MUSTAPHA ABOABA JIMOH SHOTUNWA
KAFARU OSHUGBO (APPELLANTS)
D.B. KALAIWO (RESPONDENT)
(1961) All N.L.R. 753
Division: High Court of Lagos
Date of Judgment: 27th October, 1961
Case Number: Suit No. LD/46A/61
Before: De Lestang, C. J.
Appeal from magistrate's court.
The appellants were tenants of the respondent who sought to recover possession of two separate portions of premises occupied by them. The premises were controlled premises under the Rent Restriction Ordinance. The respondent sought possession on four grounds:
"(1) that the appellants had been guilty of conduct which is a nuisance or annoyance to adjoining occupiers;
(2) that the premises require substantial repairs on account of which it was necessary for the tenants to vacate possession;
(3) that the premises are reasonably required by the landlord for occupation for himself; and
(4) that the premises are the subject of an abatement notice; and that compliance with the terms of such notice is only possible through the ejectment of the tenants."
In support of the ground of nuisance, evidence was adduced that the appellants worked sewing machines until late at night, and the noise disturbed the respondent.
There was no evidence offered in support of the ground that the premises needed substantial repairs; nor was there any evidence to support the ground that the respondent required the premises for his personal use.
The evidence in support of the demand for possession because of the premises being subject to an Abatement
Notice, failed to show that compliance with the Notice was possible only if the tenants were out of occupation.
The Magistrate in his findings stated, inter alia:
"After examining the evidence on both sides and weighed the hardship on each side I find that the balance of hardship is on the side of the plaintiff and consider it reasonable to grant him possession to enable him to comply with the requirements of the Health Office..."
Upon that basis he Decreed possession to the respondent.
(1) The question of balance of hardship arises only where the Landlord seeks possession of the premises for his own personal use.
(2) Before an order for possession can be made on the ground that the Landlord has been served with an Abatement Notice, it must be shown that the Notice cannot be complied with while the tenant is in possession.
Before an order for possession can be made on the ground of Nuisance it is necessary for the court to be satisfied that it is reasonable to make the order.
Appeal allowed: Retrial ordered.
Ordinance referred to:-
Rent Restriction Ordinance, Cap. 186.
APPEAL from magistrate's court.
Ogunsanya for the Plaintiff.
Noibe for the Respondent.
De Lestang, J.:-This is joint appeal by three tenants from a decision of the magistrate's court, Lagos, in two consolidated suits, ordering them to give up possession of the premises to which the Rent Restriction Ordinance applies.
There were two distinct tenancies-appellant one Mustapha Aboaba being a tenant of a portion of the premises for which he paid £2-10s per month rent, while appellants two and three, Jimoh Shotunwa and Kafaru Oshugbo, being joint tenants at a rent of £1-10s per month of another portion separated from the former by means of a wooden partition.
The respondent landlord sought possession of both portions on four grounds:
1. that the appellants had been guilty of conduct which is a nuisance or annoyance to adjoining occupiers;
2. that the premises require substantial repairs on account of which it was necessary for the tenants to vacate possession;
3. that the premises are reasonably required by the landlord for occupation for himself, and
4. that the premises are the subject of an abatement notice, and that compliance with the terms of such notice is only possible through the ejectment of the tenants.
The learned Magistrate in a Judgment, which I can only describe as unsatisfactory, after dealing with the evidence, made the following findings:-
After examining the evidence on both sides and weighed the hardship on each side I find that the balance of hardship is on the side of the plaintiff and consider it reasonable to grant him POSSESSION to enable him to comply with the requirements of the Health Office as already drawn in the approved L.T.C. plan exhibit C made by him and to enable him to put the premises to a better use as a shop and not partly a shop and partly a dormitory as it is now being used.
I therefore give Judgment for plaintiff for possession.
It will, firstly, be noticed that the finding does not deal with the claim for possession on the ground of nuisance at all. There was evidence that the tenants worked on their sewing machines till very late in the night, and that the landlord claimed that he was disturbed by the noise. This, however, is not sufficient to constitute nuisance and, in any case, before an order for possession can be made on such a ground, it is necessary for the court to be satisfied that it is reasonable to make the order.
Secondly, there was no evidence whatever to support ground 2, that the premises required substantial repairs.
Thirdly, it is only on the third ground-personal use-that the question of greater hardship can arise at all, and it is conceded by Mr NOIBE for the respondent that there was no evidence to support that ground. It follows, therefore, that the reference in the finding to the question of balance of hardship must have been due to a misconception on the part of the learned Magistrate.
The position being as I have indicated, it would appear that the learned Magistrate based his order on ground 4. Before an order for possession can be made on such a ground, it must be shown that compliance with the terms of the Abatement Notice is only possible through the ejectment of the tenant. There is, in the present case, no finding on this important issue, and the evidence is such that it is not open for this Court to make any such finding.
This appeal is accordingly allowed and the decision of the court below set aside, together with the order for costs. Having regard to the defects in the Judgment, I consider this a proper case in which to order a retrial. There will accordingly be a retrial before another magistrate. The costs of the first trial, and of this appeal which I assess at seven guineas (not including disbursements), will follow the result of the retrial.
Appeal allowed. Retrial ordered.