A. Fasoro V. J. H. Abdallah (1987)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

This is a very short appeal and the issues are straight forward. The appellant as plaintiff instituted an action against the respondent as defendant in the High Court of Oyo State. Ibadan Judicial Division. Ibadan claiming:

“(1) Possession of all that main building, the block by it consisting of basement, ground floor of a four-door shop annexed to the main building and together with two boys quarters behind situate, lying and being at N6A/318 Oyo Road. Mokola. Ibadan let by the Plaintiff to the defendant as a sub tenant under a deed dated 19th February, 1980 and registered as No. 19 at page 19 Volume 229 of the Lands Registry in the office at Ibadan.

2. N100,000.00 (One hundred thousand NAIRA) special and general damages caused by the defendant’s act of blocking all accesses by which the plaintiff and his tenants, agents and servants reach the portion of the premises not let out to the defendant and occupied by the plaintiff, his servants, agents and tenants in breach of Clause 2(c) of the lease agreement aforesaid, notice of forfeiture having been duly given by the plaintiff to the defendant.
3. Mesne profit until possession is given;
4. Mandatory injunction compelling the defendant to leave open the aforesaid accesses and perpetual injunction restraining the defendant from closing up the aforesaid accesses until possession is given up.”

Pleadings were ordered, filed, served and or exchanged by the parties, and at the close of pleadings, the matter was listed for hearing before Ogundere, J. He heard evidence from the plaintiff and his three witnesses and also the defendant and his two witnesses. He also heard addresses of counsel for the parties at the conclusion of evidence after which he delivered a well considered judgment dismissing the plaintiff’s claim. In the concluding paragraph, the learned trial Judge said:

“In sum, in law, the plaintiff cannot complain of a breach of a covenant by the defendant tenant since the act complained of was permitted by the landlord plaintiff as required under Clause 2(c) of the sub-lease. There is therefore no cause to apply the provisions of section 161(1) of the Property and Conveyancing Law cap 100 Laws of the Western State applicable in Oyo State. In the alternative, since it was the breach by the plaintiff landlord of the sub-lessor’s covenant to give the sub-lessor a quiet enjoyment under Clause 3(1) of the sub-lessee that necessitated in part the erection of the fence, in equity, the plaintiff cannot be allowed to succeed in an action founded on his own wrong doing. In the circumstance, I find that the plaintiff has failed to prove each and every claim and I dismiss his action in its entirety.”

The plaintiff was dissatisfied with the decision of the High Court and he took the matter on appeal to the Court of Appeal without success. Dosunmu, JCA, in the penultimate paragraph of his judgment (with the concurrence of Omololu-Thomas and Sulu Gambari, JJCA.) said:

“Although there are as many as 15 grounds of appeal filed against this judgment covering only six pages, they are all largely on issues of fact; and as Bello, JSC. rightly said in Shell BP & Company v. Pere (1978) 3 Sc. 183, 194 that “the Court of Appeal will not ordinarily interfere with the findings of fact by the trial Judge but where there is ample evidence and the trial Judge failed to evaluate it and make correct findings. The occasion for doing so did not arise in this appeal. In the result, the appeal must be dismissed.”

(Italics mine)

The plaintiff was also not satisfied with the decision of the Court of Appeal and he lodged an appeal to this Court against it. Four grounds of appeal were filed along with the notice of appeal and these grounds of appeal are as follows:

1. The learned appellate Judges erred in law and in fact and came to a wrong conclusion when they held as follows:-

‘It is on the defendant’s evidence that the trial Judge made his finding that he had permission to fence his holding. The trial Judge could not have made a finding on the lines of demarcation when no evidence was tendered to him on it.’

and later as follows:

‘The plaintiff gave no evidence about demarcation referred to in paragraph 6 of the statement of claim which was of course denied in paragraph 3 of the amended statement of defence’

Throughout his evidence, plaintiff said nothing about the agreement or no agreement on the lines of demarcation beyond the allegation in the statement of claim. Therefore, the trial Judge was justified in making no finding on an issue in respect of which there was no evidence.”

Particulars