Tonimas (Nig) Ltd V. Chigbu (2020)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C. 

The parties herein have been in series of protracted disputes. The instant dispute, the subject of this appeal, was before the Magistrate’s Court of Imo State sitting at NSU. The present dispute is all about how the appellant, a tenant of the respondent would get the respondent to receive from the agreed rent, as and when due, and avoid the latter asking for forfeiture of the lease and his re-entry into the demised property. The parties had had previous disputes on this same issue or matters related thereto.

The trial Magistrate, at page 114 of the Record, had summed the background to the present dispute thus-

Exhibit A is the sub-lease agreement between the parties. Both the plaintiff and defendant freely entered into the agreement and it is my view that no Court can make new contracts for them. Plaintiff said he made up to twenty trips to the house of the defendant but could not get him to (receive) the rent.

​All these claims the defendant denied and held the view that plaintiff did not want to pay the rent. There is no doubt, there is an outbreak of hostilities since the determination of the dealership agreement (between the parties by the appellant).

The learned trial Magistrate granted the relief against forfeiture in favour of the appellant (as the plaintiff); and further directed that the rents for 1997, 1998 and 1999 shall be paid in arrears by the appellant to the respondent (as the defendant). The appellant not satisfied with the decision, the order of the learned Magistrate that seemingly did not address the core fundamental issue, appealed to the High Court. The High Court, on appeal, held that the appellant should not talk of the respondent frustrating the sub lease agreement by consistently making himself unavailable to receive payment of the agreed rents as and when due. In consequence, he held that the appellant, as the leasee- has to seek his landlord and pay him rent, as agreed by both of them, which is in line with the principle of law that the debtor should seek his creditor and pay him.

​The evasive conduct of the respondent was not addressed by both Courts. The High Court, on this basis, refused the prayer of the appellant to pay the rents to the respondent by other means than having to seek him out, and paying same to him physically – the respondent having consistently on several occasions deliberately evaded the appellant in order to avoid receiving payment. On the refusal of the High Court to order the respondent to receive payment through alternative convenient means, in view of previews the evasive, albeit obstrusive, conduct of the respondent: the ulterior purpose of which was to create a favourable condition for him to seek the forfeiture of the lease, consequently justifying his re-entry unto the demised property, the appellant further appealed to the Court of Appeal (the lower Court).

At the risk of repetition, I hereby adopt the executive summary of the facts (on which this appeal is predicated) by the lower Court at pages 334 – 338 of the record. That is:-

Here are the facts of the appeal. The respondent is the landlord of the appellant. The respondent in this appeal granted to the appellant a sublease of a vacant parcel of land at which came to be known as No.6 Ebino Mbanoto, the appellant under a sublease agreement exhibit A tendered at the hearing in the Magistrate Court and the High Court. The appellant built on the land a petrol station called Tonimas Filling Station. The respondent was appointed a dealer at the petrol station, and the dealer operated in the petrol station. Among the terms of agreement, exhibit A is the payment of the rent annually at N25.00 payable in the month of January each year commencing from 23rd April, 1985. After some years of the operation of the petrol station by the respondent, the appellant found shortfall in the account of the sum of N27,831.1. The appellant asked the respondent to refund same and the respondent declined to pay. In the sublease exhibit A is contained the clause thus stated:

“If without reasonable cause or excuse on the part of the leaser the rents herein reserved shall be in arrears or remain unpaid for three consecutive years after becoming due and payable the sublessor may re-enter upon the subdemised, and the sublease herein may cease and determine”.

When the appellant demanded that (sic) the refunded make up the shortfall in the petrol station business; the respondent claimed and invoked the provision in the sublease of re-possession of the land on which the petrol station reside. The appellant deposed that the respondent drove away all its staff in the petrol station and repossessed (to pay) the land, the respondent also refused the shortfall. The respondent then proceeded to the High Court for an action for forfeiture of the lease. At the same High Court the appellant counterclaimed for the equitable relief against the forfeiture. The High Court dismissed the respondent’s claim for forfeiture and awarded the appellant’s claim for relief against forfeiture. The Court demanded the appellant to pay the arrears of rent. The judgment of the Court tendered at the subsequent proceedings at the High Court is exhibit C. It was at the subsequent hearing that the respondent refused to accept same up to December 1994; and the appellant paid into the Court as judgment of the Court that the respondent accepted payment following the tendering of exhibit C. The respondent was not satisfied with the decision of the High Court, he has appealed to the Court of Appeal. In an earlier judgment, the Court of Appeal dismissed the appeal. The judgment is exhibit B; it was tendered in a subsequent action in the Magistrate Court. Upon the (sic) delivered of exhibit B in the Court of Appeal, the appellant offered to the respondent the rent on the said property at N25.00 per annum for the period 1994- 2034, but the respondent refused to accept same. The appellant then issued cheque for the same period and sent it to the counsel for the respondent, Bon Nwakama, SAN, who refused to accept it. The cheque and covering letter are exhibits D & E. After this the appellant made several visits to the house of this Respondent to meet him and pay the value of the cheque or cash to him only to find that the respondent would not see the appellant. The appellant then went to the High Court Registry at Ekiti to seek to pay the cheque there for the respondent but the Registry refused unless the Court made such an order. The appellant made the application in the High Court and the respondent who had before now refused to be seen surfaced in Court saying he did not want payment of his rent to be made through the Registry, and will not accept the payment of rent in advance. The appellant and counsel made several journeys to the respondent’s house. Often indeed most times the respondent would send messages through his wife or servant that he was not available. It was after several instances of this notice that he commenced proceedings in the Magistrate Court when it became clear to the appellant that the respondent was waiting for 3 years to elapse before he commenced another forfeiture proceedings. The appellant then sought in the Magistrate Court equitable relief against forfeiture, and for leave to pay the rent in any of the manners set out in 3 and/or 4 above.

At the second hearing in the Magistrate Court, the said Court refused to grant the relief sought by the appellant despite the submissions of the appellant that it was willing to pay the rent, and submitted that the said rent be paid into the Court Registry by money order, sent by registered poster certified Bank Cheque. The Magistrate ruled inter alia thus: “exhibit A is still subsisting and binding on the parties. Court will find it difficult to vary the agreement in a contract between the two parties and voluntarily entered into.” The appellant was dissatisfied with the decision, he proceeded to the High Court which inter alia ruled:

“Having a closer look at exhibit A, clause 1, one is not in doubt that there is nothing to rectify in it. Having been developed in equity, rectification is a discretionary remedy, it is available where there has been mistake not in the making, but in recording of a contract. It is the law that Courts of equity do not rectify a contract, they may and do rectify instruments. Allowing the appellant’s claim will undoubtedly modify the terms of the contracts. Nowhere in the said exhibit is provision for the payment of rent on the sublease by any other means, if the parties had wanted to, exhibit A would have reflected it. The appellant cannot talk of frustration he has to seek his landlord and pay him the rent as agreed by both of them which is in line with the principle of law that the debtor should seek his creditor and pay him. In the face of the above, my hands are tied and I do hereby decline to allow words not in the contemplation of the parties when they wrote and executed exhibit A.

From the fact checks, the appellant is very willing to pay his rents as and when due, and even in advance. The respondent only wants to receive his rents – as and when due only in his palace.