Whether Service of Writ Of Summons on a Tenant Constitutes Adequate Notice of a Landlord’s Intention to Recover Possession of his Property

CASE TITLE: BANKOLE & ANOR v. OLADITAN (2022) LPELR-56502(CA)

JUDGMENT DATE: 14TH JANUARY, 2022

PRACTICE AREA: LANDLORD AND TENANT.

LEAD JUDGMENT: MUHAMMAD IBRAHIM SIRAJO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on recovery of premises.

FACTS:

This is an appeal against the decision of the High Court of Lagos State, which was presided over by Justice A.A. Phillips, Chief Judge.

​The late Chief Oladipo Oladitan was the owner and landlord of a storey building with appurtenances thereto, situate at and known as No. 19, Nnobi Street, Ikare, Surulere, Lagos, which he let out to the Appellants for use as an office and a school. Following the failure of the Appellants to pay their rents regularly, the late Chief started the process of recovering possession of the property from the Appellants before his demise on 17/06/2002.

Having obtained Letters of Probate as Executor/Executorixes of the Estate of late Chief Oladipo Oladitan, the other two Executrixes authorized the Respondent to commence legal proceedings against the Appellants. The Respondent took out a Writ of Summons for possession of the property, arrears of rent, mesne profit and interest on the total sum owed.

Appellants filed a Statement of Defence and the matter proceeded to trial. The trial Court entered judgment for the Claimant/respondent as follows:

“1. The Defendants are liable to the claimants in the sum of N2,050.000.00 made up as follows:

i. N25,000.00 being the balance arrears of rent for the period from 1st August 1999 to 31st July 2000.

ii. N1,800,000.00 being arrears of rent at the rate of N225,000.00 per annum from 1st August 2000 to 31st July 2008.

iii. N225,000.00 being mesne profit or for the use and occupation of the said property per annum from 1st August 2008 until possession of the property is given up.

2. They shall also pay interest on the said sum of N2,050,000.00 at the rate of 12% per annum from 1st August 1999 until today and hereafter at the rate of 5% per annum until the judgment sum is fully paid.

​3. The claimants are hereby given possession of the storey building with the appurtenances thereto situate at and known as No. 19 Nnobi Street, Ikate, Surulere, Lagos.

4. The Defendants are hereby ORDERED TO VACATE the said premises FORTHWITH.

5. The Defendants shall pay the costs of this action assessed at N100,000.00.”

Dissatisfied, appellants appealed to the Court of Appeal.

ISSUES:

Appellants raised the following issues for determination:

“1. Whether failure to serve notice personally where personal service is required nullifies the notice served.

2. Whether the 2nd defendant can be sued in its name and whether the Claimant can maintain the present suit without a formal introduction as to his new capacity.”

In his Brief of Argument, the Respondent distilled similar issues for determination, couched thus:

“1. Whether service of the Notice of Owner’s Intention to Apply to Recover Possession of Premises (Exhibit C11) served on the 1st Appellant was proper service.

2. Whether the Respondent (and the Executors of the Estate of the late Oladipo Oladitan) can maintain this action without having formally introduced themselves to the Appellants as their landlords and whether the 2nd Appellant can be sued in its own name.”

The Court of Appeal adopted both sets of issues in the determination of the appeal.

DECISION/HELD:

In conclusion, the Court of Appeal dismissed the appeal.

RATIOS:

• LANDLORD AND TENANT – RECOVERY OF PREMISES: Whether service of writ of summons on a tenant constitutes adequate notice and rectifies the irregularity in the service of statutory notice(s)
• EVIDENCE – ESTOPPEL: Whether under the law of evidence a tenant can dispute the title of his landlord
• ACTION – CAPACITY TO SUE AND BE SUED: Position of the law as regards the capacity of any person carrying on business in a name other than his own, to sue and be sued