MRS. B. AKINRELE & ORS. v. ALH. Y. O. YAGBOYAJU
(2011)LCN/4420(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of March, 2011
CA/I/25/03
RATIO
APPLICATION FOR ADJOURNMENT: WHETHER ILLNESS OF COUNSEL IS A GOOD REASON TO GRANT AN APPLICATION FOR ADJOURNMENT
I would agree with Alhaja Ayoola of learned counsel for appellants that the court below did not act judicially and judiciously in refusing the adjournment sought by her on ground- of ill-health. See saraki v. Alsthom and Another (2005) 1 SCNJ 1 at 16 cited by appellants, learned counsel. The uneven-handed manner the request for adjournment was refused by the court below warrants the intervention of this court. Illness of counsel is always taken as a good reason to grant an adjournment, as the benefit of the doubt is always given to counsel in such circumstances. The Supreme Court did so without expecting medical report from counsel in the cases of University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 and Solanke v. Ajibola (1968) 1 ALL NLR 46. And, of significance was the fact that the learned counsel for respondent did not express opposition to the adjournment sought in the court below. In solanke v. Ajibola (supra), for instance, the Supreme Court held inter-alia at page 54 that: “WE consider that the fact that the defendant’s counsel merely asked for an adjournment due to the sickness of the defendant on the 9th November, 1965, and then wrote asking for an adjournment owing to his own sickness on 14th December, 1965 did not warrant the assertion of the learned trial judge that the defendant was not willing to defend the action….” See also University of Lagos v. Aigoro (supra) thus: “As to the alleged ill-health of Mr. Cole, it seems to me out of the usual practice to demand a medical certificate after Mr. Martins had from the Bar informed the court that his learned senior was indisposed.” Also, the refusal for adjournment had the unsavoury backlash of penalizing the innocent appellants for the misfortune of their learned counsel contrary to the established practice of not punishing litigants for the lapses of their counsel – see the cases cited (supra) on the issue especially Doherty v. Doherty. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
AWARD OF COSTS: PRINCIPLE GUIDING THE AWARD OF COSTS
Let me start on the issue of costs by referring to the principle guiding the award of costs restated by the supreme court in the case of Nigeria Bank For Commerce And Industry and Another v. Alfijir (Mining) Nigeria Ltd. (1999) 11-12 SCNJ 294 at 312 – 313 thus: “Issue 4 concerns the costs awarded by the trial court. It is trite law that a court has an absolute and unfettered discretion to award or refuse costs in any particular case but that discretion must be exercised judicially and judiciously. Usually costs follow the events and are not awarded as a punitive measure nor are they designed or meant to be a bonus to the successful party. And although granted by way of an indemnity to a successful party, an unsuccessful party ought not to be damnified for no good reasons, See Adenaiya v. Governor in Council Western Region (1962) 1 S.C.N.R. 442; Rewane v. Okotie-Eboh (1960) W.R.N.L.R. 151 at 159; U.B.N. Ltd. v. Nwokolo (1995) 6 N.W.L.R. (Pt. 400) 127 at 151- 152.” But the discretion in awarding costs must be exercised judiciously and judicially, not on hunch. See The Words of Lord Halsbury L. C., in Sharp v. Wakefield (1891) A.C 173 at 179. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
INTERFERENCE WITH THE AWARD OF COSTS: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE AWARD OF COSTS MADE BY THE TRIAL COURT
Like any discretionary remedy, the appellate court will be loath to disturb its exercise by the court below, unless there is material in the printed record of the court below showing the discretion was exercised arbitrarily, mala fide, or was influenced by irrelevant consideration at the expense of relevant considerations producing injustice to the other party in its wake – see University of Lagos and Another v. Aigoro (supra) particularly at page 148 thus: “Thus an appeal court may interfere with the exercise of judicial discretion if it is shown that…. The tribunal (or court) acted under misconception of law or under misapprehension of facts in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere…..” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
COSTS: PURPORT OF COSTS; WHETHER THE SUCCESSFUL PARTY MUST ITEMIZE HIS REALISTIC OR NECESSARY EXPENSES ARISING FROM THE SUIT IN THE REQUEST FOR COSTS
Costs are meant to meet the actual and legitimate expenses of the successful party incidental to or necessarily connected with the case. The successful party, except in cases the costs are statutorily fixed like in this Court and the Supreme Court, for example, must itemize his realistic or necessary expenses arising from the suit in the request for costs and the awarding authority shall assess the appropriate quantum to award as costs against the unsuccessful party based on the itemized request. – see Akinbobola v. plisson Fisco Nigeria Ltd. (1991) 1 NWLR (Pt. 167) 270 followed in Layinka and Another v. Makinde and Others (2002) 5-6 SCNJ 77 at 92; and Order 53 rule 7 of the Rules of the court below (supra). PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
MRS. B. AKINRELE & ORS. Appellant(s)
AND
ALH. Y. O. YAGBOYAJU Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal arose from the decision of the High court of Justice of Oyo state holden at Ibadan dismissing appellants’ claims to forfeiture and for recovery of possession of a leasehold lying and situate at No.71 Lebanon street, Ibadan and awarding N130.00 per annum arrears of rent on the demised premises from January, 1985, to the date of judgment with 10% post judgment interest thereon to appellants against respondent.
Paragraph 23 of the amended statement of claim spotlighted the reliefs sought by appellants as plaintiffs against respondent as defendant.
Put in brief, appellant had through the Executors of the will of one late Isaac Babalola ogun demised to one Joseph Nahman, a sublease of the landed property located at No.71 Lebanon street, Ibadan, for a term of fifty nine years and eleven months starting on 11.9.1953. The consideration for the sublease was 65 (pounds) (sixty five pounds). The sublessee assigned the residue of the term to one Kassim Hajaig on 11.4.1958. Kassim Hajaig in turn assigned what was left of the sublease to respondent on 1.3.1971, on consideration of 25, 000.00 (pounds) (Nigerian currency), making respondent the sublessee of the Executors of the will of late Isaac Babalola Ogun.
Respondent fell into arrears of rent from the moment he took possession of the demised premises in 1971. Equally respondent defaulted in paying the ground rent until pressure was put on him by the sublessor before he made a refund of the paid arrears of the ground rent to the sublessor.
The arrears of rent on the sublease remained outstanding. The sublessor granted a power of Attorney on 29.5.1996, to appellants, in respect of the demised premises. Appellants, acting through their solicitors, caused a notice to be served on respondent to remedy the breach of the covenants of the sublease on pain of forfeiture of the demised premises.
The respondent did not react to the notice, which occasioned the suit in the court below. Appellants assertion on the annual rent being in the first instance pegged on 65 (British pounds) in 1953, and having risen to 25,000.00 (pounds) in the Deed of Assignment dated 1.3.1971, could not have been the Nigerian pound affected by the Decimal Currency Act, 1972, was rejected by the court below which preferred the respondent’s assertion that the Decimal Currency Act, 1972, affected the lease entered into in 1953. Consequently the rent payable per annum on the demised premises was N130.00 at the rate of 1 (pounds) to N2.
The court below also found for respondent on forfeiture and recovery of the demised premises, after finding as a fact that respondent had been in arrears of rent for 14 years, reasoning that respondent was not served notice required by section 161 of the Property and Conveyancing Law of Oyo State before the suit was commenced against him.
Appellants’ notice of appeal against the said decision of the court below has seven grounds of appeal from which five issues were framed, with issue (1) tied to grounds 1 and 2 of the appeal, issue (2) to ground 3 of the appeal, issue (3) to ground 4 thereof, issue (4) to grounds 5 and 7 thereof, and issue (5) to ground 6 thereof.
Arguments on issue (1) ventilated service of the requisite notice of forfeiture in Exhibit D on respondent before the commencement of the suit by appellants against him in the court below, which respondent admitted in examination-in-chief, coupled with 1st P.W’s evidence on the issue in proof of service of the said notice contrary to the findings of the court below that no such notice was served on respondent; consequently section 161 of the Property and Conveyancing Law of Oyo State was met by appellants.
It was argued in the alternative that Exhibit D is a documentary piece of evidence available for examination on the appeal by the Court in line with the cases of Eze v. Attorney-General, Rivers State (2002) FWLR (pt. 89) 1109 at 1127 and Iwo Local Government v. Adigun (1992) 6 NWLR (pt. 133) 494; all the more so the court below had, contrary to established practice, raised the issue of service of the notice suo motu without affording the parties the opportunity to comment on it, in breach of the decisions in the cases of Oyekanni v. N.E.P.A (2001) FWLR (Pt.34) 404 at 429-30, Abimbola v. Abatan (2001) FWLR (Pt.48) 989 at 1001, Governor/of Gongola State v. Tukur (1989) 9 NWLR (Pt.117) 592, Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 400, Eholor v. Osayande (1992) 6 NWLR (Pt.249) 524, Imah v. Kogbe (1993) 1 NWLR (Pt.316) 159, Ajuwon v. Akanni (1993) 1 NWLR (Pt.316) 182 and Ajikawo v. Ansaldo Nig. Ltd. (1991) 2 NWLR (Pt.173) 359 at 373.
Issue (2) tackled the refusal of the court below to grant the adjournment sought by appellants’ learned counsel on 8.5.2002, on ground of ill-health. The request for the adjournment occurred in the course of the proceedings after respondent finished his evidence in examination-in-chief, without objection from the respondent learned counsel, yet the court below refused to grant the adjournment which, according to appellants’ learned counsel was arbitrary and an infringement of appellants’ constitutional right to fair hearing citing in support the case of United Spinnerrs Ltd. v. Chartered Bank Ltd. (2001) FWLR (Pt.66) 640 at 657, on judicial discretion.
Submissions on issue (3) agitated that the court below found as a fact that the head lease was entered into in 1953, on consideration of 65 (pound) per annum, and the subsequent assignments of the head lease were governed by it and, with the holding that the head lease was intact and the parties are bound by their written agreement in the Deed of Lease, it behoved the court below to also hold that the British pound controlled the leasehold or its equivalent in Naira, as the Decimal Currency Act,1972, did not have retrospective effect on the 1953 head lease. The expert evidence of 3rd P.W from the Central Bank of Nigeria (C.B.N.) on the value of the British pound and Nigerian Currency been at par between 1962 and 1973 was commended to the court in the course of appellants’ written case on issue (3).
It was contended on issue (4) that appellants should not have been condemned in costs of N640 having succeeded in part in the suit with acknowledgement from the court below that their action was not frivolous, which should have attracted costs in their favour instead.
Issue (5) revisited issue of service of the notice of forfeiture of the head lease on respondent by appellants before the suit was filed in like manner it was canvassed under issue (1) (supra) by appellants’ learned counsel, Alhaja Ayoola, who urged the appeal to be allowed on all the issues raised and argued in appellants’ brief.
Respondent/cross-appellant’s brief of argument dated and filed on 11.12.06, was settled by Dr. Ajibade of learned counsel. He started by conceding issue (1) of the appellants with the caveat that the error committed by the court below advocated under issue (1) was not material and did not occasion a miscarriage of justice to warrant the setting aside of the judgment of the court below, as the said court none-the-less arrived at a correct decision vide the case of Ajuwon v. Akanni (1993) 9 NWLR (pt. 316) 182 at 205.
The brief of respondent/cross-appellant proceeded by formulating four issues for determination marrying issue 1 to ground 3 of the appellants’ notice of appeal, issue 2 to ground 4 thereof, issue 3 to grounds 5 and 7, and issue 4 to ground 6 thereof.
Three issues were framed from the three grounds of the cross-appellant, a notice of appeal with issue 1 relating to ground 1 of the appeal, issue 2 to ground 2 thereof, and issue 3 to ground 3.
The respondent/cross-appellant also raised a preliminary objection against issue (3) of the appellants’ issues for determination predicated on ground 3 of their notice of appeal upon which respondent/cross-appellant’s brief argued that the exercise of discretion to refuse or grant an adjournment is an issue of mixed law and fact requiring leave of the court below or the Court of Appeal under section 242 of the Constitution of the Federal Republic of Nigeria 1999 (the 1999 Constitution) before an appeal may be lodged against it within 14 days as required by section 25(2) (a) of the court of Appeal Act, 2004, read together with section 25(4) thereof on extension of time to appeal which, according to respondent/cross-appellant, s written case, were not fulfilled by appellants, consequently ground 3 of their notice of appeal together with issue 2 covering it are incompetent and should be struck out vide the cases of Omonuwa v. Oshodin (1985) 2 NWLR (PT 10) 924 at 938, Afolabi v. Ogunbor (1992) 8 NWLR (PT 257) 115 at 124, and C.B.N. V. Okojie (2002) 8NWLR (PT 68) 48 at 61-62.
Respondent/cross-appellant’s brief contended on issue (1) that the court below acted judiciously and judicially in refusing the request for adjournment taking into account the circumstances of the request showing appellants, counsel was not believed on the issue of her illness and no medical report backed up complaint ill-health vide the cases of Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628 at 647, Odusote v Odusote (1971) 1 NWLR 228 at 231, Okeke v. Oruh (1999) 6 NWLR (Pt. 606) 175 at 188 and United Spinners Ltd. v. Chartered Bank Ltd (2001) 14 NWLR (Pt.732) 195 at 219-220.
Respondent/cross-appellant contended on issue (2) that the crux of the case was the currency on the rent of the demised premises, which is Nigerian Currency, not British pound sterling, as borne out by 1st P.W’s evidence, Exhibits H1 and H2, and caught by the Decimal Currency Act, Cap.92 Laws of the Federation 1990, and supported by the evidence of the expert witness from the Central Bank of Nigeria.
It was argued further on issue (2) that appellants’ side had received arrears of rents of N130.00 per annum from previous tenants as the equivalent of 65.00 (pounds) which should estop appellants from stating the contrary vide Ude v. Usuji (1998) 13 NWLR (Pt. 580) 1, Oyerogba v. Olaopa (1998) 13 NWLR (Pt. 583) 509 at 519 and Yusuff v. Dada (1990) a NWLR (Pt. 146) 657 at 681.
Respondent/cross-appellant’s brief supported the award of costs to respondent under issue (3) on the basis that appellant did not ask for costs on the day of delivery of judgment, while the respondent did, and following Order 53 Rules 3, 4, and 7 of the Oyo State High Court (Civil Procedure) Rules, 1988, the court below exercised its discretion properly in awarding costs to respondent.
Arguments on issue (4) reiterated arguments on appellant’s issue (1) and added that aside Exhibit D, the notice of forfeiture, arguments in respect of non evaluation of evidence by the court below were based on matters of law and on matters evidence was not led by appellants in support thereof.
The cross-appellant’s first issue for determination was on the competence of the cross-respondents to institute the action in the court below when, according to the cross-appellant, there was evidence from 1st p.w that two of the trustees and Executors of the will of late Isaac Babalola Ogun were in Nigeria at the time of the institution of the action in violation of sections 3 (1) and 16 of the Trustees Law, (cap. 128) Laws of Oyo State, 1978, which should render the action incompetent on ground of lack of locus standi – Emecheta v. Ogueri (1997) 8 NWLR (Pt. 516)
323 at 337 and Anuforo v. Obilor (1997) 11 NWLR (PT. 530) 661 at 677.
Arguments on the cross-appellant’s first issue added that reasoning of the court below on the physical state of the surviving trustees and the general couching of the Power of Attorney sufficed to clothe cross-respondents with the standing to sue were irrelevant to the issue of locus standi and did not exonerate compliance with the relevant provisions of the Trustees Law of Oyo State (supra) and sections 24, 25, and 26 thereof, by the two trustees.
It was submitted by the cross-appellant on issue two of the cross-appeal that the action for recovery of rent was caught by sections 18, 24(c) (iii), 30(1) (2), and (3), and 31 of the Limitation Law No. 12 of Oyo State having been brought outside five years without written acknowledgement by cross-appellant of his indebtedness to the cross-respondents, and, that section 43 (d) of the said Limitation Law was wrongly applied by the court below to exclude recovery of arrears of ground rents already paid to the cross-respondents during the period the action was statute-barred.
The cross-appellant submitted on issue three of the cross-appeal that he pleaded relief from forfeiture in paragraphs 9 and 10 of the amended statement of defence and made a case for the grant of his counter-claim, a separate cause of action, which the court below did not pronounce on, nor make an express order in his favour granting him the said relief from forfeiture of the sublease contrary to the case of Ajao v. odofin (1999) 12 NWLR (Pt. 631) 471 at 478 and the works of Megarry and Wade on the Law of Real Property, (5th Edition) pages 675 to 676.
Appellants/cross-respondents filed a reply brief/cross-respondents’ brief of argument on 24.1.08, but deemed properly filed on 3.7.08, in which it was argued that the leave of this court was granted to appellants on 12.7.07, to file the appeal against the order of the court refusing their learned counsel an adjournment and, the said appeal was duly filed; that the court below took into account irrelevant factors by referring to past adjournments to refuse learned counsel for appellants’ request for adjournment in violation of their right to fair hearing and in breach of principle of law of not suffering litigants for “sins” of their counsel vide the cases of Mulima v. Goniram (2004) FWLR (Pt. 228) 751, Doherty v. Doherty (1964) ALL NLR 299. Agbogu v. Adiche (2002) FWLR (Pt. 127) 1202, Fagbule v. Rodrigues (2003) FWLR (Pt. 137) 1171, Nigeria Seed Cotton Co. Ltd. Commerce and Industry Ltd. (2002) FWLR (Pt. 125) 944 at 945 and Alsthom S. A. v. Saraki (2005) FWLR (Pt. 246) 1385.
The reply brief argued on the second issue that the evidence on the rent of the lease being N2.00 to 1.00 (pounds) was elicited under cross-examination without any piece of pleadings in support and should be ignored vide Shell Petroleum Dev. Co. Ltd. v. Araro (2001) FWLR (Pt.50) 1815, Dina v. New Nigerian Newspapers Ltd (1986) 2 NWLR (Pt. 22) 353, Punch Nigeria Ltd, v, Eyitene (2002) FWLR (Pt. 125) 678 and Ogunmakinde v. Akinsola (2002) FWLR (Pt. 105) 781.
The reply brief contended on the issue of costs that by Order 53 rule 7 of the Rules of the court below, appellants were entitled to costs, adding that there was no indication respondent had asked for costs, nor did the court below give any reason and basis for awarding costs of N640 to respondent in its judgment, only for the issue of the award of costs to later emerge in the enrolled order of the court, showing the court below did not exercise its discretion in the award of costs judicially and judiciously.
Cross-respondents’ brief of argument contended on the issue of locus standing of cross-respondents to institute the action in the court below that the submissions of cross-appellant in paragraphs 5.1.9 and 5.1.10 of his brief are not covered by any ground of appeal and should be discountenanced; that by paragraph 4 of the Power of Attorney it was to the residue of the estate that the said authorization applied and, by sections 3 (1) (4) and 16(a) of the Trustee Law of Oyo State the power of Attorney was validly issued to cross-respondents; also in respect of unforeseen emergencies the trustees would be right to delegate authority to sue to other persons vide Boystead on Agency (8th Edition) 109.
Cross-respondents contended further that what was in issue was not the will, but the residue of the estate, and cross-appellant who asserted the issue of locus standi failed to prove it by showing the will did not make provision for Power of Attorney to be issued by the trustees to other persons as required by section 135 of the Evidence Act; that the cross-appellant’s learned counsel acknowledged the 1st P’W as the Attorney to the Executors of the Will, recalled him to the witness-box and put in some documents in evidence through him in the court below precluding cross-appellant from challenging his standing to sue in the matter at address stage of the proceedings, when such an issue should have been raised as a preliminary point of law vide the cases of Owodunni v. Registered Trustees, Cetestial Church (200) FWLR (PT. 9) 1455) at 1459, in Ilori v. Benson (2000) FWLR (Pt.26) 1846 at 1850 and Re Ijelu and ors. V. LSDPC (1992) NWLR (Pt.266) 414.
Still on the issue of standing, the cross-respondents submitted that by paragraphs 2 and 5 of the amended statement of claim, the cross-appellant did not take the sublease, under any Will but under the document pleaded in paragraph 2 of the further amended statement of claim.
The cross-respondents’ brief referred to Woodfall on Landlord and Tenant (24th Edition) 1073 at 2333, to submit that of limitation enactment does not apply to a Deed of Assignment for a term of years read with sections 30(5) and 43(d) of the Limitation Law of Oyo State (supra) and the admission on oath by the cross-appellant that he was in arrears of rent vide sections 76 and 77 of the Evidence Act.
Cross-respondents replied on the alleged failure of the court below to expressly pronounce on the counter-claim that having regard to the dismissal of the claim to forfeiture, it was no longer necessary to pronounce on the counter-claim for relief from forfeiture, more so the cross-appellant did not meet the conditions for the grant of relief from forfeiture, as the only evidence from cross-appellant that he was willing to pay the arrears of rent and had offered to pay the rent at N130.00 per annum, but was rejected by cross-respondents, was not pleaded and went to no issue.
It was submitted finally by cross-respondents that cross-appellant was found by the court below to be an unsatisfactory tenant who would pay rent only under pressure, and added to it was the fact that he did not pay cross-respondents as landlords the expenses to which they were put; nor did cross-appellant prove it was just and equitable to grant the relief from forfeiture, justifying forfeiture of the tenancy vide Law of Real Property by Megarry and Wade at page 660.
In my considered view, the issues formulated by appellants and cross-appellant on the respective appeals are apt and same shall be followed on both appeals. Before the appeals are gone into on the merits, it is necessary to deal with the skirmishes on the preliminary issues first.
The notice of preliminary objection against ground (3) of appellants’ notice of appeal would appear not to have been filed separately as required by order 10 rule 1 of the Rules of this court, and should be incompetent under Order 10 rule 3 thereof. Be that as it may, our record shows the appellants were granted an extension of time to appeal and for leave to appeal in respect of ground 3 of the notice of appeal by this court on 12.7.07, pursuant to successful argument on a motion on notice dated 6.3.2007, but filed on 7.3.07 , upon which the said ground of appeal was filed. In the light of the above-stated situation, the preliminary objection on ground 3 of the appellants, notice of appeal is untenable and is hereby discountenanced.
Respondent conceded issue (1)of the appellants, issues for determination with candour, but added that the error was not material to the decision of the court below. I respectfully disagree. The error led to the decision of the court below to refuse the reliefs respecting recovery of possession and forfeiture of the lease.
The court below, regrettably, took the issue of service of the notice Suo motu without calling for arguments on it. See the host of cases cited (supra) on the issue by appellants’ learned counsel. The court below went on to conclude, erroneously, in my view, thus:
“By S.161 of the Property and Conveyancing Law of Oyo State, the Landlord must give notice before proceeding to enforce forfeiture; otherwise the forfeiture will be void …. In this case there is no evidence of any notice as is required by S.161 above… Accordingly I must refuse claims 1 and 2 for forfeiture and recovery of possession…”
In effect, the above error fundamentally and materially afflicted the decision of court below respecting the reliefs for forfeiture and possession of the demised premises. The said error, in my view, occasioned a miscarriage of justice by denying appellants their claim based on Exhibit D and the admission by respondent in the court below that he was served the requisite notice in Exhibit D before the action commenced against him. The case of Total (Nig.) Ltd. and Another v. Nwako and Another (1978) 5 S.C 1 at page 14 said of miscarriage of justice thus:
“….. A miscarriage of justice, i.e. miscarriage of justice which in this con means (as ably defined by Lord Thankerton in the case of Bilhabati Devi v. Kuma Ramendra Naravan Roy (1946) AC 508 at 521) “such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all.”
See also Chief Akpan v. Senator Bob and Others (2010) 17 NWLR (Pt. 1223) 421 at 479. Issue (1) of the appellants, issues for determination is, accordingly, resolved in their favour.
The court below did not rule one way or the other on the reason of ill-health on which appellants’ learned counsel asked for an adjournment. what preoccupied the court below was the adjournments granted in the past or previously, and the anxiety for the case to end, without specifically addressing the issue of ill-health of appellants’ learned counsel in the circumstance, showing it disregarded a relevant factor in the exercise of its discretion, in my view.
I would agree with Alhaja Ayoola of learned counsel for appellants that the court below did not act judicially and judiciously in refusing the adjournment sought by her on ground- of ill-health. See saraki v. Alsthom and Another (2005) 1 SCNJ 1 at 16 cited by appellants, learned counsel. The uneven-handed manner the request for adjournment was refused by the court below warrants the intervention of this court.
Illness of counsel is always taken as a good reason to grant an adjournment, as the benefit of the doubt is always given to counsel in such circumstances. The Supreme Court did so without expecting medical report from counsel in the cases of University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 and Solanke v. Ajibola (1968) 1 ALL NLR 46. And, of significance was the fact that the learned counsel for respondent did not express opposition to the adjournment sought in the court below. In solanke v. Ajibola (supra), for instance, the Supreme Court held inter-alia at page 54 that:
“WE consider that the fact that the defendant’s counsel merely asked for an adjournment due to the sickness of the defendant on the 9th November, 1965, and then wrote asking for an adjournment owing to his own sickness on 14th December, 1965 did not warrant the assertion of the learned trial judge that the defendant was not willing to defend the action….”
See also University of Lagos v. Aigoro (supra) thus:
“As to the alleged ill-health of Mr. Cole, it seems to me out of the usual practice to demand a medical certificate after Mr. Martins had from the Bar informed the court that his learned senior was indisposed.”
Also, the refusal for adjournment had the unsavoury backlash of penalizing the innocent appellants for the misfortune of their learned counsel contrary to the established practice of not punishing litigants for the lapses of their counsel – see the cases cited (supra) on the issue especially Doherty v. Doherty. Issue (2) is also resolved for appellants.
The head-lease was entered into in 1953. It pegged the rent on 65.00 (pounds) per annum. The court below found as a fact that:
‘The head lease was entered into in Nigeria in 1953. The subsequent assignments are governed by it………… parties are bound by their agreement.”
There was no quarrel on the appeal on the above finding. Nor was any valid reason advanced to upset the said finding, I would affirm it. The 1953 pound was the British pound. Because Nigeria was then using British currency as her colony. The head-lease in Exhibit A had expressed the annual rent in British pound sterling without provision for alteration or amendment to any other currency.
Also, it is significant that appellants, amended statement of claim had requested for the recovery of the rent on the demised premises in pound sterling in the first instance. Paragraph 23(3) and (4) thereof averred:
“WHEREFORE, plaintiffs claim against the Defendant as follows:-
3. Sixty Five pounds annual rent or N10, 400 as at today from the 1st day of January, 1972 to 31st day of December, 1999 being unpaid reserved annual rent as per the instrument of a sublease registered as Number 31 at page 31 in volume 74, due from the Defendant to the plaintiffs.
4. Sixty five pounds or N10, 400 per annum on every 1st day of January, 2000 until judgment.”
The court below found as a fact that respondent was in arrears of rent from January 1985; up to the date it gave judgment on 31.5.2002. The said finding was not questioned on the appeal or on the cross-appeal. I affirm it having been supported by the weight of evidence in the printed record.
As stated earlier, Exhibit A, the head-lease, dated 11.9.1953, expressed the amount of rent in pounds. The court below held, aright, in my view, that the subsequent under-leases or assignments in Exhibits B and C were governed by the terms contained in the headlease in Exhibit A.
The court below held further that it “cannot import into the lease terms which parties had not agreed to,” yet the court below, with respects, ate its words by using a conversion table to express the rent in the Naira currency using the Decimal Currency Act (supra).
I am of the considered view that the court below was bound to enforce the terms of agreement of the parties on the rent fixed on 65 (sixty-five pounds) annually in accordance with the Deed of Lease in Exhibit A, It should not have gone into the tedium of conversion of the rent from pounds to Naira using back-dated 1973 conversion table as watershed. This led the court below to erroneously, in my view, arrive at N130.00 per annum as rent for the demised premises contrary to the express agreement of the parties in Exhibit A that the rent be 65 (sixty-five pounds) per annum.
I think the court below was wrong in doing so. It should have awarded the arrears of rent in pound sterling based on the exchange rate at the time it gave judgment to accord with paragraph 23(3) and (4) of the amended statement of claim (supra) and the terms of agreement on the rent in Exhibit A – see Maskinfabric A/S v, Olaogun Enterprises Ltd. (1999) 11 – 12 SCNJ 171 at 188 per the lead judgment of Ayoota, J.S.C., (as he was).
The contention of respondent that 1st P.W admitted 1 (pounds) to N2 as the conversion rate of the tenancy and was on that basis estopped from claiming on the current conversion rate was, as rightly submitted by appellants learned counsel, not pleaded. Unpleaded matters elicited under cross-examination go to no issue and must be discounted – see the series of cases cited (supra) on the issue by appellants’ learned counsel and in addition Sommer v, Federal Housing Authority (1992) 1 SCNJ 73.
At any rate, the collection or acceptance of the arrears of rent by appellants’ side from respondent at a reduced rate shown in Exhibits H1 and H2 for 1971 to 1984, compromised the issue of rents for that period only. It did not, in my view, extend to the period covered by the suit – 1985 to date. See by analogy peter Onwuta v. The Niger Company, Ltd. 7 N.L.R. 79 at pages 80 – 81.
Issue (3) is also resolved in appellants, favour. The award of N130.00 annual rent on the demised premises made by the court below is rectified to 65 (pounds) per annum from 1985, to the date the tenancy is determined, and, the said corrected award of 65 (pounds) per annum for the affected years shall be paid by respondent to appellants on the prevailing exchange rate from pound sterling to the Naira currency at the time of the satisfaction of the judgment debt by respondent.
Let me start on the issue of costs by referring to the principle guiding the award of costs restated by the supreme court in the case of Nigeria Bank For Commerce And Industry and Another v. Alfijir (Mining) Nigeria Ltd. (1999) 11-12 SCNJ 294 at 312 – 313 thus:
“Issue 4 concerns the costs awarded by the trial court. It is trite law that a court has an absolute and unfettered discretion to award or refuse costs in any particular case but that discretion must be exercised judicially and judiciously.
Usually costs follow the events and are not awarded as a punitive measure nor are they designed or meant to be a bonus to the successful party. And although granted by way of an indemnity to a successful party, an unsuccessful party ought not to be damnified for no good reasons, See Adenaiya v. Governor in Council Western Region (1962) 1 S.C.N.R. 442; Rewane v. Okotie-Eboh (1960) W.R.N.L.R. 151 at 159; U.B.N. Ltd. v. Nwokolo (1995) 6 N.W.L.R. (Pt. 400) 127 at 151- 152.”
But the discretion in awarding costs must be exercised judiciously and judicially, not on hunch. See The Words of Lord Halsbury L. C., in Sharp v. Wakefield (1891) A.C 173 at 179.
Like any discretionary remedy, the appellate court will be loath to disturb its exercise by the court below, unless there is material in the printed record of the court below showing the discretion was exercised arbitrarily, mala fide, or was influenced by irrelevant consideration at the expense of relevant considerations producing injustice to the other party in its wake – see University of Lagos and Another v. Aigoro (supra) particularly at page 148 thus:
“Thus an appeal court may interfere with the exercise of judicial discretion if it is shown that…. The tribunal (or court) acted under misconception of law or under misapprehension of facts in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere…..”
The judgment of the court below ended on page 70 of the printed record. No costs were awarded in the judgment. It was the enrolled order at page 71 of the record that stated on costs that:
“There shall be costs of N640.00 in favour of Defendant.”
I think the enrolled order (supra) brought in the order of costs unsupported by the judgment of the court below. It should not have been so. Second, there is nothing in the printed record showing any of the parties asked for costs. The award of costs appeared to have been done suo motu by the court below when its relevant Rule of court (supra) does not statutorily fix the quantum of costs to award a successful party. There should have been material in the record showing respondent asked for costs, and proved his just entitlement for its award.
Curiously, also, was the award of costs against appellants, in-spite of the holding of the court below that:
“In the result, I find that the plaintiff’s case has succeeded in part…..”
A party adjudged successful in litigation should not be condemned in costs, unless any good reason is established against such a party connected with the case to damnify him in costs, which was not the case here. The court below, in my view, acted under a misconception as to a material fact respecting the award of costs against appellants after acknowledging that appellant had “succeeded in part.” – see Worbi and others v. Asamanyuah and others (1955) 14 WACA 669 at 671, 672. In my considered view, the appropriate order the court below should have made was for the parties to bear their costs – see Gariba and others v. Ibrahimah (1951) 13 WACA 171 at 173 and Maskin fabric A/S v. Olaogun Enterprises Ltd. (1999) 11-12 SCNJ 171 at 189.
Besides, quite apart from the fact that respondent appeared not to have asked for costs in the court below, the lump sum of N640.00 awarded as costs to him was not particularized or itemized. Costs are meant to meet the actual and legitimate expenses of the successful party incidental to or necessarily connected with the case. The successful party, except in cases the costs are statutorily fixed like in this Court and the Supreme Court, for example, must itemize his realistic or necessary expenses arising from the suit in the request for costs and the awarding authority shall assess the appropriate quantum to award as costs against the unsuccessful party based on the itemized request. – see Akinbobola v. plisson Fisco Nigeria Ltd. (1991) 1 NWLR (Pt. 167) 270 followed in Layinka and Another v. Makinde and Others (2002) 5-6 SCNJ 77 at 92; and Order 53 rule 7 of the Rules of the court below (supra).
From what has fallen from me so far on the issue of costs, it is clear to me that the court below did not exercise its discretion judiciously and judicially in awarding costs of N640.00 against appellant. Issue (4) on award of costs succeeds. The said award is hereby set aside.
Since the court below adjudged both parties partly successful in the litigation, the appropriate order it should have made was for the parties to bear their costs. Section 15 of the Court of Appeal Act, 2004, is hereby invoked by entering the order for both appellants and respondent to bear their costs in the court below.
Issue (4) of appellants’ issues for determination dovetailed in issue (1) of their issues for determination. Accordingly, I adopt my discourse in respect of the said issue (1) for issue (4).
A threshold issue arising from the cross-appeal is whether the action was statute-barred. The action was in respect of acts done under Deed of Assignment that created a term of years which had not expired. Woodfall on Landlord and Tenant (supra) cited by Alhaja Ayoola of learned counsel for the appellants stated aptly at page 2333 that:
“If there be a term created by deed, and such term has not expired, the statutes of limitation have no application, For, however, long a term rent may have been omitted to be paid, the landlord’s right to re-enter subsists for the whole length of the term.”
The above quotation equally applied to the claim for recovery of paid arrears of ground rents, as the ground rents ran with the fixed term of years created by the headlease in Exhibit A.
Also, there is no specific provision in the Limitation Law of Oyo State, as conceded by respondents learned counsel, affecting this category of dispute and; in my respect view, it will be inappropriate to over-strain the said Law for the purpose of fishing for an implied provision therein to bar the present action, as Limitation enactments are strictly or narrowly construed leaning or slanting on the side of saving the cause of action.
Added to the above is the fact that one of the covenants agreed to by respondent in the Deed of Assignment was the revival of arrears of rents and other covenants for enforcement by appellants. Clause 3(1) of the headlease, Exhibit A, provides inter-alia in that regard:
‘3 provided always and it is hereby agreed as follows:
(1) If the rent hereby reserved or any part thereof shall be in arrear for one month….. The sublessors by themselves….. may re-enter upon the premises and the term hereby created shall cease and determine but subject to the rights and remedies of the sublessors for or in respect of any rent in arrear or any breach or non – observance of any of the covenants on the party of one sublessee to be performed or observed.” (My emphasis)
By the above underlined portion of clause 3(1) of Exhibit A the parties are taken to have solemnly promised exclusion of operation of the lapse of time in respect of recovery of arrears of rents or enforcement of the covenants and cannot resile from it, in my view. Moreover, a continuous breach of the covenants in question was established against the respondent/cross-appellant. See the apt decision in Ajao v. Haightons (West Africa) Ltd. (1972) 9 CCHCJ 82, where Adebiyi, J., held rightly, in my view that:
“The breaches complained of here are continuing ones and clearly the acceptance of that rent cannot be a waiver of future breaches of which the landlord has no advance knowledge…..”
The other threshold issue is the standing of appellants to sue. The issue was raised in the court below, which held, aright, in my view, inter-alia that:
“There is evidence which I accept that two of the Executors are deceased while the last one is aged and cannot attend court. Besides the power of Attorney, Exhibit S is made in general terms to cover the residue of the estate of the deceased testator. I therefore find that the plaintiffs are competent to act for the Executors…”
Further, learned counsel for respondent in the court below acknowledged 1st P.W as the Attorney to the Executors of the will and dealt with him on that basis in the court below where he caused some documents to be tendered through him, consequently it will be wrong for respondent to approbate and reprobate at the same time on the said factual situation. See also section 16 and in particular subsection (4) thereof of the Trustee Law of Oyo state (supra) relied upon by appellants, learned counsel.
To be specific, clause 1(3) and (4) of the power of Attorney, Exhibit E, stated:
“(3) That since the death of the testator, two of the Executors have since passed away i.e. CHIEF D. A. JACOBS and MR. J. A. SHOKUNBI.
(4) That the Surviving Executors have continued to act as Executors but due to old age will like to appoint the below mentioned persons to carry out on their behalf all the functions that would have been expected of them as the Executors of the above mentioned WILL.”
The words “below mentioned persons” in clause 1 (4) of Exhibit E (supra) referred to the appellants stated in clause 2 of Exhibit E as the persons donated the Power of Attorney in question. Clause 2 (e) of Exhibit E gave them powers inter-alia:
“To commence/ prosecute, compromise and generally to undertake all legal matters relating to the aforementioned Estate.”
Exhibit E clothed appellants with the standing to sue, in my view. Surely the leasehold as trust property needed protection. The incapacity of the trustees preventing them from protecting the trust property caused the instrument in Exhibit E to be made putting the appellants in their shoes from which the appellants, in my view, derived their standing to sue in the case.
I agree with Dr. Ajibade of learned counsel for cross-appellant that the court below did not make a specific or explicit finding on the counterclaim. After refusing cross-respondents’ claim to forfeiture of the sublease, the court bellow appeared to have left the issue of the consideration of counter-claim to the inferred from the refusal of the claim to forfeiture. I think it should have been more appropriate for the court below to make a definite pronouncement on the counter-claim than leave it at the mercy of inference.
The printed record of the court below establishes that the determination of the counter-claim could not have been dependent on the demeanour or the credibility of witnesses, so section 15 of the Court of Appeal Act, 2004, shall be used in determining the said counter-claim.
The further amended statement of defence contained the counterclaim couched thus:
“10. If contrary to the defendants, contention it should be found that the defendant has become liable to forfeiture the defendant seeks to be relieved from the forfeiture on such terms as the court shall think fit.”
The court below did not believe the respondent that he was a good tenant. It found as a fact that he was an “unsatisfactory” tenant. The contention of the cross – appellant that he gave evidence of his willingness to pay the arrears of rent at N130 per annum but the cross-respondents rejected it was, as rightly submitted by cross-respondents’ learned counsel, not based on any piece of pleadings either in the further amended statement of defence,counter-claim or in the further amended statement of claim, therefore, the said material facts went to no issue and are hereby discounted – see Emegokwue v. Okadiobo (19730 3 ECSLR (pt.1) 267 at 270.
The cross-appellant as shown by the established evidence in the printed record was a hard or difficult tenant- He would not pay his rents as and when due. The rents fell in arrears- for a couple of years before the suit to recover them was filed. The notice to recover the demised premises in Exhibit D dated 26.6.2000, reminded him of payment of the arrears of rent on pain of court action against him. He did not honour the notice in Exhibit D. He showed no compunction. The cross-respondents were then put to the task of litigation. Yet the cross-appellant would not remedy or make good the remediable breach. He resisted the suit to the hilt. It took several years for the suit to run its course. Cross-appellant remained adamant up to the time the suit terminated in the court below.
Clearly, the above antecedents are of a recalcitrant person. He was quick to dishonor his solemn promise and obligation in the Deed of Assignment in Exhibit C arising from the headlease in Exhibit A in respect of the covenant to pay rents as and when due in clauses 2(1) and 3(1) of Exhibit A, It follows that, if allowed to remain in possession of the demised premises, the cross respondents shall be put to the trouble of exerting pressure on the cross-appellant or resorting to litigation to recover rents from him. His conduct cannot, in my view, endear itself to Equity. His hands are not clean. He is not prepared to do equity – see The Law of Real Property (5th Edition) by Megarry and Wade (supra), cited by the respective learned counsel and Okpala v. Okpu (2003) 5 NWLR (Pt.812) 183 at 215.
The cross-appellant did not plead any facts or grounds, whether of hardship in securing alternative accommodation or any other form of inconvenience etc., in the counter-claim (supra) as basis for relief from forfeiture. He was obliged to plead the grounds for such relief – see Taiwo v. Akinwunmi (1975) 1 All NLR (Pt.1) 202 at 220 – 221 followed in Okpala v. Okpu (supra) at 214, 221-222. In the Taiwo v. Akinkunmi case (supra), the Supreme Court held at page 221 inter-alia that:
“….. No grounds for such relief were set out to enable the Itire people to file a reply if they so desire…..”
The counter-claim was, on that score, incurably bad and no decision could have been based on it in respect of relief against forfeiture, as Equity does not act in vain or in isolation. Equity must act for a purpose. In my respectful opinion, the cross-appellant’s said conduct is not worthy of sympathetic and equitable indulgence, I would reject the claim in respect of relief from forfeiture accordingly – see Anwuta v. Niger company, Ltd. (supra); Orman Industry Ltd. v. Awaye Motors Ltd. (1974) 3 WSHC – page 1, per Oyemade, C.J.; and Williams v. Nigerian Finance and Auctioneering co, Ltd. (1982) C.A. 11 page 178 at 182, 184 – 185.
The appeal succeeds on all the issues canvassed. It is hereby allowed. The cross appeal, on the other hand, fails and is hereby dismissed. The decision of the court below is set aside. The respondent/cross-appellant is hereby ordered to forfeit the demised premises and yield up possession to the appellants/cross-respondents. The arrears of rents of 65 (pounds) per annum from 1985 to the date of delivery up of possession of the demised premises by respondent/cross-appellant to appellants/respondents shall be paid by the former to the latter as stated earlier in the judgment. The judgment debt shall attract 10% post-judgment interest. Costs of N40, 000 are awarded to appellants/respondents against respondent/cross-appellant in respect of the appeal and the cross-appeal.
STANLEY SHENKO ALAGOA, J.C.A.: I have read before now the lead judgment of my learned brother Ikyegh, J.C.A. just delivered. He has dealt exhaustively on all the issues canvassed on appeal and cross-appeal. I agree with his reasoning and conclusion that the appeal succeeds and the cross-appeal fails. I abide by all the consequential orders made in the lead judgment including the order on costs.
MODUPE FASANMI, J.C.A: I have read before now the lead judgment of my learned brother J. S. Ikyegh J.C.A which I entirely agree.
All the issues submitted for the determination of the appeal have been admirably and comprehensively dealt with. I adopt the reasoning as mine.
The appeal succeeds and it is hereby allowed. The cross appeal on the other hand fails and it is hereby dismissed. I abide with the consequential orders made including cost.
Appearances
Alhaja R. O. AyoolaFor Appellant
AND
Dr. S.P.A. AjibadeFor Respondent
