3PLR – JOHN HOLT & COMPANY (LIVERPOOL) LTD V. KALIFE TRANSPORT AND MR. S. A. KALIFE

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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JOHN HOLT & COMPANY (LIVERPOOL) LTD

V.

KALIFE TRANSPORT AND MR. S. A. KALIFE

HIGH COURT, LAGOS

26TH APRIL, 1966

3PLR/1966/79  (HC-L)

BEFORE:

SOWEMIMO, AG. C.J.

 

REPRESENTATION

Kushimo – for the Plaintiffs/Appellants

Egbeyemi – for the Defendants/Respondents

 

MAIN ISSUES

REAL ESTATE

PRACTICE AND PROCEDURE

APPEAL from Magistrate’s Court.

APPEAL No. LD/IOA/66.

 

MAIN JUDGEMENT

SOWEMIMO, Ag. C.J.:-

This is an appeal against the judgment of the learned Magistrate, Mrs Okunuga, dismissing an application for possession of a vacant land.

 

It is not in dispute that the 2nd respondent is the owner of the business known as the Kalife Transport. It is not in dispute further that either the first or 2nd respondent was atoned to the plaintiff as landlord.

 

When this case was heard in the lower court, the claim for possession was based on determination of the tenancy which was yearly.

 

In arguing the appeal before me 5 grounds were filed. On the first ground Counsel for the appellant submitted that the trial Magistrate erred in law in not making an order for possession in favour of the plaintiffs since she had held that the Rent Restriction Act did not apply to this case. The contention of Counsel is that under the Rent Restriction Act there are certain restrictions placed on the landlord in which he had to prove the contrary in order to obtain possession under the Act, one of which is unreasonableness and the other hardship.

 

The learned Magistrate in her judgment had stated that the Rent Restriction Act did not apply to this case and therefore it is only the Recovery of Premises Act which applies to vacant land. The whole arguments both on this ground and grounds 2, 3 and 4 are based on a proper construction to be put on section 19 subsection 1 of the Recovery of Premises Act.

 

The learned Magistrate in her judgment stated inter alia:

 

“I have considered the whole evidence it is abundantly clear that the defendant in this case has shown “good cause” why an order should not be made against it, i.e., that it is a business concern and that the land is being used in the course of that business and also how the enterprise could collapse if an order is made. It is a matter of regret also that the plaintiff/company has shown by its attitude in this matter that it has no regard for what is fair, equitable or just, or what could be reasonable with regard to any party or person dealing with it, this is supported by the letter Exhibit “C” signed by J. W. Herbert, the Property Manager, offering this land with two adjacent pieces at £50 per month. This offer was made about two years before the issue of the writ. Even though the rule is “caveat emptor ;” but yet can this claim be said to be brought bona fide in this circumstance T’

 

Section 19 subsection 1 of the Recovery of Premises Act reads as follows:-

 

“If the defendant shall not at the time named in the summons or any adjournment thereof, show good cause to the contrary, then on proof-

 

(a)     of the defendant still neglecting or refusing to deliver up the premises; and

 

(b)     of the yearly rent of the premises; and

 

(c)     of the holding; and

 

(d)     of the expiration or other determination of the tenancy with the time and manner thereof; and

 

(e)     of the title of the landlord, if such title has accrued since the letting of the premises; and

 

(f)      of the service of the summons, if the defendant does not appear thereto, the court may order as in Form J, K or L, whichever is applicable to the case, that possession of the premises mentioned in the plaint be given by the defendant to the plaintiff either forthwith or on or before such day as the court shall think fit to specify.”

 

and the whole argument hinges on this, what is meant by “show good cause to the contrary T’

 

The learned Magistrate seemed to have held that apart from what was expected to be proved under section 19 subsection 1 (a)-(f), there must also be good cause shown. I think the learned Magistrate must have misconstrued this particular section. The section was taken from 51-52 Victoria Cap. 43 section 138 and all decisions to which my attention has been drawn on the construction of this particular section are based on the exercise of the discretion by the Court as to whether an order should take immediate effect or conditionally at any other time. There is no direct authority on the interpretation of the phrase “show good cause to the contrary.” I think it is only apt to say that in construing this particular section “show good cause to the contrary” the phrase must be read along with the whole section. It is not a condition precedent or subsequent that the tenant on showing good cause that an order for possession should not be made against him even if the plaintiff had proved all that is necessary under that section. A proper construction would be that if a tenant should prove that there had been non-compliance with any of the grounds stated under (a)-(f) of the section then he would be held to have “shown good cause to the contrary.” Because it would be meaningless to pick out the words “good cause” without the following words “to the contrary” being read along. If this had been done then the Magistrate would have asked herself what the words “to the contrary” meant. It must be contrary to something and on the construction of this section it could only mean contrary to the landlord being unable to prove all that is set out in section 19 subsection 1.

 

The learned Magistrate also had thought that under this section it was open to her to consider the question of motive. That again was a misconception of the law. I refer to the case of Sheffield Corporation v. Luxford 1929 2 KB 180 where it was held that the question of motive is irrelevant when deciding a claim for possession under section 138 of 51-52 Victoria Cap. 43 which I have earlier on remarked is the same as our section 19 subsection 1 of the Recovery of Premises Act.

 

Another ground which has been argued was the fact that the learned Magistrate was wrong in dismissing the claim against the 2nd respondent, who is the sole proprietor of the business known as Kalife Transport. The learned Magistrate would agree that under the Registration of Business Names Act 1961, which is No. 17 of the Laws of Nigeria page 865, she would on a correct interpretation of the provisions of that Act, realise that the 1st respondent not being a limited liability company and being an unincorporated association, does not exist as a person under the interpretation Act. It can not sue or be sued without disclosure being made as to the persons who form the firm or partnership.

 

There is no doubt that what payments were made to the Court in respect of rents in favour of the appellant, were made in the name of Kalife Transport. That does not create any legal personality in the first respondent at all. The effect of whatever payment is made only shows that someone has paid some money in favour of the appellant.

 

I agree with all the points raised by the learned Counsel for the appellant. I will set aside the order of the learned Magistrate in view of the fact that the plaintiff/appellant had proved all that he was required to under section 19 as was found by the learned Magistrate. I would order that possession be given to the plaintiff company on or before the 30th June, 1966. I award costs assessed at 10 guineas in favour of the appellant company.

 

Appeal allowed:

 

Order of trial magistrate set aside.

 

 

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