OLUSEYI JOHNSON, WALTER BABATUNDE DAWODU
(As Joint Liquidators of the Merchant Band Limited in voluntary liquidation (PLAINTIFFS)
ARBUCKLE SMITH & CO LIMITED (DEFENDANTS)
(1964) All N.L.R. 585
Division: High Court, Lagos
Date of Judgment: 7th December, 1964
Case Number: LD/248/60
Before: Taylor, C.J.
The plaintiff bank, in voluntary liquidation, sued the defendant company through its joint liquidators claiming (I) Possession of the property known as 11 Custom Street, Lagos (2) £3,827. 0. 4d. as special damages or alternatively as mesne profits for the period 30th June, 1954 till possession is given, and (3) Specific Performance of the agreement of 30th June, 1954.
It was alleged in the Statement of Claim that the plaintiff took a lease of the premises for a period of 25 years from 1st January 1954, from the defendant company; two years rent amounting to £3,300 was paid to the defendants; subsequently, the parties agreed that the plaintiffs should surrender the premises to the defendants for a period of 10 years out of the original term of 25 years granted in consideration of the payment, by the defendants, of the sum of £3,827. 0. 4d representing the two years rent already paid in advance, by the plaintiffs, plus 10% interest thereon.
At the trial, the defendant company failed to put in appearance to defend the action; the agreement giving rise to the action was found to be unexecuted by the defendants; the plaintiffs alleged that after the agreement was made one Chief Osoba, who was the Managing Director of both the bank and the defendant company and who represented the defendant company during the negotiations, promised to see to its execution by the defendant company, but never did so in fact; the Statement of Defence failed to show any specific defence to the allegations contained in the Statement of Claim except making a general denial of the claim. The question is whether the plaintiff is entitled to the benefit of the unexecuted agreement.
(1) Where the facts alleged by the Statement of Claim are matters within the defendant's knowledge, the court ought to accept the evidence adduced by the plaintiff in support of the facts if the defendant fails to deal specifically therewith, either admitting or denying the truth of each allegation of fact seriatim, since the truth or falsehood of each is within his knowledge.
(2) Having accepted the evidence adduced by the plaintiff Bank, I find that the defendant company have not paid the sum of £3,827. 0. 4d being the consideration for the surrender by the plaintiffs to them of 10 years running from 1st January, 1954 to 31st December, 1963. I therefore give judgment for the plaintiff Bank accordingly.
Laws referred to:-
High Court (Civil Procedure) Rules, Order XXXII, rules 10, 11, 12, 13.
Taylor, C.J. of Lagos:-The plaintiff bank, in voluntary liquidation, sued the defendant company through its Joint Liquidators claiming the following relief:-
1. Possession of the property known as 11 Custom Street, Lagos.
2. £3,827. 0. 4d. as special damages or alternatively as mesne profits for the period 30th June, 1954 till possession is given,
3. Specific Performance of the agreement of the 30th June, 1954.
On the 25th November, 1964, the plaintiffs led evidence in proof of their case which evidence was uncontradicted for the defendants, though served on the 6th instant with notice to appear, and failed to put in an appearance. This is not surprising in view of the defence filed to which I shall later make reference.
The evidence for the plaintiff Bank was to the effect that by virtue of exhibit "A" they took a lease of the premises known as 11 Custom Street, Lagos from the defendant company for a period of 25 years with an option of renewal for another period of 25 years, as from the 1st day of January 1954. In accordance with the said agreement two years rent was paid in advance covering a period up to and inclusive of December 1955. This sum amounted to £3,300. 0. 0d. The plaintiff further gave evidence that by virtue of exhibit "B" another agreement was entered into between the parties aforesaid, though later discovered not to have been executed by the defendant company. By this agreement the plaintiff bank agreed to surrender to the defendant company a period of 10 years out of the original term of 25 years granted to it in consideration of the sum of £3,827. 0. 4d. which is said to be "Two years rent in advance paid by the said Merchant's Bank Limited with 10% interest thereon... "This sum, the plaintiffs say has not been paid though demand has been made for it. One Chief P.J. Osoba is said to have been, during the relevant period, the Managing Director of both the bank and the defendant company. It is also alleged that these negotiations were conducted mainly with him on behalf of the defendant company though he also acted as Managing Director of the plaintiff bank during the negotiations. It is by virtue of this dual capacity that he was in possession of exhibit "B" and though he promised to see to its execution by the defendant company he never in fact did so.
I accept the unchallenged evidence adduced in favour of the plaintiff Bank and only point that has given me some anxious moments is the relief to which the plaintiff Bank is entitled. Apart from the fact that there was no appearance put in by the defendant company, the Statement of Defence filed does not really show any specific defence, and it offends against Order XXXII, rules 10 to 13 of the Rules of Court. Rule 10 provides that:-
"It shall not be sufficient to deny generally the facts alleged by the Statement of Claim, but the defendant must deal specifically therewith, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within his knowledge, or (as the case may be) stating that he does not know whether such allegation or allegations is or are true or otherwise."
Whether the defendants have in fact paid this sum of £3,827. 0. 4d. or whether they have been in possession of the property since June 1954 and have been collecting rents in respect thereof are matters within the defendants' knowledge, and yet we find paragraph 7 denied and the plaintiff put to the strict proof. In this respect I would quote rule 11 which provides that:-
"When a party denies an allegation of fact he must not do so evasively, but answer the point of substance. And when a matter of fact is alleged with divers circumstances it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given."
Having accepted the evidence adduced by the plaintiff bank I find that the defendant Company have not paid the sum of £3,827. 0. 4d. being the consideration for the surrender by the plaintiff bank to them of a period of 10 years running from the 1st January, 1954 to the 31st December, 1963. I therefore give judgment for the plaintiff bank for this sum of £3,827. 0. 4d.
As to the claim for possession, the surrender is at an end, and exhibit "A" is now the pertinent deed establishing the relationship of landlord and tenant between the defendant and plaintiff respectively. On the evidence before me and the absence of any defence on this point I do order that the defendant company do give up possession to the plaintiff bank forthwith. Perhaps I should mention in passing that the plaintiff's rent has been due and payable since January 1964 and secondly there is no provision in exhibit "A" dealing with the position of the parties if one or other goes into liquidation. I say no more on these points because they have not been raised.
The third claim for specific performance has been overtaken by effluxion of time and I dismiss it.
The plaintiff bank is entitled to costs which I assess at 30 guineas plus out of pocket expenses of £37. 16. 4d. making a total of £69. 6. 4d.