Nnayelugo Samuel Sampson I Bosah Vs Pius Oji (2002)

LAWGLOBAL HUB Lead Judgment Report

A. I. KATSINA-ALU JSC

In this action on 29th April, 1863 Mr. Pius Oji the defendant and Nnayelugo Samuel Sampson 1 Bosah, Akukalia Albert Bobo Bosah, and Augustine Aseloka 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 £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 £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 dully registered at the Land Registy 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 or the lease as demanded by the plaintiffs. He also paid the initial £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. That 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 mense profits to the date of the service of the writ 3. Mense profits from the date of the service of the writ until delivery of possession. 4. 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 mense profits.

He also ordered the defendant to pay the plaintiffs £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. 2. An injunction to restrain 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 said rights include erecting a building in front of the premises known as No.49 Old Market Road, Onitsha.” The plaintiffs’ appeal to the Court of Appeal was dismissed. Hence this further appeal to this court. In this appeal, the plaintiff formulated three issues for determination. They read as follows: 1. Whether the learned Justices of the Court of Appeal were correct in upholding the decision of the learned trial Judge to the effect that Exhibit “A” – the Deed of lease – is valid and subsisting on the ground that its commencement date is certain. 2. Whether the learned Justices of the Court of Appeal were correct in holding that Section 210 of the Common Law Procedure Act 1852 did not avail the appellants’ claims for forfeiture so as to dispense with the requirement of service of Notice of breach of covenant of the Respondent, prior to the commencement of the suit. 3. Whether the 3rd issue for determination of the Respondent arose from the grounds of appeal. For his part, the defendant also raised three issues namely:- (a) Is the lease valid and subsisting? (b) Is the claim for forfeiture sustainable? (c) Whether the 3rd issue for determination as framed by the Respondent arose from the grounds of appeal. The main issue, in this appeal, for determination is whether the deed of lease (Exhibit A) signed by both parties is valid and subsisting. It is the case of the plaintiffs that the lease is not valid because the commencement date of the lease is uncertain.

As I have already shown the length of the term of the lease is certain. It is for 60 years. It is settled law that for a lease to be valid, the term of the lease as well as its date of commencement must be certain or capable of being ascertained. In the case of Harvey v. Pratt (1965) 2 ALL E.R 786 at 787, Lord Denning M. R. had this to say “It has been settled law for all my time that, in order to have valid agreement for a lease, it is essential that it should appear, either in express terms or by reference to some writings which would make it certain or by reasonable inference from the language used, on what day the term is to commence. In Marshall v. Berridge (1881 – 85) All E.R Rep. 908 at p.912 Lush L. J. said: “It is essential for the validity of the lease that something should appear either in express terms or by reference to some writing or some instrument, which would make it certain on what day the term is to commence. There must be a certain beginning and a certain ending, otherwise it is not a perfect lease, and a contract must, in order to satisfy the Statute of Frauds, contain this reference.” In Nlewedim v. Uduma (1995) 6 NWLR (Part 402) 383 at 396 this court per Belgore, JSC. held that: “A lease must be clear as to its intent and purpose and it must at least contain (i) the term of years (ii) the rent payable and (iii) commencement date of the lease.” From the decisions in the above cases it seems clear that if the date of commencement of the lease is certain or ascertainable from the document and its duration is also certain, then the lease is valid and enforceable. In the present case the duration of the lease Exhibit A is certain. Paragraph 1 thereof creates a sixty year (60) lease. The commencement date is provided for in clause 7 of Exhibit A. It states that: ‘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.” Although the date of commencement of the lease was not named therein, the date has been made certain by the contingency reserved therein. The result is this. The date of commencement is certain. And the duration of the term of the lease (Exhibit A) is also certain.

That being so Exhibit A is a valid lease. And it is subsisting. The plaintiffs have argued at pp. 9 and 10 of their Appellants’ brief of argument that: “If commencement of the lease is hinged on Respondent erecting a building or utilising the open space for commerce, it is clear that it is equally hinged on his capacity – financial or otherwise – to satisfy the contingencies. Where he is for any reason rendered incapable of satisfying such conditions, it is clear that the contingencies may never take place. The consequence of this is that from a construction of Exhibit A, the demised premises will remain encumbered for as long as the disability may last. Can it seriously be contended that when the parties agreed and executed Exhibit A, the lessors consciously elected to be bound by such an uncertain situation which would leave their reversionary interest entirely at the determination of the Respondent. Further as the rents may fall due when the term commences, that is to say, after the consequences reserved in clauses 7 and 8 of Exhibit A would have occurred, the Appellants will not have derived any rents from their premises until whenever the Respondent decides.” I must say that this argument is speculative.

It has overlooked the reality of the situation. The fact of the matter is that after the cessation of hostilities (Nigerian Civil War) the parties returned to Onitsha. The defendant approached the plaintiffs and intimated them of his readiness to commence work on the erection of the house. The plaintiffs would have none of that. They refused. This posture was confirmed by the plaintiffs in their evidence at the trial. The 2nd plaintiff testified as P.W 1. In his evidence under cross-examination he said: “I am not prepared to allow the defendant to come and erect the building lease in the premises now if he completes the agreed sum in the lease agreement.” The fourth plaintiff testified as P.W. 2. Under cross-examination he said: “I am not prepared to accept N1,960.00. I am not prepared to abide by the terms of Exh. ‘A’ any more.” I find it particularly plain from the evidence of the plaintiffs that it was the plaintiff who refuse to abide by the agreement, and chose rather to go to court. That apart, I think the plaintiffs gambled on the fact that it might or might not take some time for the defendant to erect the building in question.

I say this because in respect of their own building they stipulated a time frame. They gave the defendant one year within which to put up the building. The defendant complied and the plaintiffs occupied the same before the outbreak of’ the Nigerian Civil War. I believe the plaintiffs knew the probable consequences of not providing the time (period) within which the defendant should complete the second house which was tied to the commencement of the term of the lease. They cannot now be heard to complain. I come now to the issue of rent and mense profits. As I have already stated the defendant has not gone into occupation of the premises. The reason is clear. By clause 8 of Exhibit A it is only after the defendant had completed his building in front of the premises, and had obtained a certificate of occupancy from the Local Council that he would move in. Again by clause 8, the defendant would pay a sum of £980 before he commenced work on the building. No work has commenced yet on the building. This is because the plaintiffs refused to be bound by the lease agreement. Now the sum of £980 and the sum of £100 already paid by the defendant was to count for three months rent in advance. But rent would only fall due after the contingencies reserved in clauses 7 and 8 Exhibit A would have occurred.

The plaintiff appreciated this fact when in their brief they said: “Further as the rents may fall due when the term commences, that is to say, after the contingencies reserved in clauses 7 and 8 of Exhibit A would have occurred, the Appellants will not even derive rents from their premises, until whenever the Respondent decides.” Surely it must be seen that rent on the premises was not yet due. If follows therefore that at the stage when this action was brought the claim for rent was premature. A demand for rent does presuppose that rent was due. This is clearly not the case. Be that as it may, there is no appeal against the award of rent in the sum of N15,640.00 to the plaintiffs. I shall therefore say no more. In the result this appeal fails and I dismiss it. The plaintiffs’ claim is dismissed. I affirm the judgment of the court below. There shall be costs to the defendant which I assess at Nl0,000.00.

SC. 175/1996