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

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

LawGlobal-Hub Lead Judgment Report

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. ”

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.”

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:

“The decision is wrong in law in that the Federal Court of Appeal did not apply the decision in Mrs. C. A. Sobamowo v. The Federal Public Trustee (1970) 1 All NLR. 257 to the facts of this case when the court is bound by the said decision and the definition of “tenant” in our legislation is clear and unambiguous and is different from that in the relevant English legislation.”

The main issues for determination in this appeal are threefold:

(1) Is the flat, the subject matter of the action giving rise to this appeal, an accommodation controlled by the provisions of the Rent Control and Recovery of Residential Premises Law 1976 No.9 of 1976

(2) Are the appellants “tenants” within the definition of and the meaning of the word in the Rent Control and Recovery of Residential Premises Law No.9 of 1976

(3) If the accommodation is controlled by the Rent Control and Recovery of Residential Premises Law 1976 is the High Court which tried the action competent to exercise original jurisdiction over the matter

The facts giving rise to these proceedings are not much in dispute. Briefly stated, they are as follows:

The appellants were in 1972 granted a tenancy (or lease) of a flat for residential purposes at No. 17 Raymond Njoku Street, SouthWest, Ikoyi, Lagos by the Island Properties Limited for a term of three years with an option of renewal for another term of two years at the rent of N7, 000.00 per annum by the Island Properties Limited attorney to Chief Emmanuel Jones Adebolaji Odukoya. The appellants at the expiration of the 1st term of three years duly exercised the option of renewal for another term of two years and this second term expired on the 20th day of January, 1977.

By Clause 2 (VI) of the tenancy agreement, the appellants covenanted “to use the demised premises as private residence only”.

At the expiration of the second term of two years, the appellants with the consent of the landlord held over and set in motion negotiation for a new tenancy agreement. Before the conclusion of the new tenancy agreement, the landlord, Messrs Island Properties Limited sold and transferred title to the property to the respondents, the National Insurance Corporation of Nigeria Ltd. and informed the appellants by letter Exhibit A, the contents of which read as follows:

Island Properties Limited,

64/63, Docemo Street, Lagos. Nigeria

P.O.Box 750

Tel. 25886, 23312

Our Ref 1012/017/77

Your Ref………..

Pan Asian African Company Limited,

57 Martin Street,

P.O. Box 2626, Lagos.

Dear Sirs,

Re: 17 RAYMOND NJOKU STREET, S.W., IKOYI

This is to inform you that our above mentioned property is sold to National Insurance Corporation of Nigeria, address Mandilas House, 11th Floor, Broad Street, Lagos.

Therefore you are kindly requested to contact the new landlord for the above property in respect of Tenancy Agreement since your tenancy agreement expired on 20th January, 1977. Furthermore, you are in arrears of 4 months rent to pay to our company from date of expiration of your lease up to end of May 1977 amounting to N3, 250.00.

We look forward to receive your cheque in settlement of the above.

Yours faithfully,

for: ISLAND PROPERTIES LIMITED

(Signed)

C.C.

National Insurance Corporation of Nigeria, Lagos.

It does seem to me that due weight and assessment has not so far been given to the content of this letter. It is crystal clear from the letter that the Island Properties Limited still regarded the appellants as their tenancy agreement, the landlord demanded payment of N3, 290.00 rent arrears for the period January 20th to the end of May 1977. The position therefore is that at the time the respondents obtained the transfer of title to the property, the appellants were tenants lawfully in occupation of the premises within the meaning of the word tenant in the Rent Control and Recovery of Premises Law 1976 as interpreted in Akinosho v. Enigbokan and Anor.(1955) 21 N. L. R 88 and Sobamovow v. the Federal Trustee (1970) 1 All N. L. R. 257.

As tenants of the Island Properties Limited, the appellants may have been, but they were not contractual tenants of the respondents as the respondents refused to renew their tenancy agreement and conveyed their decision to them in writing by Exhibit B dated 28th June, 1977. Therein, it was stated unequivocally:

“Since this Corporation intends using your flat for its own purpose, we do not intend to negotiate a new lease with you. Arrangements should therefore be made by you to vacate the flat as quickly as possible but not later than the 31st of July, 1977.” When the appellants’ solicitor under the cover of a letter Exhibit C forwarded a cheque for N9, 000.00 computed under the 1976 Rent Edict as rent for one year in respect of the flat to the respondents, the cheque was returned under cover of letter Exhibit D. The dispatch of the cheque is brought out clearly by the second paragraph of Exhibit C which reads:

“My clients inform me that negotiation in respect of their residential accommodation in the above mentioned premises were almost at an agreeable end and especially about the 1976 Rent Edict stipulated rent of N9,000.00 per annum before your last letter dated 28th June, 1977 came in. We are not refusing to pay that rent, and my clients have arranged that the usual annual rent be paid at once and a cheque for the amount of N9,000.00 is herewith enclosed.”and its return and the reasons for its return are in evidence in the second paragraph of Exhibit D which reads:

“We have made it clear to your clients several times that we propose to use the property for our own purpose. This is not case of asking an occupant to quit ostensibly because of a desire to increase the rent payable. This Corporation bought the property in question because of its desperate need for accommodation hence no amount of rent offered by your client could be a substitute for our taking possession. Accordingly, the Barclays Bank Cheque No. 020754 dated 21st July, 1977 attached to your letter is returned herewith.”

The letter, Exhibit D, was copied to the appellants with a notice to quit in the following terms:

“The Managing Director,

Pan- Asian Africa Co. Ltd.

19 Obun -Eko Street,

P.O. Box.2626

Lagos.

Dear Sir,

Above for your information. Take notice that you are given 14 days from the date hereof to give up possession failing which legal action will be taken against you.”

The tenancy agreement Exhibit E tendered by the plaintiffs/ respondents in the proceeding before the High Court, apart from the portion setting out the name of the losses, was accepted by both parties before us as similar in content to the one entered into with the appellants by the former Landlord was now admitted evidence in the erroneous belief that it was the proper document. When the appellants failed to deliver up possession, the respondents on the 4th day of April, 1978 filed the action for an order for possession and mesne profits in the High Court of Lagos State and this appeal is against the judgment of the Federal Court of Appeal affirming the judgment of the High Court in favour of the respondents.

Only two witnesses testified before the High Court in these proceedings. One was Mr. Benson Akindolino called by the plaintiffs and the other was Gobin Mahgany, the Director of the defendants company who resides at No. 17 Raymond Njoku Street flat the subject matter of the action that led to this appeal proceedings, called by the defendants.

There is not much of conflict in the evidence adduced by both parties except that the appellants’ witnesses testified that the failure to deliver up possession was as a result of (1) the promise of the former landlord to renew the tenancy agreement and (2) the appellants’ failure to secure alternative accommodation and (3) the failure of plaintiffs to serve notices to quit prescribed by law, Edict No.9 of 1976. Learned counsel for the appellants submitted that the High Court was the wrong forum in which to seek an order for possession in the first instance and that the respondents are not entitled to the order for possession until it has served the statutory notices prescribed by the Rent Control and Recovery of Residential Premises Law No.9 of 1976, which at the material time was titled “Rent Control and Recovery of Residential Premises Edict 1976 No.9 or Edict No.9 of 1976′.

Learned counsel for the respondents in reply contended that by reason of the fact that the tenant is a limited liability company, a juristic person and not a natural person, he is not entitled to the protection of the Rent Control and Recovery of Residential Premises Law No.9 of 1976 and that the special procedure for recovery of premises provided in the Rent Control and Recovery of Residential Premises Law will not apply and need not be followed. It was not disputed by the respondents’ counsel that if the appellants fall within the definition of tenants, under the Rent Control and Recovery of Residential Premises Law 1976, (Law No.9 of 1976) the respondents were wrong in seeking recovery of possession in the High Court. It was conceded that in that event, the property forum would be and is the Rent Tribunal established or set up in accordance with section 2 of the Rent Control and Recovery of Residential Premises Law, 1976. On this premise, the further questions for determination have therefore been confined within very narrow limits. They are:

(1) Is the premises in dispute, i.e. the flat at No. 17 Raymond Njoku Street, South-west, Ikoyi, one within the class of premises controlled by the Rent Control and Recovery of Residential Premises Law, 1976

(2) Are the defendants (a limited liability company) “tenants” within the contemplation of that Law No.9 of 1976 and therefore protected by that Law from ejectment except in accordance with that Law

To the first question, Mr. H. A. Lardner, S.A.N. learned counsel for the appellants, answered in the affirmative. But Mr. E. O. Molajo, S.A.N. learned counsel for the respondents was of a different opinion. He submitted that as the premises were let out to the appellants under an agreement-Tenancy Agreement-for a term of 3 years with an option for renewal which had been exercised and the term granted expired on 20th January, 1977, the premises does not come under the control of the Rent Control and Recovery of Residential Premises Law, 1976. His further submission was that the premises being one governed by the terms of the tenancy agreement (Exhibit E), on the expiration of the term granted, and in the absence of any other agreement, the appellants were under an obligation to surrender possession of the premises to their landlord and in the event of failure, the landlord was at liberty to sue for possession in the High Court without the necessity of serving a notice of intention to recover possession.

To the second question for determination, learned counsel for the appellants submitted that the appellants were tenants within the definition of ‘tenant’ under the Rent Control and Recovery of Residential Premises Law 1976 and were entitled to the protection of that law from ejectment except and unless ejectment is in accordance with that law.

But learned counsel for the respondents’ main argument in reply was that the appellants could not and did not come within the definition of ‘tenant’ under that law and as such were not and could not be entitled to the protection from ejectment which is not in accordance with that law.

But learned counsel for the respondents’ main argument in reply was that the appellants could not and did not come within the definition of ‘tenant’ under that law and such were not and could not be entitled to the protection from ejectment which is not in accordance with that Law or (as prescribed by that Law). This, learned counsel contended, is because the company is an artificial or a juristic person created by law and not a natural person. He emphasized that as a juristic person, the company could not occupy residential premises but could only be in possession through its directors and officers. He relied on an English authority which was decided on the construction of the Increase of Rent and Mortgage Interest Restriction Act 1920.

It is the case of Hiller v. United Dairies (London) Ltd. (1934) 1 KB. 57. He also cited a Nigerian case, Sobamowo v. The Public Trustee (1970) 1 All N.L.R. 25 at 263 which on proper examination is more in favour of the appellants’ case.

Counsel for the appellants urged the court not to follow the case of Hiller v. United Dairies (London) Ltd. as it was decided on the construction of an English statute whose provision have not been shown to be in pari materia with our own Nigerian Statute. He submitted that the law, Law No.9 of 1976 gives protection both to natural and juristic persons who come within the definition of ‘tenant’ under that law and that occupation the contractual tenant is not a necessary pre-requisite to the acquisition of statutory protection from ejection provided for a contractual tenant whose tenancy has expired and holds over. Learned counsel referred extensively to the various sections of the Rent Control and Recovery of Residential Premises Law and also the Recovery of Premises Law Cap.118 Laws of Lagos State 1973 and finally submitted that even if the 1976 Law No.9 were to be found inapplicable, the respondents still have to comply with the provisions which require the service of statutory notices on a tenant under the Recovery of Premises Law before the High Court can entertain the suit.

I shall now proceed to examine the provision of the Rent Control and Recovery of Residential Premises Law 1976 to see whether the premises, (a flat in a building) the subject matter of those proceedings comes within its control. This law was promulgated in 1976 as Edict No. 9 of 1976 but will hereinafter be referred to as Law No.9 of 1976. The Heading which shows concisely the ambit of the law reads:

“LAGOS STATE OF NIGERIA

An Edict to control the Rent of Residential Premises.

To establish the Rent Tribunals for Determination of Standard Rents, to provide for Recovery of Possession and for Purposes connected therewith.

Subsection 1 of section 1 of the Law which shows the category of premises to which it applies reads:

“(1) This Edict shall apply to all residential accommodation throughout Lagos State.

Subsection 3 gave the Military Governor power to exempt particular areas and particular accommodation from the operation of the Law. That subsection 3 reads:

“The Military Governor may from time to time by order exempt the application of this Edict to any particular accommodation or areas.” There is no evidence that any order was made by the Military Governor under this provision. It is common ground between the parties that the premises involved in this appeal proceedings is a flat used for private residential purposes only. It was not exempted from the application of the Edict. The answer to the first question for determination therefore must be in the affirmative.

The answer to the 2nd question has not been so easy or forth coming. The respondents in paragraph 13 of their statement of claim averred that the appellants were not their tenants. But the defendants while not specifically denying this allegation averred in paragraph 4 of their statement of defence that they would contend at the trial that the requisite statutory notice was not served on the defendants before the plaintiffs commenced action. Counsel for the appellants contended that Lewis and Peat v. Akhimen (1976) 7 S.C. 157 must be taken as laying down or interpreting the High Court Rules of pleading to mean that an allegation of fact in the statement of claim can be denied not only expressly but by necessary implication i.e. taking and looking at the statement of defence as a whole, then the allegation cannot be taken as admitted. The court was referred to the cases of Attah v. Nnacho (1965) N.M.L.R. 28 at 31: Chappel v. Electrical Trade Union (1961) 1 W.L.R. 1290; Mandillas and Karaberis Ltd. v. Lamidi Apena (1969). All N.L.R. 390.

In the case of Attah v. Nnacho, Idigbe, J.S.C. (delivering the judgment of the Court) said at p. 31:

“This submission overlooks paragraphs (3) and (15) of the statement of defence. Paragraph (3) of the statement of defence denies paragraph 7 of the statement of claim which described the area verged pink in Exhibit 2 (which includes the names of all the pieces of land mentioned above) as the land in dispute claimed by the respondents and paragraph 15 states “save as is herein before expressly admitted, the said defendants deny each and every material allegation of fact contained in the statement of claim as if the same were set out herein and traversed seriatum”. Now it seems to me clear that the cumulative effect of these two paragraphs is that the appellants joined issue with the respondents in respect of all the lands described in the pink area of Exhibit 2.” On a close study of the statement of claim and statement of defence, and admission by the appellants that they are no tenants of the plaintiffs/respondents, or their predecessor in title cannot be deduced. The opposite contention appears to be the proper conclusion. I only need to refer to paragraphs 7, 10, 11, 12 and 13 of the statement of claim and paragraphs 1, 4, 5 and 7 to bear this point out clearly. The said paragraphs of the statement of claim read:

  1. The defendant entered into covenant with the plaintiff’s predecessor in title to give up possession of the property at the expiration of the lease.
  2. The defendant refused to give up possession of the property despite several demands.
  3. The plaintiff will rely on the Deed of Lease granted to the defendant by the plaintiff’s predecessor in title and contend that it is void as it has not been made in proper form.
  4. The plaintiff will contend in the alternative that the defendant is in breach of the covenant to give up possession of the property at the expiration of the lease.
  5. The plaintiff avers that the defendant is not a tenant of the plaintiff or of the plaintiff’s predecessor in title. Paragraphs 1, 4, 5 and 7 of the statement of defence read:
  6. Save and except as is hereafter expressly admitted, the defendants deny each and every allegation of fact contained in the plaintiff’s statement of claim as if same were set out seriatim and specifically traversed.
  7. The defendants deny paragraph 10 of the statement of claim, but would contend at the trial that the requisite statutory notice was not served on the defendants before the plaintiffs commenced this action.
  8. The defendant deny paragraph 12 of the statement of claim and that the defendants aver that they were in the final stages of negotiation with the plaintiffs’ predecessor in title for the renewal of the lease when the plaintiffs came in.
  9. The plaintiffs’ predecessor in title had agreed to a renewal that time, only the details of rents were being discussed when the plaintiffs came on the scene. It cannot, in my view, be contended that by the pleadings the appellants admitted that they were not “tenants”. The averment that they were not served with statutory notice before the respondents commenced the court action implies that they were tenants and as a tenants of the respondents they were entitled under Law No.9 of 1976 to be served with notice of intention to apply to recover possession. Lewis and Peat v. Akhimien cannot, in my view, be of any assistance to the respondents’ counsel’s contention that by the failure to plead in denial specifically to paragraph 13 the appellants are presumed to have admitted that they were not tenants and that if the appellants were not tenants the requirement of service of statutory notices to deliver up possession would not be applicable to the appellants’ case. Each paragraph of the statement of defence must not be considered in isolation but in conjunction with the other paragraphs to enable the issues joined in the pleadings to be properly ascertained.

The issue having been joined as regards the status of the appellants vis-a-vis the respondents in relation to the premises, the respondents improperly took refuge in the failure to traverse the allegation of fact pleaded in paragraph 13 of the statement of claim. In any event, the respondents’ averments in paragraph 13 of the statement of claim. In any event, the respondents’ averments in paragraph 12 of the statement of claim that the deed or lease or tenancy agreement by which the appellants obtained and entered into possession of the flat was void, shifted the burden of proof from the appellants to the respondents to establish by credible evidence that the respondents were not lawfully in occupation. This, the respondents totally failed to do and the presumption that the appellants were lawfully in occupation was not rebutted. The content of Exhibit A demanding payment of 4Y2 months arrears of rent amounting to N3,250.00 after the expiration of the written Tenancy Agreement can hardly support the averment that the appellants were not tenants of the respondents’ predecessors in title. If there was any previous doubt as to the character of the occupation between the date of expiration of the written Tenancy Agreement, i.e. 20th January, 1977 and the 30th day of May, 1977 when title to the property was transferred to the respondents, Exhibit A dispelled it. I bear in mind that the rent of N7,000.00 for the premises was previously paid yearly in advance and the demand of the arrears up to the date of transfer put a stamp of lawful tenants on the appellants. This is more so as the evidence shows that the appellants held over with the consent of the previous landlord.

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Holding over with the consent of the landlord made the appellants tenants at will. This is well settled in law. See the Law of Real Property by R.E. Megarry and H. W.R. Wade 4th Edition page 638 where the learned authors dealing with the creation of tenancies at will say.

“A tenancy at will arises whenever a tenant with the consent of the owner occupies land as tenant (and not merely as a servant or agent) on terms that either party may determine the tenancy at any time. This kind of tenancy may be created expressly [e.g. Mansfield and Sons Ltd. v. Botchin (1970) 2 Q. B. 612] or by implication common examples are where a tenant whose lease has expired holds over with the landlord’s permission without having yet paid rent on a period basis. [See e. g. Meye v. Electric Transmission Ltd. 1942 Ch. 290] : where a tenant takes possession under a void lease or under a mere agreement for a lease and has not yet paid rent or where a person is allowed to occupy a house rent-free and for an indefinite period; and (usually) where a purchaser has been let into possession pending completion.

Howard v. Shaw (1841) 8 M & W 118, Wheeler v. Merces (1957) A.C. 416 at 425

Unless the parties agree that the tenancy shall be rent-free or the tenant has some other right to rent-free occupation the landlord is entitled to compensation for the “use and occupation” of the land, Howard v. Shaw (1941) 8 M & W118. But if rent is agreed upon, it may be distrained for as such in the usual way and at page 630 dealing with conversion of tenancy at will into periodic tenancy, the learned authors say If a tenancy at will is created without agreement as to payment of rent and rent is subsequently paid and accepted upon some regular periodic basis, a yearly or monthly or other periodic tenancy will be created in accordance with those rules set out under Heads 2 and 3 above [ Ladies Hosiery and Underwear Ltd. v. Parker (1930) 1 Ch 304.]

The evidence given by Gobin Mahgany which was uncontradicted was that at the expiration of the term of years granted to his company, the appellants, they held over with the landlord’s permission while negotiations for a new tenancy agreement were set in motion without having paid rent on a periodic basis. The demand for 4V2 months rent by the landlord therefore projected the landlord’s mind in the light of the oral evidence and gave the colour of acceptance as periodic tenant by the previous landlord.

Even a tenancy at sufferance (i.e. holding over without the landlord’s assent or dissent) may be converted into yearly or other periodic tenancy in the usual way i.e. if rent is paid and accepted with reference to a year. See page 641. The Law of Real Property by R. E. Megarry and H.W.R. Wade, 4th Edition.

The previous landlord is estopped from denying the tenant’s title by the general rule of Estoppel. The general rule is that a tenant is estopped from denying his landlord’s title, and a landlord from denying his tenants’

Cooke v. Loxley (1792) 5 TR 4;

Achorne v. Gomme (1824) 2 Bing 54;

Cuthbertson v. Irving (1860) 6 Hand N 135;

Mackley v. Nutting (1949)2 K.B. 55 at 62;

Tadman v. Herman (1893) 2 Q.B. 168 at 171.

See also Spencer Bower, Estoppel by Representation 1st ed. pp 251, 252. The estoppel operates from the time when the Landlord puts the tenant into possession Hall v. Butler (1839) 10 A & E 204, Doed Marlow v. Wiggins (1834) 4 QB 367 until the time when the tenant goes out of possession. This estoppel applies to all types of tenancy including periodic tenancies, tenancies at will, tenancy at sufferance (Doed Baiby v. poster (1846) 3 C.B. 215 at 229) and statutory tenancies under the Rent Acts (See Stratford v. Syrett (1958) 1 QB 107) and it operates whether the tenancy was created by deed or writing or orally (E. W. Lewis and Son Ltd. v. Horelli (1948) 2 All E.R. 1021. Mackley v. Nutting (1942) 2 KB 55). Those claiming through the parties concerned are also estopped, so that the estoppel bind the successors in title to both landlord and tenant Webb v. Austin 7 Man & G 701; Cuthbertson v. Irving (1859) 4 H & N 742 at 758 (affirmed 1860) 6 H & N 135. See page 645 of the Law of Real property 4th Edition by R. E. Megarry and H.W.R. Wade.

In view of the state of the law, the respondents’ contention that the appellants were not tenants of the previous landlord and also not of themselves was based on an erroneous conception of the law. The appellants having held over with the landlord’s consent were on the evidence before the court including Exhibit A at least tenants at will and at best monthly tenants and under section 15 of Law 9 of 1976, the interest of a tenant at will must end or be duly determined by a written notice to quit. It is only after the determination of the term or interest held by the tenant, that a written notice of intention of the landlord to recover possession is required to be served on the persons actually occupying the premises.

It is important to note that until the term or interest of the tenant of the premises held by him at will or for any term shall have ended or shall have been duly determined by a written notice to quit, the landlord is entitled to the payment of rent fixed for the premises and the tenant is under an obligation to pay the rent so agreed and fixed. After the service of the written notice to quit or the end of the term granted and the tenant holds over without the permission of the landlord, the tenant is liable to pay mesne profit for the use and occupation of the premises till he delivers up possession.

If a statutory tenant is one who has no estate or interest on the premises but only a mere right to retain possession of the property, it seems to me that the tenant becomes a statutory tenant only on the determination of the term or interest held by him by a proper written notice to quit or when the term or interest held in the premises has ended (by effluxion of time). In the con of the provision of section 40 (3) of Law No.9 of 1976 which brings all leases of residential premises within the law, a new dimension seems to have been added to the meaning of statutory tenant and tenancy.

One of the grounds on which the Federal Court of Appeal dismissed the appeal was that the tenancy agreement Exhibit E bears no relation to the appellants and that no evidence was adduced to establish the relationship between Deekay and Sons Limited and the appellant. This led the Federal Court of Appeal to conclude that the appellants were not in lawful occupation of the premises. This finding and conclusion would have been otherwise if the evidential value of Exhibit A had been properly assessed. Exhibit A clearly established that the appellants were lawfully in occupation and were holding over with the knowledge of the previous landlord and regrettably a new tenancy agreement had not been concluded but that was a matter to be taken up with the respondents who had purchased the property. Finally, it established that arrears of rent from January to May 30th were demanded. Although in England there is a specific provision in the Rent Restriction Acts that rent should be paid by the statutory tenant on the basis of the previous agreed rent, our Rent Control and Recovery of Residential Premises Law contains no such provision. The forms of the writ of summons or plaint indicate only mesne profits for use and occupation after the expiration of the lease.

After collecting the 4 1/2 months arrears of rent, can the previous landlord justifiably assert that the appellant was no longer a tenant in respect of the premises In my veiw, he could not and cannot be heard to so contend. With due respect, I think the Federal Court of Appeal was in error when it held that the appellants were not lawfully in occupation. The word ‘tenant’ is defined in section 40 (1) of the Rent Control and Recovery of Residential Premises Law 1976 which reads:

“In this Edict, unless the con otherwise requires ‘tenant’ includes a subtenant 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.”

Section 40 (3) of the Law expressly extended the application of the law to all leases. The subsection reads:

“The provisions of this Edict shall apply to all leases.”

The lease or tenancy agreement under which the appellants were let into possession as tenants was therefore subject to the provisions of the Law, Law No.9 of 1976. On the coming into force of this law, it is to be noted that the Rent Control Law Cap. 122 was repealed by section 38 (1) while the Recovery of Premises Law Cap. 118 was repealed to the extent that it relates to accommodation in residential premises by section 38 (2) of the law. Similarly, the provisions of the Magistrates’ Court Law Cap. 32 to the extent that it relates to all actions between landlord and tenant in respect of residential accommodation were repealed by section 38 (3). The jurisdiction hitherto exercised by the High Court and the Magistrates courts in such matters were ousted.

By the provisions of section 34 (1) of the law, Law No.9 of 1976 to the extent that jurisdiction is conferred on the Rent Tribunals, the High Court and Magistrate Court were deprived of jurisdiction. Section 34 (1) reads

“In so far as jurisdiction is conferred on the tribunals in respect of the causes or matters mentioned in the foregoing provisions of this Edict, the High Court, Magistrate Courts, or any other court of the State, shall, to the extent that jurisdiction is so conferred on the tribunals, cease to have jurisdiction in relation to such causes or matters.”

It is, in my view, not in the contemplation of the Rent Control and Recovery of Residential Premises Law 1976 that the tenant must ‘actually occupy’ the residential premises before he can enjoy the protection of the law. A close study of the provisions of the law particularly sections 11,12,13,15,18 (1),19 and 30 bear this out clearly and for a better appreciation of their import, I will proceed to set them out in full. They read as follows:

’11. Where a landlord at anytime lets any premises and his tenant not being expressly prohibited in writing from subletting, sublets such premises or any part thereof, the sub-tenants of such premises or any part thereof shall be deemed for the purpose of this Edict to be the tenants of the landlord.”

  1. Any agreement relating to the tenancy of any accommodation to which this Edict applies shall be void in so far as it purports to preclude the tenant from making any application or otherwise exercising any rights conferred upon him under or by virtue of this Edict or provides for the termination or the surrender of the tenancy of the accommodation in the event of his making such application or exercising such a right or for the imposition of any penalty or disability on the tenant in that event.
  2. Every court in the State whether of civil or criminal jurisdiction shall, in so far as is necessary, conform to the provisions of this edict and shall not recognise or enforce any measures, transactions or other arrangements which in its opinions are intended for, or calculated to result in the evasion or default of any of the provisions or purposes of this Edict, in all or any proceedings, actions, suits or cases, between landlords and tenants or between any of them and other persons and in all applications, suits, actions, cases and matters in which the rights, remedies, duties or titles of any of these aforementioned are in question.
  3. When and so soon as the term or interest of the tenant of any premises held by him at will or for any term either with or without being liable to the payment of any rent, shall have ended, or shall have been duly determined by a written notice to quit as in Form B, C or D, whichever is applicable to the case, or otherwise duly determined and such tenant, or, if such tenant does not actually occupy the premises or only occupies a part thereof, any person by whom the same or any part thereof shall then be actually occupied, shall neglect or refuse to quit and deliver up possession of the premises or such part thereof respectively, the landlord of the said premises or his agent may cause the person so neglecting or refusing to quit and deliver up possession to be served in the manner hereinafter mentioned with a written notice as in Form E signed by the landlord or his agent of the landlord’s intention to proceed to recover possession on a date not less than seven days from the date of service of the notice.” It is clear from the provision of this section that 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.

In the instant case, there is clear evidence that the flat was actually and is still actually occupied by Gobin Mahogany, director of the defendants/ appellants company. He is, in my view, entitled to be served with the Form E notice.

18 (1) Upon the expiration of the time stated in any such notice of the landlord’s intention to recover possession, if such tenant or any person holding or claiming by, through or under him neglects or refuses to quit and deliver up possession accordingly, the landlord may apply to the tribunal for the issue of a writ or enter a plaint in form F, at his option either against such tenant or against such person so neglecting or refusing, in the tribunal of the district in which the premises are situate for the recovery of the same and thereupon a summons as in Form G shall issue to such tenant or person so neglecting. This provision gives the landlord an option to proceed either against the tenant or the person actually occupying the premises. The procedure for recovery of possession under this law still had to be followed even though the tenant is not actually occupying the premises.

  1. Where any summons for the recovery of any premises as is herein before specified shall be served on or come to the knowledge of any sub-tenant of the plaintiffs immediate tenant, such sub-tenant being an occupier of the whole or of a part of the premises sought to be recovered he shall forthwith give notice thereof to his immediate landlord,and such landlord may be added or substituted as a defendant to defend possession of the premises in question.”
  2. Service of any notice under the provisions of this Edict or any summons, warrant or other process shall be effected in accordance with the provisions of the law for the time being in force relating to the service of civil process of magistrates’ courts and if the defendant cannot be found, and his place of dwelling shall either not be known, or admission thereto cannot be obtained for serving any such process, a copy of the process shall be pasted on some conspicuous part of the premises sought to be recovered and such pasting shall be deemed good service on the defendant.”

The option given to the landlord by section 18 (1) of the law most eloquently testifies to this point that non personal actual occupation by the tenant does not deprive the tenant of the protection from ejectment available to him under the law. This necessarily leads me to the submission of counsel for the respondents that the appellants being a limited liability company can be in possession of premises and enjoy the protection of a Tenancy Agreement in respect thereof but by the very character of its personality i.e. being a juristic person it is bereft of capacity to occupy premises as would a natural person and so the protection from ejection except in accordance with the provision of the Rent Control and Recovery of Residential Premises Law is not available to it. In other words, while a limited liability company can be a contractual tenant, it cannot be a statutory tenant. The authority relied on by the learned Senior Advocate for this submission is the case of Hiller v. United Dairies (London) Ltd. [1934] 1 KB. 57 at p. 63-an English case. The decision in that case was based on the interpretation of (an English Statute) section 5 of the Increase of Rent and Mortgage Interest (Restriction) Act 1920 as amended by section 4 of the Rent and Mortgage Interest Restriction Act 1923. The Act “applies to a house or part of a house let as a separate dwelling, where either the annual amount of the standard rent or the rateable value does not exceed.

“In the metropolitan police district, including therein the city of London, one hundred and five pounds.”

The contention of the United Dairies (London) Ltd. in that case was that they were protected by the Rent Restriction Acts as being in occupation by their manager. The Court of Appeal rejected this contention and held that they were not protected. The matter had come up before the Court in the earlier cases of

Reidy v. Walker (1933) 2 KB 266

Haskin v. Lewis (1931) 2 KB 1

Skinner v. Geary (1931) 2 KB 546

Hasking v. Lewis established clearly that the principle of the Act is to protect a resident in a dwelling house not to protect a person who is not a resident in a dwelling house but is making money by subletting it. This was clearly stated by Scrutton, LJ. in his judgment at pages 13 and 14 when he said:

“One thing is quite certain, the original tenant is not residing in those floors; his sub-tenants are residing there. The consequence is that you have this position, that the original tenant is not occupying any part of the original tenancy, the original dwelling house so as to make him a tenant under the Act ; he is not occupying the ground floor and the first floor as a residence, he is occupying them for business purposes; he is not occupying the attic and the basement as a residence, those portions of the house are being occupied by the sub-tenants, he is therefore not in personal occupation of any dwelling house. That being so, he appears to me to come within the fundamental principle of the Act that it is to protect a resident in a dwelling house, not to protect a person who is not a resident in a dwelling-house, but is making money by letting it. That I understand is the principle which Swift J. intended to lay down in Hicks v. Scarsdale Brewery Co. [1924] W.N. 189.”

The policy of the Rent Restriction Acts has been so rigidly maintained that when a company took a lease of a flat and sought the consent of the landlord to assign the residue of the short term to one of its directors so that she could hold over as a statutory tenant under the Rent Restriction Acts and the landlord refused to give his consent the court held that the refusal of the consent was reasonable as the sole reason for the purported assignment was to gain for the director the protection of the Rent Restriction Acts. See Lee v. K. Carter LD [1949] 1 KB 85 Turker, LJ. Delivering his judgment said at page 90:

“At all times material to this action, the company remained in possession and occupation of the premises and the second defendant resided in the flat, as she was entitled to do by the express provisions of this lease. She was also guarantor of due performance by the lessees of their covenants. It is tolerably clear from the terms of the lease, and it became clearer when the termination of lease came into sight, that it was expressly designed to ensure for the landlord that, at the expiration of the lease, he should have as lessee a limited liability company which would not be able to claim the protection of the Rent Restriction Acts in answer to any proceedings, by him to obtain possession.”

That was in England and we must bare in mind that the provision of the Rent Control and Recovery of Residential Premises Law 1976 are not in pari materia with the English Rent Restriction Acts. The provisions of Law No.9 of 1976 which I set out earlier above do not deprive a tenant of the protection of the law because he is not resident in the premises. I refer in particular to sections 15, 18 (1) and 19 of the law.

The Recovery of Premises Law Cap. 118 (now partly repealed) and the Rent Control Law Cap. 122 (now repealed) protected tenants of premises to which those laws applied from ejectment except in pursuance of an order of court obtained under the provisions of the Recovery of Premises Law. The Recovery of Premises Law Cap. 118 had unlimited application in terms of character of premises and in my view it is clear from the provisions of section 1 (2) of the Recovery of Premises Law Cap. 118 that it is only premises in areas from which the provisions of the Law have been withdrawn from operating that are exempt from the operation of the Recovery of Premises law. That section 1 (2) of the Recovery of Premises Law provides as follows:

“The State Commissioner may from time to time by order declare that the provisions of this law shall not apply to any area specified in such order and upon such an order coming into force the provisions of this law shall cease to apply to such areas as may be specified in the order.

Provided that all proceedings instituted prior to and which are pending at the date of the coming into force of the said order and which are in respect of any premises in any area referred to in the order may be continued and carried through to completion, notwithstanding such order, in all respects as if the law still applied to the area in which are situated the premises in question.”

The premises being residential premises has been removed permanently from the control of the Recovery of Premises Law Cap. 118 by the express provisions of section 38 (2) of Law No.9 of 1976 and brought under its control by section 1. Unless the tenant voluntarily delivers up possession, the law protects his tenancy until he is ordered to deliver up possession by a judgment of the Tribunal under section 25 of the law.

The contention that the tenants’ tenancy was not protected by the provisions of the law because the term of years was granted by a Deed of Lease overlooked the provision of section 40 (3) which states that “the provisions of this Edict (now law) shall apply to all leases.”

I will now proceed to deal with the submission that the respondents did not accept the appellants as their tenants. There is evidence that the tenants made all efforts, though unsuccessful including payment of rent to the respondents, to attorn contractual tenant to them. Since section 40 (3) of Law No.9 of 1976 stipulates that the provisions of the law shall apply to all leases and the respondents were unwilling to renew the tenancy agreement, it became mandatory for the respondents to comply with section 15 of the law to set in motion the processes leading to ejectment of the appellants and recovery of possession under section 25. Section 15 clearly requires the service of a written notice as in Form E on the appellants as;

(1) The term of years or interest in the premises granted to them had ended; and

(2) They have neglected or refused to quit and deliver up possession of the premises.

Since the respondents bought the interest of appellants’ landlord in the property as from 1st June, 1977, the respondents became (the landlords) entitled to the immediate reversion of the premises. Learned counsel for the respondents contended that as there was no previous contractual relationship between them in respect of the premises the appellants cannot become their statutory tenants. It is my view and opinion that a statutory tenancy is a creation of statute for the benefit of the tenant and does not depend on the will or acceptance of the landlord or on the existence of a contractual tenancy. By the terms of the provision of section 15, a tenancy at will which is not based on any contract can be transformed to statutory tenancy. Learned counsel on both sides cited the case of Sobamowo v. The Federal Public Trustee (1970) 1 All N.L.R 257 already referred to above. I find great support for my opinion in it. It was a case which started in the Magistrate’s Court, Lagos and from there it went on appeal to the High Court and from the High Court to the Supreme Court. It involved an examination and interpretation of some sections of the Recovery of Premises Act which are in pari materia with the Rent Control and Recovery of Residential Premises Law No.9 of 1976.

In that case, the defendant received the key to the room from the tenant with permission to make use of the room by letting the defendant’s goods into the room. She was later advised to see the plaintiff/landlord if she wanted room. Without serving the statutory notices, the landlord sued for possession. He lost in the Magistrates’ Court, succeeded in the High Court and lost in the Supreme Court.

Lewis, J.S.C. delivering the judgment of the Supreme Court (Lewis, Fatayi-Williams and Sowemimo, J.S.C.) said at page 251:

“The point at issue is therefore a short one namely whether the defendant was “occupying” the premises within the meaning of the definition of “tenant” in section 2 of the Recovery of Premises Act (Cap. 176 of the Laws of the Federation of Nigeria and Lagos, 1958) which reads:

“‘tenant’ includes any person occupying 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. ”

This definition only differs from that in section 40 (1) of the Rent Control and Recovery of Residential Premises Law 1976 by its omission of a ‘sub-tenant’ which appears after the word, ‘includes’ and before the word ‘any’ in the first line in the 1976 Law No.9.

It is therefore almost in pari materia with the definition in Law 9 of 1976. Occupying the premises under the Law No.9 of 1976 as under the Recovery of Premises Law means “lawful occupation “. See Akinosho v. Enigbokan (1955) 21 N.L.R. 88 per Abbot J. as he then was.

See also  Prof. Steve Torkuma Ugba & Ors V. Gabriel Torwua Suswam & Ors (2012) LLJR-SC

A statutory tenant being one protected from eviction by the Law has no estate or property as a contractual tenant but has merely statutory right to retain possession of the property until he is ejected or ordered to give up possession under the provisions of the law. See Section 15 law No.9 of 1976 and also section 25 of Law No.9 of 1976. See Dawodu v. Ijale (1946) 12 WACA 12 at 13.

He is not a trespasser and not a squatter. He could only be a mere trespasser if the original possession had not been lawfully obtained. Again in Sobamowo v. The Federal Public Trustee Lewis, J.S.C. was as we are in this case, against using judicial interpretation of statutes of other countries not in pari materia with ours in the interpretation of our statutes when he said at page 264:

“Clearly under the definition (of tenant) it makes no difference whether or not money is paid for the use of the premises and in fact it was not shown here that the defendant paid any money for the rights she exercised. We do not think that it has to be established that the defendant has a specific legal relationship with the landlord as this is a statutory not a contractual tenancy that is in issue and that is determined solely by the interpretation of what “occupying” the premises means in the definition of “tenant” in section 2 of the Recovery of Premises Act. It is true that in England it has been held that a person cannot be a statutory tenant unless he was in fact first a tenant (CF Strutt v. Panther (1953) 1 QB 397), but that was because of the specific provision in the Act in question (section 12 (1) (g) of the Increase Rent and Mortgage Interest (Restriction Act 1920), and it is most important not to import English requirements determined by the special legislation of that country into the Nigerian Legislation which must be read as it stands and given its ordinary meaning … If a person comes within the definition of “tenant”, then he is entitled to the statutory protection provided for in the Act and it makes no difference whether the landlord recognizes him as such or not. It is still beholden on the landlord to give that person as a statutory tenant the required notice under the Act.” (Emphasis mine.)

I find that the respondents’ failure to serve the statutory notice on the appellant is fatal to the action. Above all, the action was instituted in the wrong forum, in the High Court instead of the Rent Tribunal established under section 2 of the Rent Control and Recovery of Residential Premises Law 1976.

The High Court ceased to have jurisdiction on the establishment of the Rent Tribunal. See section 34 (1) of the Law, Law No.9 of 1976.

The appeal succeeds and the decisions of the Federal Court of Appeal together with the order as to costs in Appeal No. FCA/L/42/81 and the decision of the High Court of Lagos State in suit No. LD. 322/79 together with the order as to costs are hereby set aside.

In their stead, an order striking out the claim for want of jurisdiction is hereby substituted.

The respondents will pay the appellants costs in the High Court fixed at N200.00; costs in the Federal Court of Appeal fixed at N300.000 and costs in the Supreme Court fixed at N300.00.

G. S. SOWEMIMO, J.S.C.:The Lagos State Rent Control and Recovery of Residential Premises Law 1976 is the relevant law. Under Section 40 it offers protection to all leases whether contractual or statutory. Secondly under section 2, the Lagos State Rent Tribunal has an exclusive jurisdiction to entertain all matters coming under that law. Thirdly no matter will be entertained in the Lagos State Rent Tribunal except the tenant protected by this law had been served with the notice to quit.

In this matter which came on appeal to this court the plaintiff has instituted the action in the High Court of Lagos State. That court had no jurisdiction to deal with this matter and, therefore, the suit ought to have been struck out in either the High Court or the Federal Court of Appeal. That will be done now and the action being incompetent for the High Court is hereby struck out. As no notice to quit was served the defendant company the Appellants before us are protected by the Lagos State Law and, therefore, the appeal must succeed.

The judgment of the Lagos State High Court and that of the Federal Court of Appeal, Lagos are hereby set aside. I agree with the judgment of my learned brother, Obaseki, J.S.C. and the concurring one by my brother Aniagolu, J. S.C. The consequential orders made by my learned brother, Obaseki, J .S.C. in this judgment are hereby adopted. And this shall be the judgment of this court.

C. IDIGBE, J.S.C.: I have read in advance the judgment which has just been read by my learned brother, Obaseki, J.S.C. and I agree with him that this appeal should be allowed. However, as we are differing from the unanimous decisions of three learned Justices of the Federal Court of Appeal (hereinafter referred to as “the Court of Appeal”) and that of the learned trial judge in the court of trial on their respective views on the provisions of the Rent Control and Recovery of Residential Premises Edict 1976) hereinafter referred to simply as “the 1976 Rent Edict. I will endeavor to make some observations of my own on the very important issues of law which arose from the argument and contentions on behalf of the parties in this appeal. The background to this litigation and all the relevant facts have been so adequately canvassed in the lead judgment that I can proceed immediately to consider the principal questions with which we are concerned; and these are:

(1) Whether the 1976 Rent Edict applies to these proceedings And if so

(2) Whether the claims therein are maintainable in the High Court of Lagos State and if not

(3) Should these claims have been taken out before a tribunal established under Section 2 of the 1976 Rent Edict (i.e. a Rent Tribunal).

When pleadings were settled in this case, it became clear that the appellants were let into possession of the premises concerned in these proceedings (i.e. a flat at No. 17 Raymond Njoku Street, South-West Ikoyi, Lagos)-hereinafter referred to as “the disputed premises”, not by the respondents, but by their predecessor-in-title, Chief Emmanuel Jones Adebolaji Odukoya, under a lease of the 19th day of April, 1972 originally for a fixed term of three years with a renewal option; appellants having exercised their option for renewal, their contractual tenancy finally expired on the 20th day of January, 1977, well over twelve months prior to the commencement of these proceedings. Sometime before the commencement of the suit in hand, Chief Odukoya transferred his interest in the disputed premises of the respondents who refused to renew the contractual tenancy of the appellants who, nonetheless, refused to vacate the premises. On the foregoing premises, it is contended on behalf of the respondents that (1) the appellants are squatters and not tenants under the 1976 Rent Edict; and consequently the said Edict does not apply to these proceedings; (2) in any event, while the Edict applies to the classes of tenancies set out in Section 16 thereof [ namely, tenancies at will (b) weekly tenancies (c) monthly tenancies (d) quarterly tenancies and (e) yearly tenancies ] it cannot apply to tenancies for a “fixed term”, to which class the tenancy with which we are concerned in the suit in hand belongs. In the circumstances, the respondents are perfectly justified to take out against the appellants a straight-forward claim, in the High court of Lagos State, for possession and mesne profits.

Now, I think it is necessary at this stage to set out some of the relevant sections of the Edict to which reference will be made in this Judgment; and these read:

“(1) This Edict shall apply to all residential accommodation throughout Lagos State.

The Military Governor may from time to time by order classify to types of residential accommodation, zone the areas of Lagos State and fix standard and maximum rents for such accommodation for the purposes of this Edict.

(2) There shall be established tribunals to be called Rent Tribunals to be constituted as follows:

(a) A chairman being a person who has been in practice as a legal practitioner in Nigeria for not less than five years; and

(b) Two other persons of probity ; to be appointed by the Military Governor. ”

(12) “Any agreement relating to the tenancy of any accommodation to which this Edict applies shall be void in so far as it purports to preclude the tenant from making any application or otherwise exercising any rights conferred on him under this Edict… ”

(15) “When and so soon as the term or interest of the tenant of any premises, held by him at will or for any term either with or without being liable to the payment of rent, shall have ended or shall have been duly determined by a written notice to quit ..or otherwise duly determined and such tenant, or, if such tenant does not actually occupy the premises or only occupies a part thereof, any person by whom the same or any part thereof shall then be actually occupied, shall neglect or refuse to quit and deliver up possession of the premises or such part thereof respectively, the landlord of the said premises or his agent may cause the person so neglecting or refusing to quit and deliver up possession to be served, with a notice in form E ..of the landlord’s intention to proceed to recover possession.”

(18) (1) “Upon the expiration of the time stated in any such notice of the landlord’s intention to recover possession, if such tenant or any person holding or claiming by, through or under him, neglects or refuses to quit and deliver up possession accordingly, the landlord may apply to the tribunal for the issue of a writ or enter a plaint as in Form F, at his option either against such tenant or against such person so neglecting or refusing, in the tribunal of the district in which the premises are situate for the recovery of the same. . . ..’

(25) (1) “No order or judgment for the recovery of possession of any premises to which this Edict applies or for the ejectment of a tenant there from shall be made or given unless the tribunal considers it reasonable to make such order….and either

(a) The tribunal has power so to do under the provisions set out in the second schedule to this Edict or

(b) The tribunal is satisfied that suitable alternative accommodation is available for the tenant”

38 (1) xxxx

“(2) The Recovery of Premises Law is hereby repealed to the extent that it relates to accommodation in residential premises

(3) The provisions of the Magistrates’ Court Law to the extent that it relates to all action between landlord and tenant in respect of residential accommodation are hereby repealed”

40 “(1) In this Edict unless the con otherwise requires includes residences so approved by the buildings approving authorities designated by the State as residences regardless O.J user, all Buildings used as residences; as from the commencement of this Edict, and all other buildings whether or not approved by the authorities but used as residence ‘landlord’ in relation to any premises means the person entitled to the immediate reversion of the premises,’premises’ includes a house or building or any part thereof with its gardens or other appurtenances, ‘tenant’ includes a sub-tenant or any person occupying 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” [Emphasis by me].

40 Q) “The provisions of this Edict shall apply to all leases” [Emphasis by me]

For the appellants, it is contended that pursuant to the provisions of the 1976 Rent Edict, the appellants on the expiration of their tenancy under a renewed lease pursuant to the option for removal contained in an earlier lease of April 1972 (Exhibit ‘E’ In these proceedings) became “statutory tenants” and consequently were entitled to the procedure specially laid down in the said Edict for ejectment of tenants (i.e. recovery of the premises by the landlord). It is further contended on behalf of the appellants that the landlord (i.e. the respondents herein) not having complied with the provisions of sections 15 and 18 of the said Edict prior to the commencement of these proceedings the claims ought not to be entertained by the High Court; in any event, it is submitted that that court has no jurisdiction to entertain the claims and that the Federal Court of Appeal erred in law in upholding the judgment of the High Court in favour of the respondents.

Now, the facts indicate clearly that the appellants came on the premises concerned in these proceedings under a lease for a fixed term as tenants of the predecessor-in-title of the respondents. By the time the respondents took over the premises the contractual tenancy of the appellants had, in any event, expired. It is conceded before us, and there is evidence (See paragraph 6 of the unchallenged affidavit of Gobind Hotohand Mahtani, the Managing Director of the appellantcompany sworn to on 8-11-78) to that effect, that the Managing Director of the appellant-company “was in residential occupation” of the premises in question ; and the lease executed between the appellants and the predecessor-in-title of the respondents provides in paragraph (vi) of clause (2) therein that the “tenants covenant with the landlord to use the demised premises as private residence only”. When therefore the contractual tenancy expired, the appellants claimed they were entitled to statutory notice (under the 1976 Rent Edict) of the landlord’s intention to recover possession before any proceedings for their ejectment from the said premises could commence; the evidence being that the new landlords {Le. the respondents) had rejected their request for a new lease of the said premises.

The respondents contend that since there is no privity of contract between them and the appellants, they (the respondents) are not obliged to issue any notice of their intention to recover possession of the premises to the appellants; they are not their landlords, nor are the appellants their tenants. The appellants being squatters do not qualify as tenants under Section 40 (1) of the said Edict; and the definition of tenants in that section cannot include squatters. It is, therefore, inconceivable that they, the respondents, owe the appellants any obligation to give any notice to the respondents of their intention to recover possession of the premises concerned prior to their commencement of the present proceedings.

Statutory Tenancy: At common law, a tenant who entered premises on a lawful demise or title but wrongfully continued 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 (Le. 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” r See section 49 (1) the Housing Repairs and Rents Act (1954; 2 and 3 Ehx.: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 holds the land of another contrary to the will of that other person who strons.ly desires to turn him out. Such a person will not ordinarily be described as a tenant” [See Scrutton L.J. in Shutter v. 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 406]; accordingly, it has been, quite appropriately, described as a “status of irremovability” [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 possession 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 [see also: Sargant L. J. in Roe v. Russell [1928) 2 K.B. 117J. The contention on behalf of the respondents that there is no landlord and tenant relationship between them and the appellants is, therefore, misconceived and erroneous. It seems quite clear to me that, on the ordinary and grammatical meaning of the expression “the person entitled to the immediate reversion” used in Section 40 (1) aforesaid in the definition of “landlord”, the respondents are unquestionably the “landlords” of the appellants and have been prior to the commencement of these proceedings ; they have no choice in the matter and in the language of Slater J. in Turner v. Watts (1928) 97 L.J. K. B. 92 at 96, they are “statutory landlords” in other words, they are whether or not they consent to the situation-landlords of tenants they do not want. It is now left to me to consider whether the appellants being a limited liability company can properly or lawfully claim the protection of the 1976 Rent Edict. Both the Lagos State High Court (Oshodi J.) and the Court of Appeal (Ademola, Nnaemeka-Agu and Karibi-Whyte J.C.A.) held that on the authority of Hiller v. United Dairies (London) Ltd. [1934) 1 K.B. 57 a Limited liability company cannot be a statutory tenant “since it cannot occupy a house as its residence”. In the lead judgment of that court delivered by Nnaemeka-Agu, J. CA., and in which the other two learned justices concurred, the following passage appears

“As for the final questions: 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 law. The whole tenor of the law, including the definition of “accommodation’ ‘premises’ and ‘tenant’ in section 40 point(s) to the fact that it was designed to protect persons who live in houses or parts thereof as their houses or residence in the domestic sense. I do not therefore agree with Mr Lardner that because the word ‘person’ ordinarily includes natural as well as artificial persons, it has that wide import in this 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 by it 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 contractual tenants 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 or tenancy has expired” [emphasis by me].

With very great respect to their Lordships of the Court of appeal, I find it extremely difficult to subscribe to the views expressed above in the face of the clear provisions of sections 1 (1) and 15 of the 1976 Rent Edict. Although earlier in the judgment in which the foregoing passage appears, the learned Justice of Appeal has observed, “I must note that I am here to construe the Lagos State Law No.9 of 1976 (the 1976 Rent Edict,) not to apply the English Law, if I am satisfied that the s are different”, the foregoing passage-like the biblical story of Esau and Jacob-does appear to me to re-echo, without any modulation in deference to the provisions of the Lagos State Law aforesaid, (and there should have been) the “voice” of “Esau”-in this case, the voice of Slesser J. in Hiller v. United Dairies (Supra). However, Hiller’s case (Supra) is a decision based on the special provisions of section 5 of 10 and 11 Geo. 5 C. 17-Increase of Rent and Mortgage Interest (Restrictions) Act of 1920, which section seeks to restrict the right to recovery of ) possession of “dwelling-houses” by landlord from tenants. The expression “dwelling” normally has residential connotation and includes “all major activities of life particularly, sleeping, cooking and feeding” (see Scott L.J. in Wright v. Howell (1947) 92 S.J. 26 C.A.), and the view has been expressed that even if the premises are used for feeding, cooking and other living purposes, they will not be protected as a “dwelling-house” under the 1920 Act aforesaid if they are not used for sleeping purposes ; “sleeping”, in other words seems to be the most important (See also Phillips v. Clark L.J. C.C.R. 82 at 83). The principle of the Acts (the 1920 Act and others based thereon) is indeed to protect a person residing in a “dwelling-house” from being turned out of his home. “It is to protect a resident in a dwelling-house not to protect a person who is not a resident in a dwelling-house, but is (making money by) subletting” (See Scrutton L.J. in Haskins v. Lewis (1931) 2 K.B. at 14 (bracket signs by me for emphasis), and in the words of Denning L.J. in Feyereisel v. Turnidge (1952) 2 Q.B. 20 at 30, “the guiding light through the darkness of the Rent Acts (and these include the 1920 Act aforesaid) is to remember that they confer personal security on a tenant in respect of his home” (Brackets and italics mine). Accordingly, the view prevailed that under the 1920 Act (and the subsequent Rents Acts which deal with tenants in “dwelling-houses”) a limited liability company, not being a natural person, is incapable of “dwelling” in any premises and consequently cannot be a statutory tenant under the said Act.

The position, however, is different under the 1976 Rent Edict (Edict No.9 of 1976). Section 10) of the Edict provides that it shall apply to “All residential accommodation” in Lagos State; it makes no reference to “dwelling-houses”. ‘Accommodation’, be it noted, is defined under the Edict as including “residences so approved, by the building approving authorities designated by the State, as residences regardless of the use ” [section 40 (1) refers It is clear from the foregoing definition that accommodation includes residence or dwelling-houses and that user of accommodation envisaged in section 40 (1) aforesaid cannot be subject to the restrictions which emerge from judicial comments in England on the term “dwelling” or”dwelling-houses” under the Rent Acts in England. Further, a careful reading of section 15 of the 1976 Rent Edict shows clearly that the Edict contemplates both actual physical occupation by a tenant of the premises to which the Edict applies as well as occupation by proxy, because part of the section reads

“….. .or if such tenant does not actually occupy the premises or only occupies part thereof, any person by whom the same or any part thereof shall then be actually occupied…… ”

In view of the foregoing observations, I am of the settled view-with all due respect to their Lordships of the Court of Appeal and the learned trial judge-that it is, indeed, erroneous to equate the provisions of the 1976 Rent Edict relevant to these proceedings with those of the Increase of Rent and Mortage (Restrictions) Act 1920-herinafter referred to simply as the Rent and Mortgage Act, 1920-“(relevant to the nature of the interest of a tenant of a “dwelling-house” holding over after the expiration of his contractual tenancy) and, consequently, to hold, as, indeed they (their Lordships of the Court of Appeal) did, that following the case of Hiller (Supra) a limited liability company cannot become a statutory tenant under our law-Edict No. 9 of 1976. The provisions of the said Edict, particularly sections 1 (1), 15 and 18 thereof, are, indeed, very clear and unambiguous and must be interpreted by firstly being given their ordinary and grammatical meaning within the con of the scheme of the entire Edict and not, by firstly praying in aid judicial comments, in England, on the provisions of sections of the Rent and Mortgage Act, 1920 which are not in pari materia with the provisions of the 1976 Rent Edict.

It is contended for the respondents that if the definition of ‘tenant’ in section 40 (1) of the said Edict is to be given wide enough interpretation to include the appellants with whom the respondents have no contractual relationship whatsoever then the term must include “squatter” ; but it is further submitted that it would be wrong to do so since the expression “occupying” in the phrase,”…any person occupying any premises whether on payment of rent or otherwise… occurring in the definition of “tenant” in the said section must mean “lawfully” occupying [as was held by Abbott. J. in Akinosho v. Enigbokan and another (1955) 21 N.L.R. 99] a squatter cannot qualify as a “tenant” under the said Edict. Consequently, learned counsel contends on behalf of the respondent that since the appellants, after the expiration of their contractual tenancy, can no longer “lawfully” occupy the Flat at No. 17 Raymond Njoku Street, South-West Ikoyi, they cannot be tenants of the respondents any more than a ‘squatter’ can be. Finally, it is submitted that the said Edict, in any event, has no application to “tenancies under a lease or agreement for a fixed term”. The last submission not only overlooks the clear provisions of sections 15 and 40 (3) of the Edict, it also fails to take into consideration the scheme of the Edict.In the first place, the Edict seeks to regulate and control landlord and tenant relationship in all residential accommodation throughout Lagos State ; and it further seeks to restrict the recovery by the landlord from the tenant who is in residential occupation (i.e. under the Edict, the person in actual residential occupation,) of any accommodation to which the Edict applies; the Edict, therefore, seeks to provide personal security to the tenant, (i.e. the person) in actual residential occupation, in respect of his accommodation. Accordingly, by sections 12 and 3, the Edict invalidates any agreement which by Its terms or provisions seeks to preclude all tenants (to whom the Edict applies) from taking advantage of, or exercising, their rights under the Edict; and enjoins the courts to lean in favour of implementing the rights of the tenants under the Edict. Again, section 15 speaks of “the term or interest of any tenant of any premises, held by him at will or FOR ANY TERM either with or without being liable to the payment of rent” ; by the words in capitals in the foregoing quotation, the Edict unquestionably includes tenancies under a lease for a fixed term so long as they relate to residential accommodation (under section 1(1) of the Edict) : and, in any event, section 40 (3) of the Edict “applies to all leases”.

See also  T.O. Kuti V. Mrs S. Balogun (1978) LLJR-SC

The scheme of the Edict is that all residential accommodation must be controlled not only as to Rents payable therefore (see section 1(2) which authorizes the fixture of standard rent for various classes of accommodation and section (4) which seeks to compel the landlord to accept the fixed standard rent); and to provide the tenant with security of tenancy-see section 14 of the Edict. Finally, sections 15 and 18 of the Edict seek to restrict the recovery of premises from the tenant by the landlord unless he complies with provisions thereof. The effect then is that when the contractual tenancy expires, the landlord must, until the provisions of sections 15 and 18 of the Edict have been complied with and a judgment obtained by him in conformity with section 25 of the Edict, accept his erstwhile contractual tenant as a statutory tenant. The scheme of the Edict makes it clear that the statutory tenant must have come on the premises, in the first instance, “lawfully” ; and so a ‘squatter’ cannot qualify as a tenant under the Edict. In view of the foregoing observations, there is no question that the appellants, who occupy the premises concerned in these proceedings by a member of their staff in actual residential occupation of the residential accommodation, are at the time of the commencement of these proceedings statutory tenants of the respondents (their “statutory landlords). Incidentally, it may be mentioned, in passing, that Exhibit “E” in these proceedings-the tenancy agreement or lease-by which the appellants first came on the premises concerned in this suit enjoins in clause 2 (vi)-the Tenants’ Covenant-that the tenants should use “the demised premises as private residence only” ; since the appellants-a limited liability company-cannot physically use the said premises for residence, it must have been in the contemplation of the parties that the use of the premises for residential purposes by the appellants must be by their proxies. As earlier stated, there is evidence to the effect in the court of trial (see paragraph 6 of the unchallenged affidavit of Gobind Hotohand Mahtani, the Managing Director of the appellant company sworn to on 8/11/78 that the appellant’s Managing Director “was in residential occupation” of the premises concerned in this suit. In those circumstances, it seems to me, quite apart from the legal definition of the term ‘tenant’ in section 40 (1) of the 1976 Rent Edict, indeed, idle to argue that the appellants cannot qualify as statutory tenants because Hiller’s case (Supra) has so decided in England.

Having held that the appellants are statutory tenants, it follows that they are entitled to notices prescribed in section 15 of the Edict and any claim against them for recovery of possession of the premises concerned in these proceedings must be before a tribunal set up under the Edict (sections 18) (1) and 2 of the Edict refer). It follows, therefore, that pursuant to the provisions of section 34 (1) of the said Edict, the High Court of Lagos State has no original jurisdiction to entertain the claims in this suit. Accordingly, I agree with my learned brother Obaseki, J .S.C. that this appeal succeeds and the judgment of the Federal Court of Appeal in FCA/L/42/81 dated the 17th day of February, 1982 and, of the High Court in LD/322/78 dated the 3rd day of November, 1978 are hereby set aside. I endorse the order as to the claims and costs proposed in the lead judgment of my learned brother Obaseki, J .S.C.

A. N. ANIAGOLU, J.S.C.: I confess that I have had considerable difficulty in resolving this appeal in my mind, but on a closer and further study of the points in contention in the appeal, against statutory provisions, I agree with the conclusion reached by my learned brother, Obaseki, J.S.C., in his judgment which has just been read, the draft of which I was privileged to see before now.

My difficulties-and I suppose the difficulties of anyone coming at first glance, in contact with the facts of this appeal-arose as a result of the peculiar facts of the appeal.

The facts of the case have been clearly spelt out in the lead judgment of my learned brother, Obaseki, J.S.C.

From those facts, certain issues become readily apparent. For purposes of clarity, I shall itemize them as follows:

(i) There was no privity of contract between the plaintiffs and the defendants;

(ii) There was attornment of Tenancy;

(iii) The tenant’s term was for a fixed period certain which determined in January 1977, while the plaintiffs bought the house in May 1977;

(iv) Between the determination of the fixed period in January 1977 and the purchase of the house by the plaintiffs in May 1977, the defendants had no estate in the property being, as a matter of general law, tenants at sufferance and not squatters;(v) How far could the principle laid down by the court of Appeal in England in Hiller v. United Dairies (London) Ltd. [1934] 1 K.B. 57 affect this case;

(vi) How far has Tenants’ protection afforded by Statute, by which the incidents of the general law are avoided, affected this case

(vii) The injustice suffered by the plaintiffs/Landlords in this case.

I shall deal with the above seriatim.

Under Privity of contract it is accepted, as a matter of general law, that apart from tenancies which subsist by virtue of Statute, a relationship of Landlord and Tenant is brought into being by an agreement between the Landlord and the tenant-an agreement which may be express, or implied from the acts of the parties, or from other circumstances. Hence a trespasser (which includes a squatter) has not the right of a tenant even if he may be physically in possession. From far off days, decided cases, among which are HEMMINGS AND WIFE v. STOKE POGES GULF CLUB [1920] 1 K.B. 720; JONES v. CHAPMAN (1847) 2 EX 803 at 821; and LOWS v. TELFORD (1876) 1 App. Cas. 414 at 426, had established the right of the owner of the property as against a person who was adversely in possession.

In HEMMINGS, the view of Erskine, J. in NEWTON v. HARLAND 1 Sc N.R. 497 that:

“…..No action for trespass quare clausum fregit will lie at the suit of a tenant against the landlord for a forcible entry after the expiration for the term” was approved, the principle being based upon the sound reason that:

“the plaintiff, having no title to the possession as against his landlord can have no right of action against him as a trespasser, for entering upon his own land, even with force;……

There never was a relationship of Landlord and Tenant, under the general law , between the appellants and respondents.

The term of the appellants had determined in January 1977 and the respondents who became seized of the property in May 1977, absolutely refused to have the appellants as their tenants upon the expressed reason that they required the property for their own use, they being in tight accommodation difficulties, although the appellants persistently requested of the respondents to be accepted as tenants.

Obviously, and upon the facts established in this case, there was Attornment of Tenancy by reason of the fact that the appellants acknowledged the landlordship of the respondents over the property after they bought it in May 1977. The attornment here, like in the old case of CORNISH v. SEARELL (1828) 8 Band C 471 at 436 per HOLROYD, J. (see Hill and Redman’s Law of Landlord and Tenant, 16th Edition, p. 8), lies in the appellants, [by their request to pay rents to the respondents (see Exhibits B, C, and D)], putting the respondents in the place of the original landlord who initially put them into possession.

But, as I have already stated, the appellants’ term was for a fixed period-a period certain. At common law, a lease or tenancy for a fixed period automatically determines when the fixed period expires, or if made determinable upon the happening of some event within that period (e.g. death), then the lease automatically ended when the event happened. There are admittedly, some exceptions provided by Statutes, and important one of which is in the case of the Rent Acts under which a tenant is entitled to remain in possession, after the expiry of the term, as a statutory tenant. In such a case, the tenant is specifically protected from being affected by the general law, by special enactment of the legislature. The rigors of the common law are, in such a situation, mitigated by special statutes.

Examples are afforded by those cases in England which came for a determination during, and at the end, of the First World War when residential houses were difficult to come by owing to the then prevailing war conditions, and when special provisions were made by the increase of Rent and Mortgage Interest (Restrictions) Act, 1919. Thus, possession was refused by Astbury, J., in ARTISANS, LABOURERS AND GENERAL DWELLINGS CO. LTD. v. WHITAKER 1919 2 K.B. 301 even though the tenant had himself given notice to quit.

Again, under general law, between the date of the determination, in this case, of the fixed period in January 1977 and the purchase of the property by the respondents in May 1977, the defendants had no residual estate in the property, being, in respect thereof, tenants at sufferance. Tenancy at sufferance, we know, is a precarious tenancy, requiring no notice to determine it, the Landlord being at liberty to enter any time (THUNDER WEAVER v. BELCHER (1803) 3 East 449). Lord Arbinger, C.B., was of the opinion that trespass would lie against a landlord who turned out his tenant at sufferance without notice, but that the landlord immediately on entry would be lawfully in possession (JONES v. CHAPMAN, (1847)2 Exch. 803).Ex.ch.

Mr. Molajo, S.A.N. had strenuously argued, on behalf of the respondents, that the principle laid down in England in HILLER v. UNITED DAIRIES (LONDON) LTD. (1934) 1 K.B. 57 applied to this case in that a company, not being and therefore incapable of physically occupying a premises, could not be a statutory tenant and therefore could not claim the benefit of a statute which protects a tenant who is holding over at the expiration of his term. Without the necessity of going into the question whether a limited liability company can generally occupy premises (and frankly one cannot readily see the reason why not), one can easily see that HILLER’S case was decided upon the special wordings of an English statute, namely, the Rent and Mortgage Interest Restrictions Act, 1923, which gave protection in respect of a dwelling-house. The principle of their decision may better be gathered from the opinion, on the case, of Slesser, L.J., who stated, inter alia, thus:

“In SKINNER v. GEEARY [1931] 2K.B. 546, Scr utton L.J. at the end of his judgment made it quite clear that before a tenant could avail himself of the protection for the Act he must show that the house or part of the house is in some sense his home.”

He further held that the Act could not apply to protect a tenant who was not in occupation of a house in the sense that the house was his home to which, although he might be absent for a time, he intended to return. He cited with approval the opinion of Goddard, J. (as he then was) in REIDY v. WALKER (1933) 2 K.B. 272 in which he said that:

“The court of Appeal lays down the proposition that before a person can become a statutory tenant his occupation must have an essentially domestic quality”,and concluded that if that be the test, it was evident that the company, the United Dairies (London) Ltd., could not have that domestic quality since it could not have a home and could not, in that sense, reside. Emphasizing this point, he referred to the comment of Lord Loreburn in DE BEERS CONSOLIDATED MINES LTD. v. HOWE (1906) A. C. 455,458 that “A company cannot eat or sleep”.

Basing his contention upon this reasoning, Mr Molajo submitted in his brief for the respondents that:

“Both the Recovery of premises Law and the Rent Control and Recovery of Premises Law make OCCUPATION the test of the relationship of landlord and tenant where there is no contractual tenancy subsisting. A limited liability company cannot “occupy” and therefore it cannot be a statutory tenant after the expiration of the contractual tenancy. It is submitted that both these laws’ did not make possession the test but OCCUPATION. A person can be in possession by his tenants or agents, but the term “to occupy” means physical occupation. See Hiller v. United Dairies (London) Ltd. (1934) 1 K.B 57. This case was decided on the construction of Increase of Rent and Mortgage Interest Restriction Act 1920. The act speaks of ACTUAL POSSESSION which I submit means physical occupation. Actual possession is the prerequisite of statutory tenancy. See Landlord and Tenant Vol. 2 by woodfall page 1460 paras. 2637 and 2764.”

With my appreciation of the circumstances of the respondents who appeared done in by the appellants in this whole transaction, I was at first almost taken in by Mr. Malojo’s contention. His argument, however, in the ultimate, is specious.

It is necessary to look at our own statute with a view to determine whether the reasoning in HILLER’s case can, in anyway, be applied to our circumstance.

The starting point in the argument in favour of the appellants is that the statute applicable, is the Lagos State RENT CONTROL AND RECOVERY OF RESIDENTIAL PREMISES EDICT 1976, section 1 (1) of which provided that:

“This Edict shall apply to all residential accommodation throughout Lagos State”, and section 40 (3) of which makes the Edict applicable to all leases. The premises involved in this case is one situated at “17 Raymond Njoku Street, South-West, Ikoyi, Lagos” and both parties agree that it is a residential premises, demised as such, or terms similar to the Deed of Lease, Exhibit E. Being therefore a residential accommodation, it is subject to the 1976 Edict aforementioned and to its incidents, section 12 thereof having specifically precluded parties from contracting out of it and making any such agreement void. Section 38 (1) has repealed the Rent Control Law while subsection 2 thereof has repealed the Recovery of Premises Law.

“To the extent that it relates to accommodation in residential premises.”

Both the terms “Landlord” and “Tenant” are defined in section 40 (1) of the Edict as follows:

“Landlord” in relation to any premises means the person entitled to the immediate reversion of the premises or if the property therein is held in joint tenancy or tenancy in common, any of the persons entitled to the immediate reversion and includes

(a) The attorney or agent of any such landlord ; or

(b) Any person receiving (whether in his own right or as an attorney or agent) any rent from any person for the occupation of any accommodation in respect of which he claims a right to receive the same”;

“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”;

From the above, it follows

(a) that the respondents, although not receiving any rents from the appellants having refused the same, are, none-the-less, LANDLORDS, being entitled, by reason of their purchase of the property, to the immediate reversion of the premises”: and

(b) that the appellants are TENANTS by reason of their occupying the premises, “whether on payment of rent or otherwise”.

This immediately brings to mind the position of squatters who, obviously, come under the classification of persons occupying any premises. But by the provisions of Section 15 of the Edict (with which I shall deal shortly) which require the tenant to have a “term or interest” in the premises-a requirement which a squatter qua squatter cannot satisfy-a squatter is not, in the contemplation of the Edict, a tenant.

I have given close thought to the fact that the present appellants’ “term or interest” had expired in January 1977 and that by May 1977 when the respondents bought the property, they had no “term or interest”, such, as in the estate and it could be argued that as at that date they were not tenants.

The answer lies in the fact that as at that date:

(a) They were in possession of the premises; and

(b) they had a lingering interest in the estate (albeit, not legal estate) into which they initially lawfully entered, being possessors thereof.

Therefore, by reason of the foregoing:

(a) the premises, being residential premises, within Lagos State, is a premises to which the Edict applies (S.1);

(b) the relationship of the appellants and the respondents is one of Landlord and Tenant-not under general law but-within the meaning of the 1976 Edict by reason of the definitions of those terms in section 40 of the Edict ;

(c) “Occupation” in the con of the 1976 Edict, is equivalent to possession.

But even if the appellant-company, is a legal company, does not by itself, physically occupy the premises which is physically occupied by one of its servants, namely the manager, the situation is still covered by section 15 of the Edict which also caters for a situation where, in the words of the section, “such tenant does not actually occupy the premises or only occupy a part thereof”

Section 15 reads:

“15. When and so soon as the term or interest of the tenant of any premises, held by him at will or for any term either with or without being liable to the payment of any rent, shall have ended or shall have been duly determined by a written notice to quit as in Form B, C or D, whichever is applicable to the case, or otherwise such tenant, or, if such tenant does not actually occupy the premises or only occupies a part thereof, any person by whom the same or any part thereof shall then be actually occupied, shall neglect or refuse to quit and deliver up possession of the premises or of such part thereof respectively, the landlord of the said premises or his agent may cause the person so neglecting or refusing to quit and deliver up possession to be served, in the manner hereinafter mentioned with a written notice as in Form E signed by the landlord or his agent of the landlord’s intention to proceed to recover possession on a date not less than seven days from the date of service of the notice.” follows from this section that a tenant:

(i) Whether at will, or

(ii) For any term, with or without payment of rent

(iii) Who does not actually occupy the premises or only occupies a part thereof

(iv) Whose term shall have ended, or

(v) Whose term shall have been duly determined by a written notice to quit, or

(vi) Whose term shall otherwise have been duly determined

(vii) Who shall, by himself, or by any person actually in occupation, neglect or refuse to quit and deliver up possession of the premises or of such part thereof respectively shall be liable to be served by the landlord or by his agent, in the manner proved, with a notice as in Form ‘E’, signed by the landlord or his agent, of the landlord’s intention to recover possession on a date not less than seven days from the date of the service of the notice.

In contrast to the provisions of the 1976 Edict which deal with residential accommodation and by which, upon the foregoing analysis, a tenant is in occupation (equivalent to possession), the English Act, namely, the Rent and Mortgage Interest Restrictions Act, 1923, which amended the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (see: Section 4 of the 1920 Act), upon which Hiller’s Case was decided, dealt with a “dwelling-house” occupied as a residence. And so, Hiller was decided on the special provisions of the English Act and is not of much help in the instant appeal. More relevant to our present circumstance and to the instant appeal is the case of DAWODU v. IJALE (1946) 12 WACA. 12 whose facts are much akin to the present case. In that case the UAC was let premises in Lagos for a term of years. This was before the enactment of the Nigeria Defence (Increase of Rent) (Restriction) Regulations. 1942 (Regulations 59 of 1942) on 1st July 1942. The UAC lawfully sub-let part of the premises to the defendant on a monthly tenancy. The term of the lease expired at the end of December 1942. The UAC yielded up the premises and proceeded to obtain a new lease of the premises excluding the portion held by the sub-tenant who remained in occupation. the UAC had written to the sub-tenant asking him to make his own arrangements with the landlord for the portion he occupied. The landlord was not prepared to have the sub-tenant and wrote to him to quit. Like in the present appeal, the sub-tenant replied that he would quit but was looking for somewhere to move to. He paid his rent to the Rent Assessment Board to the credit of the landlord.

As he was several months still in occupation, the landlord sued him for possession, arguing, before the Magistrate’s Court, that the sub-tenant became a trespasser as from the expiration of the UAC lease and that the Increase of Rent (Restriction) Regulations, 1942 did not apply. For the subit was argued that the Regulations did apply to the sub-tenancy and that the sub-tenant was protected by it, and could not be dispossessed except in accordance with its provisions. The West African Court of Appeal held that where a sub-tenant, lawfully in possession, held over after the determination (by expiry or otherwise) of his term, he became by virtue of the 1942 Regulations, a statutory tenant, notwithstanding that there never was privity or contract between him and the original landlord and that a statutory tenant had no estate or property and could only be a trespasser if his original possession had not been lawfully obtained. That case appears to be on all-fours with the present appeal.

I pause now to turn to the pleadings. The Court of Appeal, in my view, rightly referred to the appellants’ inadequate traverse of paragraph 13 of the statement of claim which alleged that the appellants were not tenants either to the respondents or to the respondents’ predecessor-in-title. Relying on the decision of this court in Messrs Lewis and Peat v. Akhimien (1976) 7 S.C. 159 at pages 163-164, the Federal Court of Appeal held that the said paragraph 13, not having been specifically denied, must be deemed to have been admitted.

While subscribing to the inadequacy of the traverse to paragraph 13 as aforestated and the necessity for specific and categorical traverse, attention must be drawn to paragraph 4 of the statement of defence in which the appellants pleaded that:

“4. The Defendants deny paragraph 10 of the Statement of Claim but would contend at the trial that the requisite statutory Notice was not served on the Defendants before the Plaintiffs commenced this action. ”

The said paragraph 10 of the Statement of Claim, which is denied in the above paragraph 4, alleged that the appellants refused to give up possession of the property despite several demands. And so, if the appellants denied paragraph 10 and pleaded that they were entitled to, but were not served with, the “requisite statutory notice”, they were “by necessary implication”.

(Lewis and Peat v. Akhimien (supra claiming to be tenants to whose benefit the provisions of the tenants’ protection Laws ensured.

Finally, it now remains for me to point out that oppressive as the situation may appear against the respondent-Landlords in this appeal, who had been unable to put the premises to the use for which they bought it since 1977, effect must be given to the law as found. Against the background of the harsh realities of accommodation difficulties in Lagos, the 1976 Edict appeared designed by the Lawmakers to give optimum protection to tenants in Lagos State, against eviction from their tenements, except upon clearly defined procedure which must be meticulously followed.

Having said so, the appellants may well ponder the inadvisability of using the provisions of an Edict, primarily founded upon a desire to do justice, as an engine of injustice and oppression against their Landlords. it was an Edict designed to protect and do justice to tenants. In so doing, it was not intended that its provisions should be manipulated by tenants for infliction of hardship upon landlords.

My Lords, I had set out to write this judgment in the feeling, that I might not agree with the judgment of the majority in this appeal, based upon my revulsion at the sense of injustice disclosed by the facts and circumstances of this case on appeal.

Clearly, I had set out to find against the appellant and hereby bemoan my inability to do so. However, upon a calm view of the law, the result is inevitable. And so, although we have steered different boats from different directions, we have ultimately arrived at the same shore.

I agree that this appeal should be allowed on the grounds that the Rent Control and Recovery of Premises Edict. 1976, which is applicable to this case was not complied with as to Notice, and that the proper forum for adjudication was the Tribunal under the Edict and not the High Court of Lagos. Accordingly, the judgments of the Federal Court of Appeal and the High Court are hereby set aside and, in lieu thereof, judgment is hereby entered for the defendants. The Plaintiff/ Respondents’ claim is accordingly struck out with costs to the appellants which I assess at N300.00.

M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Obaseki, J.S.C. I agree with the reasons given and the conclusion reached by him. I have nothing to add.

Accordingly the appeal is allowed and the decisions of the High Court (per Oshodi, J) and the Federal Court of Appeal are herby set-aside. The respondents’ claim against the appellant before the High Court is hereby struck-out for want of jurisdiction. Costs are assessed in the judgment of my learned brother Obaseki, J.S.C. are awarded against the respondents.


Other Citation: (1982) LCN/2166(SC)

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