Emmanuel Oseloka Araka V. Monier Construction Co. (Nig.) Ltd (1978)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C. 

This is an appeal from the judgement of Allagoa J. in the High Court of the Rivers State, sitting at Port Harcourt wherein the Appellant as Plaintiff claimed from the Respondents as Defendants the sum of N4,400 being rents due to the Appellant for the period, 1st December 1967 to 30th November 1969, in respect of the Appellant’s house situated at 5 Wenike Tienabeso Street, formerly 5 Umuahia Street, Port Harcourt.

The case for the Plaintiff in the trial Court was stated in paragraphs 2 to 6 of his statement of claim as follows:

“2. As from the 1st day of December, 1963, the Defendants took on sublease the said house paying thereof to the Plaintiff the sum of 1,100pounds (N2, 200.00) as rent in advance for a year on every 1st day of December each year.

3. On the 1st day of December, 1966, the Defendants paid the sum of 1,100pounds (N2,200.00) to the Plaintiffs as rent in advance for the said house for the period of 1st December 1966, to 30th November 1967.
4. The Defendants remained in effective occupation of the said house as from the 1st December, 1967 and failed or neglected to pay the Plaintiff, despite repeated requests, the sum of 1,100pounds (N2,200.00) as rent in advance for a year on every 1st day of December each day.
5. On the 1st day of December, 1966, the Defendants paid the sum of 1,100pounds (N2,200.00) to the Plaintiff as rent in advance for the said house for the period 1st December 1966, to 30th November, 1967.

4 The Defendants remained in effective occupation of the said house as from the 1st December, 1967 and failed or neglected to pay to the Plaintiff, despite repeated requests, the sum of 1,100pounds (N2,200.00) as rent due in respect of the house for the period 1st December,1967 to 30th November, 1968.

5. The Defendants made no attempt whatsoever to return the keys of the said house to the Plaintiff ever since. And in particular, the Defendant gave no notice to the Plaintiff at any time that they ever intended or were ever about to give up possession of the said house.
6. Between the period 1st December, 1967, and up to May, 1968, the Plaintiff and his agents made repeated enquiries at the said house and found that the Defendants were still in effective occupation of the said house. Some Nigerian employees of the Defendants were then occupying and making use of the said house. The furniture of the Defendant were all in the house. All the bedrooms remained air-conditioned.”

In their Statement of Defence the Defendants, having admitted that they were tenants of the Plaintiff set out in paragraphs 3 to 5 as the spearhead of their defence as follows:

“3. Save that the Defendants aver the tenancy between the Plaintiff and the Defendants was a yearly tenancy based on the exchange of letters to that effect, the Defendants admit paragraph 3 of the Statement of Claim.

4. The Defendants deny paragraphs 4 to 6 of the Statement of Claim and will put the Plaintiff to the strictest proof of the averments in those paragraphs.
5. In further answer to paragraphs 4 to 6 of the Statement of Claim the Defendants aver that any tenancy arrangement between the Plaintiff and the Defendants was on the understanding that the house would at all material times be occupied by an expatriate employee of the Defendants but that the tenancy for the year ended 30th November, 1967 was frustrated by the facts and declarations of a hostile (Biafran) Government which prevailed on all expatriates to vacate Biafra.”

At the trial of the action the Appellant gave evidence and called one witness.

The Respondents did not adduce any evidence. They rested their case on the evidence of the Appellant and the correspondence between them and the appellant which were admitted in evidence through the Appellant which were admitted in evidence through Appellant. In a reserved judgement, the learned trial Judge found that there was a lacuna in the case of the Plaintiff in that there was no evidence of the terms of the tenancy agreement for the period 1st December 1964 to 30th November 1966 and there was no such evidence for the period in question either. He further found that the occupant of the house, who was an expatriate, vacated the house in June 1967 which was six months before the next rent was due and that he did so because all expatriates had been asked by the Biafran rebels to leave that part of the country on account of the Nigerian civil war.

The learned trial Judge then concluded as follows:

“Having regard to the circumstances under which the Defendant left Port Harcourt (since it was admitted by the Plaintiff under cross examination that all expatriates were ordered by the head of the Biafran Government to leave in June 1967) at the material time and the inconclusive evidence of Plaintiffs witness. I am unable to reach the decision that the mere fact that the Defendant left some furniture and servants behind in October 1967 is proof of the Defendant’s intention to remain in occupation after 30th November 1967. It would have been different if after the war Defendant returned and resumed occupation of the premises.”

He thereafter dismissed the Plaintiff’s claim. It is against that judgement that the Plaintiff has appealed.

Although 12 grounds of appeal had been filed, the appeal was canvassed on two grounds only, namely grounds 5 and 6 which read as follows:

“5. Error in Law: The learned trial Judge erred in law in inferring that the tenancy was frustrated when the Expatriate occupant of the premises left Port Harcourt, as the doctrine of frustration of contract does not apply to leases, and even if it did, there was no frustration of the contract as the keys of the premises were never returned to the Plaintiff, the furniture of the defendant company and the Servants of the defendant remained in the premises throughout the period in question and all the furniture remained in the premises up to the end of the civil war in January, 1970. There was therefore no basis on which judgement could be given for the defendant company.