Dr I. OLORUN-NIMBE (APPELLANT)
Mrs R. IBIRONKE LUCAS (RESPONDENT)
(1963) All N.L.R. 623
Division: High Court of Lagos
Date of Judgment: 25th October, 1963
Case Number: (Appeal No. LD/25A/63)
Before: De Lestang, C.J.
Appeal from magistrate's court.
The appellant, a doctor, was the tenant of certain premises in Lagos belonging to the respondent. He not only resided on the premises but also used them for the purpose of his profession. According to the tenancy agreement the tenant was responsible for the payment of rates. The tenant refused to pay the rates on the ground that the Lagos City Council was indebted to him. It became necessary for the respondent to pay them. Thereafter the respondent appropriated monies received from the appellant in respect of rent partly towards the rates and partly towards rent. The respondent later brought an action in the magistrate's court claiming the balance of rent and recovery of possession on the grounds of arrears of rent and personal use.
The evidence showed that the rent would not have been in arrears if the respondent had not appropriated sums intended for rent towards paying herself for the rates.
The evidence further showed that alternative accommodation would soon be available to the respondent in Ebute Metta. The respondent maintained that owing to her poor state of health and her lack of personal means of transport, it would be inconvenient for her to live in Ebute Metta because of her social activities and church work in Lagos. As regards the appellant, he had no other house. He had tried unsuccessfully to find alternative accommodation. If he were turned out of the premises he would suffer, not only personally but in his medical practice as well. He was not asked in cross-examination to disclose the steps he had taken to find alternative accommodation.
The trial Magistrate made an order for possession on both grounds, stating, inter alia, that the conduct of the tenant was unsatisfactory in all respects.
(1) It is a well settled principle that when a debtor makes a payment he may appropriate it to any debt he pleases and the creditor must apply it accordingly.
(2) There is no provision in the law permitting a landlord who has paid rates which ought to be paid by his tenant, to deduct such rates from monies received, especially when the tenant has, as in the present case, expressly appropriated that money to rent.
(3) On the question of greater hardship, an appellate Court will be slow to interfere with a decision of a trail Court unless that court misdirected itself on a question of law or based its judgment on some findings of fact of which there was no evidence. If hardship exists on both sides, the trail Court's decision as to which side will suffer greater hardship will, in general, be conclusive unless there was no evidence of hardship on one side or unless the trail Court has held to be hardship some matter which in law is not.
(4) It is wrong for a trial Court to take into consideration the conduct of a tenant in deciding the question of greater hardship.
(5) The landlady had failed to make out a case of hardship as she had alternative accommodation; the sum total of her allegations amounted to inconvenience and not true hardship. The tenant, on the other hand, had made out a case of hardship because he had no where to go to and will not only lose a home but also suffer in his profession and business if he were ejected.
Appeal allowed: Order for possession set aside.
Cases referred to:-
Clayton's Case:  1 Mer. 608.
Fawaz v. Nabbaw 14 W.A.C.A. 226.
Naya v. Wey:  1 All N.L.R. 123.
Act referred to:-
Lagos Local Government Act, 1959.
APPEAL from magistrate's court.
Adesanya for the Appellant.
Davis for the Respondent.
De Lestang, C.J:-This appeal arises in the following circumstances:
For the past 21 years the appellant was the tenant of certain premises belonging to the respondent known as No. 8 Turton Street, Lagos. He not only resided on the premises but also used them for the purpose of his profession. Being a doctor he used part of the premises as a nursing home also. According to the tenancy agreement, it was for the appellant to pay the rates when due and the rent of £55 was payable quarterly in advance. For a long time past the appellant refused to pay the rates on the ground that The Lagos City Council was indebted to him and since 1960 it became necessary for the respondent to pay them. Thereafter the respondent appropriated monies received from the appellant in respect of rent partly towards the rates and partly towards rent. Towards the end of July, 1962 the respondent brought an action in the Chief Magistrate's Court, Lagos, where in she claimed £81-13s-8d as being the balance of rent for the quarter January/March and the rent for the quarter April/June, 1962. She also sought to recover possession on the grounds of arrears of rent and personal use.
The learned Chief Magistrate made an order for possession on both grounds but the appellant appealed and applied in the course of the appeal for leave to adduce additional evidence. His application was successful and the Chief Magistrate's Court was directed to take that evidence and to adjudicate afresh on the order for possession. This it did, confirming its previous order.
Two questions arise for decision in this appeal. The first is whether the learned Chief Magistrate was right to hold that the ground founded on arrears of rent was made out.
The evidence shows that rent would not have been in arrears if the landlord had not appropriated sums intended for rent towards repaying herself for the rates and in my view the learned Magistrate was wrong to hold that she was entitled to do that in the circumstances. It is true that under the Lagos Local Government Act 1959, a tenant may be required by the Lagos City Council to pay his rent to the Council until the rates which are outstanding are satisfied but it does not follow from this that the converse is also true. In my view, it is clearly not. It is a well-settled principle that when a debtor makes a payment he may appropriate it to any debt he pleases and the creditor must apply it accordingly. Clayton's Case (1816) 1 Mer. 608. That is why an express enactment was necessary to require the tenant to pay rent to the Lagos City Council and the Council to give a valid discharge therefore. There is, however, no provision in the law permitting a landlord, who has paid rates which ought to be paid by his tenant to deduct such rates from monies received for rent, especially when the tenant has, as in the present case, expressly appropriated that money to rent. The landlord has his remedy at law. He can sue the tenant for it and seek an order for possession on the ground of breach of the terms of the tenancy. 'This ground of appeal accordingly succeeds but as the order for possession was made on two grounds it is necessary to consider the second question.
That question is whether the learned Chief Magistrate was right to hold that the landlord would suffer greater hardship than the tenant if an order for possession were refused.
The principles upon which an appellate court acts in an appeal on the question of greater hardship are well-settled. It will be slow to interfere with the decision of the trial Court and will only do so if the court has misdirected itself on a question of law or based its judgment on some findings of fact of which there was no evidence. If there is evidence of hardship on both sides, the trial Court's decision as to which side will suffer greater hardship will, in general, be conclusive unless there is no evidence of hardship on one side or unless the trail Judge has held to be hardship some matter which in law is not.
Fawaz v. Nabbaw, 14 W.A.C.A. 226.
Naya v. Wey (1961) 1 All N.L.R. 123.
The appellant's contention on this ground of appeal is that the finding of greater hardship on the part of the landlord is unreason able and against the weight of evidence. It is necessary, therefore, to examine the evidence of hardship on both sides. The landlord is a married woman. She used to live in the premises in suit with her husband until he was appointed Vicar of St. Paul's Church when she moved with him into the Vicarage. It was at that time, over 20 years ago, that she let the premises to the tenant. In 1962 her husband resigned his appointment and they had to give up the Vicarage. They went to live on the top floor of No. 10 Turton Street, which is used as a school of which the husband is the manager. He also owns the premises which are let to the Education Authorities. The Education Authorities apparently took exception to their residing on the school premises and they were requested to move out. The landlord has no other premises in Lagos apart from those in suit and said that she had no other place to go to if the order for possession were refused. Her husband, however, owns three dwelling houses at No. 34 Abule Nla Road, Ebute Metta, as well as other premises which are used as schools in Lagos. At the time of the hearing of the present case the husband had obtained a Court order for possession against the tenant of one of those dwelling houses on the ground of personal use. That house had six rooms. The order required the tenant to give up possession on the 10th December, 1962 and although both he and the landlord were questioned about those premises at the trial they did not disclose that fact to the court but indeed led the court to believe that those premises would not be available as they were let. The fact that they were, or soon would be, available came out in the additional evidence where it also transpired that the house has since been enlarged by the addition of a floor and divided into flats.
The matters upon which the landlord relies to constitute hard ship are:-
(1) Her allegation that she has no other accommodation in Lagos.
This is not correct since at the conclusion of the case her husband had obtained an order for possession of a six-roomed house at Ebute Metta.
(2) Her state of health.
Apparently she suffers from high blood pressure but there is nothing to show that living in Lagos would be better for her health than living in Ebute Metta.
(3) Her interests in Lagos.
She said that she takes an active part in social activities and church work in Lagos and has no car. It would consequently be more convenient and perhaps less tiring if she lived in Lagos. This is, in my view, a matter of convenience and not really hard ship. So much for the landlord.
As regards the tenant, as I have said before, he both lives and carries on his profession as a doctor on the premises. He also uses a portion of the premises as a nursing home. He has been in occupation for 21 years. He has no other house in Lagos. He owns three plots of land but they are undeveloped and there is no evidence that he is in a position financially to develop them. He said that he has tried unsuccessfully to find alternative accommodation but he did not, nor was he asked, in cross-examination to disclose the steps he has taken to that end. He was in a vague way offered the Ebute Metta house but said that they were unsuitable for his requirements. I say "in a vague way" because there was no suggestion of an exchange of premises and the conditions of the tenancy were not stated. He founds his allegation of hardship on the fact that he has no other house to go to and that he will suffer: not only personally but in his practice and business as well if he is turned out of the premises.
In his original judgment the learned Chief Magistrate based his finding of greater hardship in favour of the landlord on the fact "no alternative: accommodation was available for the plaintiff and her husband." The fact that this was proved wrong by the additional evidence made, nevertheless, no impression on the learned Chief Magistrate and he confirmed his original order on the grounds that:
(a) although there was an order for possession of the Ebute Metta premises it only took effect on the 10th December, 1962;
(b) there was no evidence of concrete efforts made by the tenant to secure other accommodation since the order was made; and
(c) the tenant is unsatisfactory in all respects.
The conduct of the tenant, e.g., non-payment of rates, being in arrears with rent, failure to repair, etc., may entitle the landlord to obtain an order for possession on the appropriate ground but with respect I fail to see what his conduct has to do with the question of hardship. The learned Chief Magistrate erred, in my view, in taking this factor into consideration in deciding that question.
It having been established that the landlord had a perfectly good house to go to in December 1962, an order for possession of which had been obtained on the ground of personal use, it seems to me that the landlord failed to make out a case of hardship.
In my view the sum total of her allegations amount to inconvenience and not true hardship. The tenant on the other hand has clearly made out a case of hardship because he has nowhere to go and will not only lose a home but also suffer in his profession and business if he is ejected. There is such glaring discrepancy between the two cases of hardship that in my view the learned Magistrate clearly erred in his finding. This ground of appeal also succeeds.
The appeal is accordingly allowed and the order for possession set aside together with the order for costs. The appellant will have the costs of this appeal which I assess at 35 guineas and the costs in the lower court assessed at fifteen guineas.
Appeal allowed: Order for possession set aside.