PROFESSOR A. O. ARIGBABU v. MR. G. O. OYENUGA
(2019)LCN/13184(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of May, 2019
CA/I/67/2014
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
PROFESSOR A. O. ARIGBABU
(For himself and on behalf of Pa Arigbabowo family of Ijebu-Ode) Appellant(s)
AND
MR. G. O. OYENUGA Respondent(s)
RATIO
THE BURDEN OF PROOF IN CIVIL CASES
In civil cases the initial burden of proof is on the party who desires that Judgment be entered in his favour based on facts which he assert to prove those facts as required by law. See the following cases:-
OKOBULE VS. OYAGBOLA (1990) 21 N.S.C.C. PART 3 PAGE 193.
NEPA VS. AKPATA (1991) 2 NWLR PART 175 PAGE 536.
SECTIONS 131,132 AND 133 OF THE EVIDENCE ACT 2011.
But the burden of proof in civil cases is not static, it shifts depending on the state of the pleading of the parties. See the case of ?BUHARI VS OBASANJO (2005) 7.S.C. PART II PAGE 123.
The standard of proof in civil cases is on the balance of probabilities or preponderance of evidence. See SECTION 134 OF THE EVIDENCE ACT 2011, and the following cases:-
ITAUMA VS AKPE- IME (2000) 7 S.C. PART II, PAGE 24
EWO VS ANI (2004) 1 S.C PART II PAGE 115. PER BADA, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of Ogun State High Court of Justice sitting at Ijebu-Ode Judicial Division in Suit NO. HCJ/36/2005 BETWEEN: – PROFESSOR A. O. ARIGBABU (for himself and on behalf of Arigbabu Family) VS. MR. G. O. OYENUGA delivered on the 23rd day of October 2012.
Briefly the facts of the case are that the Plaintiff/Claimant now Appellant instituted an action at the lower Court on behalf of Arigbabu family against the Respondent in which he claimed as stated in paragraph 25 of his Further Amended Statement of Claim as follows:-
?(a) A declaration that the Defendant has committed a breach of the agreement dated 3rd day of November 1986.
(b) An order setting aside the Agreement dated 3rd day of November 1986 on the ground that the Claimant family representatives who signed the said agreement did so under undue influence.
?(c) The sum of N5,000,000 (Five Million Naira) being Special and General Damages for the trespass committed by the Defendant on the Claimant?s land situate at back of No. 22, Ibadan Road, Ijebu-Ode which land
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was not part of the land leased to the Defendant.
(d)Possession of the land situate, lying and being at No. 22, Ibadan Road, Ijebu-Ode.?
Pleadings were duly exchanged between parties and the case was fixed for hearing.
At the conclusion of hearing the Plaintiff/Claimant?s claim i.e. (the Appellant) was dismissed in its entirety.
The Appellant who was miffed by the decision of the lower Court appealed to this Court.
The learned Counsel for the Appellant formulated three issues for the determination of the appeal. The said issues are reproduced as follows: –
?(1) On the pleadings as constituted who out of the Claimant and the Defendant has the duty and the onus of proof of payment of rent as and when due. (Distilled from Grounds 1, 2 and 3)
(2) Whether there was evidence before the Court below which established that the Defendant breached a condition of the lease agreement with respect to the payment of rent. (Distilled from Ground 4).
(3) Whether the claim for forfeiture giving rise to re-entry as a condition of the lease agreement has been proved. (Distilled from Grounds 5, 6 and 7).?
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The learned Counsel for the Respondent on the other hand formulated two issues for the determination of the appeal. The said issues are reproduced as follows: –
?(1) Whether the trial Judge erred in law in putting the onus of proof of payment as and when due on the Appellant.
(2) Whether the learned trial Judge erred in law to presume and/or ignored the pleading and evidence of the Appellant before the Court below to the effect that the Respondent has not paid annual rent as and when due as provided in the terms of the lease agreement dated 3rd day of November 1986.?
At the hearing of this appeal on 3rd day of April 2019, the learned Senior Counsel for the Appellant stated that the appeal is against the Judgment of Ogun State High Court which was delivered on the 23rd day of October 2012.
The original notice of appeal on pages 205 to 206 of the record of appeal was filed on 18/1/2013 while the Further Amended Notice of Appeal filed on 28/8/2018 was deemed as properly filed and served on 3rd day of April 2019.
The Appellant?s Brief of Argument filed since 28/8/2018 was deemed as properly filed on 3rd day of April 2019.<br< p=””
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The Learned Senior Counsel for the Appellant adopted and relied on the Appellant?s Brief of Argument as his argument in urging that the appeal be allowed.
The learned Counsel for the Respondent in his own case also referred to the Respondent?s Brief of Argument filed on 23/11/2018 which was deemed as properly filed and served on 3/4/2019. He adopted and relied on the said brief as his argument in urging that this appeal be dismissed.
I have perused the issues formulated for the determination of the appeal by Counsel for both parties, the issues are similar. But I am of the view that the issues formulated for the determination of the appeal by Counsel for the Appellant is apt in the determination of this appeal. I will therefore rely on the said issues.
ISSUES FOR THE DETERMINATION OF THE APPEAL
ISSUE NO. 1
On the pleadings as constituted, who out of the Claimant and the Defendant has the duty and onus of proof of payment of rent as and when due. (Distilled from Grounds 1, 2 and 3).
ISSUE NO. 2
Whether there was evidence before the Court below which established that the Defendant breached a condition of the lease
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agreement with respect to the payment of rent. (Distilled from Ground 4).
ISSUE NO. 3
?Whether the claim for forfeiture giving rise to re-entry as a condition of the lease agreement has been proved. (Distilled from Grounds 5, 6 and 7).?
The three issues for the determination of this appeal set out above were argued together.
The learned Senior Counsel for the Appellant submitted that the burden of proof is on the party asserting the affirmative of the issue although there are instances where the initial burden is placed on the Defendant.
It was stated that by paragraph 6 of the Further Amended Statement of Claim that the Defendant paid N1,500.00 (One Thousand, Five Hundred Naira) for the first ten years of the lease agreement. i.e. Exhibit ?B?.
?The learned Counsel for the Appellant submitted that the onus of proof of payment of rent is on the Respondent being the party who has the obligation to pay rent.
It was submitted further that the placement of the burden of proof by the learned trial Judge on the Appellant was done in error. He went further that the onus could have been discharged by the
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production of the receipt of payment as pleaded by the Respondent.
The learned Counsel for the Appellant further submitted that the non-payment of rent by the Respondent as contained in the agreement Exhibit ?B? for a period of two years after same was due amounted to a breach of the condition of the lease.
He also submitted that in order to determine the lease under Exhibit ?B? when there is failure to pay rent as and when due that there must be either an actual re-entry or an action for recovery of possession. He relied on the case of:- J. C. NZELU VS. A. C. B. & OTHERS (1974) ALL NLR PAGE 69.
It was contended that the learned trial Judge completely ignored the relief sought for re-entry despite the evidence available to the Court.
The Learned Senior Counsel for the Appellant finally urged that this appeal be allowed.
?In his response to the submission of Learned Senior Counsel for the Appellant, the Leaned Counsel for the Respondent submitted that the Appellant by their pleading is claiming that the Defendant has refused to pay rent as at when due and this has led to a breach of condition of the Lease
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Agreement entered into by both parties. He went further that the Appellant in his pleading and examination in chief did not prove the existence of the fact that the Defendant has refused to pay as and when due. He referred to the Judgment of the lower Court where it was held among others that:-
?It is not in dispute that in line with the terms of the lease agreement, the Defendant paid his rent for the first ten years in advance. The onus, therefore, is on the Claimant to firstly satisfy the Court that the Defendant has failed to pay the reserved rent within two years of its falling due before the burden can shift to the Defendant to rebut the evidence.?
The learned Counsel for the Respondent relied on Section 133 (2) of the Evidence Act 2011.
?He submitted that in the instant case the Appellant had the burden of first proving that the Respondent did not pay rent as and when due irrespective of the fact that the Respondent averred that he would rely on the payment receipts. He contended further that it is after the burden above had been discharged that it can shift on the Respondent to rebut such evidence. He went further that the
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Judgment of the trial Court would be given against the Appellant if no evidence were produced on either side and that is exactly what the learned trial Judge had rightly considered. He relied on the following cases:-
PICKUP VS. THAMES INSU. W. RAILWAY (1886) 12 APPEAL CASES PAGES 41 AT 45.
ROBINS VS. NATIONAL TRUST CO. (1927) A. C. PAGE 315 AT 520.
SOWARD VS. LEGGAT (1936) 7 C & P AT 613.
The learned Counsel for the Respondent referred to the Appellant?s pleading and submitted that the position of the Appellant is far from the truth in respect of the breach of the Agreement as the Appellant did not at any time from evidence adduced at the trial Court accused the Respondent of not paying rent on the lease before the action was filed.
It was also submitted on behalf of the Respondent that the Appellant failed to prove that the Respondent went beyond the land leased to him as to warrant the setting aside of the Lease Agreement.
?The learned Counsel for the Respondent submitted that assuming without conceding that trespass was proved that the Appellant would only be entitled to damages or injunction as the alleged trespass
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has nothing to do with the terms and condition of the lease.
He finally urged that this appeal be dismissed.
RESOLUTION
The claim of the Appellant who was the Claimant at the lower Court was set out earlier in this Judgment.
The learned trial Judge in his Judgment held among others as follows:-
“… Now the allegation made by the Claimant is that the Defendant has not been paying his rent as and when due meaning that he has not been paying his rent whenever it is due as stipulated in the lease agreement.
Going by the pleadings, it is not the case of the Claimant that the Defendant has not paid any rent apart from the said rent paid in arrears (sic) when the agreement was executed. It should be noted that by virtue of the Provisions of clause (a) of the lease agreement ?failure to pay the reserved rent within two years of falling due shall entitle the lessor to enter into and take possession of the land demised as well as any structure placed thereon by lessee?
It is not in dispute that in line with the terms of the lease agreement, the Defendant paid his rent for the first ten years in advance.
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The onus, therefore is on Claimant to first satisfy the Court that the Defendant failed to pay the reserved rent within two years of its falling due before the burden can shift on the Defendant to rebut the evidence…? (See page 198 of the record of appeal lines 3 to 15.)
The learned Counsel for the Respondent urged this Court to hold that the Appellant had the burden of establishing in the first place the existence of a fact which he asserts and must not only establish its existence, but also prove in evidence that the fact exist which include stating exactly when the Defendant/Respondent stopped paying.
?In this appeal under consideration, the Claimant tendered in evidence Exhibit ?B? i.e. (the lease agreement dated 3/11/86 between the parties to this appeal) and this was acknowledged by the parties. By paragraph 15 of the Further Amended Statement of claim, the claimant avers that the Defendant has refused to pay his rent as at when due also in paragraph 7 of the Further Amended Statement of Claim, the Claimant also avers that by the leasehold agreement, the Defendant/Respondent paid the rent for the first ten years in advance.
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The CW3 Professor Anthony Oluwole Arigbabu in his statement on oath which was adopted as evidence, he stated thus ?that the Defendant also went out of the land leased to him and trespassed on the remaining portion of our land which is not part of the land leased to him. He also refused to pay his rent as and when due? (See page 98 of the record of appeal).
In his response on the matter of payment of rent, the Respondent in paragraph 12 of the Further and better Amended Statement of Defence pleaded as follows:-
?The Defendant avers that he the Defendant has paid the rent for the lease as at when due and will tender receipts for rent paid during trial and found on them? (See page 148 of the record of appeal)
Also in paragraph 16 of the Additional Statement on oath made by the Defendant on 15/6/2011 he stated as follows:-
?(16) That I have paid the rent for the lease as at when due and I will tender receipts for rents paid during trial and found on them.?(See page 153 of the Record of Appeal)
?In civil cases the initial burden of proof is on the party who desires that Judgment be entered in
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his favour based on facts which he assert to prove those facts as required by law. See the following cases:-
OKOBULE VS. OYAGBOLA (1990) 21 N.S.C.C. PART 3 PAGE 193.
NEPA VS. AKPATA (1991) 2 NWLR PART 175 PAGE 536.
SECTIONS 131,132 AND 133 OF THE EVIDENCE ACT 2011.
But the burden of proof in civil cases is not static, it shifts depending on the state of the pleading of the parties. See the case of ?BUHARI VS OBASANJO (2005) 7.S.C. PART II PAGE 123.
The standard of proof in civil cases is on the balance of probabilities or preponderance of evidence. See SECTION 134 OF THE EVIDENCE ACT 2011, and the following cases:-
ITAUMA VS AKPE- IME (2000) 7 S.C. PART II, PAGE 24
EWO VS ANI (2004) 1 S.C PART II PAGE 115.
In this appeal under consideration, the contention of the Appellant who was the Claimant both in pleadings and evidence at the lower Court is that the Respondent did not pay any rent apart from the ten years rent paid in advance when the lease Exhibit ?B? was executed on 3/11/1986.
The ten years payment in Exhibit ?B? (i.e. the lease agreement) was acknowledged by both parties in this case.
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The Respondent in his response to the contention of the Appellant now stated that he has been paying his rent as and when due and he would tender the receipts of rent paid during the trial. But he did not tender any of such receipts in evidence.
In my humble view, the Claimant has discharged the burden of proof placed on him to show that the Respondent did not pay his rent as and when due.
The Learned Author of Halsbury Laws of England, Landlord and Tenant volume 62 (2016) paragraph 253 in discussing ?when rent is payable? under the caption ?Time and Mode of payment? stated thus:-
?The Tenant has the whole of the rent day in which to pay his rent and the rent is not in arrears until after midnight of that day…
If rent is payable in advance, it will only then be payable if the term has continued until the end of the rent day. A payment made before the rent day is a payment not of rent but of a sum in gross. It is an advance to the Landlord with an agreement that on the day when the rent becomes due that advance is to be treated as a fulfillment of the obligation to pay the rent.
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Hence it is no discharge to the tenant unless, when the day arrives, the Landlord is still entitle to receive and give a discharge for the rent…?
As I said earlier, in civil cases the burden of proof is not static, while the burden of proof initially lies on the Claimant/Appellant, in the circumstances of this case the burden shifted on the Respondent to prove that he paid his rent as and when due. He could do this by production of the receipt of payment he made as pleaded and testified to at the lower Court.
The failure of the Respondent to tender in evidence the receipts referred to earlier in his pleadings and evidence is fatal to his case and the only inference that could be drawn from the scenario is that he never paid any rent apart from the Advance ten years rent payment referred to in Exhibit ?B?. Section 167 (d) of the Evidence Act 2011 is therefore applicable in this case because the evidence like receipts which ought to be tendered/produced and is not produced would if produced, be unfavourable to the Respondent who withholds it.
?In this case the learned trial Judge held
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that the Claimant failed to discharge the onus placed on him by law, but I am of the view that the Claimant has discharged the onus of proof placed on him after carefully looking at the pleadings and the evidence presented to Court referred to earlier in this Judgment.
The next area to be considered is whether the Defendant/Respondent has committed any breach of the lease agreement Exhibit ?B? which was dated the 3rd day of November 1986.
Under the lease agreement in paragraph (a) the Lessee covenant with the Lessor as follows: –
?To pay the reserved rent at times and in manner aforesaid. Failure to pay the reserved rent within two years of falling due shall entitle the lessors to enter into and take possession of the land demised as well as any structures placed thereon by the lessee.?
I have held earlier in this Judgment that the failure of the Respondent to produce receipt of payment of rent after the initial ten years advance payment of rent made by him is that he did not pay any rent since 3rd day of November 1996 when the rent became due for another payment.
?In view of the foregoing, I am of the view that
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the Respondent has breached the condition of the lease agreement Exhibit ?B?. The filing of this suit on 16/3/2005 for re-entry by the Claimant who is the Appellant is therefore justified. See the case of: – J.C. NZELU VS AFRICAN CONTINENTAL BANK AND OTHERS (Supra)
Consequent upon the foregoing issues 1, 2 and 3 are hereby resolved in favour of the Appellant and against the Respondent.
In the result, it is my view that there is merit in this appeal and it is hereby allowed.
The Judgment of the lower Court in Suit No- HCJ/36/2005- BETWEEN: – PROFESSOR A.O. ARIGBABU (for himself and on behalf of KARIMU NEYE ARIGBABU FAMILY) VS. MR. G. O. OYENUGA delivered on the 23rd day of October 2012 is hereby set aside. And in its place-
(1) A declaration that the Defendant/Respondent has committed a breach of the agreement dated 3rd day of November 1986 is hereby made.
(2) Possession of the land situate lying and being at No 22 Ibadan Road, Ijebu-Ode is hereby granted to the Claimant/Appellant.
?The Appellant is entitled to costs which is fixed at (?100,000.00) One Hundred Thousand Naira against the Respondent.
Appeal Allowed.
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NONYEREM OKORONKWO, J.C.A.: In this appeal, the central issue for the trial Court to decide in order to resolve the controversy in the case before it was the issue of onus or burden of proof of payment under the lease agreement Exhibit “B” the substratum of the case before the lower Court. In the said lease agreement, the respondent was obliged to pay rent at the expiration of the first ten year payment within a specified period otherwise the appellant was entitled to repossession after two years of such breach.
The question at the trial was on whom the onus lay to establish payment. While on the pleading, the lessor appellant pleaded that respondent had not paid the rent due, the respondent pleaded that due rent had been paid and pleaded receipt which was not produced. The learned trial judge held that the onus was on the appellant lessor.
The onus or burden of proof in civil cases before evidence, rest on the party who asserts the affirmative of the issue. See Akande v. Misa (2012) 15 NWLR (pt.1324) 538, Famuroti v. Agbeke (1991) 5 NWLR (pt.189) 1.
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The appellant assert the negative while the respondent assert the affirmative. The burden is therefore on the respondent Leasee. However the trial judge misdirected himself on the question of onus/burden and came to a wrong conclusion.
The lead judgment of my learned brother Jimi Olukayode Bada has now put matters therein in proper perspective and I agree with his judgment on the issue. There is nothing more to add.
FOLASADE AYODEJI OJO, J.C.A.: I have read in advance the judgment just delivered by my learned brother Jimi Olukayode Bada JCA. I agree that there is merit in this appeal and it should be allowed.
The facts of this case have been fully stated by my learned brother in the lead judgment. Parties in their pleadings joined issues on the payment of rent. The Appellant in his pleadings at the lower Court stated that upon the execution of the lease Agreement dated 3rd November 1986, Exhibit B, between the parties, the Respondent paid rent on the land for ten years in advance. That at the expiration of the ten years rent, the Respondent failed to pay any further rent as at when due. The Respondent for his part
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averred in his pleadings that he paid rent at the expiration of ten years. He averred in paragraph 12 of his further and better amended statement of defence thus:
“The Defendant avers that he the Defendant has paid the rent for the lease as at when due and will tender receipts for rent paid during trial and found on them”.
The law is settled that the burden of proof in civil cases is not static as in criminal matters. Where a Defendant puts himself in the position of a claimant and asserts the existence of a set of facts or things he has a legal burden to prove his assertions. See NWAVU & ORS, VS. OKOYE & ORS (2008) LPELR – 2116 (SC), AGAGU VS. MIMIKO (2009) 7 NWLR PT. 1140 PG. 342 AT 431 PARAGRAPHS C- E; FAYEMI VS. ONI (2010) 17 NWLR (PT. 1222) 326 AT 386 – 387 PARAGRAPHS C-A.
In ADEGOKE VS. ADIBI (1992) 5 NWLR (PT. 422) 410 AT 423 PARAGRAPHS A -B, NNAEMEKA-AGU JSC held as follows:
“But in civil case, the onus of proof is not fixed on a Plaintiff as it is on the prosecution in criminal cases. In civil cases, while the general burden of proof in the sense of establishing his case lies on the Plaintiff such a burden is not as
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static as in a Criminal case.
Not only will there be instances in which on the state of the pleadings the burden of proof lies on the Defendant but also as the case progresses, it may become the duty of the Defendant to call evidence in proof or rebuttal of some particular point which may arise in the case. See FELIX O. OSAWARU VS. SIMEON O. EZEIRUKA (1978) 6 – 7 SC 135 AT PG. 145 The principle is that the burden of proof lies on he who asserts and not he who asserts the negative of an issue.
In the instant case, the Respondent from his pleadings asserted in the positive that he paid the rent as at when due after the expiration of the ten years rent paid in advance. He went on to plead the receipt of the rents he said was paid. The evidential burden of proof has thus shifted to the Respondent. He had the legal burden to prove that he paid the rents. He had a duty to tender the receipts of payment which he pleaded. It is only when he has done that he would be held to have discharged the evidential burden of proof on him.
?To prove he paid rents after the expiration of the initial rent paid, the Respondent adopted his statement on
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oath as his oral evidence. The deposition in his statement on oath on this point is a repetition of the averment in his pleadings. He did not tender the receipts evidencing the payment of the rent as he pleaded. He thus failed to discharge the burden of proof on him.
The trial judge was clearly in error when he placed the burden of proof of payment of rent as at when due after the expiration of the ten year advance payment on the Appellant.
?For the above and the more detailed reasons contained in the lead judgment, I also find the appeal meritorious and allow same. I abide by all consequential orders in the lead judgment including that on costs.
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Appearances:
Mr. O. Ayanlaja, SAN with him, Chief A. OdugbesanFor Appellant(s)
Mr. Kayode Oshinyemi with him, Mr. Adebayo AdekoyaFor Respondent(s)
Appearances
Mr. O. Ayanlaja, SAN with him, Chief A. OdugbesanFor Appellant
AND
Mr. Kayode Oshinyemi with him, Mr. Adebayo AdekoyaFor Respondent
