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GAFARU AKANNI
V.
J. A. SIJUWADE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
8TH DAY OF MAY, 1952
2PLR/1952/36 (WACA)
OTHER CITATION(S)
2PLR/1952/36 (WACA)
(1952) XIV WACA PP. 75 – 76
LEX (1952) – XIV WACA 75 – 76
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DECOMARMOND, AG. C.J., NIGERIA,
COUSSEY, J.A.
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BETWEEN:
GAFARU, AKANNI – Appellant
AND
J. A. SIJUWADE – Respondent
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REPRESENTATION
V. O. Esan — for Appellant
C. H. Obafemi — for Respondent
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ISSUE(S) FROM THE CAUSE9S) OF ACTION
COMMERCIAL LAW — CONTRACT:- Claim on contract — Where contract admitted — Where document of contract unstamped — Legal effect
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CASE SUMMARY
Appeal by the plaintiff: No. 3499.
In the Court below, the plaintiff, who had occupied two rooms belonging to the defendant, sued the latter for damages, alleging in regard to one room that he held it from the defendant under a written agreement of lease for a specified term at a specified rent-all of which the defendant admitted in his defence. Notice had been given by the plaintiff to the defendant to produce the agreement; the defendant produced it and the trial Judge noted that it was unstamped. At the end of the plaintiff’s case the Judge non-suited the plaintiff on the ground that as the agreement was unstamped, he could not lead oral evidence of its contents. The plaintiff appealed. (As regards the other room the alleged sub-lease was oral, and oral evidence of it was given.)
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal and ordering the new trial):
The written agreement by which the respondent (defendant below) leased one room to the appellant (plaintiff below) was admitted by the respondent in his defence, and the case could therefore have proceeded, had the respondent so chosen, without any formal tender of that agreement.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTEN, P.
The plaintiff-appellant alleged that he had leased two rooms, one at the front and the other at the back, in premises belonging to the defendant-respondent situate at Gegelose Street, Ibadan. In paragraph 4 of his Statement of Claim the appellant alleged that the back room had been rented by him from the respondent under a written agreement dated 15th December, 1949, and this was admitted by the respondent in paragraph 3 of his defence, and he also admitted that the agreement was for the lease of the room for a period of 151 months at a rental of £1 a month, as alleged by the appellant.
During the course of the trial, evidence was called on behalf of the appellant to prove that he had rented the front room for 151 months at a rental of £2 a month from one Buraimoh Maseyonu who had leased it from the respondent, and that the sub-lease to the appellant was made with the consent of the respondent.
In his defence the respondent admitted that Buraimoh Maseyonu had leased the room in question from him and that he had done so under an agreement dated 1st April, 1949, but he denied, in effect, that he had agreed to a transfer of the lease to the appellant.
The appellant sued the respondent for £250 being general and special damages which he alleged he had suffered by reason of certain acts of interference committed by the respondent in connection with the rooms leased by the appellant and to goods of his contained therein.
During the course of the plaintiff-appellant’s case, pursuant to a notice to produce given by the appellant, the agreement dated 15th December, 1949 was produced by the respondent’s Counsel and the learned trial Judge noted that it had not been stamped.
At the conclusion of the appellant’s case, the trial was adjourned for judgment, and the learned trial Judge subsequently delivered judgment non-suiting the appellant, on the ground that, as the agreement dated 15th December, 1949, was not stamped, it was not open to the appellant to lead oral evidence of its contents. The trial Judge concluded his judgment by saying, “In the circumstances, I do not wish to deprive the plaintiff of his right of action at law and I therefore enter a non-suit”.
It appears obvious that the learned trial Judge overlooked the fact that the agreement dated 15th December, 1949, by which the respondent leased the back room of the premises to the appellant, was admitted by the respondent in paragraph 3 of his defence. The case could, therefore, have proceeded, had the respondent so chosen, without any formal tender of the agreement in question.
Oral evidence of the sub-leasing by the respondent of the front room was given, and, in my opinion, was properly admitted because that agreement was itself an oral one.
It is clear that this case should have been allowed to proceed and there can, I think, be no doubt that the learned trial Judge erred in taking the action which he did. It follows, therefore, that, in my view, this appeal should be allowed, and the judgment of the Court below be set aside. There should be a new trial based on the present writ and pleadings, and the costs of this appeal and the costs of the abortive trial should abide the event of the new trial. That order appears to me to be a just one to make in view of the fact that the necessity for a new trial is not the result of any action of the respondent.
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DE COMARMOND, AG. C. J.
I agree.
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COUSSEY, J.A.
I agree.
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If the appellant succeeds on the new trial, he will have the costs of this appeal, which we fix at £29 12c;. 5d., and if the respondent succeeds on the new trial, he will have the costs of this appeal, which we fix at £14 5s. Od.
Appeal allowed: new trial ordered.