3PLR – KHIAMI V. SOETAN

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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KHIAMI

V.

SOETAN

FEDERAL SUPREME COURT OF NIGERIA

14TH JULY, 1960.

F.S.C.309/1959

3PLR/1960/60 (SC)

OTHER CITATIONS

 

 

BEFORE THEIR LORDSHIPS

SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided)

M.C. NAGEON DE LESTANG, C.J. High Court of Lagos.

MYLES JOHN ABBOTT, F.J.

PERCIVAL CYRIL HUBBARD, AG. F.J. (Read the Judgment of the Court)

JOHN IDOWU CONRAD TAYLOR, AG. F.J.

 

BETWEEN

  1. KHIAMI

AND

  1. ADEGUNLE SOETAN (As Executor and Trustee of the Estate of PHILLIP HENRYSON WILLIAMS (Deceased)
  2. T. A. ONI

REPRESENTATION

Mr. R. A. Fani Kayode (Mr. S.A.S. Sowemimo with him) -for the Ap­pellant.

Mr. H. A. Lardner – for the Respondent.

MAIN ISSUES

REAL ESTATELANDLORD AND TENANT: Recovery of premises – Tenants within the Recovery of Premises Ordinance – Persons entitled to claim protection under the Ordinance.

LANDLORD AND TENANT – Recovery of premises – Warrant for posses­sion – Issue of – Eviction by bailiff – Effect.

STATUTE – Recovery of Premises Ordinance – Scope and extent.

MAIN JUDGMENT

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

This is an appeal against a judgment of the High Court of Lagos dismissing the appel­lant’s claim for damages for trespass to his goods and for his unlawful eject­ment from 70, Clifford Road, Yaba.

The appellant was occupying these premises as a tenant, paying an an­nual rent, to one E. A. David. On 30th July, 1956, he was informed in writ­ing by a solicitor that these premises were the property of a third party, namely, the Trustees of the estate of Phillip H. Williams (deceased), by vir­tue of a judgment of the Federal Supreme Court delivered on 29th March, 1956, in Suit No. 271 of 1948, and he was told to leave the premises on or be­fore 4th August, 1956. He failed to do so, and on 25th October, 1956, a war­rant for possession of the premises, issued out of the High Court of Lagos, and reciting the judgment of 29th March, 1956, of the Federal Supreme Court, was executed by the bailiff. The warrant authorized the bailiff to give possession forth with to the plaintiff in the suit.

 

The appellant did not sue the bailiff, but only two other persons, one of whom was one of the Trustees of the estate of Phillip H. Williams, who had been given title to the premises by the Federal Supreme Court judgment, and the other, one Oni. The Trustee was not present at the execution of the warrant; Oni was present. The learned Judge found that neither the Trustee nor Oni made the bailiff his agent for the purpose of executing the warrant, and that, in any case, the bailiff had committed no irregularity in the course of the execution. He accordingly dismissed the action.

 

Only one ground of appeal was argued, which was that the appellant, being a “tenant” within the meaning of s.2(1) of the Recovery of Premises Ordinance, it was illegal to evict him unless judgment against him had been obtained under the provisions of that ordinance. It was not, in this Court, contended that he could claim the protection afforded by the provisions of the Increase of Rent (Restriction) Ordinance, since he had become a tenant of E.A. David only in 1952, while the action which resulted in the issue of the warrant for possession was commenced in 1948 (see s.14 of the Increase of Rent (Restriction) Ordinance). In support of this ground of appeal Mr. Sow­emimo, who appeared with Mr. Fani Kayode, for the appellant, cited the judgment of the West African Court of appeal in Okedare v. Hanid (15 W.A.C.A. 17). In that case A had let premises to B with a covenant against sub-letting. B. unlawfully sublet to C and D. A sued B and obtained an order for recovery of possession in the execution of which C and D were evicted from the premises. C and D sued A, claiming damages for trespass or, alter­natively, for unlawful ejection. The trial Judge dismissed their action. On appeal it was held that although C and D were not protected by s.14 of the Increase of Rent (Restriction) Ordinance, since the premises had not been lawfully sublet to them, yet they were “tenants” within s.2(1) of the Recov­ery of Premises Ordinance and could only lawfully obtain their eviction by proceeding against them under the provisions of that ordinance.

 

The present case is clearly distinguishable from Okedare v. Hanid. In the latter case the action, as the appeal judgment states, was one “for forfei­ture of the lease and for recovery of possession of the premises.” In the pre­sent case the action, as appears from the judgment of the high Court, was for a declaration of title and recovery of possession. After careful consideration of all the provisions of the Recovery of Premises Ordinance and of the forms in the Schedule thereto , I have come to the conclusion that all persons whose occupation of property had a lawful origin and who began their occu­pation of the property with the consent of someone who had at law power to give that consent are “tenants” who come within the protection of the ordi­nance. In the Okedare case the sub-lessees, although the sub-lease was a breach of covenant, nevertheless acquired an interest in the land until their head tenant’s lease was terminated, and the only way of securing their evic­tion was by proceeding under the ordinance. In the present case E.A. David, from whom the appellant held, was shown by the judgment of the Federal Supreme Court never to have had any interest in the property entitl­ing him to let it. The appellant, therefore, was, in relation to the Trustees of the Estate of Phillip H. Williams (deceased) “ab initio” a trespasser and therefore could not claim the protection of the ordinance.

 

In the result I would dismiss this appeal with twenty-two guineas costs to the respondents.

 

 

ADEMOLA, C.J.F.:

I concur.

 

 

DE LESTANG, C.J. (LAGOS):

I concur.

 

 

ABBOTT, F.J.:

I concur.

 

 

TAYLOR, AG. F.J.:

I concur.

 

 

Appeal Dismissed.

 

 

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