–
N. Y. AREJIAN
V.
ALHADJI B. A. SULEMON AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
17TH DAY OF NOVEMBER, 1952
2PLR/1952/26 (WACA)
OTHER CITATION(S)
2PLR/1952/26 (WACA)
(1952) XIV WACA PP. 201 – 203
LEX (1952) – XIV WACA 201 – 203
–
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
VERITY, C.J., NIGERIA
COUSSEY, J.A.
–
BETWEEN:
N. Y. AREJIAN – Appellant
AND
1. ALHADJI B. A. SULEMON
2. FATIMOH B. SULEMON TRADING UNDER THE NAME AND STYLE OF KOLAWOLE TRADING – Co-Respondents
–
ORIGINATING COURT(S)
Appeal by plaintiff from Supreme Court’s decision reversing the Magistrate: No. 3630.
–
REPRESENTATION
A. M. Ferguson — for Appellant
G. B. A. Coker — for Respondent
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Landlord and Tenant – Recovery of Premises Ordinance, section 19 (1) (e) New Landlord proving his title – Relevant considerations
–
CASE SUMMARY
The above provision requires a landlord to prove his title if it has accrued since the letting of the premises.
The appellant, who was the plaintiff, testified at the trial that “he bought the hotel from the previous proprietor who had let the shop in question to the defendants. The shop is part of the hotel”. This evidence was not challenged by the defendants, and the Magistrate was satisfied that the plaintiff sufficiently proved his title to the premises which he was suing to recover.
The defendants appealed to the Supreme Court on the ground that they were the tenants of the Hotel Bristol, not of the appellant. The Judge held that there was nothing in the record to show Arejian’s connection with the Bristol hotel vis-a-vis the defendants, and reversed the decision of the Magistrate. The plaintiff appealed to the West African Court of Appeal.
The plaintiff’s letters to the defendants were written on paper headed ”Hotel Bristol” and signed by the plaintiff as proprietor or manager of the hotel; one of his letters was asking the defendants to quit the shop, and in reply to it the defendants addressed a letter to Messrs, Hotel Bristol. There was also the oral testimony of the plaintiff set out above. The Hotel Bristol was not a legal entity but a mere name.
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal) that:
According to the evidence the property called the Hotel Bristol was in the ownership of the appellant by purchase, and the Magistrate rightly found that the appellant had proved his title as the new landlord of the respondents.
Case cited:-
(1) Mason v. Mogridge, 8 T.L.R. SOS.
–
–
MAIN JUDGMENT
The following judgment was delivered:
COUSSEY, J.A.
This action was brought in the Magistrate’s Court, Lagos, for recovery of possession of a shop at No. 146, Broad Street, Lagos, which the appellant claimed he had let out to the respondents as quarterly tenants. The respondents had been in occupation of the premises since 1936 but the appellant’s case was that the respondents became his tenants when he bought the property from the previous owner. The respondents contended before the Magistrate that the Hotel Bristol was their landlord and that the appellant had failed to prove his title to the premises as required by section 19(1)(e) of the Recovery of Possession Ordinance (Cap. 193), which requires a landlord to prove his title if such has accrued since the letting of the premises. The respondents also urged that there would be greater hardship to them as tenants than to the landlord if an order for possession were made.
In his judgment the Magistrate referred to a passage in the appellant’s evidence to the effect that “he bought the hotel from the previous proprietor who had let the shop in question to the defendants (respondents). The shop is part of the hotel”. This statement was not challenged by the respondents and the Magistrate held that it was an answer to the respondents’ submission that section 19(1)(e) of Cap. 193, already referred to, had not been observed; in other words he was satisfied that the appellant sufficiently proved his title to the premises.
The Magistrate ordered possession to the appellant holding that, in the circumstances of the case, it would be unreasonable to refuse his claim for possession.
On the respondents appealing this judgment was reversed by the Supreme Court, on the one ground only, that all the evidence showed that the respondents were tenants of the Hotel Bristol and not of the appellant Arejian. “Who is Arejian?” the learned Judge asked. He continued, “there is nothing in the record to show Mr. Arejian’s connection with the Bristol hotel vis-a-vis the defendants-appellants {now respondents)”: Earlier the learned Judge had set out an argument of the respondents which, apparently, had appealed to him, “The Bristol hotel goes on, proprietors of it come and go”. and he held that the action could not be maintained by Arejian suing as N, Y. Arejian unless he was described in the writ as proprietor of the Bristol hotel or unless he said he was so in evidence. With respect, there was ample evidence to show the appellant’s connection with the Bristol hotel of which the shop in question is admittedly a part. The appellant’s’ letters to the respondents are written on paper headed “Hotel Bristol” and they are signed by the appellant as proprietor or manager of the hotel. The respondents’ letter, Exhibit “C”, is addressed to Messrs. Hotel Bristol and it is in reply to a letter signed by the appellant as proprietor, Hotel Bristol, asking the respondents to quit the premises.
There could have been no doubt in the mind of the Court what hotel the appellant was speaking of in the light of these letters when the appellant testified that he was a hotel proprietor and that the place was let to the respondents by the previous proprietor of the hotel from whom he bought. There was, furthermore, the direct evidence that the appellant had acquired the property and that was, in my opinion, sufficient. Upon this evidence I think the Magistrate rightly found that the appellant is the proprietor (meaning owner) of the Bristol hotel although his writ of summons did not state so.
It seems that some confusion crept into the discussion of this matter in the Court below through want of regard to elementary principles. In my opinion it was not necessary for the appellant to sue as proprietor. The Hotel Bristol is not a company nor a partnership; it is not a legal entity. According to the evidence the property which is called the Hotel Bristol, is in the ownership of the appellant by purchase. But “Hotel Bristol” is a mere expression, a trade name which the appellant chose to continue when he bought the property but which he is at liberty to change at any time without affecting his title to the premises. Although the appellant could be sued as the Hotel Bristol because there is a holding out by him, he could not sue in his trade name: Mason v. Mogridge (1).
The right to relief was proved, therefore, to be vested in the appellant and the action was properly brought in his name.
For these reasons I would allow this appeal, set aside the judgment of the Supreme Court and restore the judgment of the Magistrate granting the appellant possession of the premises.
–
FOSTER-SUTTON, P.
I concur.
–
VERITY, C. J.
I concur.
–
Order:
Appeal allowed.
Judgment of the Court below set aside and the judgment of the Magistrate, Lagos, is restored. The appellant to have costs in the Court below: fixed at £10 10s. 0d. and the costs of this appeal which we fix at £3716s. 1d. Respondents to vacate premises in question by the 16th February, 1953.
Appeal allowed.
–