EFREDE & ORS v. ITA & ANOR (2020)

EFREDE & ORS v. ITA & ANOR

(2020)LCN/14766(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, November 04, 2020

CA/C/140/2018

RATIO

LEASE: ESSENTIAL INGREDIENTS THAT MAKE A LEASE PROPER

In the case of STAR FINANCE AND PROPERTIES LTD. VS. NDIC (2012) ALL FWLR (pt. 648) 895 at 909 this Court per Okoro J.C.A. (as he then was) held: –
As far back as 1986 the Supreme Court had set the essential ingredients that would make a lease proper. In the case of UNITED BANK FOR AFRICA LTD. VS. TEJUMOLA (1988) 4 NWLR (pt. 79) 662 at 664 – 667 the apex Court held that for a lease to be complete and enforceable the parties, property, length of the term, rent and date of its commencement must be defined. It also held that … there must be a certain ending otherwise it is not a perfect lease’. Again, in OKECHUKWU VS. ONUORAH (2001) FWLR (pt. 33) 219 at 234 para E – F the Supreme Court held, per Iguh J.C.A. that: -‘In order to have a valid agreement for a lease it is essential that it should appear either in express terms or by reasonable inference from the language used in the instrument on what day the term is to commence. Indeed, both the commencement and the maximum duration of the term must be either certain or capable of being rendered certain before the lease takes effect.’

See also ODUTOLA VS. PAPER SACK (NIG.) LTD. (2007) ALL FWLR (pt. 350) 1214 at 1233 paras B – F; OWOO VS. EDET (2012) ALL FWLR (pt. 642) 1791 at 1803 paras G – B. PER OWOADE, J.C.A.
TENANCY: WHEN WILL A TENANCY-AT-WILL ARISE

Relatedly, a tenancy – at – will arises wherever the premises is occupied by the tenant on the terms that either himself or the owner of the premises may determine the tenancy at any time. See ELAKHAME VS. OSEMOBOR (1991) 6 NWLR (pt. 196) P. 170; PAN ASIAN CO. LTD. VS. N. I. C. O.N. (1982) 9 S. C. 1
A tenancy – at – will may arise in the following ways:
1. By express agreement of the parties. See MANSFIELD AND SONS LTD. VS. BOTCHIN (1970) 2 Q. B. 612.
2. When a tenant holds over with the landlord’s permission without having paid rent on a periodic or any basis. See NAYE VS. ELECTRIC TRANSMISSION LTD. (1942) CH.D. 290.
3. Where a tenant takes possession under a void lease or under a mere agreement for a lease and has not yet paid rent. See MEGARRY and WADE, LAW OF REAL PROPERTY (4th ed) 630.
4. Where a person is allowed to occupy a house rent – free and for an indefinite period. See WHEELER VS. MERCER (1957) A. C. 416, 425; HOWARD VS. SHAW (1841) 18 M and W 118.
5. Where a purchaser has been let into possession pending completion of sale. See Megarry and Wade, Law of Real property (4th ed) 630
Tenancy – at – will is thus a mere relationship of tenure unaccompanied by any estate and consequently a personal relationship which can exist only as a right in rem. PER OWOADE, J.C.A.

CONTRACT: BINDINGNESS OF A CONTRACT ON THE PARTIES

This is because whatever the nature of a contract whether oral, written or implied, parties are bound by their agreement and/or by the terms of their contract without any subtraction or addition and the Courts will not allow to be read into such a contract, terms on which there is no agreement. See AFROTECH VS. MIA & SONS LTD. (2000) 12 SC (part 11) 1 at 15; KOIKI VS. MAGNUSSON (1999) 8 NWLR (pt. 615) 492 at 494 SC; BABA VS. NIGERIAN CIVIL AVIATION TRAINING CENTRE (1991) 5 NWLR (pt. 192) 388 SC. PER OWOADE, J.C.A.

APPEAL: NATURE OF AN APPEAL

An appeal is generally regarded as a continuation of an original suit rather than as an inception of a new action. An appeal should be a complaint against the decision of a trial Court.
Thus, in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See NDIC VS. S. B. N. PLC (2003) 1 NWLR (pt. 801) 311 CA; OREDOYIN VS, AROWOLO (1989) 4 NWLR (pt. 114) 172 SC; BABALOLA VS. STATE (1989) 4 NWLR (pt. 115) 264 SC. PER OWOADE, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

MR. SUNDAY EFREDE 2. MR. UDOFIA S. EYO 3. MR. O. N. IDUNG 4. MR. EDEM BASSEY 5. MR. EMMANUEL U. UDOH 6. MRS. EKAETTE W. UDOH APPELANT(S)

And

CHIEF ETETA ITA 2. MRS. EME ESSIEN ITA (AS ADMINISTRATOR FOR THE ESTATE OF LATE CHIEF BASSEY ETETA ITA) RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Edem Ita Koofreh of the Cross-River State High Court Calabar Judicial Division in Suit No. HC/179/2017 delivered on 23rd October, 2017.

On 10th May, 2017 the Respondents commenced this suit at the High Court through an Originating Summons supported by an affidavit of 17 paragraphs, to which were annexed Exhibits A to H and a Written Address (pages 2 – 25 of the Record). In the Originating Summons the trial Court was asked to determine the following questions: –

a) ‘Whether the agreement between the Claimants [now Respondents] and the Defendants [now Appellants] dated 18th November, 1994 is in law a valid deed of lease’.
b) ‘Whether the Claimants [Respondents] are obligated under the agreement dated 18th November, 1994 to pay compensation to the Defendants [Appellants] before recovering possession of the land in Plan No. AQ/591/82’.
c) ‘Whether the Claimants [Respondents] are precluded by the agreement dated 18th November, 1994 from recovering possession of the land in Plan No.

AQ/591/82 from the Defendants [Appellants] as tenants at will’.

Based on the answers to the above questions the Respondents prayed the trial Court in the Originating Summons for the following reliefs: –
i. ‘A declaration that the agreement dated 18th November, 1994 executed between the Claimants and the Defendants is legally invalid as a deed of lease.
ii. ‘A declaration that the Defendants are tenants at will on the Claimant’s land shown in Plan No. AQ/591/82, which is situate at and known as No. 37 Ndidem Usang Iso Road, Calabar’.
iii. ‘An order for the Defendants, by themselves, their servants, agents and privies, to vacate and surrender to the Claimants the possession of the entire land situate at and known as 37 Ndidem Usang Iso Road, Calabar shown in Plan No. AQ/591/82’.
iv. ‘An order of perpetual injunction restraining the Defendants by themselves, their servants, agents and privies from further occupying, interfering, or using the Claimant’s land situate at No. 37 Ndidem Usang Iso Road, Calabar and shown in Plan No. AQ/591/82’.

In response to the Originating

Summons the Appellants filed a counter-affidavit of 27 paragraphs, to which they annexed Exhibits EA1 – EA10 and a Written Address (pages 42 – 68 of the Record). The Respondents also filed a further Affidavit of 8 paragraphs to which they attached a Written Rejoinder on points of Law (pages 69 – 75 of the Record).

The facts of the case are as follows: –
In 1994, late Chief Bassey Eteta Ita leased his land at No. 37 Ndidem Usang Iso Road, Calabar shown in Plan No. AQ/591/82 to the Appellants to erect a temporary structure for use as shops. There was no written Deed of Lease between the Appellants and their landlord, but there was a document dated 2nd May, 1988, titled “To Whom It May Concern”, where the late Chief Bassey Eteta Ita stated the terms of his relationship with the Appellants with regards to the land and shops occupied by them. The document, which is at page 48 of the Record, was Exhibit EA3 to the Appellant’s Counter-Affidavit at the trial Court.

When the Respondents became the administrators of the estate of Chief Bassey Eteta Ita, who died in 1991, they retained the Appellants as yearly tenants on

the land at No. 37 Ndidem Usang Iso Road, Calabar, and at the instance of the Appellants the Respondent signed a separate but similar agreements all dated 18th November 1994 with each of the Appellants, wherein some of the conditions for the Appellant’s use of the land and shops at No. 37 Ndidem Usang Iso Road, Calabar were spelt out. The said agreements, which are at pages 10 – 11 and 49 – 50 of the Record, were Exhibits C and EA4 to the Respondent’s affidavit and the Appellant’s Counter-Affidavit respectively at the trial Court.

In August 2010 the Respondents gave the Appellants notice to quit the property at No. 37 Ndidem Usang Iso Road, Calabar by 30th September, 2010. The Appellants resisted that quit notice by alleging that they were perpetual tenants on the Respondent’s land at No. 37 Ndidem Usang Iso Road, Calabar because their agreement with the Respondents of 18th November, 1994 did not fix or stipulate any tenure for their tenancy. Consequently, the Appellants insisted that if they were to quit the land at all the Respondents must pay them compensation to do so.

Meanwhile, after the Respondent’s

quit notice of September, 2010 the Appellants proceeded in February, 2011 to upgrade their temporary structure on the Respondent’s land into a permanent block of shops. But from September, 2010 the Respondents did not collect, and the Appellants did not pay to the Respondents any further rent for the land. When the impasse over the termination of the Appellant’s lease could not be resolved amicably, the Respondents gave the Appellants another notice to quit the land by 31st March, 2017 and a Notice of Intention to sue in April, 2017.

The Originating Summons was heard on 29th September, 2017 (page 41 of the Record), and on 25th October, 2017 the learned trial judge delivered his judgment (pages 76 – 91 of the Record) wherein he resolved all the questions in the Originating Summons for the Respondents and consequently granted them all the reliefs sought in the Summons. On 15th December, 2017 the Appellants filed a Notice of Appeal containing three grounds of appeal (pages 92 of the Record) against the judgment.

The Appellant’s grounds of Appeal together with particulars as shown on pages 92 – 93 of the Record of Appeal are

as follows: –
GROUNDS OF APPEAL
Ground 1:
The judgment is against the weight of evidence.
Ground 2:
The learned trial judge erred in law when he held that the agreement between the Claimants and the Defendants dated 18th November, 1994 (Subject matter of Exhibit ‘C’ and Exhibit EA4 attached to Claimant’s affidavit in support and counter affidavit of the Defendants respectively) was an invalid lease.
PARTICULARS OF ERRORS
1. In paragraph 8 of their affidavit in support of Originating Summons, the Claimants deposed to the fact that in the agreement dated 18th November, 1994, the Defendant’s tenure on the Claimant’s land was not stated because of the subsisting understanding between the parties that the Defendant’s tenure on the Claimant’s land was entirely at the discretion of the Claimants.
2.The Claimants cannot approbate and reprobate by bringing an action to nullify the agreement for not specifying the duration of the tenancy of the Defendants on the Claimant’s land.
GROUND 3:
The learned trial judge erred in law when he held that the Defendants were not

entitled to compensation for the properties, they developed on the Claimant’s land in that 30 years rents was sufficient compensation.
PARTICULARS OF ERRORS
1.By Exhibit ‘C’ and EA4 the Defendants were to own the said stores because of the expenses they incurred in constructing them.
2.If any of the Defendants intended to sell out any of the said stores, they were to inform the Claimants.
3.The properties being in permanent form were not to be demolished or removed by the Defendants without compensation.
The relevant briefs of Argument for the appeal are: –
i. Appellant’s Brief of Argument dated 20th March, 2018 but filed on 26th March, 2018. It is settled by Felix Udoh, Esq.
ii. Respondent’s Brief of Argument was dated and filed on 30th April, 2018. It is settled by Essien H. Andrew, Esq.
iii. Appellant’s Reply Brief was dated and filed on 4th April, 2019. It is settled by Felix E. Udoh, Esq.

Learned counsel for the Appellants nominated a sole issue for determination. It is: -“Whether the Appellants were not entitled to compensation for the structures they erected on the

Respondent’s land with their consent.”

Learned senior counsel for the Respondents adopted the Appellants issue and modified same as follows: -“Whether the Appellants are entitled to compensation for the structures they had erected as tenants on the Respondent’s land.”

Learned counsel for the appellants submitted on the sole issue and stated that in paragraph 8 of their affidavit in support of Originating summons filed on 10th May, 2017, the Respondents deposed as follows: –
Paragraph 8
“In the agreement dated 18th November, 1994 the Defendant’s tenure on the Claimant’s land was not stated because of the subsisting understanding between the parties that the Defendant’s tenure on the Claimant’s land was entirely at the discretion of the Claimants.”

Learned counsel for the Appellants questioned that if the reason for not including the duration of Appellant’s tenancy in Exhibit C/AE4 was due to existing understanding between Respondents and then Appellants, the Respondent ought not any longer to find fault to ask the trial Court to nullify or invalidate Exhibit C/AE4

for lacking qualification as a deed of lease.

According to Appellant’s counsel the Respondents thereby approbated and reprobated and reminded us of the equitable doctrine that he who comes to equity must come with clean hands.

He submitted that even if Exhibit C/AE4 does not qualify as a lease, it remains an agreement between a landlord and tenant of which the Respondents cannot benefit from its invalidity having admitted the omission of duration in Exhibit C/AE4 as the law would not allow the Respondents to benefit from their own illegality.
He referred to the cases of ENEKWE VS. IMB (NIG) LTD. (2007) ALL FWLR (pt. 349) 1053 at 1081 and UBA VS. IBHAFIDON (1994) 1 NWLR (pt. 318) 90 at 119.

He submitted that while Appellants did not understand same to be the position, the Respondents acquiesced to the irregularity invented by them (Respondents) for 23 years and thereafter woke up to demand that the Appellants should remove their permanent fixtures on the land without compensation.

Learned counsel for the Appellants referred to the case of HYDROQUEST (NIG) LTD. VS. BANK OF THE NORTH LTD. (1994) 1 NWLR (pt. 318) 41 at 49 and argued

that a party cannot take advantage of an irregularity he acquiesced in. That the Respondent who watched the Appellants for 23 years develop their property and receiving rents from them cannot ask them to remove their permanent fixtures (shops) on their land without compensation.

He added that the holding by the trial judge that the parties ignorantly and erroneously acted upon Exhibit C/AE4 for the past 23 years was not supported by evidence. Appellants counsel repeated his contention that Exhibit C/AE4 qualifies as a simple tenancy agreement which was and binding on the parties. He referred to the case of WEST CONSTRUCTION COMPANY LIMITED VS. BATALHA (2006) 9 NWLR (pt. 986) 595 at 615 – 616 to say that
“A contract that is ex facie not illegal or offends public policy will be enforced by the Court.”

Learned counsel for the Appellants submitted further that the trial Court should have ignored the absence of duration of lease in Exhibit C/AE4 and read the contract in conjunction with the oral understanding as admitted by the Respondents. In which case, the contract was partly written and partly oral as claimed by the

Respondents. In other words, if the trial Court had construed Exhibit C/AE4 in conjunction with the admission of existent of oral contract by the Respondents, the trial Court would not have declared Exhibit C/AE4 invalid as Exhibit C/AE4 was part of oral contract as admitted by the Respondents.

From the onset, said counsel the contract between the Appellants and Chief Bassey Eteta Ita hung in the air as if it were unilateral contract with the landlord who did not agree to be bound by terms in a written agreement and declared that he shall not break his part of “gentleman agreement” provided the Appellants paid rent and that the Appellants shall not suffer financial losses due to absence of such agreement. Appellants had committed the original landlord in the performance of their own side of obligation which was payment of rents and the contractual term pertaining to duration of the tenancy though not written was indefinite.

Similarly, the Respondents who might have followed the footsteps of the original landlord omitted the duration of lease in Exhibit C/AE4 but provided therein that the Appellants should own the shops erected on their

property.

He submitted that the judgment of the trial Court at pages 95 and 96 of the record of appeal ordering the Appellants to vacate and surrender to the Claimants the possession of the entire land situate at and known as No. 37 Ndidem Usang Iso Road, Calabar as shown in Plan No. AQ/591/82 is contrary to the intention of the parties aforesaid. The primary duty of the Court is to confine itself to the four corners of the agreement before it and give effect to reasonable expectations of the parties therein and not to make a contract or case for a party.

Appellant’s counsel submitted that the judgment of the trial Court is perverse and not supported by evidence. The facts giving rise to the issuance of notice, Exhibit E attached to Respondent’s affidavit in support and the subsequent treatment of the Appellants as tenants at will are distinguishable from the case of ODUTOLA VS. PAPER SACK (NIG) LTD. (2007) ALL FWLR (pt. 350) 1214 at 1243 para D – E cited by Respondents’ counsel and relied upon by the trial Court are not the same with the facts giving rise to the treatment of tenant in the above mentioned case as tenant at

will. That in the case of ODUTOLA VS. PAPER SACK (NIG) LTD (supra), the tenant therein deliberately refused to pay rent as yearly tenant as at when due whereas in the case at hand the Respondents refused to collect rents from them thereby making them induced tenants-at-will.

In the circumstance, according to Appellant’s counsel, the Appellants were entitled to 6 months notice to quit as yearly tenants and not 30 days notice to quit as tenants at will.

He submitted that the Appellants had erected their permanent stores on the said land before the said Notice to quit and intention to recover possession were issued.
He submitted further that the Respondents will not deny the fact that they acquiesced to the Appellants development on the land as there was no letter written by the Respondents to the Appellants warning them of such development or to the Calabar Urban Development Authority (CUDA) that the said premises occupied by the Appellants were not to be renovated and were exempted from Calabar Urban Development Authority (CUDA) directive.

On acquiescence Appellant’s counsel referred to the case of ADEJUMO VS. OLAWAIYE (2014) ALL

FWLR page 1910.

Learned counsel for the Appellants summed up their complaint herein as entitlement to compensation for their permanent shops which they built consequent on Exhibit C/AE4 and that the demand for compensation arises on the ground that the Appellants cannot remove the fixtures that is permanent stores from the said land.

At page 12 of the Appellant’s Brief of Argument, learned counsel for the Appellants summarized their position in the appeal thus:
1. That a declaration that the Appellants were tenants at will in Respondent’s property was not supported by evidence.
2. The trial judge order that the Appellants should vacate and remove their shops from Respondent’s land was unjustified.
3. An order of injunction restraining the Appellants from having access to their shops which the Respondents gave them the right to own occasioned a miscarriage of justice.
4. The Respondents had acquiesced to development of their land by the Appellants for 6 years.
5.The Appellants cannot remove their shops which are permanently affixed to the land of the Respondents.
6.This Court should order the Respondents

to compensate the Appellants in respect of the said shops.

In arguing the sole issue for determination in this appeal, Learned Senior Counsel for the Respondents observed that in this suit there is no dispute over the fact that the Respondents are the owners of the land at No. 37 Ndidem Usang Iso Road, Calabar shown in Plan No. AQ/591/82. It is also not in dispute that the Appellants were tenants to the Respondents on that land. It is also apparent from the sole issue for determination canvassed by the Appellants in this appeal that the Appellants are not disputing the right of the Respondents as landlords to recover possession of their land. The sole area of conflict is whether the Appellants are entitled under their agreements with the Respondents dated 18th November, 1994 to compensation for the block of shops erected by the Appellants as tenants on the Respondents’ land. He added that it is worth mentioning that the said block of shops, being a tenant’s fixture, had since been removed from the land to make way for the Respondents’ proposed shopping complex. That this fact is admitted at page 7 of the Appellant’s Brief.

stated further that the Respondents as landlords executed a separate agreement on 18th November, 1994 with each of the Appellants as tenants, but the wordings were exactly the same in all the agreements (one of the agreements is marked Exhibit C to the Respondent’s affidavit at pages 10 – 11 of the Record). In that agreement it is stated that the Appellants will lease the Respondent’s land and construct a block of shops on it based on a building plan approved for the Respondents since 1982. It is also stated in the agreement that the Appellants will pay annual rents per shop to the Respondents but that the shops will be owned by the Appellants who built them. But throughout the agreement the duration of the Appellant’s lease is not stated and there is no provision on how the lease may be terminated. The
Appellants have argued, albeit without evidence, that it was the Respondent’s fault that the duration of the lease was omitted from the agreements, but they had also conceded in paragraph 5.5 of their Written Address at the lower Court (at page 65 of the Record) that omission ‘was not actuated by any ulterior motive or

fraud’.

Learned Senior Counsel for the Respondents submitted that be that as it may, it was the considered opinion of the learned trial judge (at pages 82 – 83 of the Record) that in the absence of a fixed duration for the Respondent’s lease, or a means to determine the duration of the lease, the agreements of 18th November, 1994 ‘created a lease in perpetuity’ which is unknown to law and therefore the agreements were invalid and void. Respondents’ counsel further submitted that the decision of the learned trial judge is supported by a plethora of authorities including the cases of STAR FINANCE AND PROPERTIES LTD VS. NDIC (2012) ALL FWLR (pt. 648) 895 at 909 and OKECHUKWU VS. ONUORAH (2001) FWLR (pt. 33) 219 at 234.

He submitted that assuming for argument sake that the agreements of 18th November, 1994 created valid leases for the Appellants, there is still no obligation under those agreements for the Respondents as landlords to compensate the Appellants for the shops built by the Appellants on the Respondents’ land. In this regard said counsel the indemnity clause in Articles 2(2) of the agreements does not

avail the Appellants. The clause stipulates as follows: -‘The Lessee is hereby indemnified against all claim, cost, action, losses and charges consequently (sic) upon any adverse claim in respect to the demised property’.

He submitted that the indemnity in the above provision is in respect of an adverse claim of title to the demised land by a third party. It does not apply to the situation at hand where the Appellants were evicted by their landlords from the demised land.

He submitted further that even before the invalid lease agreement of 18th November, 1994 the original understanding between the Appellants and the Respondent’s predecessors, Chief Bassey Eteta Ita, as contained in the document dated 2nd May, 1988, tilted “To Whom It May Concern”, did not contemplate a situation where the landlord would compensate the Appellants for the shops built by the Appellants. In that document said counsel which was produced in evidence by the Appellants and marked as Exhibit EA3 to their counter-affidavit (at page 48 of the Record) it is stated, inter alia, that the Appellants may sublet the shops they have built without

interference by their landlord and that the Appellants may remove the structure they have built notwithstanding the fact that it was built in their landlord’s name. He said that based on those provisions the learned trial judge held, and rightly so (at page 88 of the Record), that the only compensation the Appellants were entitled to was the rents they have been receiving for over 30 years from the shops that they built on the Respondents’ land, and that the Respondents were not expected to further compensate the Appellants for those shops, especially since the Appellants were entitled to remove their shops at the termination of their lease.

Learned Senior Counsel for the Respondents noted that the permanent building was erected in spite of the Appellants admission in paragraph 17, 18 and 21 of their counter-affidavit (at page 44 of the Record) that the Respondents had persistently refused all appeals to extend their lease even for a higher rent, and were ‘insisting we vacate the shops’.

He submitted that the Respondents cannot be expected to pay compensation to the Appellants for a building the Appellants erected against the

wishes of the Respondents, and in defiance of a quit notice given to the Appellants by the Respondents.

Moreover, that in the agreement of 18th November, 1994 it was stated expressly that the shops erected by the Appellants were to be in accordance with the Respondent’s approved plan of 1982. Also, in Article 1(2) of that agreement it was specifically stated as a part of the lessees’ covenants that the Appellants were ‘not to erect any other building on the land’. So, when the Appellants proceeded to replace the approved temporary structure of 1982 with a permanent building in 2011, they were in violation of their agreement of 18th November, 1994. Any loss that the Appellants may have suffered from the construction of that permanent building is in effect self-inflicted, and it is trite law that equity does not compensate for self inflicted injuries, hence the maxim: volenti non fit injuria.

Learned senior counsel for the Respondents insisted in line with the decision of the trial Court that the Appellants were tenants at will because by the time the quit notice was issued in March, 2017 the Appellants had been on

Respondent’s land rents free for more than six years and from October 2010, the Appellants had failed to secure a tenancy agreement with the Respondents. He referred to the case ofODUTOLA VS. PAPER SACK (NIG) LTD. (2007) ALL FWLR (pt. 350) 1214 at 1234 and said in effect that Appellants were not entitled to a quit notice as yearly tenants.

Learned senior counsel for the Respondents concluded his argument as follows: –
1.The sole issue in this appeal is essentially academic, as the Appellants cannot be awarded any compensation when they did not counter-claim for that remedy at the lower Court.
2.The agreements between the Appellants and the Respondents did not contemplate the payment of compensation to the Appellants for their structure on the Respondent’s land. On the contrary the agreement was for the Appellants to build a temporary structure which the Appellants can remove at the termination of their lease.
3.The conversion of the temporary structure into a permanent building by the Appellants was done against the wishes of the Respondents and in violation of their agreements of 18th November, 1994. In any event the building

was removed at the termination of the Appellant’s lease.

In his Reply brief, learned counsel for the Appellants raised what he termed an issue of jurisdiction that there is no provision for service of 30 days notice in any of the tenancies known to law, in the absence of express agreement between parties as to the length of Notice given as in this case.

DETERMINATION OF THE SOLE ISSUE
In one sense of it, this appeal is strange. The appeal is strange not because the Appellants by their own admission are no longer as a matter of fact on the land purportedly leased to them by the Respondents or the land the subject matter on which they were previously tenants to the Respondents. The appeal is strange because of the seeming inconsistency in the case put forward by the Appellants at various stages of the proceedings. For example, in the Court below the only issue put forward for determination by the Appellants was whether they were not entitled to compensation on the Respondents’ land.

On the other hand, Ground 2 of the Appellants Notice of Appeal came back as it were to re-contest the issue of the nullification of the purported

lease agreement between the Respondents and the Appellants.

However, in the Appellant’s Brief of Argument before this honourable Court the idea that the Appellants ought to be compensated resonated as the fulcrum of the Appellants case in this appeal.

As a matter of law, I do not think one can seriously contest the declaration by the learned trial judge in the Court below that the Appellants were at best tenants at will. The reasons for that declaration are as follows: –
1. It was/is not in dispute that the Appellants had been on Respondent’s land rents free for more than six years before the institution of the suit.
2. The Appellants failed to secure a tenancy agreement with the Respondents even after the Respondents quit notice of September, 2010 where after the Respondents did not collect and Appellants did not pay any further rent for the land.
3. There is no commencement or duration of the purported lease agreement Exhibit C and EA4.
In the case of STAR FINANCE AND PROPERTIES LTD. VS. NDIC (2012) ALL FWLR (pt. 648) 895 at 909 this Court per Okoro J.C.A. (as he then was) held: –
As far back as 1986 the Supreme

Court had set the essential ingredients that would make a lease proper. In the case of UNITED BANK FOR AFRICA LTD. VS. TEJUMOLA (1988) 4 NWLR (pt. 79) 662 at 664 – 667 the apex Court held that for a lease to be complete and enforceable the parties, property, length of the term, rent and date of its commencement must be defined. It also held that … there must be a certain ending otherwise it is not a perfect lease’. Again, in OKECHUKWU VS. ONUORAH (2001) FWLR (pt. 33) 219 at 234 para E – F the Supreme Court held, per Iguh J.C.A. that: -‘In order to have a valid agreement for a lease it is essential that it should appear either in express terms or by reasonable inference from the language used in the instrument on what day the term is to commence. Indeed, both the commencement and the maximum duration of the term must be either certain or capable of being rendered certain before the lease takes effect.’

See also ODUTOLA VS. PAPER SACK (NIG.) LTD. (2007) ALL FWLR (pt. 350) 1214 at 1233 paras B – F; OWOO VS. EDET (2012) ALL FWLR (pt. 642) 1791 at 1803 paras G – B.
Relatedly, a tenancy – at

– will arises wherever the premises is occupied by the tenant on the terms that either himself or the owner of the premises may determine the tenancy at any time. See ELAKHAME VS. OSEMOBOR (1991) 6 NWLR (pt. 196) P. 170; PAN ASIAN CO. LTD. VS. N. I. C. O.N. (1982) 9 S. C. 1
A tenancy – at – will may arise in the following ways:
1. By express agreement of the parties. See MANSFIELD AND SONS LTD. VS. BOTCHIN (1970) 2 Q. B. 612.
2. When a tenant holds over with the landlord’s permission without having paid rent on a periodic or any basis. See NAYE VS. ELECTRIC TRANSMISSION LTD. (1942) CH.D. 290.
3. Where a tenant takes possession under a void lease or under a mere agreement for a lease and has not yet paid rent. See MEGARRY and WADE, LAW OF REAL PROPERTY (4th ed) 630.
4. Where a person is allowed to occupy a house rent – free and for an indefinite period. See WHEELER VS. MERCER (1957) A. C. 416, 425; HOWARD VS. SHAW (1841) 18 M and W 118.
5. Where a purchaser has been let into possession pending completion of sale. See Megarry and Wade, Law of Real property (4th ed) 630
Tenancy – at –

will is thus a mere relationship of tenure unaccompanied by any estate and consequently a personal relationship which can exist only as a right in rem.

In the instant case, the learned trial judge was right to have held at pages 84 – 85 of the Record of Appeal that:
I have held above that the agreement of 18th November, 1994 is an invalid deed of lease, but that notwithstanding, from the facts of this case as can be gleaned from the affidavits before me, the Defendants were tenants of the Claimant.
Once a tenant stops paying rent as at when due or fails to secure a tenancy agreement for the property from the landlord, he becomes a tenant at will – see ODUTOLA VS. PAPER SACK (NIG.) LTD. (supra). In this case the Defendants were first given notice to quit on 30th September, 2010 (Exhibit D), the Defendants made attempts to get the Claimants to rescind the quit notice, but failed and since 2011 the Claimants had not received rent from the Defendants.
“A tenant who holds over after the expiration of his tenancy but with the consent of the Landlord is a tenant at will” – PAN ASIAN LTD. VS. NICON LTD. (1982) 9

SC 1.”
In this case, since the Defendants could not secure a new tenancy from the Claimants after 2010, their holding over on the land since 2011 to present day made them tenants at will and the Claimants have right to recover possession of their land from them.
The Defendants reliance on the purported lease agreement of 18th November, 1994 goes to no issue as that agreement has been declared invalid and of no effect.

From the above holding by the learned trial judge the argument of the learned counsel for the Appellants that they (Appellants) ought to have been treated as tenants under a common landlord/tenant relationship in spite of the invalid lease agreement goes to no issue. This is because the learned trial judge nevertheless and rightly too treated the Appellants as tenants at will but undeserving of notice to quit as a yearly tenant.

The most intriguing part of the Appellants case in this appeal is their demand for compensation for their developments on the Respondents’ land in the Court below without any counter claim and also on appeal here without any basis in law.

The Appellants knew too well that there is no

compensation clause or any agreement as to compensation on their improvements on the Respondents’ land in any of the documents that purportedly defined the relationship between them and the Respondents. The assertion by the learned counsel for the Appellants at page 11 of their brief of Argument that “The demand for compensation arises on the ground that the Appellants cannot remove the fixtures (permanent stores from the said land). They should be compensated for their structures” appears to be a little less than a moral injunction having no basis in law or even logic.
This is because whatever the nature of a contract whether oral, written or implied, parties are bound by their agreement and/or by the terms of their contract without any subtraction or addition and the Courts will not allow to be read into such a contract, terms on which there is no agreement. See AFROTECH VS. MIA & SONS LTD. (2000) 12 SC (part 11) 1 at 15; KOIKI VS. MAGNUSSON (1999) 8 NWLR (pt. 615) 492 at 494 SC; BABA VS. NIGERIAN CIVIL AVIATION TRAINING CENTRE (1991) 5 NWLR (pt. 192) 388 SC.

In the instant case, and throughout the length and breadth of the

trial of the Respondent’s Originating Summons in the Court below by affidavit evidence there was no iota of evidence or suggestion that the Respondents are obliged to compensate the Appellants for any improvement or development of the Respondent’s land by the Appellants.

Before I conclude my decision on Appellants’ sole issue in this appeal, I recall that the Appellants tried to attack the Respondents 30 days quit notice given to them (Appellants) as tenants at will. This argument by the Appellants was brought by the first time in the Appellants’ Reply brief presumably as a new issue in the appeal. While it is conceded that a party may raise a new issue on appeal in some circumstances, a party cannot start a new action through the process of appeal.
The originating suit between the parties was not for recovery of premises or recovery of possession, the originating suit filed by the Respondents was essentially for the interpretation of the agreement dated 18th November, 1994 whether the said agreement creates a valid deed of lease.
This Court is therefore being called upon to take up a new suit and not a new issue when

the Appellants asked us in his Reply brief to determine the validity of Exhibit E, the thirty (30) days quit notice that was served on the Appellants by the Respondents.
There was no such question or claim in the originating suit filed by the Respondents in the Court below.
An appeal is generally regarded as a continuation of an original suit rather than as an inception of a new action. An appeal should be a complaint against the decision of a trial Court.
Thus, in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See NDIC VS. S. B. N. PLC (2003) 1 NWLR (pt. 801) 311 CA; OREDOYIN VS, AROWOLO (1989) 4 NWLR (pt. 114) 172 SC; BABALOLA VS. STATE (1989) 4 NWLR (pt. 115) 264 SC.

In any event, assuming it was even necessary to give tenants at will such as the Appellants any notice to quit rather than just the 7 days Notice of Intention to recover possession. Exhibit ‘E’ the notice to quit contained on pages 13 of the Record of Appeal dated 1st March, 2017 with an expiration date of 31st of March, 2017 is a valid and proper 30 days notice to quit to the Appellants as

tenants — at — will. The only issue in this appeal is resolved against the Appellants.

The appeal lacks merit and it is accordingly dismissed.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my Learned brother, MOJEED ADEKUNLE OWOADE, J.C.A. was made available to me draft.

I entirely agree with the resolution of the one issue to the inevitable conclusion that the appeal is lacking in merit, I too dismiss the appeal and thereby affirm the decision of the Cross-River State High Court in suit with No. HC/179/2017 delivered on the 23/10/2017.

I abide on order made on costs,

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, J.C.A. I agree entirely with the reasoning and conclusion that the suit being for Interpretation of the agreement dated 18th November, 1994, no extraneous matters shall be brought up particularly on appeal.

The appeal is moribund and should be dismissed. I too dismiss the appeal.

Appearances:

FELIX UDO, ESQ. For Appellant(s)

ESSIEN H. ANDREW, ESQ. For Respondent(s)