OLUSEGUN DEBAYO DOHERTY & ANOR v. TAYIBATU AYOOLA SUNMONU & ORS
(2018)LCN/12172(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of October, 2018
CA/L/355/2013
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
1. OLUSEGUN DEBAYO DOHERTY
2. ADEWALE DEBAYO DOHERTY
(As Executors and Trustees of the Estate of the Late Ademola Debayo Doherty) Appellant(s)
AND
1. TAYIBATU AYOOLA SUNMONU
2. OLUWATOYIN IPAYE
3. GBOYEGA AKANNI SOBO
4. BABATUNDE MARTINS Respondent(s)
RATIO
WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS
It is a settled principle of law that parties are bound by their pleadings and a case stands or falls by the averments on pleadings and the evidence adduced to support those averments. Any evidence not supported by the pleadings will be ignored as it goes to no issue. See: EMEGOKWUE vs. JAMES OKADIGBO [1973] 4 S C @ 113; SHELL BP LTD vs. JACOB ABEDI & ORS [1974] 1 S C @ 16 AND ENANG & ORS vs. ADU [1981] 11-12 SC @ 17. (reprint). PER YAKUBU, J.C.A.
WHETHER OR NOT FOR AN AWARD OF DAMAGES TO COMPENSATE VICTIMS OF HUMAN RIGHTS VIOLATION, IT MUST REFLECT THE ECONOMIC REALITY OF THE COUNTRY
This Court on the question whether of or not a Court can take judicial notice of the rate of the dwindling fortunes of the Nigerian Naira had this to say in Jide Arulogun v. Commissioner of police, Lagos State & Ors (2016) LPELR-40190 (CA) at pages 16-17 thus: “It is settled that for award of damages to compensate the victims of human rights violation, it must reflect the economic reality of the Country – see Onagoruwa V. I.G.P. (1991) 5 NWLR (Pt.193) 593, wherein it was held-“In these days of racing inflation where the buying or purchasing power of the Naira falls drastically (and painfully so) every day and, therefore, not commensurate to the quality and quantity of goods bought, a Judge should, in the assessment of damages, consider the current market situation. It will be most unrealistic to ignore this fundamental aspect and merely theorize with principles of law and facts and figures presented to him in Court by counsel and witnesses. While the Judge is not expected to play the role of a housewife of Sangross Market, Lagos, Kasuwa Kurimi Market of Kano or the Ogbete Market of Enugu by sampling prices of goods randomly, he must always remind himself that market prices escalate by leaps and bounds and they affect the purchasing power of the Naira”. [Tobi, JCA (as he then was)]. In that case,Onagoruwa V. I.G.P. (supra), decided in 1993, Niki Tobi, JCA (as he then was), painted a poor picture of the Naira in 1993, as follows- “The Naira is no longer a stable and enduring currency. It floats in the money market adversely. It also floats in the Nigerian wind not because of its physical lightness but because of its loss of monetary value. After all, the Naira is now one heavy coin.” That was 1993; I wonder what he would say now about the Naira in 2016.” Per AUGIE, J.C.A. (Pp. 16-17, Paras. B-C). PER YAKUBU, J.C.A.
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The Lagos State High Court, sitting in Lagos had on 12 February, 2013, entered judgment for the respondents who were the claimants against the appellants/defendants/counter- claimants.
The reliefs claimed by the respondents, are for:
1) A Declaration that the claimants are the bonafide owners of the property lying situate and being at No: 36 King George V Road, Onikan, Lagos Island.
2) An Order of possession in favor of the claimants of the property at No: 36, King George V Road, Onikan, Lagos.
3) Payment of arrears of rent of 160.00 (one hundred and sixty pounds) per annum from 1990-2007.
4) An Order for mense profit from the date of hearing to the date of determination of the case.
5)The Cost of the action.
?The claimants are members of the Martins Family of Lagos whilst the 1st claimant is the accredited head of the family. The case of the claimants as disclosed on their pleadings is that pursuant to the will of Late Madam Maria Alaba Davies real property located at No: 36 King George V. Road, Onikan Lagos was devised to the claimants.
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That sometime on 08/07/70 as beneficiaries of the estate of Late Madam Maria Davies, they granted a 70-year lease of the property at No: 36 King George V. Road, Onikan, Lagos to Ademola Debayo Doherty, the appellant?s father. That the appellants complied with the agreed covenants of the lease, up until sometime in December 1980. That between December 1980 and 1991 the appellant?s failed to pay the agreed rent. That after much pressure the appellant?s paid the outstanding rents covering the period from 1981 -1990. That from 1990 ? 2003 the appellants failed to pay rent. That on 16/03/03 the respondents re-entered the property but the appellant?s failed to deliver up possession hence this action. The appellants? case on the other hand is that they are the executors of the estate of late Ademola Debayo Doherty, the lessee of the subject property. That the respondents always came to collect rents and same was always paid promptly by their father. That sometime in 1989 the respondents were introduced to the 1st appellant herein and were directed to deal with him henceforth in respect of the leasehold property.
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That he paid rent for the period 1990 – 2000 to the respondents and like his father always did, he gave the respondents the sum of N6, 800 as gratis. That sometime in the early 1990?s the respondents approached him with a view toward selling the subject property to him. That negotiations were still ongoing when the received a letter dated 18/03/03 purporting to determine the lease on the alleged ground of non-payment of rent. That rent has been paid up to the year 2000. That the appellants wanted to pay rent but the respondents who usually came for the rent did not show up. That the appellant?s made concerted efforts to trace and locate the respondents but were unsuccessful. That upon receipt of the letter dated 18/03/03, they immediately forwarded a cheque for rent allegedly outstanding but it was returned by the respondents? solicitor who claimed that the property had been sold to a 3rd party. The appellants claimed that tenants placed in the property by them are still in occupation and they had already committed funds for further development of the property. The appellants? counter-claimed as follows:
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1. Relief from forfeiture and determination of the lease agreement dated 8th July 1970.
2. An Order restraining the claimants from taking possession of the property situate lying being and known as 36 King George V Road, now known as 36 Yoruba Tennis Club Road held under Title No: LO6579.?
At the trial, both parties called and fielded one witness, a piece. One Mrs. Toyin Ipaye, a retired civil servant and daughter of the 2nd respondent, testified as CW 1; whilst Olusegun Debayo – Doherty, the 1st appellant testified as DW 1. Some documentary exhibits were admitted into evidence. Learned counsel to the parties, at the end of parole evidence, filed and exchanged their respective written addresses. In his judgment, the learned trial judge found for the respondents, whilst the appellants’ counter – claim, was dismissed. The appellants, piqued by the decision against them, appealed against it, anchored on seven grounds of appeal.
?
In the quest of activating the prosecution of the appeal, the appellants’ brief of argument, settled by J. A. Kester, Esq., was dated and filed on 30 May, 2013. The respondents’ brief of argument, settled by Lanre Ogunlesi, SAN., dated and filed on 28
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December, 2016, was with leave of this Court sought and obtained, deemed filed at the hearing of the appeal, on 25 September, 2018. The appellant’s reply brief of argument, dated and filed on 19 January, 2017, was also deemed by this Court as having been properly filed on 25 September, 2018.
The appellants’ learned counsel, distilled four issues from the grounds of appeal for the determination of the appeal, thus:
1. Did the Claimants/Respondents discharge the onus placed on them by SECTION 14 (1) OF THE CONVEYANCING & LAW OF PROPERTY ACT 1881 AND SECTION 68 OF THE REGISTERED LAND LAW (CAP. R1) VOL. 6 LAWS OF LAGOS STATE 2003 to prove that the Defendants/Appellants were in breach of their covenant to pay rent under the Lease Agreement dated 8th July 1970 (EXHIBIT 2) and thus warrant the Court granting their claims for possession, arrears of rent and mesne profits? (GROUND I, II & III).
2. Applying the provisions of SECTION 1(2) of THE DECIMAL CURRENCY ACT CAP. D2, VOL, 5, LFN 2004 to the Lease Agreement dated 8th – July 1970 (EXHIBIT 2) and having regard to the conduct of the parties after the introduction of the Naira as evidence
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by EXHIBIT 3, was there any basis for the trial Court ordering that outstanding arrears of rent and mesne profits BE CALCULATED IN UK POUNDS ($) STERLING AT THE CURRENT RATE OF EXCHANGE AS STIPULATED BY THE CENTRAL BANK OF NIGERIA (GROUND V).
3. On the face of the pleadings as supported by the evidence was the trial Court right in refusing to ascribe any probative value to EXHIBIT 5, the Union Bank Cheque for N10, 000.00 admittedly collected as rents from the defendants? late father by the Claimants/Respondents?(GROUNDS VI & VII).
4. On the evidence on record and having regard to the conduct of the parties did the trial Court err in dismissing the Defendants/Appellants counter-claim? GROUND 1V).”
(see pages 2 & 3 of appellants’ brief of argument).
On his part, the learned senior counsel for the respondents, nominated six issues for the resolution of the appeal, namely:
?ISSUE A
Whether the learned trial Judge was right when she held that the Appellants were in breach of their covenant to pay rent as provided for in the Lease Agreement, dated 8th July, 1970 admitted as Exhibit 2 before the learned trial Judge. Ground i.
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ISSUE B
Whether the learned trial Judge ought to have expressly considered the provisions of Section 14(1) of the Conveyancing and Law of Property Act, 1881 which the Appellants only raised in their Written Address dated 7th May, 2012.
Ground ii.
ISSUE C
Whether the learned trial Judge, having held that the Appellants were in breach of the covenants to pay rent was right to grant the Respondents claims for possession, arrears of rent and mesne profits.
Ground iii.
ISSUE D
Whether the Appellants could be said to have proved the Counter Claim reliefs against determination and forfeiture of the Lease Agreement dated 8th July, 1970 (Exhibit 2) when there was no iota of evidence to support same.
Ground iv.
ISSUE E
Whether the learned trial Judge was right to give judgment to the Respondents based on the prevailing exchange rate of the naira to the pounds sterling on the arrears of rent and mesne profits claimed by the Respondents.
Ground v.
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ISSUE F
Whether the learned trial Judge was right when she held that the Appellants did not establish or prove on the balance of probability that the Union Bank Cheque, Exhibit 5 was cashed by the Respondents.
Ground vi.
Having perused the oral and documentary evidence proffered and placed at the Court below, the judgment of the learned trial judge and the grounds of appeal herein, I am satisfied with the four issues identified by the appellants’ learned counsel for the resolution of this appeal and I adopt them in my consideration and determination of this appeal.
Appellants’ Arguments:
A resume’ of the appellants’ contentions, are that the respondents did not prove their claim, hence it was submitted that the Claimants/Respondents having failed to discharge the onus of proof, their claims for possession, arrears of rent and mesne profits should be dismissed in their entirety. Even ASSUMING for the purpose of argument that the Respondents had proved their claims it was submitted that in the circumstances of this case the Court would be justified in granting the Appellants alternative claims for relief against forfeiture & restraining the Respondents from taking possession of the property for the following reasons:
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a. On the totality of the evidence led by the Respondents they failed to discharge the burden of proof upon them to prove that they complied with the mandatory conditions precedents in SECTION 14(1) OF THE CONVEYANCING & LAW OF PROPERTY ACT 1881 AND SECTION 68 OF THE REGISTERED LAND LAW (CAP.R1) VOL. 6 LAWS OF LAGOS STATE 2003 before instituting this suit alleging breach of covenant for non-payment of rents on the part of the Appellants and that the failure so to do is fatal to their claim.
b. The uncontroverted and undisputed evidence on record [vide EXHIBIT 3 the receipt for N3, 200 rent for the period 1991-2000] was that the Appellants had paid their rents at least up to year 2000, and that further rents were tendered by the Appellants but refused by the Respondents in 2003, two (2) years before the Respondents instituted the present action on the basis of alleged nonpayment of rent. The Appellants cannot therefore be said to have failed to pay rent which was tendered, but willfully refused by the Respondents 2 years before they brought this suit.
c. The Lease Agreement dated 8th July 1970 (EXHIBIT 2.) was entered into at a time
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when the Nigerian Pound ($) was the Legal Tender in Nigeria and the rent was denominated in the Nigerian Pound ($) and not in U K Pounds Sterling. In 972, when the Nigerian Government Decimalised the currency and introduced the Naira (N)a parity rate of 2 Naira to 1 Nigeria Pound as fixed by SECTION 1 OF THE DECIMAL CURRENCY ACT CAP. D2, VOL.5, LFN 2004. Any adjudged arrears of rents and mesne profits should have been calculated on this basis and not on the basis of the current CBN rate of exchange for the UK Pound Sterling.
d. It is apparent from EXHIBIT 3, the receipt for N3, 200 rent for the period 1991-2000 that after the introduction of the naira the parties paid and accepted rents on the basis that the annual rent of $160, translated to N320. It is wrong for the Learned Trial Judge to have rewritten the contract for the parties in her Judgment by treating the Lease as if it had been entered into in UK Pounds Sterling.
e. In circumstances where it was the case of the Respondents that they were paid rents via the Union Bank Cheque EXHIBIT 5, it was grave error on the part of the trial Court to refuse to ascribe any probative value to EXHIBIT 5
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on the basis that ?the claimants on their pleadings and in their testimony before the Court have denied receipt of such a sum?.
Respondents’ Arguments:
Learned senior counsel to the respondents in his responses to the contentions of the appellants, submitted that from the both oral and documentary evidence placed before the Court below, it was found that the appellants were indeed in arrears of rent from 2000 up till 2003. He referred to Exhibit 7a at page 117 of the record of appeal, that is, the letter from appellants’ counsel – Tani Molajo, SAN, to the then respondents’ counsel – Adeniyi Ademola, Esq., in respect of the appellants’ arrears of rents being owed to the respondents. He submitted to the effect that the learned trial judge’s finding at page 305 of the record of appeal with respect to the effect of the appellants’ admission in Exhibit 7a of being in arrears of rents of the demised property in question which was paid up to the end of 2000, was borne out of the contents of Exhibit 7a. He submitted that since there is no appeal against that finding, the same remains extant and binding on the parties, placing reliance on
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Golden Construction Co. Ltd v. Stateco (Nig) Ltd (2014) 8 NWLR ( pt. 1408) 171 @ 198. Hence, according to him, the fact that Exhibit 7a clearly stated that the cheque for the sum of N2,240.00 ( Two thousand, Two Hundred and Forty Naira) which was dated 14th June, 2003, was for settlement of arrears of rents, it meant that the rents were not paid as and when due, yearly by the appellants as covenanted in Exhibit 2.
With respect to the appellants’ contention that the learned trial judge ought to have been mindful and applied the provisions of Section 14(1) of the Conveyancing and Law of Property Act, 1881 and Section 68 of the Registered Land Law, Cap R 1, Laws of Lagos State, 2003, he submitted that the appellants did not plead any facts which could have necessitated the applicability of the aforementioned laws, and raised any statutory defences on them, instead the appellants chose to refer to the said laws in their written address at the Court below. He placed reliance on Ojiogu v. Ojiogu (2010) 9 NWLR (pt.1198) 1 @ 21. He insisted that vide paragraphs 11, 13, 14 and 15 of the Statement of Claim, the respondents had averred to the effect that because the
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appellants were in default of payment of their rents, a notice of the determination of the lease was issued to them in 2003 and that by 16th March, 2003, the respondents entered upon the said property and took possession of the same.
With respect to the probative value of Exhibit 5, learned senior counsel submitted that there was no evidence that the original of the cheque was cashed, therefore the learned trial Judge, was justified for finding it as being of no probative value. He also submitted to the effect that the learned trial judge was right when he found that mesne profits in respect of the demised property should be paid by the appellants at the rate of N254 to 1 and that the finding did not mean that the learned trial judge re – wrote the lease agreement, for the parties. Arguing in relation to the appellants’ counter- claim, he submitted to the effect that although the appellants prayed for relief against forfeiture therein, there was no written deposition on oath by any witness to ventilate the evidence by which the prayer could have been considered and granted by the learned trial judge. He insisted that the learned trial judge was
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right in his finding at page 311 of the record of appeal to the effect that since no new facts were placed before him in respect of the counter – claim, other than the facts presented on the statement of defence, the said counter-claim was not proved. It failed and was rightly dismissed.
Resolution of Issues:
I have my self, perused the pleadings of the parties and both the parole and documentary pieces of evidence placed before the learned trial judge and the following preliminary findings he made at page 301 of the record of appeal that, to wit:
i. The subject property in dispute is located at No. 36, King George V Road, Onikan Lagos.
ii. Nor is it in dispute that the subject property was a part of the estate of the late testatrix Madam Maria Alaba Davies.
iii. Nor is it in contention that the testatrix by her will devised the said property to Tayibatu Ayoola Sunmonu, Patience Omotunde Williams, Gboyega Akanni Sobo, and Anthony Kayode Martins the claimants herein.
iv. It is not in contention that the lease rentals for the first ten years in the sum of 1,600 pounds sterling for the period February 1979 to February 1980 was paid by the lessee.
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His Lordship, rightly restated the position of the law with respect to the onus of proof in civil cases at page 300 of the record of appeal, thus:
“By virtue of the provisions of Sections 131 and 132 of the Evidence Act, as amended 2011, the burden of proving the existence of any fact is on the party who asserts it. Furthermore, by Section 133 of the Evidence Act, (supra) the burden of first proving the existence of a fact in a civil case lies on the party against whom the judgment of the Court would be given if no evidence at all or no further evidence is produced on either side, regard being had to any presumption that may arise from pleadings. If such a party adduces evidence which, is acceptable and establishes a prima facie case; the burden shifts on to the other party against whom judgment would be given if no more evidence is adduced and so on until all the issues in the pleadings are dealt with. This essentially is what is meant when a civil suit is said to be decided on preponderance of evidence or balance of probabilities. The onus propandi therefore lies squarely on the party who would fail if no evidence at all were given.
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It is therefore trite that he who asserts must prove. See: AROMIRE vs. AWOYEMI (1972) 2 S.C. @ 1: OLOWU vs. OLOWU (1985) 3 NWLR (Pt. 13) @ 373; AKINTOLA vs. SOLANO (1986) 2 NWLR (Pt. 24) @ 568; BALOGUN vs. LABIRAN (1988) SCNJ @ 71; OMONIYI vs. SHODEHINDE (2003) 12 NWLR (Pt. 836) @ 53 and EZEMBA vs. IBENEME & ANOR (2004) 14 NWLR (Pt. 894) @ 617.”
The most crucial document which governed the relationship between the parties herein with respect to the property located and lying at NO: 36, King George V Road, Onikan, Lagos, is the Lease Agreement dated 8/ 07/ 1970 which was tendered and admitted into evidence and marked as Exhibit 2. It is pertinent to reproduce Clause 1 (i) and (ii) thereof which provides, inter alia:
“Clause 1: That in consideration of the payment of the rent hereinafter reserved and of the performance and observance of the lessee?s covenants and conditions hereinafter contained the lessors hereby demise unto the lessee ALL THAT piece or parcel of land with the buildings thereon known as No: 36 King George V. Road Lagos (hereinafter referred to as the demised property) which is more particularly described and delineated with it
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dimensions and abuttals on the plan hereto attached and therein edged in RED TO HOLD the same UNTO and TO THE USE of the lessee for a term of seventy (70) years certain, commencing as from the 1st day of February 1970 paying therefore the sum of one hundred and sixty pounds (160) per annum in the following manner that is to say:
?(i) The sum of one thousand six hundred pounds (1600) representing ten (10) years rent to be paid on or before the execution of this agreement the receipt whereof is hereby acknowledged.
(ii) After the expiration of the ten (10) years for which rent shall have been paid under this agreement the rent thereafter shall be payable yearly in advance commencing as from the 1st day of February 1980.? (see page 302 of Record of Appeal).
Now the essence and probative value cum sanctity of covenants in contracts executed by parties in an agreement cannot be over emphasized. Hence the Supreme Court and this Court in myriad of decided authorities have reiterated that:
“a contract is a legally binding agreement between two or more persons by which rights, are acquired by one party in return for acts or forbearance on the part of the other.”
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Orient Bank Nig. v. Bilante Orient International Ltd (1997) 8 NWLR (515)37 @ 41; Makwe v. Nwukor & Anor. (2001)14 NWLR ( pt.733) 356; (2001)LPELR -1830 (SC); Adetoun Oladeji ( Nig) Ltd v. Nigerian Breweries Plc (2007) 5 NWLR ( pt. 1027) 415; (2007) LPELR -160 ( SC); Best Nig . Ltd v. Blackwood Hodge Nig. Ltd (2011) LPELR- 776 (SC); Bilante International Ltd v. Nigeria Deposit Insurance Corp. (2011)LPELR – 781 ( SC); Dike & Anor. v. Obienu (2015) LPELR- 35873 (CA); (2015) 9 C.A.R.372 (CA).
The learned trial judge, rightly restated the position of the law in line with the aforementioned authorities, when he said at page 301 of the record of appeal, to wit:
“It is trite law that where an agreement has been reduced into writing as in the instant case the relationship between the parties ought to be governed by the terms of such an agreement. It is equally the law that in the interpretation of the terms of such an agreement an ordinary, literal ad grammatical meaning will be ascribed to the words employed. Finally, in interpreting said terms the Court will usually confine itself to the terms and not
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import extraneous matters in to the agreement. It cannot also be over emphasized that it is not the duty of any Court or Tribunal, to rewrite the contracts for the parties. See: FAKOREDE & ORS vs. ATTORNEY GENERAL OF WESTERN STATE (1972) 1 ALL NLR @ 178 esp. @ 189; BAKER MARINE NIGERIA LTD & CHEVRON NIGERIA, LTD. (2007) 2 WRN @ 1 and WEMA BANK PLC vs. OSILARU (2008) 10 NWLR (Pt. 1094) @ 150 esp. @ 177, paras F-G. Parties are said to be bound by the terms of an agreement voluntarily entered into and a Court of law will usually interpret the terms of the agreement strictly. This means that if any dispute should arise with respect to the contract, the terms in any documents, which constitute the contract, are invariably the guide to its interpretation. Precedent is equally well settled, that the court will not allow parol evidence to contradict or vary the terms of a written contract or agreement. See: LARMIE vs. DPMS LTS (2006) 12 WRN @ 150; SHELL PETROLEUM DEVELOPMENT CO. LTD. vs. EMEHURU (2007) ALL FWLR (Pt. 381) @ 1694 and ONYEKWELU vs. ELF PETROLEUM NIGERIA LIMITED (2009) 2 ? 3 SC (Pt. 1) @ 1.?
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The contents of Exhibit 2 at Clause 2(i&i) reproduced above are very explicit. Indisputably, the appellants fulfilled their initial obligation of paying their rents over the demised property, in question, from 1990 – 2000 vide Exhibit 3 – the undated receipt wherein the claimants acknowledged receipt of the sum of N3, 200. The grouse of the claimants which precipitated this action was that after the initial payment and fulfillment of the contractual obligation by the appellants, the latter reneged and failed to pay rents over the demised property for the next ten years period beginning from the year 2001.The evidence by the CW 1, on this allegation, was not controverted by the appellant. In fact, by their own showing vide Exhibit 7a, the appellants, had admitted that they were in default of payment of rents over the demised property at least between 2001-2003. Exhibit 7a, was dated 16/06/2003. At that point, it is unarguably clear, that the respondents, had proved the fact that the appellants were in breach of Clause 2(11) of Exhibit 2. That is, the appellants did not fulfill their yearly obligation of paying rents on the demised property from 2001-2003. Thereafter, the onus shifted on the
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appellants to proof that they were not in breach of the aforementioned covenant of yearly payment of rents to the respondents. I have earlier in this judgment, demonstrated that by the appellants’ own showing vide Exhibit 7a, they were clearly in breach of Clause 2(ii) of Exhibit 2. The law has remained well settled to the effect that where the evidence proffered at a party’s instance, favors the opponent’s case, that is tantamount to a solemn admission of the opponent’s case, which is referred to as an admission against interest. Adeyeye & Anor. v. Ajiboye & Ors (1987) LPELR-175 ( SC); Oseni Aboyeji v. Amusa Momoh (1994) 4 SCNJ ( pt. 2) 302; Olatunji v. Adisa (1995) 2 SCNJ 90 @ 102; Okonkwo v. Ogbogu & Anor. (1996) 4 SCNJ 190 @ 204.
The appellants’ learned counsel made a heavy weather with respect to Exhibit 5, to the effect that the sum of N10,000.00 was paid to the respondents, as payments of rents in advance for the period 2000-2030 and therefore, according to him, the learned trial judge ought to have believed the DW1’s evidence instead of holding that Exhibit 5 was of no probative value.
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Let us visit the reasons proffered by the learned trial judge for rejecting the evidence of DW1, at pages 303-304 of the record of appeal. Hear him:
“DW1 on his pleadings made no averments as to the claimant whether by cheque, draft or in cash. Nevertheless, they have tendered Exhibit 5 which is a copy of a cheque dated 21/12/1990 in the sum of N10,000 issued in the name of H.O Sobo, the 3rd claimant herein. DW1 in cross-examination labored to suggest to suggest that the sum of N10,000 paid to the claimant vide Exhibit 5 dated 21/12/90 represents rent paid in advance for the period 2000-2030! Consequently, that the defendants have no outstanding rent obligation to the claimants. With all due respect, I think this is nothing but an after-thought, a sham, a fabrication and deliberate falsehood calculated to hoodwink the Court. If the defendants made any such payment to cover rent for the period 2000 ? 2030 it is surely a material fact, which ought to have been clearly pleaded. I have carefully read thorough the defendants amended statement of defence and counterclaim, and non-such fact was ever pleaded directly or indirectly!!!
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It is a settled principle of law that parties are bound by their pleadings and a case stands or falls by the averments on pleadings and the evidence adduced to support those averments. Any evidence not supported by the pleadings will be ignored as it goes to no issue. See: EMEGOKWUE vs. JAMES OKADIGBO [1973] 4 S C @ 113; SHELL BP LTD vs. JACOB ABEDI & ORS [1974] 1 S C @ 16 AND ENANG & ORS vs. ADU [1981] 11-12 SC @ 17. (reprint). This Court is inclined to believe that Exhibit 5 is nothing more than the instrument by which the sums as shown on Exhibits 3 and 4, were paid to the claimant and I so hold. A simple arithmetical calculation shows that N3,200 (rent) plus N6,800 (gratis) total N10,000 and I so hold. There is no contention before the Court that the sums as shown on Exhibits 3 and 4 were not paid at the material time when the cheque as shown on Exhibit 5 was issued to the claimants and I so hold. Finally. I think it is against the usual turn of events for a tenant to pay 30 years rent (2000-2030) on advance ten years before it is due (21 December 1990) as DW1 wants this Court to believe.”
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Upon my perusal of the appellants’ amended statement of defence and counter- claim at pages 170-173 of the record of appeal, it as clear as crystal that no fact was pleaded therein, by the appellants relating to the alleged payment of rents reflected in Exhibit 5. Therefore, it is not difficult for me to agree with his Lordship’s finding on Exhibit 5, which to my mind just came from the blues and was intended to pull the wool on the face of the justice in this matter. The findings of the learned trial judge are manifestly borne out of the pleadings and evidence proffered by the appellants, hence they are, to my mind unassailable. I affirm them, accordingly.
I have considered the appellants’ contentions with respect to the applicability of Section 68 of the Registered Land Law Cap R1, Laws of Lagos State, 2003.The learned trial judge dealt extensively, with this issue in his judgment, particularly at pages 306-308, thus:
“Every lease carries with it the obligation to pay rent as and when due. This is a mandatory obligation imposed on the lessee. The breach of this covenant which I dare is fundamental to every lease relationship
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entitles the lessor to resume possession of the demised premises by a re-entry upon the premises where the right to do so is expressly reserved in the lease agreement and I so hold. So once again, I have to turn to the lease agreement to consider the nature of the terms agreed to by the parties. Clause 4 of Exhibit 2 executed between the parties provides as follows:
Clause 4: PROVIDED ALWAYS and it is hereby expressly agreed that if at any time the rent hereby reserved or any part thereof shall be in arrears for 21 days after the same shall become due (whether demanded or not) or in the event of any breach of covenants and agreements on the part of the lessee herein contained the lessors may re-enter upon the demised shall thereupon absolutely determine but without prejudice to the right of action of the lessors in respect of any breach of the lessees covenants herein contained. (Emphasis Supplied)
I am persuaded that the language of Clause 4, is clear and unmistakable. It is an express clause, which reserves to the lessor the right of re-entry if one or more of the covenants in particular the covenant on rent is broken.
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It provides for the landlord?s re-entry and for an immediate determination of the lease agreement, irrespective of whether a demand for outstanding rent is first made or not and is hold. I have no doubt in my mind that the defendants are persistent defaulters in the payment of rent and rather than made yearly in advance as agreed have always defaulted and have always made their rent payment in arrears. This Court is persuaded that the clear evidence is that the claimants herein have taken an overt act to signify their determination not to continue the lease agreement by the return of the ?late rent payment? as shown on Exhibit 8. Undoubtedly, as pointed out by the learned counsel for the defendants, J.A. Kester, Section 68 of the Registered Land Law Cap R1 2003 LLS provides inter-alia:
?Notwithstanding anything to the contrary contained in any lease, a lessor shall not be entitled to exercise the right of forfeiture for the breach of any express or implied agreement or condition in the lease until the lessor has served on the lessee a notice.
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(a) specifying the particular breach complained of and
(b) if the breach is capable of remedy requiring the lessee to remedy the breach within such reasonable period as may be specified in the notice and
(c) Where appropriate requiring the lessee to make compensation in money for the breach.
And the lessee fails within a reasonable time thereafter to remedy the breach if it is capable of remedy and as the case may be to make reasonable compensation in money.?
Nevertheless, I have carefully scrutinized the reliefs sought by the claimant and there is no claim for forfeiture of the lease and I therefore hold that Section 68 of the Registered Land Law (supra) is inapplicable. With all due respect to both counsel, this Court is persuaded that the crucial issue for the Court to determine is whether or not the defendant?s breach is such a nature as to entitle the claimants to rescind the lease agreement or is the breach of such nature as a mere warranty that sounds only in images. There are two tests, which may provide an answer. The decisive element may be in the importance the parties have attached to the term which has been broken or secondly, it may be regarded as fundamental on account of the seriousness of the consequences that
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have resulted from the breach. In other words, it is for the Court to determine whether at the time the contract was made, the parties must be taken to have regarded the promise which, has been violated as of major or minor importance. There is no way of deciding this question, except by looking at the contract in the right of the surrounding circumstances and then making up one?s mind whether the intention of the parties as gathered from the contract document, will be best carried out by treating the promise as a warranty sounding only in damages; or as a fundamental term that goes to the root, substance, heart and soul of the contract, such that a failure to perform entitles the other party to be completely relieved of his own obligations or liability. See: NIGER INSURANCE CO LTD vs. ABED BROTHERS LTD. (1976) 7 SC @ 20; DCOR-WALL INTERNATIONAL S.A. vs. PRACTITIONERS IN MARKETING LTD. (1971) 2 ALL ER @ 216. In the recent case of INTERNATIONAL MESSENGERS (NIG) LTD vs. PEGOFOR INDUSTRIES LTD. (2005) 15 NWLR (Pt. 947) 1 @ 18 para A-B the Supreme Court described the expression fundamental breach as one used to denote a performance totally different
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from that which the contract contemplated. Such fundamental breach is a breach of contract more serious than one which would entitle him to refuse further performance of the contract. In the instant case, I have carefully considered the totality of the surrounding circumstances and established evidence that the defendant is in flagrant and willful breach of Clause 1(ii) of Exhibit 2. It is equally established by the claimants? evidence that they have repeatedly complained of the breach of covenant to pay rent as and when due as exemplified by the several letters to the defendant which apparently went ignored as indicated on Exhibit 8. I equally have no doubt from the spate of correspondence exchanged between the parties as in Exhibits 7 and 8, the returned rent, the failed negotiations to purchase the property, and these present proceedings, that the relationship between the two contracting parties is no longer harmonious, cordial or conducive. I am persuaded that in such a situation, it would be unhealthy and indeed toxic to continue to hold the parties bound to an agreement, which is no longer working.
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It is well accepted that a lease agreement and the ensuing relationship of lessor and lessee is designed as an economic tool which allows the owner of real property to generate income from the property over an extended period of time without relinquishing his proprietary interest in the demised premises. I am persuaded that the defendant?s persistent breach of Clause 1(ii) goes to the root of the relationship between the parties. Breach of Clause 1 (ii) clearly evinces an intention no longer to be bound by the terms of the agreement with the resultant consequence that the claimants are entitled to repudiate the contract as provided in Clause 4 and I so hold. See: BEKEDEREMO vs. COLGATE ? PALMOLIVE (NIG) LTD (1976) 6 S.C. @ 24 (reprint); WARNER & WARNER INTERNATIONAL ASSOCIATES NIGERIA LTD. vs. FEDERAL HOUSING AUTHORITY (1993) 7 SCNJ @ 1 and LEWIS OPARA vs. DOWEL SCHLUMBERGER (NIGERIA) LTD. (2006) 7 S.C. (Pt. 3) @ 56.
It bears repetition that parties are bound by terms they entered into with their eyes wide open. It is not the business of the Court to encourage parties to wriggle out of voluntarily assumed obligations. Pursuant to the terms of the agreement, a breach of Clause 1(ii) as in the
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instant case renders it lawful for the lessor to re-enter upon the demised premises and determine the lease agreement forthwith as reserved in Clause 4 of Exhibit 2. A determination, which was unequivocally, communicated to the defendants by virtue of Exhibit 8 and I so hold.?
In agreeing with his Lordship’s treatise on this issue, I only need add that the respondents’ claim was not founded or grounded on forfeiture. It had more to do with the re- possession and re-entry of the respondents into the demised property because of the breach of the covenant to pay yearly rents in respect of the same, such that by virtue of Clause 4 of Exhibit 2, the respondents were justified in repossessing their possession. The appellants, at paragraph 12 of the amended statement of defence, having averred that they were in receipt of the notice from the respondents, for the determination of the lease on 18th March, 2003, before the action against them was filed in 2005, cannot now allege that they were not notified by the respondents of their intention to recover the property in question.
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For all I have said above, issues i & iii are resolved against the appellants.
Issue iv, has to do with the appellants’ counter – claim. This has been reproduced earlier in this judgment. In his consideration and determination of the same, the learned trial judge, came to the conclusion that, there were no new facts pleaded by the appellants, in support of the counter – claim, apart from the facts averred in the amended statement of defence, hence the counter- claim, according to his Lordship, was not proved and consequently, it was dismissed. The law is well settled to the effect that a counter-claim is an independent and separate action of its own although it is usually an offshoot of the main claim. It is in fact, a cross action whereby the defendant becomes the plaintiff and the plaintiff in the main action, takes on the status of a defendant. Therefore, the success or failure of the main action does not necessarily, translate to the success or failure of the counter- claim.
Hence the counter-claimant if he so desires, files his pleadings on it and must lead hard evidence in proving the averments in it, just the same as the plaintiff in the main action does.
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The corollary is that all the rules of pleadings and the evidential principle that he who alleges must provide evidence to proof his allegations as averred in the main action are applicable to a counter-claim. The essence of trying the counter-claim along with the main action is for convenience and for saving cost of filing and trying another action separately, where the facts in the two actions are virtually the same. Chief Emmanuel Ogbonna v. Attorney General of Imo State (1992) 2 SCNJ 26; General Yakubu Gowon v. Mrs. Ike Okongwu (2003) 6 NWLR (pt. 815) 38; Attorney General, Lagos State v. Attorney General, Federation (2004) 12 SCNJ 1@ 39; Ogli Oko Memorial Farms Ltd & Anor v. Nigerian Agricultural & Cooperative Bank Ltd & Anor. (2008) 12 NWLR (pt.1098) 412 @ 428; (2008) 4 SCNJ 436.
In the instant matter, the appellants merely averred at paragraph 15 of the amended statement of defence/counter- claim, thus:
“15. The Defendants repeat the contents of paragraphs 1-14 (inclusive) of the statement of defence above.”
?
The DW 1’s evidence with respect to the indebtedness of the appellants to the respondents, relating to payment of rents
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on the demised property, especially his evidence to the effect that the appellants had paid the sum of N10,000,00 vide the cheque represented by Exhibit 5, was not pleaded anywhere in paragraphs 1-14 of the amended statement of defence. Therefore, those pieces of evidence went to no issue. And what is even worse is the ipse dixit of the DW1, under cross-examination at page 264 of the record of appeal, inter alia:
“The cheque of N10,000 is dated 21/12/1990 I.e. Exhibit 5 Nothing on the cheque to show that the cheque has been cashed. When the cheque is cashed it goes into the system of the bank and does not come back to you.”
Flowing from the above, it meant that as at 8th March, 2012, when the DW1 testified at the Court below, Exhibit 5 was inchoate because it had not been cashed. It follows therefore, that the appellants were in arrears of rents in respect of the demised property from the year 2000, a very clear breach of Clause 2(ii) of Exhibit 2. A fortiori, the bogus claim by the DW1 to the effect that Exhibit 5, represented the payment of rents on the demised property, in advance, for thirty years, that is, from 2000 – 2030, was no more than
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playing to the gallery. In the end, I firmly hold the considered opinion, in total agreement with the learned trial judge that, the counter- claim fell flat on its face and was not proved by the appellants/Counter-claimants. It clearly merited a dismissal; hence it was rightly dismissed, in its entirety. In sum, this issue is resolved against the appellants.
?
The last issue for our consideration, is with respect to the decision of the learned trial judge to the effect that, the payment of the judgment debt and mesne profits in favour of the respondents, shall be on the basis of the exchange rate of “N254 to one pound”. That was as at 6th February, 2013, when the judgment was delivered. The appellants contented that his Lordship’s decision aforesaid, was not in accordance with the intention of the parties when Exhibit 2 was executed in 1970 when the Nigerian Pound () was the legal tender in Nigeria and the rents to be paid by the appellants on the demised property was denominated on the Nigerian Pound and not on the United Kingdom Pounds Sterling. He insisted that since the Nigerian Government decimalized her currency in 1972, by introducing the Naira, and
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a parity rate of N2 to 1 Nigerian Pound by the provision of Section 1 of The Decimal Currency Act, Cap.D2, Vol.5, Laws of the Federation of Nigeria, 2004; any adjudged arrears of rent and mesne profits should have been calculated on that basis and not on the basis of the current Central Bank of Nigeria’s rate of exchange of the Naira to the United Kingdom Pound Sterling. This is more so, according to appellants’ learned counsel, that the rents paid by the appellants vide Exhibit 3, in the sum of N3, 200 for 1990-2000, after the introduction of the Naira, was on the basis of annual rent of 160 which translated to N320 per year.
Having resolved issues i & iii against the appellants earlier in this judgment, their indebtedness in arrears of rent on the demised property from 2001 – 2003 is no longer an issue. And I had also found that the lease had been determined on the receipt by the appellants of the letter to that effect on 18th March, 2003. The learned cerebral Jurist, Anagiolu, JSC, had explained the distinction between a claim for rents and mesne profits in Osawaru v. Ezeiruka (1978) 6-7 S.C. 91; (1978) LPELR – 2791 (SC) @ pages 8-9 thereof, thus:
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“The rents due up to that date were arrears and not mesne profits. The amounts due after that date would properly be termed ?mesne profits? since the tenancy had been determined by that date and any further occupation by the appellant after that date was holding over which technically was a trespass but of a kind arising specially from particular relationship of landlord and tenant is deemed to be lawfully and validly in possession, but is owing rent. In such a claim for arrears of rent the landlord is not challenging the validity of the continued occupation of the premises by the tenant; indeed, he concedes that the tenant is validly and legally in possession. But in a claim for mesne profits the landlord by implication is challenging the continued occupation of the premises by the tenant whom he now regards as a trespasser, and is therefore claiming damages which he has suffered through being out of possession of the premises. Mesne profits being, therefore, damages for trespass can be claimed from the date when the defendant ceased to hold the premises as a tenant and became a trespasser. (See Butterworth?s Words and Phrases
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Legally Defined, 2nd Edition P. 251). The word ?mesne? was derived the Latin word ?Medius? meaning middle, intervening or intermediate (see Earl Jowitt?s: The Dictionary of English Law, 1959 Edition P. 1167). And so a landlord in claiming for ?mesne profits? is claiming for the profits intermediate from the date the tenant ought to have given up possession and the date he actually gives up possession. It is therefore damages for trespass the measure of which is the amount the tenant had been paying as rent for the corresponding period when he was lawfully in occupation as a tenant.”
Furthermore, in Ayinke v. Lawal & Ors (1994) 7 NWLR (pt. 358) 263, the Supreme Court held to the effect that:
“—- an action for mesne profits does not lie unless either the landlord has recovered possession or the tenant’s interest in the land has come to an end or his claim joined with possession.”
Further see:Odutola & Anor v. Papersack ( Nig.) Ltd (2006) 11-12 S.C. 60; African Petroleum Ltd v. Owodunni (1991) 11-12 S.C. 56; (1991) 11 SCNJ 81; Akpokinovo v. Air Liquide (Nig) Plc (2012) LPELR-9582 (CA).
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I am in agreement with the conclusion reached by the learned trial judge that since the respondents’ claim for mesne profits was made in addition to the claim for possession of the demised property as shown in paragraph 21(ii) and (iv) of the statement of claim, they are entitled to the claim for mesne profits.
Now, with respect to the learned counsel to the appellants’ contention regarding the learned trial judge’s order to the effect that both the arrears of rents and mesne profits in this matter be paid by the appellants, at the current rate of exchange as stipulated by the Central Bank of Nigeria, it is indisputable, that the Court in the quest to do substantial justice in any matter placed before it, has the power to take judicial notice of some glaring notorious facts. The reason is not farfetched. Judges are human beings who live in the society and not in the air. It is a notorious fact that the Nigerian Currency, the Naira, and its value fluctuates every now and then. Therefore, to my mind, it will sound very unrealistic and indeed unconscionable to suggest and insist that the value of the Naira in 1990 when the rents vide Exhibit 3 was paid is still
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the same today or when the trial judge delivered his judgment on 6th February, 2013.
This Court on the question whether of or not a Court can take judicial notice of the rate of the dwindling fortunes of the Nigerian Naira had this to say in Jide Arulogun v. Commissioner of police, Lagos State & Ors (2016) LPELR-40190 (CA) at pages 16-17 thus:
“It is settled that for award of damages to compensate the victims of human rights violation, it must reflect the economic reality of the Country – see Onagoruwa V. I.G.P. (1991) 5 NWLR (Pt.193) 593, wherein it was held-“In these days of racing inflation where the buying or purchasing power of the Naira falls drastically (and painfully so) every day and, therefore, not commensurate to the quality and quantity of goods bought, a Judge should, in the assessment of damages, consider the current market situation. It will be most unrealistic to ignore this fundamental aspect and merely theorize with principles of law and facts and figures presented to him in Court by counsel and witnesses. While the Judge is not expected to play the role of a housewife of Sangross Market, Lagos, Kasuwa Kurimi Market of Kano or
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the Ogbete Market of Enugu by sampling prices of goods randomly, he must always remind himself that market prices escalate by leaps and bounds and they affect the purchasing power of the Naira”. [Tobi, JCA (as he then was)]. In that case,Onagoruwa V. I.G.P. (supra), decided in 1993, Niki Tobi, JCA (as he then was), painted a poor picture of the Naira in 1993, as follows- “The Naira is no longer a stable and enduring currency. It floats in the money market adversely. It also floats in the Nigerian wind not because of its physical lightness but because of its loss of monetary value. After all, the Naira is now one heavy coin.” That was 1993; I wonder what he would say now about the Naira in 2016.” Per AUGIE, J.C.A. (Pp. 16-17, Paras. B-C)
And if I may add, what would his Lordship, Tobi, JCA (as he then was) have said of the value of the Naira in 2018?
For all I have been saying on this issue, it is hereby resolved against the appellants. All the issues, having been resolved against the appellants, the appeal is hereby dismissed for being devoid of merits. The well-considered judgment of Atinuke Ipaye, J., rendered in re – Suit No. M/557/2005 at the Lagos State High Court, on 6th February, 2013, is accordingly affirmed.
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Costs of N100, 000 is awarded to the respondents against the appellants.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I am in entire agreement with, and do not desire to add to the conclusions expressed by my learned brother, Tom Shaibu Yakubu, JCA in the judgment just delivered.
For those reasons I concur in holding that the appeal lacks merit and ought to be dismissed. The judgment of the lower Court is hereby affirmed. I abide by the order as to costs. Appeal dismissed.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have read in draft, the lead judgment of my learned brother, TOM SHAIBU YAKUBU, JCA. I agree with his reasoning and the conclusions reached to the effect that the appeal herein lacks merit and should be dismissed. I abide with the order made as to costs of the instant proceedings.
?Appeal is dismissed.
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Appearances:
J.A. Kester with him, S.O. KesterFor Appellant(s)
Lanre Ogunlesi, SAN with him, T. TaiwoFor Respondent(s)
Appearances
J.A. Kester with him, S.O. KesterFor Appellant
AND
Lanre Ogunlesi, SAN with him, T. TaiwoFor Respondent
