Mrs. Ibiyemi Oduye V. Nigeria Airways Limited (1987)
LawGlobal-Hub Lead Judgment Report
The Plaintiff, Mrs. Ibiyemi Oduye, is the Appellant in this Court. I will refer to her, hereinafter in this judgment, as the Appellant. The Appellant was a Senior Nursing Sister in the employment of the Respondent – the Nigeria Airways Ltd. Indeed, she rose from the post of Nursing Sister to the post of Senior Nursing Sister, within a few years of her joining the services of the Respondent. It was part of the conditions of her service that she was provided with accommodation -a detached duplex building at No. 15 Ayoade Coker Street, G.R.A., Ikeja. The rent she paid was N25 per month and the arrangement was that the sum was deductible from her salary.
However, by a letter dated 27th December, 1977, the Appellant’s employment with the Respondent was determined, but notwithstanding the termination of her employment, she continued to hold over the premises. While the Appellant sued the Respondent for damages for breach of contract of Service (this is not a matter for this appeal) the Respondent counterclaimed for mesne profits, at the rate of N13.500.00 per annum. It is this claim (or rather counter-claim for mesne profits) that is the subject matter of this appeal.
The Trial Court, Akintola Ejiwumi. J., after stating the facts, and examining the exhibits tendered in the case, and the submissions of learned counsel, held that the appointment of the Appellant was wrongfully terminated. As regards the counter-claim, which is the only pertinent material in this case, the learned trial Judge was of the view that the important question to be considered was whether the amount of N25 per month as rent represented the fair value of the premises. He then referred to the Rent Control and Recovery of Residential Premises Edict of 1976 No. 15, which, according to the Judge put the rent payable in respect of premises of this kind at N13,500 per annum. He found for the Respondent and awarded mesne profits to the Respondent at the rate of N13.500 per annum until the date of the judgment or when possession was delivered, if such delivery of possession occurred before the date of the judgment.
The Appellant appealed to the Court of Appeal, Nnaemeka-Agu, J.C.A., who read the lead judgment of the Court, with which Adenekan Ademola J.C.A. concurred – Kutigi, J.C.A. dissenting – considered as a first point to be decided, whether the tenancy had determined. He held it was an ordinary type of tenancy in consideration of the Appellant’s employment as a Nursing Sister and the tenancy was merely subservient to and necessary for the employment. It was the view of the learned Justice of the Court of Appeal that as the employment had been terminated, the tenancy was also automatically determined. Nnaemeka-Agu, J.C.A. held-
“The first point that must be decided is whether the tenancy had determined. It is necessary to note that this was not an ordinary type of tenancy as between a landlord and a tenant as such. It was a tenancy in consideration or the appellant’s employment as a Nursing Sister, the tenancy being merely subservient to, and necessary for, the said employment. As the employment had been terminated, the tenancy automatically terminated.”
“Any person who occupies any premises as a contractual tenant during her employment but that the occupation was subsequent to her employment, under and in accordance with her conditions of service, and that the tenancy determined on the 28th of December, 1977, when her employment was terminated by Exhibit “6”. As the tenancy had terminated there can be no question of his remaining a contractual tenant who must be given a notice to quit.”
For the jurisdiction of the Trial Court to entertain the matter, having regard to the provisions of the Rent Control and Recovery of Residential Premises Edict, 1976 No.9, the learned Justice of the Court of Appeal held-
“Although what the appellant claimed for in the High Court was her loss of salary for fourteen years, her tenancy, was, by the conditions of her service, so inextricably bound up with her services and terminal benefits that it was only fair, convenient, and proper that the claim and counter-claim should be tried together. Indeed the learned counsel for the appellant conceded it that the court had jurisdiction to try the counter-claim if it was at the rate of N300.00 per annum but contended that it had no such jurisdiction for a claim at the rate of N13,500.00.I do not agree. Nor do I see anything in Section 34(1) of the Edict read together with Section 20, which is permissive, to oust the jurisdiction of the High Court from entertaining a counter-claim for mesne profits. I must also observe that neither possession nor rent of a subsisting tenancy was in issue in the counter-claim. What was in issue was the mesne profits – the adequate compensation payable to the respondent on the premises over which the appellant was holding over.”
Now, though the Edict had been abolished in Lagos State since 1st July, 1981 (See Law No.5 of 1981) their jurisdiction had reverted to the conventional courts. The action herein was filed in 1978.
The Court then considered the quantum of the award of mesne profits and held that in a case of this nature, a tenancy which is subservient to an employment “in which parties themselves have agreed in advance on what should be the measure of monetary compensation for the servant’s continued occupation of the premises after the determination of his employment, that agreement should be the correct basis for the measure of mesne profits payable by her.” However, the Court put a ceiling which was the one placed by the Rent Control (Standard and Maximum Rents) Order L.S.L.N. No. 15 of 1976, as at the rate of N13,500 per annum. The order made by the Trial Court was however modified. The Appellant was made liable to pay the agreed rate of N25.00 per month payable for the first three months after the cessation of the employment of the Appellant. Thereafter the Appellant was to pay N13,500 as mesne profits.
It is pertinent to mention at this stage the reasoning in the dis-senting judgment of Kutigi, J.C.A. The learned Justice asked the question-
“Is a statutory tenant liable to pay mesne profit to a landlord
And he answered the question thus –
“I have no doubt in my mind that the N13,500 per annum claimed and awarded is intended to represent rents and profits when compared with the original N300 per annum.”
Kutigi, J.C.A. then took the view that the Appellant, being a statutory tenant, was entitled to be served with an appropriate statutory written notice to quit, but in this case no such notice was served on the Appellant. He held further –
“that the appellant is still a statutory tenant when her employment ceased because as stated earlier on she could not he described as a trespasser, her original possession having been lawfully obtained and no notice to quit have been served on her. She is therefore not liable to pay any mesne profit to anyone. But the appellant, as a Statutory tenant. I concede, is still bound to pay the rent originally fixed i.e. N25 per month or N300 per annum.”
On the issue of jurisdiction, Kutigi, J .C.A. held –
“I have no doubt that on the pleadings and evidence of the single witness Dauda Adeola Egberongbe (D.W.1) called by the respondent at the trial. the respondent had based its N13,500 p.a. claim for mesne profit on the standard rent prescribed under the Rent Control (Standard and Maximum Rents) Order L.S.L.N. 15 of 1976. The High Court however ceased to have jurisdiction on the establishment of the Rent Tribunal (see S.34(1) of the Edict No.9 of 1976). It is rather curious that the respondent would ask for mesne profit only and would not at the same time ask for possession. This to me is indirectly saying to the appellant.
“Pay us the ‘new rent’ of N13.500 per annum and remain in possession as long as you like……….
It is a clever way of circumventing the clear provisions of the law because only a Tribunal is empowered to fix the rent for all residential accommodation throughout Lagos State (see s.1(1) of the Edict). Furthermore a counter-claim is substantially a cross-action and not merely a defence to the plaintiff’s claim.”
The Appellant, who was aggrieved by the majority judgment, has appealed to this Court on three grounds of appeal which I think would be better set down in the judgment.”
Grounds of Appeal
(1) Error of Law
Having accepted that the current rent being paid by the Appellant in respect of the property was N300 per annum (and awarding the Respondent damages at that rate for three months), the Court of Appeal erred in law basing further damages to the Respondent on the Rent Control (Standard and Maximum Rents) Order L.S.L.N. No. 15 of 1976 and in thereby awarding mesne profits at the rate of N13,500 per annum when:
(a) Under the provisions of section 3 of the Rent Control and Recovery of Residential Premises Edict 1976, then in force, only the Rent Tribunal Established……………. being paid;
(b) the current rent for the property was N300 per annum;
(c) the Respondent was only entitled to mesne profits, i.e. “the rents and profits which a tenant who holds over …. has or might have received”;
(d) no tenant holding over could have received more than N300 per annum for the property without a higher rent having been fixed by the Rent Tribunal.
(2) Misdirection in Law:
The Court of Appeal misdirected itself in law when it stated as follows:-
“Nor do I see anything in Section 34(1) of the Edict read together with Section 20, which is permissive, to oust the jurisdiction of the High Court from entertaining a counterclaim for mesne profits.” (Nnaemeka-Agu, JCA)
(a) the complaint of the Appellant was not that the learned trial judge had no jurisdiction to entertain the claim for mesne profits, but that in so doing, the High Court of Lagos State had no jurisdiction to fix a new, higher rate for the mesne profits than the rent which previously obtained in respect of the property.
(3) Misdirection in Law:
The Court of Appeal misdirected itself in law when it stated as follows:-
“‘I should also mention that Rent Tribunals have been abolished in Lagos State with effect from 1st July, 1981, by Law No.5 of 1981. Their jurisdiction has reverted to the conventional courts, subject to the Magistrates Courts Law. By Section………………….
N10,000.00 in this type of case. So, even if I agree with Miss Ogunsola, I may still have to refer the matter back to the same High Court. This will be tantamount to an exercise in futility.”
(a) The judgment herein was delivered on the 3rd day of December, 1979.
(b) The complaint of the Appellant was that the High Court had no jurisdiction to vary the rent payable in respect of the premises, but only to award mesne profits at the same rate as the current rent then being paid by the Appellant.”
The Appeal was keenly contested in this Court. I will set out the arguments of Mr. G. O. K. Ajayi, S.A.N. as contained in his Brief. Learned counsel argued that the contractual tenancy of the Appellant was recognized by the Court of Appeal by its application of Exhibit A. That recognition puts it beyond argument that the contractual Tenancy was expected to, and did, continue beyond her period of employment. Counsel argued further that an employee who remains in possession after cessation of her employment, is a tenant of the employer.
And so, Mr. Ajayi set down some issues for determination as follows –
(1) Whether or not the relationship of landlord and tenant existing between the Appellant and the Respondent continued after the cessation of the Appellant’s employment having regard to Ex. “A”.
(2). Whether or not the Lagos High Court had jurisdiction to award the sum of N13,500.00 per annum as mesne profits or that the sum of N13.500.00 represented an increase in rent which only the Rent Tribunal had jurisdiction to order.
(3) Whether jurisdiction was vested in the High Court as a result of the Respondent’s Claim being a counter-claim.
(4) Whether the Court of Appeal could properly have awarded the sum of N13,500 upon a basis different from that which was pleaded by the Respondent.
I will answer all these questions together in this judgment.
- Did the relationship of landlord and tenant which existed between the Appellant and the Respondent continue after the cessation of the Appellant’s employment
In regard to this question, Exhibit “A” is pertinent and I will quote relevant portions of the exhibit. The exhibit contains what are termed – The Standing Orders of the Nigeria Airways Limited. They governed the Appellant’s conditions of service and under the heading – DISCHARGED AND PERMANENTLY TRANSFERRED STAFF – it is provided-
“Any staff occupying company quarters who is leaving the company on resignation, termination, dismissal, retirement etc. should vacate the company quarters on or before the effective date of his/her being discharged from the company’s services. As a result, only half of his/her entitlement would be paid, the other half being held against his occupation of company quarters until he/she vacates therefrom.
Where such discharged staff fails to vacate the company quarters. he/she would be charged at the rate of 8’/3 of his monthly salary per month subject to a maximum of N300 per annum as rent for the first 3 months but thereafter he would be charged commercial rent deductible from the half of his/her entitlements withheld.”
As regards this provision, it was the contention of Mr. Ajayi that this agreement must govern the amount payable by the Appellant. That the Court of Appeal was right when the majority held that the Appellant’s obligation to pay N25.00 was the result of prior agreement, that is, the provisions supra, but that the Court was wrong where, in interpreting the provisions, it held that the agreement did not show an intention that she could continue as a contractual tenant if she chose to.
In his oral submission in amplification of his Brief, Mr. Ajayi directed our attention to the decision of this Court in Sule v. Nigeria Cotton Board (1985) 2 N.W.L.R. 17, and submitted that the decision of the Court of Appeal which the Appellant was complaining against, was inconsistent with that decision.
The Court of Appeal gave its decision on the basis that the Appellant was a statutory tenant. The Statute (the Rent Control and Recovery of Premises Edict 1976), Mr. Ajayi contented, has rejected the Common Law position of Landlord and Tenant. The policy of the Statute, according to learned counsel was to provide a separate and new definition of tenant. A contractual tenant is covered by the provision of the Law.
Chief Williams, also in a very comprehensive Brief, has contested lustily, and dwelt at length, on the application of the Recovery of Premises Law, The terms of the Recovery of Premises Law (which I will, refer to as “the Law”) Chief Williams contended, are similar to the provisions contained in the Rent Control and Recovery of Premises Edict 1976. I will refer to this as the ‘Edict’ to distinguish it from the “Law” in this judgment. Chief Williams invited us to consider some previous decisions of the West African Court of Appeal, the Federal Supreme Court and this Court and over-rule them. The cases which Chief Williams asked us to over-rule are –
Akpiri v. W.A.A.C.; XIV W.A.C.A. 195
Sobamowo v. Federal Republic Trustee (1970) 1 All N.L.R. 257
Akinosho v. Enigbokan 22 N.L.R, 88
Sule v. Nigerian Cattail Board (1985) 2 N.W.L.R. 17
while he would want us to decide in the line laid down by this Court in Pan Asian African Co. Ltd. v. National Insurance Corporation (Nigeria) Ltd. (1982) 9 SC. 1
I will refer to these cases later in my judgment. But meanwhile, I will like, at this stage, to refer to the oral submissions of Chief Williams. It was the submission of learned Senior Advocate that the claim of the Respondent (or rather the Counter-claim) was in Tort and not in contract. Of course, this would appear to put a different complexion on this matter. Chief Williams argued that the claim was for compensation for being deprived. The status of a service tenant, counsel contended, is very important, especially when one considers the problems that would rise in Banks or some parastatals if the Appellant is right. One may indeed even add Domestic Staff who enjoy accommodation offered them by their masters as part of their conditions of service. If the word “tenant” under section 40 of the Edict includes a service tenant, then no Parastatal could be ejected, unless the conditions provided in the Edict arc satisfied.
Chief Williams agreed however, that it was necessary to look at Ex. “A” for the purpose of the determination of this case, in his original Brief, learned counsel stated –
“Landlord” and “Tenant” Under The Rent Control Edict:
One of the most important questions arising in this appeal is whether the Appellant is a “tenant” or whether the respondent is a “Landlord” within the meaning of those expressions in the Rent Control Edict. It is submitted that that question cannot properly be answered by looking solely to the meaning ascribed to those expressions in the Edict. It can only be answered by paying due regard to the scope and object of the entire enactment in order to see whether the type of arrangement existing between the appellant and the respondent in this case is one which makes them “tenant” and “landlord” respectively in the sense in which those expressions have been used in the Edict. This must be so in view of the fact that the opening words of Sec. 4(1) states that the definitions therein enacted apply “unless the con otherwise requires.
He put the objects of the Edict as –
(a) controlling rent of residential premises
(b) establishing Rent Tribunal for determination of standard rents.
(c) providing for recovery of possession and for purposes connected therewith.
The arrangement between the parties, like the one in the instant appeal, learned counsel submitted, is completely outside these objects. Where an employer provides accommodation for his employee, it cannot be stated that this is within an arrangement provided for by the Edict, whereby the intention would be to ensure that no landlord claims anything above rents so fixed by the Military Governor. Then counsel added –
“It would shock all employees (whether in the public or private sector) to be told that rents agreed with their employers as part of the terms and conditions of service can be superseded by “standard or maximum rents.”
Learned counsel stated the relationships to which the Rent Control Edict applies as-
(a) where there is in existence a relationship of landlord and tenant on common law;
(b) where a relationship of landlord and tenant existed in the past but the term or interest of the tenant has expired or has been determined by notice to quit.”
I am of the considered view that the issues raised in this appeal are very important and fundamental. I have already set out the material portion of the agreement, Exhibit “A”, which portion is relevant to the determination of this appeal. One question keeps on surfacing in my mind. But before setting down the question for an answer, let me first analyze the provision in the agreement, or its relevant portion. The agreement is saying, in effect, that after the employee (the Appellant in this case) has ceased to work for the employer (the Respondent herein) be it as a result of resignation of appointment by the employee, termination of his appointment by the employer (as in this case), dismissal of the employee, his retirement from the employment or by any other means, the employee should vacate the company quarters on or before the effective date of his being discharged from the company’s services. That is the first limb of the Agreement.
But what happens when an employee, discharged from his services by any of the means stated above, fails to vacate the quarters The agreement of service states clearly –
“he/she would be charged at the rate of 8 1/3% of his monthly salary per month. ”
This percentage of his/her salary shall be charged as rent for the quarters but the rent shall not exceed N300 per annum and this arrangement shall continue for only three months.
But what happens after three months The employee shall thenceforth be charged commercial rent. This of course is a new relationship. For the amount of the commercial rent would depend on –
(1) the person who would determine the quantum and
(2) the forum for such determination.
The rent which was a percentage of the employee’s salary subject to a ceiling of N300 would now cease. In other words, the employer would have subsidized the rent only up to three months after the end of the employment. It is the determination of the quantum of the rent where the agreement has not provided for a fixed amount that leads to the next question.
And so now, to the question that agitates my mind. What is this new relationship Is it a relationship of landlord and tenant’ If it is, can the employer dictate terms outside the Edict’ If not, in which forum can the term be fixed It is with this background that I will now proceed to examine the authorities which Chief Williams has referred us to, especially the decision of this Court in Sule v. Nigerian Cotton Board supra which is the latest on the subject.
The case of Sule (supra) has a lot in common with the present case. Sule was compulsorily retired; just as in this case, Mrs. Ibiyemi Oduye’s appointment was terminated. Oputa, J.S.C., in characteristic lucidity, posed few questions to himself. He had rightly considered the issue of jurisdiction to be “radically fundamental” and in pursuance thereof posed what he referred as two main questions and a subsidiary one to himself. He asked –
Question No. 1: Does the premises….. fall within the class of premises controlled by the Lagos State Rent Control Law No.9 of 1976
Question No.2: After the Boards letter retiring Mr. Sule was there still subsisting any relationship of Landlord and Tenant between the Board and Mr. Sule
Question No.3: If the answers to question No.1 and 2 are in the affirmative, what was the forum competens for the Defendant/Board’s counter-claim for Recovery of possession and Mesne Profits
I can hardly resist asking similar questions in this case, for I think, answers to these will dispose of the appeal, except I conclude that the decision of this Court in the Sule case is faulty. I will deal with my attitude to the Sule case later, but let me first ask the questions on the assumption that the Sule authority is to be followed. There is hardly any need for Question No.1 in this case. The premises herein is situated at Ayoade Coker Street at the Government Reservation Area in Ikeja. Neither side has disputed that the area is caught by the Rent Control and Recovery of Residential Premises Edict 1976 No.9. I will therefore proceed to the second question –
After the Appellant’s appointment had been terminated by her Employer – the Nigeria Airways Ltd, was there subsisting any relationship of Landlord and Tenant between the Nigeria Airways Ltd. and the Appellant’
On the authority of the Sule case the answer is Yes, I will adopt fully again the language of my learned brother Oputa, J.S.C, in the Sule case by saying after the termination of the employment of the Appellant, Exhibit “A” provides for that situation. The Appellant, under the Exhibit, could continue to occupy the premises. In other words, she could “fail” to vacate the premises. Once she failed to vacate the quarters, and she continued to “occupy” it, she would be charged at the rate subject to a maximum of N300 for the first three months and after three months, she would be charged commercial rent.
Oputa, J.S.C. said in the Sule ease and I adopt this-
“As defined in section 40(1) of the Rent Edict ….. the Board (in this case the Nigeria Airways Ltd.) as the person entitled to the immediate reversion of the premises fully qualifies as landlord and Mr. Sule (in this case the Appellant, Mrs. Ibiyemi Oduye) being the person occupying the premises qualifies as a tenant.”
And so, Mrs. Ibiyemi became, on the termination of her employment, a statutory tenant which status is not altered, even after the first period of B three months had expired and she still continued in occupation.
Oputa, J.S.C. is really not saying more than what Hubbard Ag. F.J, had said in Enigbokan v. Akinosho FSC.154/1956 delivered on 3rd January, 1957 (unreported)
The learned Federal Justice of the Federal Supreme Court said, applying the Rent (Increase Restriction) Ordinance (Cap. 93 Laws of Nigeria and the Recovery of Premises Ordinance (Cap. 193) Laws of Nigeria) – Ordinance creating Statutory Tenancies –
“If my view of the evidence is correct, it is immaterial whether the appellant was a servant or a licensee. If she was a servant, then she was occupying as a servant premises of which her masters were the tenants and her occupation was lawful. If she was a licensee, then she was occupying the premises under a licence granted by the tenants of the premises, and again her occupation was lawful”.
In other words, when a person occupies premises lawfully he becomes a protected tenant qua a status arising from Statute creating statutory tenancy. It would not matter whether he pays regular rent, subsidized rent, or, indeed, no rent. What is necessary is lawful occupation. It applies to public servants as well as parastatals, domestic servants as well as people paying commercial rent. It is certainly not a pleasant situation for the landlord to harbour a tenant imposed upon him by Statute. But then, what is created is an anomalous situation where a person holds over and continues in possession of a premises contrary to the will of the landlord who strongly wants to turn him out.
I must add here that the Appellant in this case is even on a stronger wicket than Sule in the Sule case. In this case, provision exists in Exhibit “A” for the Appellant to stay over in the premises after the termination of her appointment. Sule did not have the advantage of such agreement, yet the Court regarded Sule as a protected tenant by virtue of the same Statute that governs this case!
I now ask the third question –
What is the forum compefens for the counter-claim brought against the Appellant
The answer is as given by this Court in the Sule case. The whole tenor of the Edict is to create a new tenancy – a Statutory Tenancy unknown to Common Law, which Tenancy is to be protected, and the recovery of premises from such statutory tenants to be restricted, indeed, could only be done by compliance with the necessary formalities. There are such formalities as
Notice to Tenant of Owners Intention to Apply to Recover Possession – see Form E – to be followed by Writ or Plaint Against Tenant Or Person Refusing To Deliver up Possession – see Form F.
The intention of the Edict was to make “tenancy-life” more abundant for the Tenant to the detriment or hardship of the Landlord!
The only outstanding question now is whether this Court should accede to the request by learned Senior Advocate, Chief Williams, to depart from the Sule case and the earlier cases in the same line. Chief Williams’ contention was that the reason for error in previous decisions which I have earlier set out in this judgment, and obviously also in the Sule case (for the reasoning in the Sule case followed the same pattern), is that the court has always posed the wrong question, which was whether the occupier of premises or other person concerned is a tenant. Counsel has urged that the correct question to be considered is whether the particular provisions of the law (relating to a tenant) which are claimed to apply to the occupier of premises or other persons do in fact apply to them.
I think that what is necessary is to look at the Edict itself. For as I have said, earlier, the Edict has created a sharp departure from the Common Law stance on Landlord and Tenant, 40 of the Edict provides-
“40(1) In this Edict, unless the content otherwise requires
“tenant” includes a sub-tenant or any person occupying any 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.”
I am of the opinion that the qualification for becoming a tenant under the Edict is lawful occupation. Indeed, England, from where the whole idea of Statutory tenancy was copied, has always based the notion of a statutory tenant on such occupation. It is the person in such occupation whom the Statute seeks to protect. In Lewis v. M.T.C. (Cars) Ltd. 1974 2 All E.R. 423 Templeman, J. would only permit a competent landlord to give notices to a tenant who had held over, as contractual yearly tenant, after his lease had expired. The basis for the protection was that the tenant was in lawful occupation.
The history of statutory tenancy itself could be traced to the first world war. It started as an emergency legislation of the 1914-1918, arising from the hardship and rigour created by lack of accommodation for people following the wanton destruction and ravage byway. When in 1915, the first Statute on the subject, the Increase of Rent and Mortgage Increase (War Restrictions Act) was enacted, it was made to apply only to dwelling houses with rateable value not exceeding E35 in London and E26 in the other parts of England and Wales. This signifies the type of accommodation and, a fortiori, people intended to be protected by the Statute. This Act has been amended over the years. But it is in fact in the scope of “recovery of possession”, that the Statute has been revolutionary and the tenant has been given an unprecedented advantage. It is a deal unknown to the Common law! Under the Act of 1968, which replaced the Act of 1933, a tenant in possession was placed in an almost unassaliable position. But even before the Act of 1968, section 30 of an earlier Act, the Act of 1965, had provided for it, even, to be an offence for any person to deprive or attempt to deprive a residential occupier of any premises of his occupation of the premises or any part thereof, unless he proved that he believed and had reasonable cause to believe that such occupier had ceased to occupy or reside in the premises. And this was not easy to prove. The emphasis, again, has been placed on residence or occupation. And the occupier of premises under the Statute becomes “protected” by the Statute. It is interesting to note the definition given by the Act to “Residential Occupier.
Section 30(5) provides –
“Residential occupier means a person occupying the premises as a resident, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises. ”
I am of the view therefore that what the Lagos Edict seeks, is to follow as closely as possible the English Acts, in so far as making “occupation” a yardstick for the protection of an occupier of premises, and with respect I cannot support the view of Chief Williams when he said in his Brief that, because the definition clause of the Edict employs the words-
“unless the con otherwise requires”
it must follow that the definition applies only where the con so requires. I think what the provision is saying is that a tenant includes a person occupying any premises, unless the con in the Edict otherwise requires. So, when he occupies a premises, he is a tenant except the con denotes to the contrary. It is certainly not suggested here that the con herein in fact otherwise requires.
Chief Williams has commended the decision of this Court in Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) 9 SC. 1 to us. I do not think there is a departure in that case from the “occupation” formular, Idigbe, J.S.C. in his own judgment clearly distinguished the position at Common Law from the Statute. He said –
“Statutory TENANCY: At common law, a tenant who entered premises on a lawful demise or title but wrongfully continues in possession, after the expiration of the period under the demise or title without the consent (assent) or dissent of the person next entitled, is a tenant at sufferance; again, anyone who continues in possession of premises without agreement after a particular estate is ended is also a tenant at sufferance. Accordingly, where, as here a tenant for a fixed term refuses at the expiration of his tenancy to vacate possession and wrongfully (i.e. without the consent of the landlord) continues in possession, he would at common law be a tenant at sufferance. However, in recent times, the laws relating to controlled, protected or regulated tenancy intervened to give such a tenant a special tenancy; hence we find the ‘statutory tenant’ being defined – for example – as “a tenant who retains possession by virtue of the Rent Acts and not as being entitled to a tenancy” [see section 49(1) the Housing Repairs & Rents Act 1954; 2 & 3 Eliz. 2, C. 53 England].
Put simply, the statutory tenant is an occupier who, when his contractual tenancy expires, holds over and continues in possession by virtue of special statutory provisions. He has also been described as “that anomalous legal entity, who hold the land of another contrary to the will of that other person who strongly desires to turn him out. Such a person will not ordinarily be described as a tenant” [see Scrutton L.J. in Shutter vs. Hersh (1921) 1 K.B. 438 at 448]; and the expression “statutory tenancy” has also been defined as “a compendious expression to describe the right of a tenant of protected premises to remain in possession of those premises, notwithstanding the determination of his contractual interest until such time as either he voluntarily gives up possession, or the court, on cause shown, makes an order against him to deliver up possession [see Jenkins L.J. in American Economic Laundry Ltd. v. Little (1951) 1 K.B. 400 at 4061; accordingly, it has been, quite appropriately, described as’ a “status of irremovability” I see Lush J. in Keaves v. Dean; Nunn v. Pellegrini (1924) 1 K.B. 685 at 686].
I pause to observe that the scheme of the 1976 Rent Edict, without doubt, indicates that while the contractual tenancy of a tenant of any premises to which the Edict applies exists, that tenant is a “protected tenant,” but as soon as the contractual tenancy expires, the tenant by operation of law becomes a ‘statutory tenant’; and the landlord’s right to recovery of possesion of the premises occupied by the tenant becomes restricted. Under the Edict, therefore, there are two classes of tenants viz: the contractual tenant and the statutory tenant; the one has an estate or property in the premises, the other has no estate whatsoever but only a right to possession of the property concerned.”
I adopt fully the reasoning of the learned Justice of the Supreme Court, especially in regard to his treatment of “protected tenant” and “statutory tenant”,
In his own judgment, my brother Aniagolu, J.S.C. dealt with the case of squatters and held that though squatters were in occupation making them tenants if the “occupation theory” is followed, he would not hold a squatter, qua a squatter, to be a tenant for the purpose of section 15 of the Edict. I must admit that this portion of my brother Aniagolu, J.S.C’s judgment gives very strong support to Chief Williams’ contention that what should be sought is whether the particular provisions of the law do apply to the “occupiers in this case” and not whether the occupier is a tenant. Yet I think that what Chief Williams has referred to as the wrong question would give the correct answer if one applies that portion of the definition clause which says “except the con otherwise requires”. This decision would therefore still accord with the definition of tenant in section 40 of the Edict, which defines a tenant to be a person in occupation of premises “except where the con otherwise requires,” It cannot be seriously argued here in view of section 15 and 50 of the Edict that the decision is in conflict with the “occupation” theory or the decision of this Court in Sule’s case (supra).
Obaseki, J.S.C. for his part was positive as to the service of notice for the purpose of ejecting a tenant. He held –
“whether the premises is actually occupied by the tenant or by somebody else the notice of intention to proceed to recover possession as in Form E signed by the landlord or his agent must be served.
I am of the view that the previous decisions of this Court including Pan Asian African and Sule have placed emphasis on occupation and I think it is safe to follow these decisions. The Appellant in this case was in occupation and she is protected by the Edict. This means that to determine the amount payable, especially as the Rent Control and Recovery of Residential Premises (Tribunals) Regulations L.S.L.N. No.) 4 of 1976, only gives a general guidance as to rent payable and cannot be used as a specific determination of the quantum of rent payable in every house ill the bracket to which the premises belongs in the Schedule. The only forum competent was the Tribunal, and not the Lagos State High court. The counter-claim being a claim by the Respondent, the Nigeria Airways Ltd., should have been commenced before the Tribunal and not in the High Court, and the fact that it is a Counterclaim does not save it from the application of the Edict.
The Appeal must therefore succeed and it is hereby allowed. The judgment of, and order made by the Court of appeal on the Counter-claim, are hereby set aside. The counter-claim is hereby struck out as having been brought in a wrong forum.
The Appellant is entitled to Costs assessed at N300.00 being Costs in this Court, N200.00 Costs being costs in the Court of Appeal and N200.00 being Costs in the High Court.