Coutinho Card & Company Nigeria Limited V. Obioha Investment Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA J.C.A. (Delivering the Leading Judgment)

This is an Appeal by the Defendant/Appellant against the judgment of Olateru Olagbegi J. of High court of Lagos sitting at Lagos Judicial Division delivered on the 23rd day of December 2009.

The facts leading to the institution of the suit are as follows: The Respondent was the lessee of a parcel of land known as Plot No. WL 1085 lying and situate at No.30/32 Creek Road, Lagos covered by Registration of Title No. Mo 3949. By a Sub-lease Agreement dated 16th October 1990 (Exhibit B1) and registered at the Lands Registry, Ikeja, Lagos, the Respondent leased the said parcel of land for a term of 25 years certain (commencing 1st January, 1983) to the Appellant at a rent of N9,375.00 (Nine Thousand Three Hundred and Seventy Five Naira) yearly, for the first 16 years of the term as stated in Clause 1(a) of the Sublease Agreement.

The total rent for the 16 year summed up to N150,000.00 (one Hundred and Fifty Thousand Naira). The parties also agreed under clause 1(b) of Exhibit B1 that both parties shall be entitled to equal shares of rent received in excess of N165.00 per square metre except on the floors occupied by the Respondent. A supplemental Agreement dated 9th July, 1999 (Exhibit b5) was also entered into by the parties for the residue of 9 years of the original sublease agreement. The Appellant in the Sublease Agreement covenanted with the Respondent to among other things, insure to the full value the building to be erected on the demised premises; to pay all charges, rates and taxes with respect to the demised premises; to maintain and keep in good tenantable repair and condition the demised premises.

The Appellant breached the above mentioned covenants as well as the covenant to pay rent as stated in the sublease Agreement. Consequent on the several and continuing breaches of the covenants in these agreements, the Respondent gave Notice of forfeiture to the Appellant to remedy the breaches or face the consequences of re-entry and forfeiture of the demised premises. Upon the Appellant’s continued refusal to remedy the breaches, the Respondent instituted this action and in his writ of summons dated 23/1/01 and the amended statement of claim dated 19th of July 2005, claimed from the Defendant as follows.

a. An order of forfeiture of the Sub-lease agreement dated 16th October, 1980 registered as title No. 12900 at the Land registry, Lagos on the grounds that the Defendant breached Clauses 1(a) & (b), 2(a), (b), (c), (d), (f) and (g) and Clause 3 and 4 of the said sublease Agreement as well as the supplemental agreement respectively.

b. A Declaration that the Claimant is entitled to the possession of and an order for possession of all that property lying, situate and being at No. 30/32 Creek Road, Apapa, Lagos held by the Defendant under Title No MO 12900 as sub-lessee of the Claimant pursuant to the said sub-lease agreement.

c. Payment to the Claimant of the sum of N34,679,680 or such other amount as constituting the total rent so far collected by the Defendant on the Penthouse and the 2nd floor of the demised premises(less that part of the 2nd floor occupied by the Claimant as from 1993 for the first 16 years of the term created in line with the provisions of clause 1(b) of the aforesaid sub tease agreement and ending on 31st December, 1998.

d. Payment to the claimant to the sum N3,899 ,760 (Three Million, Eight Hundred and Ninety Nine Thousand, Seven Hundred and Sixty Naira) being the claimant’s share of the rents collected by the Defendant for the years 1999 and 2000 and not paid to the claimant.

e. AN ORDER for full account of all the rents received and or collected by the Defendant on the demised premises from 1st January, 1983 to 31st December, 2000 and payment to the Claimant of one half of such amount in excess of the sum of N165 per meter of the lettable property.

ALTERNATIVELY

1. The sum of N63,398,000.00 (Sixty Three Million, Three Hundred and Ninety Eight Thousand Naira) being arrears of rent collected by the Defendant on the demised premises from 1st January 1983 to 31st December, 2000.
2. The sum of N5,000,000.00 (Five Million Naira) being general damages for breach of covenant therein contained.
3. The sum of N7,500,000.00 (Seven Million Five Hundred Thousand Naira only) being legal fees incurred by the Claimant in the prosecution of this case.
4. AN ORDER of perpetual injunction restraining the Defendant whether by itself servants, agent or privies from further; collecting rents, dues levies from any tenants occupying the demised property.

The lower court took evidence from the parties and at the end of hearing entered Judgment in favour of the Respondent for possession of the properly, the sum of N9,386,598.00 being the Respondent’s entitlement to rents received from the property, and an account of rents received for the period 1/1/83 to S31/12/09 and payment to the Claimant one half of such amount as in excess of N165.00 per metre of lettable space.

Aggrieved by the Judgment, the Defendant/Appellant filed its Notice of Appeal dated 8th January, 2010 which was subsequently amended by an Amended Notice of Appeal dated 31st May 2012 and filed on 6/6/12 containing 5 grounds of appeal. In accordance with the practice of this Court, the parties filed their briefs of argument. Out of the five grounds of appeal, the Appellant formulated five issues for determination. Learned counsel for the Respondent had in their brief raised and argued a preliminary objection contending that grounds 1 & 2 of the Amended Notice of Appeal did not emanate from the ratio decidendi of the decision of the lower court. I will consider the preliminary objection first.

RESPONDENT’S ARGUMENTS ON THE PRELIMINARY OBJECTION