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GIBSON ROBERTS
V.
MARIA SAMUEL
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
4TH DAY OF MAY, 1950
2PLR/1950/47 (WACA)
OTHER CITATION(S)
2PLR/1950/47 (WACA)
(1950) XIII WACA PP. 55-56
LEX (1950) – XIII WACA 55 – 56
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
AMES, Ag. C.J., NIGERIA
LEWEY, J.A.
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BETWEEN
GIBSON ROBERTS – Plaintiff- Appellant
AND
MARIA SAMUEL – Defendant-Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CIV.APP.3180/50.
REPRESENTATION
A. O. Thomas with F. R. A. Williams and Kayode — for Appellant
G. B. A. Coker — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LANDLORD AND TENANT:- Application of Recovery of Premises Ordinance (Cap 193) – Applicability of where relationship of Landlord and Tenant exists under the Ordinance or at common law – Action dismissed, although plaintiff had an interest in the property.
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CASE SUMMARY
The appellant was the plaintiff. The trial Judge held that the appellant and the respondent were respectively landlord and tenant and found that the provisions of section 7 of the Recovery of Premises Ordinance (Cap. 123) should have been complied with, and a statutory notice to quit required by this section should have been served on the respondent. It was further argued that the trial Judge, having found that the appellant had an interest in the property, was wrong in dismissing the appeal. The appellant’s case throughout was that the respondent did not consider him to be her landlord, and that the respondent admitted that at no time did she consider him to be her landlord. The respondent was not occupying the premises.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. No relationship of landlord and tenant had been established at common law. Although the appellant might come within the term “landlord” in section 2(1) of the Ordinance, the respondent did not come within the definition of “tenant”.
2. Consequently, the provisions of the Ordinance were not applicable, and the appellant was entitled to an order for possession.
3. The trial Judge, having made a definite finding that the appellant had an interest in the property which entitled him to seek possession, was wrong in dismissing the case.
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MAIN JUDGMENT
The following judgment was delivered:
LEWEY, J. A.
In this appeal, the issue appeared at the first blush to be numerous and complex. But as the arguments proceeded before us, it was apparent – as is so often the case – that the matters for decision were, in fact, comparatively simple.
In order to ascertain the real questions which have to be answered, it is necessary to look at the grounds of appeal, which are three in number. Grounds 1 and 2 are entirely concerned with the application or non-application to the facts of this case of the Recovery of Premises Ordinance (Cap. 193). Indeed, it is fair to say, I think, that unless the provisions of Cap. 193 can, properly be applied to the case, the appeal must inevitably succeed.
The first ground of appeal is to the effect that the learned trial Judge erred in law in holding that the appellant and respondent were respectively a landlord and a statutory tenant within the meaning of the Ordinance; in the second ground it was averred that the Judge was wrong in law when he found that the provisions of section 7 of Cap. 193, should have been complied with by the plaintiff, that is to say, that he should have served on the respondent, as his tenant, the statutory notice to quit required by the section.
Taking those two grounds together, it seems to me, on the facts of the case, that there was no relationship of landlord and tenant existing between the plaintiff and the respondent, either at common law or under Cap. 193. The appellant’s case was throughout that the respondent did not consider him to be her landlord and refused ever to pay him rent, while the respondent admitted that at no time had she been prepared to acknowledge the plaintiff as her landlord. That appears to me to dispose of any question of common law relationship. What, then, was the position of the parties under the Statute? That seems to me to be equally plain if one looks at the definitions and provisions of Cap 193. The appellant might possibly be said to come within the term “landlord” in section 2(1); but the same cannot, in my view, be true of the respondent in relation to the definition of “tenant” in that sub-section, for, apart altogether from the question of non-payment of rent, it is common ground that she does not occupy the premises in question. Moreover-and this relates more particularly to the second ground of appeal-the statutory form of notice to quit under section 7 of Cap. 193 is very clearly not applicable to the appellant and respondent in this case.
The material part of the statutory notice requires the tenant to quit and deliver up possession of the premises “which you hold of me as tenant thereof”: these words invest the notice with such a character that it is plainly a notice which the appellant could not properly have served, having regard to the evidence in this suit.
It follows, then, that there is here, in my opinion, no common law or statutory tenancy, and that Cap. 193 is not applicable to the parties. The result is that I think the appeal should succeed.
There was a third ground of appeal, which complained that the trial judge had dismissed the case, although it was clear that the appellant had an interest in the property. At the trial there was a definite finding by the judge that the appellant had an interest in the property which entitled him to seek recovery of possession. Having regard to that, and to my conclusions as to the other grounds of appeal, I think that here, too, the appellant is entitled to succeed.
The appeal, in my opinion, should be allowed.
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BLACKALL, P.
I agree. I only wish to add that the Rent Restriction Ordinance which it was argued it should be invoked applies only to a tenant in actual possession. The fundamental principle of this type of legislation is to protect a resident in a dwelling-house, not a person who is not resident there, but is making money by sub-letting it. That is what the respondent, according to her own pleadings, was doing.
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AMES, Ag. C.J.
I agree also. It is not disputed that the appellant is the landlord within the meaning of the Recovery of Premises Ordinance. The respondent cannot be a tenant within the meaning of the Ordinance because she is not in occupation and she cannot be a tenant at common law because she has refused to attorn tenant to the appellant. So she has no case at all, and I agree that the appeal should be allowed.
Appeal allowed. Order of possession granted. Costs to appellant.
Appeal allowed.
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