Willie Roberts v Laura Mason (32 of 1962) [1963] SLSC 21 (20 July 1963)

s. c. 1963 lNNISS AND STEVENS v. WRAY. Free town July 20, 1963 Dobbs J. The plaintiffs succeed and I therefore pronounce in solemn form of law in favour of the will dated January 10, 1962, propounded by them, as the deceased's last will and testament. I dismiss the defendant's counterclaim. I order that the costs of this action be paid out of the estate. [SUPREME COURT] WILLIE ROBERTS Appellant V. LAURA MASON . Respondent [Magistrate Appeal 32/62] Landiord and Tenant-Summary Ejectment-Whether raiSing of question of title bar to proceedings--Summary Ejectment Act (Cap. 49, Laws of Sierra Leone, 1960), ss. 2, 3, 6, 7, 11-Small Tenements Recovery Act, 1838 (l & 2 Vict. c. 74). Appellant was the tenant of premises at No. 2, Goree Street, Freetown. Respondent, who was appellant's aunt, commenced ejectment proceedings against appellant in a magistrate's court. At the hearing, appellant laid claim to the whole or part of the premises through his mother, respondent's sister, who died in February, 1961. On May 16, 1962, the magistrates made an order for immediate possession, against which appellant appealed. The first ground of appeal was that " The evidence raised a question of title and therefore the justices had no jurisdiction in the matter and were wrong to make the order." Section 7 of the Summary Ejectment Act provides in part: " At the hearing of the summons, and upon proof of the following facts­ (1) the tenancy and the determination •hereof; (2) notice as hereinbefore provided; (3) the neglect or: refusal of the tenant to compiy with the notice; (4) the service or posting up of the summons as aforesaid; the magistrate may, notwithstanding any alleged claim of right or title, issue a warrant to the constables of the Colony, in the form set out in the Fourth Schedule hereto, commanding them, within a period named therein, to enter (by force if needful) into the premises. and give possession of the same to the landlord or person who shaH have proved his right to the reversion of the tenancy as aforesaid. . Held, dismissing the appeal, that, since some questions of title must be decided by a magistrate in dealing with a case under the Summary Ejectment Act, the raising of a question of title does not oust the jurisdiction of the magistrate. Case referred to: Dudley and District Benefit Building Society v. Gordon [19291 2 K.B. 105. Claudius Doe-Smith for the appellant. Rowland E. A. Harding for the respondent. 48 J The appellant was the defendant to an ejectment summons taken DoBBS . . - d h d . M . • ' Co N 5 . F the respondent an ear m ag1straLe s · urt ~ o. , m reetown, ou; by M ssrs. Metcalfe Cole and Hassan King, justices of the peace. This :e~~r':n~de premises, part of No. 2, Go~ee Street, Freetown, occup~ed by _the "'h""~1 t On May 16, 1962, the mag1strates made an order for Immediate nnel an . . . 1 arK . n IT is agamst th1s order that the appe,lant appeals. nossesslO · • · "' ., " grounds of appeal after amendment were as follows: ; nT:ne evidence raised a question of title and, therefore, the justices had ~:·rt"odiction in the matter and were wrong to make the order. ~..-. 1U_j. ~ ... •w ;. The order was wrong in law in that the evidence did not disclose that nellant was a tenant at sufferance. the ao-r~ J_ .1. ... 3: The order is against the weight of evidence. The summons was taken out by virtue of the Summary Ejectment Act (Cap. 49) and it is necessary to consider the provisions of the Act in some Although the Act is not the same in all particulars as the English Tenements Recovery Act, 1838, in principle it is very much the same and English decisions may have some relevance. I shall set forth in detail what I consider to be the relevant provisions of Cao. 49. By section 2 the word "landlord" means the person entitled to the im;1ediate reversion of a tenancy. Section 3 is as follows: "When any tenancy at will, or on sufferance, or for a term not exceed­ ing 10 years, of the whole or part of any land, building, tenement, or corporeal hereditament, either rent free or at a rent not exceeding £200 per annum, shall have been duly determined by legal notice to quit or otherwise, and the tenant thereof shall neglect or refuse to quit the same, the landlord or person entitled to the immediate reversion of such tenancy may give notice to the tenant of his intention to apply for summary ejectment under this Act." Sections 4 and 5 deal with the giving of notice. No objection was raised in the court below that these provisions had not been complied with. Section 6 is as follows : " It shall be lawful for the landlord or his agent, after giving such notice aforesaid, upon information iaid to the court in the form set out in the Second Schedule hereto, to take out a summons before the magistrate, ·· returnable at any time after such notice (the notice required by section 4) ~hall have expired, for summary ejectment under this Act. " The summons shall be in the form set out in the Third Schedule hereto, and may be served in the manner provided in this Act for the service of the notice in writing." The form of summons calls upon the defendant " to show cause why a warrant should not issue against you for summary ejectment from the said premises." Section 7 is as follows : "At the hearing of the summons, and upon proof of the following facts- (1) the tenancy and the determination thereof [emphasis supplied] ; (2) notice as herein before provided; (3) the neglect or refusal of the tenant to comply with the notice ; 49 3 S.L.----4 s. c_ 1963 ROBERTS v. MASON. Dobbs I. s. c. 1963 ROBERTS v. MASON. Dobbs J. (4) the service or posting up of the summons as aforesaid; the magis­ trate may, notwithstanding any alleged claim of right or title, issue a warrant to the constables of the Colony, in the form set out in the Fourth Schedule hereto, commanding them, within a period named therein, to enter (by force if needful) into the premises, and give possession of the same to the landlord or person who shall have proved his right to the reversion of the tenancy as aforesaid. "The magistrate may, at the hearing of the summons, make such order as he may think fit as to the payment of costs by an unsuccessful party. "If th.e tenant fails to appear at the hearing, the magistrate may, nevertheless, proceed to hear and determine the matter in his absence." Section 8 deals with the time for execution of the warrant. Section 9 gives a right of appeal to this court. Section 10 provides an indemnity for the magistrate and persons executing the warrant. Section 11 is important enough to be set out in full and is as follows: " Nothing in this Act contained shall be deemed to abridge or affect the jurisdiction vested, or hereafter to be vested, in the courts of the Colony in taking cognisance of, and adjudicating upon, questions of title and matters relating to lands, tenements and hereditaments, nor shall anything in this Act be deemed to deprive any person of any right or remedy as landlord or tenant, or otherwise, or in respect of rent, possession or other relief save only as to actions and proceedings against persons exercising the powers conferred by this Act as in this Act expressly provided, and any person may, save as aforesaid, pursue his rights and remedies in the courts of the colony irrespective of this Act, or of any decision of the magistrate hereunder." To deal with the first ground of appeal, so far as one can gather from the evidence the appellant laid claim to the premises or part thereof (it is not clear) through his mother, the respondent's sister, who died in February 1961, and this I assume to be the question of title referred to in this ground. I know from my experience in practice that there is a common belief that if in ejectment proceedings the defendant raises a question of title the magistrate has no jurisdiction to try the case thenceforward. With respect, I do not agree with that contention; it is far too sweeping. The words I emphasised in section 7, viz.: "the tenancy and the determination thereof," and the definition section that " landlord " means the person entitled to the immediate reversion of a tenancy, clearly presuppose some investigation of title by the magistrate. In this connection I would adopt the words of Avory J. in the case of Dudley and District Benefit Building Society v. Gordon [1929] 2 K.B. 105, 109 as follows: " I agree. The view of the justices that the Small Tenements Recovery Act, 1838, does not give courts of summary jurisdiction power to deal with a case where a question of title is involved is erroneous. Obviously justices cannot deal with any case under the Act without having to decide some question of title." Effect has to be given also to the words " notwithstanding any alleged claim of right or title " in section 7. Reading section 7 it would seem that the magistrate has to decide whether or not a tenancy of one of the kinds specified 50 . 3 existed between the parties-if he decides that such a tenancy in secw;n d has been duly determined he may disregard any other claims of existed a~tle. In short, he has to decide whether as between the immediate rig~~ ~~he relationship of land~ord and tenant exist~d and he is _not con:erned pa•"t:" ; . whether the complamant has a sound title to any mterest m the •o aec,oe . • - rnises in questiOn. . . " -P' e... ,.. n P, makes It qmte clear that the delendant or any other person <.;ecdOu • ~ · l~'m to the premises or any interest therein would not be debarred from ;a~~~! C-;~oceedings in the_ Supreme Court for a declaration of title, tal' ,;thstanding the proceedmgs under Cap. 49 and the result thereof. not7-therefore hold that ground 1 of the appeal fails. , 71;-;th regard to ground 2, I agree that the appellant was not a tenant on ~uff;r~nce. If a tena~cy ~s allege~ existed it appears to h~v: been ~ tenancy ~. will. I do not thmk 1t matenal that the respondent m ner not1ce dated ~c ~~rv 29, 1962, described the appellant as a "tenant in sufferance." She '"".,,.~t- aave him notice which was of sufficient length to determine a monthly m :~~v"' On the evidence (if believed) it is clear that the appellant had a t<;fi<>·'"·. t;;~<mcy within the scope of section 3 of the Act. I hold, therefore, that ground 1 disdoses no substance. With regard to ground 3 I think there was ample ;vidence upon which the magistrates could come to the conclusion that a tenancy existed between the respondent and the appeiiant. In finding the facts it would appear that they preferred the evidence of the respondent to that of the appellant. As no other witnesses gave evidence, they were entitled to come to this decision. I hold that this ground also fails. The appeal is accordingly dismissed with costs to be taxed. [SUPREME COURT] SEWING MACHINE COMPANY Appellants v. Respondent [Magistrate Appeal 26/63] 'i'<l,l!c<racl'-cf!:nwlovme•nt contr.act--Wrong[uJ. dismissal-Damages-Length of notice-­ salary in lieu of nolice-Whether emplo:yee enl.itl&d to additional tia,murge.>~-" Leave pay." Respondent was employed by appellants as a customs clerk on March l, 1958, a salary of £16 per month. In February, 1962, her salary was increased to per month. She was also entitled to a bonus or commission. On I~nuary 15, 1963, she was wrongfully dismissed. If she had not been dismissed, sue would have been entitled to 12 days' leave after February 15. Respondent brought suit for wrongful dismissal in a magistrate's court, . . it was held that respondent, in addition to a month's salary in lieu of notice, was entitled to " pay in lieu of leave earned " and " a sum by way of compensation for the time she will take to secure another employment." Appellants appealed against this decision. 51 s. c. 1963 ROBERTS v. MASON. Dobbs J. Freetown July 27 1963 Dobbs J.