PAN ASIAN AFRICAN CO. LTD. V. NICON

• Pages: 293-325

PAN ASIAN AFRICAN CO. LTD. V. NICON



293

PAN ASIAN AFRICAN CO. LTD. V. NICON

5

PAN ASIAN AFRICAN COMPANY LIMITED



APPELLANTS

V

10 NATIONAL INSURANCE CORPORATION

(NIGERIA) LIMITED



RESPONDENTS

SUIT NO. SC 12/1982

SUPREME COURT OF NIGERIA

SOWEMIMO,



J.S.C.

15



IDIGBE,



J.S.C.

OBASEKI,



J.S.C.

ANIAGOLU,



J.S.C.

UWAIS,



J.S.C.

10th September, 1982

20

Land Law - Landlord and Tenant - Ejectment - Recovery of residential premises

in Lagos - Protection of defendant company as statutory tenants notwithstanding

absence of contractual relationship between parties - Failure of plaintiff (a) to

serve prescribed notices on defendant company prior to commencement of

25



action and (b) to bring claim in Rent Tribunal instead of High Court.

Practice and Procedure - Jurisdiction - Ouster of High Court's former jurisdiction

by Rent Restriction and Recovery of Premises Edict 1976 (now Law).

30



Words and Phrases - "Accommodation", "premises", "tenant" in Rent Control and

Recovery of Residential Premises Law 1976 of Lagos State - Subsection 40

- Construction.

ISSUES:

35



1. When is a residential premises in Lagos State not governed by the Rent Control

and Recovery of Residential Premises Law No. 9 of 1976?

2.

Whether a tenant who does not actually occupy the residential premises can

enjoy the protection of the law.

3.

Whether the notice of intention to proceed to recover possession must be

40



served on the occupier or the actual tenant.

4.

Can non-personal occupation by a tenant deprive him of protection from

ejectment under the law?

5.

When is a statutory tenant created and does it depend on the will or acceptance

or on the contractual tenancy with the landlord.

45



6. Is the absence of service of statutory notice fatal to a residential matter.

7. Whether a limited liability company (since it cannot occupy a house as its

residence) can lawfully claim the protection of the 1976 Rent Edict of Lagos

State.

FACTS

so



The plaintiff instituted the action in the High Court of Lagos, claiming possess-

ion of certain property occupied by the defendant, and

mesne profits

in respect

of the same. The learned trial Judge delivered judgment in favour of the plaintiff.

The defendants appealed unsuccessfully to the Federal Court of Appeal, which

dismissed the appeal, then appealed to the Supreme Court, contending that no

294

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NIGERIAN SUPREME COURT CASES

[1982] N.S.C.C.

notice to quit had been served on them, and being tenants within the definition

under the Rent Control and Recovery of Residential Premises Law they are entitled

to the protection of that law from ejectment except and unless such ejectment is in

accordance with that law.

HELD



5

1.

The Rent Control and Recovery of Residential Premises Law No. 9 of 1976 does

not apply to tenancies for a fixed term, or lease agreements.

2.

The Rent Control and Recovery of Residential Premises Law is enacted to

govern those in occupation of residential premises however, a tenant who does

not occupy the premises can enjoy the protection of the law.



10

3.

Notice of intention to proceed to recover possession may either be served on

the person in occupation, or on the tenant not in personal occupation of the

premises. In the case, no notice was served on either of them.

4.

Non-Personal occupation of premises does not deprive a tenant of his right to

protection from ejectment, under the Rent Control and Recovery of Residential



15

Premises Edict.

5.

The creation of a Statutory tenancy does not depend on the will or acceptance,

or contractual tenancy with the landlord. Anyone who occupies property

whether on payment of rent or otherwise, is a tenant under s.2 of the Recovery

of Premises Act Cap. 176 of 1958.



20

6.

The absence of service of Statutory notice is fatal to a residential matter.

7.

That the Edict contemplates both actual physical occupation by a tenant as well

as occupation by proxy, that is if a tenant does not actually occupy the premises

or only occupies part thereof any person by whom the same or any part thereof

shall then be actually occupied. Since a limited liability company cannot



25

physically use a premises for residence, it must have been in the contemplation

of the parties that the use of the premises for residential purposes by the

appellants must be by their proxies.

8.

The premises involved in this appeal is a flat used for private residential

purposes only and thus is not exempted from application of the Rent Control



30

and Recovery of Residential Premises Edict. The Statutory Notice to quit was

not served on the appellants, before the respondents commenced action.

Furthermore, the action was instituted in the wrong forum, the High Court having

no jurisdiction, since the establishment of the Rent Tribunal.

35

CASES REFERRED TO IN JUDGMENT:

1.

Shutter v. Hersh

(1921) 1 K.B. 483 at 448.

2.

American Economic Laundry Ltd. v. Little

(1951) 1 K.B. 400 at 406.

3.

Keaves v. Dean; Nunn v. Pellegrini

(1924) 1 K.B. 685 at 686.

4.

Roe v. Russell

(1928) 2 K.B. 117.



40

5.

Turner v. Watts

(1928) 97 L.J.K.B. 92 at 96.

6.

Hiller v. United Dairies (London) Ltd.

(1934) 1 K.B. 57.

7.

Wright v. Howell

(1947 92 S.J. 26 C.A.

8.

Phillips v. Clark L.J. C.C.R.

82 at 83.

9.

Haskins v. Lewis

(1931) 2 K.B. 14.



45

10.Feyereisel v. Turnidge

(1952) 2 Q. B. 29 at 30.

11.Akinosho v. Erigbokan & Anor.

(1955) 21 N.L.R. 88.

12.Sobamowo v. The Federal Public Trustee

(1970) 1 All N.L.R. 257.

13.1koya Properties Limited v. Nidogas Company Limited

(1976) CCHCJ 2123

at 2125.



50

14.Lewis & Peat v. Akhimien

(1976) 7 S.S. 157.

15.Attah v. Nnacho

(1965) N.M.L.R. 28 at 31.

16.

Chappel v. Electrical Trade Union

(1961) 1 W.L.R. 1290.

17.Mandillas and Karaberis Ltd. v. Larnidi Apena

(1969) 1 All N.L.R. 390.

18. Mansfield & Sons Ltd. v. Botchin

(1970) 2 Q.B. 612.

19.Meye v.

Electric Transmission Ltd.

(1942) Ch. 290.

20.Howard v. Shaw

(1941) 8 M. & W. 118.

21.

Wheeler v. Mercer

(1957) A.C. 416 at 425.

5



22. Ladies Hosiery and Underwear Ltd. v. Parker

(1930) 1 Ch. 304.

23.

Cooke v. Loxley

(1792) 5 T.A. 4

24.Achorne v. Gomme

(1824) 2 Bing 54.

25.

Cuthbertson v. Irving

(1860) 6 H. & N. 135.

26.Mackley v. Nutting

(1949) 2 K.B. 55 at 62.

10



27.

Tadman v. Henman

(1893) 2 Q.B. 168 at 171.

28.

Hall v. Butler

(1839) 10 A. & E. 204.

29.Doed Marlow v. Wiggins

(1843) 4 Q.B. 367.

30.Doed

Baiby v. Foster

(1846) 3 C.B. 215 at 229.

31.Stratford v. Syrett

(1958) 1 Q.B. 107.

15



32.Lewis Sons Ltd. v. Morelli (

-

'

948) 2 All E.R. 1021.

33.

Webb v. Austin

7 Man & G. 701.

34.Reidy v. Walker

(1933) 2 K.B. 266.

35.Skinner v. Geary

(1933) 2 K.B. 546.

36.Hicks v. Scarsdale Brewery

Co. (1924) N.N. 189.

20



37.

Lee v. K. Carter Ltd.

(1949) 1 K.B. 85.

38.Dawodu v. ljale

(1946) 12 W A.C.A. 12 at 13.

39.Strutt v. Panther

(1953)

1

Q.B. 397.

40.Hemmings And Wife v. Stoke Poges Gulf Club

(1920) 1 K.B. 720.

41.Jones

v. Chapman

(1847) 2 Ex 803 at 821.

25



42.Lows v. Telford

(876) 1 A.C. 414 at 426.

43.Newton v. Harland

1 Sc.N.R. 497.

44.

Cornish v. Searell

(1828) 8 B. & C. 471.

45.Artisans, Labourers and General Dwellings

Co.

Ltd. v. Whitaker

(1919) 2

K.B. 301.

30



46.

Thunder D. Weaver v. Belcher

(1803) 3 East 449.

47.De

Beers Consolidated Mines Ltd. v. Howe

(1906) A.C. 455, 459.

Mr. H.A. Lardner S.A.N.

(with him

Chief G. Shotayo-Aro and Mr. A. Adekoya)

for

the Appellants.

35



E.A. Molajo S.A.N.

(with him

Mr T.A. Molajo)

for the Respondents.

OBASEKI, J.S.C.

(Delivering the Judgment of the Court): The Pan Asian African

Co. Limited, hereinafter called the appellants, .were defendants

in

suit No. LD.

322/78 instituted by the National insurance Corporation Nigeria) Limited hereinafter

40



called respondents in the High Court of Lagos State holden in Lagos claiming in

the terms of the endorsement on the writ of summons:

"(1)



Possession of a flat occupied by the defendant, its servants or agents at

17, Raymond Njoku Street, South-West lkoyi, Lagos.

45



(2)



N9,000.00

mesne profits

in respect of the same from 1st January, 1977."

Pleadings were settled, filed and exchanged by the parties and the issues joined

went to trial before Oshodi, J.

At the conclusion of the trial in which both parties adduced evidence, the

50

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learned trial Judge delivered a considered judgment in favour of the plaintiff/re-

spondent. On the claim for possession, the learned trial Judge said:

PAN ASIAN AFRICAN CO. LTD. V. NICON

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