Mrs. C. A. Sobamowo V. The Federal Public Trustee (1970)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C. 

The plaintiff’s particulars of claim in the Magistrate’s Court Yaba in suit 404/66 read. ‘The plaintiff is the trustee of the estate of C.T. Osinaike: deceased is the owner of the premises situate at No. 32, Little Road, Yaba.
(1) Before the 1st day of November, 1965, the defendant occupied 4 (four) rooms in the said premises as a tenant.
(2) On or about the 1st day of November, 1965, the defendant forced open the lock on the door of a fifth room in the said premises and entered into possession thereof without the authority of the plaintiff.
(3) The plaintiff has demanded from the defendant possession of the said room but the defendant has refused to give the plaintiff possession thereof and wrongfully remains in possession thereof.
AND the plaintiff claims:
(a) Possession of the fifth room;
(b) Mesne profits at the rate of 3pounds per month from the 1st day of November, 1965 until possession is given up.
Annual rental value of the room is 36pounds.”
The learned Magistrate on the 20th of May, 1966 dismissed the plaintiff’s claim with 10 guineas costs ending his judgement with the words
“I find that the giving of the key of the room to the defendant coupled with the permission to make use of the room by letting the defendant’s goods into the room constitute in my view an intention to create legal obligations between the parties not with standing the latter’s advise eleven months after the permission that the defendant was to see the plaintiff if she wanted the room.

The question for my consideration is, at what moment of time was the defendant in lawful possession of the room January 1965 is my answer.

That being so it is my view that the defendant’s entry into the room is lawful. The defendant was occupying the room on the 1st day of November, 1965.
In Akpiri v. W.A.A.C. 1Under section 2 (1) of Recovery of Premises Act Cap. 193 the word ‘tenant’ was defined to include any person occupying premises whether on payment of rent or otherwise but does not include a person occupying premises under a bonafide claim to be the owner of the premises.
4 W.A.C.A. 412 the Court of Appeal held that the word ‘occupying’ must be given its ordinary dictionary meaning and that case is authority to cover the present case. I hold that the defendant was in lawful occupation of the premises and since the plaintiff had not complied with the provisions of the Recovery of Premises Act which I further hold applies in this case, the plaintiff’s claim against the defendant is bound to fail.”

On appeal to the Lagos High Court in suit LB/41A/66 Taylor, C.J. reversed the learned Magistrate holding that the defendant was not ‘occupying’ the premises within the meaning of section 2 of the Recovery of Premises Act and that Akpiri’s case (supra) did not apply, and he concluded his judgment with the words

“The learned trial Magistrate rightly considered 1965 January as the date relevant to the consideration of the defendant’s possession. On that date as the evidence of Mr. Senegal showed, he had already given up possession of two of his rooms and the last one in which he allowed the defendant to put her goods, also contained his, Mr Senegal’s goods.

Mr Senegal on his own evidence did not vacate the room till October 1965 and it was when he was vacating it (and not eleven months after as the Magistrate states) that he told the defendant to see the plaintiff. Did Mr. Senegal intend in January 1965, by merely allowing the defendant to put some of her goods in his room, and even given her a key, to create the relationship of tenant and sub-tenant of one room in the occupation of both the tenant and the sub-tenant That I think would be a novel relationship.

It cannot be that he intended to create a relationship of joint or common tenants with the defendant for that can only be created with the knowledge and assent of the plaintiff. I cannot see any other interpretation than that in January 1965 while he himself was still in occupation of the room he merely let the defendant store some of her goods in his room and gave her a key to enable her to get at her property. When, however, in October 1965 he was vacating the premises he made it known to the defendant that she had to get the permission of the plaintiff.

I hold that there was no intention on his part to create the novel relationship of tenant and sub-tenant of one room in the occupation of both the tenant and sub-tenant. The appeal succeeds and the judgment of the court below and the order for costs are set aside.”

Against that judgment the defendant has appealed to this Court.
The point at issue is therefore a short one, namely, whether the defendant was “occupying’ the premises within the meaning of the definition of ‘tenant’ in section 2 of the Recovery of Premises Act (Cap. 176 of the Laws of Federation of Nigeria and Lagos 1958) which reads ‘tenant’ includes any person occupying premises whether on payment of rent or otherwise but does not include a person occupying premises under a bona fide claim to be the owner of the premises.”

On the findings of the learned magistrate which were accepted by the learned Chief Justice the tenant, one Senegal, of the room in question at 32 Little Road, Yaba, in January 1965 allowed the defendant to use the room for storing her goods and gave her one key with which to enter the room whenever she wished without reference to him (the tenant) whilst he retained another key and continued also to use the room to store his own goods as well. This continued till the end of October 1965 when the tenant Senegal left and returned his own key to his landlord (the plaintiff), but left the other key with the defendant who continued thereafter as the sole user of the room till sued by the plaintiff.

It should first of all be noted that the plaintiff’s case was that he was entitled to possession as the defendant broke and entered the room about the 1st of November, 1965 but the accepted evidence did not in any way substantiate the claim on that basis. One would have expected that if the claim was to be based on trespass that the relief sought would have been damages for trespass (and possibly an injunction) rather than a claim for possession and mesne profits, as was done in Ebenezer v. Bell [1963] 1 All N .L.R. 17, though we do not think that that case is in pari materia. In that case the action was by a plaintiff claiming to be a sub-tenant, by virtue of payment of rent though it was found she did not, and to be in exclusive possession and by virtue thereof was suing the tenant for trespass, so that it was necessary for the plaintiff to establish that possession and the Federal Supreme Court held on the evidence that she had not done so.

Nonetheless both the learned magistrate and the learned Chief Justice saw that the test to determine whether the provisions of the Recovery of Premises Act applied must be whether the defendant was ‘occupying’ the premises in January 1965 within the meaning of the definition of ‘tenant’ in section 2 of the Recovery of Premises Act, and, if she was, then the occupation must have, on the findings of the fact, continued and thus it would have been necessary for the plaintiff to have given the required notice under that Act if he was to recover possession of the premises.

To our mind occupying the premises here must mean ‘lawful occupation’ as indeed Abbott, J. as he then was, found in Akinoshe v. Enigbokan [1955] 21 N.L.R. 88. Here however on the findings of fact the defendant was perfectly legally permitted to use the room by the tenant so that, if that use amounted to ‘occupying’ the premises, it was to our mind clearly lawful as she was not there illegally and could rely on the tenant’s permission or licence for her use of the premises.