IN THE HIGH COURT OF LAGOS STATE
ON MONDAY, THE 14TH DAY OF DECEMBER 1970
DR PHILIP OLATUNDE ROSANWO .................................................... PLAINTIFF
1. GEORGE SARKIS
2. THE ADMINISTRATOR-GENERAL OF LAGOS STATE (EXECUTORS OF THE ESTATE OF THE LATE J.O. SENBANJO)
3. THE LAGOS LIQUOR LICENSING TRIBUNAL
4. THE CHIEF FEDERAL LAND OFFICER ........................................................ DEFENDANTS
BEFORE: Taylor, C.J.
The amended writ filed by the plaintiff in the action read thus, inter alia:-
"The plaintiff's claim against the defendants their agents and/or servants is for (a) an injunction restraining the 1st and 2nd defendants from converting into and using the premises known as 57 Awolowo Road, Ikoyi, South West as a restaurant, hotel, night club or any other type of public house; (b) an order nullifying on the grounds of irregularity the approval given by the 3rd and 4th defendants for the conversion into and using the said premises as restaurant, hotel or night club; and (c) an injunction restraining the 3rd and 4th defendants from renewing the said approval."
At the hearing the plaintiff called witnesses to show, inter alia, that the establishment of a night club in the area amounted to a breach of the covenant contained in the leases in the Building Scheme in the area; that it affected the value of the property in the area and that the noise created thereby was intolerable to peaceful living.
It was common ground that the two premises concerned were part and parcel of a building scheme, and therefore, the main point for decision was the right or rights of the respective parties. Furthermore, it was part and parcel of the plaintiff's case that the approval had been given by the rightful authorities for the conversion of the premises. The plaintiff's complaint was that this approval was irregular.
The main complaint centres around Clause 2(f) which read thus:-"2. The Lessee covenants with the Minister as follows:-
(f) Not to use the building to be erected on the land for any purpose other than as a private dwelling house or such other purpose only as approved by the Chief Federal Land Officer with his consent in writing first had and obtained.
The 1st defendant pleaded that as consent had been obtained for the conversion of the premise to its present state, from the overlord, there had, therefore, been no breach of covenant.
(1) That an overlord in a building scheme may reserve to himself such rights as contained in Clause 2(f) cannot be subject to controversy and an action cannot generally lie after his exercise of such powers of approval.
(2) On the plaintiff's own showing that the consent was given, it was the view of the court that such consent being admittedly given, the plaintiff had no cause of action on the ground of alleged irregularity in the giving of such consent for the conversion of the premises. In fact, the evidence led fell for short of showing irregularity. There was, therefore, no case made out against the defendants in respect of Clause 2(f). Consequently as far as the claim was based on Clause 2(f) it was misconceived on the facts presented.
It must be made clear that this case is to be viewed in the light shed by its own circumstances, facts and admissions. Further, this is not an action in tort, but in contract under a building scheme.
Judgment for the 1st Defendant.
Cases referred to:
Reid v. Bickerstaff 1909 2 ch. 305
Hudson v. Cripps (1896) 1 ch. 265
Johnson v. G. Sarkis LD/523/69
Elliston v. Reacher (1908) 2Ch. 374
Mayner v. Payne (1914) 2 CH. D. 555
Whitehouse v. Hugh 1906 1 CH. 253
Tulles v. Jacson 1892 3 Ch. 442
Scott v. Avery 10 E.R.H.L. 1121
ACTION ON CONTRACT
Mr Akinyede, for the Plaintiffs.
Mr Somefun, for the 1st Defendant.
2nd Defendant in person
3rd and 4th Defendants absent and unrepresented.
Taylor, C.J.:-The original writ filed by the plaintiff makes the following claim in the operative part of the writ:-
"The plaintiff's claim against the defendants their servants and/or agents is for an injunction restraining the defendants from converting into and using premises known as 57 Awolowo Road, Ikoyi, South-West, Lagos, as a restaurant, hotel, night club or any other type of public house in violation of the convents entered into by the first defendant's immediate landlord not to use the building for any purpose other than as a private dwelling house."
At that time, i.e. on the 16th October, 1969, the above 2nd defendant was not a party to the suit and the Lagos City Council was a party. On the 1st day of December, 1969, the plaintiff moved the court for leave to amend the writ and to substitute the present 2nd defendant for the Lagos City Council against whom the action was withdrawn. The order was made as prayed and in accordance with part of the order a new writ was filed which reads thus, inter alia:-
"The plaintiff's claim against the defendants, their agents and/or servants is for (a) an injunction restraining the 1st and 2nd defendants from converting into and using the premises known as 57 Awolowo Road, Ikoyi, South West as a restaurant, hotel, night club or any other type of public house (b) an order nullifying on the grounds of irregularity, the approval given by the 3rd and 4th defendants for the conversion into and using the said premises as restaurant, hotel or night club, and (c) an injunction restraining the 3rd and 4th defendants from renewing the said approval..."
The plaintiff duly filed his statement of claim on the 18th December, 1969, and whilst a defence was filed by the 1st defendant none was filed by the 2nd, 3rd and 4th defendants, and this in spite of an application made in March, 1970, for an extension of time for the 3rd defendant to file their defence out of time, which was granted. I shall have more to say about this laxity a little towards the end of the judgment.
At the hearing of this action the plaintiff called nine witnesses out of whom five including the plaintiff gave evidence which was to show, inter alia, that the establishment of a night club in the area amounted to a breach of the covenant contained in the leases in the Building Scheme in the area; that it affected the value of the property in the area and that the noise created thereby was intolerable to peaceful living. Although these witnesses were cross-examined the defendants failed to give any rebutting evidence on these facts. Evidence was also led and uncontradicted that the cars parked in and around the building in question cause quite a great deal of noise around the early hours of the morning.
The rest of the evidence was of a technical nature. Mr Alan Vaughan Richards, the 2nd plaintiff witness, prepared the building plan for the premises when it was a residential building. He also was in a way consulted by the 1st defendant when the latter sought to convert the premises to the state complained of. It was, however, the evidence of this witness that any building could be converted for other purposes than a residential building when originally erected for the latter purpose. I must state right here that I was not impressed by the evidence of Mr Obembe who would have me believe that the entertainment of one hundred or may be more guests every night would render that building a source of danger to other buildings around it.
That the conversion, against which complaint is made, as taken place is common ground and the first part of the claim seeking an order restraining the conversion was not pursued. Learned Counsel for the plaintiff, however, pressed the claim for an injunction to restrain the user of the premises in the manner stated in the writ.
Mr Esan for the plaintiff built his case around the existence of a building scheme in and around the area in dispute and the rights vested in his client as an owner of property in the area to see to the enforcement of the covenants contained in their respective agreements. It is pleaded in paragraph 3 of the statement of claim that:-
3. "The South-West Ikoyi Residential Area is a building scheme made by the Federal Government of Nigeria wherein the plots were leased to different lessees for building purposes." and in paragraph 5, 7 and 8 that:-
5. "By an Instrument of Lease dated the 27th February, 1962, one Jacob Olaitan Senbanjo (deceased) became the Lessee of plot 534 (Now 57 Awolowo Road) Ikoyi South-West and erected a building thereon."
7. "Both the lessees of plot 565 (i.e., 34 Norman Williams Street) and plot 534 (i.e., 57 Awolowo Road) entered into certain identical restrictive covenants."
8. "The lessees of all other plots under the building scheme entered into the same restrictive covenants."
These paragraphs of the Statement of Claim are admitted by paragraph 3 of the Statement of Defence of the 1st defendant. The other defendants having filed no must also be taken as having admitted these facts. It being, therefore, common ground that the two premises concerned, i.e. the one owned by the plaintiff and the one tenanted by the 1st defendant being part and parcel of a Building Scheme, the main point for decision is the right or rights of the respective parties. In coming to this decision and in view of the wording of the writ of summons and certain paragraphs of the Statement of Claim such as 23, 24, 26, 27 and 30, I must hold that it is part and parcel of the plaintiff's case that approval has been given by the rightful authorities for the conversion of the premises, and this notwithstanding paragraph 29 of the Statement of Claim. The plaintiff's complaint is that this approval is irregular and wrongful.
Mr Esan for the plaintiff drew my attention to the case of Reid v. Bickerstaff 1909 2 CH. 305 but that case merely goes to establish the requisites of a building scheme a matter which the parties have here admitted and, therefore, need no further proof.
A case more to the point, though even here the facts related to flats and not separate and detached buildings such as we have in the suit before me, is that of Hudson v. Cripps 1896 1 CH.265 referred to by Mr Esan for the plaintiff. Mr Justice North said at pages 268 and 269 that:-
"No one can read those provisions without seeing that there was a scheme for the general management of this building, composed of several flats, in such a way as to be suitable to the convenience of all the persons who would be tenants of the respective flats. It would be idle to suppose that these requirements were made except for the purpose of the convenience of all the tenants; and where the landlord enters into such an arrangement with each tenant it is obviously intended to be and is, as a matter of fact, for the benefit of all the tenants...
"Under these circumstances, what is proposed is really to convert this building, consisting of private residences and flats, one of them occupied by the lady who is the plaintiff in the action, into a large club to be occupied by members day and night. This lady's residence, instead of being private, is to be an isolated residence in the middle of, and surrounded by a building occupied by what is intended to be a fashionable club. I think that is such a departure from the arrangement made with the landlord by the agreement that she is entitled to have an injunction to restrain that."
Now what are the covenants complained of in the case before me? They are Clauses 2(d) (f) (g) and (h) as set out in paragraphs 9, 11, 14 and 16 respectively, of the Statement of Claim, each of which is admitted in the only defence filed by the 1st defendant. The main complaint, however, centres around Clauses 2(f) and it is with that I propose to deal first though to emphasise one or two points in connection with the object of Clause 2(f) reference may have to be made to other Clauses. Before, however, I proceed to deal with Clause 2(f) I would like to point out that for some reason or other this Clause unlike Clauses 2(g) (h) and (i) does not contain the additional proviso that the lessee shall...
"accept as final the decision of the Minister on any question which may arise concerning the interpretation or any alleged breach of this covenant."
Should it be found necessary to deal with the effect of this provision I shall turn my attention to it after concluding on Clause 2(f). That Clause reads thus:-
"2. The Lessee covenants with the Minister as follows:-
(f) Not to use the buildings to be erected on the land for any purpose other than as a private dwelling house or such other purpose only as approved by the Chief Federal Land Officer with his consent in writing first had obtained.'
I have made reference to the authorities to which Mr Esan for the plaintiff drew my attention. Neither Mr Somefun for the 1st defendant nor learned Counsel for the 2nd to 4th defendants drew my attention to any authorities on the effects of covenants of this nature in a Building Scheme. Perhaps I should mention that Mr Somefun did make mention of a decision I gave in A.A. Johnson v. G. Sarkis LD/523/69 and he went on to urge that the Building Scheme in the case under consideration was a qualified one and, therefore, different from those of which mention was made by Mr Esan. I need say no more as far as Suit No. LD/523/69 is concerned than that there has been no hearing of this Suit but a ruling was delivered on an interim application for an injunction and finally during the argument on the motion on the 13th October, 1969, and other subsequent hearings I removed the restraint previously put on the premises, preferring to expedite the hearing.
Coming back then to the case before me and both parties having agreed or at least not having contested the issue as to the establishment of a Building Scheme it seems to me and I hope to anyone reading the covenants contained in exhibits A and C that the main object of the covenants was in the words of North, J., in Hudson v. Cripps 'for the purpose of the convenience of all the tenants'' and 'for the benefit of all the tenants.' Let me as an example of this make reference to the words used in Clauses (g) and (h).
Clause (g) reads, inter alia, as follows:-
"Not to permit anything to be used or done upon any part of the demised premises which shall be noxious noisy or offensive or be any inconvenience or annoyance to the tenants or occupiers of premises adjoining or near thereto"
and Clause (h):-
"That the occupier of the land demised will maintain standards of decoration and accommodation and sanitary and living conditions conformable with standards obtaining in the neighbourhood the standards of a high class residential area."
I have italicised the words which emphasise the point to which I have just made reference. Though the case of Hudson v. Cripps dealt with flats, the position is no different where separate detached houses are concerned provided there is a Building Scheme imposed for the benefit and convenience of the tenants.
In the case of Elliston v. Reacher 1908 2 Ch. 374 Parker, J., (as he then was) considered the question of whether or not the plaintiff could enforce the restrictive covenants and held that in order to do so four things must be established to wit:-
(1) That both the plaintiffs and defendants derive title under a common vendor.
(2) That previously to selling the lands to which the plaintiffs and defendants, are respectively entitled the vendor laid out his estate, or a defined portion thereof (including the lands purchased by the plaintiffs and defendants respectively) for sale in lots subject to restrictions intended to be imposed on all the lots, and which, though varying in details as to particular lot, are consistent and consistent only with some general scheme of development.
(3) That those restrictions were intended by the common vendor to be and were for the benefit of the lots intended to be sold, whether or not they were also intended to be and we the benefit of other land retained by the vendor; and
(4) That both the plaintiffs and the defendants or their predecessors in title, purchased their lots from the common vendor upon the footing that the restrictions subject to which the purchases were made were to ensure for the benefit of the other lots included in the general scheme whether or not they were also to ensure for the benefit of other lands retained by the vendors.'
When one looks at the Statement of Defence filed quite apart from paragraph (a) which is no longer controversial, paragraph 5 which avers that the action is one which can only be pursued by the Attorney-General of Lagos State was not pursued and, on the authorities, is certainly without substance. The other paragraphs of the Defence plead that the 1st defendant has taken the necessary measures to safeguard the interests of the neighbours (vide paragraph 6), and 7 to 11 plead that consent having been obtained for the conversion of the premises to its present state, from the overlord, there has, therefore, been no breach of covenant. That was why Mr Somefun, learned Counsel for the 1st defendant stressed that this was a "building scheme with a difference"-that difference being that permission can be obtained from the overlord, in effect, to a breach of a Clause in the agreement.
My attention was not directed by learned Counsel on either side to this all important question and really the only controversial issue in the case, for, taking it for granted as admitted, that a Building Scheme existed as outlined in Elliston v. Reacher, and bearing in mind the wording of the writ which seeks, inter alia, "an order nullifying on the grounds of irregularity, the approval given by the 3rd and 4th defendants for the conversion into and using the said premises as restaurant, etc.," all we are really here concerned with is whether an injunction can or should be granted on the evidence before me.
That an overlord in a building scheme may reserve to himself such rights as contained in Clause 2(f) cannot be subject to controversy and whether an action will lie after his exercise of such powers of approval or dispensing powers as Parker, J., calls it in Elliston v. Reacher, is amply dealt with in the case of Mayner v. Payner 1914 2 CH.D.555. The head note reads, inter alia, that:-
"W., the owner of an estate, laid it out for building subject to seventeen stipulations, of which the eighth provided that the houses to be erected on the estate should be of uniform elevation in accordance with drawings to be approved by 'the vendor's' surveyor; the eleventh provided that no trade or business of any kind should be carried on upon any lot except those marked 'shop lots', and the sixteenth reserved to 'the vendor' the right of allowing a departure from the stipulations in any one or more cases."
Neville, J., in his judgment at pages 564-565 described the provisions in a Building Scheme as a sort of "local law":-
"...a local law imposed by the vendor upon the holders of the land who have taken the land with notice of the existence of the local law. It is a law by which the land is bound and the rights of the landowners inter se are equal.
The learned Judge then says with regard to the sixteenth stipulation to which I have already made reference that:-
"It seems to me that it is merely a covenant to obey the law of the locality as it stood, and when we examine what that law was we find it was a law which could be varied at the option of Mr Webb, the original vendor, who reserved by the sixteenth condition the right of allowing a departure from the stipulations in any one or more cases. I think, therefore, that in this case there has been no breach of the covenant, and consequently the question of the right of the plaintiff to sue the present defendants does not arise. Whether or not under other circumstances he might not be entitled to sue is a matter which does not arise."
There was no breach because "W" the owner of the estate released the lot conveyed in a Deed of 1920 from compliance with the eighth stipulation and gave liberty to build on it as if it were a "shop lot". The same view was taken by Kekewich, J., in Whitehouse v. Hugh 1906 1 CH. 253 at 262 and affirmed by Vaughan Williams, L.J., in 1906 2 CH.283 at 286. The Learned Judge of first instance said, inter alia, that:-
"I fail to see how the plaintiff can say that, because this road is made up as a road for all practical purposes, therefore, it cannot be altered. If condition 9 means anything, it must mean that the vendors can, at their own pleasure, allow a variation of the scheme of the building."
On the plaintiff's own showing that consent was given, it is my considered view that such consent being admittedly given, the plaintiff has no cause of action on the ground of alleged irregularity in the giving of such consent for the conversion of the premises. In fact, the evidence led fell far short of showing irregularity, and in such cases in which irregularity is alleged, I am not at all sure that the remedy for impugning and setting aside such consent is by the ordinary process of writ as was issued in this case. That, however, is by the way and is not relevant to the decision I have already reached as to the position with relation to Clause 2 (f).
There was, therefore, no case made out against the defendants in respect of that Clause. As for Clauses 2(g) and (h) evidence has been led of the noise that is caused by the accumulation of vehicles parked around the premises, and in some cases, in front of the premises belonging to the neighbours and to their annoyance. Evidence was also led of offensive aroma coming from the premises and finally evidence was led amounting to a blockage of the right to light of plaintiff. This latter piece of evidence also puts in issue the question of a breach of some unspecified building regulation. The defendants did not lead evidence to controvert these points.
One question that arises is whether a Court can grant the injunction sought in an action of this nature, when the matter complained of, i.e., the conversion of the premises, has admittedly been approved by the approving authority? The other question is whether, again on the admitted evidence of the plaintiff that he has not taken the matter complained of the 'Minister' for the latter's decision, the plaintiff's entitled to seek the remedy contained in his writ?
I am of the view that the latter question is the dominant one and should be taken first. In short then do the words, '...and to accept as final the decision of the Minister on any question which may arise concerning the interpretation or any alleged breach this covenant.'
as it were put "Paid" to the plaintiff's action? Whilst it is an accepted principle of law that no one can by contract agree to oust the jurisdiction of the courts, yet, as stated in the 3rd-edition of Vol. 8 of Halsbury's Law of England at page 138:-
"...there is nothing to prevent the parties from agreeing that no right of action shall accrue until a third person has decided on any difference that may arise between them, and this may be made to apply not only to the question of the amount that is due, but to the question whether any liability has been incurred."
In a case which involved a building contract, where the parties agreed that the "awards of the arbitrator shall be final and binding, and shall not be set aside or attempted to be set aside on any ground, or for any reason, or for any pretence, suggestion charge, or insinuation of fraud, etc.", Chitty, J., held in Tulles v. Jacson 1892 3 CH.441 at 44 that:-
"It is, of course, for the contractor when he enters into a contract of this kind to consider whether he will accept it or not. I have no doubt that contractors do accept Clauses which to the lawyer look terrific; but they do it as businessmen, they do it for better or worse, and they think on the whole it is very unlikely that any arbiter selected would act unjustly towards them, and they are content to take him as the person whose award is to be final on the subject. Then it appears to me that the policy of the law does not require that I should hold, in the case I am dealing with, a Clause like the present to be void."
There is also the House of Lords case of Scott v. Avery 10 E.R.H.L. 1121 where the Lord Chancellor said at page 1136 that:-
"If I covenant with "A" to do particular acts, and it is also covenanted between us that any question that may arise as to the breach of the covenants shall be referred to arbitration, that latter covenant does not prevent the covenantee from bringing an action. A right of action has accrued and it would be against the policy of the law to give effect to an agreement that such a right should not be enforced through the medium of the ordinary tribunals.
But if I covenant with A.B. that if I do or omit to do a certain act, then I will pay to him such a sum as J.S. should award as the amount of damage sustained by him, then until J.S. has made his award, and I have omitted to pay the sum awarded, my covenant has not been broken, and no right of action has arisen. The policy of the law does not prevent parties from so contracting.'
Here, the parties have contracted that, in effect, (1) any matter concerning any alleged breach of certain covenants, not all, shall be referred to the "Minister", and (2) the parties have contracted to accept his decision as final.
Learned Counsel for the parties have not addressed me on this legal point and I am prepared to hear them if they feel that any useful purpose will be served by doing so in this case. They may feel they are in a position to persuade me that this agreement to submit questions to the "Minister" is not a condition precedent to the bringing of the action in respect of those Clauses. If on that ground the action is premature as far as those Clauses are concerned then there is no need for me to go further and decide whether the agreement as to the finality of the decision amounts to an ouster of the jurisdiction of the courts.
I want to make it clear that this case is to be viewed in the peculiar light shed by its own circumstances, facts and admissions. Further this is not an action in tort, but in contract under a building scheme.
This is, I think, a convenient stage to make mention of the failure of learned Counsel representing the Chief Federal Land Officer, the Lagos Licensing Tribunal, and the Administrator-General of Lagos State to file pleadings for those three defendants in an important action of this nature. I consider their action in no other light than that of gross neglect.
On the 15th December, 1969, when pleadings were ordered, though the 2nd defendant, i.e., the Chief Federal Land Officer was served, he neither appeared, nor was he represented by learned Counsel. The third and fourth defendants who were the Lagos City Council, and the Lagos Licensing Tribunal, appeared through Mrs Akinrele. In addition to Pleadings being ordered, the Administrator-General was joined and the Lagos City Council was dismissed from the suit.
The Statement of Claim was duly filed and served on the defendants. On the 4th March, 1970, a Mr F.O. Oshodi, learned Counsel moved the court for leave to file a defence for the Lagos Liquor Licensing Tribunal out of time and advanced as the reasons for being out of time the following:-
"That the statement of defence has still not been filed because it is being considered whether the case should not be handled by a State Counsel since the Lagos Liquor Licensing Tribunal is a State Board."
This deplorable state of affairs continued as Mrs Akinrele who appeared at the hearing made me to understand, up to November when the case was concluded. No application was, however, made by the Chief Federal Land Officer and the Administrator-General for an extension of time to file a defence.
These three defendants are State Departments or State Officers, and it seems to me a not very complimentary or satisfactory state of affairs for such patent laxity to be found in the State department representing them. I might mention in passing that the same position exists in LD/523/69, in which the statement of claim was filed as far back as the 20th November, 1969, and up till today no defence has been filed, not even by the first defendant. The case is set down for hearing on the 12th and 14th of next month.
I will say no more than that it is as well that this is not an action in Tort claiming damages, where if the plaintiff were successful, public funds would be utilised in satisfying the judgment debt.
I, therefore, hold that as far as the claim is based on Clause 2(f) it is misconceived on the facts presented. On the claim based on Clauses 2(g) and 2(f) I am of the view that it is premature, but I am prepared to hear the parties before making it a part of my judgment should they wish to address me on that point. It may very well be that they may prefer to raise the issue in one of the subsequent cases.
I shall also hear the parties on costs. I do not intend to award any costs to the 2nd, 3rd and 4th defendants.
Mr Akinyede, for Plaintiffs.
Mr Somefun, for 1st Defendant.
2nd Defendant in person.
3rd and 4th Defendants absent and unrepresented.
Mr Somefun: I ask for 200 gns. costs.
Mr Akinyede: I do not think it is necessary to address on the point on which the court wishes to hear the parties.
Mr Somefun: I am of the view that the action is premature.
Mr Akinyede: On costs: Account should be taken of the technical nature of the case. We have spent money on briefing Counsel.
Court: Costs assessed in favour of the 1st defendant in the sum of 100 guineas inclusive.
Judgment for the 1st Defendant.