Witt & Busch Limited V Hadji Sulu Alli-balogun (1963)

LawGlobal-Hub Lead Judgment Report

TAYLOR, F.J

The plaintiff, who is the respondent in this appeal, sued the defendant Company claiming a de­claration that the said Company had incurred a forfeiture of their lease dated the 15th August, 1951 in respect of the premises known as 63-69 Broad Street, Lagos. The plaintiff also sought to recover possession of the premises by virtue of the forfeiture incurred.

The learned trial Judge came to the conclusion that there was a breach as a result of which a forfeiture was incurred, and ordered the defendant Company to deliver up possession of the said premises to the plaintiff on or before the 17th May, 1962.

The defendant Company, who will now be referred to as the appellants, have appealed against that Judgment and have sought and obtained leave to file and argue the six additional grounds of appeal attached to their applica­tion in this connection.

The respondent and his brother, now deceased, demised the premises in dispute to the appellants by a lease dated the 15th August, 1951 for a term of twenty-five years at a rent of £450 per annum. By virtue of clause 2(vi), the appellants covenanted:

“Not to assign, underlet or otherwise part with the possession of the demised premises or any part thereof without first ob­taining the consent of the lessors in writing”.

Sometime after this demise, the National Bank of Nigeria Ltd. dis­puted the title of the respondent and his brother to a portion of the demised premises and entered into possession of same. The respondent and his brother together with the appellants as plaintiffs took action against the Na­tional Bank and others to wit Suit L.D./361/55. This action was consolidated with another suit by the respondent and his late brother against the National Bank of Nigeria Ltd. and others, Suit L.D./159/57. Judgment was given by Coker, J., on the 27th October, 1959 and in so far as it relates to the parties to this appeal and the property in dispute the effect of this judgment was that possession of the portion of the premises above referred to was ordered to be delivered up to the present appellants and respondent as plaintiffs in those consolidated Suits by all the defendants in the action. The title of the present respondent and his late brother was confirmed.

Before judgment was delivered, and on the 16th day of November, 1956, the National Bank of Nigeria Ltd. as the lessors granted a lease of por­tion of the premises to the Governor-General of the Federation of Nigeria for a term of five years from the 1st June, 1956 at the rental of £5,250 per year (see exhibit “K”). Also in possession of a portion of the said premises as a re­sult of a lease granted by the National Bank was one A.S. Basmadjian. There is no document in evidence representing the terms of the lease bet­ween Basmadjian and the National Bank, but the former in his evidence says that he first moved into the premises about September or October, 1959.

It would appear from these proceedings, that after the judgment delivered by Coker, J., no steps were taken to enforce the order for possession on the National Bank of Nigeria Ltd. The next step taken was the writing of the letter dated the 30th May, 1960 to Mr. A.S. Basmadjian by Solicitors to the present appellants. I shall not quote the whole of this letter as it is quoted in full in the judgment of the trial Judge. I shall here only say that in parag­raph 2 of same the letter refers to the judgment of Coker, J., and gives the impression that possession was granted to the appellants without any refer­ence to the respondent.

Paragraph 3, I quote as follows:­

“Our clients are prepared and willing that you should attorn tenants to them and they are ready to negotiate terms with you on a reasonable basis. Failure to arrive at settled terms within a week of the date of this letter will compel us to levy execution for possession in terms of the judgment and the blame for that will attach to nobody else but yourselves. We therefore trust that you will co-operate with us in your own interests.”

The copy of the letter sent to the Nigerian Government as the other les­sees of the National Bank, who will from now be referred to as the Chief Federal Lands Officer, was not put in evidence, but it is clear from the con­tents of exhibit “H”, the reply, that a letter of the same date and of similar contents was sent to the Chief Federal Lands Officer by the said Solicitors to the appellants. There is no letter tendered in evidence written by Mr. A.S. Basmadjian in reply thereto. Exhibit “H” however is the reply of the Chief Federal Lands Officer and his reply was not unfavourable. The fourth parag­raph reads as follows:­

“As soon as I have a firm reply from the bank (i.e., the Na­tional Bank), which as explained above is not expected for two or three weeks, I shall communicate again with you. Meanwhile, in view of the strong possibility that amicable settlement will be found in this rather difficult matter, I have to enquire whether your clients are prepared to wait rather longer than the period of one week contained in your letter before any undertaking on be­half of Government that the rent for the last year of the term will not be paid over to the National Bank without prior notice being given to you.”

That A. S. Basmadjian agreed to the suggestion contained in exhibit “J” shortly after it was sent to him can be gathered from his own evidence where he says that: