Yele Oyeneyin & Anor V Dr. A. Akinkugbe (2010) LLJR-SC

Yele Oyeneyin & Anor V Dr. A. Akinkugbe (2010)

LAWGLOBAL HUB Lead Judgment Report

O. O. ADEKEYE, JSC

The parties in this appeal commenced an action before the High Court of Justice, Ondo State in the Ondo Judicial Division. The respondents-cross appellants as plaintiffs before the trial court sued the 1st appellant/cross-respondent claiming as follows:- (i) Possession; (ii) N100 per day from the 1st December, 1989 as agreed penalty until possession is given up; (iii) N100,000 damages for trespass committed by the 1st defendant, his agents and privies to Chief E. A. Akinkugbes land to the North and West of the area granted to the 1st defendant by the plaintiffs in 1972 which is verged black in the survey plan by G. G. Okunsanya dated 2nd June, 1992. (iv) Perpetual injunction restraining the 1st defendant from committing further acts of trespass over the land referred to in (3) above. The 2nd appellant who was joined as 2nd defendant by the Order of the High Court dated 26th July, 1990, counterclaimed against the respondents and the 1st appellant respectively as follows – (i) Declaration that the Loduti and Ajaka family are the one entitled to a grant of statutory right of Occupancy over the land in dispute at Lisaluwa otherwise called Oke-Obara, Ondo. (ii) Declaration that the Loduti and Ajaka family as represented by the 2nd defendant are the ones entitled to collect rent from the 1st defendant or anybody occupying the land in dispute. (iii) An order against the 1st defendant not to pay any rent in respect of the land in dispute to the plaintiffs or any other person except to the 2nd defendants family. PAGE 2 (iv) An order against the 1st defendant to pay any rent due and any subsequent rent on the land in dispute to the 2nd defendants family. (v) An order of injunction restraining the plaintiffs, their servants, privies, agents or anybody claiming through them from collecting rent from the 1st defendant or from anybody or all in respect of the land in dispute or from any claim to the land in dispute. Both defendants-appellants joined issues with the plaintiffs-respondent in their further. Amended Statement of Defence as the matter proceeded to hearing. The two plaintiffs-respondents relied on their evidence and called two other witnesses. The respondents/cross-appellants prosecuted the case as executors of the estate of their deceased father to whom they traced their root of title. They relied on Deed of Conveyance of the disputed land to their late father, Exhibit A dated the 10th of December, 1962 from the Okedoko family, and remaining part of the land from the Loduti and Ajaka Families by virtue of Exhibit B another deed of Conveyance also dated 16th December, 1962 a composite survey plan of the land Exh. K, notice of plaintiffs/respondents/cross-appellants intention to terminate the tenancy and recover possession after three years grace given to the 1st appellant/cross-respondent to relocate his sawmill from the land in dispute, Exh. H and Letters of Probate incorporating the will of their deceased father, Chief S. A. Akinkugbe. The 1st and 2nd appellants/cross-respondents testified in person and called four other witnesses. In an exhaustive and considered judgment of the learned trial Judge delivered on the 20th of February, 1995 the court partially granted the claims of the respondents/cross-appellants against the 1st appellant as follows:- (a) The relief for possession (b) Allowed N2000 per annum in accordance with Section 5 and 6 of the Landlord and Tenants Law Cap 55 Laws of Ondo State, which turned out to be a sum of N10,500 for the period in the penalty clause of Exh. H instead of the N100 per day stipulated therein. (c) N25,000 as damages for trespass committed by the 1st appellant on the land – west of the sawmill dimissed the claim in respect of the land north of the sawmill with the two buildings and the fence erected in favour of the 1st appellant. (d) Perpetual injunction in respect of the land on which the sawmill stands and the area west of it, as well as the lands described in Exhibits A and B shown on Exhibit K without the two buildings of the 1st defendant. The court refused the 2nd appellant/cross-respondents counter claim in its entirety. Being dissatisfied with the judgment, the appellants and the respondents appealed against it to the Court of Appeal. The Court of Appeal found no merit in the appeal and consequently dismissed it. The court however allowed the respondents cross appeal. Being aggrieved by the judgment, the appellants filed a further appeal and the respondents a further cross-appeal to this court. Both parties exchanged pleadings. When the appeal was heard on the 26th of October, 2007 – the appellant relied on the appellants brief of argument filed on 13/7/05 wherein five issues were settled for determination by the court as follows:- (i) Whether the Court of Appeal was right when it held that Exhibit ‘A’ and ‘B’ are valid and conferred valid title on the respondents when the grant made vide Exhibits A and B void ab initio. (ii) Whether the Court of Appeal rightly distinguished the present case from Lawal v. G.B. Ollivant (Nig). Ltd. (1922) All NLR pg. 211 without stating reasons and particulars of differences in the two cases. (iii) Whether the Court of Appeal was right in justifying the award of trial court for the sum of N25,000 (twenty five thousand Naira) representing damages for the loss of economic trees when such has not been specifically pleaded or proved. (iv) Whether the Court of Appeal was right in allowing the cross-appeal of the plaintiffs/respondents in its entirety having found that the trial court was right to have used the cross-appellants unchallenged evidence and held that the title in the land North of the sawmill had passed to the 1st defendant. (v) Whether the Court of Appeal rightly upheld the Penalty Clause contained in Exhibit H which is outside the ambit of the mandatory provision of the applicable law, on the ground that it is a voluntary agreement which is binding on the parties. The respondents adopted and relied on the respondents brief filed on 18/10/85 and formulated four issues for determination as follows:- (1) Whether the Court of Appeal was right in not disturbing the High Courts decision granting possession to the respondent over the land described as sawmill. (2) Whether Court of Appeal was right in justifying the award of the trial court of the sum of N25,000 (twenty five thousand Naira) as damages to the land described as being part of the sawmill. (3) Whether the Court of Appeal was right in upholding the terms of Exhibit H. (4) Whether the Court of Appeal acted on the right principles in granting the respondents cross-appeal in its entirety. It is my candid view that the issues raised by the parties are similar in that they raised the same questions though cough differently. I intend to be guided by the issues formulated by the appellant. Issue One Whether the Court of Appeal was right when held that Exhibits ‘A’ and ‘BA are valid and conferred valid title on the respondents when the grant made vide Exhibits A and B are void ab initio. The appellants submitted that the trial court gave judgment to the respondents on the strength of Exhibits A and B which judgment was confirmed and upheld by the Court of Appeal whereas the Okedoko family as a grantor did not make Exh. A in their representative capacity on behalf of the family nor was Exh. B. made by the head and accredited principal members of Loduti and Ajaka family. Those who granted the land did so in their individual capacities. A grant of family land without the consent of the head and accredited principal members of the family is void in law. The Court of Appeal therefore erred when it held on to the evidence of PW2 that Loduti and Ajaka families gave land to his father in 1962 was unchallenged. The evidence was challenged by DW2 and 2nd appellant. There was no evidence to show that the land conveyed by Exhs. A and B was partitioned. Documents which are therefore a nullity and void in law cannot convey any title to the respondent. Cases were cited in support of the foregoing Folami v. Cole (1990) 2 NWLR pt.133 pg. 445 Kalio v. Woluchem & Anor. (1985) 1 NWLR Pt.4 Pg. 610 at 612. Adejumo v. Ayantegbe (1989) 3 NWLR Pt.110 pgs. 442 – 448 Ekpendu v. Erika (1959) 4 FSC Pg. 29. Ige v. Fagbohun (2002) FWLR (pt.91) pg. 1545 at pg. 1565 Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR pt.7 pg. 393 UBN Ltd. v. Ozigi (1994) 3 NWLR pt.33 pg. 385 Nimanteks Associates v. Macro Construction Co. Ltd. (1991) 2 NWLR pt. 174 pg. 411 at pg. 427 Niger Dams v. Lajide (1973) 5 SC Pg. 207 The respondents replied that the Court of Appeal was right in not disturbing the High Courts decision granting possession to the respondents over the land covered by the sawmill. The learned trial judge draw attention to the inconsistency in the pleading of the 1st appellant and his evidence denying that a landlord and tenant relationship existed between himself and the respondents – a fact which he later admitted that the relationship existed. The Court of Appeal preferred the claim to title made by the respondents to that of the 2nd respondent in view of the evidence proffered by the latter based on Exhs. A, B, F, G, H, J and K. The Court of Appeal found that the conveyance Exh. A was made for the purpose of formalizing the gift made to the respondents father in 1954 – and the court PAGE 4 found nothing improper about them. As to the signature to Exhibit A, the Court of Appeal found that DW3 under cross-examination identified the persons who signed Exhibit A as head and principle members of the Okedoko family. The court also found the evidence of traditional history given by DW2 in support of the appellants claim to title of the land in dispute inconsistent. The respondent cited the case of Akibu v. Oduntan (2000) 13 NWLR pt.685 pg. 446 at pg. 473 paragraphs G – H. The court is urged to resolve the issue in favour of the respondents. The respondents/cross-appellants as plaintiffs in the trial court claimed against the 2nd appellant and in the counterclaim defended the possession of the piece and parcel of land at Lisaluwa shown in the survey plan Exh. K dated the 2nd of June, 1992. It is trite that- (1) When the issue as to which of the two claimants has a better right to possession or occupation of a piece or parcel of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title. Aramire v. Awoyenu (1972) 1 NWLR pt.1 pg. 101 Fuson v. Beyioku (1988) 2 NWLR pt.76 pg. 263 Also where two parties are on land claiming possession, the possession being disputed, trespass can only be at the suit of that party who can show that title of land is in him. Magaji v. Cadbury Nigeria Ltd. (1985) 7 SC 59 Onwuka v. Ediala (1989) 1 NWLR pt.96 pg. 182 Elehunde v. Adeyoju (2000) 10 NWLR pt.676 pg. 562 In the suit before the High Court, the respondents/cross-appellants as plaintiffs claimed for possession, trespass and perpetual injunction. Where a claim for trespass is coupled with a claim for an injunction – the title of the parties to the land in dispute is automatically put in issue – particularly in this case in view of the pleading in the counterclaim of the 2nd appellant/cross-respondent. Akintola v. Lasupo (1911) 3 NWLR pt.180 pg. 508 Okorie v. Udom (1960) SCNLR p.326 The Registered Trustees of the Apostolic Church v. Olowoteru (1990) 6 NWLR pt.158 pg. 514. The respondents/cross-appellants traced their root of title to the land in dispute to grants made to their deceased father, High Chief Sasere Akinkugbe by the Okedoko, Loduti and Ajaka families. The documents of title relied upon to prove their fathers title to the land- which devolved on them as beneficiaries and executors of the estate of High Chief E. A. Akinkugbe are the Conveyances tendered and admitted as part of evidence as Exhibits A – B. The respondents gave evidence of the gift of the land in 1954, and the two conveyances executed in 1962. Production of document of title, which is duly authenticated, is one of the five recognized ways in which ownership or title to land may be proved. It is the duty of the plaintiff in an action for declaration of title to land to adduce sufficient and credible evidence to establish the mode of acquisition of this title and the plaintiff must succeed on the strength of his own case. Idundun v. Okumagba (1976) 9 – 10 SC 227 Nkado v. Obiano (1997) 5 NWLR pt.503 pg. 31 Onwugbufor v. Okoye (1996) 1 NWLR Pt.424 Pg. 252 Atanda v. Ajani (1989) 3 NWLR pt.111 Anyanwu v. Mbara (1992) 5 NWLR pt.242 Pg. 381 Alli v. Alesinloye (2000) 6 NWLR pt.660 pg. 177 The appellants challenged the signatories on the conveyance Exhibits A and B- that they were not made by the grantor Okedoko family in their representative capacity or by the accredited and principal members of the Loduti and Ajaka families. The misconception was laid to rest by the evidence of DW3 who identified the executors as head and principal members of Okedoko family under cross-examination. (vide page 291 of the Record). Mere PAGE 5 production of a valid instrument of grant does not necessarily carry with it an automatic grant of the relief of declaration. The production of an instrument of grant of title carries with it the need for the court to inquire into a number of questions including:- (a) Whether the document is genuine and valid (b) Whether it had been duly executed, stamped and registered (c) Whether the grantor had the authority and capacity to make the grant (d) Whether the grantor had in fact what he purported to grant (e) Whether it had the effect claimed by the holder of the instrument. The learned trial judge in his well considered judgment scrutinized the conveyance Exhibit A and B and fund that they complied with the factors adumbrated above. Pages 304 of the Record. Enilolobo v. Adegbesan (2000) 11 NWLR pt.698 pg. 611 Romaine v. Romaine (1992) 4 NWLR pt.238 Pg. 650 Ngene v. Igbo (2000) 4 NWLR pt. 651 pg. 131 In law a void act is an act which has no legal effect or consequence. It does not confer any legal right or title whatsoever, and it does not also impose any legal obligation or liability on any one or make any party liable to suffer any penalty or disadvantage. Okafor v. A-G Anambra State (1991) 6 NWLR pt.200 pg. 659 Saleh v. Monguno (2003) 1 NWLR pt. 801 pg. 221 Exhibits A and B contrary to the opinion of the appellants/cross-respondents, do not fit into the foregoing – they are not void ab initio but are legally viable documents – conveyances executed in 1962 to give legal recognition to the customary grant of land made in 1954 to the deceased father of the respondents/cross-appellants by the Okedoko family, Loduti and Ajaka families. I resolve issue one in favour of the respondents. Issue Two Whether the Court of Appeal rightly distinguished the present case from Lawal v. G. b. Ollivant (Nig.) Ltd. (1972) All NLR without stating reasons and particulars of differences in the two cases. The appellants contended that Exh. A which is the deed of conveyance made in 1962 and registered at Ibadan now Akure wherein the deed of gift made in 1954 was recited but not pleaded and tendered in evidence is fatal to the case of the respondents since the origin of their title in the parcel of land can be traced to the said deed of gift of 1954. The appellants therefore urge this court to discountenance the finding and holding of the Court of Appeal as having occasioned a miscarriage of justice against the appellant and find in favour of the appellants as considered it he case of Lawal v. G. B. Ollivant (Nig.) Ltd. that Exhibit A alone without recourse to unpleaded of gift made in 1954- in favour of Chief E. A. Akinkugbe cannot grant title of land and West of the sawmill in favour of the respondents. I agree with the finding of the Court of Appeal that the deed of gift now embodied in the conveynance Exh. A as the recitals – give absolute ownership of the land in question to the respondents. The conveyance has given format recognition to the transfer of land by the grantor family to the deceased father of the respondent. I having embodied the deed of gift in the recital, of the conveyance, no legal recognition is attached to the deed of gift – which can no longer stand on its own. Its content is now subsumed in the conveyance. It will amount to an academic exercise by the court or legal semantics to elaborate on the position of an unpleaded document. The court of Appeal said categorically on pg. 486 of the record that the case Lawal v. G. B. Ollivant is different from this case in band. Cases are not to be cited at large. The facts of the case must be similar, whereas generally speaking cases are decided on their peculiar circumstances or facts. Citing cases that are inapplicable to the peculiar findings in a particular matter lead to grave misconception and ultimately miscarriage of justice. Embarking upon an exercise of comparing and distinguishing an irrelevant case amounts to an unproductive academic exercise – which the courts must shun in the furtherance of development of law. This issue is resolved in favour of the respondents. PAGE 6 Issue 3 Whether the Court of Appeal was right in justifying the award of N25,000 (twenty five thousand Naira) representing damages for loss of economic tress where such has not been specifically pleaded. The appellants submitted on this issue that the award of N25,000 as damages for the destruction of economic trees which was neither claimed in the respondents pleading and not prove specifically was wrongly award and was no basis in law. The appellants cited the case of Incar Nigeria Ltd v. Benson Transport Ltd. (1975) 3 SC pg. 177 Jaba v. Bassmar (1952) 14 WACA pg. 140 The appellants further submitted that non payment of filing fees in respect of such award is fatal to such an award and same should be set aside. The appellants referred to the cases of Onwugbufor v. Okoye (1996) 1 SCNJ pg. 1 at pg. 36 Saudi v. Abdullahi (1989) 4 NWLR pt.116 pg. 387 The respondents submitted that the Court of Appeal was right in justifying the award of the trial court for the sum of N25,000 (twenty five thousand Naira) as damages to the land described as being west of the sawmill. At pg. 488 of the Record, the Court of Appeal found that the trespass to the said piece of land had been admitted by the 1st appellant- and in the circumstance damages was payable. The court then enunciated the principle laid down in the case of Union Bank of Nigeria Limited v. Odusote Book Stores Limited (1995) 9 NWLR pt.421 pg. 559 at pg. 585 on when an appellate court will interfere with the award of damages made by a trial court and concluded that the appellants have not satisfied the court of appeal that any of the circumstances enunciated in that case existed. This court is duty bound to emphasize that issue of award of damages is usually the duty of the trial court. In the instance of this case the plaintiffs/respondents claimed before the trial court as relief number three – (3) N100,000 damages for trespass committed by the 1st defendant, his agents and privies to Chief E. A. Akinkugbe deceased land to the North and West of the area granted to the 1st defendant by plaintiffs in 1972 which is marked black in Survey plan drawn by E. F. Olusanya Licensed Surveyor dated 2nd June, 1992 At pages 350 – 353 the learned trial judge in his findings of fact concluded, particularly at pg. 352 that the 1st appellant abused the authority granted to him to enter the land on which his sawmill was built by moving over and encroaching on the plaintiffs adjacent land without the permission and consent of the legal owners of the statutory right of occupancy to both parcels of land. Where a person having entered upon land under an authority given by law and subsequently abuses that authority, he becomes a trespasser ab initio, his conduct relating back so as to make his original entry tortuous. He also held at pg. 351 that prove of ownership is prove of possession. The learned trial judge awarded a sum of N25,000 rather than N100,000 for the trespass of the 1st defendant into the land of the respondent West of the sawmill. Generally the trial court has discretion as to the quantum of damages it would award in a claim of damages for trespass. The assessment does not depend on any legal rules- but the discretion of court is however limited by usual caution or prudence and remoteness of damage when considering its award of damages. An appellate court will not interfere with an award of damages by a trial court unless in situations which include (a) Where the Court acted under wrong principles of law (b) Where the Court acted in disregard of applicable principles of law (c) Where the Court acted in misapprehension of facts (d) Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award (e) Where injustice will result if the appellate court does not act (f) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages. U.B.N. v. Odusote Bookstores Ltd. (1995) 9 NWLR pt.421 pg. 558 Solanke v. Ajibola (1969) 1 NMLR pg. 45 Ziks Press Ltd. v. Alvan Ikoku (1951) 13 WACA 188 Thompson v. Adetope (1961) 1 ANLR pg. 322 ACB Ltd v. Apugo (2001) 5 NWLR pt.707 pg. 653

The Court of Appeal held that the appellants failed to show that the award of N25,000 damages by the trial court is affected by any of the above mentioned factors. The amount was affirmed as damages from economic trees. This court has no premise to change the view and conclusion of the trial court and the lower court on the award of damages. It is a discretion well exercised by the two lower courts. I resolve issue three in favour of the respondents. Issue Four Whether the Court of Appeal was right in allowing the cross-appeal of the plaintiffs-respondents in its entirety having found that the trial court was right to have used the cross-appellants unchallenged evidence and held that title in the land North of the sawmill had passed to the 1st defendant/respondent.

The appellants in this issue complained that the order made by the Court of Appeal in the cross-appeal is at variance with its finding on issue one in the cross-appeal. The Court of Appeal should have allowed the cross-appeal of the plaintiff/cross-appellants in part instead of finding merit in the cross-appeal. Where the finding of the trial court was neither disturbed nor impeached by the appellate court for any reason, the holding of such trial court should not be disturbed. The Court of Appeal should not have disturbed the holding of the trial court for any reason. The Court of Appeal made concurrent finding with the trial court conferring title in the land in dispute North of the sawmill areas on the 1st appellant. The Court of Appeal should not make on order which is at variance with its finding. The appellants cited cases. Osolu v. Osolu (2003) FWLR pt. 172 pg. 177 at pg. 1794 Brown v. Zibiri (2003) FWLR pt. 172 pg. 1920 at 1934 Agbaje v. Ajibola (2002) FWLR pt.92 pg. 1677 at 1695.

The respondent submitted on this issue that the Court of Appeal acted on the right principles in granting the respondents cross-appeal as it relates to the land described as being situate North of the sawmill. Having found that the respondent had proved better title to the said land as against the 2nd appellant through whom the 1st appellant was claiming the said land. The court had no option but to grant the respondents prayer for trespass an injunction. The appellants belated evidence that he purchased the land North of the sawmill from member of the respondents family was at variance with the case be put forward and therefore goes to no issue. The respondent urged the court to resolve the issue in favour of the respondents.

The lower court in the consideration of the cross-appeal agreed that the 1st appellant/cross-respondent did not plead fact of the sale of the land North of the sawmill to him by a member of the family of the cross-appellants but the cross-appellants pleaded it in their evidence and gave evidence through the 2nd plaintiff/cross-appellant to that effect. The cross-appellants have supplied the evidence required by the 1st respondent/cross-respondent to strengthen his case in the acquisition of the land North of the sawmill. The Court of Appeal included that the court was right to have made use of the unchallenged evidence of the plaintiffs/cross-appellants to vest title in the land North of the sawmill in the 1st defendant/cross-respondent. The court gave order in favour of the cross-appellants rather than the 1st cross-respondent – the cross-appellants having lost on that issue. I agree with the submission of the appellants. I regard the order of court as a mere omission which this court stands in apposition to rectify. This issue is resolved in favour of the 1st defendant/cross-respondent. Issue Five Whether the Court of Appeal rightly upheld the Penalty Clause contained in Exh. H which is outside the ambit of the mandatory provision of the applicable law, on the ground that it is a voluntary agreement which is binding on the parties. The appellants submitted that the trial court did not re-write the contract between the parties. The trial court only made effort to eradicate the illegality in the amount agreed on as penalty in Exhibit H. The amount N100 per day is excessive and does not conform with the express provisions of the landlord and Tenant Law – Section 5 and 6. The amount of N100 per day instead of N2000 per annum is undoubtedly excessive. The trial court allowed the respondents relief to the extent permitted by the applicable law. The appellant cites cases – Abscoss Ltd. v. K.W.P..T. Ltd. (1987) 4 NWLR pt.67 pg. 894 Sodipo v. Lemmin Kainem Oy & Anor (1986) 1 NWLR pt.15 pg. 220 232 paragraph Fg 233 The respondents replied that the Court of Appeal was right in upholding the terms of Exhibit H – as it is not in all cases that equity will be invited to interfere in bargains made by parties. Payment of N100 per day if he failed to vacate the property described in the agreement on the date agreed is a penalty clause which is unenforceable in equity. Exh. H was made in the peculiar background of the 1st appellant denying the respondents to the land and setting that of the 2nd appellant against them. The 1st appellant cannot ask the court to grant him concession which will prevent the respondent from deriving benefit from an agreement which granted concession to him on the face of the record. The 1st appellant did not plead any defence against the penalty clause in the trail court it cannot be raised at the Court of Appeal. Since the only complaint before the Court of Appeal was the amount awarded by the trial court invoking Section 5 and 6 of the Landlord and Tenants Law of Ondo State, the 1st appellant should have filed a Respondents Notice the Court of appeal was not in a position to entertain that point. The sum total of argument of the appellants under the issue is that parties to an agreement not under the mandatory provisions of Sections 5 and 6 of the Landlord and Tenant Law of Ondo State cannot enforce the provisions by a penalty clause. The 1st appellant and the respondents executed Exh. H – when the former was persistently in default of the payment of the rent of the landed property of the respondent where he operated his sawmill. It became apparent that he denied them as landlord of the property and recognized the 2nd appellant as the owner of the land. The respondents served him with notice to quit. He appealed for a period of three years to relocate. The respondents agreed with him and his rent was slashed by half so as to facilitate his moving away from the land without hindrances. However in the agreement Exhibit H entered into by the parties, was inserted a clause that if the 1st respondent did not vacate the land after the three years requested by him – he was still occupying the land – and he would pay penalty which is an amount of N100 per day for as long as he remains on the land. Exh. H is designed to make him quit the land of the respondent at all cost. His continued occupation of the land was against their interest. The peculiar circumstance of the agreement and the imposition of the penalty clause – the parties did not envisage the provisions of section 5 and 6 of the landlord and tenant Law and nothing in the contents of Exhibit H is to bring it under the provision of that law. He clearly understood the implications of such agreement. Exh. H imposed its own terms in the peculiar circumstance of the case which is binding on the parties. In view of the fact that this is not an ordinary landlord and tenant transaction the peculiar nature of the transaction having brought it outside the scope of the landlord and tenant law. Penalty clause in Exh. H is a sanction imposed in the event of allowing a situation which could be prevented to happen. In enforcing the penalty clause in a contract one has to consider the circumstances of the particular case. Stockholder v. Johnson (1954) 1 All E.R pg. 630 PAGE 9 In the case, the 1st appellant was paying a rent of N1000 per annum while the penalty clause made provision for the payment of N100 per day until the 1st defendant vacates the land. A penalty clause is defined in Blacks Law Dictionary Eight Edition as A contractual provision that assesses against a defaulting party an excessive monetary charge unrelated to actual harm. Penalty clauses are generally unforceable, particularly when clauses of the nature are designed to terrorize or frighten the party into performance. For example a contract may provide that the promissory is to pay N5 on a certain event but if he fails to do so, be must then pay N500. A clause of that kind is called a penalty clause by lawyers. For several years, it has been the law that such promises cannot be enforced on the ground that it is unfair and unconsciousnable to enforce clauses which are designed to terrorize.’ In the peculiar circumstance of Exh. H – where the penalty clause demands for the payment of N100 per day for occupation of land where the usual rent is N1000 annually is morally unjustifiable. The trial court cannot salvage an unenforceable transaction by applying the landlord and tenant law neither has the trial court the vires to formulate cases for the parties. I resolve this issue in favour of the appellants…..

SC. 283/2001