Patrick Ossai V. Victor Ossai Nwajide & Anor (1975)
LawGlobal-Hub Lead Judgment Report
G. S. SOWEMIMO, J.S.C.
This is an appeal against the judgment of Oputa, J., delivered at the High Court, Onitsha, on the 26th of September, 1972 in which he entered judgment for the plaintiffs, now respondents before us, against the appellant who was defendant before him. The claim before the lower court reads:-
“1. Both the Plaintiffs and the Defendant reside at Onitsha.
2. The Plaintiffs claim against the defendant as follows:-
(a) Declaration that the lease of premises situate at and known as 37, Nottidge Street, Onitsha by the Defendant to the Plaintiffs as contained in lease Agreement dated the 1st day of February, 1960 has not been determined.
(b) An Account of all rents and profits realised by the Defendant by unlawfully letting out the property embraced by the said lease from the 1st day of June 1970 and the payment to the Plaintiffs of the amount so realised.
(c) 500 (Five Hundred Pounds) damages for trespass to the said property.
(d) An Injunction restraining the defendant, his servants and/or Agents from further acts of trespass on the said property.
The evidence before the learned trial Judge, which was not disputed by either party, is that the two plaintiffs entered into a Deed of Lease for 21 years in 1960 for two shops owned by the defendant. The lease though executed in 1960 was not registered until 7th September 1971. Rents were paid up to 1967 when both parties had to leave Onitsha because of the then civil war.
In 1970, both parties returned to Onitsha and it would appear, from photographs tendered in evidence before the learned trial Judge, that the two shops suffered some damages during the war. The plaintiffs approached the defendant to re-occupy the two shops but the latter demanded arrears of rent from 1968 and 1969 respectively, as well as the cost of repairs to the damaged shops. The Plaintiffs asked for time to pay the arrears, and requested that, in the meantime, they be allowed to re-occupy the two shops. This request was refused by the Defendant. Early in 1971, 4th March to be exact, the Plaintiffs sued the defendant in the terms of the writ.
During the hearing of the case on the 5th Ocotober, 1971, the Deed of Lease was tendered as Exhibit 1. This Deed was registered as No. 74 at page 74 in Volume 459 of the Land Registry at Enugu on the 7th of September 1971, although as earlier pointed out it had been executed since 1st of February, 1960.
It thus follows that, at the time that the plaintiffs filed their writ on the 4th March 1971 and their statement of claim on the 15th June, 1971 and the defendant filed his Statement of Defence on 8/7/71, Exhibit 1 had not been duly registered as required by the mandatory provision of Section 15 of the Land Instruments Registration Law, Cap 72 in Volume 4 of the Laws of Eastern Nigeria, 1963, which is the applicable law. The section reads:-
“15. No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered:
Mr. G. R.I. Enogu, learned counsel for the appellant, argued on ground 3 of the appeal that since Exhibit 1 was not registered until 7th September, 1971 it could not be pleaded nor given in evidence until it has been registered.
The Plaintiffs in their statement of claim averred as follows:
“3. In or about the year 1959 the Plaintiffs paid to the defendant the sum of one thousand and eighty pounds to build the grounds floor of a house situate at the said 37 Nottidge Street. In consideration whereof the defendant granted a lease of two shops on the said ground floor of the said building to the plaintiffs for a term certain of 21 years.
“4. Whereupon the plaintiffs and the defendant entered into an agreement dated the 1st February, 1960 with the following provision, to wit,
(a) “The said sum of 1,080 shall be used for building the first floor of the said 37, Nottidge Street, Onitsha to its completion.”
(b) “The rent reserved unto the Lessor payable by the Lessees shall be 120 a year.”
(c) “The said sum of 1,080 shall be repaid by the deduction of the sum of 60 a year by the Lessees from the rent of 120 reserved unto the Lessor as aforesaid, until the whole amount of 1,080 is fully paid.”
(d) “The balance of the annual rent, 60 that is to say, shall be paid by six equal two monthly instalments of 10, each instalment being payable in advance.”
(e) “That the Lessees shall keep the shops in a good state of repair.”
(f) “The Lessees shall, at the expiration of the term quietly yield up possession of the said shops to the Lessor.”
(g) “The Lessees shall pay all lawful rates, taxes, assessments and outgoings of a commercial nature now made or hereafter to be made, which now affect or will hereafter affect the two shops hereby demised.”
(h) “The Lessees shall allow the Lessor, at all reasonable times, to enter and view the said shops.”
(i) “The Lessees shall be entitled to assign, sublet or under let all or any of the said shops.”
(j) “The Lessees, performing the several covenants on their part herein contained, shall quietly hold and enjoy the said shops without interference from the Lessor or any one claiming under him.”
5. The Plaintiffs continued to pay their rents in accordance with the terms of the said agreement up to and including December, 1967.”
The defendant in paragraphs 4, 5, 6 & 7 of his Statement of Defence averred as follows:-
“4. The defendant denies paragraphs 3 and 4 of the Statement of Claim and puts the plaintiffs to the strictest proof of every material allegation of fact therein contained.
5. On the 1st day of February, 1960, the defendant let to the plaintiffs two of the shops on the ground floor of his storey building at 37, Nottidge Street, Onitsha, upon a number of conditions which included that the plaintiffs shall pay in advance the rent of the two shops and shall keep the two shops in a good state of repair.
6. The rent of the two shops was 120 a year, but it was agreed between the defendant and the plaintiffs that the plaintiffs should apply 60 a year out of the said rent towards the settlement of a loan the plaintiffs granted to the defendant.
7. Up to the end of 1967, the plaintiffs paid to the defendant the yearly balances of the rent of the two shops after decucting the yearly sum of 60 as stated in paragraph 6 of this Statement of Defence.”
At the close of pleadings it is quite clear that the Plaintiffs did not plead any registered instrument as being the basis of their claim, because, if the deed of lease had been registered, which on the evidence was done subsequently after the close of pleadings, the registration particulars and date of registration would have been pleaded.
At this stage it was open for the learned trial Judge to strike out the pleadings for two reasons:
(a) because no registered instrument of lease was pleaded as required by law, and
(b) the defendant had denied the existence of the lease pleaded.
In fairness to the learned trial Judge however, this being a civil case one would have expected the learned counsel for the appellant to raise this point and, if he had done so, there would have been no need for the subsequent evidence that was led because it was during that evidence that was led that the deed of lease was tendered. As we have remarked earlier, owing to the lateness of the registration, it could not have been pleaded. The learned counsel for the appellant did not raise this matter at the close of the case before the learned trial Judge and therefore it was not possible for the Judge to make any comment one way or the other in his judgment. It is therefore enough in the circumstances of this case to say that the learned trial Judge ought to have struck out the pleadings thereby rendering unnecessary the later evidence adduced which went to no issue. We do not deal with the other grounds of appeal argued, in view of what we have earlier on mentioned above.
The result is that this appeal will be allowed on the ground that, as no triable issue was before the Judge because he should have struck out the particular pleading of the unregistered lease, the judgment cannot be allowed to stand.
The appeal will be allowed and the judgment of the learned trial Judge set aside; and, in substitution therefor, we order that the particular pleading in the case should be struck out as well as the case itself.
In view of the circumstances in which this point was raised before us we did not consider that the appellant is entitled to costs in this court. The cost awarded in the lower court in favour of the respondents is hereby set aside and this shall be the judgment of the court.
Other Citation: (1975) LCN/2041(SC)