Airtel Networks Limited V. Mrs Patricia Bosede George & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Lagos State delivered by Oke Lawal J. on the 10th day of November 2009 wherein the claims by the claimants were granted while the 3rd defendant’s counter claim was dismissed.

The claimants (now Respondents) had by an amended writ of Summons and statement of claim dated 21st July, 2005 claimed against the three defendants as per paragraph 17 of the statement of claim as follows:-

1. A declaration that the Claimants are entitled to re-enter the landed property at 2/4 Abebe Village Road, Iganmu Lagos as per clause 4 of the lease agreement dated 8th of November, 1973 in consequence of the breach of the said lease agreement by the 1st Defendant Company
2. An Order of possession of the landed property together with the appurtenances thereof, situate at and known as 2/4 Abebe Village Road, Iganmu, Lagos against the 1st Defendant Company.
3. General damages in the sum of N1m against the 2nd Defendant Company for acts of trespass committed on the Claimants’ landed property at 2/4 Abebe Village Road, Iganmu Lagos
4. Perpetual injunction restraining the 2nd Defendant Company, their assigns, agents, servants and privies from further committing any acts of trespass on the landed property known as 2/4 Abebe Village Road, Iganmu Lagos .

The Suit was originally against the 1st and 2nd defendants, Thomas Wyatt (Nig) Plc and Tehila Communications Ltd respectively but subsequently by the order of the lower court made on 25th April, 2006 the Appellant herein was joined in the suit as the 3rd defendant. The Salient facts in the case is that One Dominic Sosu during his life time granted a lease for a term of 99 years commencing on 1st January 1972 to Thomas Wyatt (Nig) Plc (3rd defendant in the lower court). The said lease dated the 8th day of November 1973 provides for the payment of a yearly rent of E2,201 for the first 14 years and thereafter at such yearly rent as shall be agreed by the parties but not exceeding 115% of the rent payable. It was covenanted that the lessee shall peaceably hold and enjoy the demised premises during the term granted provided that if the rent reserved remains unpaid for three months after falling due, or there is a breach of any of the covenants, the lessor may at any time thereafter re-enter upon the demised premises or any part thereof and the demise shall absolutely determine.

The 1st defendant subsequently assigned the title to the property, to the 2nd defendant (Tehila Communications Ltd as well as the 3rd defendant (now appellant) absolutely, without the knowledge or consent of the Respondents. The 1st Defendant was also alleged to be owing arrears of Rent since 1998. The Respondents through their counsel wrote a number of letters to the 1st defendants requesting for a meeting with a view to reviewing the Rent but this was not to be. Hence the Respondents instituted this action.

The 1st and 2nd defendants neither entered appearance nor filed any statement of defence to the suit. The Appellant herein as 3rd defendant filed an amended statement of defence and counter claim dated 28th May, 2008. The Respondents also filed a reply and defence to counter claim dated 17th November, 2006.

The Appellants’ defence was hinged on the fact that it validly acquired the interest of the 1st Defendant in the property by way of a Deed of Transfer dated 7th November, 2003 and Registered as Title No. MO10635 and has been in lawful possession of the property. It also raised the issue of Locus Standi of the Respondents to bring the action as well as counterclaim for an order of relief from forfeiture.

At the conclusion of the trial at the lower court judgment was delivered wherein the Respondents’ claim was granted and the Appellant’s counter claim dismissed.

The Appellant was dissatisfied with the outcome of the judgment and as a result, filed a notice of Appeal dated 3rd December, 2009. An amended notice of appeal was subsequently filed vide an order of this Court granting the application on 9th December, 2010.

Briefs of Argument were pursuant to the Rules of this Court filed and served. The Appellants’ Brief of Argument is dated 13th December, 2013 but filed on 10th January, 2014 while the respondents brief of argument was dated and filed on 7th February, 2014. Three issues were distilled for determination in the appellants brief as follows:-

(i) Whether the trial court was right to hold that the Respondents had Locus Standis to institute and maintain the suit.

(ii) Whether the trial court was right to grant an order of forfeiture of the lease and re-entry to the Respondents in respect of the property.

(iii) Whether the trial court was right to find and hold that the Appellant was not entitled to a relief from forfeiture.

The Respondents in their brief of argument adopted the three issues as formulated by the appellant. I will therefore consider this appeal on the basis of the said three issues.