Prince Adetunji Balogun & Ors. V. Albaji W. B. Alli-owe & Ors. (2000)
LawGlobal-Hub Lead Judgment Report
ADEREMI, J.C.A.
The appellants, as plaintiffs, in the court below (High Court of Justice, Ikeja, Lagos State) claimed against the respondents as defendants in the court below, the following reliefs:-
“(a) A declaration that the plaintiffs are still lawful occupants/tenants at the lock-up shops situate lying and being at Planking Road, Aro-Omaba, Allotment, off Medical Road, Lagos whose landlords are the 1st -7th defendants’ family while the 8th defendant their representative, overseer and caretaker.
(b) An order of specific performance on the defendants to give effect to the oral agreement entered into with the plaintiffs vides the 8th defendant on or around October, 1985.
(c) An injunction restraining the defendants from taking possession of the said lock-up shops from the plaintiffs, from harassing the plaintiffs or from disturbing the plaintiffs’ possession of the said premises in any manner.”
Pleadings in terms of statement of claim and statement of defence, in accordance with the rules of court, were filed and exchanged between the parties. After taking evidence of the witnesses and the addresses of counsel on both sides, the trial Judge (Justice A. Ade Alabi) in a reserved judgment, while granting relief (a) and dismissing reliefs (b) and (c) said inter alia:-
“As the essential terms of this agreement are in dispute, there cannot be said to be a valid lease or tenancy agreement capable of being enforced by an order or decree of specific performance. In the result, I hold the view that the plaintiffs are not entitled to a decree of specific performance in their favour…
Having considered the demeanor, the personalities, the reactions to questions in the course of examination-in-chief and cross-examination, the defence witnesses seem to me to be more in consonance with reason, prudence and rationality than the almost ridiculous claims of the plaintiffs. In the result, it is my finding that what the parties agreed upon are for each to build his shop in blocks, use the shop for one year free of rent and thereafter pay a rent of N100:00 per month…
I am satisfied that the plaintiffs are persons in whom a right to relief was alleged to exist jointly and severally in respect of or arising out of series of transactions. In any case, I am not aware that any miscarriage of justice has been occasioned by the fact of their having come together and my attention has not been drawn to any such miscarriage of justice…
“… The only right which the plaintiffs in this case have established is the right of a statutory tenant. The right as explained earlier in this judgment enables the tenant to enjoy protection and security of tenure. The tenant is protected from eviction except in accordance with the law. The plaintiffs have so far failed to establish any evidence of harassment or disturbance by the defendants. On the contrary the defendants have already commenced the process of recovery of possession by serving necessary notices to quit. I am therefore of the opinion that the plaintiffs are not entitled to an order of injunction in the manner prayed or at all.”
Aggrieved by the decision, the plaintiffs filed a Notice of Appeal against the judgment incorporating one ground of appeal which is as follows:-
“(1) The Judgment is against the weight of evidence.”
With the leave of this Court, two additional grounds of appeal were added and they are in the following terms less the particulars:-
(2) The learned trial Judge erred in law when he held that, the parties agreed to pay a rent of N100:00 per month when there was conflicting evidence on the issues by the defendants.
(3) The learned trial Judge erred in law when he failed to decree an order of specific performance on the defendants on the ground that the terms of the agreement are inconclusive, uncertain and ambiguous whereas the same terms were used in finding in favour of the defendants.
Again, in compliance with the rules of this Court appellants’ brief of argument and respondent’s brief of argument were filed and exchanged between the parties.
Distilled from the original and additional grounds of appeal per the brief of argument of the appellants are two issues which are in the following terms:-
“1. Whether the trial court had rightly or properly considered or evaluated the conflicting evidence of the parties before declaring that the parties agreed to pay N100:00 per month after using the built shops free of charge for one year.
- Whether the learned trial Judge was right when he held that the terms of the agreement between the parties are inconclusive, uncertain and ambiguous while at the same time he used the same terms in finding in favour of the defendants/respondents.”
Suffice it to say that the respondents adopted, through the briefs the two issues formulated by the appellants when this appeal came before us on the 24th of November, 1999, Chief Odunaiya, learned counsel for the appellants adopted the appellants’ brief filed on 26/11/97 and urged that the appeal be allowed. While Chief Akinyele learned counsel for the respondents adopted the brief of his clients filed on 29th July, 1999 and urged that the appeal be dismissed.
I wish to start the consideration of this appeal by saying that the entire case turns on the perception and evaluation of the evidence before the lower court. From the long line of judicial decisions, it has now become firmly established that it is not the business of an appellate court to substitute its own views of the evidence for those of the Judge or the tribunal that heard and saw the witnesses but if the trial Judge has failed to make proper use of the opportunity of seeing and hearing the witnesses or if from Stated or indisputable facts, inferences are shown to have been drawn which are wrong or are not supported by the evidence led, then the Court of Appeal, in the interest of justice, must exercise its powers of reviewing those facts and drawing appropriate inferences from them. See; Owe v. Oshinbanjo (1965) 1 NWLR 72; and Ivienagbor v. Bazuaye & anor. (1999) 9 NWLR (Pt.620) 552.In reaching his findings the learned trial Judge chose to be guided by the demeanour, the personalities, the reactions to questions in the course of examination-in-chief and cross-examination of the witnesses on both sides and thereafter came to the conclusion that, the evidence preferred by the defendants is more deserving of credibility than that given by the plaintiffs and their witnesses. Undoubtedly, the trial Judge had the unique advantage of seeing the plaintiffs and the defendants together with the witnesses testify before him. No doubt, there are some conflicts in the evidence led by both sides as to the terms of the tenancy. The 1st plaintiff/appellant, Adetunji Balogun said that the agreement was that he would use the shop free of charge for the first three years and thereafter would pay rent of N50:00 per annum. This is the trend of evidence led by other tenants – plaintiffs/appellants as to the conditions of their tenancy. But D/W1 – Alhaji Rashidi Ayinla Alli-Owe who is the 2nd defendant/respondent said on oath that the agreement was that the plaintiffs/appellants as tenants would use their different shops upon completion, for one year free of charge and thereafter be paying rent of N100:00 per annum. On the other hand, but still on the side of the defence, the 2nd D/W – Ganiyu Lawal who is the 8th defendant/respondent said on oath that the agreement reached with the 4th plaintiff (Mrs. Ajibike Owodunni) was that the shop would be used free of rent for one year and therefore be paying N300:00 rent per month. But of the 1st plaintiff, he (2nd D/W) said the agreement reached was that he (1st plaintiff) would use the shop for one year free of rent and thereafter be paying N100:00 rent per month. The conclusion reached by the Court below that, based on the evidence reviewed above, the plaintiff is entitled to judgment on relief (a) which is for declaration cannot be faulted. That pronouncement is no more than a pronouncement as to the state of affairs. It must be noted that the defendants/respondents did not appeal against the judgment entered in favour of the plaintiff on relief. The second relief or reliefs, is for specific performance. It is the law that a person who seeks to enforce his right under a contractual agreement must show that he has fulfilled all the conditions precedent and that he has performed all those terms which ought to have been performed by him. The corollary is that a plaintiff in an action for specific performance of an agreement must fail if there is a default on his part to discharge his own obligations under that contract. What obligations are imposed on the parties in this case would seem to be shrouded in some uncertainty and the court will generally refuse to order the performance of an obligation the terms of which suffer some uncertainty or inconclusiveness. Even if the evidence of the plaintiffs as to the conditions of the tenancy were to be believed there was no evidence of the performance of their own side of the obligations. In such circumstances, order of specific performance will not be issued See: Coker v. Ajewole (1976) 9 -10 SC. 17.
The 3rd relief which is for an order of injunction, an ancillary relief which is equitable in nature, cannot be granted in the circumstances of this case. The result is that issues 1 and 2 raised by the appellants and which are adopted by the respondents are resolved against the appellants.
In sum, this appeal which is lacking in merit is hereby dismissed. The respondents are entitled to costs which I assess in their favour at N4,000:00.
Other Citations: (2000)LCN/0675(CA)
