TIJANI OYENUBI (APPELLANT)
ALHAJI LASISI ANDOYI (RESPONDENT)
(1964) All N.L.R. 455
Division: High Court, Lagos
Date of Judgment: 3rd February, 1964
Case Number: LD/100A/63
Before: Onyeama, Ag. C.J.
Appeal from the Magistrate's Court:
The respondent brought these proceedings, against the appellant, his tenant, seeking an order for possession to the premises occupied by the appellant on the ground that the premises required substantial repairs. The claim was contested by the tenant who also brought a counterclaim to recover, from the landlord, the excess of rent unlawfully received from him in respect of the premises; the magistrate dismissed the counterclaim because the said increase in rent occurred before the plaintiff became the landlord of the premises.
Conflicting account was given by both parties regarding the state of repairs of the premises; whereupon, the magistrate inspected the locus in quo and recorded his finding which was in support of the evidence given for the plaintiff that the premises were in need of substantial repairs.
On appeal, the tenant contended that the magistrate had, by setting out his findings in the record, constituted himself a witness in the proceedings; that he was entitled to succeed in the counterclaim because where evidence of unlawful increase in rent is proved, it is open to the landlord either to justify the increase in law or accept liability thereof.
(1) Where there is conflicting evidence as to physical facts, a judge may use his observations to resolve the conflict; thus in the present case, there is no justification to suggest that the findings of the magistrate, which were based on the evidence before him and the result of his visit to the premises, are not supported by the evidence.
(2) The magistrate acted in error when he dismissed the counter-claim because in the absence of an order of court, or other provisions of Cap. 183 justifying any increase in rent, it is the duty of the landlord to justify the subsequent increase above the lawful rent, and he cannot get out of this burden by saying that he had not himself increased the rent since the prohibition runs with the premises and does not act in personam.
Appeal against order for possession dismissed: Appeal against counter-claim allowed:
Cases referred to:-
Ejidike and others v. Obiora, 13 W.A.C.A. 270.
Maki v. Saidi (1961) 1 All N.L.R. 502
Act referred to:-
Rent Restriction Act, Cap. 183 section 6(1).
APPEAL from the Magistrate's Court
Oyenubi, for the Appellant.
Onatunde, for the Respondent.
Onyeama, Ag. C.J. of Lagos:-This is an appeal by a tenant from the judgment of a magistrate ordering the tenant to give up possession of premises he held of the plaintiff and dismissing the tenant's counterclaim for a refund of the excess of rent unlawfully increased.
The ground on which possession was claimed was that the premises in question required substantial repairs. The learned magistrate inspected the premises and set out in his judgment his findings on the inspection.
The appellant objects to these findings, or rather to the record of these findings, on the ground that the magistrate had, by setting out the findings, constituted himself a witness in the proceedings. The judgment of the West African Court of Appeal in Ejidike and others v. Obiora, 13 W.A.C.A. 270 is cited in support of this objection.
The portion of that judgment which is material is as follows (at 273 and 274 per Verity, Ag. P):-
"It will suffice, in my opinion, if we recall the purpose of such visits as defined in London General Omnibus Co v. Lavell (1901) I Ch. 135, when Lord Alverstone said, "I have never heard it said and, speaking for myself, I should be very sorry to endorse the idea that a Judge is entitled to put a view in place of the evidence. A view, as I have always understood, is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply the evidence." To this I would do no more than add that in all cases in which a visit is paid by the court to the locus in quo in a a civil action the Judge should be careful to avoid placing himself in the position of a witness and arriving at conclusions based upon his personal observations of which there is no evidence upon the record. When there is conflicting evidence as to physical facts, I have no doubt that he may use his own observations to resolve the conflict, but I do not think it is open to him to substitute the result of his own observation for the sworn testimony nor to reach conclusions upon something he has observed in the absence of any testimony on oath to the existence of the facts he has observed. Should he do so he would, in my view, be usurping the position of the witnesses, and if his decision is materially affected by conclusions drawn from facts of which there is no evidence upon the record, this may result in the reversal of his judgment or the order of a new trial."
In the present case on appeal, the magistrate referred to the evidence of the plaintiff's attorney and to the evidence of the defendant's attorney regarding the state of repair of the premises. He then set out his findings on inspection and these findings support the evidence of the plaintiff's attorney. I can find no justification for the suggestion that the findings were not supported by the evidence; they are more detailed but are in line with the evidence.
On the evidence before him, supported by the results of his visit to the premises, the magistrate concluded that the premises were in need of substantial repairs and he ordered possession. I can find nothing wrong with the order or the reasons for it.
Since possession was not claimed on the ground that the premises were required for the personal use of the landlord the question of relative hardship did not arise.
The learned magistrate however appeared to me to be in error when he dismissed the counterclaim. He did so because it was not the plaintiff himself who had unlawfully increased the rent. According to the evidence rents had been increased and stood at £2 a month or thereabouts when the plaintiff became the landlord.
I see no reason to change the view I expressed in Maki v. Saidi (1961) 1 All N.L.R. Part 3 at 502.
The law prohibits increase of rent without an order of court as and from the 1st July, 1941: see section 6(1) of Cap. 183. The tenant proved that the rent was 10/- a month at that time and the receipts he put in evidence were material and relevant to the case to prove that rent. They were therefore wrongly rejected. It was for the landlord to justify the subsequent increase, and he could not get out of this burden by saying that he had not himself increased the rent. The prohibition runs with the premises and does not act in personam. In the absence of evidence of an order of court, or other provisions of Cap. 183 justifying any increase the lawful rent when the plaintiff became the landlord was 10/- a month and the tenant was entitled to judgment for the difference between that sum and £1. 15. 0d. or £2 up to the date of the counter-claim: i.e. from August 1957 to December 1957 at 25/ (35/-less 10/-) and from January 1958 to September 1962 at 30/- (40/- less 10/-): This amounts to £6. 5. 0d. plus £85. 10. 0d. As the sum, £91. 15. 0d, exceeds the claim, judgment can only be entered for the amount claimed.
I am of the opinion that judgment should have been entered for the tenant for £90. 17. 0d.
The appeal from the judgment ordering the tenant to give up possession is dismissed.
The appeal from the judgment dismissing the counterclaim is allowed and the judgment is reversed. It is ordered that judgment be entered for the defendant on the counterclaim for £90.17. 0d.
As both sides have succeeded in this appeal, I think there should be no order as to costs.