⦿ CASE SUMMARY OF:
Mobil Oil (Nigeria) Limited v. J. M. Johnson (1961) – SC
by PipAr Chima
⦿ LITE HOLDING
The parties conduct determines what relationship exist between the parties, whether landlord & tenant or licensor & licensee; the document does not determine what the relationship between both parties is.
⦿AREA OF LAW
Mobil Oil (Nigeria) Limited
J. M. Johnson
(1961) All N.L.R. 102
Federal Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
The plaintiff thereby an action against the defendant Company claiming as follows-
(A) £5,000 general and special damages for unlawful entry of the defendants on the petrol filling station.
(B) An account of the stock taken over by the defendant at the filling station on the 30th August, 1956 and payment over of what is found due to the plaintiff upon the taking of the said account.
(C) The return of all documents belonging to the plaintiff and which were at the Station on the 30th August, 1956.
The defendant Company filed a counter-claim against the plaintiff, but for the purposes of this appeal we are concerned mainly with the claim of £5,000 damages for unlawful entry as in (A) above.
In a considered Judgment, the learned trial Judge stated that the two main issues which arise are:- 1. What is the legal relationship between the plaintiff and the defendant company? 2. In view of that relationship, is the notice a valid notice?
He arrived at the conclusion that the relationship was that of a lessor and a lessee and that the notice to quit was bad in law. He then proceeded to assess the plaintiff’s claim for loss of earnings at the rate of £150 per month and allowed him £75 for loss of earnings for two weeks.
It was not in dispute that the petrol station was the property of the defendant nor was it in dispute that the defendant did operate the station under an agreement contained in a letter exhibit A dated the 14th November, 1955. On the 31st day of July, 1956 the defendant Company by a letter bearing that date gave the plaintiff 30 days notice for the termination of the relationship between them under the agreement exhibit A. The letter was not received by the plaintiff until the 7th August, 1956. On the 30th August, 1956, the defendant took possession of the petrol station.
1. The learned trial Judge erred in law in construing that the agreement between parties exhibit “A” created the relationship of Landlord and Tenant.
2. Was the notice served on him a good and valid notice?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Looking at the substance of the matter, the agreement (exhibit A) aforesaid, can one conclude that the intention of the parties was to create a tenancy? A tenancy, when created, would be for a definite period; exhibit A states no determined period except that, with 30 days notice, either party may determine the agreement. Also the respondent would be earning commission on sales whilst he in turn would pay £25 per month for service charges and depreciation and maintaining of the building and equipment of the Company. He was to give personal attention to the work and must go through some training himself. All these seem to me to be matters purely between a licensor and a licensee and not enough to create a tenancy. Nor does the agreement refer specifically to any interest by the respondent in the land or premises other than the petrol filling station. One assumes that the building referred to in the agreement is no more than the filling station equipment and buildings on in it as was described in R.A. Balogun v. U.A.C. and another-FSC 121/1958 decided 16-2-59.
ii. In the present appeal, it is clear to me from the agreement itself (exhibit A) as well as from the circumstances of the whole matter and the conduct of the parties that it was never intended that a tenancy should be created; that the relationship between the parties was no more than that of a licensor and licensee.
2. ISSUE 2 WAS RESOLVED, PARTIALLY, IN FAVOUR OF THE APPELLANT AND THE RESPONDENT. THE COURT HELD THAT THE NOTICE WAS VALID.
i. It is clear that as a licensee (which was his true relationship to the appellant) he cannot maintain this action for a claim for damages for trespass. He would, of course, be entitled to 30 days notice under the agreement exhibit A. It is not disputed that a notice was served upon him. But according to his (the respondent) evidence, which the learned Judge accepted, the respondent did not receive the notice till the 7th August, 1956, and not on the 1st August, 1956 as was intended. As his privilege as a licensee could only be withdrawn by giving him 30 days notice under the agreement, it would appear the notice which was served upon him late was unreasonable to the extent of the seven days delay and he would be entitled to damages on the principle of Minister of Health v. Bellotti and Holiday (1944) 1 ALL E.R. 238. The damages, it was agreed, would be for loss of earnings for the seven days prior to the 7th August, 1956, the date he received the notice. On the calculation of the learned trial Judge when he awarded £75 for half a month’s earning, it would appear that all the respondent is entitled to is the sum of £37-10s-0d.
⦿ CONTRIBUTIONS OF OTHER JUSTICES TO ISSUE(S)
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
Isaac v. Hotel de Paris Limited (1960) 1 ALL E.R. 348, it was held that the intention of the parties and the conduct of the parties must be the deciding factor whether a tenancy has been created or the relationship was merely that of a licensor and licensee even though there was exclusive possession by the appellant and the acceptance of the amount of the rent by the respondent company.
⦿ REFERENCED (OTHERS)
Halsbury 3rd Edition at 427, paragraph 1022, as follows:- In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such; the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement, nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intended merely to confer a licence.
⦿ NOTABLE DICTA
The learned trial Judge considered the somewhat exclusive character of the occupation of the petrol station by the respondent and gave weight to some expressions used in the agreement as words indicating that a tenancy as distinct from a licence is the subject matter of the agreement. I have not the slightest doubt he was right in considering these expressions: he was right in considering the character of the occupation; but it appears to me it was his duty to do more than this. It was also his duty to consider the conduct of the parties as well as their intention, particularly when such intention is ascertainable from the document or agreement as a whole. – Ademola, CJF. Mobil v. Johnson (1961)