Pan Asian African Company Ltd V. National Insurance Corporation Nigeria Ltd (1982)

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A. O. OBASEKI, J.S.C. 

The Pan Asian African Co. Limited, hereinafter called the appellants, were defendants in suit No LD 322/78 instituted by the National Insurance Corporation (Nigeria) Limited hereinafter called respondents in the High Court of Lagos State holden in Lagos claiming in the terms of the endorsement on the writ of summons:

“(1) Possession of a flat occupied by the defendants, its servants or agents at 17, Raymond Njoku Street, South West, Ikoyi,Lagos.

(2) N9,000.00 mesne profits in respect of the same from 1st January, 1977.

Pleadings were settled, filed and exchanged by the parties and the issues joined went to trial before Oshodi, J. At the conclusion of the trial in which both parties adduced evidence, the learned trial judge delivered a considered judgment in favour of the plaintiff/respondent. On the claim for possession, the learned trial judge said:

“In my view, the defendant has no defence to the plaintiffs’ claim for possession. The contractual tenancy which it held of its former landlord expired on the 20th January, 1977 and when the property was subsequently sold to the plaintiff, the latter refused to accept it as its tenant. I agree with the submission of the plaintiff that the defendant, being a limited liability company did not after the expiration of the lease become a statutory tenant. In Hiller v. United Dairies (London) Ltd. (1934) 1 KB 57 CA., it was held that a limited company which by its very nature is incapable of occupying premises as a home cannot become a statutory tenant even if a servant of the company lives on the premises. See Megarry Rent Acts Test pages 126 and 190. In the result, the defendant is hereby ordered to give up possession of the flat which it occupies at No. 17 Raymond Njoku Street, South West, Ikoyi,Lagos on or before the 15th November, 1978. ”

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On the claim for mesne profits, the learned trial judge said, inter alia:

“The defendant on the other hand, contends that the rent being paid at the time the tenancy expired was N7,000.00. In his address, learned counsel for the plaintiff conceded the amount as N7 ,000.00.I would calculate the mesne profits at the rate of N7,000.00 from the 1st June, 1977 until the possession of the said flat is given up.”

Aggrieved by this decision, the defendants appealed to the Federal Court of Appeal but without success. The learned Justices of the Court of Appeal (Ademola, Nnaemeka-Agu and Karibi-Whyte, JJ.C.A.) unanimously dismissed the appeal. In his judgment, in which the other two Justices of the Court of Appeal concurred, Nnaemeka JCA, said, inter alia

………Above all, having failed to show the connection between the appellants and Deekay & Sons (Nigeria) Ltd. I must conclude that they failed to prove that they were lawfully in occupation as tenants or subtenants of a residential accommodation within the meaning of section 40 of the law (No. 9 of 1976).

As for the final question whether a limited liability company whose contractual tenancy has expired is protected from eviction save under the procedure laid down by sections 14 and 15 of the law (No.9 of 1976) because it is a statutory tenant, I do not see anything in our law to suggest that the test of use in a domestic sense in English law, is not the contemplation of our local law. The whole tenor of the law including the definition of “accommodation” premises” and “tenant” in section 40 points to the fact that it was designed to protect persons who live in houses or parts thereof as their homes or residence in the domestic sense. I do not therefore agree Mr. Lardner that because the word “person” ordinarily includes natural as well as artificial persons, it has that wide import in particular legislation. For to “occupy” in our law appears to me to have the same meaning as to “live” or “dwell in” or be in “actual physical possession” in English law. It seems to me that a limited liability company can be in possession of premises but, because it is an artificial person, it cannot “occupy it” or “live in it”. To possess a premises may include to occupy it or live in it but is certainly of a wider connotation. For these reasons, the conclusion I have reached is that by its very nature the appellants could be in possession of premises as a contractual tenant but cannot occupy or live in it or take up residence in the premises and so cannot claim protection from eviction as a statutory tenant after the contract of tenancy has expired. I therefore agree with the view expressed on the point by Dosunmu, J. as he then was, in Ikoya Properties Limited v. Nidogas Company Limited (1976) CC HCJ 2123 p. 2125. The learned judge in the instant case was right, in my view, to have held that the respondents were entitled to have gone to court on a claim in the form they did without first issuing a statutory notice of intention to do so.”

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Still aggrieved, the defendants/appellants have appealed to this court against the decision of the Federal Court of Appeal on several grounds but ground 4 seems to me to encompass the whole arguments placed before us in this appeal. It reads:

“The Federal Court of Appeal misdirected itself in law and on the submission of the Appellants’ counsel by failing to adjudicate on and uphold the submission that whether the appellants’ position fell to be decided under law No.9 or 1976 or under the Recovery of Premises Law Cap 118 Laws of Lagos State, they were tenants within the meaning of that word under one or the other of these laws and that they must be served with the prescribed statutory notice and writ of summons which under both laws are in identical term.”

Supportive of ground 4 is ground 5 which reads:

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