FASORO V. ABDALLAH (1987)

Alternative Citation: Fasoro v. Abdallah (1987) NWLR (Pt. 59) 134

(1987) 6 S.C 247

(1987) 6 SCNJ 117

FASORO V. J.H.ABDALLAH

In The Supreme Court of Nigeria

On Friday, the 12th day of June, 1987

Suit No: SC.195/1985

BEFORE THEIR LORDSHIPS
ANDREWS OTUTU OBASEKI                                JUSTICE OF THE SUPREME COURT
AUGUSTINE NNAMANI                                        JUSTICE OF THE SUPREME COURT
MUHAMMADU LAWAL UWAIS                           JUSTICE OF THE SUPREME COURT
ADOLPHUS GODWIN KARIBI-WHYTE                JUSTICE OF THE SUPREME COURT
CHUKWUDIFU AKUNNE OPUTA                        JUSTICE OF THE SUPREME COURT

 Between

  1. A. FASORO Appelants

 And

  1. H. ABDALLAH Respondents

            …………………….A…………………….

Obaseki, JSC   (Delivering the Lead Judgment):This is a very short appeal and the issues are straight forward. The appellant as plaintiff instituted an action again the respondent as defendant in the High Court of Oyo State. Ibadan Judicial Division, Ibadan claiming:

“(1) Possession of all that main building, the block by it consisting of basement, ground floor of a four-door shop annexed to the main building and together with two boys quarters behind situate, lying and being at N6A/318 Oyo Road, Mokola, Ibadan let by the plaintiff to the defendant as a sub-tenant under a deed dated 19th February, 1980 and registered as No. 19 at page 19 Volume 229 of the Lands Registry in the office at Ibadan.

(2) N100.000.00 (One Hundred Thousand Naira) special and general damages caused by the defendant’s act of blocking all accesses by which the plaintiff and his tenants, agents and servants reach the portion of the premise not let out to the defendant and occupied by the plaintiff, his servants, agents and tenants in breach of Clause 2(c) of the lease agreement aforesaid, notice of forfeiture having been duly given by the plaintiff to the defendant.

(3) Mesne profit until possession is given;

(4) Mandatory injunction compelling the defendant to leave open the aforesaid accesses and perpetual injunction restraining the defendant from closing up the aforesaid accesses until possession is given up”.

Pleadings were ordered, filed, served and/or exchanged by the parties, and at the close of pleadings, the matter was listed f or hearing before Ogundere. J. He heard evidence from the plaintiff and his three witnesses and also the defendant and his two witnesses. He also heard addresses of counsel for the parties at the conclusion of evidence after which he delivered a well considered judgement dismissing the plaintiffs claim. In the concluding paragraph, the learned trial Judge said:

“In sum, in law, the plaintiff cannot complain of a breach of a covenant by the defendant tenant since the act complained of was permitted by the landlord plaintiff as required under Clause 2(c) of the sub-lease. There is therefore no cause to apply the provisions of section 161(1) of the Property and Conveyancing Law Cap 100 Laws of the Western State applicable in Oyo State. In the alternative, since it was the breach by the plaintiff landlord of the sub-lessor’s covenant to give the sub- lessee a quiet enjoyment under Clause 3(1) of the sublease that necessitated in part the erection of the fence, in equity, the plaintiff cannot be allowed to succeed in an action founded on his own wrong doing. In the circumstances, I find that the plaintiff has failed to prove each and every claim and I dismiss his action in its entirety”.

…………………….B…………………….

The plaintiff was dissatisfied with the decision of the High Court and he took the matter on appeal to the Court of Appeal without success. Dosunmu, J.C.A. in the penultimate paragraph of his judgment (with the concurrence of Omotolu Thomas and Sulu Gambari, JJ.C.A.) said:

“Although there are as many as 15 grounds of appeal filed against this judgment covering only six pages they are all largely on issues of fact and as Bello, JSC. rightly said in Shell BP & Company v. Pere (1978) 3 S.C.183, 194 that “the Court of Appeal will not ordinarily interfere with the findings of fact by the trial Judge but where there is ample evidence and the trial Judge failed to evaluate it and make correct findings. The occasion for doing so did not arise in this appeal. In the result, the appeal must be dismissed.”

( )

The plaintiff was also not satisfied with the decision of the Court of Appeal and he lodged an appeal to this Court against it. Four grounds of appeal were filed along with the notice of appeal and these grounds of appeal are as follows:

1. The learned appellate Judges erred in law and in fact and came to a wrong conclusion when they held as follows:-

‘It is on the defendant’s evidence that the trial Judge made his finding that he had permission to fence his holding.The trial Judge could not have made a finding on the lines of demarcation when no evidence was tendered to him on it.’

and later as follows:

’The plaintiff gave no evidence about demarcation referred to in paragraph 6 of the statement of claim which was of course denied in paragraph 3 of the amended statement of defence

Throughout his evidence, plaintiff said nothing about the agreement or no agreement on the lines of demarcation beyond the allegation in the statement of claim. Therefore, the trial Judge was justified in making no finding on an issue on respect of which there was no evidence.”

            …………………….C…………………….

Particulars

(i) A trial Judge who has a duty to make findings of fact on evidence given in chief is not relieved of that duty merely because the same evidence is under cross-examination.

(ii) Evidence given on a matter which is pleaded does not become worthless so as to be regarded as no evidence merely because it is given under cross examination and not in chief.

(iii) It cannot correctly be said that throughout the plaintiff’s evidence he said nothing about the agreement or no agreement on the lines of demarcation beyond the allegations in the statement of claim in view of the oral evidence of the plaintiff and the exhibits tendered by him.

2. The learned appellate Judges misdirected themselves in fact and came to a wrong conclusion when they held that the appellant tendered no evidence on the line of demarcation and said nothing about the agreement or no agreement on the lines of demarcation beyond the allegation in the statement of claim.

Particulars

This finding by the learned appellate Judges is in error in view of exhibits p.4, p.5, and p. 6 which are the plaintiffs/appellant’s evidence on the line of demarcation in addition to his oral evidence.

3. The Court of Appeal erred in law and in fact in dismissing ground 10 of the grounds of appeal and in upholding the findings of the trial court that plaintiff had access from the gate of the fence erected by the defendant and that he could also open an additional door through the side of the road;

(a) when no attempt was made to evaluate the evidence of the various witnesses on the issue of access;

(b) no reason was given for referring (sic) (preferring) the evidence of only one defence witness that there was access as against the evidence of two witnesses of the plaintiff and one witness of defence that there was no access;

4. The court of Appeal erred in law and in fact when it held that there was no miscarriage of justice even though the learned trial Judge wrongly brought in the maxim ex turpi causa oritur non causa whereas

(a) the learned trial Judge in dismissing the action also took into consideration the equitable maxim that the plaintiff cannot succeed in action founded on his own wrongdoing;

(b) the request for permission by the defendant has nothing to do with the presence of prostitutes and was therefore irrelevant to the determination of the case.

            …………………….D…………………….

All these grounds of appeal involve in the main questions of fact. They also involve questions of law. On receipt of the record of proceedings the appellant filed his brief of argument and served a copy on the respondent. The respondent filed his brief in reply and served a copy on the appellant. The issues for determination in this appeal as formulated in the appellant’s brief read:

1. whether there was any agreement between the plaintiff/appellant and the defendant/respondent as to the lines of demarcation prior to the construction of the fence by the defendant/respondent

2. whether evidence given by a plaintiff under cross- examination rather than in chief but relating to matter on the pleadings of the parties should be disregarded by the court in its judgment;

3. whether findings of fact made by a trial court without evaluation of the evidence of the witnesses ought to be allowed to stand;

4. Whether having regard to the reliance wrongly placed by the trial court on the maxim ex turpi causa oritur non actio in reaching its decision as held by the appeal court it could still be said that the decision has occasioned no miscarriage of justice.

All these issues concern facts considered both by the High Court and Court of Appeal. When the two courts have examined issues of fact and made concurrent findings, this Court has held repeatedly that in the absence of error on the face of the record occasioning miscarriage of justice, it will not disturb those findings.

Professor S.A. Adesanya has eloquently argued the grounds of appeal in addition to the submission in the brief but has failed to persuade me to the view that the concurrent findings arrived at by the Court of Appeal and the High Court were erroneous.

The sole question for determination is whether the respondent and the appellant agreed on lines of demarcation which the fence constructed by the respondent was to follow before the respondent constructed it. This is the issue raised by paragraph 6 of the statement of claim and paragraphs 3 and 12 of the amended statement of defence. Paragraphs 4,5 and 6 of the statement of claim read:

“4. Sometime in February, 1980, by an undated letter the defendant sought from the plaintiff permission to fence round the defendant’s holding and to put up another floor on the showroom;

5. By letter dated 16th February. 1980, the plaintiff sent a reply to the defendant permitting the defendant to put up another floor on the top of the showroom but would allow the fencing round only on condition that the lines of demarcation are wholly agreed by both the plaintiff and the defendant prior to the erection of the fence;

            …………………….E…………………….

6. Sometime in December, 1981, the defendant without first agreeing to the line of demarcation with the plaintiff proceeded to erect a fence round the premises thereby blocking all accesses, passages and entrances by which the plaintiff, his servants, agents and tenants could reach the portion of his holding at the back of the premises not let out to the defendant.”

Paragraphs 3 and 12 of the amended statement of defence read:

“3. the defendant denies paragraphs 6, 7. 10, 11, 12, 14, 15 and 16(a), (b), (c) of the statement of claim and put the plaintiff to a strict proof thereof;

11. By letter dated 22nd day of January, 1980, the defendant sought permission of the plaintiff to fence his holding and by a letter dated 16th of February, 1980, the defendant (sic) (plaintiff) agreed subject to a line of demarcation being agreed upon;

12. Prior to the construction of the wall fence, the defendant met the plaintiff during which the plaintiff agreed to the line of demarcation consequently followed by the defendant in the construction of the wall fence;

What are the facts of the case? This has been concisely stated in the appellant’s brief as follows:

“The defendant/respondent is a sub-lessee of the plaintiff/appellant in respect of the plaintiff’s property consisting of a main building, a block annex comprising a basement, ground floor of a 4-door shop together with two boys quarters. The plaintiff retained some portion of the block annex. The sub-lease agreement between the plaintiff and the defendant was tendered as Exhibit P2; Clause 2(c) of Exhibit P2 reads as follows:

“Not to make alterations and additions to the demised permission of sub-lessor such consent should not be unreasonably withheld.

During the currency of the sub-lease, the defendant by Exhibit P.3 applied to the plaintiff for permission to fence his own building and also permission to put another floor on top of the showroom by the side of the main building.

The plaintiff by Exhibit P4 inter alia gave his consent to the defendant to fence his holding on the premises provided all the lines of demarcation were wholly agreed upon by both the plaintiff and the defendant prior to the erection of the fence.”

The learned trial Judge found on the evidence before him that there was consultation before the erection of the fence and rejected plaintiff’s denial.

On the issues coined, the learned trial Judge after considering the evidence before him, found as follows:

“I find as a fact that the defendant tenant obtained the permission of the landlord to erect a new floor of offices and also to fence his holdings. The denial of consultation between the defendant and the plaintiff before actual erection of the fence sounds hollow. I also find that the plaintiff not only had access from the gate of the fence erected by the defendant but that he also could open an additional door through the side road as an additional entrance into the side of his holdings.

………In sum, in law, the plaintiff cannot complain of a breach of a covenant by the defendant tenant since the act complained of was permitted by the landlord plaintiff as required under clause 2(c) of the sub-lease.”

            …………………….F…………………….

Was there evidence to support this finding? There is.

The defendant, during his testimony was asked the question; “You did not agree on the fence.”

To this question, the defendant answered: “We did orally.”

The plaintiff himself admitted giving permission subject to agreement on lines of demarcation. The evidence which was accepted is that they agreed orally before embarking on the construction. The learned trial Judge and the Court of Appeal are agreed on this finding. I must again stress that concurrent findings are not to be lightly disturbed. See Mogo Chinwendu v. Mbamali (1980) 3 SC. 31

Ibodo & Ors. v Enarofia & Ors (1980) 6-7 SC. 42, 55

Lokoyi v Olojo (1983) 2 SC NLR. 127

Overseas Construction Ltd. v Creek Enterprises (1985) 3 N.W.L.R. (Part 13) 40.

I have found no reason to disturb the findings of the courts below and hold that the appeal fails. Accordingly, the appeal is hereby dismissed with N300.00 costs to the respondent

NNAMANI, J.S.C.: I have had the advantage of reading in draft the judgment just, delivered by my learned brother, Obaseki, J.S.C. and I entirely agree with his reasoning and conclusions.

The issues in the appeal were indeed very narrow. More importantly they were mainly issues of facts on which the’ High Court and the Court of Appeal had made concurrent findings. Learned counsel to the appellant, Professor Adesanya, set the first question for determination as, “whether there was any agreement between the plaintiff/appellant and the defendant/respondent as to the lines of demarcation prior to the construction of the fence by the defendant/respondent”

This was the matter on which the parties joined issue in paragraph 6 of the Statement of Claim and paragraph 12 of the Statement of Defence. The learned trial Judge after hearing evidence on this, and after examining all the exhibits held as follows:

“I find as a fact that the defendant tenant obtained the permission of the Landlord both to erect a new floor of offices and also to fence his holdings. The denial of consultation between the defendant and the plaintiff before the actual erection of the fence sounds hollow”

            …………………….G…………………….

This finding was upheld by the Court of Appeal, and I have not been successfully persuaded that this Court ought to interfere. It is pertinent to remember that the appellant had sued for possession of his property, damages, mandatory injunction compelling the respondent to leave open access to the premises, and perpetual injunction restraining the respondent from closing up the accesses. Again after hearing evidence of the parties, the learned trial Judge found as follows:)

“I also find that the plaintiff not only had access from the gate of the fence erected by the defendant but that he also could open an additional door through the side road as an additional entrance into the side of his holdings”

Again the Court of Appeal upheld this.

This appeal is without substance and I also dismiss it, and award N300.00 costs to the respondent.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother, Obaseki, J.S.C., and I entirely agree with him that this appeal is absolutely devoid of merit. Accordingly for the reasons given in the judgment I too will dismiss the appeal and it is hereby dismissed with N300.00 costs to the respondent.

KARIBI-WHYTE, J.S.C. ‘I have had the privilege of reading the judgment just delivered by my learned brother, Obaseki, J.S.C., in this appeal. The only question for determination in issue is whether the appellant and the respondent agreed on lines of demarcation in the premises which the fence was constructed by the respondent ought to follow before the fence was constructed. This being entirely dependent on findings  of facts in respect of which the two courts below were ad idemI entirely agree, and have nothing to add to the reasons given by my learned brother Obaseki, J.S.C, that the facts so found cannot be lightly disturbed in this Court. Among the numerous decisions of this Court in support of this proposition are Overseas Construction Ltd. v. Creek Enterprises (1985) 3 NWLR (Pt.13) 40; Okonkwo v. Adigwu (1985) 1 NWLR (pt.4) 694; Nigeria Bottling Co, Ltd. v. Ngonadi (1985) 1 NWLR (pt. 4) 739. Lokoyi v Olojo(1983) 2 SCNLR. 127.

I agree with the conclusion of my learned brother Obaseki, J.S.C. and also find 50 no reason to disturb the findings of the courts below, notwithstanding the very technical and persuasive arguments of Professor Adesanya, Counsel for the Appellant.

I also will dismiss this appeal, which is accordingly hereby dismissed with N300 costs to the Respondent.

OPUTA, J.S.C. I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother and presiding Justice Obaseki, J.S.C. I am in complete agreement with him that this appeal lacks merit and should be dismissed.

The Plaintiff lost in the trial Court and on appeal to the Court of Appeal Ibadan Division. On the facts there was ample evidence to support the learned trial Judge’s findings of fact. On the law he was right to apply the principle of volenti non fit injuriaUnder Clause 2(c) of the sublease between the parties the Defendant/Respondent was allowed with the expressed permission of the sub-lessor to make alterations or additions to the demised premises”. Thus acting under the ; terms of the sublease the defendant applied for the necessary permission per Ex.3 I at p. 44 of the record of proceedings:-

“to fence my whole holding and also permission to put up another floor on top of the show-room by the side of the main building”.

            …………………….H…………………….

The Appellant granted the permission sought in his letter Ex. 4 thus:-

“I hereby give my permission for the erection of the additional floor as proposed…….,I hereby also give my consent to fence your Holding on the premises provided all the lines of demarcation are wholly agreed upon by both of us prior to the erection of the fence” (See p. 44 of the record).

The dispute which went to Court was the line of demarcation. The Appellant’s argument was that the parties did not agree on this. What was the finding of fact of the learned trial Judge?

At p. 31 of the record of proceedings the learned trial Judge, Ogundere, J. found:-

“I find as a fact that the defendant/tenant obtained the permission of the landlord both to erect a new floor of offices and also to fence his holdings. Thedenial of consultation between the defendant and the plaintiff before the actual erection of the                          fence sounds hollow. It seems to me, and this is by no means a far-fetched inference, from the evidence of P.W. 3, Fredrick Sowemimo, that it was when the prostitutes were   flushed out by the Police but of the rooms held at the back-yard by the plaintiff that the relation between landlord and tenant became sour. I also find that the plaintiff not only had access from the gate of the fence erected by the defendant but that he also could open an additional door through the side road as an additional entrance into the side of his holding”.

This was the evaluation of the evidence by the learned trial Judge. Concluding the trial Court observed:-

“In sum, in law, the plaintiff cannot complain of a breach of a covenant by the defendant/tenant, since the act complained of was permitted by the land-lord/plaintiff as required under Clause 2(c) of the Sub-Lease”.

If the act of the defendant in erecting the fence was permitted as found by the trial Court such act cannot in law constitute an injuria or breach of covenant entitling the Plaintiff/Appellant to sue for possession, damages and injunction.

From the evidence and the findings of the learned trial Judge the dispute – the real dispute – between the parties is not any breach of covenant by the Defendant/Respondent but the loss of the Appellant of his other lucrative trade using the rooms at the backyard  to honour prostitutes. When these were flushed out by the Police the Appellant wanted the respondent flushed out too. He then had to manufacture a reason. The two Courts below found that by harbouring these prostitutes the Appellant was in breach of his covenant to give the Respondent quiet enjoyment of the demised premises. It is really the Respondent who should complain and not the Plaintiff/Appellant.

The Court of Appeal dismissed an appeal to it by the Plaintiff mainly on the ground that the issues being issues of fact an appellate Court cannot lightly disregard the findings of the trial Judge who saw, heard and believed. The Court of Appeal was right in not disturbing the judgment of the trial Court on the facts. This Court will also affirm the judgment of the two Courts below and dismiss this appeal.

The appeal is hereby dismissed.

I abide by the orders made by Obaseki, J.S.C. in the lead judgment.

Appeal Dismissed.

Appearances

Professor S. A. Adesanya (with him O. O. Ogunbanjo, Esq.)           For the Appelants

Mr. P. C. Ajayi-Obe (with her T. Dare Esq.)  For the Respondents

Citation: LOR(12/06/1987)SC

Alternative Citation: Fasoro v. Abdallah (1987) NWLR (Pt. 59) 134

(1987) 6 S.C 247

(1987) 6 SCNJ 117

FASORO V. J.H.ABDALLAH

In The Supreme Court of Nigeria

On Friday, the 12th day of June, 1987

Suit No: SC.195/1985

BEFORE THEIR LORDSHIPS
ANDREWS OTUTU OBASEKI                                JUSTICE OF THE SUPREME COURT
AUGUSTINE NNAMANI                                        JUSTICE OF THE SUPREME COURT
MUHAMMADU LAWAL UWAIS                           JUSTICE OF THE SUPREME COURT
ADOLPHUS GODWIN KARIBI-WHYTE                JUSTICE OF THE SUPREME COURT
CHUKWUDIFU AKUNNE OPUTA                        JUSTICE OF THE SUPREME COURT

 Between

  1. A. FASORO Appelants

 And

  1. H. ABDALLAH Respondents

            …………………….A…………………….

Obaseki, JSC   (Delivering the Lead Judgment):This is a very short appeal and the issues are straight forward. The appellant as plaintiff instituted an action again the respondent as defendant in the High Court of Oyo State. Ibadan Judicial Division, Ibadan claiming:

“(1) Possession of all that main building, the block by it consisting of basement, ground floor of a four-door shop annexed to the main building and together with two boys quarters behind situate, lying and being at N6A/318 Oyo Road, Mokola, Ibadan let by the plaintiff to the defendant as a sub-tenant under a deed dated 19th February, 1980 and registered as No. 19 at page 19 Volume 229 of the Lands Registry in the office at Ibadan.

(2) N100.000.00 (One Hundred Thousand Naira) special and general damages caused by the defendant’s act of blocking all accesses by which the plaintiff and his tenants, agents and servants reach the portion of the premise not let out to the defendant and occupied by the plaintiff, his servants, agents and tenants in breach of Clause 2(c) of the lease agreement aforesaid, notice of forfeiture having been duly given by the plaintiff to the defendant.

(3) Mesne profit until possession is given;

(4) Mandatory injunction compelling the defendant to leave open the aforesaid accesses and perpetual injunction restraining the defendant from closing up the aforesaid accesses until possession is given up”.

Pleadings were ordered, filed, served and/or exchanged by the parties, and at the close of pleadings, the matter was listed f or hearing before Ogundere. J. He heard evidence from the plaintiff and his three witnesses and also the defendant and his two witnesses. He also heard addresses of counsel for the parties at the conclusion of evidence after which he delivered a well considered judgement dismissing the plaintiffs claim. In the concluding paragraph, the learned trial Judge said:

“In sum, in law, the plaintiff cannot complain of a breach of a covenant by the defendant tenant since the act complained of was permitted by the landlord plaintiff as required under Clause 2(c) of the sub-lease. There is therefore no cause to apply the provisions of section 161(1) of the Property and Conveyancing Law Cap 100 Laws of the Western State applicable in Oyo State. In the alternative, since it was the breach by the plaintiff landlord of the sub-lessor’s covenant to give the sub- lessee a quiet enjoyment under Clause 3(1) of the sublease that necessitated in part the erection of the fence, in equity, the plaintiff cannot be allowed to succeed in an action founded on his own wrong doing. In the circumstances, I find that the plaintiff has failed to prove each and every claim and I dismiss his action in its entirety”.

…………………….B…………………….

The plaintiff was dissatisfied with the decision of the High Court and he took the matter on appeal to the Court of Appeal without success. Dosunmu, J.C.A. in the penultimate paragraph of his judgment (with the concurrence of Omotolu Thomas and Sulu Gambari, JJ.C.A.) said:

“Although there are as many as 15 grounds of appeal filed against this judgment covering only six pages they are all largely on issues of fact and as Bello, JSC. rightly said in Shell BP & Company v. Pere (1978) 3 S.C.183, 194 that “the Court of Appeal will not ordinarily interfere with the findings of fact by the trial Judge but where there is ample evidence and the trial Judge failed to evaluate it and make correct findings. The occasion for doing so did not arise in this appeal. In the result, the appeal must be dismissed.”

( )

The plaintiff was also not satisfied with the decision of the Court of Appeal and he lodged an appeal to this Court against it. Four grounds of appeal were filed along with the notice of appeal and these grounds of appeal are as follows:

1. The learned appellate Judges erred in law and in fact and came to a wrong conclusion when they held as follows:-

‘It is on the defendant’s evidence that the trial Judge made his finding that he had permission to fence his holding.The trial Judge could not have made a finding on the lines of demarcation when no evidence was tendered to him on it.’

and later as follows:

’The plaintiff gave no evidence about demarcation referred to in paragraph 6 of the statement of claim which was of course denied in paragraph 3 of the amended statement of defence

Throughout his evidence, plaintiff said nothing about the agreement or no agreement on the lines of demarcation beyond the allegation in the statement of claim. Therefore, the trial Judge was justified in making no finding on an issue on respect of which there was no evidence.”

            …………………….C…………………….

Particulars

(i) A trial Judge who has a duty to make findings of fact on evidence given in chief is not relieved of that duty merely because the same evidence is under cross-examination.

(ii) Evidence given on a matter which is pleaded does not become worthless so as to be regarded as no evidence merely because it is given under cross examination and not in chief.

(iii) It cannot correctly be said that throughout the plaintiff’s evidence he said nothing about the agreement or no agreement on the lines of demarcation beyond the allegations in the statement of claim in view of the oral evidence of the plaintiff and the exhibits tendered by him.

2. The learned appellate Judges misdirected themselves in fact and came to a wrong conclusion when they held that the appellant tendered no evidence on the line of demarcation and said nothing about the agreement or no agreement on the lines of demarcation beyond the allegation in the statement of claim.

Particulars

This finding by the learned appellate Judges is in error in view of exhibits p.4, p.5, and p. 6 which are the plaintiffs/appellant’s evidence on the line of demarcation in addition to his oral evidence.

3. The Court of Appeal erred in law and in fact in dismissing ground 10 of the grounds of appeal and in upholding the findings of the trial court that plaintiff had access from the gate of the fence erected by the defendant and that he could also open an additional door through the side of the road;

(a) when no attempt was made to evaluate the evidence of the various witnesses on the issue of access;

(b) no reason was given for referring (sic) (preferring) the evidence of only one defence witness that there was access as against the evidence of two witnesses of the plaintiff and one witness of defence that there was no access;

4. The court of Appeal erred in law and in fact when it held that there was no miscarriage of justice even though the learned trial Judge wrongly brought in the maxim ex turpi causa oritur non causa whereas

(a) the learned trial Judge in dismissing the action also took into consideration the equitable maxim that the plaintiff cannot succeed in action founded on his own wrongdoing;

(b) the request for permission by the defendant has nothing to do with the presence of prostitutes and was therefore irrelevant to the determination of the case.

            …………………….D…………………….

All these grounds of appeal involve in the main questions of fact. They also involve questions of law. On receipt of the record of proceedings the appellant filed his brief of argument and served a copy on the respondent. The respondent filed his brief in reply and served a copy on the appellant. The issues for determination in this appeal as formulated in the appellant’s brief read:

1. whether there was any agreement between the plaintiff/appellant and the defendant/respondent as to the lines of demarcation prior to the construction of the fence by the defendant/respondent

2. whether evidence given by a plaintiff under cross- examination rather than in chief but relating to matter on the pleadings of the parties should be disregarded by the court in its judgment;

3. whether findings of fact made by a trial court without evaluation of the evidence of the witnesses ought to be allowed to stand;

4. Whether having regard to the reliance wrongly placed by the trial court on the maxim ex turpi causa oritur non actio in reaching its decision as held by the appeal court it could still be said that the decision has occasioned no miscarriage of justice.

All these issues concern facts considered both by the High Court and Court of Appeal. When the two courts have examined issues of fact and made concurrent findings, this Court has held repeatedly that in the absence of error on the face of the record occasioning miscarriage of justice, it will not disturb those findings.

Professor S.A. Adesanya has eloquently argued the grounds of appeal in addition to the submission in the brief but has failed to persuade me to the view that the concurrent findings arrived at by the Court of Appeal and the High Court were erroneous.

The sole question for determination is whether the respondent and the appellant agreed on lines of demarcation which the fence constructed by the respondent was to follow before the respondent constructed it. This is the issue raised by paragraph 6 of the statement of claim and paragraphs 3 and 12 of the amended statement of defence. Paragraphs 4,5 and 6 of the statement of claim read:

“4. Sometime in February, 1980, by an undated letter the defendant sought from the plaintiff permission to fence round the defendant’s holding and to put up another floor on the showroom;

5. By letter dated 16th February. 1980, the plaintiff sent a reply to the defendant permitting the defendant to put up another floor on the top of the showroom but would allow the fencing round only on condition that the lines of demarcation are wholly agreed by both the plaintiff and the defendant prior to the erection of the fence;

            …………………….E…………………….

6. Sometime in December, 1981, the defendant without first agreeing to the line of demarcation with the plaintiff proceeded to erect a fence round the premises thereby blocking all accesses, passages and entrances by which the plaintiff, his servants, agents and tenants could reach the portion of his holding at the back of the premises not let out to the defendant.”

Paragraphs 3 and 12 of the amended statement of defence read:

“3. the defendant denies paragraphs 6, 7. 10, 11, 12, 14, 15 and 16(a), (b), (c) of the statement of claim and put the plaintiff to a strict proof thereof;

11. By letter dated 22nd day of January, 1980, the defendant sought permission of the plaintiff to fence his holding and by a letter dated 16th of February, 1980, the defendant (sic) (plaintiff) agreed subject to a line of demarcation being agreed upon;

12. Prior to the construction of the wall fence, the defendant met the plaintiff during which the plaintiff agreed to the line of demarcation consequently followed by the defendant in the construction of the wall fence;

What are the facts of the case? This has been concisely stated in the appellant’s brief as follows:

“The defendant/respondent is a sub-lessee of the plaintiff/appellant in respect of the plaintiff’s property consisting of a main building, a block annex comprising a basement, ground floor of a 4-door shop together with two boys quarters. The plaintiff retained some portion of the block annex. The sub-lease agreement between the plaintiff and the defendant was tendered as Exhibit P2; Clause 2(c) of Exhibit P2 reads as follows:

“Not to make alterations and additions to the demised permission of sub-lessor such consent should not be unreasonably withheld.

During the currency of the sub-lease, the defendant by Exhibit P.3 applied to the plaintiff for permission to fence his own building and also permission to put another floor on top of the showroom by the side of the main building.

The plaintiff by Exhibit P4 inter alia gave his consent to the defendant to fence his holding on the premises provided all the lines of demarcation were wholly agreed upon by both the plaintiff and the defendant prior to the erection of the fence.”

The learned trial Judge found on the evidence before him that there was consultation before the erection of the fence and rejected plaintiff’s denial.

On the issues coined, the learned trial Judge after considering the evidence before him, found as follows:

“I find as a fact that the defendant tenant obtained the permission of the landlord to erect a new floor of offices and also to fence his holdings. The denial of consultation between the defendant and the plaintiff before actual erection of the fence sounds hollow. I also find that the plaintiff not only had access from the gate of the fence erected by the defendant but that he also could open an additional door through the side road as an additional entrance into the side of his holdings.

………In sum, in law, the plaintiff cannot complain of a breach of a covenant by the defendant tenant since the act complained of was permitted by the landlord plaintiff as required under clause 2(c) of the sub-lease.”

            …………………….F…………………….

Was there evidence to support this finding? There is.

The defendant, during his testimony was asked the question; “You did not agree on the fence.”

To this question, the defendant answered: “We did orally.”

The plaintiff himself admitted giving permission subject to agreement on lines of demarcation. The evidence which was accepted is that they agreed orally before embarking on the construction. The learned trial Judge and the Court of Appeal are agreed on this finding. I must again stress that concurrent findings are not to be lightly disturbed. See Mogo Chinwendu v. Mbamali (1980) 3 SC. 31

Ibodo & Ors. v Enarofia & Ors (1980) 6-7 SC. 42, 55

Lokoyi v Olojo (1983) 2 SC NLR. 127

Overseas Construction Ltd. v Creek Enterprises (1985) 3 N.W.L.R. (Part 13) 40.

I have found no reason to disturb the findings of the courts below and hold that the appeal fails. Accordingly, the appeal is hereby dismissed with N300.00 costs to the respondent

NNAMANI, J.S.C.: I have had the advantage of reading in draft the judgment just, delivered by my learned brother, Obaseki, J.S.C. and I entirely agree with his reasoning and conclusions.

The issues in the appeal were indeed very narrow. More importantly they were mainly issues of facts on which the’ High Court and the Court of Appeal had made concurrent findings. Learned counsel to the appellant, Professor Adesanya, set the first question for determination as, “whether there was any agreement between the plaintiff/appellant and the defendant/respondent as to the lines of demarcation prior to the construction of the fence by the defendant/respondent”

This was the matter on which the parties joined issue in paragraph 6 of the Statement of Claim and paragraph 12 of the Statement of Defence. The learned trial Judge after hearing evidence on this, and after examining all the exhibits held as follows:

“I find as a fact that the defendant tenant obtained the permission of the Landlord both to erect a new floor of offices and also to fence his holdings. The denial of consultation between the defendant and the plaintiff before the actual erection of the fence sounds hollow”

            …………………….G…………………….

This finding was upheld by the Court of Appeal, and I have not been successfully persuaded that this Court ought to interfere. It is pertinent to remember that the appellant had sued for possession of his property, damages, mandatory injunction compelling the respondent to leave open access to the premises, and perpetual injunction restraining the respondent from closing up the accesses. Again after hearing evidence of the parties, the learned trial Judge found as follows:)

“I also find that the plaintiff not only had access from the gate of the fence erected by the defendant but that he also could open an additional door through the side road as an additional entrance into the side of his holdings”

Again the Court of Appeal upheld this.

This appeal is without substance and I also dismiss it, and award N300.00 costs to the respondent.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother, Obaseki, J.S.C., and I entirely agree with him that this appeal is absolutely devoid of merit. Accordingly for the reasons given in the judgment I too will dismiss the appeal and it is hereby dismissed with N300.00 costs to the respondent.

KARIBI-WHYTE, J.S.C. ‘I have had the privilege of reading the judgment just delivered by my learned brother, Obaseki, J.S.C., in this appeal. The only question for determination in issue is whether the appellant and the respondent agreed on lines of demarcation in the premises which the fence was constructed by the respondent ought to follow before the fence was constructed. This being entirely dependent on findings  of facts in respect of which the two courts below were ad idemI entirely agree, and have nothing to add to the reasons given by my learned brother Obaseki, J.S.C, that the facts so found cannot be lightly disturbed in this Court. Among the numerous decisions of this Court in support of this proposition are Overseas Construction Ltd. v. Creek Enterprises (1985) 3 NWLR (Pt.13) 40; Okonkwo v. Adigwu (1985) 1 NWLR (pt.4) 694; Nigeria Bottling Co, Ltd. v. Ngonadi (1985) 1 NWLR (pt. 4) 739. Lokoyi v Olojo(1983) 2 SCNLR. 127.

I agree with the conclusion of my learned brother Obaseki, J.S.C. and also find 50 no reason to disturb the findings of the courts below, notwithstanding the very technical and persuasive arguments of Professor Adesanya, Counsel for the Appellant.

I also will dismiss this appeal, which is accordingly hereby dismissed with N300 costs to the Respondent.

OPUTA, J.S.C. I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother and presiding Justice Obaseki, J.S.C. I am in complete agreement with him that this appeal lacks merit and should be dismissed.

The Plaintiff lost in the trial Court and on appeal to the Court of Appeal Ibadan Division. On the facts there was ample evidence to support the learned trial Judge’s findings of fact. On the law he was right to apply the principle of volenti non fit injuriaUnder Clause 2(c) of the sublease between the parties the Defendant/Respondent was allowed with the expressed permission of the sub-lessor to make alterations or additions to the demised premises”. Thus acting under the ; terms of the sublease the defendant applied for the necessary permission per Ex.3 I at p. 44 of the record of proceedings:-

“to fence my whole holding and also permission to put up another floor on top of the show-room by the side of the main building”.

            …………………….H…………………….

The Appellant granted the permission sought in his letter Ex. 4 thus:-

“I hereby give my permission for the erection of the additional floor as proposed…….,I hereby also give my consent to fence your Holding on the premises provided all the lines of demarcation are wholly agreed upon by both of us prior to the erection of the fence” (See p. 44 of the record).

The dispute which went to Court was the line of demarcation. The Appellant’s argument was that the parties did not agree on this. What was the finding of fact of the learned trial Judge?

At p. 31 of the record of proceedings the learned trial Judge, Ogundere, J. found:-

“I find as a fact that the defendant/tenant obtained the permission of the landlord both to erect a new floor of offices and also to fence his holdings. Thedenial of consultation between the defendant and the plaintiff before the actual erection of the                          fence sounds hollow. It seems to me, and this is by no means a far-fetched inference, from the evidence of P.W. 3, Fredrick Sowemimo, that it was when the prostitutes were   flushed out by the Police but of the rooms held at the back-yard by the plaintiff that the relation between landlord and tenant became sour. I also find that the plaintiff not only had access from the gate of the fence erected by the defendant but that he also could open an additional door through the side road as an additional entrance into the side of his holding”.

This was the evaluation of the evidence by the learned trial Judge. Concluding the trial Court observed:-

“In sum, in law, the plaintiff cannot complain of a breach of a covenant by the defendant/tenant, since the act complained of was permitted by the land-lord/plaintiff as required under Clause 2(c) of the Sub-Lease”.

If the act of the defendant in erecting the fence was permitted as found by the trial Court such act cannot in law constitute an injuria or breach of covenant entitling the Plaintiff/Appellant to sue for possession, damages and injunction.

From the evidence and the findings of the learned trial Judge the dispute – the real dispute – between the parties is not any breach of covenant by the Defendant/Respondent but the loss of the Appellant of his other lucrative trade using the rooms at the backyard  to honour prostitutes. When these were flushed out by the Police the Appellant wanted the respondent flushed out too. He then had to manufacture a reason. The two Courts below found that by harbouring these prostitutes the Appellant was in breach of his covenant to give the Respondent quiet enjoyment of the demised premises. It is really the Respondent who should complain and not the Plaintiff/Appellant.

The Court of Appeal dismissed an appeal to it by the Plaintiff mainly on the ground that the issues being issues of fact an appellate Court cannot lightly disregard the findings of the trial Judge who saw, heard and believed. The Court of Appeal was right in not disturbing the judgment of the trial Court on the facts. This Court will also affirm the judgment of the two Courts below and dismiss this appeal.

The appeal is hereby dismissed.

I abide by the orders made by Obaseki, J.S.C. in the lead judgment.

Appeal Dismissed.

Appearances

Professor S. A. Adesanya (with him O. O. Ogunbanjo, Esq.)           For the Appelants

Mr. P. C. Ajayi-Obe (with her T. Dare Esq.)  For the Respondents

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