On appeal:

The point for decision is whether the magistrate is right to dismiss the appellant's set-off as invalid.

HELD:

(1)     There is nothing to prevent a defendant who has a monetary cross-claim from setting up part of his claim as a set-off and part as a counter-claim. This is by no means an uncommon practice.

(2)     The appellant did not set-off the increase of rent against the claim for possession but against the claim for arrears of rent on which the claim for possession was founded, therefore, the appellant's defence of set off ought to succeed.

Appeal allowed.

Akintuye, for the Appellant.

Desalu for the Respondent.

De Lestang, C.J. of Lagos:-These are three consolidated appeals and since they are identical I shall deal with the first of them and the decision will apply equally to the others. The appellant was the tenant of a room belonging to the respondent, his landlord. In September, 1963, the appellant had not paid rent for the months of April to September and the respondent instituted proceedings in the Magistrates' Court, Lagos, wherein he sought an order for possession of the room on the ground of arrears of rent. He also claimed £13.10. 0d. being the arrears of rent for six months at the rate of £2. 5. 0d. per month.

The appellant alleged that the rent had been unlawfully increased from 15/- per month to £2. 5. 0d. per month since July 1957, the total increase being £103. 5. 0d. He accordingly filed a set-off and counter-claim. By the set-off the appellant purported to set of the £13. 10. 0d. of the increase against the claim for arrears of rent and by his counter-claim he sought to recover the balance, namely £89. 15. 0d.

The learned Magistrate found that the rent had in fact been unlawfully increased as alleged but held that the appellant could not both set-off and counterclaim. He accordingly gave judgment for the arrears of rent at the lawful rate and made an order for possession. He also gave judgment for the appellant for the full amount of his counter-claim ignoring the set-off.

The appellant appeals and the short point for decision is whether the learned Magistrate was right to dismiss the appellant's set-off as invalid and give judgment for the respondent on his claim. In arriving at his decision the learned Magistrate said:-

"The defendant has split each item of his claim into two; in respect of the arrears claimed by the plaintiff the defendant has apportioned the amount from the unlawful rent as a set-off while the other remains as a counterclaim. In my view this procedure is irregular. Set-off can only be properly pleaded where the claims on both sides are liquidated debts and not in a case where the plaintiff not only claims the arrears but also asks for possession."

In my view the learned Magistrate misdirected himself in that passage. The appellant did not set-off the increase of rent against the claim for possession but against the claim for arrears of rent on which the claim for possession was founded and I am also of the opinion that there is nothing to prevent a defendant who has a monetary cross-claim from setting up part of his claim as a set-off and part as a counter-claim. This is by no means an uncommon practice. It seems to me therefore that the appellant's defence of set-off succeeded and that the learned Magistrate was wrong to dismiss it as it were and enter judgment for the respondent at all. Even if the learned Magistrate had been right I fail to see how it could in the circumstances have been reasonable for him to make an order for possession since it is clear that the rent was in arrear because it had been so greatly unlawfully increased.

The appeals are accordingly allowed and the decisions of the court below in all three cases giving judgment for the respondent for arrears of rent are set aside together with the orders for possession and for costs and orders dismissing the respondent's claims will be substituted therefor with costs assessed at £5. 5. 0d. The appellant will have the costs of this appeal which are assessed at £26.