Bata Nigeria (Sales) Ltd V. Brigadier Martin Adamu (1976)

LawGlobal-Hub Lead Judgment Report

ALEXANDER, CJN. 

 The original suit (No. JD/71/1974) between the plaintiff and defendant was heard in the High Court of the former Benue-Plateau State, in Jos, by Bate, SPJ., (as he then was), from those judgment there was an appeal to this court. The appeal was allowed, the judgment of the High Court including the order for costs was set aside, and the case was sent back for rehearing by the High Court with directions that

(1) the parties be at liberty to amend their pleadings if they are so advised and

(2) the issue described above (that is, in the judgment) and clearly relevant to a just decision of the cause as put by the parties shall be duly decided.

Pursuant to these directions the plaintiff filed an amended statement of claim dated 10th November, 1975, in paragraph 10 of which he claims against the defendant (a) a declaration that the sub-lease aforesaid granted in favour of the defendants was determined by reason of defendant’s breach of some of the terms of the sub-lease aforesaid by sub-underleasing without consent and further by plaintiff’s re-entry of part of the demised premises.

(b) an injunction restraining the defendants, their servants and agents from committing or continuing to commit further trespass, and

(c) damages of N36,000 (Thirty-Six Thousand Naira) for trespass.

It was alleged, in particular, in paragraph 4 of the amended statement of claim that –   ‘By clause 2 (viii) and (ix) of the deed of sub-lease …. the company was – (viii) not to assign, underlet or part with the possession of the demised premises or any part thereof without first obtaining the written consent of the sub-lessor such consent, however, not to be unreasonably withheld in the case of a respectable and responsible person, and   (ix) not to permit any sale by auction to be held upon the demised premises or suffer any part of the said premises to be so used as to cause nuisance, annoyance, or inconvenience to the occupiers of adjacent houses or the neighbourhood.’

The defendant then filed an application by way of motion on notice dated 2nd December, 1975, for an order pursuant to Order XXVI, Rule 4 of the relevant rules of court for leave to set up a counterclaim in the terms set forth in paragraph 15 of the statement of defence and captioned ‘Counterclaim’ as follows –   ‘Counterclaim 15. The defendant repeats paragraphs 1-13 of the statement of defence, and if, contrary to his contention, it should be found that he has committed the alleged or any breach or  breaches of the covenants in clause 2 (viii) and 2(ix) or either of those clauses of the deed of sub-lease, he claims to be relieved from the alleged forfeiture.’ Paragraph 9 of the amended statement of defence which the defendant sought to file also contained the following averments –

(a) ……………………………….

(b) The defendant states that there was no allegation of breach of the covenant in paragraph 2(ix) of the sub-lease prior to the commencement of the present action.

(c) During the first trial of this action the plaintiff deliberately abandoned and/or waived the alleged breach of the covenant in paragraph 2(ix) of the sub-lease and did not pursue same.  Accordingly the order of retrial by the Supreme Court cannot operate to revive an alleged breach which the plaintiff had waived as aforesaid ………”

In paragraph 12 of the amended statement of defence the defendant further pleaded ‘The defendant pleads waiver and avers that if (which is denied) there has been a breach of the covenants in the deed of sub-lease as alleged in the statement of claim such breach has been waived by the plaintiff and/or his predecessor in title’.    The application for leave to set up a counterclaim was heard by Belgore, J., sitting in the High Court of the former Benue-Plateau State and dismissed by him in a ruling dated 12th December, 1975. The defendant then appealed to this court seeking to set aside the ruling and order of the High Court and to obtain an order that the defendant “be entitled to set up a counterclaim with their amended statement of defence.

The appellant’s grounds of appeal are as follows –