S. O. NAYA (APPELLANT)
EMMANUEL A. WEY (RESPONDENT)
(1961) All N.L.R. 132
Division: High Court of Lagos
Date of Judgment: 28th March, 1961
Case Number: Appeal No. LD/2A/61
Before: De Lestang, C.J.
Appellant tenant appealed against (1) a magistrates' order granting possession to his landlord of certain premises occupied by him. (2) an order non-suiting his counterclaim for repayment of rent unlawfully increased.
Magistrate resolved the question of greater hardship in favour of the landlord, and non-suited the counterclaim because appellant had not made use of Form 6A magistrates' court (Civil Procedure) Rules 1956 (hereinafter called the Rules), and so could not sign the counterclaim as required by the form.
(1) On the question of greater hardship, an appellate court will be slow to interfere with a decision of a trial court unless that court misdirected itself on a question of law or based its Judgment on some findings of fact of which there was no evidence. If hardship exists on both sides, and although another magistrate might have come to a different conclusion on the balance of hardship, an appellate court will not interfere unless the magistrate misdirected himself.
(2) The combined effect of Order III, rule 5(1), and of Order XXI, rule 2 of the Rules, is to render the use of the scheduled forms obligatory so that omission to use form 6A of the Rules is an irregularity. Non-suit, however, is not the proper order. Non-suit only ordered in cases of absence of proof. Proper order in this matter is one to strike out case. Order of non-suit vacated and Order striking out the case substituted therefore.
Cases referred to:-
Smith v. Perry (1947) K.B. 230; (1946) 2 A.E.R. 672; (1947) L.J.R. 271; 62 T.L.R. 750; 91 Sol. Jo. 54.
Chandler v. Strevett (1947) 1 A.E.R. 164; 176 L.T. 300; 63 T.L.R. 84.
Coplans v. King (1947) 2 A.E.R. 393:
King v. Taylor (1955) 1 Q.B. 150; (1954) 3 A.E.R. 373; 98 Sol. Jo. 786.
Ordinance referred to:-
Magistrates' court (Lagos) Ordinance, Cap. 113, section 46.
Orders and Rules referred to:-
Magistrates' court (Civil Procedure) Rules, 1956: Order III, rule 5(1); Appendix I, Form 6A; Order XXI, rule 2.
Sita for Appellant.
Bickersteth for Respondent.
De Lestang, C.J.:-This is an appeal by a tenant from an order of the magistrate's court granting possession of the rooms occupied by him at No. 41 Docemo Street, Lagos, and non-suiting his claim for repayment of rent unlawfully increased.
The premises known as No. 41 Docemo Street consist of three rooms and a veranda partitioned into three. The tenant, who, except for a period of about six months in 1945, has been in occupation of the premises since 1940, now occupies one of the three rooms and a portion of the veranda with his wife, six children and a cousin. The rest of the premises is vacant. The landlord is a married man with three children. He became the owner of the premises by inheritance on the death of his father Pa Wey in 1959. By the same will, the house he was occupying with his family was devised to some other members of the family and he had to vacate it. He accordingly sought possession of his own house on the ground that he required it for occupation by himself and his family. The tenant resisted the claim and counter-claimed to recover rent allegedly unlawfully increased after the 1st July, 1941, without an order of the court.
On the question of possession the learned Magistrate, after setting out the respective situations of the parties as disclosed by their evidence decided the issue of greater hardship in favour of the landlord. The tenant appeals on the ground that the "learned Magistrate did not sufficiently direct his mind to the relevant facts of this case to enable him to assess satisfactorily who of the two litigants would suffer greater hardship if an order for possession were made or refused."
It is well settled that on an appeal on the question of greater hardship, the court will be slow to interfere with a decision of the trial court and, as Somervell L. J. said in Smith v. Penny (1947) K.B. 230 at233, to succeed an appeal must "show that the County Court Judge misdirected himself on a question of law or that he based his Judgment on some finding of fact of which there was no evidence." The dictum of Scott, L.J. in Chandler v. Strevett (1947) 1 A.E.R. 164 at165 on which Mr Sita relies as enabling this Court to review the decision of the magistrate on the ground of hardship was disapproved in Coplans v. King (1947) 2 A.E.R. 393 and is no longer good law. Thus it was held in King v. Taylor (1955) 1 Q.B.D. 150 that if there was some evidence of hardship on each side, the decision of the trial Judge will be final. In the present case hardship existed on both sides and although another Magistrate might have come to a different conclusion on the balance of hardship, this Court will not interfere unless the court below misdirected itself. There is no suggestion of any such misdirection. It is said that as there are two rooms vacant in the premises the landlord could occupy them and not interfere with that occupied by the tenant. There is nothing to show that the learned Magistrate omitted to take this matter into consideration.
It is true that he gave no reasons for his decision but he may very well have felt that it was not practicable or right to impose upon the landlord, who apparently was accustomed to live in a house by himself, the obligation to share a house with the tenant in conditions of near over-crowding. He may have thought also that the tenant had made no real effort to find other accommodation being content with premises for which he was paying little rent. All this, of course, is speculation, which this Court will not indulge in and which the tests which I have set out above are obviously designed to obviate. For the reasons which I have given this ground of appeal fails.
As regards the claim for refund of rent unlawfully increased, the learned Magistrate non-suited the tenant because apparently he did not use Form 6A of the magistrates' court (Civil Procedure) Rules 1956 and as a result of this omission did not sign the counterclaim as required by the form. Order III, rule 5(1) of the Rules provides:-
Where a defendant on whom an ordinary summons has been served intends to set up a counterclaim or set-off a special defence, he shall within 6 days of the service of the summons on him file with the registrar for service on the plaintiff the counterclaim or special defence for which the form annexed to the summons may be used.
Such counterclaim or special defence shall be accompanied by a copy thereof, and the registrar shall cause the copy to be served on the plaintiff.
It is contended for the appellant that the use of Form 6A is permissive and not obligatory. In my view this contention is fallacious because it ignores Order XXI, rule 2 which provides that "The Forms in Appendix I denoted by the numbers (of which Form 6A is one) shall be used wherever applicable with such variations as circumstances require." In my view the combined effect of Order III, rule 5(1) and Order XXI, rule 2 is to render the use of the forms obligatory so that an omission to do so is an irregularity. The power to non-suit is given by section 46 of the magistrates' court (Lagos) Ordinance which provides that "A Magistrate shall have power to non-suit the plaintiff in every case in which satisfactory proof shall not be given entitling either the plaintiff or defendant to Judgment." It is thus only in cases of absence of proof that the magistrate is empowered to non-suit and this was not such a case. In the case of an irregularity which is what occurred here, the proper order in my view is to strike out. The result, however, in either case is the same since it permits the litigant to relegate the same issue, but for the sake of accuracy the order should be corrected by substituting an order striking out the counterclaim for an order of non-suit, which I direct to be done in the present case.
It would appear from the learned Magistrate's Judgment that one of the reasons for non-suiting was that the tenant had not personally signed the counterclaim. It is true that Form 6A requires the litigant's signature but it is equally plain that his solicitor's signature will be sufficient. Order XXI, rule 5(1) clearly permits a counter-claim being signed by a solicitor. The fact that the magistrate was wrong on this point is of no avail to the appellant since I have held that the counterclaim was irregular and could have been struck out on that ground alone. In the result the appeal is dismissed with costs assessed at seven guineas.