Emmanuel Odufuwa & Ors V. Mrs Ayo Johnson (1971)

LawGlobal-Hub Lead Judgment Report

SOWEMIMO, J.S.C. 

In suit no. LD/354/67, which was tried at the High Court of Lagos State,
“the plaintiff’s claims from the defendants jointly and severally are as follows:
“1. 600Pounds being special and general damages for the wrongful ejectment of the plaintiff by the defendants from the market stall No. A3/24, Obada Market, Sabo, Yaba, Lagos, committed on the 23rd February, 1967 and thereafter
continued.

2. An injunction restraining the defendants, their agents and servants from repeating or continuing the act hereinbefore mentioned or any other act against the legitimate interest of the plaintiff in the said stall.”

The learned trial judge, Adedipe J., in his judgment ordered:
(a) 100Pounds as general damages, against the 1st defendant/appellant with 50 guineas costs;
(b) The 2nd defendant should return to the plaintiff’s stall, all the articles removed from the stall, as early as possible;
(c) Injunction restraining the two defendants/appellants from “ejecting the plaintiff from her stall, No. A3/24”;
(d) The present occupier one Mrs. Mary Tifase, who was not a party to the suit, to vacate the stall “forthwith”; and
(e) all rents paid by the plaintiff to the Rents Assessment Board to be paid over to the 2nd defendant as stallages  due from plaintiff to 2nd defendant from the date of the judgment which was 8th day of July, 1968.

The two defendants have appealed against the judgment. Five grounds of appeal were filed and argued before us on behalf of the two appellants.

The case for the plaintiff in the lower court was that she was allocated a market stall by 2nd defendant about 25 years ago and the “rent” in 1967 was 15s. per month payable in advance. The plaintiff in her statement of claim averred that 1st defendant who was a servant of the 2nd defendant was the market master, and by virtue of that office collected ‘rents’ or stall fees from the plaintiff and other occupiers of stalls in Obada Market, Sabo, Lagos. In paragraphs 4 to 8 the plaintiff averred as follows:

“4. For the month of January, 1967 the plaintiff made every effort to get the defendant accept the rent for that month but for reasons best known to the 1st defendant he persistently concealed his whereabouts from the plaintiff.

5. Sequel to the continual disappearance of the 1st defendant the plaintiff made several efforts to get any other agent or official of the 2nd defendant to accept the rent for the month but failed and had, in the last resort to send the rent 1Pound.10s due in postal orders by registered post enclosing a letter dated 10th February, 1967 in explanation of the payment.

6. On the receipt of the postal order the 2nd defendant did two things:
(a) Returned the postal order to the plaintiff without any explanation; and
(b) also sent along with the postal order, but under separate cover, a letter dated 16th February, 1967 notifying  the plaintiff of re-allocation of the stall to another person.

7. Therefore the plaintiff took the only alternative left to her by applying in a letter dated 18th February, 1967 to be paying the returned rent and future rents through the Rent Assessment Board, Magistrates Court, Igbosere, Lagos, and on the approval of the application paid the rent due and the ledger fee the same day, and has continued to do so ever since.

8. Notwithstanding the foregoing facts, the first appearance put by the 1st defendant on 23rd February, 1967 was by forcefully breaking into and ejecting the plaintiff from the said stall putting in one Mrs. Mary Tifase who has remained there ever since.”

In reply to the above averments the defendants in paragraphs 4 to 6 of their statement of defence averred:
“4. The defendants deny paragraph 4 of the statement of claim but aver that the 1st defendant made himself available at the market at all material times for the collection of stallages.
5. The defendants are (not) in a position to admit or deny paragraphs 5, 6 and 7 of the statement of claim and put the plaintiff to the strict proof thereof.
6. The defendants admit paragraph 8 of the statement of claim only to the extent that the defendants lawfully ejected the occupant of the stall on the 23rd of February, 1967, after it had been properly declared vacant and due notices were duly issued to the effect and the plaintiff was duly warned to desist from trespassing on the stall which in the meantime had been properly allocated to one Mrs. Mary Tifase who until now occupies the same.

The evidence of the plaintiff, which the learned trial judge believed, is that sometime in January 1967 she had occasion to travel to Ibadan, and requested one Lucy, to whom she gave the monthly stallage fee of 15s. for January 1967, to pay to the 1st defendant. On her return on 6th January 1967, she was told certain things as a consequence of which she went to the house of the 1st defendant.

On plaintiff’s enquiry the 1st defendant told her that he was not aware that the stall was hers. There was, however, no evidence of the offer of the “rent” by plaintiff to 1st defendant on this occasion. There was the allegation that 1st defendant demanded ‘kola’ from plaintiff, and suggested that he could assist her in getting her stall rented at a higher fee which she rejected.