I. A .O. Adebajo v. Tennessee Nigeria Inc. (1974)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N.

This is an appeal from the judgment of Kassim, J., in Suit No. LD/529/66 delivered in the High Court of Lagos State on August 21, 1967, in which he non suited the plaintiff in respect of his claim against the defendant for the use and possession of the premises in question, but granted the plaintiff’s other two claims in respect of the Lagos City Council Rates and the defendant’s share of the cost of consumption of electricity on the premises. The plaintiff’s claim against the defendant was for the sum of 2,650: 13:9d made up as follows:

“(1) Use and possession of office space covering approximately.

1,800 square feet on the third floor of 144, Broad Street, Lagos, for the period 16th February to 15th August, 1966, at 3,060 Pounds per annum ………………………….1,530 Pounds

(2) Lagos City Council Rates for the period February, 1965 to August 1966, i.e. 11/2 years at 1/5 of 2,980pounds per annum in respect of the said office space at 10/’97 in the …..447pounds

(3) Share of electricity consumption from February 1965 to 31st October, 1965, plus fixed charge for November, 1965 to August, 1966 to August, 1966……………………

673:13:9d

TOTAL 2,650:13:9d

Pleadings were ordered and were filed. The plaintiff led evidence to show that under the Deed of Lease (Exhibit A), the parties agreed that at the expiration or sooner determination of the lease, the defendant would peaceably yield up to the plaintiff the demised premises, subject to the defendant’s right to exercise an option to renew the lease at any time within six months before its expiry. It is common ground that the lease is a yearly tenancy which took effect from February 16, 1965, that the defendant left the premises in October but kept the keys until August, 1966 when he surrendered them to theplaintiff, and that the defendant never exercised the option contained in the lease. The learned trial judge thereupon proceeded to non-suit the plaintiff in respect of the claim for use and occupation of the premises for the period February 1966 to August 1966 when the tenant held over after the expiry of the lease as contained in the Deed of Lease. The learned trial judge, however, granted the other two claims of the plaintiff, with the amounts of claims substantially reduced in each case.

The present appeal has been brought by the plaintiff/appellant mainly against the non-suit of the claim for use and occupation of the premises. As finally formulated, the grounds of appeal are as follows:

“1. The learned trial judge erred in law in holding that ‘plaintiff’s right is an action for breach of contract’ .

Particulars of Error.

The contract between the parties having determined on the expiration of the lease the plaintiff was entitled to commence an action for use and occupation.

2.Judgment is against the weight of evidence.”