3PLR – BANKOLE V. AGBAJE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BANKOLE

V.

AGBAJE

SUPREME COURT OF NIGERIA

S.C. 57/1965.

16TH MAY, 1966.

3PLR/1966/44 (SC)

BEFORE THEIR LORDSHIPS:    

SIR ADETOKUNBO ADEMOLA, C.J.N. (Presided)

SIR VAHE ROBERT BAIRAMIAN, J.S.C. (Read the Judgment of the Court)

SIR IAN LEWIS, J.S.C.

BETWEEN:

1. ADEOYE SHONIBARE BANKOLE
2. ISAAC BABATUNDE WILLIAMS (Executors of Jacob Olumide Williams)

AND

1. DR. S. A. AGBAJE (Mogaji/Head of Chief Salami Agbale Family) (For himself and on behalf of the Administrators and beneficiaries of the Estate of Chief Salami Agbaje – deceased.)
2. HADJI A. R. AGBAJE
3. S. A. R. AGBAJE
4. CHIEF A. H. R. AGBAJE (Joined by Order of Court)

REPRESENTATION

1. L. Impey – for the Appellants
2. Alli Balogun – for the Respondents

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Findings of fact – Trial court not making finding of fact oft issue of damages after main claim dismissed – Attitude of appellate court.

PRACTICE AND PROCEDURE – APPEAL – Grounds of – Misdirection alleged – Particulars of to be stated – Order 7 Rule 2(2), Supreme Court Rules.

ETHICS – LEGAL PRACTITIONER – Duty to cite legal authorities.

PRACTICE AND PROCEDURE – DAMAGES – Provisional award – Need for when party not found liable.

MAIN JUDGEMENT

BAIRAMIAN, J.S.C. (Delivering the Judgment of the Court):

In this ap­peal the defendants complain of the order made by Adefarasin, (then Ag. J.) on 17th March, 1964 in the Lagos Suit No. 493/63, that they should file a defence to answer the plaintiffs’ allegations of fact.

The plaintiffs alleged in their Statement of Claim (inter alia) that the late J. O. Williams gave the late Chief Salami Agbaje a lease at the yearly rent of f152 for fifteen years to begin on 1st October, 1945, with this proviso – “That if the lessee can be desirous of continuing the tenancy of the premises hereby demised at the expiration of the term of 15 years and shall at least 6 calendar months before the expiration thereof signify such desire by a notice in writing to be delivered to the les­sor then the lessor shall execute a new and effectual lease of the premises hereby demised at rental to be agreed upon.”

The plaintiffs go on to allege that they (as successors of the lessee) gave the lessor the requisite notice, but could not achieve agreement with him on the rent, nor after his death with the defendants (his executors); that the defen­dants have refused to give them a renewal for any term, and given the plain­tiffs notice to quit; and so they ask for an order compelling the defendants to grant them a lease for fifteen years and, secondly, a further order fixing the rent per annum.

The defendants gave notice of motion for an order dismissing the claim on the ground that the Statement of Claim discloses no cause of claim recog­nisable at law against the defendants for entitlement to the relief claimed, or for such other order etc. The argument for the defendants was that as this was a claim for specific performance, it could not succeed because there was no allegation that the plaintiffs had sued the defendants for possession, and also because delay must not appear to have been shown, but here three years had passed; secondly there must be proof of a contract in clear unambiguous terms, but the option for renewal was not in clear terms; the rent must be a certain term and that is lacking in the proviso; it was clear that no agreement had been reached, and what the plaintiffs wished the court to do was to make a new contract for them. Those were the arguments.

The plaintiffs argued that lathes was a defence which had to be pleaded specifically, and then the court could decide on lathes after taking evidence; that it had been conceded that all the facts in the Statement of Claim were true; and it was submitted that they did disclose a cause of action. The learned Counsel referred to certain authorities and went on to refer to the Rent Restriction Act and to say that rents were controlled in Lagos; and he submitted that the court would decide in reference to that act what the lawful rent would be.

The learned trial Judge states as follows:

(1)     On the point that no action for recovery of possession had been brought. The plaintiffs had done what they could to exercise the option; the option ran with the land and continued so long as the relationship of landlord and tenant existed, though the original term had expired.

(2)     That the plaintiffs had been guilty of delay. The learned Judge did not consider there had been any; and in any case the plaintiffs were in possession and could seek their remedy at any time, and no lathes could arise.

(3)     We quote from the judgment:

“As to the third point that there is no contract in clear un­ambiguous terms, I think the learned Counsel was addres­sing himself to the fact that rents payable at the end of the first term of years was not certain. t think the Rent Restric­tion Act is an answer to the arguments raised on the point.” And the learned Judge dismissed the application.

The grounds of appeal bearing on those matters are (4) and (5): they read –

“(4)   That the learned trial Judge erred in considering the provisions of the Rent Restriction Act as having any bearing on the issue raised by the defendant in his demurrer.

(5)     That the learned trial Judge erred in holding that the covenant set out in paragraph 8 of the Statement of Claim amounted to an op­tion which is recognisable at law and upon which the plaintiffs could possibly be entitled to the relief claimed in their Particulars of Claim.­

When drafting grounds of appeal, it is well to bear in mind the provision of Rule 2(2) in Order 7 of the Supreme Court Rules; it reads­

“If the grounds of appeal allege misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated.”

The object of that provision is to give the other party clear notice of the point of law which the appellant intends to raise and enable him to prepare his ar­gument. Take paragraph (4): it does not explain why the Rent Restriction Act has no bearing on the issues raised by the defendant. Take paragraph (5): it does not explain why the option is not one recognisable at law. Neither ground satisfies in our view the requirement of the Rule. Reading ground (5) we could not tell in what respect the option was not recognisable at law. However, at the hearing of the appeal learned Counsel for the defendants conceded that the option enabled the plaintiffs to claim a renewal for fifteen years, and that the plaintiffs had given notice in time. Counsel stated that the point at issue was whether, as the parties could not agree on rent, the option was good seeing that it left the rent to be agreed upon but the parties could not agree, and whether it was possible for the High Court to fix the rent for the new term.

Now those are straight-forward issues of law. In the High Court no au­thorities were cited on leases or on contract. It would be helpful if learned Counsel looked up the cases, so as to assist the court. If the defendants’ counsel cannot find anything in the book, he can so inform the court and pro­ceed to argue, as he did in the court below. But here, again, it was highly de­sirable to cite authorities on his proposition. The other side of the coin is whether the court, for the sake of giving the proviso efficacy, could imply a term that in the event of disagreement on rent the Court would fix the rent. We offer no opinion on any of these points: but they are worth arguing in de­tail and with authorities. Now that we know what is at issue, our best course, as we indicated at the hearing of the appeal, is to remit the case to the High Court for two issues of law to be argued, namely –

“(1)   Is the option to renew unenforceable on the ground that it leaves the rental to be agreed between the parties? or

(2)     If it is enforceable, by what method is the rent to be decided? or must it be decided in accordance with the Rent Restriction Act’.’ We would ask the High Court Judge to hear argument on both issues and let the parties adduce such evidence its they wish on what the rent should be on the hypothesis that the option is enforceable. There are instances in which it – trial Judge decides that no damages are payable but goes on to say what amount he would have allowed if they were: in that way when the appeal is heard, the case can be concluded. Likewise here it would be useful to have the trial Judge’s view on what rent he would fix if the option should be good, even though he should decide that it was not. In arguing these issues the par­ties, and in deciding them the High Court, are to regard themselves as unfet­tered by the view of Adefarasin, J. quoted in (3) above from his judgment. It will he better if the case is heard by another Judge. We think the learned Judge was right in dismissing the application on the arguments advanced for the defendants: they were inadequate and no authorities were cited.

The appeal is dismissed with twenty-five guineas costs to the plaintiffs the case is remitted to the High Court to hear and decide on those two issue of law as above stated as open questions, and the costs in the High Court are left to its discretion.

ADEMOLA, C.J.N.: I concur.

LEWIS, J.S.C.: I concur.

Appeal dismissed.