MAI ROBERTS, by and through her Husband, CHARLES B. ROBERTS, Appellant, v. ENAIMBA BUSINESS AND CONSULTING FIRM, represented by and through its Manager, E. MOMOLU FREEMAN, Appellee.

APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL COURT, MONTSERRADO COUNTY.

Heard: November 19, 1979 Decided: December 21, 1979.

1. In this jurisdiction an option clause providing for renewal of a lease agreement on terms and conditions to be agreed upon by the parties is unenforceable for uncertainty.
2. An important term or condition of any lease agreement is the rental and where it is not agreed, the option is not effective.
3. A lessor is rightfully entitled to possession of a leased property through ejectment and eviction of the lessee where the option is ineffective by virtue of the uncertainty of a term or condition of said option.
4. When a defendant is ruled to bare or general denial at the trial such defendant may cross examine plaintiff’s witnesses and introduce evidence in support of his denial, but he may not introduce evidence in support of any affirmative matter. So a trial judge errs when he questions the plaintiff on matters which constitute affirmative defenses.

Appellant was the lessor of appellee under a five-year lease agreement, which provided for a five-year optional period, without agreement on the specific rental to be paid for the option. Prior to the expiration of the term certain, appellant requested appellee to vacate the premises, but he refused, relying on the optional clause. Appellant then instituted ejectment action and at the disposition of law issues, appellee was ruled to a bare denial after dismissal of his answer for reason that the option was uncertain and therefore unenforceable. At the trial, the judge asked questions of the appellant, which introduced affirmative defenses and eventually judgment was entered for appellee. Appellant then appealed to the Supreme Court. The Supreme Court reversed the judgment, ordered the eviction of appellee, and appellant placed in possession. The Supreme Court ruled that rental being an important term or condition of any lease, where the rental for an optional period is not agreed upon or the term is vague and uncertain, and therefore unenforceable, the lessor is entitled to repossession of the demised premises. The Supreme Court also ruled that since a defendant in bare denial may not introduce affirmative matters in his defense, the trial judge may not ask questions which tend to introduce the affirmative defenses already precluded by the bare denial. Hence, the reversal of the judgment.

Philip J. L. Brumskine and Daniel S. P. Draper, Sr., appeared for appellant. M. Fahnbulleh Jones appeared for appellee.

MR. JUSTICE HENRIES delivered the opinion of the Court.

In 1962, the appellant’s father, the late Anthony Barclay, gave her a parcel of land situated on the corner of Broad and Center Streets, in the City of Monrovia. The appellant constructed a three storey building on the land and leased it out separately to three individuals, including the appellee.
On February 28, 1973, a lease agreement was entered into between the appellant and the appellee for the third flat of the building, for a period of five years certain with an optional period of five years, the rental for the optional period to be agreed upon.
Prior to the expiration of the first five-year period of the lease, the appellee in a letter to appellant indicated his desire to remain on the premises for the optional period. The appellant denied the request because the appellee had allegedly shown complete disregard for the terms of the agreement, and had disrespected her. She accordingly asked him to vacate the pre-mises. He refused, contending that the lease agreement gave him a legal option, and therefore he could not be denied the right to continue occupancy for another five-year period. Consequently, he has continued to occupy the premises without paying any rental.

The appellant instituted an action of ejectment against the appellee in the Civil Law Court for the Sixth Judicial Circuit. After pleadings were rested, His Honour Frank W. Smith, assigned circuit judge, disposed of the law issues by overruling the appellee’s answer and ruling the appellee to a bare denial of the complaint. Later, Judge Jesse Banks came into term and assigned the case for trial, and the jury brought in a verdict in favour of the appellee. Judgment was rendered in accordance with the verdict, and appellant announced an appeal therefrom.
The issue before us is whether a lease agreement which reserves an option for a future period, the rental being subject to negotiation, is binding on the lessor, and therefore enforceable merely because the lessee agrees to be bound thereby. We hold that such an option clause is unenforceable.
The relevant portions of the lease agreement reads thus:

“3. This lease shall be for a period of five years certain and an optional period of five years, The optional period of the lease is renewable immediately following the expiration of the certain period.

4. 4. The rental to be paid by lessee to lessor for the certain period of the lease is $2,500.00 payable in advance each year. The rental for the optional period shall be subject to negotiation between the lessor and lessee, but in no case shall the rental be increased by more than 25% of the rental of the certain period.”

Judge Smith, in passing upon this question, held that nego-tiations not having taken place, the option clause to renew the lease remained uncertain and hence unenforceable. We are in agreement with Judge Smith on this point, for in this jurisdiction an option clause providing for renewal of a lease on terms and conditions to be agreed upon by the parties is unenforceable for uncertainty. Mirza v. Crusoe et al.[1960] LRSC 44; , 14 LLR 95 (1960); Agbage v. Brown, [1978] LRSC 61; 27 LLR 339 (1978). More to the point, a renewal covenant in a lease that leaves the renewal rental to be fixed by future agreement between the parties is generally unenforceable and void for uncertainty and indefiniteness. See 50 AM. JUR. 2d, Landlord & Tenant, § 1165.

Reading the two relevant paragraphs of the lease agreement together, it is clear that the optional period of the lease is renewable only if an agreement has been reached on the rental to be paid. An important term or condition in any lease agreement is the rental. This point not having been negotiated by the parties, the option does not become effective, and therefore the appellee is occupying the appellant’s premises unlawfully.
As to whether ejectment will lie in such a case, the Civil Procedure Law, Rev. Code 1: 62.2 (a) provides that a person rightfully entitled to the possession of real property may bring an action of ejectment to vacate when there is unlawful dispossess-ion by an occupant without color of right or title after the expira-tion of the term of a lease of or rightful permissive possession. We cannot conclude this opinion without referring to Judge Banks’ improper handling of this matter after the law issues had been passed upon. After Judge Smith, who has concurrent jurisdiction with him, had struck the answer and ruled the appellee to a bare denial, Judge Banks, in questioning the appellant, sought to introduce affirmative matters contrary to the statute and numerous holdings of this Court to the effect that when a defendant is ruled to bare or general denial, at the trial such defendant may cross examine plaintiff’s witnesses and introduce evidence in support of his denial, but he may not introduce evidence in support of any affirmative matter. Civil Procedure Law, Rev. Code 1: 9.1(2).
Judge Banks not only interfered with the ruling of his col-league, Judge Smith, which was highly irregular but he seemed to have assumed the role of counsel for appellee, after appellee and his counsel had absented themselves from the trial, even though they had been served with a notice of assignment, which is also improper. It is the duty of the court to ask such questions as are suggested by the evidence given at the trial, but it has no more right than counsel has to ask an improper question.
In view of the foregoing, the judgment of the lower court is reversed with costs against the appellee, and the Clerk of this Court is ordered to send a mandate to the lower court ordering it to resume jurisdiction over this matter, evict the appellee from the premises, and put the appellant in possession of same. And it is hereby so ordered.
Judgment reversed.