Jamil Tannous V U.k. Kirpalani And Anor (1968)
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The appellant was the plaintiff in a suit instituted at the Lagos Magistrate’s Court (No. 595211963, Jamil Tannous v.U.K. Kirpalani, etc.). The respondents were the defendants to the action. As expressed on his writ the plaintiff claimed against the defendants:-
“the sum of £400 being arrears of rents owed by the defendants to the plaintiff in respect of the premises fully furnished situate at No. 37, Balogun Street, Lagos, Nigeria, let out to the defendants by the plaintiff at the agreed rate of £200 yearly.”
Pleadings are not filed in the magistrates’ courts but in accordance with the Magistrates” Courts Rules the defendants were asked to plead to the plaint and they pleaded “not liable.”
At the hearing the plaintiff gave evidence and called wit-nesses to show that after hiring an unfurnished room at No. 37, Balogun Street, Lagos, for £75 he proceeded to furnish it after which he !et out the room to the defendants at an annual rent of £200 (two hundred pounds). The letting to the first defendant was for a period of one year initially but that defendant apparently left the country soon thereafter and assigned the premises to the defendants’ company in which he was one of the two partners. After the first defendant had vacated the premises and the company had taken over (with the general manager, Mr. Bhojwaney, occupying the apartment) some letters were received by the plain-tiff from the company’s solicitors indicating that it had come to their knowledge that the premises had been let to the plaintiff at £75 per annum and that the defendants were no more willing to pay the rent of £200 per annum but will pay only an amount of E75 per annum.
The plaintiff had apparently refused to accept cheques for this amount sent to him as rents by the defendants. Evidence was given on behalf of the defence to show that since the plaintiff had himself hired the apartment at £75 per annum the defendants were not willing to pay any more than that amount as rent. It was contended on behalf of the defence that the plaintiff would be contravening the provisions of section 6 of the Rent Restriction Act, Cap. 183 if he was letting out at any amount over £75.
The learned trial Magistrate who heard the case rejected the case put forward for the defendants for refusing to pay the agreed rent of £200 per annum and gave judgment for the plaintiff in the amount claimed by him. In part of his judgment he observed that:-
“There is no denial by the defence that furniture as tabulated by the plaintiff are (sic) now in the room. There is no denial either that these furniture are now being used. The question now is, was the room let to U.K. Kirpalani fully furnished? . (Chagoury confirmed that he was offered the room fully furnished. The room, he said, is directly opposite his own room. He confirmed that the plaintiff’s furniture are still in the room and being used by the Indians.
The evidence of the defendants’ representative also confirmed the fact that the plaintiff’s furniture are in the room and that they are being used. It is also clear that the room was let at the rate of £200 per annum:’
The learned trial Magistrate therefore found that the room was let to the defend-ants fully furnished and at a rent of £200 per annum and it is not sought before us to challenge the conclusion which he had reached on this aspect of the case. Further on in his judgment, the magistrate stated as follows:-
“No evidence to show that the defendants brought in their own furniture Into the room; and there is abundant evidence to show that the defendants made use of the furniture found in the room in succession.”
The Magistrate thereafter concluded that section 7 of the Rent Restriction Act did not apply to the case in hand and that the plaintiff was entitled to recover from the defendants the agreed rent in full.
The defendants appealed against the judgment to the high Court, Lagos. The appeal was heard and allowed by Sowemimo, J. The principal points argued before the High Court were:-
(i) that the defendants had not attorned tenants to the plaintiff; and
(ii) that sections 7 and 9 of the Rent Restriction Act apply so as to reduce the rent payable by the defendants to £75 per annum being the rent at which the premises were let by the owner to the plaintiff himself.
The learned Judge on appeal ruled against the plaintiff on both points and set aside the judgment of the trial magistrate.
Against the judgment of the High Court, the plaintiff has now appealed to this court and the main point canvassed before us was as to whether or not the plain-tiff was entitled to recover from the defendants the agreed rent of £200 per annum. With respect to the first point, however, counsel on both sides argued the appeal before us on the basis that as between the parties the relationship of landlord and tenant clearly exists, for there is on the record abundant evidence, both oral and documentary, to establish this and put beyond doubt the point which, and for reasons which are not clear, the learned judge on appeal had found in favour of the defendants. In the course of his judgment, the learned judge referred to section 4 of the Rent Restriction Act. That section reads as follows:-
“Where a landlord has let, whether before or after the coming Into operation of this Act in respect of the place or area in which the premises are situate, any premises and his tenant not being expressly prohibited in writing from sublet-ting, sub- lets such premises or any part thereof, the sub-tenants of such premises or any part thereof shall be deemed for the purpose of this Ordinance to be tenants of the landlord:’
There was no evidence of any written contract between the parties much less that of any prohibition in writing against subletting. The facts given in evidence, accepted by the magistrate and not challenged in the High Court, clearly left no room for any doubt as to whether or not in law the defendants were tenants of the plaintiff.
As stated before, a great deal of argument was addressed to us on both sides as to what should be the rent of the premises in question.
The plaintiff claimed that it was £200 per annum while the defendants claimed that it should be £75. The defendants contended that the standard rent of the premises was £75 and that section 7 of the Rent Restrictions Act prohibited any increase in the rent except in accordance with the provisions of the Act. Rent is defined in section 2 of the Rent Restriction Act as follows:-
“‘rent’ includes any sum paid as rent or hire for the use of furniture where the premises are let furnished or where premises are let and the furniture therein is hired by the landlord to the tenant and also, in the absence of any agreement to the contrary, any sum paid in respect of electric light and conservancy charges: Provided that this definition shall not include any agreement for the letting or hiring of furnished rooms with board.”
It is correct that section 7 of the Act prohibits increase of rent on any premises but it is fair to say that such rent as is referred to in section 7 must be such rent as is contemplated by sections 2 and 9 of the Act. The evidence with regard to the rent of £75 shows indisputably that, was rent agreed with the plaintiff in respect of the premises unfurnished. Clearly it cannot be said that within the contemplation of section 2 of the Act such rent would be “for the use of furniture where the premises are let furnished” since it must be beyond any argument that the premises furnished cannot be regarded the same as premises without any article of furniture. For the purpose of section 9 of the Act, therefore, the rent of the premises in question in this case shall be such amount as agreed when the premises were first let as furnished to the first defendant. We conclude that the learned trial magistrate was right in views he held as to the lawful rent of the premises and that the judge on appeal erred in taking a contrary view.
It remains only to point out that both in the record of appeal and in the arguments before us, there was no reference made to the Rent Control (Lagos) Amendments Act, No. 10 of 1965 which amended the title of the Rent Restriction Act, cap. 183 to “Rent Control (Lagos) Act.” A number of amendments to the principal act were made by No. 10 of 1965, but as they do not affect the arguments and the judgment in this appeal we have decided to use the title which had been employed before us.
The appeal will be allowed and the judgment of the High Court in appeal No. LD94A/1966 is hereby set aside together with the order for costs and the following orders are hereby made:-
(i) The judgment of the learned trial magistrate In suit No. 5952/1963, including the order for costs, in hereby reinstated.
(ii) The respondents shall pay to the appellant the costs of this appeal fixed at 52 guineas.
(iii) The respondents will also pay to the appellant costs in the High Court assessed at 10 guineas.
Other Citation: (1968) LCN/1568(SC)