Costain (W.a.) Limited V. Alhaji Taslim Ishola Kotun & Ors. (1998)
LawGlobal-Hub Lead Judgment Report
PATS-ACHOLONU, J.C.A.
The respondents as plaintiffs had claimed forfeiture of the leasehold of which the appellant is in possession and yet was not paying the due rent. The appellant as a defendant in the court below relying on section 20 of the (Miscellaneous Provisions) Law Cap 65 Laws of Lagos State and section 212 of the Common Law Procedure Act, 1852 moved the court below to strike out and thereby discontinue and to abate those parts of the respondents suit that relate to forfeiture on grounds of non-payment of rent which the appellant had paid. The learned trial court dismissed the application citing the conduct of the appellants which makes it difficult to accede to their request. Dissatisfied with the decision of the court below, the (defendant) appealed to this court and filed 7 grounds of appeal from which he framed 3 issues for determination. The issues are as follows:-
3.2.1. Whether the trial Judge failed to consider and determine the submissions of the appellant’s counsel as to the effect of section 212 of the Common Law Procedure Act, 1852 and by so doing, denied the appellant a fair hearing.
3.2.2. Whether/conditions in section 212 or the Common Law Procedure Act 1852 were satisfied and if so, whether this guaranteed relief. Grounds. (ii); (iii); (iv) & (vi).
3.2.3. Whether the trial Judge decided upon and (hereby prejudged substantive issues in the action before final judgment (Ground v).
The respondent’s issues for determination are almost on all fours with the issues framed by the appellant but with minor variation.
The whole appeal revolves around section 212 of the Common Law Procedure Act, 1852 and whether it is properly applied in this case by the court below. Should the lease be forfeited, as the appellant claimed that it had paid the arrears of rent The main contention of the appellant is that the court did not give it a fair hearing in that the court below did not or failed or refused to consider the case put forward by the appellant in the lower court. For this counsel for the appellant referred to Osafile v. Odi (No. 1) (1990) 3 NWLR (Pt. 137) 130 at 156 and Adeyemi & Ors. v. Ike Oluwa & Sons Ltd. (1993) 8 NWLR(Pt.309) at 27. The totality of the argument is that before the court arrives at its decision. it must consider and weigh carefully the case of the parties which consist of the facts and the law in which counsel addressed the court. The counsel for the appellant argued in his brief that the court below completely shut its mind off the provision of section 212 of the Common Law Procedure Act which the appellant addressed on. There is no doubt that where the court completely refuses or shuts its mind from an address that is meaty and juicy and is very relevant for the due determination of the case a decision reached by such skewed act cannot stand the lest of fairness. The question that would readily agitate the mind of this court is whether there has been a dereliction of duty of hearing both sides and considering their submissions before arriving at a decision.
By a notice dated 3/4/91, the appellant then as respondent in a motion paper below filed in the court a process which states inter alia as follows:
“Take notice that the respondent has paid into court the sum of N12,974.50.
The said N12,974.50 is in satisfaction of the rent arrears on the lease of the property at 174 Western Avenue from January 1972 to date at the rate of N674.00 p.a. over which the counter-claimant seek forfeiture.”
The notice was filed and served during the course of the proceedings. It is the argument of the appellant that having made the payment referred to above the court ought not to have made or granted the claim for forfeiture asked for. Now section 210 of the Common Law Procedure Act of 1832 states as follows:-
“210. In all cases between landlord and tenant, as often as it shall happen that one half-years rent shall be in arrear and the landlord or lessor, to whom [he same is due, hath right by law to re-enter for nonpayment thereof, such landlord or lessor shall and may without any formal demand or re-entry serve a writ in ejectment for the recovery of the demised premises ….”
S. 212 “If the tenant or his assignee do or shall at any time before the trial in such ejectment, pay or tender to the lessor or landlord his executors or administrators or his or their attorney in that cause or pay into court where the same cause is depending, all the rent and arrears together with the costs then and in such case all further proceedings on the said ejectment shall cease and be discontinued; and if such lessee, his executors and administrators or assigns shall upon such proceedings as aforesaid, be relieved in equity he and they shall have, hold and enjoy the demised lands according to the lease thereof made. without any new lease.”
Now there is no doubt that the arrears of rent were from January 1972 and it was at the time the matter was proceeding in court that the rent arrears were paid. In their counter affidavits the respondents averred as follows:
(10) That the respondent convenanted in each of the lease agreements that
“If the rent hereby reserved or any part thereof shall be unpaid for 21 days after becoming payable and formally demanded…. it shall be lawful for the lessor at any time thereafter to re-enter upon the demised premises and thereupon this demise shall absolutely determine ..
(11) That in breach of the said covenant the respondent has not paid any rent since 1972 despite oral and written demands.
The issue being made by the appellant is that the court below did not consider the facts and legal questions addressed in the court, implying in other words that it wholly relied on the case as made out by the respondent. This was why it stressed the issue of lack of fair hearing. In his judgment the learned trial Judge held thus.
“I must stress that the counter-claimants have closed their case in this matter before this application was filed. The rent arrears were paid into court after the parties closed their cases.”
The jurisdiction to grant to a lessee relief against the forfeiture of his lease for non-payment of rent is not confined to cases where a lessor has recovered possession by legal process, but extends to leases where the lessor has recovered peaceable possession without the assistance of any court. In such a case, an order may be made under section 212 of the Common Law Procedure Act, 1852 giving the lessee relief of in equity, and declaring that he may hold and enjoy the demised property according to the lease made thereof without any new lease – Howard v. Fanshawe (1895-99) All ER 855.
“…the function of the court in exercising this equitable jurisdiction is, save in exceptional circumstances, to grant relief when all that is due for rent and costs has been paid, and (in general) to disregard any other causes of complaint that the landlord may have against the tenant. The question is whether, provided all is paid up, the landlord will not have been fully compensated; and the view taken by the court is that if he gets the whole of his rent and costs, then he has got all he is entitled to so far as rent is concerned, and extraneous matters of breach of covenant are, generally speaking, irrelevant. There may, however, be very exceptional cases in which the conduct of the tenants has been such as in effect to disqualify them from coming to the court and claiming any relief or assistance whatever” – Gill v. Lewis (1956) 1 All ER 844 page 852.
It cannot be true having regard to the contents of the judgment of the learned trial Judge that he did not consider adequately the case put before him by the appellant. He meticulously dealt with the issue of payment of the arrears of rent as and at the time it was made during the proceedings and considered whether on equitable grounds the appellant should be granted a relief from forfeiture having regards to its failure to pay the rent from 1972 until the matter was before the court.
The learned counsel for the appellant submitted in his brief that the import of section 212 aforesaid is that where a tenant satisfies the conditions prescribed by the forgoing section, he is compulsorily relieved of forfeiture. In other words his assertion is that the court has no discretion to exercise in a matter within the provision of section 212. The section made it clear that such payment must have been made at any time of the trial. In this case the court below said in its judgment that the rent arrears were paid into court after the parties have closed their case. I then would have to find out whether payment into court after the parties have closed their case is within the contemplation of the Act. I note that the court below and the parties in their briefs cited Gill v. Lewis (1956) 1 AE R 844 of 849. In that case there were two defendant tenants and judgment was signed against only one of the two defendants. Jenkins L.J. in his leading judgment gave a comprehensive view of the matter and carefully and tactfully crafted the judgment he gave which gives this court the birds eye view of the general thinking of the court. I shall cite his decision in extenso.
“When all that has happened is that judgment for possession has been signed against one only of two joint tenants. I do not think there has been a completed ‘trial’ within the meaning of s.212, or an effective judgment for possession, Although the tenants did not pay the whole of what was due from them before the judgment of May 17, 1955, they have in fact since paid or tendered the whole, and if, so far as the claim for possession is concerned, there has as yet been no effective trial. The result appears to be that there has as yet been no ‘trial’ within the meaning of s.212: and as the whole amount due for rent and costs has been paid or tendered, s. 212 applies to the case and “all further proceedings’ in the action should ‘cease and be discontinued’. As a corollary to this and having regard to the concluding words of s.212, the court ought to make an order for relief so as to restore the parties to their original position.
Counsel for the landlords relied in support of his argument on the broad equitable principles embodied in such maxims as “He who comes to equity must come with clean hands”, and” He that seeks equity should do equity”. Counsel for the tenants referred us to other cases lending to support his argument that relief ought to be granted in all but the most expectional cases where the statutory conditions have been satisfied. He referred us to the opening passage of the judgment of LORD GREENER, M.R., in Chandless-Chandless v. Nichalson 4 (1942) 2 All ER 315 at p. 316. I do not think I take up lime by reading that, but counsel for the tenants relies on it because LORD GREENER, M.R., did there set out the effect of the equitable jurisdiction in terms tending to support counsel’s view ….
On the other hand, counsel very properly referred us to Bowser v. Colby (1841) (I Hare, 109) as it tended to support the view of the matter taken by his opponent. The judgment of Sir James Wigram, V.C., shows clearly that, in his view, in the exercise of the equitable jurisdiction to grant relief it was proper to consider the conduct of the parties, and the conduct of the parties might be such as to make it wrong and inequitable to grant relief. He said, in laying down the general principle (I Hare at p. 130):
The object of the proviso in both cases is to secure to the landlord the payment of his rent; and the principle of the court is – whether right or wrong is not the question – that, if the landlord has his rent paid him at any lime, it is as beneficial to him as if it were paid upon the prescribed day.’
It would seem from many decided cases on the point such as Stanhope v. Haworth (1886) 3 TL R. 34; Newbolt v. Bingham (1895) 72 L.T. 852 and a host of cases referred to by Jenkins L.J. that the court appears to lean closely to the tenant once he has paid his rent even when in arrears: the object of the section being primarily to provide a relief for the hopeless tenant.
But this must be viewed in the light of the attitudinal behaviour of the tenant and the nature of claims made.
There are however certain features of this case that bother me. We are dealing with only one of the claims and this court is being called upon to give a final decision on the issue of the forfeiture being determined. It is on record that the respondents had counter claimed as follows:-
“(a) A declaration that the rights of the respondents under and by virtue of the lease agreements dated
(i) 1/8/56 and registered as No. 16 page 16 Volume 1960
(ii) 26/10/49 registered as No. 75 page 75 Volume 811
(iii) 18/9/45 registered as No. 83 page 83 Volume 653
(iv) 19/7/48 registered as No. 30 page 30 Volume 7??
(v) 19/7/48 registered as No. 33 page 33 Volume 781 and
(vi) deed of assignment dated 30/5/50 registered as No. 51 at page 51 in Volume 846 all at the Lands Registry. Lagos be forfeited and determined.
(b) A declaration that all the agreements enumerated above are void and of no effect.
(c) Arrears of rent.
(d) Possession.
(e) Damages for use and occupation at the rate of N50,000.00 per annum from January 1984.
Dated this 21st day of September, 1989:
In the motion filed by Costain Ltd. dated 3/4/91 it prayed the court thus:-
(1) Pursuant to section 2(1) of the Law (Miscellaneous Provisions) Law Cap. 65, section 212 of the Common-Law Procedure Act, 1852 and the inherent jurisdiction of the court all order striking out, discontinuing and abating that pan of the counter-claimant’s suit which relates to forfeiture on grounds of non-payment of rent.
By this singular application the appellant has singled out claim (a) to be agitated by the court and be determined leaving the issues claim that the agreements be voided, the issue of rent possession and damages for use and occupation at the rate of N50,000.00 per annum from January 1964 all untouched. It seems to me that it is premature for the appellants to have applied to the court for relief from forfeiture merely because they have paid their rents at the close of proceedings. In my view the court in determining the whole substance of the case cannot neatly render substantial justice without considering the related claims as well as the conduct of the appellants who remained for a long time without any payment of rem. Having regards to the seeming non-challant altitude by delaying payment for several years, it is. I am of the view, ill considered act on its part to move the court, expunge from the counter-claim the issue of forfeiture without the court having to examine and consider all the facets of the case in particular, issues of the new rental and possession. It is difficult not to feel that the appellant was being clever by half by making the application in the manner it proceeded. If the court below had granted the prayer that would have been the end of the case.
I agree with the decision of the court below and hereby dismiss the appeal. The prayer to strike out the claim of counter claim relating to forfeiture is dismissed. The appellant to pay costs assessed at N5,000.00 to the respondent.
Other Citations: (1998)LCN/0431(CA)
