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JARINATU KASUMU
V.
DORCAS IBIRONKE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT HOLDEN AT LAGOS, NIGERIA
22ND DAY OF OCTOBER, 1952
W.A.C.A. NO. 3591
2PLR/1952/57 (WACA)
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OTHER CITATION(S)
2PLR/1952/57 (WACA)
(1952) XIV WACA PP. 189 – 191
LEX (1952) – XIV WACA 189 – 191
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTI’ON, P.
VERITY, C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
JARINATU KASUMU – Appellant
AND
DORCAS IBIRONKE – Respondent
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ORIGINATING COURT(S)
Appeal by the plaintiff, the landlord, from the Supreme Court’s decision in an appeal from a Magistrate
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REPRESENTATION
F. R. A. Williams — for Appellant
Mrs. Adebiyi — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Landlord and Tenant – Lease of land – Tenant building on land with landlord’s knowledge-Landlord claiming recovery of premises — Increase of Rent (Restriction) Ordinance.
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CASE SUMMARY
The appellant, originally the plaintiff, gave notice to the defendant, now respondent, under the Recovery of Premises Ordinance, of intention to apply to Court to recover possession, describing the holding as premises/rooms; and in the writ of summons the claim was for “possession of the room occupied by the defendant”. The plaintiff testified at the trial that her father hired out a vacant plot of land to the defendant, who built on the land; that her father allowed the defendant to remain on the land for 12 years, which had expired a year before; and that the defendant was her tenant paying so much per month. The defendant agreed that was so and invoked the Increase of Rent (Restriction) Ordinance as she was living in the premises and carrying on business there.
The trial Magistrate held that as the 12 years were up, the defendant ceased to be a tenant and was not entitled to the protection of the Ordinance. The defendant appealed to the Supreme Court.
In the Supreme Court the argument for the plaintiff was that the letting had been one of vacant land and the fact that the defendant was allowed to build and that the plaintiff accepted rent did not alter the letting from a letting of vacant land to a letting of premises as defined in the Rent Restriction Ordinance, which does not protect land without any buildings thereon. The Judge held that the point was what user the plaintiff and her father had contemplated in giving the land to the defendant, and thought it was clear from the evidence that the defendant had built with the landlord’s knowledge and consent, and had regard also to the fact that the notice to deliver up possession described the holding as rooms, not as land. The Judge decided in favour of the defendant as a tenant entitled to protection under the Rent Restriction Ordinance, and the plaintiff, the landlord, now appealed to the West African Court of Appeal, where the argument advanced for the landlord in the Supreme Court was repeated.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
1. The landlord was aware of buildings having been erected by the tenant on the land and even after the twelve years were up continued to accept rent, thus accepting the position that a monthly tenancy existed, the nature of which was acknowledged to be a tenancy of a dwelling house on the land, the premises being described in the landlord’s notice before action and in the application for a summons not as land but as rooms;
2. Therefore the tenant was entitled to the protection of the Ordinance.
Case cited:-
(1) Wolfe v. Hogan, 1949, 1 All E.R. 570.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
The wording of the Writ of Summons in this suit, which was commenced in the Magistrate’s Court, Lagos, is for “possession of the room occupied by the defendant”. The plaintiff, now appellant, who is the landlord, testified that, “her late father hired out the land (meaning a vacant plot of land) at 8 Doherty Street, Lagos, to the defendant. The defendant has built on the land. Her father allowed her to remain on the land for twelve years. The twelve years expired over a year ago. There are two rooms and a shop, also a kitchen and bathroom on the land “. She also said that the defendant is her tenant paying 8s. per month. The original letting appears to have taken place about the year 1936 or 1937. The defendant’s testimony invoked the Increase of Rent (Restriction) Ordinance (Cap. 93) which, as from the 1st July, 1941, inter alia, limits the powers of the Courts to order recovery of possession of premises. She said she got the land from plaintiff’s father over twelve years ago, that she agreed to hire it for twelve years which had expired, that she had built on the land, that she was still paying the rent of 8s. monthly to the plaintiff, that she was living in the premises and carrying on business there and that she was not prepared to give up possession.
The learned Magistrate held that the defendant was not entitled to the benefit of the Ordinance referred to on the ground, apparently, that after the twelve years’ tenancy had expired, the defendant in the absence of an express agreement for a further tenancy, ceased to be a tenant and was not entitled to hold the premises as against the plaintiff landlord. The defendant appealed.
In the Supreme Court, Counsel for the plaintiff, then respondent, supported the judgment, not for the reason given by the learned Magistrate, for clearly one of the objects of the Increase of Rent (Restriction) Ordinance is to safeguard a tenant from being turned out, though his tenancy by agreement has expired, but on the ground that vacant land had been let to the defendant and that the fact that the defendant had been suffered to erect buildings thereon and the plaintiff had accepted rent from her did not alter the terms of the letting from that of vacant land to that of premises as defined by section 3 of the Increase of Rent (Restriction) Ordinance (Cap. 93). The definition of “premises” in section 3 of Cap. 93 does not mention land, whereas “land without any buildings thereon” is included in the definition of premises in section 2 of the Recovery of Premises Ordinance (Cap. 193) and it is argued from this that if the legislature had intended a person holding under a grant of land without any buildings thereon to be protected by Cap. 93, it would have expressly so provided.
The learned Judge declined to entertain this contention. Regarding the conduct of the plaintiff and her predecessor as the best evidence of what user was contemplated by the grant, he held on a consideration of the case of Wolfe v. Hogan (1), which was cited by the plaintiff-respondent now appellant, that on the evidence before the Court it was clear that the defendant had erected ‘the buildings on the land with the landlord’s knowledge and consent and further that, in the Notice to the defendant of the landlord’s intention to apply to the Court to recover possession, which was served pursuant to section 7 of the Recovery of Premises Ordinance (Cap. 193), the holding is described as premises/rooms situate at No. 8 Doherty Street, and not as land The learned Judge held therefore that the defendant was not deprived of the protection afforded by section 13(1) of Cap. 93 which provides:-
“No order or judgment for the recovery of possession of any premises to which this Ordinance applies or for the ejectment of any tenant therefrom shall be made or given unless the Court considers it reasonable to make such order or give such a judgment and either … “
and here follow the well-known exceptions which the plaintiff did not seek to establish in this case. The only ground upon which the plaintiff in fact sought an order for possession was that the original twelve years’ tenancy and notice to quit had both expired.
The argument above set out, addressed to the Supreme Court on first appeal, has been presented to this Court on second appeal. In Wolfe v. Hogan (1) it appears that rooms were let for contemplated user as a shop. In the absence of proof that the landlord knew that the tenant was using the rooms as a dwelling and that he had agreed to that user, it was held that the essential factor was the contemplated user and not the actual user and therefore the rooms were not let as a separate dwelling within the meaning of the English Rent Restriction Act of 1920 in order to permit the tenant to resist successfully an order for possession. There is a clear distinction, I think, between the facts in that case and the facts in the present case. Here it is true that vacant land was let originally to the defendant but, without the possibility of concealment, the defendant proceeded to erect the buildings already described on the land. There is no evidence of any protest by defendant such as would be expected if the erection of buildings were not contemplated by the parties. It is a reasonable conclusion from the evidence that after the erection of the buildings and for a period before these proceedings were instituted the landlord, with full knowledge that the buildings had been put up on the land and occupied by the defendant, accepted and continued to accept the defendant as tenant of the buildings on the land and, finally, after the term of twelve years had elapsed, accepted the position that a monthly tenancy subsisted. The following passages in the judgment of Evershed, L.J., in Wolfe v. Hogan (1) are, I think, applicable because they visualise a case like the present one:-
At page 572 (E): “If the facts were that the landlord of Miss Hogan with full knowledge of what she was doing, had continued to accept her as a tenant, prima facie it would be impossible for him to deny that there had come into existence a letting of a dwelling house.”
And at page 574 (H): “Again I wish to make it quite plain that I am saying nothing which should be taken as indicating that, if a tenant does change the user and creates a dwelling house out of what was formerly a shop, and if that fact is fully known to and accepted by the other party to the contract (whether or not there is a prohibition) the result may not very well be that there will then be inferred a contract to let as a dwelling house, although it may be a different contract in essentials from the contract which was originally made and expressed.”
Further the plaintiff-appellant did not offer evidence to establish that the land was let for a specific purpose such as a garden, a yard or a dump and. I think therefore that the actual user at the time when possession-is sought must be the governing factor.
We are asked to infer that as land is not mentioned in the definition of premises in section 3 of Cap. 93, the legislature did not intend, in any circumstances, to give protection to a tenant who by agreement, express or implied, builds upon and occupies land and observes the terms of his tenancy. From the general construction and objects of the Ordinance and reading section 19(1) which enjoins every court whether of civil or criminal jurisdiction so far as is necessary to conform to the Ordinance in all proceedings, actions, suits or cases between landlords and tenants, there is in my opinion no logical reason for withholding the protection given by the Ordinance to one who is acknowledged by the landlord as a tenant of a dwelling house erected on his land. I say acknowledged because in both the Notice before action and in the application for a summons, the plaintiff describes the premises, not as land but as rooms/premises and premises/rooms and the tenancy as a monthly tenancy. This placed beyond doubt the nature of the tenancy and the nature of the user in this case and, in my opinion therefore, the conclusion arrived at by the learned Judge on appeal is correct and I would dismiss this appeal.
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FOSTER-SUTTON, P.
I concur.
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VERITY, C.J.
I concur.
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Appeal dismissed.
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