Pillars Nig. Ltd. V. Mrs. Hannah Desbordes & Ors (2009)
LawGlobal-Hub Lead Judgment Report
REGINA OBIAGELI NWODO, J.C.A.
By Writ of Summons and Statement of Clam dated 3rd of May 1993, the Respondents who were Plaintiffs in the High Court of Lagos State instituted an action against the Appellants who were Defendants in the lower court claiming the following reliefs:
“(a) A DECLARATION that the Defendant, having failed to erect and completely finish a dwelling house on Plot No.6, Sabiu Ajose Crescent, Surulere, Lagos as agreed in writing between the Defendant and the late Grant Desbordes on 24th October, 1977 are in fundamental breach of the said written Lease/Agreement dated 24th October, 1977.
(b) FORFEITURE by the Defendant of the said Lease/Agreement dated 24th October, 1977, by virtue of the said fundamental breach of Agreement.
(c) AN ORDER that the Plaintiffs immediately recovers possession of all that property known as Plot No.6, Sabiu Ajose Crescent, Surulere, and registered under Title No. M08834 at Lagos State Land Registry, Ikeja, Nigeria.”
Pleadings were filed and exchanged by the parties. In the course of proceedings, the Respondent sought and obtained leave of court on 6th of May 1997 to amend his Statement of Claim. Consequent upon which he filed an amended Statement of Claim on 7th April, 1997. The Appellant was equally granted leave to amend his Statement of Defence if necessary. He filed an Amended Statement of Defence on 20th of May 1997. The Respondent called one witness and the Appellant also called one witness. Learned counsels filed and exchanged written submissions. The Learned Trial Judge in its considered Judgment on 8th of December 2000 held (page 247 of the record):
“One must consider in the exercise of the courts discretion the general conduct of the Defendant. Since the filing of this suit, the defendant has-
(1) Raised objection to challenge the locus standi of the Plaintiffs.
(2) From the letter of the lessor – the Defendant has dealt so proudly with him, discountenanced all his correspondence.
(3) The Defendant denied him his rent and the man died ten years after signing without benefiting from the lease agreement, EXHIBIT D except for the 3 years rent paid in advance.
N 1.5 million as damages – their claim as the reason for claiming N 1.5m cannot be justified but their claim for forfeiture of the leasehold interest created by EXIDBIT B, succeeds. I also grant the declaration sought in paragraph 16 of the amended statement of claim. I therefore order the forfeiture of the lease and the possession of the property shall revert to the Plaintiffs forthwith. Cost of N20,000 is awarded to the Plaintiffs against the Defendant.”
The Appellant as Defendant dissatisfied with the said Judgment of the High Court appealed to this court vide a Notice and Grounds of Appeal dated and filed 17th March, 2006 upon 3 Grounds of Appeal.
In compliance with the Rules of this court, parties filed and exchanged briefs of argument. During the hearing of the Appeal on 19th February, 2009 Mr. C. E. Anenugwu adopted and relied on the Appellants Brief dated 25th May 2007 filed on 8th May, 2008 and the reply Brief filed on 3rd June, 2008. He urged the court to allow the appeal. Learned counsel to the Respondent J. O. Ighekpe adopted the Respondents brief dated and filed on 21st May, 2008. He referred the court to the Notice of Intention to rely on a preliminary objection filed by the Respondent which arguments in support can be found on page 4 of the Respondents Brief. He urged the court to dismiss the appeal of the Appellant.
Briefly the facts are as follows: Mr. Grant Desbordes (deceased) was the holder of title to the piece of land situate at Plot 6, Sabiu Ajose Crescent, Surulere, Lagos, to wit, under title No. 8834 at Lagos Land Registry Ikeja.
During his lifetime he entered into a 26 years Developer’s Lease Agreement with the Lessee, the present Appellant, on 24th October, 1977. The lease agreement required the Defendant/Appellant at his own expense on or before the 21st day of December, 1979 (if not prevented by weather or unavoidable events) to erect a dwelling house and buildings in the position designed in the said plan together with the specification stated therein. The Appellant is also to pay annually to Mr. Grant Desbordes (deceased) the sum of N2,250.00 on the 21st of December each year for the term of 26 years from 24th October, 1977. When the Appellant failed to commence and conclude within the stipulated period of construction 21st December 1979, the expiration date stated in the lease. At the commencement of the suit in the lower court the Appellant had not erected the dwelling house on the plot. The late Mr. Grant, the Lessor, wrote letters of complaint on none compliance before he instructed his solicitor Barr. Alade Akesode to issue a Notice of Breach of Covenant (Exh. E). The Lessor thereafter passed on.
Subsequently, the widow and children then instructed G. C. M. Onyiuke’s Chambers by a power of Attorney dated 1st April, 1992 to issue necessary statutory notices. The Appellants did not deny the delay or failure to erect the dwelling house but gave reasons in their communications to the Appellants counsel which included issues of high cost of building materials, change in Government banking policy on landing, late approval of the plan and the detention of its Managing Director in 1984 on grounds of politics. Not satisfied with the explanations, the Respondent filed the suit in the lower court. The Appellant in his Brief of Argument formulated 5 issues for determination. For purposes of clarity I reproduce the issues as phrased:
“(a) Relating to Grounds I & 4 of the Grounds of Appeal:
Whether the findings of the lower court that the Statutory Notices were served on the Defendant/Appellant is justified, being a finding contrary to the pleadings and evidence of the Plaintiffs/Respondents?
(b) If the issue (1) above is answered in the negative, whether the Plaintiffs/Respondents satisfied the conditions precedent to the institution of this case for forfeiture of the lease between the Plaintiffs/Respondents and the Defendant/Appellant?
(c) Relating to Ground 2 of the Grounds of Appeal:
Whether it was competent for the lower court to make a case for the Plaintiffs/Respondents on a matter that was never traversed by the Plaintiffs/Respondents in their pleadings and at the trial?
(d) Further to Ground 2 of the grounds of Appeal, whether the Plaintiffs/Respondents have waved their right to forfeiture by demanding and collecting ground rent up to 1995 before the purported notice to quit, that is, Exhibits G was allegedly issued in the line with the averments in Paragraph 22 of the Statement of Defence of the Defendant/Appellant?
(e) On Ground 3 of the Grounds of Appeal:
Whether the Appellant is entitled to relief against forfeiture in line with Defendant/Appellant’s counterclaim and in the absence of defence to the counterclaim?”
The learned counsel to the Respondent in his Brief of Argument raised a Notice of Preliminary Objection. It is his submission in Limine that some portions of the Appellants brief are incompetent and ought to be struck out. The crux of the objection is that issues 3.0(c) and 3.0(d) as framed in the Appellants Brief are both distilled from a single Ground of Appeal to wit: Ground 2 in the Notice of Appeal dated 17th March, 2006. It is his submission that Appellant wrongly distilled two issues from single ground 2. The learned counsel to the Respondent Mr. Ighekpe further submits that it is absolutely wrong for the Appellant to formulate more issues than the grounds of appeal. He cited LEEDO Presidential Hotel Ltd. v. B. O. N. Ltd. (1993) 1 N.W.L.R. (Pt. 269) 334 CA 347 ratio C and Agbetoba v. Lagos State Executive Council (1991) 4 N.W.L.R. (Pt. 188) 664 S.C. 681 – 682 para H – A. It is his submission that the Appellants issue No. 3.0(d) with the submissions at pages 10 to 11 of the brief be expunged for its incompetence. He cited the cases of Iloabachie v. Iloabachie (2000) 5 N.W.L.R. (Pt. 656) 178 CA 195 Note 43. and M. B. N. Plc. v. Nwobodo (2005) 14 N.W.L.R. (Pt. 945) 379 SC 381.
Mr. Anaenugwu, learned counsel to the Respondent in his reply brief submits that it is not the law nor does it offend the procedure or rules relating to briefs of argument to formulate one or more issues out of a single Ground of Appeal. He cited Afrotec Technical Services Nig. Ltd. v. Mia & Sons Ltd. (2001) 1 M.G.S.C. 37 at page 71 para A – B; Azaki v. agamade Jitau (2003) 5 N.W.L.R. pt. 812 pg. 247. It is his contention that the error is not sufficient to warrant striking out the offensive paragraph of the brief of argument, that the era of sacrificing substantial justice is gone rather the position of the law is that an Appellate court will use a brief of argument however inelegant it may be. Emavworhe Etajata & Others v. Peter Ighim Ologbo & Another (2007) 11 M.G. S.C. 176 at pages 206. On circumstances when the court can strike out issues formulated in the brief of argument he cited Iko v. State (2001) 6 M.G.S.C. 1 at pg. 10.
This court and the Supreme Court have on several occasions condemned the proliferation of issues in briefs of argument. See Chevron Nig. Ltd. v. Onwugbelu & Other (1996) 3 N.W.L.R. (Pt. 437) 404; Omega Bank v. O.B.C. Ltd. (2005) CLA (1) JSC; Agnaoso v. Ehikorefe (1997) 4 N. W.L.R. (Pt. 502) 630; Ali v. C.B.N. (1997) 4 N.W.L.R. (Pt. 498) 192; Padawa v. Jatau (2003) 5 N.W.L.R. (Pt. 813) CA 247.
The issues formulated in Brief of Argument need not coincide with the number of Grounds of Appeal filed. Infact, the court can accept equal number of grounds and issues, but where the issues formulated for determination of an appeal is more than the grounds of appeal it is undesirable and unacceptable in the Appellate courts. The obvious reason is that whilst grounds of appeal complain on specific aspects in the Judgment of the court, issues deal with a number or agglomeration of grounds. The Supreme Court succinctly set out their attitude to proliferation of issues in Agu v. Ikewibe (1991) 3 N.W.L.R. (Pt. 180) 385 when they held:
“The court has counseled counsel formulating issues on several occasions to ensure always that the formulation of issues for determination is not merely consistent with and within the scope and confines of the grounds of appeal relied upon, but also that they should not be prolix and proliferate as to be more in number than the grounds of appeal on which they are based. This is because whereas an issue to be determined can take into consideration a number of grounds of appeal, it is not desirable to split a ground of appeal into a number of issues, see A. G. Bendel State v. Aideyan (1989) 4 N.W.L.R. (Pt. 118) 646; Ugo v. Obiekwe & Anor. (1989) 1 N.W.L.R. (Pt. 99) 566; Adelaja v. Fanoiki (1990) 2 N.W.L.R. (Pt. 131) 137 – per Karibi Whyte, JSC at page 401” .
It is therefore absolutely wrong for an Appellant to formulate more issues than the Grounds of Appeal. See Leed Presidential Hotel Limited v. Bank of North Limited & Others (1993) 1 N.W.L.R. (Pt. 269) 334; Anie & Others v. Chief Uzorka and others (1993) 8 N.W.L.R. (Pt. 309) 1.
In the instance case the Appellants Notice of Appeal on pages 255 – 259 contains 3 Grounds of Appeal, the Appellant surprisingly in the light of decided authorities on proliferation of issues proceeded ungainly to formulate 5 issues from 3 grounds. The number of issues distilled clearly is far in excess of the number of Grounds of Appeal. The formulated of issue 3(c) and 3(d) from same grounds 2 is undesirable. Labiyi v. Anretiola (1992) 8 N.W.L.R. (Pt. 258) 139 at 159.
All that is allowed is to tie more than one ground of appeal to one issue but not two issues from one Ground of Appeal. The extra issue is mere surplusage.
Ayangade v. O.A.U.T.H.C.M .. (2001) 7 N.W.L.R. (Pt. 711) 187) per Mukhtar JCA.
The learned counsel to the Respondent cited the case of M.B.N. Plc. v. Nwobodo Supra. The Supreme Court therein per Pats – Acholonu, J.S.C. (of Blessed Memory) described the practice of proliferation of issues as follows:
“Where the number of issues distilled are far in excess of the number of grounds of appeal, then the implication is that there has been a parade on display of palpable ignorance, nay, culpable lack of the knowledge of the law. It means that the Appellant does not even know or is not sure of what he is appealing against”.
What then is the position once, more than one issue are distilled from one ground of appeal. The Supreme Court in Anie v. Chief Uzorka Supra, had this to say:
“All told not only do the seven issues formulated outstrip the five grounds of appeal in numerical strength falling as they do, outside the scope of those grounds but are in my respectful view superfluous and unnecessarily prolix. See Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385 at p. 401. The seven questions submitted on behalf of the appellants are therefore accordingly discountenanced for neither being limited by, circumscribed nor falling within the scope of the grounds of appeal.
This court in Ayangade v. O.A.U.T.H.C.M.B. (2001) 7 N.W.L.R. (Pt.711) per Mukhtar J.C.A. as she then was also held:
“It is trite that whereas an issue can be tied to more than one ground of appeal, more than one issue cannot be tied to a single ground of appeal. Issues such as the ones above are unnecessary and amount to surplusage, and when there is such situation some issues have to give way, i.e. be struck out. It is in this vein that I strike out issue (2) (supra). See Dung v. Gyang (1994) 8 N.W.L.R. (Pt. 362) 315; Labiyi v. Anretiola (1992) 8 N.W.L.R. (Pt. 258) 139. ”
In Padawa v. Jatan Supra, the Appellant in his brief formulated four issues out of three grounds. The court per Muhammed J.C.A. merged the two issues distilled from one ground because both were on issue of Jurisdiction.
Clearly the attitude of the Appellate court is either to discountenance the superfluous issue from the ground of appeal, strike one out or merge both. In my humble view the approach to adopt depends on the nature of the ground of appeal and the issues distilled. Where there is a repetition of contents the second issue should be discountenanced, whereas where the two issues can be conveniently merged in order to present one main question in dispute under the ground of appeal then the court may be disposed to adopt the approach of merging the two in the interest of Justice in the absence of any specific statutory provision or regulation on specific effect of proliferation of issues. Of course the practice of discountenancing same should not be whittled down.
In the instance case, the Appellant’s Ground 2 reads as follows:
“The Learned Trial Judge erred in law in considering matters and issues that were extraneous or irrelevant to the question of whether the Plaintiffs had waved their right to forfeiture”.
Looking critically at the above ground and the particulars in support, it is my firm view that issue 3(d) distilled for consideration is more concise and in concrete terms has identified the points in contest sufficient to place the Respondent on notice of the trend of the argument. The issue is more related to the grounds and particulars in ground 2. Ground 3(c) is abstract I therefore will discountenance same and issue 3(c) is struck out, in the consideration of this appeal, this is because it is abstract and prolix. Mr. Anaenugwu submission that an Appellate court will use a brief of argument however inelegant is the general position of the practice of the Appellate courts. However, that general position is limited. For instance, an inelegant Brief with issues distilled from no ground of appeal cannot be ignored nor where the proliferation of issues obscures the question in disputes.
Furthermore, the Appellants Issue 3B is also improper. The issues for determination accentuates the issues in the grounds of appeal which are relevant to the determination of the appeal in the light of grounds of error alleged. Issue 3(b) is an alterative issue and it is not tied to any Ground of Appeal. Further I observed that Issue A is tied to grounds 1 & 4 of the Grounds of Appeal when the Notice of Appeal contains only 3 Grounds of Appeal. The learned counsel to the Appellant has inelegantly adopted an unacceptable methodology approach in the framing of his issues. He cannot under Issue (A) seek an alternative Issue (B) which is not tied to any ground. Issue B is secondary in nature and not tied to any ground of appeal. It is discountenanced. Consequently the acceptable issues formulated by the Appellant are issues 3(a) relating to Ground I Issues 3(d) now issue 3(b) tied to ground 2 and issue 3(e) now issue 3 (c) tied to Ground 3.
The Respondent distilled 3 issues for determination in their Brief which are as follows:
“(i) RELATES TO GROUND NO.1 IN THE DEFENDANT/APPELLANTS NOTICE OF APPEAL
Whether the Plaintiff/Respondents successfully discharged the onus of proof required to entitle them to forfeiture of lease and recovery of possession.
(ii) RELATES TO GROUND No. 3 IN THE DEFENDANT/APPELLANTS NOTICE OF APPEAL
Whether the remedy of relief against forfeiture is available to the Defendant/ Appellant in the Circumstances of this case.
(iii) RELATES TO GROUND No. 2 IN THE DEFENDANT/APPELLANTS NOTICE OF APPEAL
Whether the Plaintiffs/Respondents waived the Defendant/ Appellant’s breach of Lease Agreement (Exh. B)”
Having appraised the issues formulated in the two Briefs, the 3 issues formulated by the Appellant are more apt in the circumstance vis-a-vis the grounds of appeal. I will adopt same in the consideration of this appeal and in the process incorporate the related points raised in the Respondent Brief.
Under Issue One: Whether the findings of the lower court that the statutory notices were served on the Defendant Appellant is justified being a finding contrary to the pleadings and evidence of the Plaintiffs Respondents?
The crux of this issue is whether the trial court arrived at its decision on service of statutory notices properly based on the pleadings and evidence of the Plaintiffs/Respondent. The Learned Trial Judge (on page 243 of the record of Appeal) found as follows:
“In the statement of defence (as amended) the defendant denied service of Notice – the Quit Notice and the Notice of Intent. In evidence the D. W.1. admitted receipt of only Exhibit H, the notice of intent having been confronted under cross-examination with Exhibit K – where his office acknowledged the said 7 days notice. When the evidence of P.W.1 and D.W.1 are placed on an imaginary scale as it is my view that the testimony of P.W.1 is credible and weightier than that of D.W.1. I therefore reject the Defendants denial of the receipt of exhibit D, G & H”.
The Respondent in his Amended Statement of claim in the lower court pleaded as follows in para. 15:
“Consequently, a Notice to Quit dated 14 April 1992 and a 7 day Notice of Owner’s Intention to recover possession dated 16 October, 1992 were served on 14 April 1992 and 17 October 1992 respectively. The Plaintiffs plead and will rely at the trial of this suit on these Notices and Notice to Produce the Original Copies thereof is now given to the Defendant” .
The Defendant in his Amended Statement of Defence in para. 24 pleaded as follows:
“The Defendant deny paragraphs 14 and 15 of the Statement of Claim”.
Clearly the Respondent pleaded the service of Notice to Quit and 7 days Notice of Intention and the Appellant denied service of both. P.W.1 in evidence on 12 January 1996 told the court their solicitor wrote two letters tendered as the Notice to Quit Exh. G and Notice of Intention exh. H. The Appellants counsel did not cross-examine the witness on issue of the notices averred served. Furthermore, the D.W.1 in evidence told the court they were served with the 7 days Notice of Intention to recover possession. The admission of service of the 7 days notice by D.W.1 is in consonance with the Respondent evidence that same was served on them. The only area of dispute really is whether there was enough evidence that the Notice to Quit was served. The lower court was satisfied of service based on the fact that the Respondent/Appellant did not cross-examine this witness on that issue and the fact that Defendant denied service in their pleading of the Notice of Intention and in evidence admitted service. In effect, the P.W.1 having averred to service of the Notice to Quit, the Defendant should have discredited his evidence during cross-examination. The challenge of the evidence of P.W.1 on service of Notice to Quit during cross-examination would have placed further burden on the Plaintiffs in the lower court to lead further evidence and to establish the claim on service. The absence of same did not necessitate prove on mode of service when issues of service was not challenged during cross examination of P.W.1.
It is trite that where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility or reliance unless the document is inadmissible by law. See Omega Bank v. O.B.C. Ltd. (2005) CLR 1(1) SC.
The Learned Trial Judge rightly relied on the uncontroverted evidence of the P.W.1 that the Notice to Quit was served on the Appellant. Contrary to the learned counsels submission that the Learned Trial Judge reviewed the evidence of P.W.1 and D.W.1 with reference in particular to the fact that the Defendant denied service of any notice but later accepted service of intention when challenged with Exhibit K where his office acknowledge service when the notice to quit was averred to have been served in the same address of service wherein the notice of intention was, served. Appraisal of evidence is the duty of the Learned Trial Judge who had the opportunity to observe the demeanour of the witness in the witness box. Thus ascription of weight to evidence is within the exclusive preserve of the trial court. See Abba v. Ogodo 1984 1 SCNLR 372.
The findings thereat will only be touched by this court when the reason is perverse and not founded on credible evidence. I am of the firm view that the trial Judge came to the right conclusion that the evidence in support of service of notice and the fact that Defence after denying in their pleading, later admitted service of notice of intention are strong basis for the court to accept PW1’s evidence as credible against D.W1 testimony. For an Appellant court to overturn the finding of the lower court on the issue of credibility the reason must be very strong and cogent. The learned counsel for the Appellants contention that the lower court found Exhibit K is sufficient proof of service of Exhibit E and G is not reflected in the judgment of the court with the greatest respect to the learned counsel, he must limit himself to what is specifically stated in the body of the Judgment and not on what can be inferred. Where the finding of a trial court is borne out from the evidence placed before it. An appellate court has no jurisdiction to interfere. See Owie v. Ighiwi (2005) 5 N. W.L.R. (Pt. 917) SC 184.
In the instance case, there was a correct evaluation of the evidence on the statutory notices served. On learned counsels submission that the manner of pleading the Notice of Breach (Exhibit E) offends order 17 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 1994. Order 17 Rule 4 of the High Court of Lagos State (Civil Procedure) law (1994) CAP 61 stipulates as follows:
“Every pleading shall contain, and contain only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved … ”
The above provision is explicit and unequivocal. Pleadings should contain facts and not evidence. Documentary evidence need not be specifically pleaded in order to be admissible as long as facts and not the evidence by which such a document is covered are expressly pleaded. See Okonkwo v. Co-operative & Commerce Bank (Nig.) Plc & 2 Others (2003) 8 N.W.L.R. (Pt. 822) 347. The Plaintiff/Respondent in paragraph 9 of their amended Statement of Claim pleaded six letters and Notice of Breach of Covenant. The contents of these documents are facts. When a document is referred in a pleading it ought to be tied to the facts for which it has been cited. Where the facts are stated In respect of the Breach and not directly tied to the Document Notice of Breach pleaded. It should suffice as in the instance case. See the learned authors of Bullen & Leake: Precedents of Pleading (It” Edition) page 44.
The case of G.N.I.C. Ltd. v. Ladgroups Ltd. (1986) 4 N.W.L.R. (Pt. 33) CA 72 is not opposite to the present circumstance. In Ladgroups Ltd. case, the document ‘Insurance Policy and Certificate’ was pleaded and nothing else.
When the main thrust of the case was the entitlement to compulsory excess by reason of the conditions stipulated in the policy. This compulsory excess was not pleaded and Court of Appeal held that to plead document alone without the effect is to plead evidence. It is indisputable that the Respondent did not plead in the Amended Statement of Claim, the name of the legal practitioner that issued the Notice of Breach of Covenant, he merely pleaded Mr. Grant briefed a legal practitioner. However the contents of document were scattered all through the pleadings. The fact on the averred breach were pleaded. Moreover, the Appellant as Defendant in the lower court did not object, when the Notice of Breach of covenant was tendered in the lower court through the PW 1. See (page 174) before it was admitted as Exhibit E. He has waived that special right and cannot raise the issue at this stage. Moreso when the essence of pleading is to avert surprise and the plaintiff Respondent in their Amended Statement of claim in paragraph 9(a) and paragraph 10 pleaded reasonable information that a legal practitioner was briefed and also the Notice of Breach of Covenant. I must however add that it is imperative, that utmost care be observed whilst drafting pleadings in order to ensure material facts are stated. In the instance case learned counsel for the Plaintiff Respondent should have pleaded the name of the legal practitioner briefed by Mr. G. Desbordes (deceased) for identification of counsel.
Nevertheless the absence of any objection to the document going on as an exhibit is that the Appellant was not taken unawares as regard Notice of Breach pleaded.
The inference drawn is that of awareness. Consequently he is estopped from raising same at a later stage.
On issue of whether the Respondent should have pleaded the legal effect of the Notice of the breach as a fact before it is tendered. This is a clear misconception of the modern rule on pleadings. The strict rigid old legal terminology of pleading have since changed in line with new procedures. The pleader is not bound to state the legal result of a document pleaded or fact pleaded. See Supreme Court decision in Ezewani v. Onwordi (1986) 4 NWLR pt 33 SC 27. Any attempt to so state legal effect will amount to argument in pleading. Any legal consequence which the facts admit should be reserved for argument in brief. See Re Vandervells’ Trust 1974 3 WLR per Lord Denning at page 264.
Mr. Anaenugwu urged the court to invoke Section 149 (d) of the Evidence Act in view of the failure of the plaintiff Respondent to call Mr. Alade Akinsode or whoever effected service of Exhibit E to testify as to mode of service. The Appellant in their Amended Statement of Defence on paragraph 4 pleaded a general traverse and in paragraph 5 tried to respond to paragraph 9 by pleading that based on the agreement between Plaintiff and Defendant they submitted a building plan. This response is not a denial of the existence of the Notice of Breach Exhibit E. The general traverse in paragraph 4 is equally not of value in particular when DW1 in evidence admitted service of notice of intention after the denial in the pleading. The learned trial judge rightly held that Exhibit E and G were served on the Appellant. This issue fails.
Forfeiture is a right which endears in the landlord and is aimed against a tenant who is in breach of the tenancy. See Seaview Investment Ltd. v. Munis (1991) 6 N.W.L.R. (Pt. 195) 67. In effect when the landlord will be entitled to re-take the premises and prematurely put an end to the lease.
Under issue (d) learned counsel for the Appellant raised issue of waiver that the evidence of payment of rent up to 1995 was not traversed by the Plaintiffs/Respondents in their pleadings or evidence. That it is not competent for the lower court to make a case of its own or formulate its own case from the evidence before it and thereafter proceed to give a decision based on its own formulation and quite contrary to the case of the parties before it. See Liberty Insurance Co. Ltd. v. Mrs. U. John (1996) 1 N.W.L.R. (PI. 423) 192 at 199; Ogiamen v. Ogiamen (1967) All N.L.R. 203.
The learned counsel’s argument is that the lower court did not act on facts before it when he held that the Appellants payment of ground rent up to December 1995 before the institution of the case at the lower court did not amount to a waiver. The D.W.1 in evidence on page 187 of the record of Appeal stated as follows:
“Witness: the cheque was paid upon presentation. It is to cover the ground rent up to 1995 December. In April, 1995 we sent our cheque N4,500.00 in our letter”.
On page 189 of the same record D.W.1 under cross-examination stated:
“We paid rent up to 1995. It is not correct to state that all the money paid as rent was exhausted in 1991 before the suit was filed”.
The testimony of the D.W.1 is that he paid rent up to 1995. The Learned Trial Judge from the contents of the letters tendered on payment arrived at the conclusion that the total rent paid by Defendant to Plaintiff was N27,000.00 to cover 12 years from 12/12/80 to 21/12/91. The lower court succinctly set out how he arrived at its conclusion based on the exhibits tendered and the evidence of D.W.1 that the Appellant paid till 1995. The lower court acted on the Documentary evidence tendered before the court. He found that the Appellant had not paid up to 1995. The learned counsel for the Appellant is wrong to have made strong submission that the lower court made a case of its own not backed by evidence. Incidentally Exh. L, M, O and P were all tendered through the Defence witness and the figures on the cheques forwarded to the Appellant counsel are clear and calculable.
Learned counsel for the Respondent submitted that the Plaintiffs/Respondents having demanded and collected rent up to 1995 with knowledge of the Breach of Covenant to develop and have waived their right to forfeiture of the leave. He cited Blackstone Ltd. v. Burnetts (Westend) Ltd & Anor. (1973) 3 All E.R. 782. It is his final submission that the demand made by the Plaintiffs Respondents solicitors for ground rent and the payment of rent in advance up to 1995 amounts to a waiver of the Respondent right to forfeiture.
The Learned Trial Judge on issue of waiver held:
“It is not disputed as years roll over the breach continues having regard to the Notice already given and is a continuing breach of covenant”.
Where rent is payable in advance as in this case from the terms of Exh. B, any demand for or acceptance of rent can only operate as a waiver of past and continuing breaches known to the landlord at the time of demand or acceptance and for such period as the landlord knows they will continue. It does not operate as a waiver for breaches subsequent to demand or acceptance. Segal Securities v. Thoseby (1963) 1 Q.B. 887.
It is obvious from the Documentary evidence on communications between the counsels on issue of rent that the lower court rightly found that at the time suit was instituted on 13/5/93 the Appellant had paid his rent up to 21/12/91. Exh. D dated 6 August 1985 was written by the late Grant Desbordes demanding for arrears of rent. Exh. K is another letter form the Defendant acknowledging being in arrears and with a cheque of N 12,000.00 enclosed. This cheque was subsequently returned for renewal. Exh. N written on 23 April 1992 reflected that the outstanding arrears as at that date was N27,000.00. In Exh. N the Respondent counsel made it clear to the Appellant that they have been instructed to terminate the lease. A further cheque of N16,500.00 per Exh. O was forwarded to the Respondent counsel. Exh. O is dated 4th May 1992. By letter Exh. O, a cheque of the Appellant for N4,500.00 was returned to them. The Respondent through communication by his lawyer and conduct was unequivocal in his determination to pursue the forfeiture of the lease thus the collection of arrears of rent before he went to court cannot amount to a waiver. The communication between counsel for the Respondent with the Appellants have nothing therein to infer waiver rather the demand was for arrears. Furthermore, Respondent determination to conclude case in court cannot amount to waiver.
The term waiver means the voluntary or relinquishing or abandonment expressed or implied of a legal right or advantage. The party alleged to have waived a right must have had both knowledge of the existing right and the intention of forgoing it. See Black’s Law Dictionary 7th Edition. See also Ariori & Ors v. Elemo & Ors 1983 1 SC NCR 1 where Eso JSC stated as follows: “The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or eho has the choice of two benefits is fully aware of his right to the benefit or benefit but he either neglects to exercise his right to the benefit or where he has a choice of two, he decided to take one but not both. The exercise has to be a voluntary act. ” See also Sobamowo v. Elemuren 2008 11 NWLR Pt. 1097 2008 11 NWLR ca 12. The lower court in the totality of the forgoing came to the right decision possession.
On issue (c) the learned counsel to the Appellant seriously contended that the absence of a reply to their Amended Statement of Defence can be construed as an admission of all the facts stated therein in view of the fact that they counterclaimed against forfeiture. The rules governing filling a reply to a Statement of Defence are as follows:
(a) Generally, it is not necessary for a Plaintiff to file a reply if his only intention in doing so is to deny any allegations that the Defendant may have made in the Statement of Defence.
(b) A reply to join issues is not permissible if no reply is filed, all material facts alleged in the Statement of Defence are put in issue.
(c) The purpose of filing a reply is to join issue on allegations made in the Statement of Defence.
(d) Where a new issue to attract a reply must in law be really new to the Statement of Claim in that it was introduced for the first time in the Statement of Defence by the Defendant.
In the instance case, the Defendant/ Appellant consequent to the order granting leave to the Plaintiff/Respondent to amend their Statement of Claim proceeded to amend his Statement of Defence was because of the order of court “if need be”. The amendment included a counter-claim. The lower court rightly held that a counter-claim in the Statement of Defence was incorporated without leave of court. There was no evidence from the record, leave to file counterclaim was granted by the court nor that it was assessed and paid for as a claim. A counter claim is a claim on its own which stands and falls on its merit. The Appellant cannot amend by adding a new claim when the leave for him to amend if need be is consequential and limited to the nature of amendment to the Statement of Claim. The Defendant Appellant was limited to amend if necessary in relation to the amendment in the Statement of Claim not for him to change his case by counter-claim.
Having said all the forgoing it is my respectful view that all the issues canvassed on forfeiture in all reality amounts to an exercise in futility in effect mere Academic exercise. The court does not engage or indulge in academic exercise. See Umanah v. Atta 2006 17 NWLR (pt.1009) 503 S.C. This is because the dispute in the lower court was founded on Exhibit B. The lease document Exh. B clearly set out terms and conditions that will bind the parties with specific time frame set out. The lease is in respect of Plot NO.6 Sabiu Ajose Crescent, Surulere for the purpose of erecting a dwelling house within a period of two years from 1977. No building was constructed by December 1979 the due date nor as at the time the Respondent filed his Suit in 1993.
In evidence on 27/10/99 the D.W.1 told the court they have finished the building. The same dwelling house should have been completed by the agreement in 1979 even with the Notice of Breach issued by Respondent and time frame extended same was not complied too till 1999 according to the evidence of the D.W.1. The lease period is for 26 years from 1977 when the leave was executed. By Mathematical calculation period of lease will expire December 2003. There is no evidence this said lease was renewed for another term by way of renewal of lease. The clause in Exh. B is clear as it explicitly states and reads as follows:
“The Lessor grants the Lessee an option to renew the lease for another term which option is to be exercised in writing before the expiration of the present term or by payment of due rent”.
There is no evidence lead in the lower court to show the Lessee elected to renew the lease for another term by writing to the Respondent nor that payment as rent was accepted after the lease expired in 2003 by the Respondent to infer renewal as per the clause on renewal.
Consequently at the time the Notice of Appeal was filed on 17/3/2006 the lease the subject matter of this appeal had lapsed by effusion of time. There is no life issue left on the issue of forfeiture of lease which is the main foundation of the dispute originating the suit in the lower court that has triggered to this court on appeal or against the property. Consequently the Plot No.6, Sabiu Ajose Crescent, Surulere, Lagos automatically reverted back to the Lessor’s Estate that is the Respondents in 2003 when the lease expired by effluxion of time. This appeal lacks merit and is dismissed.
I award the cost of N30, 000.00 against the Appellant in favour of the Respondent.
Other Citations: (2009)LCN/3248(CA)
