Landlord and Tenant-Town Council Notice to demolish-Tenant refusing to quit-Landlord demolishing without Court order to evict-Increase of Rent (Restriction) Ordinance, sections 12 and 13 (1) (a), and second Schedule, para. (g).

   In the Court below the plaintiffs sued the defendants, who were their landlords, for trespass; the plaintiffs lost and appealed.

  The Town Council gave a statutory notice requiring the landlords to pull down the premises within a given time as they were a dangerous building, and a similar notice to the tenants, but they refused to leave. The landlords removed the roof and then demolished the walls though the tenants protested. The tenants sued for trespass. The view of the trial Judge was, in effect, that the landlords acted lawfully in evicting the tenants for the purpose, or in the course, of demolishing the premises under the notice. (The premises were admittedly premises to which the Restriction Ordinance applied.)

    In their appeal the tenants relied on the provisions of the Ordinance quoted above: (the relevant text is in the judgment infra; a landlord cannot evict without a Court order; he may have the order without proof of suitable alternative accommodation where there is an abatement notice which makes eviction indispensable, but the Court may impose a condition for the tenant's return later. The tenants argued that the landlords ought first to have gone to Court for an order of eviction based on the abatement notice.

  Held: As the premises were admittedly premises to which the Increase of Rent (Restriction) Ordinance applied, the landlords could not evict the tenants without an order of Court; the Town Council's notice of abatement did not affect the need for such an order, and the landlords were therefore liable for trespass.

   Case cited:-

(1) Smith v. Poulter, 1947, 1 K.B. 339. Appeal by plaintiffs (the tenants): No. 3613.

H. O. Davies for Appellants.

D. H. E. Teesdale for Respondents.

The following judgment was delivered:

Coussey, J.A. This is an appeal by the fourth and fifth plaintiffs from a decision of the Supreme Court, Lagos division (Gregg, ].) given on the 29th April, 1948, whereby the plaintiffs' claims for special damage and general damages in an action for trespass to premises at No.4, Tinubu Street, Lagos, were dismissed.

    The facts are that at the relevant time the defendants had become the Lessees of the premises and the landlords of the plaintiffs.

   On the 1st February, 1947, the defendants wrote to the plaintiffs informing them of their lease and that by its terms they, the defendants, had undertaken to demolish the existing buildings and to build on the site to suit their purposes. They pointed out that the buildings were overcrowded and in an unsanitary condition and that they would not continue the occupation of the plaintiffs to whom they gave notice to vacate and give up peaceable possession not later than the 31st March. [pg 107]

   This notice was not heeded by the plaintiffs nor acted upon by the defendants. On the 15th March, 1947, the Lagos Town Council, the local authority, delivered a notice to the defendants, pursuant to section 51 of the Townships Ordinance, now section 57 of Cap. 216, requesting them within four days to remove the premises in question which were deemed by the Council to be a dangerous building. The notice further warned the defendants that on failure to comply with the notice, the Council would take such steps as might be necessary to remove the danger and that the expense incurred would be recovered by the Council.

A notice of the same date and in the same terms addressed to the two appellants and others as occupiers, was explained to them by a building inspector of the Town Council who then posted the notice at the premises as the occupiers refused to accept service of it. It was also explained to them by the defendants' clerk on the 17th March.

The plaintiffs did not act in terms of the notice. They had told the clerk on March 17th that they had nowhere else to go to.

Between the 19th and 22nd March the defendants by their servants demolished the buildings, first removing the roof on the 19th and by the 22nd March demolishing the walls. The plaintiffs protested. They say they therefore did not remove their personal belongings from the rooms, that their goods were damaged, lost or destroyed and they claimed damages for trespass.

The defendants pleaded that they demolished the premises in compliance with the notice of abatement referred to. The learned trial Judge found that the premises, prior to their demolition, were in a dangerous and unsanitary state; that by reason thereof the Town Council issued the notice which complied with section 51, now section 57 of the Townships Ordinance, and which was duly served on the plaintiffs, that the plaintiffs had ample warning of the impending demolition and ample time to remove their effects. He further held that the duty devolved eventually upon the defendants to pull down the dangerous building. Inferentially, this is a finding that the defendants acted lawfully under the notice in evicting the plaintiffs for the purpose of, or in the course of demolishing the premises.

I entertain no doubt that if the officers or servants of the local authority had evicted the occupiers in terms of the notice for the purpose of removing the dangerous structure, as an organ of the Central Government, acting in the public interest for the protection of life and health, the Town Council would be immune from liability.

But so far as the defendants are concerned, the matter does not end there for it is necessary to examine whether they are protected by the notice under which they claim to have acted. As to this aspect of the matter, which was not dealt with by the learned Judge, reliance is placed by the appellants on sections 12 and 13 (1) and (a) of the Increase of Rent (Restriction) Ordinance (Cap. 93) and (g) of the Second Schedule thereto and it will be necessary to consider those provisions; but before doing so I wish to say, in justice to the learned trial Judge, that it seems to me that before him the learned Counsel who represented the appellants referred to (d) of the same Second Schedule which was inapplicable and thereby Counsel's other submissions on this point, and which have been made to this Court, may have been misapprehended.

Section 12 of Cap. 93 provides:-

•• From and after the 1st day of July, 1941, no landlord shall without the order of a court on special application thereto eject or apply to any court for any order for the ejectment of, or take any steps towards ejecting his tenant or sub-tenant from any premises to which this Ordinance applies."  [pg 108]

Section 13 (1) provides:-

•• No order or judgment for the recovery of possession of any premises to which this Ordinance applies or for the ejectment of a tenant therefrom shall be made or given unless the court considers it reasonable to make such order or give such judgment";

and one of the cases in which, without proof of suitable alternative accommoda­tion, an order may be made is Schedule II, (g):-

" ... where the premises are the subject of an abatement or similar notice issued by a public authority and compliance with the terms of such notice is only possible through the ejectment of the tenant:

" Provided however that the Court may impose a condition for the return of the tenant when compliance has been made with the terms of such notice. "

The appellants' main submission on this appeal, based on sections 12, 13 (1) (a), and para. (g) of Schedule II, is that these sections are to be read with the Townships Ordinance (Cap. 216) and that a landlord, or owner in the position of a landlord, cannot act upon an abatement notice to evict his tenant without seeking the interposition of the Court to order that possession be delivered up by the tenant for the purpose of enabling the landlord to comply with the notice of abatement.

In my opinion this argument must prevail. It is not disputed that the premises came within the Increase of Rent (Restriction) Ordinance as a dwelling house or other building in which people dwelt; and section 13 (1) (a), with its Schedule II (g) provides expressly for the circumstances that have arisen here, for the defendants' only ground for entry was the abatement notice. Their common law right was restricted by the Ordinance.

In providing, as the section does, that no order or judgment for recovery of possession or for the ejectment of a tenant from premises without proof of alternative accommodation may be made unless the premises are the subject of an abatement notice issued by a public authority which notice can only be complied with by the ejectment order, I think the Ordinance enjoins, I would say almost expressly enjoins, a landlord to apply for and obtain an order of the Court upon the notice of abatement, as well for his own protection as for the safeguard of the tenant's rights. These rights are recognised by the proviso to (g), namely that the Court may impose a condition for the return of the tenant later to the premises.

In my opinion, therefore, the above provisions of the Increase of Rent (Restriction) Ordinance are not swept away by a Town Council notice of abate­ment, the defendants do not attract any immunity by virtue of the notice, and there was a trespass by the defendants in evicting the plaintiffs without an order of the Court.

To illustrate the overriding importance ot' Rent Restrictions Legislation, I would refer to Smith v. Poulter (1), where it was held that it was the duty of the Court to consider the Rent Restrictions Act though not pleaded. A landlord acting upon an abatement notice of this nature, which involved the removal of tenants, should comply strictly with the conditions imposed by the legislature, for even after a tenancy has been terminated by notice to quit, expiration of term or otherwise, he cannot retake possession against the will of the tenant without an order or judgment of the Court, even to carry out a mandatory duty.

I apprehend that the defendants' answer to the Town Council in such a situation would be that they were taking all the necessary steps, diligently to

comply with the notice.

As regards damages, the plaintiffs did not prove the special damage claimed . [pg 109] .