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FALAIYE OF ILAWE
V.
OLOJA ADIN OF ILAWE
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
8TH DAY OF MAY, 1941
2PLR/1941/12 (WACA)
OTHER CITATION(S)
(1941) VII PP. 64 – 65
2PLR/1941/12 (WACA)
LEX (1941) – WACA PP. 64 – 65
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
FALAIYE OF ILAWE – Plaintiff
AND
OLOJA ADIN OF ILAWE – Defendant
IN THE MATTER OF AN APPLICATION BY EUTITHIOS HAGGE LAMBROU – Applicant-Appellant
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REPRESENTATION
E.J. Alex Taylor — for the Applicant-Appellant
No other appearance
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Issue of Writ in Magistrate’s Court claiming possession — Statement of Defence however raised issue of title to land thus ousting Magistrate’s jurisdiction
REAL ESTATE AND PROPERTY LAW — LANDLORD AND TENANT:- Claim by a landlord against a tenant for possession of a house claimed under agreement or refused to be delivered up — Question of jurisdiction
ETHICS — LEGAL PRACTITIONER:— Alleged misconduct of Solicitor in obtaining issue of writ — Filing a writ in a court without jurisdiction to hear the matter — Whether Solicitor liable to pay costs personally
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:–
1. In regard to the writ and statement of claim, the Magistrate’s Court had jurisdiction under the specific terms of section 32(b) of Protectorate Courts Ordinance.
2. It was not until the filing of the statement of defence that it appeared that there was raised any issue as to title to land or any interest therein so as to bring the case within the proviso to section 32(b) and so oust the jurisdiction of the Magistrate’s Court.
3. Judge misdirected himself as under section 32(b) of Protectorate Courts Ordinance issue writ properly obtained.
Costs paid by solicitor personally ordered to refunded.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND GRAHAM PAUL, C.J., SIERRA LEONE.
In this case, the learned Judge in the Court below in the course of hearing an appeal from the Magistrate’s Court came to the conclusion that the solicitor for the plaintiff had been guilty of misconduct in that he had as plaintiff’s solicitor in the case caused a writ of summons, claiming possession of a house and in the alternative damages, to be issued in the wrong Court namely the Court of the Magistrate of the Ibadan area.
The exact words of the learned Judge are as follows:
“In consequence of the unnecessary delay and suspense to which the parties have been put by the issue of the writ in a wrong Court, on the 6th May last I called upon Mr. Lambrou to show cause why he should not personally pay the costs of the proceedings since the 22nd April, 1939; on which date the Magistrate ordered pleadings.”
In our opinion the learned Judge was wrong in holding that there had been anything wrong in the issue of the writ in question in the Magistrate’s Court. In our view, the claim in the writ was quite a proper one to be entertained by the Magistrate’s Court provided it came within section 32(b) of the Protectorate Courts Ordinance which is in the following terms:
“In civil cases and matters every Magistrate’s Court shall have the following jurisdiction:
In all suits between landlord and tenant for possession of any lands or houses claimed under agreement or refused to be delivered up, where the annual value or rent does not exceed one hundred pounds.”
After pleadings were ordered by the magistrate, the plaintiff’s statement of claim was filed and from paragraphs 2 to 7 inclusive of the statement of claim it is clear that the claim was one by a landlord against a tenant for possession of a house claimed under agreement or refused to be delivered up. It is not suggested that the annual value or rent of the house was over $100.
So far as the writ and statement of claim are concerned it is clear that the Magistrate’s Court had jurisdiction under the specific terms of section 32(b).
It was not until the filing of the statement of defence that it appeared that there was raised any issue as to title to land or any interest therein so as to bring the case within the proviso to section 32(b) and so oust the jurisdiction of the Magistrate’s Court.
It follows therefore that the learned Judge’s Court order upon Mr. Lambrou to pay costs was based upon a material misdirection and therefore cannot stand. It is set aside accordingly, and it is ordered that the costs paid by Mr. Lambrou be refunded to him.
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