EMMANUEL ODUFUWA AND ANOTHER (APPELLANTS)
MRS. AYO JOHNSON (RESPONDENT)
(1971) All N.L.R. 144
Division: Federal Supreme Court
Date of Judgment: 16th April, 1971
Case Number: SUIT NO. S.C. 294/1968
Before: Lewis, Udoma, Sowemimo, JJ.S.C.
Appeal from the High Court (Lagos).
(1) Since the plaintiff had not paid either by way of fees or tolls or stall ages for the month of January, 1967, in advance, she had contravened by-law 4 and therefore she was liable to be ejected as a trespasser.
(2) The trial Judge was in error in holding that she was "wrongly ejected" because by-law 4 was quite specific that failure to pay a stall age in advance makes the holder of the stall liable to be ejected as a trespasser, and it could not be seen under what law or by-law the trial Judge had relied upon for his conclusions and there was no other provision in the Lagos market by-laws dealing with this matter.
(3) Whatever moral claims the plaintiff may have had to be allowed to continue to occupy the stall in question after having done so for 25 years could not affect the legal rights.
(4) The finding that the 1st defendant acted mala fide in declaring the stall vacant because the plaintiff was in arrears and was therefore wrongful was based upon a misconception as no question of mala fides could arise as to whether by-law 4 was or was not in fact complied with when on the evidence only in January that the fee for that month was offered by or on behalf of the plaintiff so ipso facto that was in arrears for the month of January when the plaintiff was in actual occupation of the store.
(5) Therefore, on the evidence before the trial Judge and on the provision of by-law 4, the plaintiff was properly and lawfully ejected from her stall.
(6) The trial Judge was also in error in making an order that the present occupier, who had been in possession since February, 1967, should vacate the stall, as her occupation of the stall was lawful. She was lawfully put in possession of the stall and had not committed any breach of by-law 4 and was entitled to remain in possession of the stall.
(7) Although the plaintiff had been ejected from the stall since the 23rd February, 1967, the trial Judge in his judgment on the 8th July, 1968 made an order restraining the defendants from ejecting the plaintiff from her stall. It was impossible to see how this order was intended to be carried out. If the trial Judge had properly considered that the plaintiff had been rightly and lawfully ejected, this order would not have been made as it was incapable of performance.
Appeal allowed: Judgment of trial Judge set aside: Appellant's claim dismissed.
APPEAL from the High Court (Lagos).
SUIT NO. S.C. 294/1968.
Smith for the Appellants.
Osisanya for the Respondent.
Sowemimo, J.S.C. (delivering the judgment of the court):-In Suit No. LD/354/67, which was tried at the High Court of Lagos State, "the plaintiff's claims from the defendants jointly and severally are as follows:-
"1. £600 being special and general damages for the wrongful ejectment of the plaintiff by the defendants from the market stall No. A3/24, Obada Market, Sabo, Yaba, Lagos, committed on the 23rd February, 1967 and thereafter continued.
2. An injunction restraining the defendants, their agents and servants from repeating or continuing the act hereinbefore mentioned or any other act against the legitimate interest of the plaintiff in the said stall."
The learned trial Judge, Adedipe J., in his judgment ordered:-
(a) £100 as general damages, against the 1st defendant/appellant with 50 guineas costs;
(b) the 2nd defendant should return to the plaintiff's stall, all the articles removed from the stall, as early as possible;
(c) injunction restraining the two defendants/appellants from "ejecting the plaintiff from her stall, No. A3/24";
(d) the present occupier one Mrs Mary Tifase, who was not a party to the suit, to vacate the stall "forthwith"; and
(e) all rents paid by the plaintiff to the Rents Assessment Board to be paid over to the 2nd defendant as stall ages due from plaintiff to 2nd defendant from the date of the judgment which was 8th day of July, 1968.
The two defendants have appealed against the judgment. Five grounds of appeal were filed and argued before us on behalf of the two appellants.
The case for the plaintiff in the lower court was that she was allocated a market stall by 2nd defendant about 25 years ago and the "rent" in 1967 was 15s. per month payable in advance. The plaintiff in her statement of claim averred that 1st defendant who was a servant of the 2nd defendant was the market master, and by virtue of that office collected 'rents' or stall fees from the plaintiff and other occupiers of stalls in Obada Market, Sabo, Lagos. In paragraphs 4 to 8 the plaintiff averred as follows:-
"4. For the month of January, 1967 the plaintiff made every effort to get the defendant accept the rent for that month but for reasons best known to the 1st defendant he persistently concealed his whereabouts from the plaintiff.
5. Sequel to the continual disappearance of the 1st defendant the plaintiff made several efforts to get any other agent or official of the 2nd defendant to accept the rent for the month but failed and had, in the last resort to send the rent £1.10s due in postal orders by registered post enclosing a letter dated 10th February, 1967 in explanation of the payment.
6. On the receipt of the postal order the 2nd defendant did two things:-
(a) returned the postal order to the plaintiff without any explanation; and
(b) also sent along with the postal order, but under separate cover, a letter dated 16th February, 1967 notifying the plaintiff of re-allocation of the stall to another person.
7. Therefore the plaintiff took the only alternative left to her by applying in a letter dated 18th February, 1967 to be paying the returned rent and future rents through the Rent Assessment Board, Magistrates Court, Igbosere, Lagos, and on the approval of the application paid the rent due and the ledger fee the same day, and has continued to do so ever since.
8. Notwithstanding the foregoing facts, the first appearance put by the 1st defendant on 23rd February, 1967 was by forcefully breaking into and ejecting the plaintiff from the said stall putting in one Mrs Mary Tifase who has remained there ever since."
In reply to the above averments the defendants in paragraphs 4 to 6 of their statement of defence averred:-
"4. The defendants deny paragraph 4 of the statement of claim but aver that the 1st defendant made himself available at the market at all material times for the collection of stallages.
5. The defendants are (not) in a position to admit or deny paragraphs 5, 6 and 7 of the statement of claim and put the plaintiff to the strict proof thereof.
6. The defendants admit paragraph 8 of the statement of claim only to the extent that the defendants lawfully ejected the occupant of the stall on the 23rd of February, 1967, after it had been properly declared vacant and due notices were duly issued to the effect and the plaintiff was duly warned to desist from trespassing on the stall which in the meantime had been properly allocated to one Mrs Mary Tifase who until now occupies the same.
The evidence of the plaintiff, which the learned trial Judge believed, is that sometime in January 1967 she had occasion to travel to Ibadan, and requested one Lucy, to whom she gave the monthly stallage fee of 15s. for January 1967, to pay to the 1st defendant. On her return on 6th January 1967, she was told certain things as a consequence of which she went to the house of the 1st defendant. On plaintiff's enquiry the 1st defendant told her that he was not aware that the stall was hers. There was, however, no evidence of the offer of the "rent" by plaintiff to 1st defendant on this occasion. There was the allegation that 1st defendant demanded 'kola' from plaintiff, and suggested that he could assist her in getting her stall rented at a higher fee which she rejected. It was also alleged that on a date in January 1967, when the plaintiff went to see the 1st defendant to pay her rent for that month, which was then in arrears, it was rejected. With regard to the latter allegation about offer and rejection, the learned trial Judge made no finding one way or the other, despite the fact that the 1st defendant had denied that there was any offer of payment. It is not in dispute however that up till 10th February, 1967 (exh. B-B1), the rent for January 1967 had still not been paid, although the "rents" for the subsequent months from February 1967 was paid to the Rent Assessment Board. The plaintiff herself admitted that her stall was declared vacant since February 1967, and re-allocated to one Mrs Tifase.
What has to be decided is whether the plaintiff had a legal right to be in the stall as a licensee under the Lagos Market By-Laws. By-law 4 reads:-
"All tolls and stallages shall be paid quarterly, half yearly or yearly in advance at the office of the town Clerk, Lagos Town Council, or in such other manner or to such person as the Council may direct, and any person selling food or merchandise or carrying on his trade or stalling in a market without having first paid such tolls or stallages may be ejected as a trespasser, and shall be liable to imprisonment for ten days or, to a fine of ten shillings, and to a further fine of ten shillings for every day beyond the first day during which he continues the offence."
On the plaintiff's evidence as supported by the receipts which she tendered, previous tolls or stallages up to December 1966 were paid monthly-reference exhibits A to A4. Since there is no provision in the by-law just quoted, for payment of stallage in any such manner, other than quarterly, half yearly or yearly in advance, it must be held that under that by-law the plaintiff had been paying her stallages monthly, and that the 2nd defendant had so approved of such payments. By Government Notice No. 266 of 1958 the fees, tolls and stallages were fixed on monthly basis as from the 1st day of April, 1959 as at pages 1068 and 1069 in Vol. 8 of Cap. 93 of the Laws of the Federation of Nigeria and Lagos, 1958. The concluding portion of that Notice reads:-
"All fees, tolls and stallages shall be payable in advance."
Since the plaintiff had not paid either by way of fees or tolls or stallages for the month of January 1967, in advance she has contravened by-law 4 and therefore she was liable to be ejected as a trespasser.
The learned trial Judge in his judgment said inter alia:-
"If even the 1st defendant had declared the stall vacant under by-law 4, on the evidence before me I would say that he acted mala fide. Here is an elderly woman who had been in possession of a stall for 25 years, and merely because she was a few days late in the payment of the stallage fees, and did not give 'kola', the 1st defendant maliciously took her stall from her, and re-allocated it to another person. All within a few days...On the evidence before me. I find that the plaintiff was wrongly ejected from her stall No. A3/24, at Obada Market, Sabo, Yaba, by the 1st defendant."
With respect, the learned trial Judge was in error because by-law 4 is quite specific that failure to pay a stallage in advance makes the holder of a stall liable to be ejected as a trespasser, and we do not see what law or by-law the learned trial Judge had relied upon for his conclusion, and there is no other provision in the Lagos Market By-Laws dealing with this matter. Whatever moral claims the plaintiff may have had to be allowed to continue to occupy the stall in question after having done so for 25 years, we can but be concerned with the legal rights. The finding that the 1st defendant acted mala fide in declaring the stall vacant because the plaintiff was in arrears and was therefore wrongful is based upon a misconception as no question of mala fides can arise as to whether by-law 4 was or was not in fact complied with when it was on Mr Osisanya's own concession only in January that the fee for that month was offered by or on behalf of the plaintiff so ipso facto that was in arrears for the month of January when the plaintiff was in actual occupation of the stall. We therefore hold that on the evidence before the learned trial Judge and on the provision of by-law 4, the plaintiff was properly and lawfully ejected from her stall.
With regard to the claim for general damages, the learned trial Judge had awarded her £100 against the 1st defendant alone on the basis that the 1st defendant had wrongfully ejected the plaintiff. Since we have held that the learned trial Judge was in error in holding that she was "wrongly ejected", then the award of general damages must be set aside. There was the order also that the 2nd defendant should return to the plaintiff all the articles removed from the stall. We do not know under what item of claim this order was based, and the learned trial Judge did not, as pleaded in paragraph 9 of the statement of claim, hold that the articles mentioned therein were in the possession of the 2nd defendant. As a matter of fact, he made no award in respect of the special damages which the plaintiff claimed under this paragraph of the statement of claim.
Although the plaintiff had been ejected from the stall which is the subject matter of the claim since the 23rd February, 1967, the learned trial Judge in his judgment on the 8th July, 1968 made an order restraining the two defendants from ejecting the plaintiff from her stall. We are at a loss as to how this order is intended to be carried out. We are in no doubt, whatsoever, that if the learned trial Judge had properly considered that the plaintiff had been rightly and lawfully ejected, this order would not have been made as it is incapable of performance. There is also the order of the learned trial Judge that the present occupier, one Mary Tifase who had been in possession since February 1967, should vacate the stall forthwith. Although she was not a party to the claim, the learned trial Judge was in error to have so ordered as her occupation of the stall was lawful. She was lawfully put in possession of the stall, and had not committed any breach of by-law 4. She is entitled to remain in possession of the stall.
With regard to the order that all rents paid by the plaintiff to the Rent Assessment Board should be paid over to the 2nd defendant, the learned trial Judge did not state under what law the order was made because the plaintiff was not in possession for the period for which she alleged she paid rents to the Rent Assessment Board. We are not unaware that the order said that the rent was to be regarded as that due from the date of the judgment, which is the 8th July, 1968, we do not see under what provision of the by-law this order was made.
We wish to add that although the plaintiff had at certain times paid her 'rent' (-actually fees-) in arrears exhibits A to A4 refers, there is no provision in the Lagos Market By-Laws allowing any person to contract out of it, and in respect of fees, stallages and tolls it is clearly stated both in by-law 4 and the Government Notice No. 266 of 1958, that all fees, tolls, and stallages shall be payable in advance.
The appeal will therefore be allowed. The judgment of the learned trial Judge, and the orders made thereunder together with the award of 50 guineas costs are hereby set aside. In substitution thereof we made the following orders:-
1. The claims of the plaintiff in Suit LD/234/67 in the High Court of Lagos State are hereby dismissed.
2. The defendants are awarded costs of 30 guineas in the lower court and 59 guineas in this Court as their costs of this appeal.
Appeal allowed: Judgment of trial Court set aside:
Appellant case dismissed.