ADESEGUN OGUNSANYA & ANOR v. SKYE BANK PLC
(2013)LCN/6158(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of May, 2013
CA/L/768/2009
RATIO
CONTRACT: WHETHER A COURT CAN IMPOSE WHAT PARTIES DID NOT AGREE TO ON THEM
In DOHERTY V. ALIMAN (1878) 3 AC. 709, it was held inter alia that if parties for valuable consideration, with their eyes open contract that a particular thing shall not be done, all that a Court of Equity has to do is to say by way of injunction, that which the parties have already said by way of covenant that the thing shall not be done.PER RITA NOSAKHARE PEMU, J.C.A.
LAND LAW: WHO HAS THE DUTY OF OBTAINING GOVERNOR’S CONSENT
“But the law recognizes that it is the holder of the statutory right of occupancy who seeks to alienate his property that has the duty to seek and obtain the consent of the Governor to the transaction – UGOCHUKWU v. COOPERATIVE AND COMMERCE BANK LTD (1996) 6 NWLR (pt. 456) 524; OWONIBOYS TECHNICAL SERVICES LTD V. UNION BANK OF NIGERIA PLC (2003) 15 NWLR (pt 844) 545; AMADI v. NSIRIM (2004) 17 NWLR (pt 901) 111. And where he fails to apply for consent, the law will not allow him to rely on his own wrongful act and contend that the sale or lease agreement is void and unenforceable as he will not be allowed to benefit from his own wrong doing – SOLANKE V. ABED (1962) 1 SCNLR 371; MOHAMMED V. ABDULKADIR (2008) 4 NWLR (pt. 1076) 111.”PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
1. ADESEGUN OGUNSANYA
2. PRINCE ADEOYE OGUNSANYA Appellant(s)
AND
SKYE BANK PLC Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): At the lower Court, the Claimants/Appellants had initiated an originating summons in Suit No IKD/M/8/2009 dated and filed on the 10th of February, 2009 against the Respondent, in that by virtue of
(1) The Letters of Administration (without will) No PHC. 2, 211/92 dated 20th November, 1992 of the real and personal property of Simeon Babatunde Adeola Ogunsanya of 22, Rademo Compound, Hundu Street, Ikorodu, Lagos State and
(2) The Certificate of Occupancy No 53/53/1996K dated 15th December, 1995 and registered as No 53 on page 53 in volume 1996K of the Register of Deed kept at the Lagos State Land Registry, Lagos, Nigeria.
they are the holders of the statutory right of occupancy of the land, pursuant to Section 34(2) of the Land Use Act, and are thereby entitled to possession. And that the person in occupation is/are in occupation without their licence or consent. – Page 1 of the Record of Appeal.
The originating summons is supported by an affidavit of nine (9) paragraphs deposed to by one Subulola Aishat Guillo, Legal Practitioner in the Law Firm of the Claimants/Appellants’ Solicitors, for, and on behalf of the Claimants – pages 2-5 of the Record of Appeal.
The Claimants/Appellants’ affidavit in support of the originating summons in essence, states facts regarding their title and interest in the land, and the circumstances in which the land and building(s) have been occupied without their knowledge, licence or consent were stated, and out of which their claim for possession arises.
The Claimants/Appellants story at the lower court can aptly be put thus:
The claimants/Appellants’ father and predecessor in-title purchased the premises and parcel of land, in April 1945. The Claimants/Appellants permitted Eko International Bank of Nigeria Plc to enter the land to erect a building thereon.
There is no privity of contract between the Claimants/Appellants and the Respondent in respect of the building erected on the land by Eko International Bank of Nigeria Plc.
The Claimants/Appellants’ claim for an order of recovery of possession of the land in dispute must fail, because they are not in possession of the land in dispute at the time this action was brought, due to the Respondent’s purported squatting and trespass on the land.
The Respondent had filed a Counter affidavit in response to the originating summons – pages 25-27 of the Records. In essence, while admitting that there is a lease agreement between the Appellants and Eko International Bank Plc, of 40 years, Eko International Bank (EIB) however, is one of the five banks that merged into the present Skye Bank Plc, and consequently Skye Bank Plc, had taken on all the assets and liabilities of the five banks so merged. Consequently the Respondent has now taken over the 40 years lease of EIB granted by the Claimants/Appellants.
Written addresses were exchanged by the parties, and the learned trial Judge delivered Judgment on the 1st of July, 2009 dismissing the Claimants/Appellants’ suit.
The Claimants/Appellants are dissatisfied with the decision of the lower Court and have appealed it.
Pursuant to the Practice Directions of this Honourable Court, the Appellants filed a Notice of Appeal on the 18th of September, 2009 with ten (10) Grounds of Appeal – pages 182-193 of the Record of Appeal. Briefs of Argument were filed by the respective parties. The Appellants filed their brief of argument on the 20th of April, 2010, while the Respondent filed his brief of argument on the 6th of November, 2012 out of time.
Learned counsel for the parties adopted their respective briefs of argument on the 11th of February, 2013.
In their brief of argument, which is settled by Babatunde Oshinlaja Esq., the Appellants distilled five (5) issues for determination – pages 6-8 of the Appellants’ brief of argument. They are
(a) “Whether in the circumstances of this case the photocopy of the undated and unregistered lease agreement made by the Appellants and Eko International Bank Plc. and thrice annexed to the affidavits filed by the Respondent is an instrument affecting land which can be pleaded and admissible in evidence for the purpose of proving alienation of the term of years lease created out of the statutory rights of occupancy of the Appellants on their land involved in this case in violation of the provision of Section 15 of the Land Instruments Registration Law, Cap 111, Laws of Lagos State of Nigeria, 1994.”
(b) “Whether it is essential to the validity of the alleged lease agreement between the Claimants/Appellants and Eko International Bank Plc. that the parties should agree on what date the term of forty years created is to commence and that such agreed date shall appear either in express terms or by reference to some writing which would make it certain or by reasonable inference from the language used. Alternatively, whether in the circumstances of this case the photocopy of the undated unregistered lease agreement made by the Appellants and Eko International Bank Plc (prior to 10th January, 1995) and thrice annexed to affidavits filed by the Respondent created any valid lease contract between the parties thereto without any definite commencement date or any certain, known and or ascertainable commencement date.
(c) “Whether the Appellants could discharge their obligation under Section 22 (2) of the Land use Act as holder of the statutory right of occupancy seeking to alienate part thereof by creating a forty years lease without submitting or and delivering the instrument executed in evidence of the lease agreement for the consent of the Governor to be signified by endorsement thereon. In addition, whether depositions/facts contained in a counter-affidavit which are not false to the knowledge of the Court but remain unchallenged, undisputed or uncontroverted and undenied by the adversary in a reply or further affidavit must be deemed true by the Court and accepted as some of the established fact in the case.”
(d) “Whether in the special particular and peculiar circumstances of this case the learned trial judge was justified in his decision that the operations and applications of the provisions of Sections 22 and 26 of the Land Use Act could be waived or rendered inoperative or and inapplicable or inconsequential. Alternatively, whether there is any power by statutory or common law or judicial authority reserved to the Court to waive compliance with the mandatory consent regime provided in Section 22 of the Land Use Act and the consequences of absence of Governor’s consent to alienation provided in Section 26 of the Land Use Act as purportedly exercised by the lower Court in this case.”
(e) “Whether the learned trial judge failed in its duty to resolve conflicts of material facts in the affidavit evidence of the parties on the commencement date of the lease agreement and whether such failure, if any, has occasioned any miscarriage of justice to the Claimants/Appellants in the circumstances of this case. Alternatively, whether the non-resolution of the conflict in the affidavit evidence of the parties in this case on the issue of the commencement date of the lease contract agreement vitiated the eventual judgment of the lower Court in this case.”
The Respondent in his brief of argument settled by M.O. Abudu, distilled three issues for determination – pages 2-3 of his Brief of Argument.
They are:
(1) “Whether there was any lease agreement between the Appellants and the Respondent?”
(2) “Whether the non-registration of the lease agreement in this case on its own makes the lease agreement not admissible at all in this case?”
(3) “Whether the lack of Governors Consent to the lease agreement between the Appellants and the Respondent pursuant to Section 22 and 26 of the Land Use Act makes the Lease Agreement invalid and null and void ab inito?”
The Appellants sought indulgence of this Honourable Court to argue Issues b, c, d and e in their Brief of Argument together which grounds are related to, and connected with Grounds 1, 2, 4, 5, 6, 7, 8 and 9 of the Grounds of Appeal. They had classified their arguments into three segments under the following headings namely:
(i) Lack or absence of agreed commencement date of the lease agreement.
(ii) Non-compliance with the provisions of Section 22 of the Land Use Act.
(iii) Violation of Section 26 of the Land Use Act.
The Appellants had argued, that it is trite that for there to be a legal and valid lease, the essentials are that certain material terms must be ascertained, determined or established. These material terms in a lease which are prerequisites includes the parties, the property, the length of the rent, and the agreed date of commencement must be defined.
They argue that an agreement for a lease must state the beginning and duration of the term – INTERNATIONAL ILE INDUSTRIES (NIG) LTD. V. DR. A.O. ADEREMI (1999) 8 NWLR (Part 614) 268 at 311 G-H.
They postulate that this appeal, in part, concerns the non-existence and un-ascertainability of an agreed commencement date of the forty years term created by the Appellants, and Eko International Bank Plc, and the failure of the trial Judge to resolve the conflict in the affidavits of the parties with regard to the lack of consensus between the parties, on the commencement date of the forty years created by the lease agreement, and that this failure affected his essential decision or Judgment to the prejudice of the Appellants. Citing MARSHALL V. BERRIDGE (1881) 19, CH. D. 233 at 245 where LUSH L.J. observed inter alia
“A term of years can only be defined by indicating the beginning and the end. There must be a certain beginning and a certain ending, otherwise it is not a perfect lease…”
The Appellants had referred to the lead authorities of WOODFALL ON LANDLORD & TENANTS 28TH EDITION VOL. 1 PARAGRAPHS 1-0335; CHITTY ON CONTRACTS 24TH EDITION PARAGRAPH 237 ON PAGES 114-115.
They submit that the forty years created by the Appellants and Eko International Bank Plc in this case, was expected to commence from the date of the lease agreement. They further submit that in order to prove that the forty years lease involved in this case is valid and subsisting, it was necessary to prove the date of its commencement, citing BISICHI TIN COMPANY LTD V. COMMISSIONER OF POLICE (1963) NWLR 71 @ 72.
That there is no enforceable contract which exists and a fortiori Eko International Bank Plc do not have any interest in the property to either assign or pass to the Respondent, citing HARVEY v. PRATT (1965) WLR 1025.
They submit that the lack of date the lease was made, or the date of execution of the lease agreement makes the commencement date thereof, which was expressly made calculable, with reference to that date unascertainable and indeterminate, which absence have vitiating effects on the validity of the written lease agreement, and the same is void and a nullity ab initio citing JAIYEOLA v. AKINBO & ORS (1959) WRNLR 299; UNITED BANK FOR AFRICA LTD V. TEJUMOLA & SONS LTD. (1988) 2 NWLR (PT. 79) 622.
The Appellants submit that the tower Court failed to closely examine and scrutinize documentary exhibits/evidence placed before it. And in the course of its evaluation, or ascription of probative value to the photocopy of the written lease agreement were wrong, incorrect and perverse – citing MOHAMMED V. ABDUL KADIR (2008) 4, NWLR (Pt. 1076) 111.
The Appellants submit that the rule involved on this point is a rule of law which is direct, and governs this particular point, and a departure cannot be justified by equity, referring to Story on Equity (3rd Edition 1920) page 34.
They submit that the issue of the absence of commencement date of the forty years lease, was presented to the lower court, by way of conflict in affidavit evidence of the parties on material issues of fact. That while the Appellants had deposed to the fact that the lease agreement commenced in 1995, the Respondent had deposed in reply, to the fact that the lease agreement was made in 1998. Therefore, they submit, there was a clear and apparent and undisputable conflict in the two affidavits of the parties as to the commencement date of the forty years lease.
They submits that it is trite that when there is conflict in affidavit evidence of the parties, on maternal issues of fact, the trial Judge is obligated to call for evidence on oath to resolve the issues of credibility citing EBOH & ANOR v. OKI & ORS (1974) 1 All NLR (pt. 1) 280; UKU & ORS v. OKUMAGBA & ORS (1974) 1 All NLR (pt. 1) 475; OLU-IBUKUN v. OLU-IBUKUN (1974) 1 All NLR (Pt. 1) 573; ASOL (NIG) LTD. v. ACCESS BANK PLC (2009) 10 NWLR (pt. 1149) 283 @ 307.
That the failure of the lower Court to call for evidence to resolve the issues was a breach of an important evidential rule of practice and Submits that a look at the letter dated 10th January, 1995 placed before the lower Court, particularly its paragraph 3, shows that the lease agreement had been executed, and the related rents of N720,000 for the first ten (10) years had been collected by cheque before the letter was written. That the dates on which these transactions or events took place were not stated in the letter, and they remain unknown to the Respondent, who claims to succeed Eko International Bank Plc to the alleged subsisting lease on the land. That there is no other document. That no other document had been produced which support the deposition of the Respondent, that the lease agreement was made in 1998. That the averment by the Respondent that “a sum of N720,000 (Seven Hundred and Twenty Thousand Naira) was paid in 1998 by EIB for the initial 10 Years at the rate of N720,000 (Seven Hundred and Twenty Thousand Naira only” is against, and in conflict with the express letter of Eko International Bank dated 10th January, 1995 aforesaid.
The Appellants had denied the receipt of the sum of N720,000 by Eko International Bank Plc in 1998.
Submits that the Judgment of the learned trial Judge in this case was based on the lower Courts’ erroneous appraisal, evaluation of, and ascription of probative value to the unregistered, undated, and inadmissible photocopy of the lease agreement lacking in, or in which the agreed commencement date of the term created, was unknown, uncertain and unascertainable by any means whatsoever.
Arguing on the non-compliance with the provisions of Section 22 of the Land Use Act and violation of Section 26 of same, the Appellants submit, that assuming but without conceding that this Court do not agree that an unregistered lease agreement without an agreed commencement date of the term created thereby by the parties (as the one involved in this appeal) is valid and subsisting, as held by the learned trial Judge, the relevant question is whether there is any power exercisable by the lower Court in this appeal, to waive non-compliance with the mandatory provisions of a statutory enactment, requiring the consent of the Governor to the validity of an instrument creating a legal estate over land, or, and alienating a statutory enactment requiring the comment of the Governor to the validity of an instrument creating a legal estate over land or, and alienating a statutory right of occupancy or any part thereof under the Land Use Act, or any other law. And if there is any such power, under what circumstances and conditions would the Court consider exercising such a waiver, or ignoring the non-compliance as inconsequential.
They submit that by the Provisions of Section 26 of the Land Use Act, the trial Court is bound to reject of its own, an instrument purporting to create a legal estate, or alienate a statutory right of occupancy, or any part thereof, as the photocopy of the unregistered lease agreement filed with affidavit evidence of the Respondent aforesaid in this case, by reason of lack or absence of the mandatory statutory consent of the Governor. Citing Section 22 of the Land Use Act, they submit that same prohibits any transactions or instrument, whereby the holder of a statutory right of occupancy, purports to alienate his right of occupancy, or any part thereof, as a complete action in any legally acceptable form of transfer, without first seeking and obtaining the consent of the Governor. They submit that where the lease contract and its purport be the alienation of right of occupancy, which is forbidden by statute law, no Court will lend its assistance to give it effect.
It is their argument, that in so far as the photocopy of the undated lease agreement executed by the Appellant, and Eko International Bank Plc seeks, or purports to alienate a term of years, being part of the statutory right of occupancy of the Appellants in the land in dispute, without the requisite validating and effectuating statutory consent of the Governor as required by Section 22 of the Land Use Act to that extent, it fell within the Provisions of Section 26 of the Act and consequently it is null and void. QUEEN V. THE MINISTER OF LAND & SURVEYS EX PARTE BANK OF THE NORTH (1963) NWLR 58; SAVANNAH BANK LTD. & ANOTHER v. AJILO & ANOTHER (1989) 1 NWLR (part 97) 305.
The Appellants had argued, that the court was faced with facts provable by affidavit evidence, when the Claimants/Appellants deposed to facts viz:
(i) The failure of Eko International Bank of Nigeria Plc to release or deliver the instrument evidencing the transaction or the original document executed by the parties embodying the lease agreement despite repeated requests and efforts made over a period of five (5) consecutive years to retrieve the documents for the purpose of applying for and obtaining the statutory comment to the lease agreement.
(ii) the statement credited to the Company’s Secretary/Legal Adviser of Eko International Bank Plc to the effect that the Bank will directly handle the process of applying for and obtaining the consent of the Governor to the transaction.
(iii) the misplacement of and inability of Eko International Bank Plc to find, produce and deliver the instrument evidencing the transaction or the original documents embodying the lease agreement, after its execution by the Bank and
(iv) the impossibility of applying for and obtaining the consent of the Governor to the lease agreement without submitting or delivering or presenting the original executed agreement of the parties mode under Section 22(2) of the Land Use Act; the Respondent has a duty to swear to an affidavit to the contrary if they dispute these facts.
In this case, they failed to controvert by way of a reply, or further affidavit, all these facts, or any of them. The facts are therefore deemed admitted by the Respondent and established by the Appellants. Also refers to paragraphs 10 and 11 of the Counter affidavit of the Claimants/Appellants.
Referring to page 170 of the Record of Appeal, they submit that the attention of the learned trial Judge was drawn to this fact, on the issue of undenied, unchallenged and undisputed facts.
However, they submit that the learned trial Judge failed to make any evaluation of the facts, and their implications, and no reasons for ignoring those facts were given.
They urge this Honourable Court to set aside the Judgment, as it is perverse – QUEEN v. OGODO (1961) part IV. All NLR 700.
Submits that the lease contract was one for the alienation of part of the statutory right of occupancy of the Appellants, subject to the grant of statutory consent to the transaction by the Governor, on the application of the Appellants.
That the statutory consent of the Governor is the foundation of the Contract. HIGHWAY PROPERTIES LTD. v. KELLY DOUGLAS & CO. (1971) 17. DLR (3d) 710 @ 721.
Referring to pages 31, 79 and 143 of the Record, he points to the recital in the photocopy of the lease agreement before the lower Court.
That the statutory obligation of the Appellants to obtain the Governor’s consent was frustrated, or made impossible of performance, by the failure of Eko International Bank Plc to either release, or deliver the instrument evidencing the lease contract agreement after its execution by the Bank to the Appellants, despite repeated demand for the purpose envisaged in Section 22(2) of the Land Use Act – KACHALIA v. BANKI (2006) 8 NWLR (pt. 982) 364 at 383.
They submit that the equitable doctrine of, what ought to be done is to be regarded as already done, cannot override the statutory requirement prior satisfaction of the Provisions of Section 22(2) of the Land Use Act regarding the consent of the Governor to the alienation.
Citing IRAGUNUMA v. R SHPDA, (2003) 12 NWLR (pt. 834) 436, they submit that equity must follow the statutory law and not override it. That apart from the undisputed facts in the counter-affidavit of the Claimants/Appellants, the Respondent in their letter dated July 10th, 2008 – Exhibit E attached to their counter-affidavit dated 18th March, 2008 (pages 42, 62 and 90 of the Record), made reference to the Original Lease Agreement made in 1998, yet they, on the 23rd of April, 2009 paid stamp duty on the undated photocopy of the lease agreement, which they had twice previously exhibited and filed in the lower court, without producing the alleged Original Lease Agreement made in 1998. Citing Section 149(d) of the Evidence Act, they submit that evidence which could be, but was not produced, was withheld because if it has been produced it would be unfavourable to the Respondent who withheld it. N.S.C (NIG) LTD v. INNIS-PALMER (1992) 1 NWLR (part 218) 422 at 435 B-E; DARE v. FAGBAMILA (2009) 14 NWLR (pt. 1160) 177.
Submits that the consent requirement of Section 22 of the Land Use Act, is not only mandatory, but also exterior and subsequent in date to the transaction requiring the Governor’s consent, and it is on the grant of the Governor’s consent that the legal and valid existence of the alienation in the lease agreement must be predicated. Otherwise, any instrument purporting to alienate any interest in a statutory right of occupancy, or any part thereof, shall in the language of Section 26 of the Land Use Act, be null and void for non-compliance with the provisions of the Act.
Submits that the Court, has no power in law, to waive non compliance with statutory conditions precedent to the validity of any transaction with statutory flavor under the Land use Act.
They submit that the proposal made by the Appellants, in August 2008 to the Respondent, was for a new lease contract to be made, to meet the statutory expectations/stipulations of the Land Use Act and the Land Instruments Registration, and Registration of Title, Laws of Lagos State and no more. That neither the parties nor the court can waive compliance with, or whittle down the requirement of statutory provisions which is clear and unambiguous citing CAC v. RTCCC (2009) 11 NWLR (pt. 1151) 40 at 61 g-h. That in this case, the N720,000 pre-paid by Eko International Bank Plc. ostensibly prior to January 1995 to the Claimants/Appellants (benefit), was intended to be, and actually was rents pre-paid for a running, and exhaustible term of ten (10) years, which has expired and therefore the equitable interest of the Bank (if any) had been satisfied and exhausted before the Claimants/Appellants instituted this case in the lower court in 2009, against the Respondent found on the land, hence there is no contractual, or any un-exhausted, or existing benefit or rent(s). Neither Eko International Bank Plc, nor Skye Bank Plc, has any record of payment of any other rents or money to the Claimants/Appellants, apart from the one stated in (b) above in respect of the Land or any term of years thereof involved in this case beyond the exhaustion of the N720,000 pre-paid, for ten years as aforesaid prior to January 1995.
Submits that a document which is null and void, for purpose of alienation of a statutory right of occupancy, or any part thereof, cannot be relied on, to vest any equitable title on the land, which it fails to alienate in law on any party – NIG. TELECOM PLC. V. ROCKONOH PROPERTY CO. LTD & ANOR (1995) 2 NWLR (pt. 378) 473 at 372-573.
Arguing issues 3.2 – he submits that the position of the Appellants on this issue, is that the photocopy of the undated lease contract agreement, executed by the Appellants and Eko International Bank Plc, is an instrument affecting land, within the meaning of the Provisions of Sections 2 and 15 of the Land Instrument Registration Law, Cap III Laws of Lagos State of Nigeria 1994, and same being unregistered, it shall not be pleaded or given in evidence in any Court.
He argues that despite this statutory prohibition, and in violation thereof the Respondent thrice attached as exhibit, the document to affidavits filed by them in this case in the lower court.
He submits that an instrument affecting any land which is registable, but is not registered, cannot be pleaded and given in evidence, and if pleaded would be inadmissible and liable to be expunged or ignored. That this case at the lower court does not involve pleadings and the affidavits filed by the parties are not pleadings.
Section 22 of the Land Use Act Cap L5 1978 has this to say
“It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise however without the consent of the Governor first had and obtained…”
Section 15 of the Land Instruments Registration Law Cap 11 Law of Lagos State of Nigeria 1994 says:
“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered.”
Section 26 of the Land Use Act says
“Any transactions or any instrument which purports to confer on or vest in any person any interest or right on land other than in accordance with the provisions of this Act shall be null and void.”
The Respondent had argued, that the issue of lack of commencement date of the lease was not made an issue at the lower court, neither was there any argument received on that point from the Appellants’ counsel and the Respondent’s counsel. That the issue was not the grouse of the Appellant in the originating summons, but that the Respondent in this appeal, not being a party to the lease agreement between the Appellants and Eko International Bank Plc (now Defendant), but which bank was merged with other bank, could not take the benefit of the lease agreement between the Appellants and Eko International Bank Plc. The fulcrum of the case of the Appellants at the lower court was that the Respondent is a stranger on the land of the Appellants, and as such, order 53 of the 2004 High Court of Lagos State Rules applied.
At page 1 of the Record of Appeal is the Originating Summons dated and filed 10th day of February, 2009. It is for an order, upon application by the Claimants, that they do recover possession of that piece or parcel of land and buildings at No 18 Ayangburen Road, Ikorodu, Lagos State on the grounds that by virtue of:
(I) The Letter of Administration (without will) No PHC 2.211/92 dated 20th November, 1992 of the real and personal property of Simeon Babatunde Adeola Ogunsanya of 22, Rademo Compound, Hundu Street, Ikorodu, Lagos State, and
(II) The Certificate of Occupancy No 53/53/1996K dated 15th December, 1995 and registered as No 53 on page 53 in Volume 1996K of the register of Deed kept at the Lagos State Land Registry, Lagos, Nigeria.
They are the holders of the Statutory Right of Occupancy of the Land, pursuant to Section 34 (2) of the Land Use Act, and are thereby entitled to possession, and that the person in occupation is/are in occupation without their license or consent.
In support of the Originating Summons is a nine (9) paragraphs affidavit.
In paragraph 6(viii) it has this to say
“The building erected on the land by Eko International Bank of Nigeria Plc aforesaid is in fact attached to the Claimants’ land and form part thereof.”
Paragraph 6(ix)
“The Respondent was not a party to the exhausted relationship between Eko International Bank of Nigeria Plc and Claimants and Eko International Bank of Nigeria Plc, dealt with each other in respect of the land and building aforesaid on the basis that neither of them was the Principal or Agent of the Respondent who was unknown.”
Paragraph 6(xii)
“On or about 1st January, 2006, the Respondent without the consent of the Claimants entered the Claimants’ property and trespassed on it and the Respondents are in occupation of the land and building without the Claimants license or consent.” – Pages 2-5 of the Record of Appeal.
In paragraph 3 of the counter-affidavit in opposition to the Claimants/Appellants’ originating summons, the Respondent had deposed thus:
Paragraph 3: “That there is a subsisting forty years lease between the Claimants herein and Eko International Bank.”
Paragraph 4: “That Eko International Bank (hereinafter referred to as EIB) is one of the five Banks that merged into the present Skye Bank Plc.”
Paragraph 5: “That Skye Bank Plc has taken over all the assets and liability of the five Banks so merged.”
Paragraph 6: “That Skye Bank Plc, in the particular situation of this case, has taken over the 40 years lease of EIB granted by the Claimants/Lessors shown to me.” Marked Exhibit A is a copy of the said subsisting lease.
Paragraph 7: “That the said lease commenced in the year 1998”
Paragraph 11: “That it was a bare land that was leased in 1998 to Skye Bank Plc (then EIB) upon which the branch of the Bank was constructed.”
Paragraph 12: “That the bank has expended a lot of money for the construction of the branch.”
Paragraph 13: “That the lease agreement provides for the rent payable for the 40 years and also a rent review clause is also included.”
Paragraph 15: “That the Defendant lessee has paid rent for the initial 10 years.”
Paragraph 16: “That the rent review formula as provided in the lease is that the rent will be increased with not more than 50% of the initial sum paid, and this review will be done every five years.”
Paragraph 17: “That at the expiration of the initial 10 years in 2008 when it was time to review the rent, the lessors were now asking for a fresh and outrageous rent of N94 Million (Ninety Four Million Naira) for the remaining 30 years inclusive of arrears of rent of the previous 10 years, thereby discountenancy the initial N720,000 (Seven Hundred and Twenty Thousand Naira) paid by the lessee and the terms of the subsisting lease.”
There was no reply, from records, to these depositions. The facts therein are in Law deemed admitted and uncontroverted by the Appellants.
Now the Respondent had argued that nowhere in the depositions in the various affidavit at the lower Court, or averments in the written addresses, did the issue of lack of commencement date of the agreement come up. That this is a fresh issue, and being a fresh issue, leave must be obtained from this court.
Noteworthy is that the Appellants filed no reply brief to the Respondent’s brief of argument.
Indeed Grounds 3, 4 and 5 of the Notice of Appeal dwell on the issue of lack of commencement date on the lease agreement, which issue was never brought up and canvassed at the lower court. It is my view that failure to seek leave of this Honourable Court to raise this fresh issue makes Grounds 3, 4 and 5 liable to be struck out and same are hereby struck out. Ipso facto issues a, b, e which flow from these Grounds of the Appellants’ issues for determination in their Brief of Argument are hereby struck out.
There are certain facts that are known to the parties. They include the fact that
(a) There was a lease agreement between the Appellants and EKO INTERNATIONAL BANK PLC.
(b) The lease agreement was for 40 years
(c) EKO INTERNATIONAL BANK PLC has now been inherited by the Respondent which implies that all its assets and liabilities are now vested in the Respondent, inclusive of the lease over the property in dispute.
(d) The Respondent is now in possession of the land in dispute.
(e) Eko International Bank had erected a building on the land.
The case of the Respondent is that there was a subsisting forty years lease agreement entered into, between the Appellants and Eko International Bank Plc, over the property in dispute, with effect from 1998.
Having struck out Issues a, b and e in the issues for determination, I am left with issues c and d, which deal essentially with the issue of lack of consent of the Governor, I shall consider both issues together.
If the lease agreement was entered in 1998, and the originating Summons issued in the year 2009, then Eko International Bank had only been on the land for eleven years.
In a letter dated 10th January, 1995, Eko International Bank Plc had written to one Gbade Ogunsanya of 3, Birrel Avenue, Yaba, Lagos, I shall reproduce the said letter verbatim as reflected at page 17 of the Record of Appeal.
“10th January, 1995
Mr. Gbade Ogunsanya
3, Birrel Avenue,
Yaba,
Lagos.
Dear Sir,
RE: LEASE OF 18 AYANGBUREN ROAD, IKORODU.
We refer to your letters dated 22nd November, 1994 and 5th January, 1995 in respect of the above subject.
By Letters of Administration dated 20th November, 1992, Mr. Adesegun Ogunsanya and Prince Adeoye Ogunsanya were duly appointed as administrators of the real and personal properties of the Late Simeon Babatunde Adetola Ogunsanya who was the beneficial owner of the parcel of land situate at 18, Ayangburen Road, Ikorodu.
These two administrators have duly and validly executed Building Lease Agreements in favour of Eko International Bank Plc (EIB) for a term of 40 (forty) years and have collected the sum of N720,000.00 (Seven Hundred and Twenty Thousand Naira Only) being prepayment of the composite rents for the first ten (10) years of the lease by a cheque made payable to the estate of Late Simeon Babatunde A. Ogunsanya, as a result of which vacant possession has been granted to EIB.
Kindly therefore note that EIB has been negotiating and dealing with the duly recognized legal representatives of the Estate of Late Simeon B. A. Ogunsanya and EIB shall commence building construction soonest.
Yours faithfully,
For: EKO INTERNATIONAL BANK PLC.”
The Appellants had constantly argued, that since they did not submit, or deliver the instrument executed in evidence of the lease agreement for the consent of the Governor, they as holder of the Statutory Right of Occupancy cannot alienate same, without the Governor’s consent.
In DOHERTY V. ALIMAN (1878) 3 AC. 709, it was held inter alia that if parties for valuable consideration, with their eyes open contract that a particular thing shall not be done, all that a Court of Equity has to do is to say by way of injunction, that which the parties have already said by way of covenant that the thing shall not be done.
It is expected that when the Respondent took over the assets and liabilities of Eko International Bank Plc by its merger with Skye Bank and four other banks, the relationship that exists between the Appellants and Eko International Bank Plc, stands inherited by the Respondent.
One Babatunde Oshilaja Esq. had written on the 14th of April, 2008 to Skye Bank to pay in some money to his clients, after which a Deed of Sublease shall be executed between the Appellants and the Respondent – page 37 of the Record of Appeal.
Again the Appellants’ solicitor had, on the 5th of April, 2008 offered the Respondent the property for lease for a 30 years period in the sum of N94,000,000.00 (Ninety Four Million Naira).
The Appellants had argued that there was no original lease with legal existence attaching to the property. They did not say why it has no legal ability or relevance – page 40 of the Record of Appeal.
I agree with the lower Court when it said at page 6 of the Judgment – page 177 of the Record of Appeal-
“It was agreed fact that Eko International Bank paid rents for ten years to the Claimants and it went into possession of the land in dispute and erected a building thereon and maintained possession of the property. The law is that where the holder of an unregistered registrable instrument has paid the purchase price or the rents as the case may be and he is in possession of the property, he is deemed to possess an equitable interest in the property in the terms of his agreement and this is as good as a legal estate – OKOYE V. DUMEZ (NIG) LTD 1985 1 NWLR Pt 4) 783; KACHALLA v. BANKI (2006) 8 NWLR (pt 982) 364; NSIEGBE v. MGBEMENA (2007) 10 NWLR (pt 1042) 364. BUCKNOR MACLEAN V. INLAKS (1980) 8-11 SC 1.”
The non registration of the lease agreement, in my view and as rightly observed by the lower court, did not have any legal effect on the right of Eko International Bank Plc to the forty years lease over the property in dispute.
When the learned trial Judge said that the operations and applications of the Provisions of Sections 22 and 26 of the Land Use Act could be waived, or rendered ineffective, or and inapplicable, or incompetent, he was right and he gave reasons for his opinion.
He did state at page 178 of the Record of Appeal – page 7 of the Judgment that
“But the law recognizes that it is the holder of the statutory right of occupancy who seeks to alienate his property that has the duty to seek and obtain the consent of the Governor to the transaction – UGOCHUKWU v. COOPERATIVE AND COMMERCE BANK LTD (1996) 6 NWLR (pt. 456) 524; OWONIBOYS TECHNICAL SERVICES LTD V. UNION BANK OF NIGERIA PLC (2003) 15 NWLR (pt 844) 545; AMADI v. NSIRIM (2004) 17 NWLR (pt 901) 111. And where he fails to apply for consent, the law will not allow him to rely on his own wrongful act and contend that the sale or lease agreement is void and unenforceable as he will not be allowed to benefit from his own wrong doing – SOLANKE V. ABED (1962) 1 SCNLR 371; MOHAMMED V. ABDULKADIR (2008) 4 NWLR (pt. 1076) 111.”
This is so in a situation where the holder of the statutory right of occupancy had taken some benefit under the agreement, as the Appellants had done.
In SOSAN v. HFP ENGINEERING (NIG) LTD (2004) 3 NWLR (pt 861) 546, it was held inter alia
“Public policy demands that a person who has enjoyed the benefits from an illegal transaction is disallowed from raring, because of the clear words of the relevant statutes, the omission is on otherwise lawful transaction. The duty on a court of Equity is not to allow a party to profit from his own wrongful act in a transaction or to take undue advantage of the other party by his wrongful act in a transaction and to contend that the transaction is unenforceable or to use the court to perpetuate the wrongful act.
In pursuant of the principle that law should serve public interest, the courts have evolved the technique of construction in bona partem. One of the principles evolved from such construction of statutes is that no one should be allowed to benefit from his own wrong. The effect is that the literal meaning of an enactment will be departed from where it will result in wrongful self-benefit.”
In my view, the consent of the Governor only gives a legal interest. Failure to obtain same, does not deprive the purchaser from possessing an equitable interest in the land. It is now an established principle, that where a lessee, or indeed a purchaser of a statutory right of occupancy in a property, has paid the purchase price, or the rents, and he is in actual possession of the property, he is deemed to possess an equitable right in it. The Respondent on record has in this particular case built on the property, and this is because he has inherited the assets and liabilities of Eko International Bank Plc because of the MERGER.
There was a valid and subsisting lease, for 40 years in favour of Eko International Bank Plc, over the property in dispute, in the terms of the lease agreement, executed between the Appellants and Eko International Bank Plc., which passed to the Respondent by operation of law. At the expense of repetition, this is because Eko International Bank Plc was one of the banks that merged with other banks in 2005 to become SKYE BANK PLC.
If the Appellants failed to seek the consent of the Governor, would that now affect a lease which has been on for eleven years, and still subsisting? All the Appellants should have done was to go and seek the relevant consent. Why did they not complain when Eko International Bank Plc was on the scene? Have they suddenly now woken up to know and or realize that no consent was obtained from the Governor?
The answer to Issue No C must necessarily be in the affirmative and same is resolved in favour of the Respondent and against the Appellants.
I observe that in issue C, the Appellants had lumped as it were, two issues together. The additional Issue is
“Whether depositions/facts contained in a counter-affidavit which are not false to the knowledge of the court but remain unchallenged, undisputed or uncontroverted and undenied by the adversary in a reply or further affidavit must be deemed true by the court and accepted as some of the established facts in the case.”
This additional issue must suffer a setback, as I forbid to consider it. Issues must flow from Grounds of Appeal. By Law and Rules of procedure, and by the Rules of Legal Drafting, that additional issue cannot and will not be considered. Each issue shall be separate and not lumped together with another issue. The additional issue is hereby discountenanced.
As earlier observed, issue No (d) can safely be said to be the same as that raised by the Respondent and same is hereby resolved in favour of the Respondent and against the Appellants.
The result is that the Appeal fails and same is hereby dismissed.
The decision of the learned trial Judge of the 1st of July, 2009 dismissing the Claimants/Appellants’ claim is hereby affirmed.
Parties to bear their own costs.
AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Pemu, JCA, and I agree with him that the appeal lacks merit. He has dealt with the issue at stake in this appeal, and I have nothing useful to add except to reiterate the point made that it is trite law that where a lessee is in possession of the land in dispute, and has paid rent to the lessor, in the eyes of the law, the lessee has acquired an equitable interest in the land, which is as good as a legal estate and the equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity – see Obijuru v. Ozims (1985) NWLR (pt. 6) 166 SC (Per Bello, JSC (as he then was). In this case, it was agreed that Eko International Bank, which metamorphosed into Skye Bank Plc.,had not only paid rents and gone into possession, it also erected a building on the land in dispute, and the lower court is therefore, right to hold that the Respondent had an equitable interest in the land because by operation of law, Skye Bank Plc., as a result of the merger, had taken on its assets and liabilities. It is for this and the other reasons in the lead Judgment that I also dismiss the appeal. I abide by the consequential orders in the lead Judgment.
FATIMA OMORO AKINBAMI, J.C.A.: In this appeal initiated by originating Summons, the Claimants/Appellants in their supporting affidavit stated facts regarding their title and interest in the land and the circumstance in which the land and buildings have been occupied without their knowledge, licence or consent were and of which their claim for possession arises.
The Claimants suit was dismissed on the 1st of July 2009 by the learned trial judge. Being dissatisfied with the decision, the claimants/appellants filed this appeal.
My learned brother PEMU JCA dealt with the issues in this appeal thoroughly. I have nothing to add to except to restate the point that it is trite law that the trial court has no power in law, to wave non compliance with statutory flavour under the Land Use Act.
A document which is null and void for the purposes of alienation of statutory right of occupancy or any part thereof, cannot be relied on to vary any equitable title on the land, which it fails to alienate in law on any party – Nig Telecom Plc v. Rockonoh Property Co. Ltd. & Anr (1995) 2 NWLR (pt 378) 473 at 372 – 573.
In this case, Eko International Bank which became Skye Bank Plc paid rents and was in possession also it erected a building on the land in dispute. The lower court was right to have held that the respondent had an equitable interest in the land.
For the reasons above I also dismiss the appeal, and abide by the consequential orders in the lead judgment.
Appearances
BABATUNDE OSHINLAJA ESQ. WITH HIM S.A. OSAWE (MRS)For Appellant
AND
M.O. ABUDUFor Respondent
