Mrs. B. Akinrele & Ors. V. Alh. Y. O. Yagboyaju (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal arose from the decision of the High court of Justice of Oyo state holden at Ibadan dismissing appellants’ claims to forfeiture and for recovery of possession of a leasehold lying and situate at No.71 Lebanon street, Ibadan and awarding N130.00 per annum arrears of rent on the demised premises from January, 1985, to the date of judgment with 10% post judgment interest thereon to appellants against respondent.

Paragraph 23 of the amended statement of claim spotlighted the reliefs sought by appellants as plaintiffs against respondent as defendant.

Put in brief, appellant had through the Executors of the will of one late Isaac Babalola ogun demised to one Joseph Nahman, a sublease of the landed property located at No.71 Lebanon street, Ibadan, for a term of fifty nine years and eleven months starting on 11.9.1953. The consideration for the sublease was 65 (pounds) (sixty five pounds). The sublessee assigned the residue of the term to one Kassim Hajaig on 11.4.1958. Kassim Hajaig in turn assigned what was left of the sublease to respondent on 1.3.1971, on consideration of 25, 000.00 (pounds) (Nigerian currency), making respondent the sublessee of the Executors of the will of late Isaac Babalola Ogun.

Respondent fell into arrears of rent from the moment he took possession of the demised premises in 1971. Equally respondent defaulted in paying the ground rent until pressure was put on him by the sublessor before he made a refund of the paid arrears of the ground rent to the sublessor.

The arrears of rent on the sublease remained outstanding. The sublessor granted a power of Attorney on 29.5.1996, to appellants, in respect of the demised premises. Appellants, acting through their solicitors, caused a notice to be served on respondent to remedy the breach of the covenants of the sublease on pain of forfeiture of the demised premises.

The respondent did not react to the notice, which occasioned the suit in the court below. Appellants assertion on the annual rent being in the first instance pegged on 65 (British pounds) in 1953, and having risen to 25,000.00 (pounds) in the Deed of Assignment dated 1.3.1971, could not have been the Nigerian pound affected by the Decimal Currency Act, 1972, was rejected by the court below which preferred the respondent’s assertion that the Decimal Currency Act, 1972, affected the lease entered into in 1953. Consequently the rent payable per annum on the demised premises was N130.00 at the rate of 1 (pounds) to N2.

The court below also found for respondent on forfeiture and recovery of the demised premises, after finding as a fact that respondent had been in arrears of rent for 14 years, reasoning that respondent was not served notice required by section 161 of the Property and Conveyancing Law of Oyo State before the suit was commenced against him.

Appellants’ notice of appeal against the said decision of the court below has seven grounds of appeal from which five issues were framed, with issue (1) tied to grounds 1 and 2 of the appeal, issue (2) to ground 3 of the appeal, issue (3) to ground 4 thereof, issue (4) to grounds 5 and 7 thereof, and issue (5) to ground 6 thereof.

Arguments on issue (1) ventilated service of the requisite notice of forfeiture in Exhibit D on respondent before the commencement of the suit by appellants against him in the court below, which respondent admitted in examination-in-chief, coupled with 1st P.W’s evidence on the issue in proof of service of the said notice contrary to the findings of the court below that no such notice was served on respondent; consequently section 161 of the Property and Conveyancing Law of Oyo State was met by appellants.

It was argued in the alternative that Exhibit D is a documentary piece of evidence available for examination on the appeal by the Court in line with the cases of Eze v. Attorney-General, Rivers State (2002) FWLR (pt. 89) 1109 at 1127 and Iwo Local Government v. Adigun (1992) 6 NWLR (pt. 133) 494; all the more so the court below had, contrary to established practice, raised the issue of service of the notice suo motu without affording the parties the opportunity to comment on it, in breach of the decisions in the cases of Oyekanni v. N.E.P.A (2001) FWLR (Pt.34) 404 at 429-30, Abimbola v. Abatan (2001) FWLR (Pt.48) 989 at 1001, Governor/of Gongola State v. Tukur (1989) 9 NWLR (Pt.117) 592, Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 400, Eholor v. Osayande (1992) 6 NWLR (Pt.249) 524, Imah v. Kogbe (1993) 1 NWLR (Pt.316) 159, Ajuwon v. Akanni (1993) 1 NWLR (Pt.316) 182 and Ajikawo v. Ansaldo Nig. Ltd. (1991) 2 NWLR (Pt.173) 359 at 373.

Issue (2) tackled the refusal of the court below to grant the adjournment sought by appellants’ learned counsel on 8.5.2002, on ground of ill-health. The request for the adjournment occurred in the course of the proceedings after respondent finished his evidence in examination-in-chief, without objection from the respondent learned counsel, yet the court below refused to grant the adjournment which, according to appellants’ learned counsel was arbitrary and an infringement of appellants’ constitutional right to fair hearing citing in support the case of United Spinnerrs Ltd. v. Chartered Bank Ltd. (2001) FWLR (Pt.66) 640 at 657, on judicial discretion.

Submissions on issue (3) agitated that the court below found as a fact that the head lease was entered into in 1953, on consideration of 65 (pound) per annum, and the subsequent assignments of the head lease were governed by it and, with the holding that the head lease was intact and the parties are bound by their written agreement in the Deed of Lease, it behoved the court below to also hold that the British pound controlled the leasehold or its equivalent in Naira, as the Decimal Currency Act,1972, did not have retrospective effect on the 1953 head lease. The expert evidence of 3rd P.W from the Central Bank of Nigeria (C.B.N.) on the value of the British pound and Nigerian Currency been at par between 1962 and 1973 was commended to the court in the course of appellants’ written case on issue (3).

It was contended on issue (4) that appellants should not have been condemned in costs of N640 having succeeded in part in the suit with acknowledgement from the court below that their action was not frivolous, which should have attracted costs in their favour instead.