AIRTEL NETWORKS LIMITED v. MRS PATRICIA BOSEDE GEORGE & ORS (2014)

AIRTEL NETWORKS LIMITED v. MRS PATRICIA BOSEDE GEORGE & ORS

(2014)LCN/7197(CA)

In The Court of Appeal of Nigeria

On Friday, the 16th day of May, 2014

CA/L/572/2010

RATIO

WORDS AND PHRASES: LOCUS STANDI

Locus Standi or standing is the Legal right of a party to an action to be heard in litigation before a court of law or tribunal. The term “Locus Standi” connotes the legal capacity to institute or commence an action in a competent court of Law without any impediment, inhibition or obstruction from any person or body whatsoever. A party is said to have locus standi if he has shown sufficient interest in the action and that his civil rights and obligations have been or are in danger of being infringed. See GUDA v. KITTA (1999) 12 NWLR (PT 629) 21; OKAFOR v. ASOH (1999) 3 NWLR (pt 593) 82 INAKOJU V. ADELEKE (2007) 4 NWLR (PT 1025) 423. Per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

WHETHER A PERSON WITH NO SPECIAL INTEREST IN A MATTER CAN BRING AN ACTION IN RESPECT THEREOF

For a person to bring an action in respect of any subject matter, he must show that he has a legal or special interest in that subject matter. Thus where a plaintiff has no locus standi to bring an action the suit becomes incompetent and consequently the court lacks the jurisdiction to entertain it. This is based on the fact that locus standi and jurisdiction are interwoven in the sense that locus standi goes to affect the jurisdiction of the court before which an action is brought. See AKINNUBI V. AKINNUBI (1997) 2 NWLR (PT 486) 144; EJIKEME V. AMAECHI (1998) 3 NWLR (PT 542) 456; WAZIRI v. DANBOYI (1999) 4 NWLR (PT 598) 239 and AYOOLA V. BARUWA (1999) 11 NWLR) (PT 628) 595. Per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

EFFECT OF THE GRANT OF A RELIEF NOT SOUGHT BY PARTIES

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

AIRTEL NETWORKS LIMITED Appellant(s)

AND

1. MRS PATRICIA BOSEDE GEORGE
2. MR OLANREWAJU SOSU
3. MRS DUPE ADEBIYI
(Suing as Administratrix and Administrators of the Estate of the late DOMINIC SOSU) Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State delivered by Oke Lawal J. on the 10th day of November 2009 wherein the claims by the claimants were granted while the 3rd defendant’s counter claim was dismissed.

The claimants (now Respondents) had by an amended writ of Summons and statement of claim dated 21st July, 2005 claimed against the three defendants as per paragraph 17 of the statement of claim as follows:-
1. A declaration that the Claimants are entitled to re-enter the landed property at 2/4 Abebe Village Road, Iganmu Lagos as per clause 4 of the lease agreement dated 8th of November, 1973 in consequence of the breach of the said lease agreement by the 1st Defendant Company
2. An Order of possession of the landed property together with the appurtenances thereof, situate at and known as 2/4 Abebe Village Road, Iganmu, Lagos against the 1st Defendant Company.
3. General damages in the sum of N1m against the 2nd Defendant Company for acts of trespass committed on the Claimants’ landed property at 2/4 Abebe Village Road, Iganmu Lagos
4. Perpetual injunction restraining the 2nd Defendant Company, their assigns, agents, servants and privies from further committing any acts of trespass on the landed property known as 2/4 Abebe Village Road, Iganmu Lagos .

The Suit was originally against the 1st and 2nd defendants, Thomas Wyatt (Nig) Plc and Tehila Communications Ltd respectively but subsequently by the order of the lower court made on 25th April, 2006 the Appellant herein was joined in the suit as the 3rd defendant. The Salient facts in the case is that One Dominic Sosu during his life time granted a lease for a term of 99 years commencing on 1st January 1972 to Thomas Wyatt (Nig) Plc (3rd defendant in the lower court). The said lease dated the 8th day of November 1973 provides for the payment of a yearly rent of E2,201 for the first 14 years and thereafter at such yearly rent as shall be agreed by the parties but not exceeding 115% of the rent payable. It was covenanted that the lessee shall peaceably hold and enjoy the demised premises during the term granted provided that if the rent reserved remains unpaid for three months after falling due, or there is a breach of any of the covenants, the lessor may at any time thereafter re-enter upon the demised premises or any part thereof and the demise shall absolutely determine.

The 1st defendant subsequently assigned the title to the property, to the 2nd defendant (Tehila Communications Ltd as well as the 3rd defendant (now appellant) absolutely, without the knowledge or consent of the Respondents. The 1st Defendant was also alleged to be owing arrears of Rent since 1998. The Respondents through their counsel wrote a number of letters to the 1st defendants requesting for a meeting with a view to reviewing the Rent but this was not to be. Hence the Respondents instituted this action. The 1st and 2nd defendants neither entered appearance nor filed any statement of defence to the suit. The Appellant herein as 3rd defendant filed an amended statement of defence and counter claim dated 28th May, 2008. The Respondents also filed a reply and defence to counter claim dated 17th November, 2006.

The Appellants’ defence was hinged on the fact that it validly acquired the interest of the 1st Defendant in the property by way of a Deed of Transfer dated 7th November, 2003 and Registered as Title No. MO10635 and has been in lawful possession of the property. It also raised the issue of Locus Standi of the Respondents to bring the action as well as counterclaim for an order of relief from forfeiture.

At the conclusion of the trial at the lower court judgment was delivered wherein the Respondents’ claim was granted and the Appellant’s counter claim dismissed.
The Appellant was dissatisfied with the outcome of the judgment and as a result, filed a notice of Appeal dated 3rd December, 2009. An amended notice of appeal was subsequently filed vide an order of this Court granting the application on 9th December, 2010.
Briefs of Argument were pursuant to the Rules of this Court filed and served. The Appellants’ Brief of Argument is dated 13th December, 2013 but filed on 10th January, 2014 while the respondents brief of argument was dated and filed on 7th February, 2014. Three issues were distilled for determination in the appellants brief as follows:-
(i) Whether the trial court was right to hold that the Respondents had Locus Standis to institute and maintain the suit.
(ii) Whether the trial court was right to grant an order of forfeiture of the lease and re-entry to the Respondents in respect of the property.
(iii) Whether the trial court was right to find and hold that the Appellant was not entitled to a relief from forfeiture.
The Respondents in their brief of argument adopted the three issues as formulated by the appellant. I will therefore consider this appeal on the basis of the said three issues.

ISSUE NO 1
Arguing in this issue, learned counsel for the appellant referred to section 10 of the Administration of Estate Law, Laws of Lagos State Vol 1 CAP 43 to submit that when a person dies intestate, no one may deal with the estate of such a deceased person unless and until administration has been granted in respect of that land and until it is so granted, the estate is deemed to have been vested on the probate judge.
He added that administration of the estate was not granted to the Respondents in which case they cannot maintain an action on it.
Secondly, that the property in dispute is not listed in the assets of the estate for which administration was granted to the original administrators.
Counsel further submitted that it is not in dispute that the Respondents are the offsprings and beneficiaries of the estate of Late Dominic Sosu but this suit was not instituted by them in that capacity but as Administrators of the estate in question when in fact they are not. Furthermore, he argued that there was no evidence before the trial court to warrant the finding that the Respondents were granted letters of administration of the estate because what was presented to the court was the order of the court directing the probate Registrar to substitute the Respondents for the deceased administrators, which the learned trial judge accepted as sufficient as letter of administration.
It was also submitted that the Respondents can only become administrators after the substitution is effected by the Probate Registrar and a new letter of administration is issued in their names but this was not done and this renders the said order inchoate.
Also citing the case of KAJENE JEDDO v. A. IMIKO (1972) 1 ALL NLR (Pt 1) 260, he submitted that it is settled law that when a party describes himself as administrator to an estate without a letter of administration, as such in that name, the suit is defective, incurably bad and ought to be struck out. He cited also ADMINISTRATORS/EXECUTORS OF THE OF SANNI ABACHA V. EKE SPIFF (2009) 2 NWLR 110 where it was held that a person lacks the competence to bring an action in a representative capacity as an administrator of the estate of the deceased person until he has been granted letters of administration and if the action is brought before the grant, then such grant has no retroactive validity.

Secondly, it was argued by learned counsel that the only existing letters of administration in respect of the estate of the Late Dominic Sosu is limited to only his personal property and does not cover or apply to the real property of the estate including No 2/4 Abebe Village Road, Iganmu Lagos. He added that the power of an administrator over the property comprising the estate is conferred by law and the letter of administration appointing him as such vide section 22 of the Administration of Estates Law CAPA Laws of Lagos State 2003.
In the instant case he says, Exhibit D and F show that the grant was limited solely to the personal property of the late Dominic Sosu and therefore does not apply to the real property of the Estate in which case the Respondents cannot deal with the property in dispute vide U.G v. TABI (1997) 7 NWLR (PT 513) 358 at 381 and NIGERIAN LAW OF SUCCESSION BY Itse Sagay MPL, 2006 page 344.

He concluded by submitting that the issue of Locus Standis touches on Jurisdiction of the court to entertain the suit and where it is determined that a party to a suit has no locus standi to bring the suit then the whole action is void. UNITED NIGERIA CO. LTD v. NAHMAN (2000) 9 NWIR (PT 671) 177 and OGUNMOKUN VS MILITARY ADMINISTRATOR, OSUN STATE (1999) 3 NWLR (PT 594) 281. He urge this court to hold that Respondents lacks the jurisdiction to institute and maintain the suit.
Responding on this issue, learned counsel for the Respondents referred to the appellants admission in the brief of argument that the Respondents are offsprings and beneficiaries of the Estate of the late Dominic Sosu and that by the order of the High Court of Lagos State, in suit No. M/158/2004 the Respondents herein were substituted for the original administrators of the estate.
He then submitted that the appellants contention that the order of substitution made by the court remains inchoate until a fresh letter of administration is issued by the Probate Registrar is not supported by law. He added that the two principal legislations regulating the grant of letters of administration and the practice and procedures relating to the appointment of Administrators, joinders and substitution of administrators are the Administration of Estates Law and the High Court of Lagos State (Civil Procedure) Rules 2004 with particular reference to sections 20-35 of the aforementioned Law and Order 55 Rules 26 and 70 of the said Rules and nowhere in both legislations was the issuance of a fresh letter of administration made a requirement for the validity of an order of Court granting substitution of administrators or an amendment of an existing fetters of administration.
Learned counsel further referred to the case of IGUNBOR V. AFOLABI (2001) FWLR (PT 59) 1284 at 1301-1302 where the Supreme Court made a far reaching and definitive pronouncement in the true nature of an order of court appointing additional administrators and this serves to underscore the points that an order of court appointing additional administrators is a final order which requires no further act to be performed in order to be valid and effectual. He added that the Order of Substitution made by the lower court in suit No M/158/2004 was not only a final order, but it specifically directed the probate Registrar of the court to effect necessary substitution and the said order was not appealed against.
Thirdly he referred to Section 3 (1) – (3) of the Administration of Estates Law of Lagos State and the definition of personal representative in section 2 (1) as follows “the executor, original or by representation or administrator for the time being of a deceased person”.
Further reference was made to the case of JOHNSON V. OGUNBI (1980) C. A. 277 at 299 where this Court considered the interpretation of section 1(1), (2) and (3) of the then Administration of Estates law of Lagos State 1972 which are reproduced. Section 3(1-3) of the current Law and the said case was cited with approval and followed in OKONYIA V. IKENGAH (2001) FWLR (PT 53) 158 at 186.

The above authorities he noted supports and fortifies the principle that there subsists in every member of a family, the right to bring an action to protect family property. Vide LAYINKA V. GEGELE (1993) 3 NWLR (pt 283) 521, OJUKWU V. KAINE (1997) 9 NWLR (PT 522) 613 AND UDO v. WILLIAMS (1997) 1 NWLR (PT 483) 584.
He added that by the provisions of the Administration of Estate Law and Order 55 Rule 98 of the High Court of Lagos State (Civil Procedure) Rules 2004 the Respondents are personal representatives and as such entitled to sue to protect the estate duly inherited by them. He then urged this court to resolve the issue of Locus Standi in favour of the Respondents.
Locus Standi or standing is the Legal right of a party to an action to be heard in litigation before a court of law or tribunal. The term “Locus Standi” connotes the legal capacity to institute or commence an action in a competent court of Law without any impediment, inhibition or obstruction from any person or body whatsoever. A party is said to have locus standi if he has shown sufficient interest in the action and that his civil rights and obligations have been or are in danger of being infringed. See GUDA v. KITTA (1999) 12 NWLR (PT 629) 21; OKAFOR v. ASOH (1999) 3 NWLR (pt 593) 82 INAKOJU V. ADELEKE (2007) 4 NWLR (PT 1025) 423.

In the instant case the Appellant is contending that the Respondents lacks the Locus Standi to bring the action in the lower court. Firstly because they do not have the letters of Administration for the Estate of their father who was the original lessor and that the order of court to the probate Registrar to substitute the names of the Respondents for the original administrators is inchoate because they must be issued with a fresh letters of Administration.

Now, it is not in dispute that the Respondents are the offsprings and rightful beneficiaries of the Estate of Late Dominic Sosu, the original owner and lessor of the property in dispute. This was tacitly conceded to by the appellant in its pleading and in the Appellants brief of argument. It is also not being contested that pursuant to the application by the Respondents, an order of court was made substituting their names for that by the deceased original Administrators and the Probate Registrar was ordered to amend the Letters of Administration dated 6th July, 1973 to reflect the substitution. The appellant’s stance is that the order of substitution is not enough but that a fresh Letters of Administration must be issued to the Respondents before they can be recognised as the administrators of the said estate.
I really look askance at the propriety of the appellant’s argument having regard to the clear and unambiguous order made by the lower court as shown in the enrolment of order dated 13th September, 2005 (See page 72-73 of the Record).
For clarity and avoidance of doubt I herein below reproduce the said order of the Lower court:-
“HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE)
RULES 2004
AND UNDER THE INHERENT JURISDICTION OF
HONOURABLE COURT
UPON THIS APPLICATION coming up before this Honourable Court
AND UPON READING the Affidavit in support of this application, sworn to and filed at the High Court Registry, Lagos on the 6th day of April, 2005 by OLANREWAJU SOSU, Nigeria Citizen of 5, Aborishade Close, Lawanson Surulere, Lagos

AND READING the further and better Affidavit in support of the application sworn to and filed at the High Court Registry, Lagos on the 15th day of May, 2005 by OLANREWAJU SOSU, Nigeria Citizen of 5 Aborishade Close, Lawanson Surulere, Lagos.

AND AFTER HEARING Mr Samuel Etaifo, counsel for the Applicants move in terms of the application.

IT IS HEREBY ORDERED:

That the letter of administration dated 6th July, 1973 be amended by the Probate Registrar by substituting:

Mr. Lambert Padonu Sosu (Deceased)
Ms Danjo Kehinde Sosu (Deceased)
Ms Beatrice Kehinde Sosu (Deceased)

With the Applicants:

(1) Mrs Patricia Bosede George
(2) Mr Olanrewaju Sosu and
(3) Mrs Dupe Adebiyi
As Administrator and Administratrixes of the Estate of Late Dominic Sosu

GIVEN UNDER THE HAND AND SEAL OF THE COURT OF THE PRESIDING JUDGE THIS 13TH DAY OF SEPTEMBER, 2005.

SGD
RANDLE O. O. (MR)
REGISTRAR

The said order as shown above was directed to the probate Registrar who is the custodian and issuer of Letters of Administration (and not to the Respondents) to amend the existing letters of administration by substituting the name of the Respondents for that of the deceased original administrators.
The order did not direct the issuance of a fresh letters of Administration but to amend the existing one dated 6th July 1973 by substituting the deceased administrators with the names of the Respondents. See Order 55 Rule 70 of the Lagos State High Court (civil procedure) Rules 2004.
It is the said Respondents that had in that light brought this action in the lower court to assert their right over their inheritance. To my mind therefore having been granted the order of substitution by the lower court the Respondents automatically steps into the shoes of the deceased administrators and are thus conferred with the powers associated with that of a holder of letters of administration. See IGUNBOR v. AFOLABl (2004) FWLR (PT 759) 1284. It behoves the Probate Registrar to carry out the necessary administrative processes for the amendment of his record to reflect the new administrators and any negligence in this regard on the part of the Probate Registrar (if any) cannot be visited on the Respondents.
I am conscious of the law that it is the letters of administration that confer authority to deal with the estate property on behalf of the beneficiaries. See EREWA v. IDEHEN (1971) 1 ALL NLR 192 and OLOWU V. OLOWU (1994) 4 NWLR (pt 336) 90. The order granting the substitution of the names of the Respondents with that of the deceased Administrators confers such authority on the Respondents to deal with the estate of Late Dominic Sosu.
On the argument by the appellant that the letters of Administration relates only to the personal property of the deceased intestate and not his real property. The starting point here is Section 3 (1), (2) and (3) of the Administration of Estates Law of Lagos State which provides thus:-
(1) Real Estate to which a deceased person was entitled for an interest not ceasing on his death shall on his death and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased, in like manner as before the commencement of this law chattels real devolved on the personal representative from time to time of a deceased person.
(2) The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers.
(3) The personal representatives shall be the representative of the deceased in regard to his personal property.
Section 2(1) of the said law also defined “Personal Representative “as the executor, original or by representation or Administrator for the time being of a deceased person”
What is more a similar provision of the above law was expounded and given clear interpretation in the case of OKONYIA v. IKENGAH (2001) FWLR (Pt 53) 158 AT 186 also cited by the Respondent, wherein the court while citing with approval the case of JOHNSON V. OGUNBI (1980) 4 C A 277 at 2999, held inter alia as follows:-
“Relying on the decision of Johnson supra, having regard to the provision of Section 3 of the Administration of Estate Law, Bendel State 1976. I hold that the Respondents, as personal representatives of late George Onyechi Ikengah have capacity to institute an action in respect of the Real estate to which the deceased in this case is entitled by the operation of law, even where the letters of Administration have not been obtained. Assuming the letters of Administration are invalid, I believe they are not, the suit cannot merely be defeated for that reason alone as the law has cured the situation as rightly argued, in my view, by the learned counsel for the Respondents”.
(Underling is for emphasis)

I am in total agreement with the above conclusion in the above cited authority which has given life and light to a similar provision of the Administration of Estates Law of Lagos and also relied on an earlier authority of Johnson v. Ogunbi where section 1(1) (2) and (3) of the Administration of Estates Law of Lagos 1972 on all fours with Section 3(1) (2) & (3) of the Current Law was given interpretation and effect. They said it all and I agree and abide by the two authorities to also hold that the Respondents in this appeal, as personal representatives of the Late Dominic Sosu, have the capacity to institute the action in the lower court in respect of the real estate to which their deceased father is entitled by operation of law notwithstanding that the real estate was not mentioned in the letters of administration.
In other words I hold that the Respondents have the locus standi to institute this action with respect to the Estate of the deceased Dominic Sosu.
Accordingly issue No. 1 is resolved against the Appellant.

ISSUE No. 2
Whether the trial court was right to grant an order of forfeiture of the lease and re-entry to the Respondents in respect of the property.
Herein, learned counsel referred to the appellant’s argument in the lower court premised on the following grounds:-
(a) That the right to re-enter or the grant of possession to the property was conditional upon the determination of the lease or forfeiture of the lease first.
(b) That the Respondent did not in the suit request for an order of forfeiture or determination of the lease and the court could not therefore grant what a party did not ask for and consequently the court could not grant an order for possession or re-entry.
(c) That the Respondent had waived the right to the forfeiture and re-entry clause in the lease agreement because:-
(i) There was excessive delay in seeking to enforce the clause after the alleged event of default, and
(ii) The Respondents had sought a revised rate of rent from that provided in the above lease.
He added that the lower court failed to make any finding or decision on the above issues in the judgment.
Further argument was proffered that where a lease agreement gives a party the right to determine the lease or to exercise forfeiture clause, the party in question is still required under the law to obtain an order of court to determine the lease or declare it forfeited, vide CHIGBU V. TONIMUS (1999) 2 NWLR (PT 278) 638.
He submitted that the Respondents did not seek an order determining the lease or any order for forfeiture of the lease and it is trite law that a judge can only grant a relief asked for by the parties. Nwosu v. MADUGHA (2001) 1 NWLR (PT 641) 486.
Therefore he argues, that if the learned trial judge could not have made an order of forfeiture of the lease he could not have also granted an order of re-entry or possession.
It was counsel’s further contention that the Respondents had waived their rights to enforce the forfeiture clause due to:-
(i) The delay in seeking to exercise the forfeiture clause. Because having alleged that the covenant of rent was breached in 1998, they did nothing about it until October 2005 when the suit was filed. That is to say 6 year delay on exercising their right which became due after three months of the breach.
(ii) By demanding for rent after the breach and also seeking to increase the rent through Exhibit G they have waived their right to have the lease forfeited.
Reference was made to the book, Law of Landlord and Tenant (cases and comments) 2nd Edition page 323, 329 and 330 by Emeka Cheanu and the cases of AFRICAN PERTOLEUM LTD v. OWODUNNI (1981) 8 NWLR (PT 210) 391 and UNITED AUSTRALIA LTD V. BARCLAYS BANK LTD (1940) 4 AER 20.

Responding on this issue, learned counsel for the Respondents recalled the grounds for their claim for forfeiture in the lower court which are that the 1st defendant serially refused to pay its rent, and the act of the 1st defendant in purporting to sell the Respondents’ title to the demised property to the appellant without the Respondents consent and this the lower court found proved.
On the appellants argument that there was no claim for forfeiture by the Respondents who had also waived their rights to do so, Learned counsel submitted that the provisions of section 67 and 68 of the Registered Land Law of Lagos State which regulates forfeiture in leases readily show that the stipulations contained therein applies strictly as between lessors and lessees only and not to third party buyers/purchases of title such as the appellant.

He added that Section 69(2) which deals with relief from forfeiture limits the third parties who may apply for such reliefs to sub-lessees and mortgagees only and no mention was made of buyers of title to the lease without the lessor’s consent. Moreso, he argues, only lessors and lessees are competent to the exclusion of all other persons to inquire into the main issue of forfeiture, while third parties such as sub-lessees and mortgagees are permitted by law to seek relief from forfeiture, therefore the attempt by the appellant to challenge the order of forfeiture is incompetent not being a lessee of the Respondent but a buyer from a lessee who sold without the consent of the lessor.
Learned counsel also submitted that the finding of the learned trial judge that the act of selling the demised property without reference to the lessor amounts to a breach of the covenant of tenancy especially as the defendants knew and admitted that the Sosu family owns the property was not appealed against by the appellant. Thus being one of the grounds for order of forfeiture, all the arguments advanced by the appellant on the issue are merely academic.
Alternatively, learned counsel referred to the writ of summons and statement of claim to show that the first relief sought is for an order of re-entry on the property which also means an order of forfeiture going by the definition in Osborn’s Concise Law Dictionary 8th Edition and Section 14(1) of the Conveyancing Act 1881.
On the issue of waiver, he submitted that issues were not joined on it in the lower court but was only raised in the appellant’s written address after conclusion of hearing. On the other hand he submitted that there is nothing in the lease agreement (Exhibit C) which imposes an obligation on the lessor to bring an action either immediately after the three months arrears of rent or at any specified period, therefore right of the lessor to sue for forfeiture on that ground is not time bound neither is there any statute limiting the time for such action.
He added that, besides, the Respondents were only appointed administrators to the estate of the deceased lessor on 13-9-2005 (Exhibit E) and this suit was filed on 10-10-2005.
On the second reason set up by the appellant for justifying a waiver being the demand for rent increase by the Respondents, learned counsel referred to Exhibits G and H, letters dated 16-7-2004 and 7-12-2004 respectively to submit that their contents are very clear. While Exhibit G relates to an invitation to negotiate, Exhibit H is a notice of intention to sue as required by Section 58 of the Registered Land Law of Lagos State.

Trite law it is that in our adversary system of justice, a court makes orders on issues raised by the parties. Where therefore, a court grants a party a relief which it did not seek, it has made an order on an issue not raised by the parties. The resultant effect of that order is that it will be declared a nullity, having been made without jurisdiction. See FUNDUK ENGINEERING LTD V. JAMES MACARTHUR & ORS (1996) 7 NWLR (PT 459) 153; FASIKUN II & ORS VS OLURONKE II & ORS (1999) 1 SC 16 and ODOFIN V. AGU (1992) 2 NWLR (PT 229) 350 where the Supreme Court held that it has been said times without number that a court ought to not to play the role of Father Christmas which can go around granting to parties relief which they have not asked for. See also NWANYA V. NWANYA (1987) 3 NWLR (PT 62) 697 and AKINTERINWA V. OLADUNJOYE (2000) 6 NWLR (PT 659) 92.
In the instant case, can it be said that the lower court granted the relief of forfeiture to the Respondents when it was not sought for in their claim?
A perusal of the Respondent writ of summons and statement of claim in the lower court show that their Reliefs 1 and 2 reads thus –
1. A Declaration that the Claimants are entitled to re-enter the landed property at 2/4 Abebe village Road, Iganmu, Lagos as per clause 4 of the lease agreement dated 8th of November 1973 in consequence of the breach of the said, lease agreement by the 1st Defendant company.
2. An order of possession of the landed property together with the appurtenances thereof, situate at and known as 2/4 Abebe Village Road, Iganmu, Lagos against the 1st defendant company.

The Black Law Dictionary 9th Edition at page 1392 defines the word “Reentry” which is the noun of the word ‘Reenter’ as,
(1) “The act or an instance of retaking possession of land by someone who formerly held the land and who reserved the right to retake it when a new holder let it go.
(2) A landlord’s resumption of possession of leased premises upon the tenants default under the lease.”

At page 722 of the same Black’s Law Dictionary, the word “forfeiture” is defined as:-
“The divesture of property without compensation. The loss of a right privilege or property because of a crime, breach of obligation, or neglect of duty in which case title is instantaneously transferred to another”.

From the foregoing, forfeiture and reentry go hand in hand. In other words a claim for reentry means also a claim for forfeiture by the defaulting party and vice versa. Therefore the Respondents’ claim for reentry of the property and repossession of same implies the forfeiture of the said property by the 1st defendant. In this regard, the appellant’s contention that the lower court granted the Respondents a relief which they did not claim is unfounded given the fact that the relief of reentry or forfeiture is the first on the list in paragraph 17 of the amended statement of claim at pages 56 to 58 of the Record.

On the issue of waiver of right to forfeiture due to excessive delay in seeking same and also for asking for a revision of the rent payable by the lessee. The Respondents, counsel herein argued that the appellant did not raise the issue of waiver in its pleadings and evidence in court, but only came up for the first time in the counsel’s written address.
It is trite that in our adversorial system of justice matters are decided based on the pleadings and evidence after issues have been joined by the parties. It is the evidence presented before the court that it will use in deciding on the dispute between the warring parties. Therefore, it is settled law that address of counsel, however brilliant, cannot take the place of evidence, particularly where there is no evidence as in the instant case, in support of the appellant’s counsel’s submission.
The question of waiver due to excessive delay as propounded in the appellant’s brief and also earlier raised in its written address in the lower court is an issue of fact which cannot rightly be raised in counsel’s final address because in a trial court where pleadings are filed and exchanged it can only be properly raised on the pleadings. See BURAIMOH v. BAMGBOSE (1989) ALL NLR 669 and as was held in OGUNSANYA v. THE STATE (2011) LPELR (2349) SC. No amount of brilliant address or playing to the gallery by counsel can make up for lack of evidence to prove or defend a case in court. The main purpose of an address is to assist the court, and is never a substitute for compelling evidence. See also ISHOLA V. AJOBOYE (1998) 1 NWLR (PT 532) 74 and ALIUCHA v. ELECHI (2012) LPELR (1823) SC and NIGER CONSTRUCTION LTD v. OKUGBENI (1989) 4 NWLR (pt 67) 738 at 792.
In the instant case there is no evidence in proof either in the lower court or in this court to justify the appellant’s claim of waiver.
Be that is it may, Records before this court show that the Respondents were only appointed as administrators to the Estate of the deceased lessor, upon the order of court made on 13-9-2005 wherein their names were substituted for that of the former administrators who had all died. Thereafter the Respondents took out a writ of summons dated 7th October 2005 but seated on 10-10-2005. That is about five weeks after their formal appointment as administrators of the estate. This to my mind does not and cannot be termed excessive delay. Another point to be made is that a breach of covenant to pay rent as stipulated in an agreement is a continuous one which entitles the landlord or lessor to intervene and take necessary action at his convenience except there is a provision in the agreement or any statute limiting the time to enforce the terms and conditions in the agreement relating to a breach. On the whole, this issue is also resolved against the appellant.
ISSUE No 3
Whether the trial court was right to find and hold that the Appellant was not entitled to a relief from forfeiture.
Herein, while conceding that by virtue of section 95(1) of the Registered Land Law of Lagos State, the grant of a claim for the relief from forfeiture is at the discretion of the court. Learned counsel noted that the discretion must be exercised judicially and judiciously. On the principle guiding the exercise of discretion by a court considering the prayer for relief from forfeiture he cited the case of ABDULLAHI & BROS LTD v. AREWA ILES LTD (2004) 1 NWLR (PT 902) 162 at 179 – 180.
He added that the general principle of law is that the court leans against the grant of a forfeiture, moreso where the breach is for the covenant to pay rent and where the lease is for a long period of time but the learned trial Judge in this case turned down the appellant’s prayer on the grounds of failure to establish hardship when there were ample evidence of hardship as per paragraphs 2 – 4 of the amended statement of defence and counter claim of the appellants as well as the testimony of the DW1. He posited therefore that it was wrong for the learned trial judge to have held otherwise. He then urged this court to allow the appeal.
For the Respondent it was submitted that Section 69 of the Registered Land law of Lagos State deals with relief from forfeiture and make those reliefs available only to sublesses and mortgagees and this was underscored in Section 69(3) which excluded any stipulation to the contrary in any lease whether registered or not. But in this case the appellant is neither a sublessee or a mortgagee, rather the lower court found that the appellant is a purported purchaser of a title that the 1st defendant does not have the authority to sell. In this regard, the Appellant cannot benefit from the provisions of Section 69 from the onset.
Further reference was made to the case of SEAVIEW INVESTMENTS LTD V. MUNIS (1991) 6 NWLR (PT 195) 67 at 81 on the issue of sale by lessee without consent of the lessor.
On the discretionary power of the court to grant relief from forfeiture in deserving cases. It was submitted that the Appellate court will not ordinarily interfere or substitute its own discretion for that of the trial court unless it is demonstrated that the lower court acted perversely in the exercise of its discretion vide OYEGUN V. NZERIBE (2010) 5 – 7 SC 44.
On the assertion by the appellant that one of the grounds for hardship proved by it is the payment of N50 million for the lease. It was submitted that this is far from the truth because the appellant never leased the property but was purported to have bought it hence the finding of the lower court that it is contrary to the terms of the original lease, and thus made an order of forfeiture. Also the claim to employment of hundreds of staff and improvements on the property was not supported by credible evidence. Hence the conclusion that the appellant failed to establish any cogent reason to justify this court in interfering with the exercise of discretion by the lower court.
This court was then urged to resolve the three issues against the Appellant and dismiss the appeal.
Learned counsel for the appellant had conceded to the fact that by virtue of section 95(1) of the Registered Land Law of Lagos State, the grant of a claim for relief from forfeiture is at the discretion of the court but that such discretion must be exercised judiciously and judicially. This was also not disputed by the Respondents. In BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT 622) 290, the Supreme Court while considering the issue whether an appellate court can interfere with the discretionary finding of the trial court held that:-
“It is trite law that findings of primary facts are matters peculiarly within the competence of the court of trial, the assessment, evaluation, appraisal of evidence emanating therefrom and the ascription of probative values thereto being primarily and preeminently that of the trial court and any interference by an appeal court therewith is by law, confined to narrow and limited dimension.”
In ANYAH v. AFRICAN NEWSPAPERS OF NIGERIA LTD (1992) 7 SCNJ 47, it was held that it is not in all cases that an appeal court will interfere with the exercise of discretion by a trial judge, simply because it did not favour one of the parties litigating before him. The court will not interfere with the exercise of the discretion in the absence of proof that it was wrongly exercised. Their lordships added, that “you cannot lay down hard and fast rules as to the exercise of judicial discretion by a court, because the moment you do that, the discretion is fettered. See also NGWU V. ONUIGBO (1999) 13 NWLR (PT 636) 512; UNIVERSITY OF LAGOS V. OLANIYAN (1985) 1 NWLR (PT 1) 156 and SARAKI V. KOTOYE (1990) 4 NWLR (PT 143) 144.
In the instant case, the learned trial judge in deciding whether or not to grant the appellants counter claim to relief from forfeiture held at pages 491-493 of the record as follows:-
“The essential ingredients for grant of relief from forfeiture is that it is granted on the ground that to order forfeiture would work great hardship to a tenant who might otherwise have nowhere to go to.
The tenant must be able to show the nature of the hardship that wilt result to him from the order of forfeiture and such hardship must be such that cannot be in any way mitigated or removed by leaving the tenant to find and alternative land.
The evidence called by the tenant must be strong verifiable and cogent. The order for relief against forfeiture is an act of grace, benevolence or forgiveness for the tenant claiming such relief.
The grant of a claim for relief from forfeiture is at the absolute discretion of the court which should be exercised judicially and judiciously and the discretion must be influenced by facts such as;
a) willingness of the tenant to remedy the breach alleged.
b) the readiness of the tenant to pay compensation for any breaches which cannot be remedied
c) The tenants undertaking to observe the covenant in future or to make good waste if it is possible to do so – ABDULLAHI V. AREWE LTD (2004) 17 NWLR AT 180 PARAGRAPH D – F.
The defendants are required to show the nature of the hardship that will result to him from the order of forfeiture.
The defendants have not led evidence to establish this hardship.
On the issue of rent the defendants failed to respond to the invitation for the claimants for a meeting and a discussion. The 3rd defendants calculated the sum due and payable as rent as N10, 888.30.
The rent as stipulated in the lease agreement is certain and since there was no further agreement between the parties, remained the rent agreed.
S.68 of the Registered Land Law referred to by counsel provides: Notwithstanding anything to the contrary contained in any lease, a lessor shall not be entitled to exercise the right of forfeiture for the breach of any express or implied against a condition in the lease until the lessor has served on the lessee a notice:-
a) specifically the particular breech complained of; and
b) if the breach is capable of remedy, requiring the lessee to remedy the breach within such reasonable period as may be specified in the notice and
c) where appropriate requiring the lessee to make compensation in money.
By 2004 the defendant had not paid rent for 7 years. The claimant wrote Exhibit H and G.
The claimant met the requirement of S68 of the Registered Land Law by the contents of Exhibit G and H which shows that they were owing for seven years and then there was a breach of covenant. Exhibit 7 is forwarded by 1st defendant to 2nd defendant.
Further the claimants also served a seven days notice to Thomas Wyatt, the lessee.
By S.69 (1) and (2) of the Registered Land Law, the lessee on seeing a notice may apply to the High Court, this the 1st defendant failed to do. The effect of forfeiture of the lease on the under lease is clearly stated in the case of: GBERE V. ALLI – OWE (2000) 11 NWLR (PART 678) 294 AT 307. The court held that by an order of forfeiture a lessor or landlord of a premises may become entitled to retake the premises and so prematurely put an end to the lease either by the terms of the lease or by operation of law and once an order for re-entry or forfeiture order is made by the court in favour of the lessee relationship. The court held that once an order for re-entry is made in favour of the respondents against their landlord it affects them as well notwithstanding that they are parties to the suit or not. The court held that once the head lease had been forfeited any under leases created out of it automatically also comes to an end.
In GREAT WESTERN RAILAYS v. SMITH (1876) CH 235 AT 253 the court stated that it is a rule of law that if there is a lease and the lease has created an under – lease or any other illegal interest if the lease is forfeited then the under-lease or the person who claims under the lessee loses his estate as well as the lessee himself.
The order for forfeiture destroys the legal interest of the subtenants put into possession by the said appellant and after the date of the said judgment they are not entitled to remain in possession as they are capable of being declared trespassers and could be liable to be ejected by warrant of OLANIYAN v. SHOKUNBI (1997) 6 NWLR (PART 509) 447.”
I have deliberately set out in extenso the findings and conclusion of the learned trial judge wherein the appellants counter claim for relief from forfeiture was refused. His Lordship duly considered available evidence and the relevant criteria as presented in the case of ABDULLAHI V. AREWA ILES LTD supra before coming to the conclusion that appellants have not led evidence to establish hardship. The learned trial judge who heard the evidence from both sides based on their pleadings was in a better position to consider all the circumstances and probabilities and come to a. conclusion on one or the other. See TAIWO v. AKINWUNMI (1975) 1 ALL NLR 202.
He decided upon due consideration of the issues in contention as shown in the portion of the judgment earlier set out concluded that the Pendulum of discretion cannot swing in the direction and in favour of the appellant and upon clue appraisal, I find that this court will have no justification to interfere with the manner the learned trial judge exercised his discretion.
This issue is also resolved against the appellant.
On the whole I find and so hold that this appeal lacks merit and it is accordingly dismissed.
The judgment of the lower court delivered by Oke-Lawal J. on the 10th day of November 2009 is hereby affirmed.
N50,000 cost is awarded in favour of the Respondents.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the advantage of reading before now the comprehensive judgment prepared by my learned brother, Samuel Chukwudumebi Oseji, J.C.A., with which I agree and adopt wholesale as my judgment in the appeal.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI JCA. I agree entirely with the judgment. His Lordship has dealt fully and comprehensively with all the issues raised in the appeal. I agree that the appeal lacks merit and ought to be dismissed. I also dismiss it. I abide by the consequential orders in the lead judgment including the order as to costs.

Appearances

A. Olaleru with A. AkinlegunFor Appellant

AND

D. I. KupolatiFor Respondent