Restrictive Covenant in Lease-Land to be used for residential purposes only-Misdirection on points of fact-Building 'used for prayers by many persons-A mosque is a place 1tsed for worship by Mohammedans and it is not necessary to prove dedication.

Held: That where a house is used by many persons for purposes of worship there is a breach of a clause in the lease that the house should be used for residential purposes only. Appeal allowed and case remitted to the Court below for the defence to be heard or for re-hearing if the same judge was not available.

The facts are sufficiently set out in the judgment.

J. F. Cameron for Appellant.

O. Alakija for Respondent.

The following joint judgment was delivered :-

BUTLER LLOYD, AG. C.J., CAREY AND BROOKE, JJ.

This appeal turns entirely on the meaning to be attached to a restrictive covenant in a lease in the following terms-

" The land to be used for residential purposes only.

In the Statement of Claim the plaintiff alleged that the defendant in breach of this covenant " has been and still is using the land for purpose~ other than residential-to wit as a mosque." ,

The defendant while stating in paragraph 4 of his defence that he has always used and is still. using the land for residential purposes, and in paragraph 5 that he has not converted the dwelling house into a mosque, admitted in the latter paragraph that he uses the sitting room "to perform his holy devotions together with members of his family."

At the close of the plaintiff's case defendant's Counsel submitted that no case had been made out for him to answer and the learned trial Judge gave judgment in his favour without calling upon the defence.

The material part of his judgment is as follows :-

•• It is quite clear that the premises in question are being used regularly for devout prayers by considerable numbers of people and that these people came on the invitation of the house holder and or his family .

•• There is no evidence that anyone other than one invited attends these prayer meetings. The evidence as to the use of the house as a residence is clear enough. I t is also clear that the entrance hall is mainly used for these prayer meetings.

•• I am unable to hold that for a resident to turn a large room in his house into a place where he can invite his family and his or their friends to worship-whatever the religion may be-constitutes a breach of a clause to use the house for residential purposes only."

The judgment involves three findings of fact namely-

1.That the premises are being used for residential purposes.

2. That part of the premises are being used for prayers by a considerable number of people.

3. That these meetings were only attended by invitees.

And one of law namely that these facts did not constitute a breach of the covenant to use the premises for residential perposes only.

Counsel for appellants now argues-firstly, that, even on his own findings of fact, the learned trial Judge was wrong in holding that there was no breach of the covenant, and, secondly, that in arriving at these findings he misdirected himself in several particulars and especially and in finding that the premises are being used for residential purposes, and-(b) that the prayer meetings were attended only by in vi tees and lastly that a proper finding of the facts the learned trial Judge must a fortiori have come to the conclusion that there had been a breach of the covenant.

We think that there is substance in all of these contentions and in particular that in view of the evidence of the defendant's own father that " the house has main hall and two rooms. They may be all used for prayer. When rooms not used for prayer we live and sleep in the two rooms" it was a serious misdirection to say that" the evidence as to the use of the house as a residence is clear enough." We think also that in view of the same witness's evidence that " any Mohammedan who wants to come to prayer may do so " coupled with the evidence of neighbours as to the numbers attending the meetings and in particular that of the witness Bassey that on one occasion 200 people attended, and that the average attendance was between 30 and 40 it was also a serious misdirection to say that " there is no evidence that anyone other than one invited attended the meetings."

There is the further most significant fact that in the defendants original building plan a " prayer hall" was included. It surely cannot be seriously contended that such an apartment is a normal adjunct of a dwelling house.

On a proper direction on these points we think that the learned trial Judge must have come to the conclusion that the building was being used substantially as a place of prayer and that it was open to all who chose to attend.

We are not impressed by the defendant's Counsel's argument that the word" mosque" in paragraph 4 of the Statement of Claim can mean only a place of prayer registered and dedicated as such, and that in the absence of proof of such registration and dedication the plaintiff must fail. In our opinion the word " mosque" must be taken to have merely its ordinary dictionary meaning namely a placed used for worship by Mohammedans.

In conclusion we think that the learned trial Judge was wrong in holding that no case had been made out for the defence to answer; the appeal must be allowed and the case remitted to the Court below for the defence to be heard, or for rehearing if the same Judge is not available.

The appeal is allowed with costs in this Court assessed at 15 guineas.

The order as to costs in the Court below set aside and the costs of the hearing and rehearing to abide by the result.