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COUSSEY, J.A.: The plaintiffs appeal from a judgment of the Supreme Court of the Lagos Judicial Division dismissing a claim by them jointly for general and special damages for trespass on premises at 52 Docemo Street, Lagos, which they claimed to be in their lawful occupation and, alternatively, for unlawful ejectment from the said premises or for wrongful attachment of their property by the defendants.
The claim was originally against two defendants. The first defendant was dismissed from the suit early in the trial on the admissions of the first plaintiff that the first defendant was not present on the premises and took no part in the acts of trespass alleged.
The following, briefly, are the facts leading up to the action.
The second defendant and respondent, who will be referred to as the landlord, is the owner of No. 52 Docemo Street, which comprises stores and rooms on the ground floor and rooms in the first storey.
By a Deed dated the 25th March, 1947, the landlord demised the building, with the exception of one room on the ground floor, to one Saimua for three years from the 1st April, 1947, with an option, which was duly exercised, for renewal of the tenancy for a further term of three years, subject to a covenant by the Lessee Saimua, “that the Lessee will not assign, transfer, underlet or part with the possession of the said premises or any part therefore or make any structural alterations to the premises without the previous consent in writing of the Lessor (but so that such consent not be unreasonably withheld)”.
In may 1951 the landlord discovered that the lessee, in breach of his convenant had sub-let the whole premises and gone out of occupation and that he had also removed a staircase without obtaining the landlords’s consent. Thereupon, after notice to him of the breaches, the landlord commenced proceedings in the Supreme Court against the lessee Saimua for forteiture of the lease and for recovery of possession of the premises. On the 13th November, 1952, the Court decreed forfeiture as prayed and ordered Saimua, the defendant in that suit, to deliver possession of the premises to the landlord on or before the 31st November, 1952.
The landlord was aware at the time of that suit that, at least the second plaintiff, was in occupation of part of the premises for he called him as one of his witnesses to prove the breach of covenant against under-letting.
It is inexplicable why the landlord did not join the under-tenants in occupation of the premises as defendants in his action against Saimua. The premises had not been lawfully sub-let to the under-tenants and they had not, therefore, become statutory tenants so as to be able to claim the protection of sections 12 and 14 of the Increase if Rent (Restriction) Ordinance. A judgment against them in that suit for possession might have avoided the events that sub-sequently transpired.
Saimua, the lessee, made no effort to comply with the order of the Court to deliver up possession. After judgment had been entered, he may well have regarded the action as a vain proceeding against himself for he had already underlet the whole premises for the rest of his term; he had no intention of going back into possession and he may have been unable to face up to the plaintiffs whose position he may have thought to be precarious on the possession.
After a delay of some days to obtain further directions when the bailiff found the plaintiffs and not Saimua in the premises, the bailiff, upon the express instructions of the Landlord’s Solicitor or Agent evicted the plaintiffs and members of their families from the premises.
In the judgment appealed from the learned trial Judge, in my opinion correctly, interpreted sections 4, 12 and 14 of the Increase of the Rent Restrictions Ordinance (Cap.93) as not affording the plaintiffs protection in their tenancies as the premises were not lawfully sub-let to them.-Dick v. Facques (1920) 36 T. L. R. p. 773 and Chapman v. Hughes (1923) 39 T.L.R. p. 260 decided on similar sections of the English Acts.
I disagree however with the conclusion of the learned Judge that the eviction of the plaintiffs was not unlawful.
Although the action against Saimua for forfeiture of the lease operated to determine the lessee’s interest and also the rights of the plaintiffs as under-lessess, the plaintiffs were not defendants to that action and therefore the judgment for possession of which they had no prior notice was not operative against them so as to warrant their eviction.
The learned Judge observed that in the absence of statutory protection the plaintiffs would clearly be in the position of trespassers and he held that the Recovery of Premises Ordinance (Cap. 193) did not assist the plaintiffs. In that Ordinance “tenant” is defined in section 2 (1) to include “any person occupying premises whether on payment of rent or otherwise”.
It is true that the plaintiffs were not paying rent to the landlord and that any rents they had paid to Saimua the lessee were in respect of voidable sub-tenancies, but they were still in occupation after execution of the Writ of Possession as persons whose occupation had commenced as tenants.
In construing the Recovery of Premises Ordinance it should be remembered that we are dealing with a special statute which places limitations on the common law rights of a landlord with the object of regulating the recovery of and restraining summary eviction from occupied premises. According to Halsbury Vol. 20 p. 344 “whichever form the restraint (against assignment or sub-letting) takes, an assignment in breach of the condition or covenant is not void. It is effectual to vest the term in the assignee but the lessor can treat the assignment as a cause of forfeiture, etc.,” as the landlord did in this case by suing the lessee to determine the tenancy.
This Court has held in Johnson Akpiri v. West African Airways Corporation, Civil appeal 3632, 17th November, 1952, that the word “occupying” in the definition supra must be given its ordinary dictionary meaning. In that case the appellant had agreed to operate a canteen and for that purpose was permitted to use premises without payment of rent. The trial Judge had held that there was no demise of any interest in land and that the appellant was a mere licensee. The Court of Appeal held that, being in occupation, he was a tenant as defined in section 2 (1) supra and that the steps provided for in the Ordinance should have been taken; the action in summarily ejecting the appellants was therefore unlawful. As has been observed already although the power of the lessee Saimua to grant a sub-lease was restrained, the under-leases which he made to the plaintiffs were effective to vest an estate, but defeasible by the landlord's exercise of his right of re-entry after notice to the plaintiffs.
Owing to the express provisions of the Recovery of Premises Ordinance applicable to Nigeria and the special and peculiar sense in which the expression ‘tenant’ is used therein, in my opinion no principle favourable to the landlord can be extracted from the cases of Williams v. Williams and Nathan (1937) 2 A.E.R. 559 and Barclays Bank v. Roberts (1954) 3 A.E.R. 107 which were cited by Mr Jibril Martin.
The landlord should have proceeded under section 7 of the Recovery of Premises Ordinance to give the plaintiffs a notice adapted to Form E, their terms having ended, of his intention to recover possession after a date specified and, if necessary, have thereafter issued writs for recovery against the plaintiffs. Having failed to do so he is liable in trespass to both plaintiffs by reason of Order II r. 29 (2) of the Rules made under the Sheriffs and Enforcement of Judgments and Orders Ordinance Cap. 205.
As to damages, which Counsel for the Respondent and Appellants agree should be assessed by this Court, the plaintiffs each failed to prove special damage.
The respondent however acted without the proper aid of the Court and under an erroneous claim of right. This is not a case for vindictive damages for there is no evidence of aggravation but, on the other hand, the trespass and eviction were wrongful acts for which the plaintiffs are entitled to some damages. Taking into consideration all the circumstances I would award each plaintiff the sum of £20. I would therefore allow the appeal, set aside the judgment of the Court below and enter judgment for the first plaintiff-appellant for £20 and for the second plaintiff-appellant for £20 and costs in the Court below to be taxed. The costs in this Court are allowed at £35-14s-0d.
Foster Sutton, P. I concur. Jibowu, Ag. C.J. I concur.
Appeal allowed. Judgment entered for plaintiffs.