretaker or landlord or mortgagor had instructed the defendants to pay rents to the plaintiff company and they did pay rents to them for a period of about eight years continuously. Except in special cases, payment of rent is the concrete evidence that establishes the relationship between landlord and tenant. The tenant must, therefore, continue to pay rent in absence of fraud or mistake as to the actual landlord (Rokubu’s case, supra).”
The respondents, being dissatisfied with the judgment appealed to the Court of Appeal. The Court of Appeal, having given very careful consideration to all the arguments and submissions in support of the appeal, came to the conclusion that the appellate High Court was in error to have decided that it was not necessary for the appellants to call Okitikpi to give evidence with regard to the appellants’ title to No. 11/4, Market Road. Allowing the respondents’ appeal against the decision of the High Court, the Court of Appeal, in its judgment, said:-
“I believe that Exhibit J, the lease, has an important effect on the Exhibit E. “J” was the lease that vested the property in the late Madam Odometa, and before Okitikpi could give a right under the Exhibit E to the respondent it must be shown that he derived such right from the Exhibit J, or from any other effective instrument. When” J” was produced by defendants in the trial court, that court had good reason to consider it, and for my part, I hold the view that it was a proper appraisal of the evidence and the law on the point to hold that the respondent had needed to call Okitikpi to show he had title in the property. Having failed to do this, I am of the view that it was right for the Senior Magistrate to have held that the respondent’s claim was not established. I would therefore allow this appeal, and set aside the judgment of the learned Judge given in the High Court on the 1st May, 1978, and I order that the judgment of the learned Magistrate given on 17th June, 1976 be and is hereby restored with all the orders he made.
I also allow this appeal with costs of N100 in the Court below and N200 in this Court. ”
It is against this decision of the Court of Appeal that the appellants have appealed to this Court on several grounds.
Now it would appear from the evidence before the trial Court that the man, Okitikpi, at one stage, had the control of the premises in question. The evidence of the 1st respondent was that it was this man who had let the premises to him and the 2nd respondent and had put them in possession. It was also the appellants’ case that the said Okitikpi had, by Exhibit E transferred the rights to control the premises to them. Furthermore, the man Joseph Okitikpi, as stated earlier in this judgment, had applied by motion at the very beginning of the case, to be joined as a defendant. Paragraphs 1,2,3,4,5,6, and 7 of the affidavit in support of his motion, read as follows:-
“1. That I am the landlord of the entire premises comprising several shops situate at Block 11/4 or otherwise known as No. 61, Market Road, Sapele.
- That the defendants herein (W.E. Omoruwa and P.E. Etuden) have at all material times been my tenants on my said premises, No. 61, Market Road, aforesaid.
- That I also have other tenants on the said premises and these include Godwin Ogharadaro, Abigail Oguyemi, J. O. Avbovbo, Francis Otebale, J.A. Owuwi and many others.
- That on or about the year 1966, I entered into some mortgage transaction with the plaintiff in this suit by reason of which I put him into possession of my said premises so to assist me in collecting the rents therefrom out of which the mortgage loan was to be liquidated.
- That I verily believe that the mortgage transaction between me and the plaintiff terminated in 1970 and I have once resumed full control of and the collection of rents from my tenants in respect of my said premises, Block 11/4 Market Road, Sapele aforesaid.
- That the purported sale which I also made to the plaintiff of the said premises met with stiff opposition from members of my family and the transaction fell through as such.
- That all rents accruing from my said, premises are paid to me monthly by my instructions after the varied transactions came to an end as between me and the plaintiff. ”
In my view, the above facts in the affidavit of Okitikpi, coupled with the testimony of the 1st respondent that it was Okitikpi who had let the premises to the respondents, constitute a serious challenge to the appellants’ claim as landlord of Block. No. 11/4, Market Road. It is obvious that the crucial and fundamental issue of who, in fact, is the landlord of the premises can be satisfactorily resolved only if Okitikpi is made a party to the proceedings. In the circumstances, I am of the view that it would be in the interest of justice that the case be retried de novo. The appeal therefore succeeds and it is allowed.
The judgments of the Court of Appeal, as well as those of the High Court and the trial Senior Magistrate’s Court are hereby set aside. In substitution thereof, I make the following orders:
(1) that the case be reheard de novo by a Judge of the High Court of Bendel State, Sapele ludicial Division, Sapele;
(2) that pleadings be filed by the parties;
(3) that Joseph Okitikpi be joined as a defendant in the suit; and
(4) that the appellants be awarded the costs of the appeal which are assessed at N300.
ESO, J.S.C. (Presiding) I have had a preview of the judgment which has just been given by my learned brother Kawu, J.S.C. I am in agreement with him that the appeal be allowed and that the case be tried de novo. I am also in agreement with all the consequential orders made by my learned brother Kawu, J.S.C.
UWAIS, J.S.C.: I have had the opportunity of reading in draft, the judgment read by my learned brother Kawu, J.S.C. I agree with the reasons and conclusion therein. Accordingly, I too allow the appeal and subscribe to the orders made in the said judgment.
COKER J.S.C.: I agree with the judgment and orders made by my learned brother Kawu, J.S.C. that the judgment and costs awarded by the Court below be set aside and the case be heard de-novo by the High Court of Bendel State as stated by my said learned brother.
There is no doubt from the record that Mr. Okitikpi is a necessary party and his application for joinder at the trial ought not to have been refused.
I will accordingly allow the appeal and for the reasons given in the lead judgment also I agree with the orders made by Kawu, J.S.C. in the lead judgment.
KARIBI-WHYTE, J.S.C.: I have had the privilege of reading the judgment just delivered by my learned brother Kawu J.S.C. I agree with it.
My learned brother Kawu J.S.C. has stated the facts and the law exhaustively. I need not repeat the exercise since our views are identical in all respects. I merely add the comments below in amplification. The issues for determination before us which are those involved in the three grounds of appeal filed are
(a) whether the Court below was right in holding that the appellate High Court was in error to have decided that it was not necessary for appellant to call Mr. Okitikpi as a witness to give evidence with respect to appellants’ title to the premises No. 11/4 Market Road, which was in dispute;
(b) whether the Court below was right in holding that title of the Appellants was in issue in the matter.
The appeal before us originated from a simple claim by the Plaintiffs/Appellants before the Senior Magistrate, Sapele, from the defendants/respondents, for possession of premises situate at No. 11/4 Market Road, Sapele, (comprising 2 store rooms) let by the Plaintiffs/Appellants to the Defendants/Respondents, jointly and severally on a monthly tenancy of N6 per month. Plaintiff/ Appellants terminated the said tenancy by notice to quit dated 26th August, 1914. Plaintiffs/Appellants also claimed N54 being arrears of rent at the rate of N12 per month being the rents due on the said premises from 1st July 1914 to 30th November, 1914.
The action having been brought in the Senior Magistrate’s Court no pleadings were ordered and filed as they were not required. On the facts as lucidly stated in the judgment of my learned brother Kawu J.S.C, there is no doubt that Mr. Okitikpi was at all times an essential part of the transaction and the link between the Plaintiffs/Appellants and Respondents/Defendants. Respondents/Defendants were originally the tenants of Mr. Okitikpi. It was by virtue of the letter of Mr. Okitikpi “Exhibit 6” that Respondents/Defendants started paying rents to the Appellants. Again following “Exhibit H”, another letter from Mr. Okitikpi, Respondents/Defendants discontinued paying rents to Appellants/Plaintiffs.
Again “Exhibit E”, shows that Appellants/Plaintiffs acquired the premises, subject matter of the action from Mr. Okitikpi. Finally, it came out from “Exhibit J”, tendered by respondents/defendants in the action that the right of Mr. Okitikpi to deal with the premises must be derived from that document.
There is no doubt therefore that in this case, Mr. Okitikpi is a person without whose evidence this action cannot be justly, effectually and finally determined. see Peenok Investments Ltd. v. Hotel Presidential Limited (1982) 12 S.C. 1, Ekpere & Ors. v. Afonze & Ors. (1972) All NLR (Pt.1) 220. Oladeinde & Anor. v. Oduwole (1962) WNLR.44.
It was agreed by both parties to the action that Mr. Okitikpi had originally been in control of the premises. It was he who put the respondents/defendants in possession of the premises subject matter of the claim. There was also the claim by Appellants that Mr. Okitikpi had transferred his rights in respect of the premises to them. (See Exhibit E). There was evidence (Exhibit J.) adduced by respondents, before the Court challenging the right of Mr. Okitikpi to deal with the premises, in dispute.
Consequently the issue who is the landlord could not be clearly settled without Mr. Okitikpi being made a party. Mr. Okitikpi bad applied by motion at the commencement of hearing to be joined as a defendant. He has claimed as against the Plaintiffs/Appellants to be the current landlord of the premises in an affidavit in support of his motion to be joined as a defendant in the action. The crucial issue therefore in the circumstances is, who is the landlord of the premises, and whether the Plaintiffs can on the evidence show that they are the landlord of the premises As was stated by my learned brother Kawu JSC,”… the crucial and fundamental issue of who, in fact, is the landlord of the premises can be satisfactorily resolved only if Okitikpi is made a party to the proceedings. ”
Counsel to the appellants had argued that this being a claim for possession under S.19(1)(e) the Recovery of Premises Law, Cap. 110 Laws of Western Nigeria, now Cap. 140 Laws of Bendel State, 1976, plaintiff’s title can be established if only it can be shown within Section 2, that they are the landlords of the premises. It was contended that Exhibit E, the Mortgage of the premises to Plaintiffs/Appellants by Mr. Okitikpi, was sufficient for the purpose. The Appellants contended that baving collected rents by virtue of Exhibit E, they have satisfied the provisions of Section 19(1)(e). It was contended that in the circumstance it was not the duty of Appellants but of the Court if it so considered to call Mr. Okitikpi. The Court of Appeal, it was argued, was therefore in error.
This specious argument appears to have misunderstood the real issue. The issue is whether the trial Senior Magistrate was not in error to have refused the application of Mr. Okitikpi to be joined as a defendant in the action. It is only by resolving the issue who is the landlord that the question of Appellants title can be determined.
It was clear from the case before us that the question of who is the landlord of the premises which raises the title to the premises was in issue This can only be resolved between the two contending parties, the Plaintiffs/Appellants on the one part, and Mr. Okitikpi, who applied to be a defendant. In the circumstances, the trial Court has been unable to decide the question, who is the proper landlord, without the participation of Mr. Okitikpi as a defendant in the action. It is therefore necessary that in the interest of justice the case be tried de novo to finally and effectually determine the controversy between all the parties concerned.
The appeal therefore succeeds and is allowed. The judgments of the Court of Appeal, as well as those of the High Court and the trial Senior Magistrate’s Court are hereby set aside with N300 costs to Appellants. I also abide by all the orders made by my learned brother Kawu, J.S.C. Appeal Allowed
Re-hearing de novo Ordered.