Supreme Court
Inferior Court Appeal No. 18 of 1982
9th December, 1982.
Moe, CJ.

Mr. Denys Barrow, for the Appellant
Mr. Nicholas Dujon, for the Respondent

Tenancy at will - Application for repossession of premises after tenant refused to quit occupation of premises after service of notice to quit - Whether magistrate had jurisdiction to hear application - Whether jurisdiction of magistrate ousted by section 3 of the District Courts Ordinance, Chapter II - Effect of section 6(1) of Inferior Courts Ordinance, Chapter 10, as read with section 53 of the Landlord and Tenant Ordinance, Chapter 201, on the jurisdiction of the magistrate.

J U D G M E N T

On 28th April, 1981 the Respondent claimed from the Appellant possession of a house situated at 12 Cinderella Street, Orange Walk Town. The particulars of her claim were as follows: The Plaintiff (now Respondent) is the landlady of the Defendant (Appellant) in respect of the house situated on the premises located at No. 12 Cinderella Street, Orange Walk Town. On the 1st day of September, 1980 the said Defendant sold the said house to the said Plaintiff for a consideration of $4,000.00; on the 2nd day of February, 1981 the Plaintiff gave the Defendant notice in writing to quit and deliver the said house by the 15th day of February, 1981. The Defendant has failed to give up possession of the said house to the Plaintiff and wrongfully remains in possession thereof. On the 18th May, 1981 the magistrate made an order that the Appellant give to the Respondent possession of the house within twenty-one days failing which an ejectment warrant to be issued.

The Appellant filed three grounds of appeal from the magistrate's order, namely:-

(1) The Inferior Court had no jurisdiction in the matter.

(2) The decision was unreasonable and could not be supported having regard to the evidence.

(3) The decision was based on a wrong principle or was such that the Inferior Court viewing the circumstances reasonably could not properly have so decided.

At this hearing he combined those grounds under one head: that the magistrate had no jurisdiction in the matter. He submitted that there was no jurisdiction in the magistrate by virtue of sections 3(1)(b) and 3(2) of the District Courts Ordinance, CAP. 11. They provide as follows:-

"Section 3(1) (b): The court shall have jurisdiction to hear and determine,
-(b) all actions for the recovery of any chattel or thing where the value of the chattel or thing does not exceed one hundred and fifty dollars,
and such actions may be commenced in the court and dealt with in accordance with the provisions of this Ordinance."

"Section 3(2): The court shall not have cognizance of any action in which any incorporeal right, or the title to any real property, is or may be in question, or in which the validity of any devise, bequest, or limitation under any will or settlement is or may be disputed, or of any action for malicious prosecution, libel, slander, seduction or breach of promise of marriage."

The Appellant argued first that if the Action was to obtain possession of a chattel, the magistrate would have had jurisdiction under and subject to the monetary limitation set by section 3(1)(b) (supra), but if it was for recovery of a house standing on land, the court did not have any jurisdiction because a question of title to the land arose. He also contended that there was no landlord and tenant relationship between the parties and thus the provisions of the Landlord and Tenant Ordinance, CAP 201, did not apply.

The Respondent relied on section 53 of the Landlord and Tenant Ordinance, CAP 201 as giving the magistrate jurisdiction whether or not it is to be regarded as a chattel or house and land which is sought to be recovered and thus section 3(1) (b) did not limit the jurisdiction of the Court. He also contended that there was no evidence on which the magistrate could have held that a question of title arose in the matter.

Now section 6(1) of the Inferior Courts Ordinance, CAP 10 provides:

"(1) There shall be established in each judicial district a "District Court" which shall have and exercise civil jurisdiction in accordance with, and subject to, the provisions of -

(a) the District Courts (Procedure) Ordinance; and

(b) any other Ordinance or law conferring upon the said court jurisdiction to hear and determine any cause or matter or authorising it to do or perform any act or function.

One such Ordinance is the Landlord and Tenant Ordinance, CAP 201 which in Part IV provides for application before a District Court for recovery of possession of certain premises.

Section 53 of the Ordinance, CAP 201 provides:

"(1) Whenever the term or interest of any tenant of a tenement held by him at will or for a term, either without being liable to the payment of rent, or ----, has expired or has been determined by a legal notice to quit, or otherwise, if the tenant -----refuses or neglects to deliver up possession of them, the following provisions shall apply:

(a) The former landlord or his agent may file against the former tenant or occupier in the district court an application for recovery of possession of the land formerly held under the tenancy, which application shall be treated as if it were a plaint filed in the said court."

"Tenement" is defined as any land or building in possession of a tenant under tenancy.

Section 3(1)(b) of CAP 11 did not preclude the magistrate from exercising jurisdiction in this matter. The next question to be answered is whether the Appellant was a tenant of the Respondent. The magistrate found that the Appellant sold the house to the Respondent and asked for and was allowed eight days within which to leave the house. The Appellant was therefore permitted occupation of the house without payment of rent and in such circumstances, a tenancy at will is implied. See Buck v Howarth [1947] 1 A.E.R. 342.

The remaining question is whether a question of title arose on the evidence. It is brief and I quote it. "Plaintiff sworn statement states:-

"I live in Corozal Town. I know Defendant. In September, 1980 I had deal with Defendant. I bought a house from Defendant. House is at Cinderella Town, Orange Walk. I paid $4,000.00 for the house. Defendant asked me for 8 days to leave the house. Defendant has not delivered me the keys of the house. . On 2.2.81 I sent Notice to Defendant to quit house. This is the notice marked Exhibit A.V. 1. Defendant has not yet delivered house to me. I subsequently took action for Defendant to deliver house to me".

Cross-examined by Counsel Mr. Staine:- I need house as I have relatives in Orange Walk Town. I want my relatives to live in the house. I paid Defendant $4,000.00 for the house. I got receipt. There is no other document except the receipt. Transaction took place at Mr. Alpuche J.P. Both of us signed document but Mr. Alpuche kept it. Mr. Alpuche signed also. I don't remember what the document contained. I went to Lands Office to request transfer of lot in my name. I went alone. I was to get a piece of land to move the house.

Re-examined by Counsel Mr. Dujon: - I am lessee of land now. I know this document. This is paper whereby Minister gave land to me. I am paying rent for land where house is located. (attached)."

Mr. Staine for Appellant then submitted inter alia that this contention that title of land comes into dispute would be simply that the Defendant does not intend to relinquish any title on the lot. Having heard Counsel for the Respondent the magistrate ruled as follows:- Action before it is in respect of possession of house which Defendant still holds by keeping keys from new owner, and the issue is in respect of application for an ejection warrant and nothing else.

There was nothing on the evidence which raised a bona fide question of title to land. The jurisdiction of a magistrate is not ousted by mere pretence of title and mere assertion of right does not do so where the evidence before the magistrate makes it clear that the claim is wholly groundless and the magistrate was correct in ruling as he did. He adjourned for a week and at the next date of hearing heard evidence from the Appellant in which he said, inter alia, "I sold Plaintiff (Respondent) a house at Cinderella Town No. 12. I sold the lone house. I bought land from Jones. It concerns Government. I bought rights to the land. I did not sell rights to Plaintiff. Plaintiff should move the house. -----House is made of lumber. One could dismantle house from outside. ------No one tried to move house. ----I don't know if Jones has lease (to the land). I never agreed for lease to go to Plaintiff ---- I did not deliver keys to the Plaintiff as Plaintiff did not come with carpenter." Even then there was no evidence showing that he was raising a bona fide question of title to the land. If he was raising the question that the Respondent was not entitled to the land or entitled to remain on it, then his refusal to deliver keys so that the house may be removed would be inconsistent with that position and did not affect the question whether she was entitled to get possession of her house. Further, he admitted that the land on which the house stood was the Government's. That the Respondent had a lease of the land from Government. A document indicating such a lease was already in evidence. In effect, the Appellant's evidence reinforced the magistrate's view as already expressed. The order of the magistrate that the Appellant give up possession of the house to the Respondent was the correct one.

In considering what order this Court should make, I have taken into account that the Appellant having held over from 15th February, 1981 has been in use and occupation of Respondent's house wrongfully for 21 months. I have considered section 53(1) (e) of CAP 201 which allows a magistrate on an order for recovery of possession also to suspend date of possession subject to such condition as he thinks fit and section 139(1) (c) of CAP 5 which empowers this Court to make any order for disposal of the cause which justice requires.

The appeal is dismissed. The Appellant to give up possession within 7 days or ejectment warrant to issue. To pay Respondent $150 for use and occupation of house and costs of appeal.

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