J. OLA EWUOSO (APPELLANT)

v.

SULE AFOLABI AND ANOR (RESPONDENTS)

(1963) All N.L.R. 605

Division: High Court of Lagos

Date of Judgment: 18th October, 1963

Case Number: (Appeal No. LD/61A/63)

Before: De Lestang, C.J.

Appeal from magistrate's court.

The appellant brought this action against the respondents in the magistrate's court claiming possession of the premises. The appellant let the premises to the first respondent who lawfully sub-let it to the second respondent. The second respondent occupied the premises. In February 1963 the appellant caused a month's notice to quit to be served on the first respondent. In April 1963 he caused the statutory seven day's notice to deliver up possession to be served on both the first and second respondents. The second respondent refused to vacate. Whereupon the appellant brought an action for possession against both the first and second respondents. The ground for possession which the court found established was that the premises were the subject of an abatement notice from the Lagos Town Council requiring their demolition.

The trial magistrate granted an order in regard to the first respondent but refused it in regard to the second respondent on the grounds that (I) he was not given a month's notice to quit and (2) the seven day's notice served on him was not properly authorised in writing by the appellant.

The appellant appealed to the High Court.

On Appeal it was contended that by virtue of section 4 of the Rent Restrictions Act the second respondent became the tenant of the appellant.

HELD:

(1)     Under the Recovery of Premises Act, a landlord is not bound to serve a notice to quit on a sub-tenant. The sub-tenant derives his title from the tenant and once the interest of the tenant is determined that of the subtenant disappears ipso facto; consequently, in this case, the appellant is not bound to serve a notice to quit on the second respondent before he could obtain an order of possession against him.

(2)     Under section 4 of the Rent Restriction Act sub-tenants are deemed to be tenants of the landlord for the purposes of the Rent Restriction Act and not for all purposes. The object of this provision is to give the sub-tenants the protection of the Act both as regards rent and security of tenure. It does not make it incumbent on the landlord to determine the sub-tenants tenancy before obtaining an order against him, so long as the procedure prescribed by the Recovery of Premises Act. is followed.

(3)     Since the name of the second respondent was inserted before the appellant signed the document authorizing the solicitor to act as his agent, the seven days' notice served on the second respondent was properly authorised.

Appeal allowed: Case sent back to the court below for decision on its merits: Decision of Court below set aside.

Acts referred to:-

Recovery of Premises Act, section 7. Rent Restriction Act, section 4.

APPEAL from magistrate's court.

Alli-Balogun for the Appellant.

Souza for the Respondents.

De Lestang, C.J.:-This is an appeal by a landlord from the decision of the Magistrate's Court, Lagos, dismissing his action for possession against a sub-tenant. The Rent Restriction Act applies to the premises. The landlord let the premises to one Sule Afolabi who lawfully sub-let them to the sub-tenant, Adedeji Adeleye. The sub-tenant occupied the premises. In February 1963 the landlord caused a month's notice to quit to be given to his tenant. On the 2nd April, 1963, he caused the statutory seven days' notice to deliver up possession to be served on both the tenant and sub-tenant. The sub-tenant refused to vacate. Where upon the landlord brought an action for possession against both the tenant and the sub-tenant. The relevant ground for possession which the court found established was that the premises were the subject of an abatement notice from the Lagos Town Council requiring their demolition as they were unauthorised.

The learned Magistrate granted an order in regard to the tenant but refused it in regard to the sub-tenant on the grounds that:-

(a)     he was not given a month's notice to quit and

(b)     the seven days' notice served on him was not properly authorised in writing by the landlord.

He awarded the landlord 15 guineas costs against the tenant and the sub-tenant 10 guineas costs against the landlord.

The landlord appeals both against the dismissal of his action against the sub-tenant and also against the costs awarded against him. The first question for decision is whether a notice to quit must be served on a sub-tenant before the head landlord can obtain an order for possession against him.

In my view it is not. The procedure for recovering possession of premises leb is prescribed by the Recovery of Premises Act. Section 7 requires that the tenancy must first be determined. This will generally he done by an appropriate notice to quit. If the tenant remains in possession he must be served with the prescribed seven days' notice and only then, if he still refuses to vacate, can the landlord take out a summons for possession. Section 7 of the Act provides, however, that when the tenant does not occupy the premises the seven days' notice is to be served on the person in occupation. There can be no question of the landlord serving a notice to quit on the sub-tenant as there is no legal relationship between them. The sub-tenant derives his title from the tenant and once the interest of the tenant is determined that of the sub tenant disappears ipso facto.

It is contended that by virtue of section 4, Rent Restrictions Act the sub-tenant becomes the tenant of the landlord. That section reads:-

"Where a landlord has let, whether before or after the coming into operation of this Ordinance in respect of the place or area in which the premises are situate, any premises and his tenant not being expressly prohibited in writing from sub-letting, sub-lets such premises or any part thereof, the sub-tenants of such premises or any part thereof shall be deemed for the purpose of this Ordinance to be tenants of the landlord."

It will be observed that the sub-tenants are deemed "for the purpose of this Act" to be the tenants of the landlord and not for all purposes. The object of this provision is to give to sub-tenants the protection of the Act both as regards rent and security of tenure. It does not, in my view, make it incumbent on the land lord to determine the sub-tenant's tenancy before obtaining an order against him, so long as the procedure prescribed by the Recovery of Premises Act is followed. As I have said before the notice to quit served on the tenant operated to determine not only the tenant's interest but also the rights of the sub-tenant and service of a notice to quit would have been not only wrong but uncalled for and meaningless.

The second question is whether the solicitor who issued the seven days' notice was properly authorised to do so.

It is well-known that this notice must be given by the landlord or his agent and, for the purpose of this case, agent is defined in the Act as meaning any person specially authorised to act in a particular manner by writing under the hand of the landlord. There is here an authority by the landlord to his solicitor to do the needful to obtain possession. It originally referred to the tenant only and later the name of the sub-tenant was inserted therein. The learned Magistrate dealt with this in the following passage in his judgment:-

"A purported authority is exhibit 'C'. It was only for the 1st defendant. At a stage, I am certain after its execution, Mr Balogun in his writing inserted the name of the 2nd defendant and initialled it. To be effective the initialling should have been done by the plaintiff himself. In the circumstance I take the view that plaintiff's solicitor had no authority to proceed against the 2nd defendant.

With regret I am unable to agree with the learned Magistrate. The landlord testified that the sub-tenant's name was inserted before he signed it and Mr Balogun stated from the bar that it was he who made the alteration and that it was approved by the land lord. There is nothing to support the learned Magistrate's view that the name was inserted after the document had been executed. The authority on its face is good and the landlord testified to its genuineness. The solicitor was consequently properly authorized.