YEKINNI v ALHAJI R. ETTI & OTHERS (LD/9A/64) [1964] NGHC 18 (31 March 1964)

**YEKINNI** **(APPELLANT)** **_v_.** **ALHAJI** **R.** **ETTI** **&** **OTHERS** **(RESPONDENTS)** **(1964)** **All** **N.L.R.** **482** **Div****i****si****o****n:** High Court, Lagos **D****at****e** **o****f** **Judgment:** 31st March, 1964 **C****as****e** **Num****b****er:** LD/9A/64 **Before:** Le Lestang, C.J. of Lagos The appellant was put in possession as tenant of one room at No. 14 Bamgbose Street, Lagos by one Tesilimi to whom he paid 25/- monthly rent. In January 1961, the property was partitioned between the joint owners and the room occupied by the appellant was allocated to the respondents. Whereupon, the appellant was informed, though he denied, to pay his rent in future to the respondents, the landlords. The appellant continued, however, to pay rent to Tesilimi. The landlords gave him notice to quit the room on 30th September, 1962; he refused to quit as requested and action was brought against him in February 1963 for possession and _£_ 33 being arrears of rent from 1st February 1961 until 30th November, 1962 and mesne profits until possession is given up. The magistrate, satisfied that the appellant was duly informed of the change of ownership but ignored it, entered judgment as follows: (_a_) for £20 being arrears of rent from 1st February, 1961 to November, 1962 (_b_) for _mesne_ profits until the end of August, 1963 (_c_) possession to be given on 31st August, 1963 unless (_a_) and (_b_) were paid off before that date; the appellant appealed against the judgment contending that the respondents are not his landlords. **_HELD_**** _:_** (1) Having regard to the definitions of _landlord_ and _tenant_ in the Recovery of Premises Act there can be no doubt that even if the appellant was not a Common Law tenant he was a _tenant_ under the Act and was therefore liable to pay rent to the respondents, his landlords under that Act. (2) _Mesne_ profits are damages for trespass and are consequently only payable by a person who has ceased to hold the demised premises as tenant and has become a trespasser. A tenant who holds over under the Rent Restriction Act is not a trespasser and does not become one until he disobeys an order of the court ordering him to give up possession. Strictly speaking therefore rent should be claimed up to the date of the order for possession and _mesne_ profits thereafter. _Appe_ _a_ _l_ _di_ _s_ _mis_ _s_ _ed_ _._ _A_ _ct_ _s_ _ref_ _e_ _rre_ _d_ _to:__-_ _Recovery_ _o_ _f_ _Premis_ _es_ _Ac_ _t_ _Cap_ _._ _176_ _,_ _sect_ _ion_ _2_ _._ _Rent_ _Restriction_ _Act_ _Cap._ _183,_ _section_ _13._ _S_ _ol_ _a_ _nk_ _e_ , for the Appellant. _M_ _o_ _l_ _aj_ _o_ , for the Respondents. De Lestang, C.J. of Lagos:-This is a tenant's appeal from the decision of the Magistrate's Court, Lagos granting a conditional order for possession to the landlords and entering judgment against him for arrears of rent and mesne profits. Prior to 1961 the tenant occupied a room in premises known as No. 14 Bamgbose Street, Lagos. He was put in possession of that room by one Tesilimi to whom he paid 25/- monthly as rent. In January 1961 the premises were partitioned between the joint owners and the room occupied by the tenant was allocated to the landlords. Whereupon, according to the landlords, this being denied by the tenant, the tenant was informed that in future he would have to pay rent to the landlords. He continued, however, to pay rent to Tesilimi. In August, 1962, he was given notice to quit the room on the 30th September 1962. As he refused to quit the landlords, in February, 1963, brought an action in the Magistrate's Court wherein they claimed "possession and £33. 0. 0d. for arrears of rent from 1st February 1961 until 30th November, 1962 and mesne profits until possession is given up." The rent in the claim was calculated at 30/- per month but the learned Magistrate found that it was 25/- and he entered judgment as follows:- (_a_) for £20 being arrears of rent from 1st February, 1961 to November, 1962, less £7. 10. 0d. paid by the appellant by way of Township rates. (_b_) for mesne profits at 25/- per month from December 1962, until the end of August, 1963. (_c_) possession to be given on 31st August, 1963 unless (_a_) and (_b_) were paid off before that date. It is not clear why arrears of rent were claimed until 30th November, 1962, only. That date was assumed by the learned Magistrate to be the date of the filing of the plaint. In fact the plaint was filed in February, 1963, and 1st November, 1962, appears to be the date of the expiry of the seven days notice of intention to go to Court for an order for possession. The learned Magistrate thought that rent could only be claimed up to the expiry of the notice to quit and mesne profits thereafter. This may be the correct position at Common Law but is no longer so as a result of the Rent Restriction Act. Mesne profits are damages for trespass and are consequently only payable by a person who has ceased to hold the demised premises as tenant and has become a trespasser. A tenant who holds over under the Rent Restriction Act is not a trespasser and does not become one until he disobeys an order of the court ordering him to give up possession. Strictly speaking therefore rent should be claimed up to the date of the order for possession and mesne profits thereafter. In practice it is immaterial whether the claim is labelled rent or mesne profits as there is usually no monetary difference between rent and mesne profits. Moreover Section 13 of the Rent Restriction Act expressly states that they should be treated as one claim. The real controversy in this case is whether the appellant became the tenant of the respondents. The learned Magistrate was satisfied that he was duly informed of the change of ownership but ignored it. There was sufficient evidence to support the learned Magistrate's finding and there is no ground to disturb it. Moreover, having regard to the definitions of 'landlord' and 'tenant' in the Recovery of Premises Act there can be no doubt that even if the appellant was not a Common Law tenant he was a 'tenant' under that Act and was liable to pay rent to the respondents, his landlords under that Act. This appeal fails and is dismissed with £7. 7. 0d. costs.