DR. S.A. AGBAJE & ORS (MOGAJI HEAD OF SALAMI AGBAJE for himself and on behalf of the administrators and beneficiaries of the estate of CHIEF SALAMI AGBAJE (DECEASED)) (PLAINTIFFS/APPELLANTS)

v.

ADEOYE SHONIBARE BANKOLE ISAAC

BABATUNDE WILLIAMS (executors of JACOB O. WILLIAMS) (DEFENDANTS/RESPONDENTS)

(1971) All N.L.R. 278

Division: Federal Supreme Court

Date of Judgment: 29th October, 1971

Case Number: SUIT NO. S.C. 112/1969

Before: Lewis, Fatai-Williams, Sowemimo JJ.S.C.

Appeal from the High Court (Lagos).

HELD:

(1)     It not being disputed that the parties here were bound by the Rent Control legislation, it must be implied that the parties wished and intended to comply with the legal requirements of it; indeed they could not contract out of it as was conceded. Therefore, in the circumstances, the special statutory requirements binding the parties must be read into the agreement and that here as under the law the parties had no discretion to fix a rent, other than that prescribed in accordance with the Rent Control legislation; that rent must be deemed to be the rent contemplated by the parties for the purpose of the option to renew the lease so that it was not uncertain as found by the trial Judge. The trial Judge was therefore in error in holding that the rent was uncertain.

(2)     Consequently, the option to renew notwithstanding the provision in the lease as to agreement by the parties about the rent payable, was enforceable; and the rent payable must be determined in accordance with the appropriate Rent Control legislation bearing in mind that either party had the right to apply to the appropriate tribunal for a review of such rent in accordance with the provisions of such legislation.

Appeal allowed: Finding of trial Judge set aside: Case remitted to High Court for determination.

Cases referred to:

Kasumu v. Ibironke, (1952) 14 W.A.C.A. 189.

Macarthy v. Lemomu & ors. (1966) 1 All N.L.R. 44.

Rissiter v. Miller, (1878) 3 App. Cas. 1124.

King's Motors (Oxford) Ltd. v. Lax and anor. (1969) 3 All E.R. 665.

Greater London Council v. Connolly, (1970), 2 Q.B. 100.

Brown v. Gould and ors., (1971) 3 W.L.R. 334.

Waugh v. Morris, (1873) L.R. 8 Q.B. 202.

Acts referred to:

Rent Control (Lagos) Act, Cap. 83 (Laws of the Federation of Nigeria and Lagos 1958).

Rent Control (Lagos), Amendment Act 1965.

APPEAL from the High Court (Lagos).

SUIT NO. S.C. 112/1969.

Chief Williams for the Plaintiffs/Appellants.

Impey for the Defendants/Respondents.

Lewis, J.S.C. (delivering the judgment of the court):-In Suit LD/493/63 the plaintiffs' writ read:-

"The plaintiffs' claim against the defendants jointly and severally is for an order compelling the defendants to a lease for a period of 15 years of the house and landed property situate lying and being at 95, Broad Street, Lagos as provided in paragraph 5B of the deed of lease dated 30th August, 1949 and entered into between the plaintiffs' predecessors in title and the defendants' predecessors in title.

(b)     a further order fixing the rent per annum of the said premises to be paid by the plaintiffs to the defendants.

In spite of repeated demands the defendants have failed to grant the lease."

Paragraphs 5-9 and 12 of the statement of claim read:-

"5.     The plaintiffs further aver that one Jacob Olumide Williams was the owner of a larger piece or parcel of land situate and being at 95, Broad Street, Lagos.

6.      That by a deed of lease dated 3rd September, 1921 and registered as No. 23 at page 123 in Volume 151 of the register of deeds kept in the Land Registry Lagos the said Jacob Olumide Williams demised the said landed property unto and to the use of the said Chief Salami Agbaje deceased who later erected a substantial building on the said landed property.

6A.     The plaintiffs aver that the said Salami Agbaje (deceased) during his life time went into possession of the premises on the 3rd September, 1921 and continued to be in possession thereof up to date of his death and thereafter through his personal representative and his successors-in-title up to date.

7.      The plaintiffs aver that by a deed of lease dated 30th August, 1949 and registered as No. 70 at page 70 Volume 811 of the register of deeds kept in the Land Registry Lagos the said Jacob Olumide Williams deceased demised all that piece or parcel of land unto and to the use of Chief Salami Agbaje for a period of 15 years at annual rental of £152 sterling, the said lease to commence 1st October, 1945.

8.      The plaintiffs aver that the said Jacob Olumide Williams deceased the lessor including his heirs executors administrators and assigns covenanted with the lessee including the lessee's heirs executors administrators and assigns in a proviso to the said lease as follows:-

"That if the Lessee shall be desirous of continuing the tenancy of the premises hereby demised at the expiration of the term of 15 years and shall at least 6 calendar months before the expiration thereof signify such desire by a notice in writing to be delivered to the lessor then the Lessor shall execute a new and effectual lease of the premises hereby demised at a rental to be agreed between the parties."

9.      The plaintiffs aver that in strict compliance to the proviso stated above the plaintiffs as successors in title of late Chief Salami Agbaje (deceased) gave notice in writing to the lessor Mr Jacob Olumide Williams of their intention to renew the said lease in exercise of their right of option as contained in the proviso of the said lease. In this connection the plaintiffs will rely on letter dated:-

31st March, 1960,

6th February, 1957,

12th February, 1957,

14th October, 1958,

7th April, 1960,

22nd February, 1960 and 3rd June, 1963, given by the plaintiffs to the late J.O. Williams and also his successors in title.

12.     The plaintiffs are ready and willing to exercise their right of option as contained in the said lease. WHEREUPON the plaintiffs' claim against the defendants jointly and severally is for an order compelling the defendants to grant a lease for a period of 15 years of the house and landed property situate lying and being at 95, Broad Street, Lagos as provided in paragraph 5B of the deed of lease dated the 30th August, 1949 and entered into between the plaintiffs' predecessors in title and the defendants' predecessors in title.

(b)     a further order fixing the rent per annum of the said premises to be paid by the plaintiffs' to the defendants."

The defendants then sought by motion to have the claim dismissed as disclosing no cause of action but on the 17th March, 1964, Adefarasin J. dismissed their application. The defendants then appealed against that ruling of Adefarasin J. to this Court and on the 16th May, 1966, in S.C.57/66 we remitted the case to the High Court for two issues of law to be argued namely:-

"(1)    Is the option to renew unenforceable on the ground that it leaves the rental to be agreed between the parties? or

(2)     If it is enforceable, by what method is the rent to be decided? or must it be decided in accordance with the Rent Restriction Act?"

On the 26th October, 1968, Alexander J. (as he then was) gave judgment on those two issues holding as to the first issue:-

"that the option to renew is unenforceable on the ground that it leaves the rental to be agreed between the parties."

Then assuming the contrary for the purpose of the second issue Alexander J. concluded his judgment with the words:-

"In the result, therefore, Question (1) is answered in the affirmative. If, however, the answer to Question (1) had been in the negative, the answer to Question (2) would be that the rent should be decided in accordance with the Rent Control (Lagos) Act, as amended by the Rent Control (Lagos) Amendment Act, 1965."

Against that decision of Alexander J. the plaintiffs have now appealed to this Court, and Chief Williams on their behalf has put his argument very succinctly. Starting with the second issue he submitted that, as there was a finding that the Rent Control (Lagos) Act (formerly known as the Rent Restriction Act (Cap. 183 of the Laws of the Federation of Nigeria and Lagos 1958)) as amended by the Rent Control (Lagos) Amendment Act 1965 applied to the premises and as this finding had not been appealed against by the defendants, it was necessary to read this in conjunction with the first issue and that as one could not contract out of the rent control legislation, the appropriate legislation must apply and under it the rent was fixed and could not be increased without reference to a Rent Tribunal so that the option in the lease (exhibit 1) must be read subject to that and the law accordingly in fact fixed the rent for the parties automatically so that it was not uncertain. He further submitted that, apart from the finding of the learned trial Judge, there was authority that the rent control legislation must apply by virtue of Kasumu v. Ibironke (1952) 14 W.A.C.A. 189, and Macarthy v. Lemomu & ors. (1966) 2 All N.L.R. 44, which showed the common law position, though having regard to the finding he submitted that did not really arise here. He further relied on s. 19 of the Rent Control (Lagos) Act.

Mr Impey for the respondents for his part conceded that as there was no appeal against the finding of the learned trial Judge that the rent control legislation applied he could not challenge that finding and was bound by it. We think that concession was very properly made and that accordingly it is not necessary to look behind the finding that the appropriate legislation applied or to seek support for it in the cases cited by Chief Williams.

Mr Impey further submitted that, notwithstanding the finding, the first issue must be looked at solely by determining what was the intention of the parties in the lease (exhibit 1) and that there was no evidence on the record that the parties had the rent control legislation in mind when they agreed to the proviso giving the option to renew the lease, and that therefore, on the line of authorities, going back to Rossiter v. Miller (1878) 3 App. Cas. 1124 up to King's Motors (Oxford). Ltd. v. Lax & anor. (1969) 3 All E.R. 665 the parties not having agreed the rent and not having provided how it should be determined by any separate body the court could not make a contract for the parties which they had not made for themselves and thus could not fix the rent. Whilst Mr Impey conceded that the parties could not contract out of the Rent Control legislation, he submitted that as it was not proved to be within their contemplation when making the lease (exhibit 1) it could not be read into that document.

In our view none of the cases cited by learned Counsel for either party covers precisely the situation that we have here, that is to say where there is a statutory requirement that the rent of the premises be in a fixed sum unless recourse be had to a Rent Tribunal to alter it. The parties in fact had here no discretion over what rent could be fixed and whilst we agree with Mr Impey that there is no presumption that the parties know the law as the maxim is the other way round that ignorance of the law is no excuse, nonetheless, not only do the courts lean against holding a clause void for uncertainty if they can avoid doing so (compare Greater London Council v. Connolly (1970) 2 Q.B. 100 at 108 and 110, and Brown v. Gould & ors. (1971) 3 W.L.R. 334 at 338), but it is also axiomatic that the parties are presumed to be intending that their transaction be covered by the law and governed by it. Compare Waugh v. Morris (1873) L.R. 8 Q.B. 202 and Chitty on Contracts Vol. 1 twenty-third Edition page 377 where it is stated-

"But where the contract is not unlawful on its face and is capable of performance in a lawful way and the parties merely contemplate that it will be performed in a particular way which would be unlawful, the parties, through ignorance of the law, failing to appreciate that fact, the contract may be enforced on the ground that there was never a fixed intention to do that which was later discovered to be unlawful and that while the parties 'contemplated' such unlawful act, they did not 'intend' to do it."