3PLR – ALHAJA SAFURATU AWELE V. MONSOUR HABIB
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ALHAJA SAFURATU AWELE
V.
MONSOUR HABIB
FEDERAL SUPREME COURT OF NIGERIA
6TH DECEMBER, 1956.
FSC. 69/1956
3PLR/1956/18(SC)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS:
OLUMUYIWA JIBOWU, Ag. F.C.J. (Presided)
M.C. NAGEON DE LESTANG, F.J. (Read the Judgment of the Court)
PERCY CYRIL HUBBARD, Ag. F.J.
OTHER ISSUES
COMMERCIAL LAW – CONTRACT: – Frustration of – Doctrine of frustration of contract due to supervening impossibility of performance – Whether applicable to lease agreement
REAL ESTATE-LAND LAW – LEASE: – Doctrine of frustration of contract due to supervening impossibility of performance – Applicability to lease agreement.
CHILDREN AND WOMEN LAW: – Women and Real Estate – Defence of interest in land-holding – Relevant considerations
MAIN JUDGMENT
DE LESTANG, F.J. (Delivering the Judgment of the Court):
The appellant instituted proceedings in the High Court of Lagos in which she sought to set aside a deed of lease entered into between one Sanni Giwa, her predecessor in title, and the respondent. By her statement of claim the appellant alleged that the lease contained inter alia a covenant by the respondent to erect certain buildings on the land demised, which covenant had become impossible of performance by reason of the fact that the Lagos Executive Development Board had prohibited the erection of any new building on the site in question. She alleged that the consideration for the lease had thus partially failed and that for that reason the lease should be set aside. The respondent filed a defence which is not material in this appeal. When the suit came up for trial the respondent contended in limine that the suit was misconceived on the ground that the doctrine of frustration of contract due to supervening impossibility, on which the appellant’s claim rested, had no application to a lease.
The learned Judge upheld this contention.
The appellant appeals to this Court on the following two grounds:
(a) The learned trial Judge erred in law in holding that Criklewood Property and Investment Trust v. Leighton’s Investment Trust Ltd. was authority for the proposition that the doctrine of frustration has no application where there is a lease.
(b) The learned trial Judge erred in law in dismissing the plaintiffs claim when the Statement of Claim discloses a cause of action. Mr Kayode, for the appellant, argued the second ground of appeal first. He tried to submit that the appellant based her claim not on supervening impossibility but on impossibility ab initio. On his being referred, however, to the Statement of Claim, especially to paragraph S thereof, he was constrained to admit that the appellant’s case was indeed one of supervening impossibility and he accordingly did not pursue this ground of appeal further. As regards the first ground, he did not argue it at all, and in answer to a question from the Court conceded that he knew of no authority against the proposition that the doctrine of frustration did not apply to a lease.
In my view there is no merit in either grounds of appeal. The case of Cricklewood Property and Investment Trust Ltd. versus Leighton’s Investment Trust Ltd. 1945 A.C. 221 is certainly authority for the broad proposition that the doctrine of frustration does not apply to an ordinary lease.
It is true that in the House of Lords Viscount Simon, L.C. and Lord Wright expressed views obiter which, if correct, would narrow down this broad proposition and render the doctrine applicable to a lease in certain circumstances. Those views, however, were not shared by Lords Russell of Killowen and Goddard, who maintained that the doctrine could not apply to put an end to a lease. Whatever be the true view, I am satisfied that what happened in the present case does not amount to “frustration” of the lease. It is clear from the statement of claim that the alleged impossibility of performance was only partial. This, in my view is not sufficient to constitute “frustration.” Moreover, it appears from the judgment in the Court below that the cost of the proposed building was to be deducted by the lessee from the monthly rent and no deduction seems to have been made at any time.
The appellant is thus receiving her full rent and the respondent appears to be satisfied with the property as it stands.
I would, therefore, dismiss this appeal with £12.7s. costs.
JIBOWU, AG. F.C.J.:
I concur.
HUBBARD, AG. F.J.:
I concur.
Appeal Dismissed
