Costain (W.a.) Limited V. Alhaji Taslim Ishola Kotun & Ors. (1998)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A. 

The respondents as plaintiffs had claimed forfeiture of the leasehold of which the appellant is in possession and yet was not paying the due rent. The appellant as a defendant in the court below relying on section 20 of the (Miscellaneous Provisions) Law Cap 65 Laws of Lagos State and section 212 of the Common Law Procedure Act, 1852 moved the court below to strike out and thereby discontinue and to abate those parts of the respondents suit that relate to forfeiture on grounds of non-payment of rent which the appellant had paid. The learned trial court dismissed the application citing the conduct of the appellants which makes it difficult to accede to their request. Dissatisfied with the decision of the court below, the (defendant) appealed to this court and filed 7 grounds of appeal from which he framed 3 issues for determination. The issues are as follows:-

3.2.1. Whether the trial Judge failed to consider and determine the submissions of the appellant’s counsel as to the effect of section 212 of the Common Law Procedure Act, 1852 and by so doing, denied the appellant a fair hearing.

3.2.2. Whether/conditions in section 212 or the Common Law Procedure Act 1852 were satisfied and if so, whether this guaranteed relief. Grounds. (ii); (iii); (iv) & (vi).

3.2.3. Whether the trial Judge decided upon and (hereby prejudged substantive issues in the action before final judgment (Ground v).

The respondent’s issues for determination are almost on all fours with the issues framed by the appellant but with minor variation.

The whole appeal revolves around section 212 of the Common Law Procedure Act, 1852 and whether it is properly applied in this case by the court below. Should the lease be forfeited, as the appellant claimed that it had paid the arrears of rent The main contention of the appellant is that the court did not give it a fair hearing in that the court below did not or failed or refused to consider the case put forward by the appellant in the lower court. For this counsel for the appellant referred to Osafile v. Odi (No. 1) (1990) 3 NWLR (Pt. 137) 130 at 156 and Adeyemi & Ors. v. Ike Oluwa & Sons Ltd. (1993) 8 NWLR(Pt.309) at 27. The totality of the argument is that before the court arrives at its decision. it must consider and weigh carefully the case of the parties which consist of the facts and the law in which counsel addressed the court. The counsel for the appellant argued in his brief that the court below completely shut its mind off the provision of section 212 of the Common Law Procedure Act which the appellant addressed on. There is no doubt that where the court completely refuses or shuts its mind from an address that is meaty and juicy and is very relevant for the due determination of the case a decision reached by such skewed act cannot stand the lest of fairness. The question that would readily agitate the mind of this court is whether there has been a dereliction of duty of hearing both sides and considering their submissions before arriving at a decision.

By a notice dated 3/4/91, the appellant then as respondent in a motion paper below filed in the court a process which states inter alia as follows:

“Take notice that the respondent has paid into court the sum of N12,974.50.

The said N12,974.50 is in satisfaction of the rent arrears on the lease of the property at 174 Western Avenue from January 1972 to date at the rate of N674.00 p.a. over which the counter-claimant seek forfeiture.”

The notice was filed and served during the course of the proceedings. It is the argument of the appellant that having made the payment referred to above the court ought not to have made or granted the claim for forfeiture asked for. Now section 210 of the Common Law Procedure Act of 1832 states as follows:-

“210. In all cases between landlord and tenant, as often as it shall happen that one half-years rent shall be in arrear and the landlord or lessor, to whom [he same is due, hath right by law to re-enter for nonpayment thereof, such landlord or lessor shall and may without any formal demand or re-entry serve a writ in ejectment for the recovery of the demised premises ….”

S. 212 “If the tenant or his assignee do or shall at any time before the trial in such ejectment, pay or tender to the lessor or landlord his executors or administrators or his or their attorney in that cause or pay into court where the same cause is depending, all the rent and arrears together with the costs then and in such case all further proceedings on the said ejectment shall cease and be discontinued; and if such lessee, his executors and administrators or assigns shall upon such proceedings as aforesaid, be relieved in equity he and they shall have, hold and enjoy the demised lands according to the lease thereof made. without any new lease.”

Now there is no doubt that the arrears of rent were from January 1972 and it was at the time the matter was proceeding in court that the rent arrears were paid. In their counter affidavits the respondents averred as follows: