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12TH OCTOBER, 1959

F.S.C. 103/1959

                                                                                     3PLR/1959/3 (SC)





LIONEL BRETT, F.J. (Read the Judgment of the Court)









PRACTICE AND PROCEDURE – Actions – Action validly commenced – Subsequent change of defence making proceeding irregular – Effect.

PRACTICE AND PROCEDURE – Action for possession – Defendant as­serting in pleadings to be owner-At trial claiming to be a tenant – Effect.

LANDLORD AND TENANT – Recovery of premises – Section 2 of Recov­ery of Premises Ordinance – Definition of tenant.



BRETT, F.J. (Delivering the Judgment of the Court):

This is an appeal by the plaintiffs from a judgment of Coker, Ag. J., in the High Court of Lagos non-suiting their claim for possession of premises known as 3, Market Street, Lagos and for mesne profits from the 12th August, 1955. The appeal in respect of the claim for mesne profits was abandoned during the hearing, and must be dismissed, but with no order as to costs; the judgment that fol­lows will be concerned only with the claim for possession.

In the events that have occurred it is unnecessary to trace the title to the premises. It is now agreed that the father of the defendants was at one time the owner of the premises, and that eighteen years before his death he sold them and remained in possession as a tenant, paying rent to the owner. After his death in 1943 his children, including the defendants remained in posses­sion, but they have at no time paid rent. In 1955 the plaintiffs purchased the residue of a lease for a term of 50 years from the 21st January, 1953, the leasehold title having been registered under the Registration of Titles Ordi­nance in face of the opposition of the first two defendants. After purchasing the lease the plaintiffs demanded rent and the defendants refused to pay it, still asserting that they were the owners of the property. Thereafter the plaintiffs took out summonses for possession in the Magistrate’s Court under the Recovery of Premises Ordinance but these were withdrawn, and rightly: the definition of tenant in s. 2 of that Ordinance excludes a person occupying premises under a bona fide claim to be the owner of the premises, and right up to the time when they gave evidence in the present case the first two defendants were claiming to be the owners of the premises. However perverse this claim may have been, the defendants cannot now be heard to say that they did not make it in good faith.

A remedy under the Recovery of the Premises Ordinance not being open to them, the plaintiffs instituted the present proceedings against the first two defendants, and the third was later joined at his own request, the ground of his application being that his interest in the property would be ad­versely affected if he was not joined. At the time when the third defendant was joined the first two had already filed a statement of Defence in which they denied the title of the plaintiffs and claimed that they and their father’s other children were owners of the property. When the third defendant came to file his statement of defence he said that he could neither admit nor deny the plaintiff’s title. He did not claim to be the owner of the property and said that he was a tenant at will and that no rent had ever been demanded of him. After the first witness for the plaintiffs had given evidence, the first two de­fendants sought and obtained leave to amend their statement of defence. Without in the least abating their claim to be the owners of the property, they added a plea to the effect that if the plaintiffs were lessees of the pre­mises they, the first two defendants, were monthly sub-tenants in respect of the rooms occupied by them. When they came to give evidence they aban­doned their claim to title and expressed their willingness to pay rent to the plaintiffs.

The learned Judge non-suited the plaintiffs on the ground that by issu­ing summonses under the Recovery of Premises Ordinance the plaintiffs had treated the defendants as tenants, and that as the defendants had belatedly claimed the status of tenants, the plaintiffs could only proceed against them as such. It being accepted that the preliminaries to a claim under the Recov­ery of Premises Ordinance had not been carried out, and the Court being ob­liged by s.19 of the Increase of Rent (Restriction) Ordinance to give effect to the provisions of that Ordinance, including s.12, he held that the claim for possession must fail. In my view he was mistaken in this. The plaintiffs insti­tuted proceedings in a manner which was correct in accordance with the facts as they were at that time, and I am not prepared to hold that by a change of front made at the last possible moment the defendants can set up a purely procedural bar to the claim. Nor do I see any reason for differentiating in favour of the third defendant; he claimed the status of a tenant at an earlier stage of the proceedings than the other two, but I find it hard to believe that the reference to his interest in the premises in his affidavit in support of his application to be joined as a defendant, was concerned only with his interest as a tenant at will. He applied to be joined in the action in the form in which it was instituted, and he cannot now be heard to say that the procedure fol­lowed in instituting it was wrong.

On the view which I take of this case, it has been unnecessary to con­sider the applicability of the Increase of Rent (Restriction) Ordinance in cases where the original tenant has died. In England the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, makes special provision in S.12 (1)(g) for the protection of the widow of a protected tenant or of one other member of his family, and the decision Moodie v. Hosegood (1952) A.C.61 would apply, but the Ordinance contains no similar provision. The rights of the parties under the Ordinance might also have been affected by the fact that the father of the present defendants was in possession of the whole building, whereas his children appear to have divided it up and to have taken possession of one or two rooms each. We have not heard argu­ments on this aspect of the case and I have formed no opinion on it.


I would allow the appeal on the claim for possession and give judgment for possession against all three defendants with costs in the Court below, as­sessed at fifty guineas, and in this Court at sixty guineas.


ADEMOLA, F.C.J.: I concur.


MBANEFO, F.J.: I concur.


Appeal Allowed.



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