3PLR – T.O. AKINOSHO V. ENIGBOKAN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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T.O. AKINOSHO

V.

ENIGBOKAN

SUPREME COURT OF NIGERIA

13TH OCTOBER, 1955

LN-e-LR/1955/4 (SC)

OTHER CITATIONS

BEFORE: ABBOTT, J

BETWEEN

1. O. AKINOSHO

AND

1. LANDE ENIGBOKAN
2. ILISAU

REPRESENTATION

1. B. A. Coker for plaintiff.

Benson for defendants.

MAIN ISSUES

REAL ESTATE/LAND LAW – LANDLORD AND TENANT:-”Tenant” within meaning of Recovery of Premises Ordinance (Cap. 193) – The word “occupying” in the definition of “tenant”  – Whether means “lawfully occupying” so that a mere trespasser is not a tenant within the meaning of that Ordinance

REAL ESTATE/LAND LAW – LANDLORD AND TENANT:- Statutory requirement of service of notice – under Cap. 193 – Whether appropriate only where the occupier is by statute or at common law or by agreement, the acknowledged tenant of the person giving or authorising the notice

EMPLOYMENT AND LABOUR LAW:- Place of business – Possessory right over same – Whether attaches to an employee of the business who is not privy to the tenancy agreement – Whether employee is right person to proceed against in recovery of place of business

CHILDREN AND WOMEN LAW:- Women in business – Women and property – Assertion/Defence of interest in property leased for use as business premises – Right person to proceed against as tenant in occupation

PRACTICE AND PROCEDURE  – COURT:-  Proper person to sue in action for recovery possession of property – Shop – Whether extends to employee of person in possession

MAIN JUDGMENT

ABBOTT, J.:

In this case the plaintiff sues both defendants for possession of a shop at 68 Victoria Street, Lagos.

There is not a wide conflict as to the facts. In reality the only point is this: Is either of the defendants a “tenant” within the meaning of the Recovery of Premises Ordinance (Cap. 193)?

I will deal first with 2nd defendant. It emerged during his evidence that he is merely an employee at the premises and Mr Coker, for the plaintiff, concedes that he was not a proper person to have been sued. Admittedly, his status at the premises was never even hinted at, much less pleaded, in the Defence. Strictly speaking, therefore, I ought to disregard 2nd defendant’s evidence as to his employment, but I take the view that, if I am to give judgment for the plaintiff, it would be useless to do so against a person who could not carry it out. I therefore order that 2nd defendant be dismissed from the suit, but as his evidence before me was the first intimation of his status at 68 Victoria Street, I shall not award him any costs.

So far as 1st defendant is concerned, the bone of contention is, as I say, whether or not she is a “tenant”. To put it another way, is the 1st defendant in lawful occupation of the premises? The plaintiff says she is not: the 1st defendant says she is.

If she is a “tenant” within the meaning of Cap. 193, then she is entitled to the protection and sanctions imposed by the Increase of Rent (Restriction) Ordinance (Cap. 93) before she can be ejected, and the defence pleaded in para. 8 of the Defence is well founded.

In passing, I would observe that Cap. 93 does not say who is a tenant within the meaning of that Ordinance and I apprehend, therefore, that I must fall back on the definition in Cap. 193. which in part reads: ‘ “tenant” includes any person occupying premises whether on payment of rent or otherwise … At first sight, then, any person occupying premises is automatically a tenant thereof whether the landlord of those premises likes it or not. But, of course, that is not what the definition means. If it were, any person could trespass upon and occupy premises and, when objection was taken, claim the protection of Cap. 93 and the adoption of the procedure laid down by Cap. 193. That is manifestly absurd and statutes should not be construed so as to create absurdities.

In my judgment, the word “occupying” in the definition means “lawfully occupying”. I am supported in this view by the judgment of Lewey, J.A. (as he then was) in the West African Court of Appeal in Roberts v Samuel (1) where is found this paragraph:-”The material part of the statutory notice (under section 7 of Cap. 193) requires the tenant to quit and deliver up possession of the premises ‘which you hold of me as tenant thereof’: these words invest the notice with such a character that it is plainly a notice which the appellant could not have served, having regard to the evidence in this suit”.

It follows, as a corollary of that dictum, that the service of a notice under Cap. 193 is appropriate only where the occupier is by statute (e.g., section 4 of Cap. 93) or at common law or by agreement, the acknowledged tenant of the person giving or authorising the notice. Were that not so, another absurdity would be created. If a landlord had to serve such a notice on a mere trespasser, then the trespasser could claim that the notice acknowledged him as tenant-the very antithesis of the landlord’s contention.

I am fully satisfied, therefore, that Caps. 93 and 193, so far as occupiers of premises are concerned, apply only where those occupiers are in lawful occupation. The two statutes also do not apply where the person sued for possession is not in occupation of the premises: (see Roberts v Samuel (1).

I now have to determine, therefore, if 1st defendant is in lawful occupation of the premises. That she is in occupation is not challenged. Her Defence avers that she is lawfully in the premises but omits to say how she comes to be in that happy position. Her counsel referred me to section 4 of Cap. 93, but as this defence is nowhere pleaded, I declined to hear any evidence as. to 1st Defendant being a sub-tenant.

On the authority of Oloto v Administrator-General (2), I held that the defendant must begin. The only evidence in support of her case was her own and such of it as showed how she came to occupy the premises was very nebulous and certainly inadequate to enable me to say that her occupation of the premises is lawful. She produced a receipt for rent paid to the Rent Assessment Board because the plaintiff refused to accept it, but this cannot, of course, constitute her a tenant of the plaintiff.

True it is that, in the case of a yearly tenancy (which Mr Coker for the plaintiff, admits there was, when one T. O. Enigbokan (now dead) was let into possession of the premises) devolves, on the death of the tenant, upon his personal representatives to the extent that they take the same interest as the deceased had.

But 1st Defendant is not one of the personal representatives of T. O. Enigbokan.

On all grounds, therefore, I hold that the 1st Defendant has not discharged the onus which lies upon her of proving that her occupation of the premises is lawful.

There must be judgment for the plaintiff in the terms of his writ and the 1st defendant must give up possession of the shop at 68 Victoria Street, Lagos, within one month from to-day. She must also pay the costs which I assess at £31-10s-0d plus £25-8s-4d disbursements.

Judgment for plaintiff.