➥ CASE SUMMARY OF:
Teju Investment and Property Company Limited v. Alhaja Moji Subair (CA/L/149/15, 27 January 2016)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Award of judgement in foreign currencies;
Decimal currency Act;
➥ CASE FACT/HISTORY
The Respondent is the beneficial owner of the property lying and situate at No. 29 Taiwo Street, Lagos Island and covered by a Land Certificate with Title No. 0591 dated 19th February, 1951. The Respondent’s father, Pa Solomon Oshomoyo, had previously granted a Lease of the property to one Kamil Ismail in 1953 for a term of 70 years certain commencing from 1st April, 1953 and ending on 31st March, 2013, at an annual rent of 350 Pounds Sterling for the first 25 years and 450 Pounds Sterling for the remaining 45 years. Kamil transferred the Lease to VYB Company, which also transferred the Lease to Alberto Jose Miseri and Co. Subsequently, Alberto Jose also transferred the Lease to the Appellant. Pa Oshomoye died in 1997, and the last rent paid by the Appellant expired in December, 1999. The Appellant thereafter defaulted in paying rent. The Respondent commenced eviction processes against the Appellant through her Solicitors by a letter dated 9th November, 2010. As a result, by a letter dated 16th March, 2011, the Appellant forwarded cheques to the Respondent’s Solicitors which were said to represent payment for all outstanding rents, as well as payment in advance for the un-expired residue of the Lease in Naira. However, by a letter dated 8th April, 2011, the Respondent’s Solicitors rejected the money and returned all the cheques. The Respondent followed this up by filing an action before the Lower Court seeking payment of the arrears of rent, mesne profits and possession of premises.
This is an Appeal against the Judgment of the Lagos State High Court (hereinafter referred to as the Lower Court) delivered on 23rd December, 2014 in Suit No.LD/1641/2011. Therein, the Lower Court entered Judgment for the Plaintiff (hereinafter referred to as the Respondent) and against the Defendant (hereinafter referred to as the Appellant) for arrears of rent in the sum of 6,750 Pounds Sterling plus cost of ₦200,000.00 in respect of the property lying and situate at No. 29 Taiwo Street, Central Lagos, Lagos Island.
The Respondent had filed an action seeking three reliefs as per her Statement of Claim, dated and filed on 09-09-11, as follows: ‘(a) Possession of the premises known as 29 Taiwo Street, Central Lagos, Lagos Island in that the Defendant has flagrantly and unconscionably breached its sacred covenant of rent payment. (b) Arrears of rent in the sum of 1125 pounds sterling per month from April, 2000 till possession is given up by the Defendant. (c) Mesne profit in the sum of 500 pounds sterling per month from April, 2000 until possession is given up by the Defendant. (d) Cost of this action.’
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. What effect, if any, does the Decimal Currency Act, Cap 2, Laws of the Federation, 20O4, have on the mode of payment of the rent as fixed in the Deed of lease dated 10th day of April, 1953?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE DECIMAL CURRENCY ACT DOES NOT CHANGE THE MODE OF PAYMENT FROM POUNDS TO NAIRA
‘Section 1(2) of the Decimal Currency Act, Cap D2 Laws of the Federation of Nigeria, 2004 provides as follows: “1(2) Every contract, sale, payment, bill, note, instrument and security for money and every transaction, dealing, matter and thing whatsoever relating to money or involving the payment of or the liability to pay any money which, but for this subsection, would have been deemed to be made, executed, entered into, done and had, in and in relation to Nigerian Pounds shall in Nigeria be deemed instead to be made, executed, entered into done and had, in and in relation to naira on the basis that one Nigerian Pound equals two naira.”
Applying the Golden/literal rule of interpretation, it is plain as light is to day that the provision relates only to contracts et al entered into “in relation to Nigerian Pounds”. No other construction can be given to this provision without doing violence to it and to the spirit and intendment of the Law. It would certainly be stretching it too far and out of the bounds of the Law to suggest that parties to a contract had no freedom and latitude to decide for themselves the terms of their contracts, which could include the terms and manner of payment. It is certainly not the intention of the Lawmaker to constrain and constrict parties into a straitjacket when contracting with each other. It is incontrovertible that the Decimal Currency Act (supra) came into force for the purpose of establishing a decimal currency for Nigeria. That having been said, in cases where parties, of their own free-will, decide and agree that the currency of their contract shall be in Pounds Sterling, or for that matter, US Dollars, Euro, Francs, Riyadh, Shillings, or the like, Section 1(2) of the Decimal Currency Act does not operate to limit, restrict or hinder them from doing so. The extent of the application of this provision is that, all transactions and contracts entered into before the coming into operation of the Act in “Nigerian pounds”, shall be deemed to have been done in relation to the Naira. This was clearly in order to facilitate the smooth change-over of the legal tender in Nigeria from the Nigerian Pounds to the Naira. The learned Trial Judge was therefore quite right when she found as she did that the provision was exclusively limited and confined to transactions made in relation to Nigerian Pounds. This is more so as, in the interpretation of statutes, it is a cardinal principle of law that the express mention of one thing excludes the other.’
‘Thus, the intention of the parties to the contract as to the currency to be used in the payment of rent was expressed in words, and this intention must determine the execution of contract. Where the intention of parties to a contract are clearly expressed in a document, the Court cannot go outside the document in search of other documents not forming part of the intention of the parties. In this case, Exhibit 10 clearly provided for the terms of the contract between the parties, and the Lower Court was right not to have gone outside the contract in search of more palatable terms for one of the parties to the detriment of the other party. The Court is bound to interpret the contract as per the terms agreed upon therein.’]
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↪️ II. Does the burden of proving currency of payment post-Decimal Currency Act lie on the Appellant or Respondent in view of the fact that the legal tender in Nigeria is the Naira?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE EVIDENTIAL BURDEN WAS ON THE APPELLANT
‘From the facts of this case as disclosed in the evidence adduced, in the Exhibit C9, a letter from A. A. Tejuoso and Co, Solicitors to the Appellant, dated 16th March, 2011 and addressed to the Solicitors to the Respondent, the Appellant alleged that in 1978, the ground rent was increased to ₦900.00 by an instrument in writing dated 12th May, 1977 which took effect from 1st April, 1978, between S.O. Shomoye and the Appellant, for the remaining 45 years of the agreement. It also stated therein that the Appellant had paid the ground rent regularly as was evidenced by photocopies of cheques and correspondences, such as a Union Bank of Nigeria cheque number 92055 dated 21st October, 1998. (See Pages 60-61 of the Record). In the face of the abundant evidence already adduced by the Claimant, the Defendant had a duty to adduce rebuttal the evidence, the onus of proof having shifted to it. Thus, the Appellant’s Solicitors, having made these assertions in the Exhibit C9, (a letter to the Claimant’s Solicitors), it was incumbent on the Appellant to have adduced evidence in proof of same in order to prove that after the Lease Agreement of 1953, a fresh Agreement was entered into between it and the Respondent’s father, S. O. Shomoye, via another instrument, to effect payment of rent from 1987, not in Pounds Sterling (as was the stipulation in the Lease Agreement), but in Naira, and that such payments were subsequently made accordingly. Surprisingly however, no scintilla of evidence was adduced by the Appellant in this regard, notwithstanding that an instrument and cheques were claimed to be in existence to prove this. It is in consequence of this failure to adduce rebuttal evidence that the Lower Court found that the Appellant had failed to discharge the burden of proof on it to prove its assertion that, previous to 1999, it had made payments in Naira in line with his new agreement with the Respondent’s father, Pa Shomoye. It is therefore misleading for the Appellant to canvass that the burden of proof was in respect of any other issue, as he has sought to do in his Brief of argument. The position of the law is as stated eloquently by the learned trial Judge and it was properly applied. Thus, I have no reason to disturb her findings thereon.’
‘Besides which, it is now firmly settled that documentary evidence is the best evidence. It is the best proof of the contents of such a document, and no oral evidence will be allowed to discredit or contradict the contents thereof, except where fraud is pleaded. See: AG Bendel State v. UBA Ltd (1986) 4 NWLR (Pt.337) 547 at 563. Thus, the Appellant, having claimed in a document emanating from it that there was in existence a subsequent instrument varying the mode of payment of the Lease, as well as cheques to prove previous payments for the Lease in Naira, it is only those documents, and not oral evidence, that is acceptable in proof of those assertions. Having failed to produce the touted documents in evidence, the Appellant failed to discharge the onus placed on it by the operation of law, and the learned trial Judge was entitled to find as she did.’]
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.
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✓ DECISION:
‘In the result, having resolved both issues in favour of the Respondent, the Appeal is glaringly bereft of merit. It fails and is dismissed.
Accordingly, the Judgment of the High Court of Lagos State in Suit No.LD/1641/2011, delivered on 23rd December, 2014, granting the Respondent’s claim in the sum of 6,750 Pounds Sterling, plus the sum of ₦200,000.00 as costs, is affirmed.
I award costs in the sum of ₦50,000.00 in favour of the Respondent.’
➥ FURTHER DICTA:
⦿ TERMS OF CONTRACT OF PARTIES MUST BE RESPECTED
In addition, it is trite law that where parties enter into a contract, they are bound by the terms and conditions of the Lease Agreement they signed, and cannot operate outside its terms and conditions. The Court will also not permit to be read into such contract, terms on which there is no agreement. A Court of law must always respect the sanctity of the agreement of the parties. The role of the Court is to pronounce on the wishes of the parties and not to make a contract for them or to re-write the one they have already made for themselves. The express intention of the parties as contained in the Deed of Lease, Exhibit C10, must be maintained. Where parties have used clear and unambiguous words, such words must be given their plain interpretation. See: Baliol Nig. Ltd v. Navcon Nig. Ltd (2010) LPELR-717(SC) 1 at 18; Alade v. Alic (2010) LPELR-399(SC) 1 at 38; JFS Investment Ltd v. Brawal Line Ltd (2010) LPELR-1610(SC) 1 at 38; Isheno v. Julius Berger Nig. Plc (2008) LPELR-154(SC) 1 at 35; SE Co. Ltd v. NBC (2006) 17 NWLR (Pt.978) 201; Sona Breweries Plc v. Peters (2005) 1 NWLR (Pt.908) 478; Owoniboys Technical Services Ltd v. UBN Ltd (2003) 15 NWLR (Pt.844) 545; Chime v. Ude (1996) 7 NWLR (Pt.461) 379; and Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt.117). — J.H. Sankey JCA.
⦿ A CONTRACT IN WRITING CAN ONLY BE VARIED BY WRITING
The law is that a contract which has been reduced into writing can only be varied by an agreement in writing. In other words, where a contract is in writing, any agreement which seeks to vary the original agreement must itself be in writing. See: Baliol Nig. Ltd v. Navcon Nig. Ltd (supra) at 10; Bjou Nig. Ltd v. Osidoroewo (1992) 6 NWLR (Pt. 249) 463 at 469; John Holt Ltd v. Stephen Lafe (1938) 15 NLR 14; and Morris v. Baron and Co. (1918) AC 1 at 39. — J.H. Sankey JCA.
⦿ PAROL EVIDENCE CANNOT ALTER WRITTEN DOCUMENT
Indeed, the law is also trite that where a document is clear and unambiguous, parole evidence cannot be led to contradict it. In other words, extrinsic evidence is basically inadmissible to add to or alter the contents of a document. See: NEPA v. Elfandi (1985) 3 NWLR (Pt.32) 884; Royal Exchange Nig. Ltd v. Aswani Textile Industries Ltd (1991) 2 NWLR (Pt.176) 639 at 765. Clearly, the finding of the Lower Court is borne out from the Records, as the Court was not entitled to act on oral evidence given by the sole witness of the Appellant to vary or contradict the express stipulations in the written agreement. — J.H. Sankey JCA.
⦿ PACTA SUNT SERVANDA
The legal maxim is Pacta sunt servanda, which means contracts are to be kept. Or an even better and more incisive maxim is, Pacta convent quae neque contro leges neque dolo malo inita sunt omni modo observando sunt, meaning – agreements which are neither contrary to the law nor fraudulently entered into, should be adhered to in every manner and in every detail. See Sonnar (Nigera) Ltd v. Partenreedri M.S. Nordwind Owners of the Ship M. v. Nordwind (1987) LPELR-3494 (SC) 1 at 44 per Oputa, JSC … A party cannot ordinarily resile from a contract or agreement just because he later found that the terms of the contract or agreement are not favourable to him. This is the whole doctrine of the sanctity of contract or agreement. The Court is therefore bound to properly construe the terms of the contract or agreement in the event of an action arising therefrom. See Arjay Ltd v. Airline management Support Ltd (2003) LPELR-555(SC) 1 at 67; and Nneji v. Zakhem Con. (Nig.) Ltd (2006) LPELR-2059 (SC) 1 at 27. — J.H. Sankey JCA.
⦿ OUR COURTS HAVE POWER TO AWARD JUDGEMENTS IN FOREIGN CURRENCIES
On the issue canvassed that it is illegal to enter into contracts where the currency of the transaction is stipulated to be in foreign currency, Counsel has not cited any authority for this, neither have I come across any authority for this submission. Instead, authorities, even from the highest Court in the land, say that this is certainly not the law. A few instances will suffice. In the case of Koya v. UBA Ltd (1997) LPELR-1711(SC) 1 at 67, Iguh, JSC, put paid to any doubts on the issue when he stated unequivocally as follows: “In view, however, of the prominence the issue received in the Judgment of the Court below, I need to draw attention to the decision of this Court in Broadline Enterprises Ltd v. Montery Maritime Corporation (1995) 9 NWLR (pt. 477) 1 in which it was pointed out that our Courts, in appropriate cases, have the power and jurisdiction to enter judgment in the foreign currency claimed depending entirely on the particular facts and circumstances of a case, where, for instance, the currency of a contract made, executed and enforceable in Nigeria is in foreign currency, our Courts of competent jurisdiction would, in my opinion, have power to enter judgment in foreign currency…The underlining principle is said to involve, and I agree entirely with this, that it is the duty of a debtor to pay his debt to the creditor in the currency of the contract according to its clear terms, Besides, it does not seem to me open to question that our Courts have ample power, again in appropriate cases, to order specific performance of a contract to pay in a stipulated or named currency.” Yet again, this Court also held in the case of Harka Air Services (Nig.) Ltd v. Keazor (2005) LPELR-5693(CA) 1 at 4-46, per Ogunbiyi, JCA (as she then was), that there is no doubt that judgments can be entered in foreign currency, and thus proceeded to award the sum of Eleven Thousand U.S. Dollars (11,000) as an appropriate compensation in general damages. In concurring with the lead Judgment, my learned lord, Garba, JCA, pronounced inter alia thus at page 49 of the Report: “Let me also quickly say that it is not in dispute that the Nigerian Courts have the power to enter judgments and make awards in foreign currency in appropriate cases… Accordingly, if the respondent had adduced sufficient evidence in US Dollars to support the claims he made for special damages in particular, in that currency, the Lower Court would have had the power to have granted him the claims in US Dollars as proved by such evidence.” In addition, their lordships of the Apex Court have enunciated and laid down affirmatively in a long line of cases the jurisdiction of Nigerian Courts to award judgments in foreign currency. See Adedoyin v. Igbobi Development Co. Ltd (2014) LPELR-22994(CA); Saeby Jernstoberi MFA/S v. Olaogun Ent. Ltd (1999) 14 NWLR (Pt.637) 128 at 145-146 per Ayoola, JSC; Koya v. UBA Ltd (1997) 1 NWLR (Pt.481) 251, 269-289 per Ogundare, JSC; Nwankwo v. Ecumenical Development Co-operative Society (2002) I NWLR (Pt.749) 513 at 540. — J.H. Sankey JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Jummai Hannatu Sankey, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 1(2) of the Decimal Currency Act, Cap D2 Laws of the Federation of Nigeria, 2004 provides as follows: “1(2) Every contract, sale, payment, bill, note, instrument and security for money and every transaction, dealing, matter and thing whatsoever relating to money or involving the payment of or the liability to pay any money which, but for this subsection, would have been deemed to be made, executed, entered into, done and had, in and in relation to Nigerian Pounds shall in Nigeria be deemed instead to be made, executed, entered into done and had, in and in relation to naira on the basis that one Nigerian Pound equals two naira.”
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
