Mrs. Lily Uyanne Vs Ofor Asika (1975)

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DAN. IBEKWE, J.S.C. 

This case originated in the Chief Magistrate Court, Onitsha, and it was, therefore, tried without pleadings. The plaintiff’s claim against the defendant is for the sum of 120 being arrears of rent in respect of the property situate at No. 10 Iweka Road, Onitsha at 15 a month. The narrow issue which falls to be decided in this case is whether the said property at No. 10 Iweka Road, Onitsha is a business premises for the purpose of the East Central State Edict No. 10 of 1970 entitled Vacant Premises (Reoccupation Provisions).

The Edict in question was promulgated by the East Central State Government at the end of the civil war in order to tackle the acute accommodation problem which arose in some parts of the State soon after the cessation of hostilities. The Edict was not intended to be of general application. It applied only to a few towns which had been badly hit by the ravages of the war.

The First Schedule to the Edict set out the Disaster Areas as follows:
“FIRST SCHEDULE
Disaster Areas
Afikpo Division
Njikoka Division
Ogidi Town
Okigwi Township
Onitsha Urban
Uzuakoli Town”

The maximum rent fixed by the Edict for any flat or house in a “Disaster Area” was 3 per month. The most important aspect of this Edict which seems to us to be relevant for the purpose of this appeal is PART III, sections 8 and 9 which are set out as follows:

“PART III- DISASTER AREAS

8. (1) The places listed in the First Schedule to this Edict are hereby declared to be disaster areas and the provisions of this Part of this Edict shall apply in respect thereto:
Provided that nothing in this Part contained shall be construed as applying to business premises or to rebuilt or newly built houses notwithstanding that they are situated in a disaster area:

“And provided further that the provisions of this Part of this Edict shall not apply to any premises belonging to persons who are not of East-Central State origin:
And provided further that the provisions of this Part of this Edict shall not apply in respect of a house situated in a low density area notwithstanding that it is also in a disaster area.

9. Notwithstanding anything in this or any other enactment contained, the rents payable in a disaster area shall be as stipulated in the Second Schedule to this Edict.”

It seems to us that the effect of the first proviso to section 8 (1) above is that the prescribed rents payable in a “Disaster Area” under section 9 above shall not be applicable to “business premises or to rebuilt or newly built houses notwithstanding that they are situated in a disaster area”.

It is not in dispute that the defendant in this case lives and also carries on his trade as an Architect, Quantity Surveyor and Building Contractor in part of No. 10 Iweka Road, the property in question.
There is also evidence given by the plaintiff, which the learned Chief Magistrate, no doubt, accepted that the premises at No. 10 Iweka Road had been a business premises ever since it was built. Furthermore, the plaintiff testified that the only lawyer now occupying part of the premises paid rent at 15 per month for his chambers.

In reaching his judgment the learned Chief Magistrate held, quite rightly in our view, that since the Edict did not define “business premises” the question as to whether or not a premises is a business premises for the purpose of the Edict should depend on user. At this stage, we think that it is sufficient to say that there was ample evidence before the Chief Magistrate Court to the effect that the said property at No. 10 Iweka Road, Onitsha, had always been used for business purposes. That evidence was not seriously challenged by the defendant at the trial. On 7th December, 1971, the learned Chief Magistrate entered judgment on the plaintiff for 105, being arrears of rent from April to October 1970 plus costs assessed at 20 guineas.

Dissatisfied with the decision of the Chief Magistrate the defendant appealed to the High Court, Onitsha, on five grounds. Egbuna J., heard the appeal on 22nd June, 1972 and thereafter adjourned the case for judgment.

In a reserved judgment delivered by the learned appellate judge on 18th July, 1972 he allowed the appeal, set aside the judgment of the learned Chief Magistrate as well as the costs awarded, entered judgment for the defendant, and dismissed the plaintiffs claim with costs assessed at 8 guineas in the Court below and 15 guineas in the High Court.

It is from this decision of Egbuna J., that the plaintiff has now appealed to this court on the following grounds:
“(a) Error in Law:-The learned trial Judge erred in Law when he allowed the Respondent’s appeal as there is abundant evidence of letting, exclusively for business purposes, as enunciated in the RENTSACTS By MEGARRY, J. 7th Edition para. 2993 Cap. 21, which he quoted and relied upon.
(b) Error in Law:-The learned trial Judge erred in Law when he stated that the flat occupied by the Respondent, to be “classified as business premises he must use the WHOLE flat as an Office… ” as there was no letting agreement between the parties since the Vacant Premises (Reoccupation Provisions) Edict No. 10 of 1970 applies only to ACCOMMODATION and not to “business premises”.
(c) Error in Law:-The learned trial Judge erred in Law in not considering the leading Nigerian authority on the interpretation of similar words used in the interpretation of ACCOMMODATION in Edict No. 10 of 1970 and dual user of business premises for living- Diab Nasr & Anor. v. Edward Bourai-SC/275/67.
(d) The Judgment is against the weight of evidence.”

In clear and precise terms, Mr Umeadi, learned counsel for the appellant, urged it upon us to reverse the decision of the learned appellate judge on the ground that the Vacant Premises (Reoccupation Provisions) Edict No. 10 of 1970 applies only to residential accommodation and not to “business premises”. We ourselves have no hesitation in acceding to the request made by the learned counsel in his submission. As we have stated earlier on in this judgment, the Edict made it clear that the rents reserved or prescribed for the disaster area should not be applicable to business or to rebuilt or newly built houses in a “Disaster Area”. We have also pointed out that the question as to whether the premises, the subject matter of this action, is a business premises or not should be determined on evidence of user since the term “business premises” was not defined by the Edict.

The facts and the circumstances of this case are such that we have no hesitation in coming to the conclusion that the premises in the present case lies in a business locality, and that it is being used for business purposes. Indeed, it is clear from the record that the respondent is earning his living mainly by so using the part of the building, which he still occupies. In our view, the learned Chief Magistrate had no evidence before him on the basis of which he could find otherwise than that the property in question is a business premises.

We think that S.9 of the said Edict as set out above should be construed strictly in view of the fact that it is intended to take away or limit the existing right of a landlord to a negotiated rent. As we have already stated, the first proviso to S. 8 set out above seems to limit the operation of s. 9 to non-business premises. And as business premises were expressly excluded from the operation of Part III of the Edict, we take the view that it is not open to the court to stretch the provision of s. 9 so as to cover any premises used for business, trade, or professional purposes, as was done in this case by the appellate judge in respect of the premises situate at No. 10 Iweka Road, Onitsha.

It is obvious that in reaching his decision Egbuna J., relied heavily on the following English authorities:

(a) “Oatway Brothers Ltd. v. Munday Ltd. (1924) E.G.D.. 79
(b) Hyman v. Steward (1925) 2 K.B. 702 D.C.
(c) Rent Acts by Megarry 7th ed. p. 84.”

Suffice it to say that, in our view, the reliance put on the above authorities by the learned appellate judge is misplaced. We fail to see how English authorities can be of any help in construing the provisions of this particular Edict, which is unique both as to its con and as to its scope of application. In the first place, it was a kind of emergency measure, which was specifically aimed at the abnormal situation, which arose in some parts of the East-Central State at the end of the civil war. Furthermore, the Edict in question is peculiar in the sense that it was not meant to be of general application in the State. Rather, its scope was rightly and strictly limited to the few places, which have been classified as the “Disaster Area” in the First Schedule. We doubt whether such contingency was ever contemplated by any of the English authorities relied upon by the learned appellate judge in his judgment.

We think that we should also observe here that the Edict in question has since been repealed by section 19 (1) of the East -Central state Edict No.4 of 1973, which is set out as follows:
“19 (1) The Vacant Premises (Reoccupation Provisions) Edict, 1970 and the Control of Rents Law (Cap. 27) are hereby repealed.”

In view of the reasons we have given and the conclusions, which we have reached, this appeal must succeed. The appeal is therefore, allowed. The decision of Egbuna J. in Suit No. 0/4A/72 delivered on 18th July, 1972 together with the costs awarded to the respondent is hereby set aside. In its place, we restore the decision of the learned Chief Magistrate delivered on 7th December, 1971 together with the costs awarded to the plaintiff.

This shall be the judgment of the court. The respondent will pay to the appellant N50.00 in the court below and also the costs of this appeal assessed at N150.00.

Other Citation: (1975) LCN/2054(SC)