AINA FOWLER v A. O. FOWLER (LD/98A/63) [1964] NGHC 8 (31 January 1964)

**AINA** **FOWLER** **(APPELLANT)** **_v_.** **A.** **O****.** **FOWLER****.** **(RESPONDENT****)** **(1964)** **All** **N.L.R.** **450** **Div****i****si****o****n:** High Court, Lagos **D****at****e** **o****f** **Judgment:** 31st January, 1964 **C****as****e** **Num****b****er:** LD/98A/63 **Before:** Onyeama, Ag. C.J. The respondent brought the proceedings, as the landlord, against the appellant, the tenant, claiming an order for possession of premises consisting of a shop at No. 186 Bamgbose Street, Lagos on the ground of personal use. At the trial, it was alleged by the appellant that the premises in question were purchased with money paid as compensation for the compulsory acquisition of another property which, according to the appellant, belonged to her father and that the shop was given to her as her share. On the strength of this allegation, Counsel representing the appellant submitted that since title to the premises was in issue the magistrate has no jurisdiction to adjudicate on the matter; but the magistrate ruled that his jurisdiction is not ousted because the issue of title was not raised _bona_ _fide_. The magistrate heard no evidence from the appellant before deciding on the _bona_ _fides_ of her claim of title. On appeal, the appellant contended _inter_ _alia_ , that by virtue of section 14(2) of the Magistrates' Court (Lagos) Act, Cap. 113 the magistrate had no Jurisdiction to hear the case because title to the premises was in issue. **_HELD_**** _:_** (1) Jurisdiction would exist if it is clear that the plaintiff is the landlord and the defendant the tenant in respect of the premises in question. (2) For the purposes of section 14(2) of the Magistrates' Court (Lagos) Act, a claim of title honestly put forward does not cease to be _"bona_ _fide"_ because it is weak or because the adversary has a good answer to it. (3) It is not open to the magistrate to adjudicate on the conflicting evidence of title so as to arrive at the conclusion that the plaintiff is the landlord. What has to be found is whether the defendant's claim is an honest one, even if it turned out to be mistaken or baseless. _A_ _ppea_ _l_ _allowed_ _:_ _C_ _a_ _s_ _e_ _s_ _re_ _f_ _e_ _r_ _r_ _e_ _d_ _t_ _o_ _:__-_ _O_ _lu_ _w_ _o_ _v_ _._ _Ade_ _b_ _owa_ _l_ _e_ , 4 F. S. C. 143. _White_ _v._ _Feast_ (1871) 7 Q. B. 353. _Rei_ _s_ _v_ _._ _Dav_ _i_ _e_ _s_ (1858) 4 C. B. N. S. 56 _D_ _u_ _d_ _le_ _y_ _&_ _D_ _i_ _st_ _r_ _ic_ _t_ _Be_ _n_ _e_ _f_ _i_ _t_ _B_ _u_ _i_ _l_ _di_ _n_ _g_ _S_ _o_ _c_ _i_ _et_ _y_ _v_ _._ _G_ _o_ _r_ _d_ _o_ _n_ (1929) 2 K. B. 105. _A_ _ct_ _s_ _ref_ _e_ _rre_ _d_ _to:__-_ _Magistrates'_ _C_ _ourt_ _(Lagos)_ _Act,_ _C_ _ap._ _113_ _s_ _ection_ _1_ _4(2)_ _Small_ _Tenements_ _Recovery_ _Act,_ _1838._ _Recovery_ _o_ _f_ _Premis_ _es_ _Ac_ _t,_ _Ca_ _p._ _17_ _6_ _sect_ _ion_ _5_ _._ _A_ _nimashau_ _n_ , for the Appellant. _Inyang_ , for the Respondent. Onyeama, Ag. C. J. of Lagos:-A plaint was entered on behalf of the respondent, Alfred Okesola Fowler, under section 10 of the Recovery of Premises Act in Magistrate's Court No. 2, Lagos, against the appellant, Madam Aina Fowler, alleging that she had neglected to deliver up possession of premises consisting of a shop and situated at No. 186 Bamgbose Street, Lagos, which she held of the respondent as a tenant at will, that tenancy having been determined by a notice to quit. The respondent claimed possession of the premises on the ground of personal use. The trial Magistrate entered judgment for the plaintiff and ordered the defendant to give up possession on or before the 31st of October, 1963. The defendant now appeals from the judgment of the Magistrate on four grounds, namely:- (1) That the notices required by law to be served on the defendant by the plaintiff were not in the form prescribed. (2) That the Magistrate had no jurisdiction to hear the case because title to the premises was in issue section 14(2) Magistrates' Court Act. (3) That the affidavit of one Matthew A. Fowler was wrongly admitted in evidence. (4) That the decision is against the weight of evidence. In support of the first ground of appeal, Counsel referred to trifling verbal differences between the notices given and the forms prescribed. It was, for instance, complained that where the form had stopped at the word "premises" the notice had added "and one shop." There was no suggestion that the tenant did not understand the notices or that there was any misunderstanding of any kind caused by these petty deviations. No one was misled. In my view the differences relied on by Counsel were _'de_ _minimis.'_ The second ground is that title to land was in issue and the jurisdiction of the Magistrate therefore excluded. The argument on this head was based on section 14(2)(_a_) of the Magistrate's Court (Lagos) Act which enacts that:- "Subject to the provisions of any other Ordinance, a ... magistrate shall not exercise original jurisdiction in any cause or matter which raises any issue as to the title to land, or to any interest in land;" In the course of the hearing before the magistrate it was alleged by the defendant that the premises, 186 Bamgbose Street, were purchased with money paid as compensation for the compulsory acquisition of another property which, according to the defendant, belonged to her father. The shop she occupied was given to her as her share. This defence appears to mean that the premises belonged to the defendant's father and, on his death, she received the shop on a distribution of his estate. It is not doubted that if there was a substantial question of conflicting claims to title the magistrate's original jurisdiction would be ousted. The Federal Supreme Court in _Oluwo_ _v._ _Adebowale_ 4 FSC 143, 145 considered section 14 of the Magistrates' Court (Lagos) Act and said: "Although not stated expressly the proviso (ousting a magistrate's original jurisdiction in causes or matters raising any issue as to title) should be read with the qualification that the issue as to title must be raised _bona_ _fide_. Whether the issue is raised _bona_ _fide_ or not is an interlocutory matter for the magistrate to decide on the evidence before him, and ordinarily, he should decide it as soon as the issue is raised, before assuming or continuing to exercise jurisdiction to hear the case." It has been said that all summary jurisdiction is the creature of statute; and on the principle that title could not be intended to be decided by an inferior tribunal, there has arisen the well-established rule, that every statute giving summary jurisdiction has the implied restriction as to title, and that the justices must hold their, hands if a _bona_ _fide;_ claim of right is set up: see _White_ _v._ _Feast_ (1871) 7 Q.B. 353, 358 per Blackburn, J. The magistrate was mindful of the need to consider the claim of title set up by the defendant. He ruled that the issue was not raised _bona_ _fide_. In his ruling he set out the portion of the judgment of the Federal Supreme Court in _Oluwo_ _v._ _Adebowale_ already quoted. He then said: "There is nothing in the evidence led so far which supports the contention of Mr Animashawun for the defendant to make me come to the view that the issue of title is raised _bona_ _fide_." This sentence appears to me to mean that up to the point when defence Counsel contended that title was in issue, that issue was not raised _bona_ _fide_. The magistrate then went on to say that under the Small Tenements Recovery Act 1838, "on which the Recovery of Premises Act Cap. 176 is based and which substantially requires the same proof as is required by the Recovery of Premises Act it was held in _Reis_ _v._ _Davies_ (1858) 4 C.B.N.S. 56 that if the matters required to be proved are in fact proved, the jurisdiction of justices is not ousted by the tenant alleging title in a third person." I think that section 5 of Cap. 176 would be the source of the magistrate's jurisdiction where the tenant _bona_ _fide_ sets up the title of a third person, "unless he holds under, or claims through, such third person." I do not, however, see how the saving clause in section 5, or the decision in _Reis_ _v._ _Davies_ is relevant in the case under consideration, for the appellant did not set up the title of a third person simpliciter; she claimed the premises in question through such third person, her father. The magistrate further stated that it was decided in _Dudley_ _&_ _D_ _istrict_ _Benefit_ _Building_ _Society_ _v._ _Gordon_ (1929) 2 K.B. 105 that although a question of title is involved justices have power to deal with a case under the Act; i.e. the Small Tenements Recovery Act, 1838. I do not think that this case decides that where there is a _bona_ _fide_ issue of title between the plaintiff and the defendant the magistrate would have jurisdiction. Jurisdiction would exist if it is clear that the plaintiff is the landlord and the defendant the tenant in respect of the premises in question. What then is a _bona_ _fide_ claim of title? I think it is a claim made honestly and not, so to speak, with tongue in cheek. As was pointed out in _White_ _v_ _._ _Feast_ , the term _'bona_ _fide'_ is not necessarily the same as "fair and reasonable ground." A man may honestly think he has a right, but on the evidence there may be no fair or reasonable ground shown for his supposition. I am of the opinion that the phrase '_bona_ _fide_ ,' in the context of the Recovery of Premises Act and the judgment of the Federal Supreme Court in _Oluwo_ _v._ _Adebowale_ relates to the state of mind or the motive of the person setting up title. A claim of title honestly put forward does not cease to be _'bona_ _fide'_ because it is weak or because the adversary has a good answer to it. When the magistrate ruled on the _bona_ _fide_ of the defendant's claim he appeared to rely on the fact, _inter_ _alia_ , that a certificate of title had been put in evidence by the plaintiff "without questioning;" and this fact, he considered, "puts the title of the land charged in him." This appears to me to amount to a decision that the plaintiff's _prima_ _facie_ title to the premises had been proved. The magistrate went on to say that the question was "who put the defendant into possession." With all respect to the magistrate, I think the question was whether the defendant was a tenant. I think it is clear that a person may put another in possession of land without being his landlord. The magistrate heard no evidence from the defendant before deciding on the _bona_ _fides_ of her claim of title and I can discover nothing in the evidence (up to the point at which the ruling on jurisdiction was given) to suggest that the claim was a dishonest one or was so outrageous or ridiculous as not to be worthy of serious consideration. Indeed, in his judgment the learned magistrate said: "It may well be that the defendant may be able to challenge successfully the title of the plaintiff in a proper Suit at the High Court." I find it difficult in the face of this to say that a _bona_ _fide_ issue of title had not been raised; and if it was, the magistrate could not disregard it and proceed to hear and determine other aspects of the case. The issue was not resolved by believing the plaintiff and not believing the defendant. It was not open to the magistrate to adjudicate on the conflicting evidence of title so as to arrive at the conclusion that the plaintiff was a landlord. What has to be found is whether the defendant's claim was an honest one, even if it turned out to be mistaken or baseless. I would therefore allow the appeal and for the judgment of the magistrate substitute one striking out the Suit for want of jurisdiction. The other grounds of appeal have no merit. Appeal allowed. Suit struck out. Costs to appellant assessed at £16. 16. 0d.