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AMOS BROTHERS AND COMPANY LIMITED
V.
BRITISH WEST AFRICAN CORPORATION LIMITED
WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
17TH DAY OF NOVEMBER, 1952
2PLR/1953/28 (WACA)
OTHER CITATION(S)
2PLR/1953/28 (WACA)
(1952) XIV WACA PP. 220-225
LEX (1952) – XIV WACA 220-225
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BEFORE THEIR LORDSHIPS
FOSTER-SUTTON, P.
VERITY, C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
AMOS BROTHERS AND COMPANY LIMITED – Appellants
AND
BRITISH WEST AFRICAN CORPORATION LIMITED – Respondents
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ORIGINATING COURT(S)
Appeal from Supreme Court by plaintiffs, sub-tenants suing the landlords of the tenants: No. 3586.
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REPRESENTATION
F. R. A. Williams — for Appellants
T. O. S. Benson — for Respondents
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ISSUE(S) FROM THE CAUE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Landlord and Tenant — Verbal lease prohibiting sub-letting — Sub-letting Lease later reduced to Writing-Sub-lease not known to Landlord-Ejection of tenant — Position of sub-tenant — Increase of Rent (Restriction) Ordinance (Cap. 93), sections 4, 12, 19
DEBTOR AND CREDITOR LAW — JUDGMENT DEBT:- Execution of — Liability of judgment creditor for seizure of goods not belonging to judgment debtor — Order II, rule 29 (2), Rules made under the Sheriffs and Enforcement of Judgments and Orders Ordinance
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeals in Civil cases — Protection under Increase of Rent (Restriction) Ordinance invoked on appeal for first time — Section 19 — Disallowing costs on point not taken at court below
JUDGMENT AND ORDER:- Claim of special damages — No particulars in pleading and no evidence on which to assess
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CASE SUMMARY
Section 4 of the above Ordinance (Cap 93) provides that “When a landlord has let … any premises and his tenant, not being expressly prohibited in writing from sub-letting, sub-lets such premises or any part thereof the sub-tenants of such premises or any part thereof shall be deemed for the purpose of this Ordinance to be tenants of the landlord”.
Section 12 of Cap 93 provides that “No tenant or sub-tenant of any premises to which this Ordinance applies shall be ‘ejected therefrom save in pursuance of an order of the court obtained under the provisions of the Recovery of Premises Ordinance, 1945”.
And section 19 of Cap. 93 provides that “Every Court … shall … conform to this Ordinance in all … cases between landlords and tenants and such landlords and tenants or sub-tenants, etc.”.
The respondents (who will be referred to in this note as the landlords) gave a lease to a company (who will be referred to as the tenants) at first orally, later reduced to writing, which expressly prohibited sub-letting. From the very start of the oral lease the lessees sub-let part of the premises in their lease to the appellants (who will be referred to as the sub-tenants). The landlords obtained judgment against the tenants for ejectment and arrears of rent and under the writs of ejectment and fi fa issued against the tenants, the sub-tenants were ejected and some goods of theirs seized in execution. The sub-tenants brought the present action against the landlords claiming damages for trespass to goods and for unlawful ejectment. The trial Judge held that the sub-tenants had no right to possession and that the landlords were not liable for the attachment of goods of a third party occupying the premises through his tenants unknown to them, and dismissed the action. The sub-tenants appealed.
In the appeal, for the first time, the sub-tenants invoked sections 4 and 12 of the Increase of Rent (Restriction) Ordinance (Cap. 93), by virtue of section 19, which enjoins every Court to conform to the Ordinance: at the time of the sub-letting to them there was no lease in writing prohibiting the tenants from sub-letting; the sub-tenants ranked as tenants of the landlord under section 4; there was no Court order for the ejectment of the sub-tenants as required by section 12. The argument for the landlords was that the sub-tenants knew of the prohibition in the oral lease at the time of the sub-letting and could not avail themselves of the Ordinance on the ground that at the time of the sub-letting the prohibition was not expressed in writing.
As regards the sub-tenants’ claim for damages, special and general: Just before the ejectment and the seizure of their goods, their solicitor claimed that they were sub-tenants before the Deputy Sheriff and the Bailiff, in the presence of the landlords’ solicitor. This ought to have put the landlords on their guard: it neutralised their argument that not knowing of “the sub-lease, they were led to think that goods on the premises belonged to the tenants, the judgment debtors. The sub-tenants invoked rule 29(2) in Order II of the Rules under the Sheriffs and Enforcement of Judgments Ordinance, to the effect that a judgment creditor is liable for damage arising from any irregular or illegal proceeding taken at his instance. But no particulars of special damages were pleaded, nor was there any evidence on which special damages could be assessed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal) that:
(1) The words of section 4 of the Increase of Rent (Restriction) Ordinance were clear and unambiguous and effect ought to be given to them. At the time of the sub-letting there being no express prohibition in writing, the sub-tenants, now appellants, became entitled to be deemed tenants of the landlords, now respondents, for the purposes of the Ordinance and entitled to the protection afforded thereby. That statutory relationship between them and the protection it afforded to the appellants was not affected by the prohibition in the subsequent lease in writing entered into between the landlords and their tenants. The appellants could not, in view of section 12, have been ejected without an order of Court, and as there was no such order against them, the ejectment of the appellants was an unlawful act from which damages should flow.
(2) The appellants were entitled in the circumstances to special damages for seizure of their goods under the writ against the tenants, but there being no particulars of special damages in their pleading or evidence on which special damages could be assessed, they could not be granted any special damages.
Case cited:-
(1) Dick v. Jaques, 36 T.L.R. 773.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C.J. (NIGERIA)
In this case the plaintiff company sought to recover from the defendant company the sum of £10.000 by way of damages for trespass to goods and for unlawful ejectment.
For the purpose of this appeal it will suffice to state briefly such of the facts as are immediately relevant to the issues to be determined. The defendant company, to whom I shall refer as the respondents were lessees of certain premises in Lagos a part of which they sub-let to a third company, the West African Transport Company. There was in the first instance a verbal agreement followed six months later by a lease under seal. One of the terms of this lease, which were stated in evidence to be the same as those of the verbal agreement, expressly prohibited sub-letting. It appears, however, that prior to the execution of the lease, indeed from the date of the verbal agreement, the lessee sub-let a part of the premises to the plaintiff company, to whom I shall refer as the appellants.
The lessees fell into arrears of rent and by suit in the Supreme Court the respondents obtained judgment for the amount due and for recovery of possession. Writs of ejectment and fieri facias were issued and not only were the appellants ejected from the premises but certain of their goods were taken by the bailiff in execution. The appellants are stated to have instituted interpleader proceedings but if this is true they do not appear to have persisted therein but commenced this action.
The learned Judge held that the appellants had no right to possession and that the respondents were not liable for the attachment of goods of a third party occupying the premises on which they were found through his tenants unknown to him and he dismissed the plaintiffs’ claim.
Counsel for the appellants divided his argument into two parts: one relating to the ejectment and the other to the trespass to the appellants’ goods.
In regard to the ejectment he raised a matter which does not appear from the record to have been raised in the Court below. By section 4 of the Increase of Rent (Restriction) Ordinance (Cap 93) it is provided that:-
“When a landlord has let … any premises and his tenant, not being expressly prohibited in writing from sub-letting, sub-lets such premises or any part thereof the sub-tenants of such premises or any part thereof shall be deemed for the purpose of this Ordinance to be tenants of the landlord “.
Section 12 of Cap 93 (as amended by Ordinance No: 9 of 1948) provides that:-
“No tenant or sub-tenant of any premises to which this Ordinance applies shall be ejected therefrom save in pursuance of an order of the court obtained under the provisions of the Recovery of Premises Ordinance, 1945”.
It is now submitted by counsel for the appellants that in view of the fact that at the date when the lessee from the respondents sub-let to the appellants there was no express prohibition in writing from sub-letting, the joint effect of the above provisions is that the ejectment of the appellants from these premises was contrary to the provisions of the Ordinance and that on this ground alone the plaintiffs were entitled to succeed on this part of their claim. Although this matter was not specifically pleaded nor, it would appear, raised in any way at the trial of the action counsel submits that it can now be raised even if only by reason of the provisions of section 19 of the Ordinance which provides that:-
“Every Court whether of civil or criminal jurisdiction shall so far as necessary conform to this Ordinance in all proceedings, actions, suits or cases between landlords and tenants and such landlords and tenants or sub-tenants …”.
It is beyond doubt I think that this Court will give effect to the provisions of the Ordinance notwithstanding the fact that the point was not raised in the Court below though the failure so to raise it may well affect any order the Court might otherwise be disposed to make as to costs in the event of the appeal succeeding, a view readily conceded by counsel.
On behalf of the respondents, however, it was submitted that when as in the present case there was a prohibition of sub-letting under the verbal agreement, known to the sub-tenant at the time of the sub-letting and subsequently reduced into writing the sub-tenant cannot avail himself of the protection of the Ordinance on the ground that at the time of the sub-letting the prohibition was not expressed in writing.
Put simply the appellants rely upon the letter of the law while the respondents seek to show that the intent thereof is in their favour.
In considering this question I am constrained to bear in mind that it relates not to the principles of the common law nor to the rules of equity by which such principles are at times modified but to a statute the essence of which is to restrain a landlord’s common law rights and in a measure to substitute for equitable relief statutory protection for the tenant. While I hold the view that any such enactment must be strictly interpreted and any ambiguity must be considered in the light of the common law principles which the legislation seeks to modify, at the same time there is no doubt that when the words of the statute are clear and unambiguous, effect is to be given to them no matter how inconsistent they may be with the common law rights of the persons affected thereby. If moreover in this statute no provision or exception is made relating to knowledge or notice it is not open to the Courts to read such notions into the statute no matter how valid such a conception might be in equity.
It is incumbent upon the Court, in my view therefore, to place upon the words of the statute their strict meaning and no more, subject to such general rules as to the construction of statutes as have become well established in the course of their interpretation by the Courts in the past.
When therefore the legislature enacted that in certain circumstances a subtenant shall be deemed to be a tenant of the landlord when but for the statute he would be nothing of the sort, it is for the Court to give effect to the plain intention of the statute. Prima facie it would appear that the appellants’ submission is correct. No question I think can arise as to whether the sub-tenants knew or did not know of the prohibition of sub-letting contained in the original verbal agreement. Although I do not think it was argued on behalf of the respondents it is perhaps arguable that a sub-letting to come within the protection must be a lawful sub-letting. This argument would I think have been more attractive had the legislature in this country followed the Parliament of the United Kingdom when in the analogous Act of 1920 reference is made in section 5 to premises “lawfully sub-let” for then it would be difficult to contend that a sub-letting which to the knowledge of both tenant and sub-tenant was in breach of a prohibition whether oral or in writing could be held to be lawful. The contrary has indeed been held in Dick v. Jaques (1). Far from making such a provision, however, the Nigerian legislature appears to have contemplated and indeed procured the protection of a sub-tenant notwithstanding that the sub-letting was in breach of a covenant not to sub-let unless the prohibition be in writing. It is for the Court to interpret and not canvass the wisdom of such legislation though it may well be intended to protect a sub-tenant from collusive action by tenant and landlord in setting up a fictitious prohibition not evidenced by contemporaneous writing.
It is in my opinion clear therefore in the first place that at the date of the sub-letting, there being at that time no express prohibition in writing, the appellants became entitled to be deemed tenants of the respondents for the purposes of the Ordinance (Cap. 93) and entitled to the protection afforded by that Ordinance. What then was the effect of the Deed of Lease executed six months later by virtue of which an express prohibition in writing came into existence for the first time? Was its effect summarily to put an end to the statutory relationship existing between the sub-tenant and the landlord so that the sub-tenant no longer derived protection from the Ordinance and could be summarily ejected notwithstanding the provisions of section 12? I think not. By statute the original sub-letting brought the appellants within the protection of section 4 of the Ordinance and to this extent made lawful a sub-letting which might otherwise be deemed to be unlawful as in breach of the verbal covenant known to both parties. It is not necessary to consider what might be the effect of a subsequent express prohibition in writing outside the statute, for I am of the opinion that no such subsequent prohibition could have the effect of withdrawing the protection of the Ordinance from a sub-letting previously protected thereby in such a manner that the relation of tenant to the landlord was terminated and the statutory tenant within the meaning of section 4 be liable to summary ejection without the process of law required by section 12. No such proceedings were instituted by the respondents as against the appellants and the ejectment of the appellants from premises of which they were deemed by statute to be the tenants of the landlord was in my view an unlawful act from which damages should flow.
This view may appear to involve hardship, when as in the present case the landlord was not aware of the existence of the sub-letting which he has in fact prohibited. Not only is this statute by no means destitute of such instances of hardship upon the landlord (doubtfully, I may be permitted to observe, inevitable in such legislation designed primarily to protect the tenant) but in the present case it must be borne in mind that, though admittedly at the last minute, the respondents were made aware of the appellants’ claim before the writ of ejectment was in fact executed. It is clear from the evidence of the Deputy Sheriff and the bailiff that the appellants’ solicitor made clear that the appellants claimed to be sub-tenants of the premises and that the respondents’ solicitor was also present. This provided the respondents with an opportunity for reconsidering their position before allowing the bailiff to execute as against the appellants a writ directed solely against the lessees of the respondents.
On this part of the appellants’ claim I think the appeal should be allowed but as the ground upon which I would allow it was not taken in the Court below I would allow no costs of the appeal in respect thereof, for had this point been taken it may well be that no appeal would have been necessary.
On the second part of the claim it is submitted on behalf of the appellant that under a writ of fierii facias the Sheriff is permitted only to seize the goods of the judgment debtor and if he seizes any goods of a third party he does so at his peril no matter what the circumstances. It was further submitted, and this does not appear to be disputed, that by reason of Order II, rule 29 (2) of the rules made under the Sheriffs and Enforcement of Judgments and Orders Ordinance (Cap. 205) the judgment creditor is liable for damage arising from any irregular or illegal proceeding taken at his instance.
I think that in this part of the case also the appellants’ contention is well founded. There is no doubt that the common law rule was that a Sheriff who seizes and sells goods not belonging to the judgment debtor makes himself liable in conversion to the true owner and the only exception to this rule to which I have been able to refer is a provision of the Bankruptcy Act, 1913, section 15, which, however, is not a statute applicable in Nigeria.
It was submitted on behalf of the respondents that the circumstances of this case had in fact laid a trap for the judgment creditor in that he was unaware of the sub-letting of the premises by the lessees and was led therefore to the conclusion that any goods found thereon were the property of the lessees, the judgment debtors. Here again, however, if the circumstances were misleading there can be no doubt that before the execution of the writ both the Sheriff and the solicitor to the respondents were made aware of the appellants’ claim by the latter’s solicitor and if they proceeded did so at their peril.
On this ground also I think the appellant succeeds and that the appeal should therefore be allowed and the judgment of the Court below be set aside.
The final question is as to the judgment to be entered in place of that which I would set aside.
The appellants claimed “£10,000 special and general damages” and it is clear that they are entitled to damages in respect of any infringement of their rights. Although special damages are claimed in the writ, however, no particulars of special damages are pleaded nor is there evidence by reference to which special damages could be assessed. They are entitled to no more, therefore, than general damages which I would assess at £100. Judgment should therefore in my opinion be entered for the plaintiffs in the action for £100 and costs to be taxed.
In regard to the costs of this appeal I would for the reason I have already given disallow one half of the costs incurred by the appellant as those ascribable to the appeal on that part of the claim which relates to wrongful ejectment.
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FOSTER-SUTTON, P.
I concur.
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COUSSEY, J. A.
I concur.
Order:
Appeal allowed with costs. Judgment of Court below reversed and judgment entered for plaintiffs for £100 with costs in Court below fixed at £34 3s. 0d.
We fix the costs of this appeal at £19 16s. 9d.
Appeal allowed: Judgment for plaintiffs.
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