Madam R. Onyechie V Mrs. R. Shadiya (1966)

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BAIRAMIAN, J.S.C. 

This appeal is from the judgment of Sowemimo J., in the High Court of Lagos upholding the magistrate.

The dispute between Madam R. Onyechie and Mrs R. Shadiya (hereafter referred to as the tenant and the landlord respectively) is whether the landlord gave the tenant a rent-free tenancy for life of the premises occupied by the tenant at No. 133 Bamgbose Street, Lagos. Shortly put, the tenant’s case is that in consideration of her providing money to rebuild the premises the landlord agreed that she should live in them rent-free as long as she liked, which she submits is a tenancy for life: the landlord’s case was, in short as we understand it, that the money was a loan and the tenant was to live in 394 Supreme Court of Nigeria Law Reports 1966 the premises for two years, but has been living there since without paying rent, or to some similar effect.

The landlord sued for recovery of possession twice in the Magistrates’ Court but without success. She next applied to the Magistrate to fix the rent of the premises under s. 11 (1) of the Rent Restriction Act, which provides that-

“Any landlord or tenant or other person interested may apply to a court for an order fixing the rent of any premises.”

The tenant objected that as an issue of title was involved the Magistrate had no jurisdiction; the learned Magistrate held that there was no issue of title and went on to say–

“It is the general principle of law that the rent is attached to the property. Whether or not the respondent should pay such rent to be fixed by the court cannot be entertained in this application. I am of the view that by section 11(1) of the Rent Restriction Act, the court is empowered to fix the rent of any premises.”

And he proceeded to fix the rent.

The tenant repeated her point on jurisdiction on appeal to the High Court of Lagos. Sowemimo, J., writes in his judgment as follows:-

“I hold that on the facts as proved on the two previous judgments” [viz., of the magistrates who refused recovery of posses-sion] “title was never involved and the decision of the lower court on the application before it” (viz., to fix the rent] “did not decide on the question of title.”

Lower down the learned Judge writes as follows–

“It is contended that for those two Acts” [viz., the Rent Restriction Act and the Recovery of Premises Act] “to be called in aid of any claim there must be the relationship of landlord and tenant. The words tenant and landlord are well defined in section 2(1) of the Recovery of Premises Act Cap. 176 of Vol. V Laws of Nigeria and on the findings of the two former cases Exhibits A and C definitely decided the relationship of appellant and respondent.”

Therefore he held that it was competent to the magistrate to make the order fixing the rent of the premises.

There is a relationship of landlord and tenant, but the tenant’s point, that there is no competent decision on her case as to the precise terms of that relationship, does not seem to have been appreciated. The learned Judge’s note of the argument for the tenant reads as follows:

“On Ground 2” [viz., that the Magistrate had no jurisdiction] “refers to section 11 of Rent Restriction Act. Bannister v. Bannister [1948] 2 All E.R. 133. The appellant is a life tenant and therefore title is involved. In deciding the issue the learned Magistrate must decide the status of the parties.”

The last sentence is not quite clear, the last but one is: that “the appellant is a life tenant and therefore title is involved.” A life tenancy, though not an estate of inheritance, is a freehold estate, and the grant may be rent-free or subject to rent. That is English law; and it is not suggested that such an interest in land is unknown to native law and custom.

On the evidence in the case there is a bona fide issue of ‘title’ to or ‘interest’ in land within the meaning of section 14(2) of the Magistrates’ Court (Lagos) Act, which provides that–

“(2) Subject to the provisions of any other Ordinance, a chief magistrate shall not exercise original jurisdiction in any cause or matter which – (a) raises any issue as to the title to land, or to any interest in land;” (etc., irrelevant here).

We have not been referred to any overriding provision in any other Act, and are of opinion that the magistrates could not decide the issue raised by the tenant, which requires to be tried and decided in the High Court.

It is true that a landlord may apply under s. 11(1) of the Rent Restriction Act to a court for an order fixing the rent of any premises, but the court is not bound to make an order: subsection (2) provides that –

“Where an application is made to a court under this Ordinance the court may refuse to make an order or may make an order authorising the receipt or recovery of the whole or any part of any increased rent or an order fixing the amount by which the rent may be increased or may by order fix the rent.”

This case was one in which rent ought not to have been fixed, as it was brought to the magistrate’s notice that there was a bona fide dispute on the nature of the tenant’s title or interest and on her liability to pay rent which could not have been decided by the magistrate. There is a grave risk in this case, particularly in view of the High Court judgment, that the landlord will sue for rent and use that judgment and the magistrate’s order as props for her claim; and this in our opinion she is not entitled to do in the circumstances of this case.

In our view the issue raised by the tenant ought to be decided first.

The appeal is allowed with sixty-seven guineas costs in all the courts against Mrs. R. Shadiya in favour of Madam R. Onyechie, the Lagos High Court judgment of 15th March, 1965 in LD/83A/64 and the magistrate’s decision of 30 July, 1964, in MR.585/63 are hereby set aside; either party is at liberty to sue or counter-claim in the High Court for a declaration on the nature and terms of the tenancy of the premises at 133 Bamgbose Street, Lagos, occupied by Madam R. Onyechie and add any other claims or counter-claims that may properly be added.

Other Citation: (1966) LCN/1323(SC)