Tonimas (Nig) Ltd V. Chigbu (2020)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C. 

The parties herein have been in series of protracted disputes. The instant dispute, the subject of this appeal, was before the Magistrate’s Court of Imo State sitting at NSU. The present dispute is all about how the appellant, a tenant of the respondent would get the respondent to receive from the agreed rent, as and when due, and avoid the latter asking for forfeiture of the lease and his re-entry into the demised property. The parties had had previous disputes on this same issue or matters related thereto.

The trial Magistrate, at page 114 of the Record, had summed the background to the present dispute thus-

Exhibit A is the sub-lease agreement between the parties. Both the plaintiff and defendant freely entered into the agreement and it is my view that no Court can make new contracts for them. Plaintiff said he made up to twenty trips to the house of the defendant but could not get him to (receive) the rent.

​All these claims the defendant denied and held the view that plaintiff did not want to pay the rent. There is no doubt, there is an outbreak of hostilities since the determination of the dealership agreement (between the parties by the appellant).

The learned trial Magistrate granted the relief against forfeiture in favour of the appellant (as the plaintiff); and further directed that the rents for 1997, 1998 and 1999 shall be paid in arrears by the appellant to the respondent (as the defendant). The appellant not satisfied with the decision, the order of the learned Magistrate that seemingly did not address the core fundamental issue, appealed to the High Court. The High Court, on appeal, held that the appellant should not talk of the respondent frustrating the sub lease agreement by consistently making himself unavailable to receive payment of the agreed rents as and when due. In consequence, he held that the appellant, as the leasee- has to seek his landlord and pay him rent, as agreed by both of them, which is in line with the principle of law that the debtor should seek his creditor and pay him.

​The evasive conduct of the respondent was not addressed by both Courts. The High Court, on this basis, refused the prayer of the appellant to pay the rents to the respondent by other means than having to seek him out, and paying same to him physically – the respondent having consistently on several occasions deliberately evaded the appellant in order to avoid receiving payment. On the refusal of the High Court to order the respondent to receive payment through alternative convenient means, in view of previews the evasive, albeit obstrusive, conduct of the respondent: the ulterior purpose of which was to create a favourable condition for him to seek the forfeiture of the lease, consequently justifying his re-entry unto the demised property, the appellant further appealed to the Court of Appeal (the lower Court).

At the risk of repetition, I hereby adopt the executive summary of the facts (on which this appeal is predicated) by the lower Court at pages 334 – 338 of the record. That is:-

Here are the facts of the appeal. The respondent is the landlord of the appellant. The respondent in this appeal granted to the appellant a sublease of a vacant parcel of land at which came to be known as No.6 Ebino Mbanoto, the appellant under a sublease agreement exhibit A tendered at the hearing in the Magistrate Court and the High Court. The appellant built on the land a petrol station called Tonimas Filling Station. The respondent was appointed a dealer at the petrol station, and the dealer operated in the petrol station. Among the terms of agreement, exhibit A is the payment of the rent annually at N25.00 payable in the month of January each year commencing from 23rd April, 1985. After some years of the operation of the petrol station by the respondent, the appellant found shortfall in the account of the sum of N27,831.1. The appellant asked the respondent to refund same and the respondent declined to pay. In the sublease exhibit A is contained the clause thus stated:

“If without reasonable cause or excuse on the part of the leaser the rents herein reserved shall be in arrears or remain unpaid for three consecutive years after becoming due and payable the sublessor may re-enter upon the subdemised, and the sublease herein may cease and determine”.

When the appellant demanded that (sic) the refunded make up the shortfall in the petrol station business; the respondent claimed and invoked the provision in the sublease of re-possession of the land on which the petrol station reside. The appellant deposed that the respondent drove away all its staff in the petrol station and repossessed (to pay) the land, the respondent also refused the shortfall. The respondent then proceeded to the High Court for an action for forfeiture of the lease. At the same High Court the appellant counterclaimed for the equitable relief against the forfeiture. The High Court dismissed the respondent’s claim for forfeiture and awarded the appellant’s claim for relief against forfeiture. The Court demanded the appellant to pay the arrears of rent. The judgment of the Court tendered at the subsequent proceedings at the High Court is exhibit C. It was at the subsequent hearing that the respondent refused to accept same up to December 1994; and the appellant paid into the Court as judgment of the Court that the respondent accepted payment following the tendering of exhibit C. The respondent was not satisfied with the decision of the High Court, he has appealed to the Court of Appeal. In an earlier judgment, the Court of Appeal dismissed the appeal. The judgment is exhibit B; it was tendered in a subsequent action in the Magistrate Court. Upon the (sic) delivered of exhibit B in the Court of Appeal, the appellant offered to the respondent the rent on the said property at N25.00 per annum for the period 1994- 2034, but the respondent refused to accept same. The appellant then issued cheque for the same period and sent it to the counsel for the respondent, Bon Nwakama, SAN, who refused to accept it. The cheque and covering letter are exhibits D & E. After this the appellant made several visits to the house of this Respondent to meet him and pay the value of the cheque or cash to him only to find that the respondent would not see the appellant. The appellant then went to the High Court Registry at Ekiti to seek to pay the cheque there for the respondent but the Registry refused unless the Court made such an order. The appellant made the application in the High Court and the respondent who had before now refused to be seen surfaced in Court saying he did not want payment of his rent to be made through the Registry, and will not accept the payment of rent in advance. The appellant and counsel made several journeys to the respondent’s house. Often indeed most times the respondent would send messages through his wife or servant that he was not available. It was after several instances of this notice that he commenced proceedings in the Magistrate Court when it became clear to the appellant that the respondent was waiting for 3 years to elapse before he commenced another forfeiture proceedings. The appellant then sought in the Magistrate Court equitable relief against forfeiture, and for leave to pay the rent in any of the manners set out in 3 and/or 4 above.

At the second hearing in the Magistrate Court, the said Court refused to grant the relief sought by the appellant despite the submissions of the appellant that it was willing to pay the rent, and submitted that the said rent be paid into the Court Registry by money order, sent by registered poster certified Bank Cheque. The Magistrate ruled inter alia thus: “exhibit A is still subsisting and binding on the parties. Court will find it difficult to vary the agreement in a contract between the two parties and voluntarily entered into.” The appellant was dissatisfied with the decision, he proceeded to the High Court which inter alia ruled:

“Having a closer look at exhibit A, clause 1, one is not in doubt that there is nothing to rectify in it. Having been developed in equity, rectification is a discretionary remedy, it is available where there has been mistake not in the making, but in recording of a contract. It is the law that Courts of equity do not rectify a contract, they may and do rectify instruments. Allowing the appellant’s claim will undoubtedly modify the terms of the contracts. Nowhere in the said exhibit is provision for the payment of rent on the sublease by any other means, if the parties had wanted to, exhibit A would have reflected it. The appellant cannot talk of frustration he has to seek his landlord and pay him the rent as agreed by both of them which is in line with the principle of law that the debtor should seek his creditor and pay him. In the face of the above, my hands are tied and I do hereby decline to allow words not in the contemplation of the parties when they wrote and executed exhibit A.

From the fact checks, the appellant is very willing to pay his rents as and when due, and even in advance. The respondent only wants to receive his rents – as and when due only in his palace.

He does not want payment by any other means than being paid the rents physically in his palace. The appellant, through his representative made several repeatedly unsuccessful efforts to find and get the respondent to receive payment. The respondent had deliberately made himself unavailable, even hiding himself in order not, to receive payment of the agreed rent. These are antics not only to frustrate the lease agreement, but also the Court orders against forfeiture, all just for him to ensure that the appellant, his tenant fell in arrears of his obligation to pay rents and thereby justify an action for forfeiture. The same respondent had previously failed in his action for forfeiture. He had also previously unlawfully re-entered the demised property.

The respondent is enjoying his gimmicks, and will continue to enjoy his games. The unchallenged evidence of the PW1 at page 51 tells it all. That is-

I have driven to the defendant’s premises for twenty times. On some of these occasions the defendant will see me drive in and go into his bedroom and refused to see me. On some others, I would meet members of his household who will tell me defendant was not in and would refuse to receive the rent from me, saying that they have no instructions to do so. On 4.2.98

I cornered the defendant at the High Court premises when we were there for another matter. I tendered the rent to him, he refused to accept the rent and said I must continue to come to his premises until I meet him at his premises before he would accept.

The respondent’s only excuse, for not accepting payment by any other means than payment of the rent in his house, is that he will not be able to issue receipts for the payment. The respondent did not appeal the lower Court’s finding of fact that the sub-lease agreement, exhibit A, does not contain any provision that the appellant, as the sub-leasee, must go to the house or palace of the sub-leaser, the respondent, to “seek his face and make the payment of the rent to the sub-leaser face to face”. On this finding of fact the lower Court, at pages 341- 342, held that the High Court was “wrong in law to rule that exhibit A contains terms which require the sub-leasee to seek the face of the sub-leaser in order to pay the rent due on exhibit A-”, and that the repeated demands on the mode of payment of the rent of N25.00 by the sub-leaser respondent is not contained in exhibit A and it is unenforceable.”

I would have thought that this judgment of the lower Court was more adverse to the respondent. The lower Court, however, in dismissing the appellant’s appeal added that the appellant’s relief for rectification of exhibit A was refused. The appellant considers this an error on the part of the lower Court; hence this further appeal.

​All the parties are ad idem on, and there is no doubt about, the appellant’s obligation under exhibit A to pay his rent as and when due. The lower Court found, correctly in my view, that the mode of payment insisted on by the respondent, not contained in exhibit A, is unenforceable. The appellant had even tried that mode to no avail, and he is even now very desirous to discharge his obligation under the said contract. The respondent has been shown to be keen at frustrating the fundamental of exhibit A for some ulterior purpose. That is the only issue on which there had been multiplicity of actions between the parties.

The appellant has articulated his grievance on three grounds of appeal. The three grounds, in substance, complain that the lower Court wrongly dismissed his appeal on grounds of rectification that he did not ask for in his appeal. The misdirection, dismissing an appeal on issue not canvassed, is clearly a complaint in law alone. The third ground further complains, in particularly thereto, that the lower Court failed “to consider the specific issues – duly placed before it.” The respondent has directed his notice of preliminary objection against the said three grounds of appeal, insisting that the grounds, raising issues of mixed law and facts, are incompetent. Upon my critical appraisal of the three grounds of appeal, I am of the firm view that the grounds raise issues of pure law and not issues of mixed law and facts. The preliminary objection in my view lacks substance, and it is accordingly overruled.

The lower Court found that the manner of payment of the rents proposed by the appellant amounts to the appellant asking for the rectification of exhibit A. Rectification, as defined in Black’s Law Dictionary, 9th Ed. at page 1389, is the judicial alteration of a written contract to make it confirm to the true intention. It is an equitable remedy the Court of justice, in its equitable or inherent jurisdiction, exercises to correct a contractual term that is misstated. This inherent power to do justice avails the Court when, for instance, the rent is wrongly recorded in a lease or when the area of land is incorrectly cited in the deed.

​The manifest intention of the parties in exhibit A, and it is a term of the sublease, rent as and when due by the appellant to the respondent. The lower Court found that the mode of payment the respondent insisted on (which the appellant did not oppose in actuality), was not a term of their contract in exhibit A. The appellant, from some past distasteful experience, sought a convenient alternative to that mode of payment. The appellant holds a strong view that the respondent’s insistence of the mode, held to be unlawful and unenforceable, is a ruse to enhance his gimmicks towards frustrating the sublease agreement to justify an action for forfeiture and eventual smooth re-entry to the prejudice of his investment on the demised property. Respondent deploys this machinative chicanery with the view of ultimately benefiting cheaply therefrom.

Public policy favours an end to litigation. Similarly, equity acts in personam and would not allow a party benefit from his own wrong or mischief: Adedeji v. Obajimi (2018) LPELR – 44360(SC) – (2018) 16 NWLR (Pt. 1644) 146 where the appellant, who had willy-nilly refused (and with no lawful excuse) to perform a contract he had willingly signed, and had deliberately held the respondent to ransom by refusing to pay up, was refused the benefit of his own wrong.

Equity follows the law and will always intervene to prevent fraud being perpetrated on the party who had altered his position on the faith of contract: Adedeji v. Obajimi (supra). This principle of equity avails the Court of justice always to ameliorate the rigidity and inflexibility of the common law. Let me here and now adopt the dictum of Aderemi, JCA (as he then was) in Ogbeide v. Osifu (2008) 37 WRN 61 at 79 – 80, (2007) 3 NWLR (Pt. 1022) 423 that is:

“Equity is a source of law, which has always retained the characteristics of infusing elements of fairness or justice into the legal system as a whole by the very process of mitigation of the strict legal rules.”

The lower Court, in my view, was right when it found and held that the respondent’s “repeated demand on the mode of payment of the rent of N25.00 – is not contained in exhibit A.” So also, on parity of reasoning, the alternative mode proffered by the appellant. We must however, agree that “equity concerns itself with standards of good conscience, fairness and justice, – and it invests the Court with power to grant relief where the justice of the demands, – per Aderemi, JCA (as he then was) in Ogbeide v. Osifo (supra). This is where the three Courts below seem to have got it wrong when they were wrongly swayed by the principle of rectification as it relates to exhibit A.

​From the facts, it is indubitable that the respondent, imbibing the characteristics of the “Artful dodger”, had become obstrusive and evasive, and was avoiding receiving payment of the rent as and when due all in the bid, howbeit mischievously, to “run-down-the-dock”, apparently for the ulterior purpose of subsequently re-enacting his earlier failed attempt at applying for forfeiture and re-entry of the demised property. This is where equity in its true regalia comes in, or is brought in, via through the undoubted inherent jurisdiction of Courts of law vested in them and assured by Section 6(6) of the Constitution. Agreed, equity does not make the law, it is only there to assist the law, and it follows the law. As Eso, JSC stated in Trans Bridge Co. Ltd. v. Survey Int. Ltd. (1986) 4 NWLR (Pt. 37) 576 at 597: Equity is part of the legal system which has mixed with law and the admixture is for the purpose of doing justice. See also Amaechi v. INEC & Ors. (2008) LPELR – 446 (SC)(2008) 5 NWLR (Pt. 1080) 227.

I am in agreement with the learned appellant’s counsel that, upon proper appreciation of the appellant’s case and in view of the findings of fact by the lower Court, this a proper case the lower Court should have intervened and granted the relief sought by the appellant. That is, that leave be granted to the appellant to pay the rent agreed on in exhibit A by any of alternative modes proposed by the appellant. Accordingly, I allow the appeal.

​Conscious therefore that the Court of justice is the keeper of conscience and will prevent any person from acting against the dictates of conscience (Onyia v. Oniah (1989) 2 SCNJ 120 at 134, reported as Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514 & Ashogbon v. Oduatan (1935) 12 NLR 7 at 10). I hereby order the appellant, in the spirit of the mutual intent of the parties to exhibit A and his obligation to pay rents as and when due, to pay the agreed rent as and due (including the rents that became due in the course of this litigation) by means of certified cheque drawn in the name of the respondent which shall be sent to the respondent’s known address as endorsed on the deed of sublease, exhibit A, dated 31st day of March, 1989 is Umunumo, Ihitteaforukwu, Ekwereazu, Ahiazu Mbaise Local Government Area of Imo State.

Parties shall bear their respective costs.

SC.18/2007