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Landlord and Tenant-Lease of land-Tenant building on land with landlord's knowledge-Landlord claiming recovery of premises-Increase of Rent (Restriction) Ordinance.

The appellant, originally the plaintiff, gave notice to the defendant, now respondent, under the Recovery of Premises Ordinance, of intention to apply to Court to recover possession, describing the holding as premises/rooms; and in the writ of summons the claim was for " possession of the room occupied by the defendant ". The plaintiff testified at the trial that her father hired out a vacant plot of land to the defendant, who built on the land; that her father allowed the defendant to remain on the land for 12 years, which had expired a year before; and that the defendant was her tenant paying so much per month. The defendant agreed that was so and invoked the Increase of Rent (Restriction) Ordinance as she was living in the premises and carrying on business there.

The trial Magistrate held that as the 12 years were up, the defendant ceased to be a tenant and was not entitled to the protection of the Ordinance. The defendant appealed to the Supreme Court.

In the Supreme Court the argument for the plaintiff was that the letting had been one of vacant land and the fact that the defendant was allowed to build and that the plaintiff accepted rent did not alter the letting from a letting of vacant land to a letting of premises as defined in the Rent Restriction Ordinance, which does not protect land without any buildings thereon. The Judge held that the point was what user the plaintiff and her father had contemplated in giving the land to the defendant, and thought it was clear from the evidence that the defendant had built with the landlord's knowledge and consent, and had regard also to the fact that the notice to deliver up possession described the holding as rooms, not as land. The Judge decided in favour of the defendant as a tenant entitled to protection under the Rent Restriction Ordinance, and the plaintiff, the landlord, now appealed to the \Vest African Court of Appeal, where the argument advanced for the landlord in the Supreme Court was repeated.

Held: The landlord was aware of buildings having been erected by the tenant on the land and even after the twelve years were up continued to accept rent, thus accepting the position that a monthly tenancy existed, the nature of which was acknowledged to be a tenancy of a dwelling house on the land, the premises being described in the landlord's notice before action and in the application for a summons not as land but as rooms; therefore the tenant was entitled to the protection of the Ordinance.

Case cited:-

(1) Wolfe v. Hogan, 1949, 1 All E.R. 570.

Appeal by the plaintiff, the landlord, from the Supreme Court's decision in an

appeal from a Magistrate: W.A.C.A. No. 3591.

F. R. A. Williams for Appellant. Mrs. Adebiyi for Respondent.

The following judgment was delivered:

Coussey, J.A. The wording of the Writ of Summons in this suit, which was commenced in the Magistrate's Court, Lagos, is for "possession of the room [pg189] Court had jurisdiction to grant the injunction, but the claim for damages being in excess of £50 it had no jurisdiction to entertain that part of the claim and he refused the application in respect of the injunction but made the order absolute directing that the proceedings be removed to the Supreme Court for the purpose of quashing that part of the judgment of the Native Court awarding damages for trespass.

The Native Court in question is a " Grade C" Court and its jurisdiction in an action for damages is limited by the Schedule to the Native Courts Ordinance to fifty pounds.

In the Court below and before us, the appellants' Counsel conceded that the Nsukwa Federal Court had jurisdiction to grant an injunction, but contended that the main claim was the one for £100 damages for trespass, that the claim for an injunction was ancillary to the main claim and the Native Court having no jurisdiction to entertain the claim for £100 damages for trespass, it had no power to hear evidence as to trespass and no jurisdiction to grant an injunction.

With those contentions I am unable to agree. The respondent was seeking two separate and distinct forms of relief and an injunction may be granted even though no damage has been caused: Jones v. Llanrwst Urban Council (1).

The proceedings before the Nsukwa Federal Court form part of the record on this appeal, and an examination of them, in my opinion, discloses that the main issue the Court was being asked to determine was the question as to which of the parties to the suit had the exclusive right to the user of that portion of the Iseye stream which was in dispute.

The respondent was asking for a perpetual injunction which is based on , final determination of the rights of the parties, and is intended permanently to prevent infringement of a right, and obviate the necessity of bringing an action! after every such infringement. In this case the respondent's claim for damage: for trespass depended upon his being able to establish his interest and therefore< his claim for an injunction and, in my view, was clearly the ancillary relief sought.

For these reasons I am of the opinion that Reece, J., was right in holding that the Nsukwa Federal Court had jurisdiction to grant the injunction. I would therefore, dismiss this appeal with costs.