Jarinatu Kasumu V. Dorcas Ibironke (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Landlord and Tenant—Lease of land—Tenant building on land with landlord’s knowledge—Landlord claiming recovery of premises—Increase of Rent (Restriction) Ordinance.

Facts

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.

Held

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; therefore the tenant was entitled to the protection of the Ordinance.

Appeal dismissed.