Mrs E.E. EBENEZER v N. T. BELL ((FSC 28/1962; Lagos No. LD/59A/60).) [1963] NGSC 4 (4 January 1963)



On Friday, the 4th day of January 1963

FSC 28/1962; Lagos No. LD/59A/60


Mrs E.E. EBENEZER ......................................... APPELLANT


N. T. BELL ................................................. RESPONDENT


Appeal by plaintiff.

The defendant's tenant left the rooms with O.E., another man, who took in the plaintiff, a lady, to live with him. Later O.E. Left the rooms, and the plaintiff sent money to the defendant as rent, but his solicitor wrote to her that he accepted the money as due for use and occupation of his rooms without his authority, and gave her notice to quit. Money that she sent thereafter to the defendant was not accepted. She sued him alleging trespass; he counterclaimed for general damages and loss of rent. The magistrate took the view that she was not a trespasser but had acquired a right to possession and awarded her damages. The High Court reversed the judgment. On appeal the plaintiff argued (a) that as the defendant accepted the money, she became his tenant; also (b) that although she entered the rooms as a lodger, she became a sub-tenant when she began paying rent to O.E. The magistrate did not make an express finding on whether or not O.E. received rent from her, but it was clear from his judgment that he did not accept her story of paying rent to O.E.




(a)     The letter from the defendant's solicitor made it clear that he was accepting the money as compensation for the use of his rooms, that he regarded her as a trespasser and was giving her notice to quit: the defendant was not willing to have her as his tenant.

(b)     It was not true that she had become the sub-tenant of O.E. when living with him.


Appeal dismissed.


APPEAL from the High Court of Lagos.


A. A. Isikalu for the Appellant.


A.O. Okuribido for the Respondent.


Taylor, F.J.:-The present appellant brought an action in the Magistrate's Court, Lagos, against the present respondent claiming the sum of £100 as general and special damages for the trespass alleged to have been committed by the latter in the formers room in the house situate at 12 Odunlami Street, Lagos. The defendant counter-claimed for the sum of £142-10s-0d made up as follows:-


"£100 general damages, and £42-10s-0d being "loss of rent at the rate of £2-10s-0d a month."


The relevant facts in the case are as follows:-


The defendant is a tenant of the premises at 12 Odunlami Street, Lagos, and The African Bethel Church, Lagos, are his Landlords. Two rooms in the said premises were let by the defendant to one Abel Essien. Abel Essien left Nigeria for the United Kingdom in September, 1956, but before his departure, his brother Offiong Essien, DW2, had been living with him in the said rooms. After his departure, Offiong Essien occupied the two rooms until the 19th January, 1958, when he vacated them. Before then however, and around the 25th January, 1957, the plaintiff had come to share the rooms with him, for according to her evidence she was paying a half share of the rent. This is, however, denied by Offiong Essien. The defendant went on leave to Sierra-Leone in December, 1957, and returned in December, 1958. He asked the plaintiff to quit and on her refusal, he instructed his solicitors to take legal steps. The plaintiff alleges that on three separate occasions to wit:-the 10th January, 1959, 16th February, 1959, and 19th February, 1959, the defendant committed certain acts of trespass in her apartments. It is also part of the plaintiff's case that she had been posting her rent to the defendant after Offiong Essien had vacated the premises, but that with the exception of the sum of £27-10s-0d accepted by the defendant as per exhibit "A", all the other postal orders sent by her were returned by the defendant.

The main issue before the trial Magistrate was whether the plaintiff was or was not a tenant of the defendant. This was resolved in the plaintiff's favour and judgment for the sum of £25 as general damages for the trespass was entered in her favour with costs.


Against this judgment the defendant appealed to the High Court which reversed the judgment of the trial Magistrate by dismissing the plaintiff's claim and entering judgment on the counter-claim for the sum of £100 (£62-10s-0d in respect of the occupation of the premises by the plaintiff and £37-10s-0d as general damages) with costs.

The plaintiff has appealed against that judgment to this Court and has filed three grounds of appeal with his Notice of Appeal. The plaintiff will from henceforth be referred to as the appellant and the defendant as the respondent.

Learned Counsel for the appellant argued only the first two of his grounds of appeal, and was content to submit in respect of the third that if he succeeded on the first two grounds the counter claim must be dismissed (the third ground dealt with the counter claim). His arguments on the first two grounds may be put shortly in the form of the following two submissions:-


(1)     That by virtue of the letter exhibit "A", in which the respondent accepted the sum of £27-10s-0d from the appellant for user and occupation of the premises, the latter became a tenant of the former, more so in view of the fact that this sum is calculated on the basis of the monthly rental of £2-10s-0d.

(2)     That the appellant entered the premises as a lodger, but became a sub-tenant as soon as she began paying rent to Offiong Essien.


In dealing with these two points Mr Okuribido for the respondent urged that in exhibit "A" the respondent made it clear that though he was accepting the sum of £27-10s-0d for user and occupation, he was still treating the appellant as a trespasser. He further urged that the term "any person occupying premises" in section 2(1) of the Recovery of Premises Ordinance Cap. 193 must be read as meaning "Any person lawfully occupying premises." On the second point Mr Okuribido conceded that there was no finding one way or the other as to whether Offiong Essien received rent from the appellant or not, but went on to submit that on the evidence before the trial Magistrate there should have been a finding that the appellant was not a tenant of Offiong Essien. Dealing with the first point, I think it is important to set out the letter exhibit "A" in order to see the conditions attached by the respondent to the receipt of the £27-10s-0d from the appellant. It reads thus:-


"Dear Madam,


I have been instructed by Mr N.I. Bell to acknowledge receipt of your postal orders for a total sum of £27-10s-0d. This money is accepted as due to my client for use and occupation by you of his rooms during his absence in Freetown without his knowledge and/or permission or authority.

TAKE NOTICE that if you fail to vacate the rooms before noon on Saturday the 10th January, 1959, you will be treated like the trespasser that you are, and a reasonable amount of force will be used to get you and your junks out of the rooms without further warning.


Yours truly,"


This letter was written by learned Counsel acting for the landlord and it is clear from the terms of the letter that the appellant has always been regarded by the landlord as a trespasser. It is to be noted that later the appellant endeavoured to send further sums after this date to the respondent, and the letters containing the postal orders were returned, exhibit "B" is an example of this. The vital point for decision is quo animo the money was received. The respondent has shown by this letter that he received the sum of £27-10s-0d as some form of compensation for the user of the rooms by a person he labels a trespasser, and in addition, gives the trespasser notice to vacate the rooms. If the appellant did not accept the terms of the receipt of rent, it was up to her to say so or claim the return of the money sent by her. She did neither of these but continued to remit further sums of money to the respondent. The learned Author of Woodfall's Law of Landlord and Tenant Volume 1, 25th edition, says at 41, in the case where a tenancy did exist, but had come to an end, that:-


"After that date it should be accepted, not as rent, but as consideration for the licence or as mesne profits, as the case may be, without any serious danger that a Court would infer an intention to grant a new tenancy."


There was, in my view, no intention to create a tenancy and this contention must therefore fail.

On the second point, it is true that there is evidence led by the appellant to the effect that she paid rent to Offiong Essien as it is true that Offiong Essien denied the receipt of rent. In the Judgment of the trial Magistrate, and particularly from the six findings of fact made by him, there can be no doubt that he did not accept the appellant's evidence that she paid part of the rent to Offiong Essien. His third to findings are as follows:-


(c)     Plaintiff claims her right of occupation through O. Essien with whose consent she started to occupy the rooms;

(d)     O. Essien and plaintiff occupied the rooms together for practically one year;

(e)     Plaintiff is no trespasser but if she could be described as such she had acquired the right to possession as already explained above.


Further there is no evidence on record that the appellant had obtained exclusive possession of either of the two rooms from Offiong Essien during the time she shared the rooms with him.

In the subsequent appeal from the Judgment of the trial Magistrate to the High Court by the present respondent, the present appellant did not put in an appearance either personally or through Counsel, and no endeavour was made to support the Judgment of the trial Magistrate on the ground that-


(1)     there was payment of rent by appellant to Offiong Essien, and

(2)     that this by itself made the appellant a sub-tenant of Offiong Essien.


I have therefore come to the conclusion that for these reasons, this ground of appeal must also fail. I would dismiss the appeal with costs assessed at 25 guineas to the respondent.

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