The plaintiff/respondent sued the defendants/appellants in the High Court, Ibadan, claiming (a) possession of a 6 Door shop situate at 60 Agbeni Street, Ibadan, occupied by the defendants/appellants as tenants of the plaintiff/respondent and (b) £960 being arrears of rent from January, 1963 to April, 1968, at the rate of £15 per month.

Pleadings were ordered. The defendants/appellants made several applications for extension of time within which to file their statement of Defence, the last of which was refused. The case was then fixed for hearing. At the trial the plaintiff/respondent gave evidence and at the end of which the defendants/appellants were allowed to cross-examine him. This they did personally, their Counsel having withdrawn from the case after the dismissal of their motion for extension of time to file the defence. After the cross-examination of the plaintiff/respondent, the defendants/appellants were not allowed to state their case. Judgment was given for the plaintiff/respondent against 1st defendant for arrears of rent claimed and for possession. The claim against the 2nd and 3rd defendants was dismissed.

The defendant/appellant appealed to the Court of Appeal on the grounds that (1) the trial Judge erred in law in ordering possession to be given to the plaintiff/respondent when on the evidence before him there was no valid notice to quit, (2) the trial Judge erred in law in disregarding the statements of defence filed by the defendants, and (3) the trial Judge erred in law having decided to make finding on the issues joined.

HELD:

(1)     The notice to quit served on the 1st defendants on 18th April, 1968 was given to expire on the 30th April, 1968. For it to be valid one month's notice to quit on 30th April, 1968, it should have been given on or before the 31st of March, 1968. The notice not being a valid notice to quit the order for possession grounded on it could not stand, and must be set aside.

(2)     It was within the right of the trial Judge to have refused to grant the defendants extension of time to file their statement of Defence out of time and to have ignored those filed without leave. At that stage it was open to him to enter judgment in default of defence. But he did not do so. He heard evidence from the plaintiff and allowed the defendants to cross-examine him but refused to allow the defendants to give evidence only if to show that the plaintiff whom they had cross-examined was lying.

(3)     Once the judge allowed the defendants to cross-examine the plaintiff and joined issues with him, it behoves him (the trial Judge) in the interest of justice to allow the defendants to give evidence. It is only then that the issues joined could be resolved.

(4)     The refusal of the trial Judge to hear the defence occasioned a miscarriage of justice and his judgment based only on the evidence of the plaintiff could not be allowed to stand.

Appeal allowed: Judgment of lower court set aside: Case sent back to lower Court for retrial before another judge.

APPEAL from High Court

Ayoola, for Defendant/Appellants.

Aiyeola, for Plaintiff/Respondent.

Kester, P.:-This is an appeal against the judgment of the High Court, Ibadan (Aguda, J.) given in favour of the plaintiff/respondent. The claim before the High Court was originally against the 1st defendant, one J.O. Fayose, and the claim was as follows:-

"(a) Possession of the 6 Door Shop situate, lying and being at 60, Agbeni Street, Ibadan at present occupied by the defendant as tenant of the plaintiff.

(b)     £960 being arrears of rent from January, 1963 to April, 1968 at the rate of £15 per month."

Pleadings were ordered. The plaintiff was ordered to file his Statement of Claim within 7 days and the defendant to file his defence within 30 days. This was on 10th June, 1968.

The case was adjourned to 11th September, 1968, for a date to be fixed for the hearing. On the 12th June, 1968, the plaintiff filed his Statement of Claim. Two days later the 1st defendant filed a motion for an order joining two other persons, the 2nd and 3rd defendants, as co-defendants. The application was granted on 17th June, 1968, and the plaintiff was ordered to serve the two new defendants with the necessary papers by 13th July, 1968. The defendants were ordered to file and serve their defence 30 days thereafter. The case was fixed for 11th September, 1968. On 10th September, 1968, the defendants brought an application for an order granting them extension of time within which to file their statement of defence. On 19th September, 1968, the application was granted. The defendants were ordered to file their defence on or before 4th November, 1968, and the case was adjourned to 6th November, 1968, for mention. It was on the latter date adjourned to 5th December, 1968, for hearing. Before that date, hearing notices were served on the parties fixing 8th January, 1969, for hearing. On 8th January, 1969, the defendants brought another motion asking for a further extension of time to file their Statement of Defence. The application was heard that day, and in a ruling dated 19th January, 1969, it was dismissed. The hearing of the case was then adjourned to 7th February, 1969. Not daunted by the dismissal of their motion, the defendants on 1st February, 1969, filed another application for extension of time to file their defence out of time. On that date also, the Statements of Defence of the three defendants were filed. When the case came up for hearing on 7th February, 1969, the motion was argued and was dismissed. Thereupon the trial started. The plaintiff gave evidence and at the end of which the defendants were allowed to cross-examine him. This they did personally, their Counsel having withdrawn from the case with leave of the court after the dismissal of their motion for extension of time to file the defence. After the cross-examination of the plaintiff, the defendants, according to Mr Aiyeola, Counsel for the plaintiff, were not allowed to state their case.

On 19/2/69, judgment was given for the plaintiff against the 1st defendant for arrears of rent claimed and for possession "of the two shops and one store at No. 60 Agbeni Street, Ibadan."

Possession was ordered to be given up to the plaintiff "on or by March 31, 1969." The claim against the 2nd and 3rd defendants was dismissed. 1st defendant was also asked to pay 70 guineas costs to the plaintiff.

There are two main complaints the judgment of the High Court, and they are:-

(1)     "That the learned Judge erred in law in ordering possession to be given to the plaintiff when on the evidence before him there was no valid notice to quit:-

and (2)

(a)     that the learned Judge erred in law in disregarding the statements of defence filed by the defendants.

(b)     That the learned Judge erred in law having decided to make finding on the issues joined."

In his judgment the learned Judge found as a fact that the notice to quit served on the 1st defendant who is a monthly tenant in respect of the shop in question, was served on him on 18th April, 1968. The notice, Ex. 'C' was dated 1st April, 1968. It was a month's notice "with effect from that date." The expiry date in law should be 31st day of May, 1968. The action for possession was filed on 21st day of May, 1968, some 10 days before the expiry date of the notice. As it is Ex. 'C' was given to expire on 30th April, 1968. For Ex. 'C' to be a valid one month's notice to quit on 30th April, 1968, it should have been given on or before 31st March, 1968.

Mr Aiyeola learned Counsel for the plaintiff, admitted that Ex. 'C' was served to expire on 30th April, 1968.

Ex. 'C' not being valid notice to quit, the order for possession grounded on it cannot stand, and it is hereby set aside.

It was within the right of the learned Judge to have refused to grant the defendants extension of time to file their Statement of Defence out of time and to have ignored those filed without leave. At that stage it was open to him to enter judgment in default of defence, but he did not do so. He heard evidence from the plaintiff and allowed the defendants to cross-examine him but refused to allow the defendants to give evidence if only to show that plaintiff whom they had cross-examined was lying. Once the Judge allowed the defendants to cross-examine the plaintiff and joined issues with him, it behoves him (the learned Judge) in the interest of justice to allow the defendants to give evidence. It is only then that the issues joined can be resolved. The refusal by the learned Judge to hear the defence occasioned a miscarriage of justice, and his judgment based only on the evidence of the plaintiff, cannot be allowed to stand.

The appeal is allowed. The judgment of the High Court Ibadan in Suit No. 1/83/68 dated 19th March, 1969, including the order for possession and costs is hereby set aside. We order that the case be sent back to the High Court, Ibadan for retrial before another Judge.

Appeal allowed: Judgment of lower Court set aside. Case sent back to lower Court for retrial before another judge.