J.L. OKU (APPELLANT)

v.

R.D. AWANAH (RESPONDENT)

(1961) All N.L.R. 116

Division: High Court of Lagos

Date of Judgment: 13th January, 1961

Case Number: Appeal No. LD/53A/60

Before: De Lestang, C.J.

Proceedings brought in magistrate's court under Recovery of Premises Ordinance, Cap 176, to recover from defendant premises subject to Rent Restriction Ordinance, Cap. 186. Plaintiff added a claim for general damages for breach of the tenancy agreement to his claim for possession, arrears of rent and mesne profits. Magistrate held that the addition of the claim for damages invalidated the plaint; and, further, that this addition raised the value of the suit beyond his pecuniary jurisdiction. Magistrate non-suited the plaintiff. Plaintiff appealed.

HELD:

(1) A claim for general damages cannot properly be joined with a claim for possession, arrears of rent and mesne profits brought under the Recovery of Premises Ordinance. The Recovery of Premises Ordinance provides a special procedure for recovery of premises and allows the joinder of a claim for rent and mesne profits in such proceedings, but does not contemplate the joinder of a claim for general damages, and Order II, rule 9(1) of the Magistrates Courts (Civil Procedure) Rules does not apply to such Proceedings. Such joinder is an irregularity which could lead to the claim for damages being struck out or to the entire claim being dismissed, depending on the attitude of the plaintiff. Had plaintiff either abandoned the wrong claim or applied to amend, Magistrate could proceed with rest of the claim. Plaintiff insisted that he was entitled to join the claims under the Rules and did not apply to amend. The claim was not invalidated by the wrong joinder; but the plaintiff was properly non-suited having regard to plaintiff's stand.

(2) To ascertain whether Magistrate has jurisdiction, the amount claimed for rent and mesne profits should not be added to the annual value of the premises, the subject matter of the claim for possession; as each claim is under a different head of jurisdiction.

Appeal dismissed.

Ordinances referred to:-

Recovery of Premises Ordinance, Cap. 176, Schedule Forms F. and G.

Rent Restrictions Ordinance, Cap. 186.

Magistrates' Courts (Lagos) Ordinance, Cap. 113, section 14.

Orders and Rules referred to:-

Magistrates' Court (Civil Procedure) Rules, 1956, Form I, Appendix I; Order II, rule 9(1).

Ojosipe for Appellant.

Sikuade for Respondent.

De Lestang, C.J.:-This is an appeal from the decision of the magistrate's court non-suiting the plaintiff. The plaintiff instituted proceedings under the Recovery of Premises Ordinance (Cap. 176) to recover premises of which the defendant was the tenant and to which the Rent Restrictions Ordinance (Cap. 186) applies, on the ground of arrears of rent and breach of tenancy agreement. He also claimed arrears of rent, mesne profits and general damages for breach of the tenancy agreement. The proceedings commenced with the filing of a plaint in Form F of the Recovery of Premises Ordinance to which the plaintiff added a claim for damages. There was also filed in addition a praecipe for a plaint in Form I of Appendix I of the magistrates' court (Civil Procedure) Rules, 1956. The Registrar issued a summons in Form G of the Recovery of Premises Ordinance, to which was annexed a copy of the plaint, but which did not otherwise expressly refer to the claim for damages. No ordinary summons which should follow a plaint under the magistrates' court (Civil Procedure) Rules was apparently issued.

The learned Magistrate held in effect that the addition of a claim for damages in a plaint in Form G under the Recovery of Premises Ordinance invalidated the plaint. He also held that the addition of this claim raised the value of the suit beyond his pecuniary jurisdiction. He, however, non-suited the plaintiff without costs and one would have thought that the plaintiff would have been well satisfied with this treatment. But no, he appeals on the grounds (1) that a claim for damages may properly be joined with a claim for possession under the Recovery of Premises Ordinance and (2) that the joint claims do not exceed the Magistrate's Jurisdiction.

As regards (1) the position is far from clear but I incline to the view that the appellant's contention is wrong. It is true that Order II, rule 9(1) of the magistrates' courts (Civil Procedure) Rules provides that a plaintiff may unite in the same plaint several causes of action subject to the court ordering separate trials. This rule, however, refers to a plaint prescribed by the rules and does not in my view apply to a plaint prescribed by another law. The Recovery of Premises Ordinance provides a special procedure for the recovery of possession of premises; it provides for claims for arrears of rent and mesne profits but it does not contemplate the joinder of any claim for damages which are outside the scheme of the Ordinance. In my view the addition of such a claim to a plaint for possession under the Ordinance is an irregularity which could lead either to the claim for damages being struck out from Form F or to the whole claim being struck out depending on the attitude of the plaintiff. Had the plaintiff either abandoned the wrong claim or applied to amend it would have been right for the magistrate to proceed with the rest of the claim, but in the present case he insisted that he was entitled to join the claims and did not apply to amend. And, although I do not agree with the learned Magistrate's view that the summons was invalidated by the wrong joinder, I consider that having regard to the stand of the plaintiff he was entitled to non-suit him.