Abdullahi & Brothers Musawa Limited V. Arewa Textile Limited (2004)

LawGlobal-Hub Lead Judgment Report

JOSEPH JEREMIAH UMOREN, J.C.A.

The facts that led to this appeal are as follows: The respondent granted a lease of a plot of land lying and situate at Kaduna South to the appellant for a term of 40 years. The deed of lease required payment of the rent for the period of 40 years to be made in advance. Pursuant to the provisions of the deed, the appellant made the payment for the 40 years to the respondent commencing from 1970. Under the lease, the ground rent for the plot was to be payable to the Government of Kaduna State and was to be the responsibility of the appellant. The appellant complied with this requirement from 1970 to 1979. It defaulted from 1980 to 1994 a period of 14 years.

By a letter dated 25/10/94, the respondent’s solicitor gave the appellant “notice to quit” requiring the appellant to quit the premises and deliver up possession of the property to the respondent not later than three months from the date of the letter. In the letter, the appellant’s notice was directed at its failure to pay rent for the period 1980 -1994. Other breaches of convenant in the deed were alleged to have been committed by the appellant. It was also required to pay the sum of N27,586.49 before the expiration of the three months from 25/10/94.

Negotiations between the solicitors to the parties broke down somewhere along the line.

On 21/2/95, the respondent sued the appellants.

The claim before the lower court was as follows:

“a. Recovery of possession of the whole of the building and field or premises with all the appurtenances thereof, known, situate and lying at Plot 1 & 2, Kubani Crescent, Kaduna South, Kaduna State (hereinafter called the premises) covered by certificate of occupancy No. 198 dated 23/8/72, which the defendant was put into possession by the plaintiff as sub-lease for the period of 40 years commencing on 24/4/70 and ending on 25/4/2010.

b. A declaration that the defendant is in breach of the sublease agreement made between the plaintiff and the defendant dated 14/7/73 and therefore:

(i) The defendant is no longer a sub-lease to the plaintiff in respect of the said premises.

(ii) The plaintiff is entitled to enter and take possession of the said premises.

c. An order terminating and or setting aside the said sublease agreement for the defendant’s breach of the terms and conditions of the said sub-lease agreement.

d. An order compelling the defendant, its servants, employees, agents and or privies to vacate the said premises and deliver up same to the plaintiff in good and tenantable repairs.

e. The payment (or refund) of the sum of N27,568.49k (Twenty-seven thousand, five hundred and sixty-eight Naira, forty-nine kobo) being the outstanding ground rents on the said premises paid by the plaintiff for period of 1980 – 1994.

f. An order compelling the defendant to settle or pay out any other outstanding or existing ground rent from 1994 and taxes, rates, water bills, and electricity bills to the appropriate government and non-governmental bodies at the appropriate rate until possession is given up.

g. An order of perpetual injunction restraining the defendant, its servants, employees, agents or privies from continued occupation and or use of the said premises.

h. N100,000.00 general damages against the defendant for breach of sub-lease agreement.”

Pursuant to the rules of the court below, pleadings were filed, amended and exchanged. There was also a counter-claim. At the conclusion of a protracted hearing involving four rulings, the trial Judge delivered a considered judgment dated 25/10/2001.

Dissatisfied with the judgment of the court below, the appellant has appealed to this court on seven grounds of appeal which with particulars inter alia as follows:

“1. The learned trial Judge erred in holding that the suit is not incompetent since the suit is in fact incompetent for the following reasons:

(a) Requirements of S. 117 of Landlord and Tenant Edict No. 17 of 1990, were not complied with the notice under the section does not contain the particulars prescribed therein.

(b) Even if exhibit A was intended to be utilized as a notice under the section it would be invalid because it was not signed by the sub-lessor. For the same reason the notice of intention to sue was invalid – it was signed by the sub-lessor.

(c) The sub-lessee was not allowed to remedy the breach complained of as the sub-lessor effected the payments of the ground rent before the expiration of the period allowed by exhibit 7 and the sub-lessee refused to accept the refund which was offered by the sub-lessor which offer was made before the period expired.

(d) On the uncontroverted evidence before the court there was no proof of alteration of the building as the property was developed by the sub-lessee after the deed came into existence as what had been acquired was undeveloped property. Furthermore, registered plans showing alteration were not tendered and so it cannot be said that alteration was proved.

(e) The notice to quit did not validly determine the tenancy because the tenancy is a tenancy for a period which exceeds one year and three months notice is inadequate to determine the notice.

(2) The judgment is erroneous in that the plaintiff’s pleadings do not disclose a cause of action because:

(a) This suit being one for forfeiture of a lease, there is need for the plaintiff to allege in his pleadings facts showing compliance with S. 117 of Landlord and Tenants Edict No. 17 of 1990 and the Recovery of Premises Law of Kaduna State. In effect, the lessor has to allege facts showing compliance with S. 117 of Edict No. 17 of 1990 and also giving a notice to quit and a notice of intention to commence action for recovery of possession thereafter.

(b) The sub-lessor is required to allege facts showing a strict compliance with all the applicable statutes. In this case, both the notice to quit and the notice of intention to sue were not alleged to be signed by the sub-lessor (the landlord) as required by law and by dint of this they are invalid.

(3) The judgment is unreasonable, unwarranted and cannot be supported having regard to the weight of the evidence.

(4) The judgment is erroneous in law in that the learned trial Judge did not consider the claim by the defendant for relief against forfeiture which the defendant made in its counter-claim and thereby caused a miscarriage of justice.

Particulars

(a) In paragraph 11 of its 2nd amended statement of defence at page 72 of the record the defendant sought relief against forfeiture.

(b) Counsel for the defendant canvassed the issue and urged the court to grant relief againt forfeiture in his final address at paragraph 1 at page 132 of the record.

(c) In the judgment at page 144 of the record and in the fifth paragraph thereof one of the submissions of the counsel for the defendant is alluded to, but apart from that the judgment did not consider any issue relating to the claim for forfeiture to make any decision thereon, talk less of the reason for such decision contrary to the requirements of a valid judgment.

(d) If issue had been properly considered and the applicable legal principles were invoked, the court should have granted the claim of the appellant for relief against forfeiture in the light of the facts and circumstances of this case including the following:

(i) the fact that rent payable to the landlord for up to the year 2010 had been paid in advance to it.

(ii) the appellant did enough to show its readiness to refund the financial expenditure expended by the respondent to fully and timeously appease the respondent.

(iii) no irreparable loss was suffered by the respondent.

5. The learned trial Judge erred in law, in not considering the submission before him by reason of failure to give the notice required under S.117 of the Landlord and Tenant Law of Kaduna State, 1990, to the defendant by the plaintiff before commencing the suit and he thereby acted in breach of the defendant’s right to fair hearing, a constitutional right.
6. The judgment is erroneous in law in that the notice of intention to apply to court to recover possession was invalid by reason of its being signed by a solicitor who was not alleged or shown to have been appointed or authorized to do so in writing as required by the Recovery of Premises Law of Kaduna State, Cap. 128 of Laws of Kaduna State, 1991, as there was no pleading or evidence in respect thereof and the particulars required to be given to make it conform with Form in the Schedule to the Recovery of Premises Law of Kaduna State were not given in the notice.
7. The judgment is erroneous in law in that the notice to quit is invalid in that:

(i) it gave it only three months notice to quit when the law requires that it be given six months notice because the tenancy is a yearly tenancy.

(ii) the notice it gave did not terminate at an anniversary of the tenancy which is April 23 or April 24 and;

(iii) the notice did not refer to the determination of the tenancy and particular thereof as required by the Recovery of Premises Law.

(iv) there was no pleading and no evidence in respect of the day on which it was served on the defendant.

Briefs of arguments were filed and exchanged. Appellant filed also a reply brief.

From the seven grounds of appeal, the appellant distilled six issues for determination as follows:

1. Whether the respondent’s claim for forfeiture was brought in conformity with the provisions of S.117 of Landlord and Tenant Law of Kaduna State, 1990?
2. What is the effect of the failure of the trial Judge to consider the counter-claim of the appellant for relief against forfeiture and whether having regard to the facts and circumstances of this case the counter-claim of the appellant for relief against forfeiture ought to have succeeded and the said failure of the trial Judge occasioned a miscarriage of justice.
3. Whether the learned trial Judge erred in law, and in breach of defendant’s right to fair hearing by dint of his failure to consider the effect of the failure of the plaintiff to give to the defendant prior notice required by S. 117 of the Landlord and Tenant Law of Kaduna State and whether this renders the suit incompetent?
4. Whether the pleadings of the plaintiff/respondent do disclose a reasonable cause of action in view of the failure to aver therein facts showing compliance with S. 117 of the Kaduna State Landlord and Tenant Law of 1990 as a major and essential fact that could empower it to approach the court for the main relief of forfeiture of lease which it sought.
5. Whether the notice of intention to apply to court to recover possession was invalid by reason of its being signed by a solicitor, who was not alleged or shown to have been appointed or authorized to do so in writing as required by the Recovery of Premises Law of Kaduna State, Cap. 128 of Laws of Kaduna State, 1991 as there was no pleading, or evidence in respect thereof and the particulars required to be given to make it conform with Form D in the Schedule to the Recovery of Premises Law of Kaduna State were not given in the notice.
6. Whether the notice to quit is invalid in that:

(i) it gave it only three months notice to quit when the law requires that it be given six months notice because the tenancy is a yearly tenancy.

(ii) the notice it gave did not terminate at an anniversary of the tenancy which is April 23 or April 24 and;

(iii) the notice did not refer to the determination of the tenancy and thereof as required by the Recovery of Premises Law.

(iv) there was no pleading and no evidence in respect of the day on which the notice to quit was served on the defendant.

The appellant related the six issues to the seven grounds of appeal rather clumsily as follows:

“Issues numbers 1, 2, 3, 4, 5 and 6 derive from grounds of appeal numbers 1, 4, 5, 2, 6 and 7 respectively. Issue number 6 derives from grounds of appeal numbers and 7.”

The respondent formulated four issues from the seven grounds of appeal but related none to any of the appellant’s ground of appeal. He did not file a cross-appeal. His issues could not be anchored to any ground of appeal filed by the appellant.

The respondent’s issues for what they are worth are as follows:

1. Whether the Kaduna State Landlord and Tenant Law, 1990 was applicable to this case at the time of the breach of the sub-lease agreement having regard to the provision of section 2 of the said law.
2. Whether the appellant, having been, in breach has not thereby forfeited the sub-lease, warranting re-entry and possession, without notice, having regard to exhibits 1 and 1A; and section 8 of the Recovery of Premises Law, Cap. 128, Laws of Kaduna State, and section 117(10) of the Kaduna State Landlord and Tenant Law No. 17 of 1990.
3. Whether the appellant is in a position at all to challenge the authority of the respondent’s counsel when the respondent itself has admitted engaging respondent’s counsel to represent it, and
4. Whether having regard to the entire proceedings and circumstances of the case and the preponderance of uncontroverted evidence by respondent’s witness, there was any denial of fair hearing occasioning a miscaniage of justice.

I have stated above that the respondent did not relate his issues to any ground of appeal either in the appellant’s grounds or in the respondent’s grounds where he filed a cross-appeal. Where there was no cross-appeal, I would have thought that the respondent would relate his issues to the appellant’s grounds of appeal. The Benin Division of this court has held that issues for determination in an appeal should not be framed in the abstract but in concrete terms arising from and related to the grounds of appeal filed. See Ojegbe v. Omatsone (1999) 6 NWLR (Pt.608) 591 at 597 paragraphs G-H. In that case their Lordships relied on Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208; Abisi v. Ekwealor & Ors. (1993) 6 NWLR (Pt.382) 643. Their Lordships went further to hold that a ground of appeal on which no issue has been formulated is deemed to have been abandoned and should be struck out. Their Lordships again relied on Baridam v. State (1994) 1 NWLR (Pt. 320) 250; Adigun v. Ayinde (1993) 8 NWLR (Pt. 313) 516. In Densa Engr Works Ltd. v. U.B.N. Plc. (1999) 1 NWLR (Pt. 585) 162 at 170 paragraph G. It was held that any issue in an appeal not predicated on any ground of appeal is incompetent. Based on the foregoing I hereby strike out respondent’s issues not related to any ground of appeal in the instant appeal.

Since the appellant has related his issues to the grounds of appeal, I will adopt the view taken by Nnaemeka-Agu, JSC in Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511 at 543 – 544 paragraphs F – A and consider the appeal on issues raised by the appellant.

The appellant kick-started his arguments on issues Nos. 1, 2 and 3. He asserted that the evidence called by the respondent only proved only one item of breach, viz failure to pay ground rent from 1980 to 1994. The deed of lease contained a forfeiture clause or a proviso for re-entry. He asserted that S. 117 of the Landlord and Tenant Law of Kaduna State and the Recovery of Premises Laws of Kaduna State apply in this case. The landlord treated the whole transaction as if the Recovery of Premises Law only applies’. He failed to give notice to quit and followed that with notice of intention to apply to the court for recovery of possession only. Submits that S.117 of the Law is a condition precedent for a party who wishes to approach the court for forfeiture of a lease. Failure to comply with its provisions before filing the action renders the action incompetent. He relied on a chain of cases beginning with Dehinsilu v. Olowu (1999) 12 NWLR (Pt. 632) 641.

The learned Counsel posited in respect of relief against forfeiture, that S. 20 of the High Court Law of Kaduna State confers jurisdiction on High Court to grant such relief. Several factors influenced the mind of the court. In this case, the tenant has shown remorse and deep repentance. This the trial Judge acknowledged at page 156 of the record. He enumerates the factors he wishes the court to consider in deciding whether or not to grant relief against forfeiture.

Submits that if the court had considered the principles of law and has properly directed its attention to the facts which it found and the existence of the power it has and the legal requirement of considering the claim by the defendant before it, it should have granted relief against forfeiture of the appellant.

The issues all appear to centre around whether or not S. 117 of the Landlord and Tenant Law of Kaduna State was complied with before action was commenced for forfeiture of the sub-lease. If there was substantial compliance, then the court below was right in enforcing forfeiture against the appellant. If not then the counter-claim should have been looked into.

Both sides have established non-payment of ground rent from 1980 to 1994.

Did the tenant claim for a relief from forfeiture? The appellant contends he did so by his counter-claim which the court of trial failed to avert its mind to. Of course a claim by a sub-lease can be made in a counter-claim. He may claim relief by way of originating summons or writ of summons if the landlord had not commenced any proceedings.

A tenant against whom a claim for forfeiture has been made and who wishes to seek relief from forfeiture must seriously and sincerely pursue the relief. Dilatoriness and casualness of approach must be avoided as it is a serious affair. Of the greatest importance is the necessity for the tenant to explain the circumstances that led him into the misbehaviour which was the cause of the claim for forfeiture brought against him. The countenance of the tenant and the language of his counsel must all reflect penitence or remorse.

Whether or not, the act of a tenant amounts to misbehaviour is a matter of fact while whether such behaviour entails forfeiture is a matter of law. Thus in this case non-payment of the ground rent is a misbehaviour which incurs the penalty of forfeiture. That is not all. In this case there were other breaches which appear not to have been seriously pursued by the overlord. In any case, the lesson is that a tenant who treasures his holding and has nowhere else to go if he is evicted, should not imprudently breach any of the covenants in the lease. Relief from forfeiture is usually granted on the ground that to order forfeiture would work great hardship on such tenant who might otherwise have nowhere to go to.

There are essential ingredients necessary for a tenant to be granted relief from forfeiture. They include:

(i) A tenant guilty of misbehaviour who wishes to ask for relief against forfeiture must specifically ask for the relief.

(ii) The tenant must adopt a procedure which ensures that both sides to the dispute are heard. In other words whilst the tenant places his case for relief, an opportunity must be afforded to the landlord or the overlord to show why no relief against forfeiture must be granted.

(iii) A tenant who wants relief from forfeiture must be able to show the nature of the hardship that will result to him from the order of forfeiture and such hardship must be such that cannot be in any way be mitigated or removed by leaving the tenant to find an alternative land.

(iv) The evidence called by the tenant must be strong, verifiable and cogent.

(v) An order to relief against forfeiture is an act of grace, benevolence or forgiveness for the tenant claiming such relief.

The relief is in the absolute discretion of the court which will be exercised judicially and judiciously. The discretion will however be influenced by such facts as the appellant put it as:

(i) The willingness of the tenant to remedy the breach alleged;

(ii) The readiness of the tenant to pay compensation for any breaches which cannot be remedied;

(iii) The tenant undertaking to observe the covenant in future or to make good any waste if it is possible to do so.”

I have observed and as a fact that rent payable to the landlord for the whole term, i.e. till 2010, had been paid in advance. There were moves on the part of the appellant to show its readiness to refund the financial expenses incurred by the respondent timeously and fully to appease the respondent. There was no evidence that the respondent has suffered irreparable loss.

I am of the respectful view that the view held by the learned trial Judge should have tilted his opinion in favour of refusal of the relief of forfeiture against the appellant. This is more so when the learned trial Judge at page 156 of the record stated inter alia as follows:

“The defendant filed its counter-claim against the plaintiff. However, the facts stated in the counter-claim are indirectly admission of the breach complained of and the defendant seems ready for reconciliation. The address by the learned Senior Advocate of Nigeria is directed torwards (sic towards) reconciliation and they are willing and ready to pay.”

See Onisiwo v. Fagbenro (1952) 21 NLR 3; Azie v. Comm. for Lands, Eastern Region (1960) 5 F.S.C. 221.

This accords with some of the rules enumerated above for relief against forfeiture. It is supposing that after saying what he said above he went further to grant forfeiture in favour of the respondent.

It will be noted that the respondent failed to comply with S.117 of the Kaduna State Landlord and Tenant Law. This section lays down as a condition precedent to bring an action under the Landlord and Tenant Law of Kaduna State.

Since the main issue in the appeal is on non-compliance with S. 117 of the Kaduna State Landlord and Tenant Law, I have taken all issues together.

From the rules stated above and the reasoning herein-before, I find merit in this appeal. I hereby allow it with costs assessed at 5,000.00 in favour of the appellant. The decision of the court below dated 25/10/2001 is hereby upturned and set aside.

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Other Citations: (2004)LCN/1626(CA)