Nnayelugo Samuel Sampson 1 Bosah & Ors V. Pius Oji (2002)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C.

In this action on 29th April, 1963 Mr. Pius Oji the defendant and Nnayelugo Samuel Sampson 1 Bosah, Akukalia Albert Bobo Bosah, and Augustine Oseloka Bosah, the plaintiffs, came to an agreement which they put into writing. The object was that the defendant should take a lease of the premises known as No. 49 Old Market Road Onitsha for a term of 60 years. In the said lease agreement, exhibit A, the defendant covenanted to demolish an old building at the back of the plaintiffs’ premises and build in its place a house containing 14 rooms for the use of the plaintiffs within one year. The defendant in addition was to pay the sum of N3,100 to the plaintiffs. Thereafter the defendant was to build for his own use another house in front of the premises and in addition pay the plaintiffs a sum of N3,980. The defendant, after the completion of his own house, would obtain a certificate of occupancy from the Onitsha Local Council. The document (lease) said in clauses 7 and 8:

“7. The term of sixty years will be counted from the time when the lessee obtains the certificate of occupancy for the building on the unbuilt area in front if he builds or if he chooses to convert it into a commercial use from the time he begins to make use of it.”

8. The defendant/lessee shall pay a sum of nine hundred and eighty pounds which if added to the one hundred pounds already paid as above will represent the three years rent in advance before he begins to build on the site or if for commercial purposes, before he begins to make use of the same.”

Exhibit A was duly registered at the Land Registry at Enugu. It must be pointed out from the outset that the defendant built a house of 14 rooms for the plaintiffs at the back of the premises within one year from the date of the execution of the lease as demanded by the plaintiffs. He also paid the initial N3,100. The plaintiffs went into occupation. But before he could muster enough funds to start the erection of his own house in front of the premises, the Nigeria Civil War broke out. Like everyone else, the defendant fled Onitsha. The result was that the defendant never went into occupation of the premises.

After the cessation of hostilities, the parties returned to Onitsha. The defendant met with the plaintiffs and intimated them that he was then ready and able to commence building work on his house in front of the premises. But the plaintiffs refused to go on with the lease to the defendant. The stalemate was on for quite some time. Then the plaintiffs brought this action against the defendant. They claim that the lease was not a binding or enforceable contract.

The plaintiffs at Onitsha High Court claimed as follows under the Common Law Procedure Act, 1852:

“1. Possession of the premises upon a forfeiture for non payment of rent.

2. N15,640.00 rent or alternatively mesne profits to the date of the service of the writ
3. Mesne profits from the date of the service of the writ until delivery of possession.

IN THE ALTERNATIVE

(i) Declaration that the said lease is void for uncertainty about its commencement.

(ii) Possession of the property comprised in the said lease.”

The defendant in his statement of defence counter claimed thus:

“1. An order of court that the said deed of Lease dated 29/4/63 and registered as No. 14 at page 14 in Volume 383 of the Deed Registry at Enugu is still subsisting, valid and effective.

2. An injunction restraining the plaintiffs, their servants, agents and privies or any persons whatsoever acting on their behalf from further interfering with the defendant’s rights under the said lease which rights include erecting a building in front of the premises known as No. 49 Old Market Road, Onitsha,”

The learned trial Judge after hearing evidence and after considering the authorities on the point dismissed the plaintiffs claim save as to the sum of N15,640.00 claimed as rent or mesne profits. He also ordered the defendant to pay the plaintiffs N3,980 (N1,960.00) as stipulated in the lease agreement Exhibit A. The learned trial Judge however gave judgment for the defendant in respect of his counter claim. Accordingly he ordered as follows:

“1. That the said Deed of Lease dated 29/4/63 and registered as No. 14 in Vol. 383 of the Deeds Registry, at Enugu is still subsisting valid and effective.