S. O. OLUWOLE (PLAINTIFF)
v.
A. ADENAIKE (DEFENDANT)
(1971) All N.L.R. 576
Division: High Court of Lagos
Date of Judgment: 25th October, 1971
Case Number: SUIT NO. LD/326/1967
Before: Taylor, C.J.
Action for mesne profits.
HELD:
(1) Mesne profits is the name given for damages for trespass against a tenant who holds over after the lawful determination of his tenancy. Mesne profits being damages for trespass can only be claimed from the date when the defendant ceased to hold the premises as a tenant and became a trespasser. The action for mesne profits does not lie unless either the landlord has recovered possession, or the tenant's interest in the land has come to an end or his claim is joined with a claim for possession.
(2) In this case the plaintiff had not brought his claim within any of these limits for he did not claim that the defendant was ever a tenant of his, nor did he ask for recovery of possession. Consequently the plaintiff's action for mesne profits must be dismissed.
OBITER:
(1) It is doubtful whether the plaintiff could have succeeded had this action been for user and occupation for an action for use and occupation is one of contract, and is founded on the relation of landlord and tenant, and therefore requires evidence of an occupation by the possession of, and under a contract with, the plaintiff.
(2) In this case the evidence such as it was given by the plaintiff was that there was a house on the premises at the time he bought the land and that the defendant or his predecessor in title was in physical possession before the plaintiff bought the land. There was no evidence that they were in occupation or possession as tenant or that they paid any rent to the predecessor in title of the plaintiff.
Plaintiff's action dismissed.
ACTION for Mesne Profits.
SUIT NO. LD/326/1967.
G.O. Ajayi for the Plaintiff.
Okunoron (Miss) for the Defendant.
Taylor, C.J.:-"The plaintiff claims from the defendant mesne profits 'in respect of his wrongful possession and occupation of the plaintiff's land at 23, Mabo Street, Suru Lere, at the rate of £30 per month with effect from 8th April, 1965 until possession is surrendered."
The evidence led at the hearing consisted only of the testimony of the plaintiff, the tendering of two exhibits and the testimony of the defendant. The plaintiff's case rests solely on exhibits "A" and "B" but before looking at those exhibits it is essential that one gets a perfectly clear picture as to the plaintiff's claim.
The Statement of Claim to which no reference has so far been made does not add to the claim as contained in
the Writ for it ends with the words:-
"Wherefore the plaintiff claims as per his writ of summons."
There is an averment in the writ that the defendant is in wrongful possession and occupation; that he remains in possession without the consent of the plaintiff and finally that mesne profits are claimed until such possession is surrendered. There is however no specific claim for possession. The substance of the claim is as it reads:-
"The plaintiff's claim against the defendant is for mesne profits in respect of ..."
I shall therefore not concern myself with any issue as to possession. It may very well be that the plaintiff found himself on the horns of a dilemma in deciding whether on the facts as disclosed in exhibits "A" and "B", the defendant could properly be called a trespasser against whom an injunction and order for possession could be claimed, or on the other hand a tenant against whom no order for possession can be made without recourse to the provisions of the Rent Acts. However, that is by the way for the point is that no claim is made for possession.
Turning to exhibits "A" and "B" which are proceedings on appeal from the original judgment of the Registrar of Titles on an application by the present plaintiff for first registration as the owner of the property in dispute, it is perfectly clear that the proceedings which terminated in the Supreme Court was in favour of the plaintiff. The Order of the Supreme Court in that respect was that:-
"... the appellant (i.e. present plaintiff) be registered as found by the learned Chief Justice as the proprietor of the freehold estate."
That being the case, and the fact being undisputed that the defendant or his predecessor in title has erected a building on land, in respect of which the Supreme Court has ordered the plaintiff to be registered as owner, what is the defence to the claim for mesne profits?
The defendant said that the house was built by his maternal grandfather in 1950 and completed in 1952. His maternal grandfather according to the defendant was in undisturbed possession and that he succeeded his grandfather to the property after the latter's death which he first said was in 1962 and later in 1963. He admits that in 1950 he was a boy of roughly 13 years of age and it seems to me that he would know little of the matters in issue at first hand during that period. Whatever facts he gathered about the property would be matters related to him by his father or some other person. The plaintiff however admits that before he bought he saw a small house on the land and he knew that there were tenants on the property in 1965.
The learned author of Halsbury's Laws of England Volume 23 P. 561 Para. 1230 puts the law on this point in these words:-
"Mesne Profits. The landlord may recover in an action for mesne profits the damages which he has suffered through being out of possession of the land. Mesne profits being damages for trespass can only be claimed from the date when the defendant ceased to hold the premises as a tenant and became a trespasser. The action for mesne profits does not lie unless either the landlord has recovered possession, or the tenant's interest in the land has come to an end, or his claim is joined with a claim for possession ..."
The present plaintiff has not brought his claim within any of these limits for he does not claim that the defendant was ever a tenant of his, nor as I have said before does he ask for recovery of possession. In Hill & Redman's Law of Landlord & Tenant 15th Ed. at page 597 mesne profits is defined as:-
"... the name given for damages for trespass against a tenant who holds over after the lawful determination of his tenancy: consequently they can only be claimed as from the date when the defendant ceased to hold the demised premises as tenant and became a trespasser. Accordingly where the landlord is seeking to recover possession under a proviso for re-entry for breach of covenant, mesne profits can only be claimed from the time when the landlord does some unequivocal act evidencing his intention to determine the tenancy as by entry or service of a writ..."
This makes it unnecessary to consider the defence of laches, acquiescence and standing-by pleaded in paragraph 12 of the Statement of Defence. Then again I am not at all sure and I say this by way of obiter that had this action been one for user and occupation that the plaintiff could have succeeded for the learned author of Halsbury's Laws of England Volume 23 states at page 559 paragraph 1229 that:-
"Action for use and occupation. Provided there is no lease under seal the landlord may also bring an action for use and occupation to recover a reasonable satisfaction for the lands held or occupied by the tenant. This remedy is available where a person has been in occupation of land without an agreement fixing the amount of rent."
And in the note to page 561 that:-
"The action for use and occupation is one of contract, and is founded on the relation of landlord and tenant, and therefore requires evidence of an occupation by the possession of, and under a contract with, the plaintiff."
In the particular case the evidence such as it is given by the plaintiff is that there was a house on the premises at the time he bought the land and I accept the evidence that the defendant or his predecessor in title was in physical possession before the plaintiff bought in 1964. There is no evidence that they were in occupation or possession as tenant or that they paid any rent to the predecessor in title of the plaintiff.
I must for these reasons dismiss the plaintiff's action for mesne profits. I shall hear the parties on the issue of costs.
Plaintiff's action dismissed.