Olanrewaju Commercial Services Limited V. Mrs Jumoke Sogaolu & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

U. I. NDUKWE-ANYANWU,J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Lagos State, Lagos Division delivered on 30 June, 2010. The 1st Respondent, as claimant in the lower court, claimed the following Reliefs against the Appellant as 1st defendant and another in its amended Statement of Claim of 28 March, 2005:-

1. A Declaration that the various acts, conduct and or neglect (sic) Defendant in respect of the building agreement over property situate at 52, Alof Street, Lagos Inland, Lagos is a breach of contractual agreement mutually mode between the Claimant and the defendant.
2. A Declaration that the Claimant is entitled to recover possession of the premises situate at 52, Alof Street, Lagos Island, Lagos and reimbursement of all payments and expenses made by the Claimant as a result of refusal and or neglect by the Defendant to pay or perform statutory or contractual duties in respect of property situate at 52, Alof Street, Lagos Island, Lagos.
3. A Declaration that the Claimant is entitled to original copy of the approved Building Plan in respect of property situate at 52, Alof Street, Lagos Island Lagos and all relevant payment receipt.
4. A mandatory order compelling the Defendant to surrender forthwith original approved Building Plan and all payment receipt and document of the property lying, situate and being at 52, Alof Street, Lagos Island, Lagos to the Claimant forthwith.
5. An order of injunction restraining the Defendant from doing any act or further acts inconsistent with Claimant Legal and Beneficial right of ownership in and over 52, Alof Street, Lagos Island, Lagos.
6. The sum of N252,680,00 being special damages resulting from various payment made by the Claimant on behalf of the Defendant and which sum the Defendant has failed,neglected and omitted to refund to the Claimant despite repeated demand.
7. The sum of N1,000,000.00 as general damages as a result of Defendant breach of the agreement and cost of this suit.

After a full trial, the learned trial Judge gave her considered judgment in favour of the 1st Respondent.

Being dissatisfied, the Appellant filed a notice with nine grounds of appeal. The Appellant filed his Appellant’s brief on 4 October, 2012 and articulated five issues for determination. They are as follows:

“1. Whether the learned trial judge was right in her conclusion that the 1st Respondent was entitled pursuant to the Building Development Agreement (Exhibit 4) to a shop on the ground floor and exclusive possession of the roof top of the developed property

2. Whether the unilateral commercialization of the decked roof top by the 1st Respondent did not amount to a breach of the Terms of Exhibit 4.
3. Whether in the circumstances of this case, the Appellant was in breach of clauses 8 and 9 of Exhibit 4
4. Assuming but not conceding that the Appellant was in breach of the aforesaid clauses, whether in the circumstances of this case, the said breaches and other actions of the Appellant amount to breach of fundamental terms sufficient to warrant the repudiation of the entire contract.
5. Whether the learned trial judge was right in dismissing the Appellant’s counter claim.”

Also filed is the reply to 1st Respondent’s brief on 4 October, 2012.

The 1st Respondent had earlier filed a cross appeal which he later abandoned. The 1st Respondent’s brief was thereafter filed on 11 October, 2012 and articulated four issues for determination. They are as follows:

1. Whether the learned trial judge was not correct to decline Appellant prayer for entitlement to possession of Shop pursuant the Building Development Agreement which has NO REFERENCE to shop in any clause relating to some.
2. Whether from the express term of the Building Development Agreement, Appellant have any legal interest in and over the last floor roofed by concrete decking or at all.
3. Whether failure by the Appellant to comply with the mandatory as agreed and Statutory Provision to insure the property and register same is not a fundamental breach to warrant forfeiture of the property and as avoid the agreement according to the statutory over registration of instrument Law of Lagos State.
4. Whether the judgment of Lagos State High Court should not be affirmed to forfeit the interest of Appellant on 1st Respondent property after Appellant had successfully alleged title in one Stella John and failed and neglected to register the instrument pursuant to Land instrument Registration Law of Lagos State.

The 2nd Respondent filed its brief on 1 August, 2013 but deemed properly filed and served on 26th November,2013. In it, the 2nd Respondent articulated two issues for determination. They are as follows;

1. Whether by virtue of the Building Development Agreement Exhibit 4, the Appellant could lay any claim or assert any right to the decked roof top of the property with the 1st Respondent?
2. Whether the Lower Court was right in dismissing the Appellant’s Counter Claim for an injunction and alleged trespass by the 2nd Respondent?

In a nutshell, the Appellant is a finance developer that went into a contract with the 1st Respondent to build a 3 Storey Building.

The Appellant was to take the whole of the ground floor, 1st floor and 2nd floor. The 1st Respondent was to take the 3rd floor. The roof was decked and left open without anybody having it. They placed their water tanks on that deck. The 1st Respondent also used it for her church activities without disturbance for so many years. The parties executed an agreement after the initial negotiation on 9 March, 1992 and admitted in evidence as Exhibit 1.

During the execution of this contract, the building collapsed. The parties still entered into another contract dated 1 July, 1993 which was admitted in evidence as Exhibit 4. The Appellant was supposed to remain in possession of his floors for a period of 23 years, commencing at the completion of the building. Clause 9 of their agreement stated;

“that the Appellant shall be responsible for payment of solicitor’s fees, electricity bills consumed on the ground, first and second floor, ‘be of the water rate together with any other expenses made for the preparation and “Registration of these”.

In 2004, the 1st Respondent let the open space roof top of the building to the 2nd Respondent. A lot of bad blood developed between the Appellant and the 1st Respondent. The Appellant said it went into negotiations with the 1st Respondent.

The terms of the so called negotiations were thereafter reduced to writing. The 1st Respondent refused to sign that document. It appears that the situation deteriorated and culminated in the 1st Respondent taking out a suit claiming the reliefs already recapped.