⦿ CASE SUMMARY OF:
A. S. Coker v. Adeyemi Adetayo & Ors (1992) – CA
by PipAr Chima
⦿ NOTABLE DICTA
It is wrong to import into a statute what it has not said. – Ubaezonu JCA. Coker v. Adetayo (1992)
* SEVEN LANDLORDS MUST NOT NEED OCCUPATION
Why must the seven landlords who were the plaintiffs in the case need the occupation of the single ground floor flat before they can recover possession of the flat. If that is the law, it is a law devoid of human face, human reason and common sense. I shall not project such a law. – Ubaezonu JCA. Coker v. Adetayo (1992)
* LETTER OF INSTRUCTION TO SOLICITOR GIVES HIM POWER
The law is that any such letter of instruction to the solicitor must be issued before the Notice to Quit is issued by the Solicitor otherwise the solicitor has no authority to act. Any notice to quit or notice of intention to apply to recover possession issued by any such solicitor before the letter of instruction is null and void and of no effect. – Ubaezonu JCA. Coker v. Adetayo (1992)
* COURTS DO NOT SPECULATE
He who asserts must prove. A Court does not go on a voyage of speculation imagining things which either happened or might have happened or did not happen. It is the defendant/appellant who seeks to falsify exhibit “C” that should lead credible evidence to that effect. He has failed to do so. – Ubaezonu JCA. Coker v. Adetayo (1992)
* DILIGENCE IN PREPARING BRIEFS
Before I conclude this judgment I would like to say a word or two about the lack of due care and attention with which the briefs in this appeal were prepared and filed. The appellant’s brief contained not less than fifteen grammatical errors in six pages of the brief. Such numerous grammatical mistakes cannot be written off on the altar of the usual excuse – “typographical error”. It shows utter lack of care in the preparations of the brief. Briefs, like pleadings and every other document prepared for filing in court are serious and I may add solemn documents. They require great industry, great concentration and great care and attention in their preparation, vetting and proof-reading before they are filed in Court. A brief or pleading which is replete with grammatical errors is irksome to the reader and annoying to the Judge. – Ubaezonu JCA. Coker v. Adetayo (1992)
A. S. Coker
Adeyemi Adetayo & Ors.
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Eugene Chukwuemeka Ubaezonu, JCA
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ CASE HISTORY
This is an appeal from the judgment of Agoro, J. sitting as an Appellate court at the High Court of Lagos State. The plaintiff/respondent sued the defendant/appellant in the Magistrate’s Court for recovery of possession of a flat at the ground floor of the premises situate at No. 5/7, Ajasa Street, Lagos. The plaintiff also claimed arrears of rent and mesne profit. After hearing evidence, the learned trial Chief Magistrate in a reserved judgment gave judgment for the plaintiff for recovery of possession and mesne profit. The defendant had paid the arrears of rent during the hearing. From the judgment of the Chief Magistrate, the defendant appealed to the High Court.
⦿ ISSUE(S) & RESOLUTION
1. Issue as to nuisance;
RULING: IN FAVOUR OF RESPONDENT.
i. P.W.3 said that the defendant “always leaves his gas leaking and as a result on a particular occasion the Fire Officers were called in to the rescue.” Nothing was said by the appellant in his evidence about the gas leakage. The Court was therefore left with only the evidence of P.W.s 1 and 3 on the issue. There is evidence that there was a gas leakage on four occasions. The leakage on the 26th May 1983 was only one of the four leakages. That leakage seems to have been mentioned specifically because of the explosion. There is nothing to show that the other three leakages were post summons. When the plaintiffs prepared their claim on the 25th March 1983 they stated that one of the grounds for seeking to recover possession was on the ground of nuisance. The nuisance could be for the gas leakage, it could be for the planks, it could be for both. The defence, if it wished could have asked for further and better particulars of the nuisance and the dates the acts of nuisance were committed. He did not ask; he did not cross-examine on it; he did not lead contrary evidence to show that all the four leakages were after the summons was issued. There is no basis for the appellant to ask the court at this stage to accept that all the four leakages took place post summons. The contention is not based on the evidence before the court and therefore fails.
ii. I hold the view that the gas leakages other than the one of 26th May 1983 and the placing of planks in front of the premises were among the acts of nuisance that gave rise to the cause of action.
2. Issue as to where there are several landlords but possession is required for the personal use of only one – what is the law?
RULING: IN FAVOUR OF RESPONDENT.
i. In this case on appeal, all the seven beneficial owners of the property situate at No.5/7 Ajasa Street, Lagos are plaintiffs on record. There is no evidence that any of the plaintiffs has expressed a contrary intention to the bringing and prosecution of the case. There is evidence that they held a family meeting where they decided to recover the ground floor flat from the defendant for the use of one of them (4th plaintiff). They (the plaintiffs) prepared a memorandum to this effect – exhibit “B”. It is my view that it is immaterial whether only one or more of the plaintiffs signed exhibit “B” which contains the decision or resolution or, if you like, the wishes of the plaintiffs. In fact, Exhibit “B” is not necessary for the successful prosecution of the case. The wishes of the owners of the property can be conveyed to the court by the Oral evidence of one or more of the plaintiffs who testified in court. In this case, the wishes of the owners of the property were sufficiently testified to by P.W.s 1 and 3. In the words of Dosunmu J., there was “a clear indication of the wishes of the rest” of the owners of the property i.e., the other landlords.
ii. I am of the view that the correct position of the law in Lagos State is that if it is the wishes of the landlords that their premises should be recovered for the use or occupation of one or more only of their number, the landlords can recover the said premises. The important thing is that the landlords shall be in unanimity in their wish or intention to recover the premises. In this case on appeal there are seven owners or landlords of the property. The seven of them are plaintiffs on record. The evidence is that they had a family meeting in which they decided to recover the ground floor flat for the use of the 4th plaintiff. Only five of them however signed their resolution. One of them who did not sign (i.e. 4th plaintiff) gave evidence in court in support of the plaintiff’s case. The remaining one who did not sign the resolution (exhibit “8”) did not express a contrary intention to recovering the premises for the use of the 4th plaintiff. The defence did not call him to give evidence in its favour. The mere fact that some of the plaintiffs did not sign the resolution does not affect their common purpose to recover the flat for the use of one of them.
3. Issue as to whether exhibit “C”, the letter of instruction to Solicitor was signed by all the plaintiffs including the 6th P.W. and whether it was signed before the statutory notices were issued.
RULING: IN FAVOUR OF RESPONDENT.
i. Exhibit “C” the letter of instruction to solicitor was issued on (or dated) 3rd November 1982. Exhibit “E” the notice to quit was issued (or dated) 22nd November 1982. The letter of instruction (exhibit “C”) was therefore issued some 19 days before the Notice to Quit was issued by the solicitor.
ii. There is nothing before the Court from which the Court could infer that any of the plaintiffs signed exhibit “C” after the Notice to Quit was issued. On the contrary, the evidence before the Court is that they signed Exhibit “C” before the Notice was issued. The document ought to speak and does speak for itself. According to the 4th plaintiff, the other plaintiffs signed the document in Nigeria and sent it to him in Bulgaria. He signed it and returned the same to the other plaintiffs. There is nothing to show that he signed it after the Notice to Quit was issued.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
S.2(2) of the Rent Tribunals (Abolition and Transfer of Functions) Law 1981 provides that all references to Rent Tribunal and Chairman in the Edict No.9 of 1976 shall be construed as references to “Magistrate Court and High Court respectively.”
S.25 (1) (a) of Rent Control and Recovery of Residential Premises Edict No.9 of 1976 gives the tribunal (now the Magistrate’s Court or the High Court) power or jurisdiction to make an order for recovery of possession of any premises or order the ejectment of a tenant under conditions specified in the second schedule of the Edict.
⦿ REFERENCED (CASE)
* CARE MUST BE OBSERVED IN PREPPING COURT PROCESSES
Tobi, J.C.A. in Joshua Fumudoh and Anor. v. Dominic Aboro and Anor. (1991) 9 NWLR (Pt.214) 210 at 225 where His Lordship had this to say:- “All I have done is send one message to counsel in the preparation of court processes. So much care is required and so much care should be taken. A Court process is not just like a letter to a friend where one can afford to slip here and there with little or no adverse effect. A Court process is a sacred and most important document which must be thoroughly done and thoroughly finished. The adverse party, as usual in the profession will always open his ears and his eyes very wide to pinpoint any error and capitalise on same. He is always on the toes of the opponent to ‘devour’ him. But surprisingly, learned counsel for the appellant did not see the points. It is possible he saw them and ignored them, knowing that they do not in reality detract from the merits of the objection as such.”
⦿ REFERENCED (OTHERS)
⦿ SIMILAR JUDGEMENTS