E. E. Ebenezer V N.t. Bell (1963)

LawGlobal-Hub Lead Judgment Report

TAYLOR, F.J 

The present appellant brought an action in the Magistrate’s Court, Lagos, against the present respondent claiming the sum of £100 as general and special damages for the trespass alleged to have been committed by the latter in the former’s room in the house situate at 12 Odunlami Street, Lagos. The defendant counter­claimed for the sum of £142-10s-0d made up as follows:­

“£100 general damages, and £42-10s-0d being “loss of rent at the rate of £2-10s-0d a month.”

The relevant facts in the case are as follows:­

The defendant is a tenant of the premises at 12 Odunlami Street, Lagos, and The African Bethel Church, Lagos, are his Landlords. Two rooms in the said premises were let by the defendant to one Abel Essien. Abel Essien left Nigeria for the United Kingdom in September, 1956, but before his departure, his brother Offiong Essien, D.W. 2, had been living with him in the said rooms. After his departure, Offiong Essien occupied the two rooms until the 19th January, 1958, when he vacated them. Before then however, and around the 25th January, 1957, the plaintiff had come to share the rooms with him, for according to her evidence she was paying a half share of the rent. This is, however, denied by Offiong Essien.

The defendant went on leave to Sierra-Leone in December, 1957, and returned in December, 1958. He asked the plaintiff to quit and on her refusal, he instructed his solicitors to take legal steps. The plaintiff alleges that on three separate occasions to wit:- the 10th January, 1959, 16th February, 1959, and 19th February, 1959, the defendant committed certain acts of trespass in her apartments. It is also part of the plaintiffs case that she had been posting her rent to the defendant after Offiong Essien had vacated the premises, but that with the exception of the sum of £27-10s-Od accepted by the defendant as per Exhibit “A”, all the other postal orders sent by her were returned by the defendant.

The main issue before the trial Magistrate was whether the plaintiff was or was not a tenant of the defendant. This was resolved in the plaintiffs favour and judgment for the sum of £25 as general damages for the trespass was entered in her favour with costs.

Against this judgment the defendant appealed to the High Court which reversed the judgment of the trial Magistrate by dismissing the plaintiff’s claim and entering judgment on the counter-claim for the sum of £100 (£62­l 0s-0d in respect of the occupation of the premises by the plaintiff and £37­10s-0d as general damages) with costs.

The plaintiff has appealed against that judgment to this Court and has filed three grounds of appeal with his Notice of Appeal. The plaintiff will from henceforth be referred to as the appellant and the defendant as the respondent.

Learned Counsel for the appellant argued only the first two of his grounds of appeal, and was content to submit in respect of the third that if he succeeded on the first two grounds the counter-claim must be dismissed (the third ground dealt with counter-claim). His arguments on the first two grounds may be put shortly in the form of the following two submissions:­

(1) That by virtue of the letter exhibit “A”, in which the respondent accepted the sum of £27-10s-0d from the appellant for user and occupation of the premises, the latter became a tenant of the former, more so in view of the fact that this sum is calculated on the basis of the monthly rental of £2-10s-0d.

(2) That the appellant entered the premises as a lodger, but became a sub-tenant as soon as she began paying rent to Offiong Essien. In dealing with these two points Mr Okuribido for the respondent urged that in exhibit “A” the respondent made it clear that though he was accept­ing the sum of £27-10s-0d for user and occupation, he was still treating the appellant as a trespasser. He further urged that the term “any person oc­cupying premises” in S.2(1) of the Recovery of Premises Ordinance Cap. 193 must be read as meaning “Any person lawfully occupying premises”. On the second point Mr. Okuribido conceded that there was no finding one way or the other as to whether Offiong Essien received rent from the appellant or not, but went on to submit that on the evidence before the trial Magistrate there should have been a finding that the appellant was not a tenant of Offiong Essien. Dealing with the first point, I think it is important to set out the letter exhibit “A” in order to see the conditions attached by the respondent to the receipt of the £27-10s-0d from the appellant. It reads thus:­

“Dear Madam,

2 ROOMS AT 12 ODUNLAMI STREET, LAGOS