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NO. LD/105A/65.

3PLR/1966/87  (HC-L)





Esangbedo for Coker – for the Appellant

Bashua (with him Mrs Williams) – for the Respondents



APPEAL from Magistrate’s Court.


TAYLOR, C.J.:-The respondents, who were plaintiffs in the Court below let to the defendant/appellant vacant land at No. 28 Salu Court at a monthly rental of £ 1. The period of tenancy began sometime in 1951. The plaintiff claimed possession on the ground that the defendant was in arrears of rent for 9 months from July 1963 to March 1964. There was evidence led, and it is not in dispute that the defendant erected a house on the land and let the rooms out to tenants. Evidence was also led by the plaintiff that the whole structure of the house was of corrugated iron sheets. The plaintiff served the defendant with the normal statutory notices.


The learned Chief Magistrate in giving judgment for the plaintiffs, who will henceforth be called the respondents, came to two findings; inter alia, which have been made the subject matter of the two grounds of appeal argued in this appeal, and they are as follows:-


(1)     That in so far as the letting was of vacant land, despite the erection of a “shack”; the premises was properly described in the Notices as vacant land.


(2)     That the defendant, who will henceforth be referred to as appellant, was not a tenant in possession and as such was not entitled to the protection of the Rent Restriction Act. To my way of thinking, the most important issue here is whether the letting was, on the erection of the shack, converted into a letting of premises or whether it remained a letting of vacant land? The learned Chief Magistrate held that:


“Learned Counsel for the defendant submits that as the building on the land was erected to the knowledge of the Plaintiffs, the original letting has altered from that of a vacant land to that of a dwelling house and therefore the Rent Restriction Act. Cap. 183 must apply. He relies for this submission on the case of Jarinatu Kasumu v. Dorcas Ihironke, 14 W.A.C.A. p. 189.


In this, as well as in the authority cited, there is no evidence, to quote a passage from the judgment at p. 191 “that the land was let for a specific purpose such as a garden, a yard or a dump and I think therefore that the actual user at the time when possession is sought must be the governing factor.” This in my view, is the extent to which this case and the authority cited can be said to be similar.”


Having so held the learned Chief Magistrate then went on to refer to the unreported case of S. A. Okinowe and Anor. v. A. Y. Appea-Appeal No. LD/64A/63 of 20-9-63 and to say that:-


“In that case as in this one, a vacant land was let to the tenant who built on it and himself resides there. Action for possession was instituted against the tenant in the Magistrates’ Court, brought under the Rent Restriction Act and was dismissed. On appeal, Sir Clement Nageon de Lestang, the then Chief Justice of the High Court of Lagos stated “it is perfectly clear that the subject of the tenancy in this case was vacant land. Consequently, the Rent Restriction Act does not apply since it only applies to premises which are defined in the Act as including any dwelling house or other building.” I am satisfied that the Statutory Notices correctly describe the defendants holding and were duly served on him.”


I have been able to get a certified true copy of the proceedings in the unreported case above mentioned and the pertinent facts of the case were stated by the Magistrate as follows:-


“This rent claimed and owing however cannot give the Plaintiff possession as it is clear that what the plaintiffs predecessor in title gave to the defendant was an empty land for a rent of £3 per month and that it was the defendant himself who built the house thereon. The plaintiffs said the agreement between the testator whom they represent and the defendant was for the defendant to build a house on the land and set off the cost of building the house against the rent of £3 as it becomes due month by month, and that when the total cost of building has been set off the house was to revert to the Plaintiff.”


In that case the defendant build the house in May 1953 and the action for possession was not till some 10 years later. To say in the circumstances of that case that when a plaintiff sues for possession he must bring his claim outside the Rent Restriction Act because the subject of the tenancy was vacant land is a statement of fact and proposition of law I cannot accept. I have a most profound respect for the judgments of my very learned predecessor in office but in my view that decision runs contrary to the decision of the West African Court of Appeal (as it was then) in the case of Jarinatu Kasuma v. Dorcas Ibironke 14 WA.C.A. 189 and the case therein referred to of Wolfe v. Hogan 1949 1 All E.R. 570. In the unreported case not only was the vacant land let on the understanding that the defendant would build on it, which house was eventually to become the plaintiffs, but in addition to that the land with the building on it was being used for residential purposes at the time when possession was sought. It was a case with a stronger foundation than that of Jarinatu Kasumu v. Dorcas Ibironke. How then can it be said that the Rent Restriction Act did not apply ? In the case of Wolfe and Hogan 1949 1 All E.R. 570 at page 573. Evershed L.J. said that :—


“I turn to the terms of s. 12 (2) of the Act of 1920: ‘This Act shall apply to a house or a part of a house let as a separate dwelling’. ‘Let as a separate dwelling’ must refer to the subject of a contract of letting as a separate dwelling. If it is to be shown that premises come within that definition, prima facie, at any rate, as it seems to me, it must be shown that the two parties to the contract have let, on the one hand, and taken, on the other hand, the premises in question as a separate dwelling. That may be shown either by the terms of the bargain or, where one party has altered the user with the full knowledge of the other, by that other party accepting the changed position, so that there must again be implied a mutual consensus of the two parties to the contract in regard to the use. The vital fact here is that, though the tenant has used these premises for some time as a dwelling, the other party to the contract has had no full knowledge of that fact and for his part has not intended or contemplated any such user.”   –


In much the same words Lord Denning said at page 575 that:-


“A house or a part of a house originally let for business purposes does not become let for dwelling purposes unless it can be inferred from the acceptance of rent or otherwise that the landlord has affirmatively consented to the change of user.”


If the premises in question were originally let, as there can be no doubt it was, as vacant land in 1951, the important points are whether the landlord (1) agreed that the tenant shall erect a building or a shack on it or (2) if he did not originally so agree can he by his conduct of accepting rent or other conduct be said to have affirmatively consented to such a change of user ?


The learned Chief Magistrate said this:


“It is not in dispute that the vacant land was let to the defendant in 1951 and that to the plaintiffs’ knowledge, the defendant erected on it a dwelling house which is let out by him to tenants.”


He did not however go further to find whether by the respondents’ conduct they have affirmatively consented to such a change of user or whether at the time of letting it was contemplated that the appellant would so use the land. There was certainly evidence before him on which, if believed, he could have come to a decision on this point; for the appellant said this under cross-examination:-


“I did not obtain a written permission of the plaintiffs family to erect the building on the land but the head of the family then in 1951 permitted me to do so.”


When one reads the judgment of the learned Chief Magistrate, and in particular the portion in which he held that the present case is similar to that of Jarinatu Kasumu v. Dorcas Ibironke because the use to which the premises were put at the time when possession was sought was similar and was the governing factor, one is a little puzzled by the later finding that the statutory Notices correctly described that holding.


There is however no finding by the trial Chief Magistrate as to whether the respondents have by their conduct affirmatively consented to such a change of user. I am, in view of this and the absence of evidence in chief or cross-examination of the respondents, who gave evidence through an attorney, sending this case back for the trial Magistrate to come to a finding on this vital issue. If he finds that the respondents had so consented then of course the statutory notices are bad and that is the end of the case. If he finds that there was no such consent then the notices are in order and of course the case is taken out of the provisions of the Rent Restriction Act and the previous order will stand.


The appeal is allowed to this extent and the order made in the court below is set aside. The question of costs in the court below will await the further proceedings, in which parties may should they so wish lead evidence on this sole issue. In this court the appeal having succeeded partially the appellant is entitled to his costs to be assessed.


Costs assessed at £,20-16s-1 ld inclusive in favour of appellant.


Appeal allowed: Order of Court below set aside: Case remitted to trial Court to come to a finding of fact.



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