Landlord And Tenant

• Pages: 79-280

LANDLORD AND TENANT

(1) ALTERNATIVE ACCOMODATION

201. A duty is on the landlord to comply with the Court notice however

unreasonable it might appear to be.

“A landlord acting upon an abatement notice of this nature, which involved the re-

moval of tenants, should comply strictly with the conditions imposed by the legisla-

ture, for even after a tenancy has been terminated by notice to quit, expiration of

term or otherwise, he cannot retake possession against the will of the tenant without

an order or judgment of the Court, even to carry out a mandatory duty. I apprehend

that the defendants’ answer to the Town Council in such a situation would be that

they were taking all the necessary steps, diligently to comply with the notice. As

regards damages, the plaintiffs did not prove the special damage claimed.

As to general damages, it is, perhaps, humanly impossible for a man without

alternative accommodation to tear down the roof that shelters him, however unsani-

tary or insecure it may be, but there was, nevertheless, a duty under the law on the

plaintiffs’ part to comply with the notice themselves however unreasonable to them it

might appear, and if both they and the defendants had failed to do so, the Lagos Town

Council, without the necessity of first obtaining an eviction order, would inevitably

have demolished the buildings. The trial Judge has found correctly that the plaintiffs

had ample time to remove their effects and that it was their own fault if they hap-

pened to lose any property. Nothing can be said therefore for the general merits of

the case save that a legal wrong has been done to the plaintiffs; and for that I con-

sider the appropriate award is 20s. damages for each of the appellants. In my own

opinion the judgment of the Court below should be set aside and a judgment for the

plaintiffs substituted for 20s. Damages for each appellant and costs in this Court and

in the Court below.” – Per Coussey, J.A. in Ogunsanya v. Arab Bros. Ltd. (1952)

14 W.A.C.A. 107 at 109 - 110.

202. An alternative accommodation must be available at the time the Court

is making the order.

“From careful perusal of the respondent’s evidence, it seems to me that the respon-

dent did not show that suitable alternative accommodation was available. To take one

point only, what was the size and type of the accommodation offered to the appellant,

compared with that he was then occupying? How could judgment be properly given

for the respondent without proof of these matters? As Megarry writes (op. cit. 281);

“The Court should consider the merits of each dwelling house.” Apart from the lack

of proper evidence, there is another point on which the appeal must succeed. Section

13 (1) (b) uses the words “is available for the tenant.” The corresponding English

Section now reads: - “is available for the tenant or will be available for him when the

order or judgment takes effect.” There was, however, a decision on the proper con-

79

Alternative accomodation Paras. 201,202

Para. 202,203 Vol. 15: LANDLORD AND TENANT 80

struction to be put on the words which we have in the Nigerian Ordinance when

these words existed in a previous English Act.

This decision is Lees v. Duley (1921) W.N. 283) and was to the effect that

the alternative accommodation must be available at the time of making the order.

Lord Sterndale, M.R. had no doubts at all on the matter and said very tersely that

without any authority he should have thought that “is” meant “is” and “not” (at page

284). In the present case the respondent’s evidence was as follows: - “No. 7 Faji

Street, Lagos is occupied by member of my family. I cannot say rooms and parlors

are now vacant at 7 Faji street, Lagos,” The alternative accommodation was, there-

fore, not available at the time the order was made, and the order was, therefore, bad.

It may, perhaps, be that where the landlord himself occupies the alternative accom-

modation, on his undertaking to vacate it at once, it could be considered as available.

But in this case the premises are occupied by members of his family. It is on the

record that at least one daughter there is a married woman. These members of his

family are not before the Court and there is no certainty that they will vacate the

premises. I think it is obvious that the alternative accommodation was not available

for the tenant at the time the order was made.” – Per Hubbard, J. in Dawodu v.

Solanke (1956) L.L.R. 16.

203. It is not enough to show merely that the landlord has or has not alter-

native accommodation the burden is on the tenant to satisfy the Court on

question of hardship.

“His ground, therefore, for seeking possession is in fact that he requires the premises

for occupation for himself to expand his business. It is not necessary in my opinion

for him to show that he wants occupation as a residence for himself. All that in my

opinion he needs to show, is that he wants occupation for himself; and wanting occu-

pation of premises for expansion of his business is to my mind just as valid as wanting

them for occupation as a residence. Accordingly I hold that in requiring the premises

for the expansion of his business, the plaintiff was requiring them in fact for occupa-

tion for himself, and that his claim for possession comes within paragraph (i) of the

second schedule to ordinance No. 1 of 1946.

Under the proviso to paragraph (i) of the Second Schedule to Ordinance

No. 1 of 1946, an order for possession shall not be given on any ground under para-

graph (i) if the Court is satisfied that having regard to all the circumstances of the

case including the question as to whether other accommodation is available for the

landlord or the tenant; greater hardship would be caused by granting the order than

by refusing it. The question of hardship naturally involves the question of alternative

accommodation. But to my mind it is not enough to show merely that the landlord has

or has not alternative accommodation; it is surely up to the defendant in order to

satisfy the Magistrate on question of hardship to give evidence himself. Accordingly

I make the following order: that subject to my ruling on the question of whether

81 Alternative accomodation Paras. 203-205

expansion of business can or cannot be regarded as a ground for requiring occupa-

tion of premises by a landlord for himself, the case be referred back to the learned

Magistrate for completion of the hearing, and for determination by him.” – Per Gregg,

J. in Adebajo v. Odunlami (1949) 19 N.L.R. 55 at 56.

204. The Court has power to make an order for ejectment of a tenant with-

out proof of suitable alternative accommodation.

“The paragraph of the Second Schedule to the Rent Restriction Act on which the

respondent relied for his application for an order of possession for personal use is

paragraph (i) and reads in the material part: - “A Court shall, for the purposes of

Section 13 of this Ordinance, have power to make or give an order of ejectment for

the recovery of possession of any premises to which the Ordinance applies or for the

ejectment of a tenant there-from without proof of suitable alternative accommoda-

tion (where the Court considers it necessary so to do) if- (i) the premises are reason-

ably required by the landlord for occupation for-(i) himself ; or (ii) any son or daugh-

ter of this over eighteen years of age….” The evidence in support of this head of

claim was as follows:- “ I was to put up this new building in order to be able to make

it into rooms and distribute it to my five daughters as I am now 71 years old and I did

not want to leave the place undeveloped before my death. Three children-daughters

are living with me now because they have no husbands and I don’t want to leave

them unprotected. My three daughters living with me are : (1) Motunde about 29

years old (2) Atoke about 19 years old and (3) Joke about 14 years old.” There was

no evidence about the age of the other two daughters who, presumably, live with their

husbands. The daughter Joke was, at the time of the hearing, not within the purview

of the relevant paragraph of the Second Schedule. There was, in fact, no evidence

that there was a present need, for any of the respondent’s daughters to occupy the

premises let to the appellant. The evidence led seems to suggest that the respondent

was making provisions for his daughters for the time when he would be no more.

However laudable these provisions and intentions may be, they do not come within

paragraph (i) of the Second Schedule.” - Per Onyeamna, C.J. in Oyename v. Sulu

Suit No. LD/52A/62; (1962) 2 All N.L.R. 123 at 127-128.

(2) ARREARS OF RENT AND MESNE PROFITS

205. A claim for mesne profit.

“In a claim for mesne profit, a landlord by implication is challenging the continued

occupation of the premises by the tenant whom he now regards as a trespasser and

is therefore claiming damages which he has suffered through being out of possession

of the premises. The respondent claims N10, 416.61 monthly being at pro-rata annual

rent for the premises from 10th day of August 1992, until possession is given. This

translates to N125, 000 which the learned trial Judge awarded. Having held that

respondent is only entitled to N50, 000 per annum as agreed rent, the mesne profit