FALAIYE OF lLAWE                                         Respondent.     

                                                                                   v.

                           OLOJA ADIN OF lLAWE                                    Defendant.

pg 64   Appeal Court, 8th May, 1941.

Appeal from Order of High Court.

Issue of W Tit in Magistrate's Court claiming possession--State­ment of Defence however raised issue of title to land thus ousting Magistrate's jurisdiction-Misconduct of Solicitor in obtaining issue of writ--Solicitor ordered to pay costs personally.

Held: Judge misdirected himself as under section 32 (b) of Protectorate Courts Ordinance issue of ~rit properly obtained. Costs paid by solicitor personally ordered to be refunded.

There is no need to set out the facts.

E. J. Alex Taylor for the Applicant-Appellant. No other appearance.

The following joint judgment was delivered:­-KINGDON, C.J., NIGERIA, PETRIDES, C.J., COLD COAST, AND GRAHAM PAUL, C.J., SIERR.A LEONE.

In this case the learned Judge in the Court below in the course of hearing an appeal from the Magistrate's Court came to the conclusion that the solicitor for the plaintiff had been guilty of misconduct in that he had as plaintiff's solicitor in the case caused

a writ of summons, claiming possession of a house and in the alternative damages, to be issued in the wrong Court namely the Court of the Magistrate of the Ibadan area.

'l'he exact words of the learned Judge are as follows:-

" In consequence of the unnecessary delay and expenses " to which the parties have been put by the issue of the writ " in a wrong Court, on the 6th May last I called upon .Mr Lambrou to show cause why he should not personally pay " the costs of the proceedings since the 22nd April, 1939, on " which date the Magistrate ordered pleadings."

In our opinion the learned Judge was wrong in holding that there had been anything wrong in the issue of the writ in question in the Magistrate's Court. In our view the claim in the writ was quite a proper one to be entertained by the Magistrate's Court provided it came within section 32 (b) of the Protectorate Courts Ordinance which is in the following terms:-

" In civil cases and matters every Magistrate's Court shall

"have the following jurisdiction:-

" In all suits between landlord and tenant for possession "of any lands or houses claimed under agreement or " refused to be delivered up, where the annual value or " rent does not exceed one hundred pounds;"

After pleadings were ordered by the magistrate the plaintiff's statement of claim was filed and from paragraphs 2 to 7 inclusive of the statement of claim it is clear that the claim was one by a landlord against a tenant for possession of a house claimed under agreement or refused to be delivered up. It is not suggested that the annual value or rent of the house was over £100.

So far as the writ and statement of claim are concerned it is clear that the Magistrate's Court had jurisdiction under the specific terms of section 32 (b).

It was not until the filing of the statement of defence that it appeared that there was raised any issue as to title to land or any interest therein so as to bring the case within the proviso to section 32 (b) and so oust the jurisdiction of the Magistrate's Court.

It follows therefore that the learned Judge's order upon Mr Lambrou to pay costs was based upon a material misdirection and therefore cannot stand. It is set aside accordingly, and it is ordered that the costs paid by Mr Lambrou be refunded to him.