Alhaji Sunmonu Sdiq & Ors V. Chief Olufemi Fasheun & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the High Court of Lagos State delivered on 25th May, 2006 by Hon. Justice A. Olateru-Olagbegi in Suit No. ID/2637/1997: Alhaji Sunmonu Sadiq & Ors. v. Chief Olufemi Fasheun & Anor in which the claims of the Appellants as Plaintiffs against the Respondents as Defendants was granted in part.

By a writ of summon together with a 3rd Amended Statement of claim dated 23rd February, 2006, the Plaintiffs now Appellants claimed as follows:

1. An order of forfeiture of the lease held by the Defendants from the Plaintiffs by virtue of a deed of lease dated 28th day of February, 1959 and registered as No. 2 of page 2 in volume 314 of the Land Registry, Lagos, on grounds of non-payment of the annual leasehold rents and for the denial of the Plaintiffs title to the demised premises by the Defendant.
2. An arrears of rent payable by the Defendant to the Plaintiffs under and by virtue of the deed of lease dated 28th day of February, 1959 and registered.
3. Possession of the demised land, the subject matter of

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the lease dated 28th day of February, 1959 and registered as No. 2 of page 2 in volume 314 of Land Registry, Lagos.

The Defendants now Respondents filed a 4th Amended Statement of Defence dated 29th February, 2006 to the action.

The facts briefly are as follows: The Appellants, who are members of the Onigbongbo family, whose ancestors were the first settlers in Onigbongbo town granted a lease of a portion of the land at Onigbongbo now known as 4, Mobolaji Bank Anthony way, Maryland, Lagos and registered as No.2 at page 2 in volume 314 at the Land Registry Lagos in favor of Victor Olabanji Fasheun [1st Respondent’s father and 2nd Respondent’s husband] who is now deceased.

The said lease was for a term of 99 years commencing from the 1st day of October 1957 subject to some terms and conditions. One of such terms or the fundamental term was the payment of rent. It was agreed that Mr. Victor Fasheun (herein called 1st Respondent’s father) will pay a yearly rent of 9 (Nine Pounds). It was also agreed that once any rent is in arrears for 21 (Twenty-one) days whether lawfully demanded or not, a right of entry accrues and the tenancy is liable

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to be forfeited. See Exhibit A (Lease Agreement) particularly Clause 3 at page 99 of the Record of Appeal. It is also the case of the Appellants that they are members/descendants of the Onigbongbo family. They contended that in the record of the family that the 1st Respondent’s father before his death merely paid rent from 1957 to 1959 and there were no records made or receipts of any further payment of rents from 1st October, 1959 till date, flowing from which on 12th June, 1993 they issued and served on the 1st Respondent a demand notice in respect of all outstanding rent. Also sometime in January 1994 and January 1995 they pasted similar notices on the premises. Regardless of such notices, the Respondents have failed to pay the outstanding rent. They also contended that the Respondents denied the Appellants’ title to the land in dispute, hence this suit.

In their defence, the Respondents contended that the balance of the lease was fully paid. They relied on the following evidence; 1) undisturbed possession from 1957 till 1997 (when the suit was filed), 2) absence of demand of rent from 1959 until the commencement of this action; 3) similar

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transactions between both parties evidencing full payment in those transaction and finally the statement made by the deceased to the effect that he was not owing the Onigbongbo family.

On conclusion of the trial, the lower Court in its considered judgment held that the Appellants were entitled to their claim of rent but only for a period of 6 years preceding the institution of this action and dismissed the Appellants’ relief for forfeiture and possession of the land.