Patrick Ossai V. Victor Ossai Nwajide & Anor (1975)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, J.S.C. 

This is an appeal against the judgment of Oputa, J., delivered at the High Court, Onitsha, on the 26th of September, 1972 in which he entered judgment for the plaintiffs, now respondents before us, against the appellant who was defendant before him. The claim before the lower court reads:-

“1.   Both the Plaintiffs and the Defendant reside at Onitsha.

2.   The Plaintiffs claim against the defendant as follows:-
(a)   Declaration that the lease of premises situate at and known as 37, Nottidge Street, Onitsha by the Defendant to the Plaintiffs as contained in lease Agreement dated the 1st day of February, 1960 has not been determined.

(b)   An Account of all rents and profits realised by the Defendant by unlawfully letting out the property embraced by the said lease from the 1st day of June 1970 and the payment to the Plaintiffs of the amount so realised.

(c)   500 (Five Hundred Pounds) damages for trespass to the said property.

(d)   An Injunction restraining the defendant, his servants and/or Agents from further acts of trespass on the said property.

The evidence before the learned trial Judge, which was not disputed by either party, is that the two plaintiffs entered into a Deed of Lease for 21 years in 1960 for two shops owned by the defendant. The lease though executed in 1960 was not registered until 7th September 1971. Rents were paid up to 1967 when both parties had to leave Onitsha because of the then civil war.

In 1970, both parties returned to Onitsha and it would appear, from photographs tendered in evidence before the learned trial Judge, that the two shops suffered some damages during the war. The plaintiffs approached the defendant to re-occupy the two shops but the latter demanded arrears of rent from 1968 and 1969 respectively, as well as the cost of repairs to the damaged shops. The Plaintiffs asked for time to pay the arrears, and requested that, in the meantime, they be allowed to re-occupy the two shops. This request was refused by the Defendant. Early in 1971, 4th March to be exact, the Plaintiffs sued the defendant in the terms of the writ.

During the hearing of the case on the 5th Ocotober, 1971, the Deed of Lease was tendered as Exhibit 1. This Deed was registered as No. 74 at page 74 in Volume 459 of the Land Registry at Enugu on the 7th of September 1971, although as earlier pointed out it had been executed since 1st of February, 1960.

It thus follows that, at the time that the plaintiffs filed their writ on the 4th March 1971 and their statement of claim on the 15th June, 1971 and the defendant filed his Statement of Defence on 8/7/71, Exhibit 1 had not been duly registered as required by the mandatory provision of Section 15 of the Land Instruments Registration Law, Cap 72 in Volume 4 of the Laws of Eastern Nigeria, 1963, which is the applicable law. The section reads:-
“15. No instrument shall be pleaded or  given in evidence  in any court as affecting any land unless the same shall have been registered:

Mr. G. R.I. Enogu, learned counsel for the appellant, argued on ground 3 of the appeal that since Exhibit 1 was not registered until 7th September, 1971 it could not be pleaded nor given in evidence until it has been registered.

The Plaintiffs in their statement of claim averred as follows:

“3.   In or about the year 1959 the Plaintiffs paid to the defendant the sum of one thousand and eighty pounds to build the grounds floor of a house situate at the said 37 Nottidge Street. In consideration whereof the defendant granted a lease of two shops on the said ground floor of the said building to the plaintiffs for a term certain of 21 years.