Mrs. Theresa Bassey & Anor V. Mrs. E.E. James (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, JCA (Delivering the Leading Judgment)

This appeal is from the decision of the Cross River State High Court in Suit No. C/299/95 and contained in the judgment delivered on the 29/11/06. The Respondent here had instituted the action against the Appellant and one other for inter alia, a declaration that she was entitled to the Right of Occupancy in respect of the parcel of land known as plot 233, Block P, Etta Agbor Road Layout, Akim Qua Town, Calabar, damages for trespass and injunction.

At the end of trial, the High Court entered judgment in favour of the Respondent granting the reliefs sought and because they are dissatisfied therewith, the Appellants filed a notice and grounds of appeal on the 16/1/07 against the judgment.

As required by the Rules of this court, the parties to the appeal filed briefs of argument in support of their respective positions. The Appellants’ brief was filed on the 14 /11/11, but deemed on the 13/3/12 while the Respondent’s brief was filed on the 13/4/12. At the oral hearing of the appeal on the 17/5/12, the briefs of argument were adopted by the learned counsel for the parties who urged us to uphold their respective submissions therein and urged us to allow or dismiss the appeal as the case may be.

From the five (5) grounds of appeal contained on the notice of appeal, Mr. Anietie E.R.S. Akpabio, Esq. had distilled three (3) issues for determination in the appeal as follows:

“1. Whether the Respondent has a valid or legal interest in the property situate at Plot 233, Block P, Eta Agbor Layout, Akim Qua Town, Calabar, arising from the agreement dated 25/3/78.

2. Whether the issuance of a Certificate of Occupancy No. CA/2522/82 based on the Agreement dated 25/3/78 confers a valid and legal estate on the Respondent.
3. Whether the learned trial judge was right in awarding N100,000.00 damages to the Respondents against the Appellants”.

Mr. A. A. Annoh, Esq., the learned counsel who settled the Respondent’s brief adopted but reframed the issues submitted by the Appellants in the following terms:-

“1. Had the Respondents’ husband based on the evidence on record failed to pay the rent due from him to the appellants so as to affect the validity of Exh . “B” or his title to the land?

2. Was the Certificate of Occupancy issued to the Respondent’s husband based on Exh. “B” validly issued?
3. Did the Respondents make out a case for trespass to entitle her to an award of damages?”

Looking at the complaint in the grounds of appeal, the Appellants’ issues appear to be more precise and so I would use them in the determination of the appeal, having been adopted by the learned counsel for the Respondent.

ISSUE 1

The submissions by the learned counsel for the Appellants are that the Respondent’s husband was granted lease of the land in dispute by the Ntoe’s Cabinet and that by the Agreement entered into by the parties, he was required to pay consolidated charges of N900, N70 for documentation and annual rent of N60.00 It was his submission that the Respondents husband failed to or did not pay the rents agreed on as and when due, amounting to N5,940.00 but surreptitiously applied for a certificate of occupancy (C of O) based on the agreement. Accordingly to him, the lease agreement was at best, an executor contract since no consideration was provided by the Lessee and so remained unperformed; not binding on the parties. He urged us to so hold and further argued that paragraph 5 of the lease agreement provided that if the annual rents were not paid or the lessee failed to perform any obligation there under, Lessor shall have the right to enter the land and take possession as if there was no such lease or it had lapsed. Furthermore, that Ntoe’s Cabinet had re-entered the land, which was not shown to the respondent’s husband, when he failed to abide by the Agreement and reallocated it as per the notice published in the Nigerian Chronicle Newspaper of 6th day of June, 1992, in line with paragraphs 2 and 5 of the lease agreement. The case of M. ISIYAKU v. ZWINGINA (2003) 6 NWLR (817) 560 was cited on the submission and in further argument, learned counsel said because Exh. ‘B’ was made almost one year after Exhs. ‘E’ and ‘E1’, it was not part of the transaction in the latter and nothing therein indicated that it had any relationship with Exhs. E and E1. He said the High court had therefore speculated when it stated that the transaction for the land in issue between the parties was consummated once the Respondent the payments in Exhibits E and E1, and that Exhibit ‘B’ was merely to formalize the transaction and no more. Also, that the payment of the annual rent contained in Exhibit ‘B’ was never contemplated by the parties to be a pre-condition for the validity of the lease agreement. Learned counsel, relying on KODE v. Yusuf (2001) 4 NWLR (703) 392 at 413 and ESENE v ISIKUEMEN (1979) 2 SC, 87 said the courts are not allowed to indulge in speculation or conjuncture, but use on facts and evidence before it. It was his submission that in the absence of evidence, the High court ought to hold that the breach of the lease agreement had vitiated it and that there was no landlord/Tenant relationship between the parties such that title to the land in issue had remained with Ntoe’s Counsel, who had the right to re-allocate it. He then cited the case of ANYAFULU; AGAZI (2007) FWLR (344) 143 at 146 where it was said that payment of rent is an acknowledgement of the tenancy and urged us to hold that it is the payment of such rent by a tenant to a landlord that validates a tenancy or lease agreement. We were urged to allow the appeal on this ground.

For the Respondent, it was submitted that the letter from the Appellants to Respondent requesting for the payment of N970, admitted as Exh .’D’ at the trial, did not state that further payment was expected from him, when it was to be made and no demand notice was sent to him for such further payment. The learned counsel for the Respondent then said that since the Respondent’s husband was later granted C of O in respect of the land, the conditions set out in the certificate regulated his relationship therewith, citing EZEANNAH v ATTA (2004) 17 WRN 1 at 7 as authority on the position. He said there was a valid agreement between the parties and that Exh . ‘D’ governed the manner in which rent for the land was to be paid, insisting that the total amount demanded from the Respondent’s husband was fully paid by him and no demand for further payment was made, as promised. It was then contended that even if the amount payable by the Respondent’s husband was N5,940 as argued by the Appellants, the sum of N900.00 paid represented rents for fifteen (15) years and further payment was to be made when demand notice was issued by the Appellants. Learned counsel then submitted that the respondent’s husband did not fail to pay rent and title was passed to him vide Exh. ‘B’, leaving the Appellants without any right to re-allocate the land in dispute even if there was any balance of rent to be paid by him. Reliance was placed on EDOSA v ZACCALA 9 (2005) 34 WRN, 103 at 114 and BIYO v AIKU (1996) 1 NWLR 422 where the conditions set out therein, were said to exist in the case. We were urged to resolve the issue in favour of the Respondent.

I would like to observe that there is no dispute, since the parties to this appeal are one, on the fact that they had initially entered into a lease agreement in respect of the land in dispute. The said agreement was tendered without objection and admitted as Exh. ‘B’ during the trial. By the said agreement, the Respondent’s husband was granted the land in dispute by the Ntoe’s Council on lease, premised on the terms and conditions set out therein and freely accepted by the parties. The lease agreement created the relationship of a Landlord and Tenant between the Ntoe’ Council and the Respondent’s husband respectively, which is contractual in nature and so its terms bind each of them and cannot be altered by either of them without the consent or agreement of the other.

A lease is an exact legal transaction affecting an estate and for it to be valid and enforceable in law, it must state the following:-