Mandilas & Karaberis Ltd Vs J. O. Oridota (1972)

LawGlobal-Hub Lead Judgment Report

 LEWIS, J.S.C.

The short point in this appeal is whether the learned trial Judge was right in entering a non-suit instead of dismissing the plaintiff’s claim.

In Suit LD/414/68 in the Lagos High Court the plaintiff’s writ read:-

“The plaintiff is the Landlord of the defendants in respect of the land and the house at 49, Kofo Abayomi Avenue, Apapa, at an annual rent of 1,000p payable in advance under memorandum of agreement dated the 10th day of April, 1965.

The rent for the period 23rd April, 1968, to 24th April, 1969, was due in April, 1968.

The plaintiff’s claim against defendants is for the sum of 1,000p being one year’s rent due since April, 1968, in respect of the aforesaid land and house at 49, Kofo Abayomi Avenue, Apapa, payable in advance.

Despite repeated demands, the defendants have failed and refused to pay the said amount.”

It was not in dispute that the plaintiff leased the property in question to the defendants for 3 years from the 24th of April, 1965, with an option to renew. This option to renew was never in fact exercised but when the plaintiff wrote to the defendants before the expiration of the lease on the 23rd of April, 1968, asking them if they proposed to exercise the option, they did not reply despite reminders till the 27th of June, 1968, when they said inter alia in their letter (Exhibit 9):-

“The lease of the above premises expired on the 23rd April, 1968, and we do not regard ourselves as being in possession after that date. The premises were sublet to Messrs. Danco (Nigeria) Ltd. who are now in possession. We have been advised that this subletting was in order since there is nothing in the Agreement between us, prohibiting us from subletting.”

The defendants throughout denied that they could be liable to the plaintiff for rent and at the close of the case their counsel submitted that the plaintiff’s claim should be dismissed and not be non-suited.

On the 17th of February, 1969, Adefarasin, J., in his judgment said:-

“The real issue that arises for a decision is whether a tenant of premises whose interest has come to an end is liable for rents after the expiration of his term.”

and went on to find that the lease of the defendants having come to an end, the plaintiff should have sued not for the rent but for compensation for use and occupation as shown by Woodfall on Landlord & Tenant 25th Edition, page 548, paragraph 1283. He then turned to the issue of whether the action should be dismissed or non-suited and said:-

“It was urged upon me by learned counsel for the defence not to non-suit the plaintiff’s action but to dismiss it. The argument of learned counsel proceeded on the basis that the plaintiff has no remedy whatsoever against the defendants. The evidence led before the court has not shown that the plaintiff has no remedy whatsoever against the defendants. As I attempted to show earlier on in this judgment the liability of the defendants to the plaintiff depends on a number of factors whether the defendants had sub-letted the premises to Danco (Nigeria) Ltd., which fact was not established in the instant case; whether the defendants had taken all reasonable steps to get rid of the sub-tenants; and so on. The rights of the Plaintiff would depend on the facts which are presented before the court. It is quite possible for the plaintiff to maintain another action against the defendants. For this reason I will non-suit the present action of the plaintiff with costs which I assess at 15 guineas.”