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.

In Dawodu v. Ijale [1946] 12 W.A.C.A 12 the West African Court of Appeal said at page 13
“A statutory tenant has no estate or property as tenant but merely as 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.”

The really material issue here however is what constitutes ‘occupying’ the premises. Now in both Akpiri v. WA.A.C. [1952] 14 W.A.C.A. 195 at 196 and Okedare v. Hanid [1955] 15 W.A.C.A. 17 at 19 the West African Court of Appeal emphasised that the word ‘occupying’ in the definition of ‘tenant’ must be given its ordinary dictionary meaning. We note in the Shorter Oxford Dictionary a number of meanings of occupying which include- ‘to take possession of’, ‘to reside in’ and ‘to make use of’.

In the Queen v. St. Pancras Assessment Committee [1877] 2 Q.B.D. 581 Lush, J. said as to the requirement of occupation for the purposes of liability for rates at page 588
“It is not easy to give an accurate and exhaustive definition of the word ‘occupier’. Occupation includes possession as its primary element, but it also includes something more Legal possession does not of itself constitute an occupation. On the other hand, a person who without having any title, takes actual possession of a house or piece of land, whether by leave of the owner or against his will, is the occupier of it.

Another element, however, besides actual possession of the land, is necessary to constitute the kind of occupation which the Act contemplates, and that is permanence. ”
In our view to establish that the defendant was ‘occupying’ the premises within the meaning of ‘tenant’ in section 2 of the Recovery of Premises Act one must establish actual use, which is lawful, of the premises so as to have possession of the premises coupled with such degree of permanence as would amount to occupation. We do not find it necessary to determine now the exact line as to what constitutes sufficient permanence or not, as clearly to our mind 9 months as was established here would be sufficient.

There must be actual lawful user of the premises as such and not merely the right to use objects on the premises. Thus the right to go into the property to operate equipment without anything more would not establish the necessary possession as was shown in Balogun v. V.L.L.C. (1958) N.N.L.R. 77 where Reed, J. (as he then was) said at page 79
“In my view there is nothing in exhibit A which could be construed as conferring upon the plaintiff a right to occupy the premises; the agreement confers upon him a right to enter upon the premises to operate certain equipment upon the premises and nothing more.

The other question for me to decide is whether the nature of the acts to be done by the plaintiff required that he should occupy the premises, despite the wording or the agreement. In my view they did not; it was not necessary for him to occupy the premises to operate the equipment.”

Here however the defendant did in our view occupy part of the premises when she had a key and stored her goods as to that extent the premises were used absolutely by her and not at all by the tenant though in effect the possession of the premises as a whole was a joint one by the tenant and the defendant. We think moreover that it is perfectly possible for the purpose of the Recovery of Premises Act for the user and possession to be joint between two or more persons and on the facts here that both the tenant and the defendant had such joint user and possession.

There can be no doubt that for the purposes of the common law occupation can be joint as can be seen by the observation of Lord Denning in the House of Lords in Wheat v. E. Lacon and Co. Ltd. [1966] 1 All E.R. 582 when dealing with who was an occupier under the Occupier’s Liability Act 1957 (where the word ‘occupier’ is used in the same sense as it was used in the common law cases on occupier’s liability for dangerous premises) for the purpose of liability in negligence to someone entering the premises he said at page 594

“In order to be an ‘occupier’ it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be ‘occupiers’,”
Clearly under the definition it makes no difference whether or not money is paid for the use of the premises and in fact it was not shown here that the defendant paid any money for the rights she exercised, We do not think that it has to be established that the defendant has a specific legal relationship with the landlord as this is a statutory not a contractual tenancy that is in issue and that is determined solely by the interpretation of what ‘occupying’ the premises means in the definition of ‘tenant’ in section 2 of the Recovery of Premises Act.

It is true that in England it has been held that a person cannot become a statutory tenant unless he was in fact first a tenant (Cf. Strutt v. Panter [1953] 1 Q.B. 397), but that was because of the specific provision in the Act in question [section 12 (1) (g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920], and it is most important not to import English requirements determined by the special legislation of that country into the Nigerian legislation which must be read as it stands and given its ordinary meaning.

Although the case of Akpiri v. W.A.A.C. (1952) 14 W.A.C.A. 195 is not in our view on all fours with our present case, we do not think that alters the position here that even though the user was not by licence of the landlord but by the tenant, it was a lawful user and was of such permanence, albeit jointly with the tenant, as to bring the defendant within the definition of ‘tenant’ in section 2 of the Recovery of Premises Act. We do not see that it is necessary for the parties to recognise or acknowledge each other as such as landlord and tenant.

If a person comes within the definition of ‘tenant’ then he is entitled to the statutory protection provided for in the Act and it makes no difference whether the landlord recognises him as such or not. It is still beholden on the landlord to give that person as a statutory tenant the required notice under the Act.

To our mind Odutola v. Samuel (1956) 1 F.S.C. 76 ought to be held to be determined solely on the basis that as the 1st and 2nd respondents there were not ‘tenants’ (they claimed as joint owners, which they were held not to be, and were thus not covered by the precise words of the definition of tenant which excludes “a person occupying premises under a bona fide claim to be the owner of the premises”) they were not in lawful possession and so they could not give lawful possession to the 3rd and 7th respondents who in any case were not found on the evidence to be in possession at the time the landlord acquired ownership of the property.

The plaintiff should, therefore, in our view have complied with the provisions of the Recovery of Premises Act, which admittedly he did not, as the learned magistrate had originally found, and we accordingly allow the appeal, set aside the judgment of Taylor, C.J., together with his order as to costs and reinstate the decision of the learned magistrate dismissing the plaintiff’s claim together with his order of 10 guineas costs to the defendant in the Magistrate’s Court.

The appellant is entitled to her costs in this Court which we assess at 55 guineas and to her costs in the High Court which we assess at 10 guineas.

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SC.77/1968