Dawodu V. Ijale (1946)

LawGlobal Hub Judgment Report – West African Court of Appeal

Landlord and Tenant—Emergency Legislation—Rights of sub-tenant onexpiry or other termination of head tenancy—Statutory tenancy.

Where a sub-tenant, lawfully in possession, holds over after the termination (by expiry or otherwise) of the term created by the head lease, he becomes, by virtue of Regulation 4 of the Nigeria Defence (Increase of Rent) (Restriction) Regulations, 1942, a statutory tenant, notwithstanding that there was never any privity of contract between him and the head lessor.

(Note : Regulation 4 above referred to is exactly reproduced in the Increase of Rent (Restriction) Ordinance (Cap. 93), as section 4 thereof.)

Per curiam: A statutory tenant has no estate or property as tenant, but merely a personal right to retain possession of the property, and he could only be a mere trespasser if the original possession had not been lawfully obtained.

Appeal from the Supreme Court of Nigeria.

Williams for Appellant (defendant below).

Agusto for Respondent (plaintiff below).

The following joint judgment was delivered:

This is an appeal from a decision of the Supreme Court given on appeal from, and confirming, a judgment of the Magistrate’s Court, Lagos, the defendant being the appellant each time.

The dispute arose as follows. The plaintiff, who is the respondent, let premises in Lagos to the United Africa Company Limited for a term of years. The term started before the enactment of the Nigeria Defence (Increase of Rent) (Restriction) Regulations, 1942 (Regulations 59 of 1942). These Regulations came into operation on the 1st day of July, 1942.

The U.A.C. sub-let part of the premises to the defendant, who is the appellant, on a monthly tenancy. There was no suggestion that they were prohibited from sub-letting the premises or any part of them and so we presume that they were within their rights in so doing. The term of their lease expired at the end of December, 1942, and they yielded up the premises to the respondent. They then obtained a new lease of the part of the premises which they had occupied and not sub-let to the appellant. As regards the latter part, the appellant remained in occupation. The U.A.C. had written to him, but not until the 17th of January, 1945, giving him ” notice of the termination of your rentals ” (meaning of the sub-tenancy which he held) and saying also: ” This property is no longer leased by us from M. A. S. Dawodu and as from the 1st of January, 1945, you will require to make your own arrangements regarding the renting of these buildings with Mr. Dawodu.” The respondent wrote to the appellant (or told him) to quit, and the latter replied that he would and was trying to find somewhere to move to. He paid his rent for January and the subsequent months to the Rent Assessment Board to the credit of the respondent. As he was still there several months later the respondent sued him for possession in the Magistrate’s Court.

The material arguments in each Court have been the same and can be very briefly stated. For the respondent, it is that the appellant became a trespasser as from the expiration of the lease to the U.A.C., and that the Regulations (59

of 1942) referred to above do not apply. For the appellant it is that the Regulations do apply to his sub-tenancy, in particular Regulation 4, and that he is protected by them and cannot be turned out Otherwise than in accordance with them.

The respondent was successful in the Magistrate’s Court, and also in the appeal to the Supreme Court. The learned Acting Chief Justice, who heard the appeal, held in his judgment:—

” . . . It is clear that so far as the parties to this action are concerned there was no privity of contract between them at any time or upon termination of the head lease. Appellant ceased to be the tenant of the lessees or the owner and the relation of landlord and tenant so far as the respondent is concerned never existed and appellant was a trespasser … “

The learned Judge was of opinion that in those circumstances the Regulations did not apply and dismissed the appeal.

Regulation 4 reads as follows:—

“Where a landlord has let, whether before or after the coming into force of these regulations in respect of the place or area in which the premises are situate, any premises and his tenant, not being expressly prohibited in writing from sub-letting, sublets such premises or any part thereof, the sub-tenants of such premises or any part thereof shall be deemed for the purpose of these regulations to be tenants of the landlord.”

Up to the end of December, 1944, the appellant was the sub-tenant of the U.A.C. Ltd. and in lawful occupation of the part of the premises concerned in this appeal. In our opinion it is to just such a sub-tenant that Regulation 4 applies. Indeed it is difficult to think of any others to whom it could apply. Consequently we are of opinion that on the termination of the superior lease, (no matter whether that termination was due to the expiration of its term or otherwise) a sub-tenant who holds over thereafter is to be regarded as a tenant of the landlord and is protected by the regulations in the same way as the original tenant would have been had he held over and remained in possession after the termination of his lease.

In our opinion the appellant stepped into the shoes of the sub-lessor and became what is known as a statutory tenant, holding upon conditions which are not material, and he continued in possession not by virtue of any contract or lease but by virtue of the provision quoted above (Regulation 4). A statutory tenant has no estate or property as tenant but merely a personal right to retain possession of the property and he could only be a mere trespasser if the original possession had not been lawfully obtained. This being so, Regulation 8 prohibited the respondent from taking steps to eject the appellant, as he did by his action in the Magistrate’s Court, without the permission of the Rent Assessment Board.

In view of our decision we need not consider whether the Recovery of Premises Ordinance, 1945, applies.

In our opinion this appeal must be allowed.

Appeal allowed; judgments and orders as to costs set aside in Courts below and judgment entered for the defendant dismissing the plaintiff’s claim in the Magistrate’s Court with costs here and in the Court below.

By consent appellant’s costs in all three Courts are to be assessed by this Court. We assess them at thirty guineas.

Appeal allowed and judgments of the Magistrate’s Court and Supreme Court reversed.