JADONO v. AKONURE (2021)

JADONO v. AKONURE

(2021)LCN/15096(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, March 17, 2021

CA/AS/707/2019

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

SAMSON E. JADONO APPELANT(S)

And

PATRICK O. AKONURE RESPONDENT(S)

RATIO

EFFECT OF A SUCCESSFUL PRELIMINARY OBJECTION TO THE COMPETENCE OF AN ACTION ON POINT OF LAW

A notice of preliminary objection on point of law when decided by the Courts should be conclusive of the entire matter. See SANNI VS OKENE LG. TRADITIONAL COUNCIL (2008) 164 LRCN PAGE 117;CARLEN (NIG.) LTD. V. UNIJOS. In AJAYI V. MILITARY ADMINISTRATOR ONDO STATE (1997) 5 NWLR (PT. 504) 239, the Court held that the procedure of raising in limine a preliminary objection to the competence of an action on point of law is in general only satisfactory when whichever way the point is decided, it is conclusive of the whole matter. See AINA VS THE TRUSTEE OF NIGERIAN RAILWAY PENSION FUND (1970) 1 ALL NLR 28. When such ground(s) is successful, the matter is struck out or terminated. See OKONKWO & CO. VS UBA PLC. (2011) 6-7 SC (PT. 1) AT 196; NEPA VS. ANGO (2001) 15 NWLR (PT. 737) 627 AT 314; NDIKWE VS. NWADE (1999) 7 SC (PT. 1) 106; (1999) 11 NWLR (PT. 626) 314. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

WHETHER A COURT MUST REFRAIN FROM RE-WRITING THE CONTRACT OF THE PARTIES

The learned counsel was right in submitting on the authority of OGUNDEPO VS. OLUMESAN (2012) ALL FWLR (PT. 609) 1136 particularly at page 1146 HH –SC that a Court should not re-write the contract of the parties. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

POSITION OF THE LAW REGARDING THE BEST EVIDENCE OF THE CONTENTS OF A DOCUMENT

… as decided in UDO V. STATE (2016) ALL FWLR (PT. 840) 1179 AT 1206 Paragraph G-H, the best evidence of the contents of a document is the document its self-produced for the inspection of the Court. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

WHETHER THE HEAD OF A FAMILY CAN TAKE ACTION TO PROTECT FAMILY PROPERTY

In OJUKWU VS OJUKWU (2001) FWLR (PT. 41) PAGE 1948 AT 1956 – this Court held thus: “The law is that the head or Obi of a family can take action to protect family property.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This appeal stems from the judgment of the High Court of Justice Effurun, Delta State in Suit No. EHC/16/2018 wherein the Appellant as Plaintiff had sued the Defendant for the following reliefs:
1. An Order of this Honourable Court setting aside the Deed of Lease dated the 6th day of January, 1978 made between the Claimant and his family and the Defendant based on the Defendant’s breach of same.
2. An Order of this Honourable Court on the Defendant to Forfeit all that piece/parcel of land measuring approximately 100ft x 100ft lying, being and situate along Airport Road, now No. 136 Airport Road, Effurun in Uvwie Local Government Area of 2 Delta State which said land is the subject of the Deed of Lease dated 6th January, 1978 made between the Claimant and his family with the Defendant.
3. An Order of perpetual injunction restraining the Defendant by himself, agents, servants, privies, or any person(s) howsoever called from trespassing and further trespassing and/or remaining on the Claimant land.

The case of the Appellant is that he, alongside his two sisters leased a

portion of land measuring approximately 100ft X 100ft to the Defendant and by virtue of Uvwie Customary Law, he being the head of the family and the only surviving son coupled with the reversionary interests and failure of the Respondent to pay the annual rents and any outgoings in respect of the land he was entitled to forfeiture of the land.

On the strength of the above, he wrote the Respondent of the breach of the Covenants vide Exhibit CL1 but the Respondent in his usual manner rebuffed the Appellant and continued in the clear breach of none payment of the agreed annual rents, outgoings and has consistently challenged the
Claimant’s/Appellant’s rights and over lordship/title to the land.

On the Respondent part, he did not deny that he has not been paying his annual rents, he did not also deny paying any out-going, he did not also deny leasing or alienating the land or breaching the covenants in the Lease Agreement (Exhibit CL3) but his only defence is to continue to challenge the Appellant over lordship/title by claiming that it was not the Appellant that leased the land to him but his family.

The trial Judge had entered judgment against the Plaintiff/Appellant herein per its judgment delivered on 28th May, 2019 dismissing the claims and striking out the Defendant/Respondent’s counter claim.

Aggrieved by the said decision, the Appellant has by his Notice of Appeal contained on pages 155-160 and on the 12(twelve) grounds of appeal thus:
GROUND ONE (1):
The learned trial Judge erred in law when she held that there is nowhere in the three pleadings of the Claimant where the Claimant pleaded or alluded to the fact that the interest of the Defendant is a Customary tenancy.
PARTICULARS OF ERRORS
1. The Claimant/Appellant in Paragraph 4 of his deposition attached to his Reply alluded to the customary status.
2. The facts and circumstances of this case pointed to Customary Tenancy.
3. The parties need not expressly plead customary tenancy as it can be inferred.
4. The features of Customary Tenancy are evident in this instant case.
GROUND TWO (2)
The Learned Trial Judge erred in law in holding that “it is undisputed that the relationship between the parties was a lease under Common Law and not a customary Tenancy”.

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PARTICULARS OF ERRORS
1. The facts and circumstances of this case points at a customary tenancy.
2. This instant case was a case of customary tenancy.
3. Customary tenancy is a relationship between Landlord and Tenant.
4. The relationship of the parties has the flavour of customary tenancy.
GROUND THREE (3)
The Learned Trial Judge erred in Law when she held that there is no provision in Exhibit CL3 for forfeiture or right of re-entry in the event of breach of the Lessee’s covenants by the Defendants herein.
PARTICULAR OF ERRORS:
1. Paragraph 1 of Exhibit CL3 where the Respondent (LESSEE) covenanted clearly spelt out the right of forfeiture or re-entry.
2. The right of forfeiture or re-entry accrues in the event the Lessee/Respondent fails to pay the rent reserved.
3. The right of forfeiture also crystalizes at the Lessee/Respondent refusal to perform the several covenants in the Lease.
GROUND (4) FOUR:
The learned Trial Judge erred in Law when she held that “in this case, Exhibits CL3 which is the Lease Agreement executed in favour of the Defendant described the Parties as, the

Jadono, family as the lessors while the Defendant herein is described as the Lessee.”
PARTICULARS OF ERRORS
1. Exhibit CL3 was made/executed between (1) Madam Ishaka Jadono, (2) Madam Aditine Jadono, & (3) Mr. Samson E. Jadono as Lessors and Defendant herein as the Lessee.
2. The Lessors in Exhibit CL3 acted as the Principal Members and Accredited Representatives of Jadono family of Ugboroke.
3. All the Lessors (1) Madam Ishaka Jadono, (2) Madam Aditine Jadono, & (3) Mr. Samson E. Jadono acted in dual capacity i.e both for themselves and on behalf of Jadono family.
GROUND 5 (FIVE)
The Learned Trial Judge erred in Law when she held that “I hold the view that Samson E. Jadono at whose instance Exhibit CL1 was issued, not being the sole Lessor in Exhibit CL3, the notice so contained in Exhibit CL1 is not a notice from the Defendant’s Lessors.
PARTICULARS OF ERRORS
1. Of the three (3) Lessors, Samson E. Jadono was the only male and the only survivor till date.
2. The Claimant also copiously pleaded in his Statement of Claim and Reply that he is the eldest surviving son of Jadono family and

based on Uviwe/Urhobo Customary Law on inheritance, he is entitled to the reversionary interest in the land in dispute.
3. Exhibit CL3 contains three (3) Lessors and the Claimant led evidence that he was the only surviving of the three Lessors (3) moreso the eldest.
4. Samson E. Jadono was not just a member but the head of the Jadono family who can issue notices and sue in respect of the family land.
5. The recitals in Exhibit CL3 clearly donated the power to Samson E. Jadono to issue Exhibit CL1.
6. Section 161 (5) (c) of the Property and Conveyancing Law of Delta State, Cap P. 17 also supports the Notice (Exhibit CL1) issued by Samson E. Jadono.
GROUND (6) SIX
The Learned Trial Judge misdirected herself in law in holding that “it is pertinent to state here that whilst by Exhibit CL3, the Defendant as Lessee covenanted to pay the rents, outgoings and also deliver up the demised premises at the expiration of the term demised in his favour, there is no provision in Exhibit CL3 for forfeiture or right of re-entry in the event of a breach of Lessee’s covenant by the Defendant herein.”

PARTICULARS OF MISDIRECTION
1. Paragraph (1) one of the Lessee covenant 1 Exhibit CL3 clearly emphasized the conditions for forfeiture or right of re-entry.
2. The right of forfeiture or re-entry accrues in the event of the Lessee/Respondent fails to pay the rent reserved.
3. The right of forfeiture also crystallizes at the Lessee/Respondent refusal to perform the several covenants in the Lease.
GROUND (7) SEVEN
The Learned Trial Judge erred in Law when she relied upon and wrongly applied the case ofISHOLA-WILLIAMS VS T. A. HAMMOND PROJECT LIMITED (1988) 1 NSCC, 342.
PARTICULARS OF ERRORS:
1. The facts and circumstances of the case of ISHOLA -WILLIAMS VS T. A. HAMMOND PROJECT LIMITED (supra) are radically different from this instant case.
2. The overriding issue and rationale behind the decision in ISHOLA-WILLIAMS VS T. A. HAMMOND PROJECT LIMITED (supra) was mainly because the time given to the Defendant to develop the land in a space of 23 days when 55 years out of the 60 years Lease was still outstanding.
3. While inISHOLA-WILLIAMS VS T. A. HAMMOND PROJECT LIMITED (supra) there were major conditions in the Lease for the

Defendant to develop the land and call it Eso-Ola House, as well as spend not less than N750, 000 (Seven Hundred and Fifty Thousand Naira) to develop or build the house. These fundamental conditions were not contained in the instant case except the payment of N40 (Forty Naira) annual rents and pay outgoings.
4. The notice discussed in ISHOLA-WILLIAMS VS T. A. HAMMOND PROJECT LIMITED was predicated on notice to Repair.
GROUND (8) EIGHT
The learned Trial Judge erred in Law in holding that Exhibit CL1 did not in any way refer to a previous Notice.
PARTICULARS OF ERRORS
1. There is no Law that requires a Lessor to write more than on Notice of breach to the Lessee.
2. Exhibit CL1 is sufficient in the eyes of the law in the circumstances of this instant case.
3. The Respondent never denied breaching the covenant to pay the annual rent which in itself corroborated both Exhibit CL1 and the Claimant’s evidence before the Court.
GROUND (9) NINE
The Learned Trial Judgment erred in Law when she held that Exhibit CL1 failed to state the value of the annual rents or outgoings due to the Defendant/Lessee.

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PARTICULARS OF ERRORS:
1. The annual rent of N40 (Forty Naira) was clearly pleaded by the Claimant and the value of the annual rent was not in doubt by the parties.
2. The Respondent never denied knowing the value of the annual rent.
3. The Respondent admitted under cross examination that the annual rent is N40 (Forty Naira) and that he has not paid.
4. Exhibit CL1 was explicitly enough as the Respondent never claimed ignorance or stated that he was misled or suffered any problem arising it.
5. There was no dispute both in the pleadings or evidence as to the value of the annual rends.
6. The Learned Trial Judge came to this conclusion when she wrongly applied and followed the decision in ISHOLA-WILLIAMS VS T. A. HAMMOND PROJECT LIMITED (supra) which is not on all-fours with this instant case.
7. On the issue of the out-goings, the Respondent affirmed under cross examination that he never sought clarification from the Claimant/Appellant on what constitute outgoings.
GROUND (10) TEN:
The Learned Trial judge erred in law when she dismissed the Claimant/Appellant’s case on the ground that the Appellant did

not give the particulars of the breach.
PARTICULARS OF ERRORS:
1. The Claimant/Appellant’s case was mainly the breach of the covenant to pay annual rent by the Defendant/Respondent.
2. The Defendant/Respondent covenanted in Exhibit CL3 to promptly pay the annual rent and this the Claimant/Appellant pointed out to him vide Exhibit CL1.
3. There was no dispute as to the value of the annual rent both parties knew and agreed to.
4. Exhibit CL1 determined in this instant case was not in respect of breach to repair of work to be done as in ISHOLA-WILLIAMS VS T. A. HAMMOND PROJECT LTD. case.
GROUND (11) ELEVEN:
The learned Trial judge erred in law when she held that Exhibit CL1 is invalid as a notice of breach because it did not give the Lessee/Respondent the opportunity to remedy the breach.
PARTICULARS OF ERRORS:
1. The Claimant/Appellant did not commence this action until the 23rd of January, 2018, inspite of the 72 hours stated in Exhibit CL1.
2. The Defendant/Respondent waited for over 2 months i.e. until 28th of March, 2018 before filing his Statement of defence.
3. The claimant/Appellant did not open

his case until 10th October, 2018.
4. There was more than enough opportunity for the Respondent to remedy the breach if he had wanted to.
5. The Respondent never showed any sign or feeling of reasonableness to the Appellant.
6. The onus of remedying the breach on receipt of the notice of breach was on the Lessee/Respondent and it was for him to make reasonable compensation in monetary terms to the Lessors.
GROUND TWELVE (12)
The judgment is against the weight of evidence.
Come before this Court.

Upon the transmission of the record of appeal on 29th November, 2019 and which was regularised on the 29th June, 2020, the respective parties by their counsel filed and exchanged their Briefs of Argument thus:
The Appellant’s Brief of Argument filed on 3rd February, 2020 and adopted at the hearing with the Appellant’s Reply Brief of Argument had his learned counsel, Onoriode W. Ewenode, Esq., formulating 3 issues for determination, thus:
ISSUES ONE (1)
WAS THE LEARNED TRIAL JUDGE NOT WRONG IN LAW IN RELYING ON THE CASE OF ISHOLA-WILLIAMS VS T.A HAMMOND PROJECTS LIMITED (1988) 1 NSCC, 42 WHILE

INTERPRETING SECTION 161 (1) OF THE PROPERTY AND CONVEYANCY LAWS OF DELTA STATE, CAP P.17 THEREBY ACTING WITHOUT JURISDICTION, MORESO, THE FACTS AND CIRCUMSTANCES OF BOTH CASES ARE DIFFERENT?
(GROUNDS 5, 7,8,9,10,11 & 12)
ISSUE TWO (2)
FROM THE FACTS AND EVIDENCE OF THIS CASE, WAS THE PAYMENT OF THE N40 ANNUAL RENT UNKNOWN TO THE LESSEE/RESPONDENT AND HIS FAILURE TO PAY THE AGREED N40 ANNUAL RENT, NOT A GROUND FOR FORFEITURE?
(GROUNDS 3 & 6)
ISSUE THREE (3)
WHETHER THE LEARNED TRIAL JUDGE WAS NOT WRONG IN NOT PROPERLY EVALUATING THE EVIDENCE AS TO THE DUAL CAPACITY OF THE APPELLANT IN THE LEASE AGREEMENT- (EXHIBIT CL3) THEREBY REFUSING THE APPELLANT’S CASE?
(GROUNDS 1, 2 & 4)

On his part, the Respondent adopted the Appellant’s issues, but not without raising some concerns about the Grounds of Appeal and the right of the Appellant to raise some issues as he has done in the appellate Court, herein.

It is the Appellant’s Appeal and I find the issues raised by him as all embarrassing and covering also the Respondent’s issues.

Arguing issue number 1, the Appellant submitted that he had in his statement of claim sought the relief of forfeiture against the Respondent and as pleaded in paragraphs 4, 7 and 8 of the statement of claim and paragraph 2 of his Reply to the Respondent’s statement of Defence indicating the annual rent for the lease of the land as fixed at N40. That the learned trial Judge had relied only and heavily on the case ofISHOLA WILLIAMS VS. T. A. HAMMONDS PROJECT LIMITED (1988) 1 NSCC 42 while interpreting and applying Section 161 (1) of the Property and Conveyance Law of Delta State, Cap. 17, 2008 while dismissing the Appellants case without reckoning the exception or limitation created by the sub section 10 of that law.

Learned counsel argued that the trial Judge did not appreciate that the sub section 10 of S. 160 of the Conveyance Law of Delta State clearly excludes the law in its application to claim or actions bordering on re-entry, forfeiture or relief in case of non-payment of rent. Counsel contends that in the interpretation of statutes, the entirety of the Section or sub section must be taken into consideration and not in isolated bits or portions thereof; counsel relies

on CHIME & ORS. VS. UDE & ORS (1996) LPELR 848 SC per Onu J.S.C.; AKPAMGBO – OKADIGBO & ORS. VS. CHIDI & ORS (2015) LPELR 24564 @ 28 D-F, or (2015) 10 NWLR (PT. 1466) 171 for the view.

It was vehemently stressed that the Appellant’s claim was clearly one for forfeiture of the lease for non-payment of reserved rent in the lease tenement and that neither the Court nor parties or counsel can interpret away the application of the exception provided by the Subsection 10 of Section 160 of the Property and Conveyance Law, Delta State.

That ISHOLA-WILLIAMS VS T. A. HAMMOND (supra) was wrongly relied upon as the facts are different from the instant matter, just as the circumstances are different. It was distinguished thus;
1. In the Ishola case, the period of 23 days given in the Notice for the leasee to develop or build on the land was considered insufficient, as there was 55 years of the 60 years period to build on the land, still unexhausted.
2. That in the Ishola-Williams case, there were major conditions in the lease for the lessee to develop the leased land that the property to be called Eso-Ola House and also….

The lessee must spend not less than N750,000 (Seven Hundred and Fifty Thousand Naira) to develop or build the House. There are no such conditions in the instant case on Appeal.
4. That the Notice in Ishola-Williams vs. T. A. Hammond Project Limited (supra) was strictly on Notice to repair as against the notice in respect of Breach of Covenant.
5. That the trial Judge was wrong in holding that Exhibit CL, was invalid as it was a Notice praying for Relief of forfeiture under S. 161 (10) of the Property and Conveyance Law.
6. That in the Ishola-Williams case (supra), there was no annual rent reserved as against its reservation by Exhibit CL3 (the lease Agreement) in this instant case on appeal. That Respondent in cross-examination affirmed this rent reservation of N40, per annum as made.
7. That even then, there was no definition of “reasonable time to remedy the breach” and that there was evidence that despite Exhibit CL, the Appellant did not commence his action until 23rd January, 2018 and Respondent took no action until over 2 months of the service of the statement of claim on him.

Counsel concluded that on the evidence led, the trial Court would not have rendered judgment against the weight of evidence led, were it not for the undue reliance on Ishola-William’s case supra and its loop sided interpretation of Section 161(1) CP Law of Delta State without appraising the evidence and the clear statutory provisions of Section 161(10) of the CP law.

RESPONDENT’S ARGUMENTS.
The Respondent on the issue one supra contends that the right of a lessor to seek forfeiture of the lease is a contractual matter and must be provided for in the lease agreement. That the lessor possesses no such right as he can only sue for damages or seek for the specific performance of the breach of any covenant in the lease.

The case of HELLOS TOWERS NIG. LTD VS MUNDILI INVESTMENT (2014) LPELR 24608 CA and ISHOLA WILLIAMS V. T. A. HAMMOND PROJECTS LTD (1988) 1 NSCC 342 are referred to and thus argued that the deed of lease, the Exhibit CL3 did not confer any right of forfeiture expressly on the Appellant’s family i.e (Jadono family) who are the lessors, for any breach of the terms; therein.

The learned counsel submitted that the option of forfeiture was

not agreed upon by the lease for any breach of the terms or covenants.

Counsel submitted that even if the right of re-entry or forfeiture can be inferred from paragraph one(1) of the lessor’s covenant in the deed of lease Exhibit CL3, it is obvious that the exercise of the right was subject to Section 161(1) of the Property and Conveyancing Laws of Delta State, 2008.
Contends that the Section 160(3) interpreted is the same as S. 14(1) of the Conveyancing Act 1881.

Counsel contends that Ishola-Williams (supra) applying the said Section 14(1) (supra) is applicable and was rightly applied to the instant case by the trial Court.

It was also submitted that the word “shall” in the legislation, i.e. 161(1) of the Property and Conveyancing Law (supra) connotes a mandatory requirement leaving no room for any discretion on the part of the Court. See DIOKPA FRANCIS ONOCHIE & ORS. FERGUSON & ORS. (2006) ALL FWLR (PT. 317) P. 544 was relied upon for this view.

That the failure to serve the statutory Notice as required was fatal to the claim, therefore.

That the Exhibit CL, given as a Notice of forfeiture was invalid

for the reason that it was not issued by the entire Jadono family who are the lessors as stated in the Deed of Lease.

That the Appellant himself in cross-examination admitted that Exhibit CL1 was written by his counsel who was briefed by him in his personal capacity and the lawyer did not indicate therein that he was acting on behalf of the Jadono family and the head of the family.

That the author of Exhibit CL1 was not the lessor, nor a party to the lease Agreement the Exhibit CL3; that not being a party to the lease agreement the said Notice was incurably defective as the said Appellant was not a sole lessor but only one out of the other members of the family who acted for the Jadono family in respect of the lease in question, i.e Exhibit CL3.

It was also submitted that Exhibit CL1 did not give the specific particulars of the breach of the failure to pay annual rents and other outgoing. That detailed particulars of how many years annual rent, due and actual sum labelled “outgoings” had not been stated.

That it was this failure that necessitated the conclusion of the trial Court at page 153 of the Record (in its judgment) thus:

“In the instant case, while Exhibit CL1 states that the Defendant covenanted to pay the annual rent and other outgoings. it failed to state the value of the annual rent or outgoings due for the defendant/lessee to have the opportunity to remedy them.”

The learned counsel contended that there was no such covenant against sub-leasing to other persons or organisations in the Deed of Lease, contrary to the complaint of the Appellant in Exhibit CL1 that there was a breach by sub-letting to different persons, firms and organizations including Fidelity Bank, Boutiques etc.

Secondly, that it was not stated in the Exhibit CL1 whether the breach was capable of being remedied nor did it demand that the Respondent do the needful by paying compensation in money for the said breach. That there was no reasonable time given to the lessee to remedy the breach. That both the statutory and contracting conditions for the recovery of the land by an order of forfeiture had not been met.

On whether the trial judge was wrong in the invocation of Ishola’s case, it was contended that on the facts and the principles of law, the case was rightly

applied to the case at hand at the trial Court and on the following reasons:
(a) That the same character of matter in both cases i.e. being demised land which was leased with restrictive covenants.
(b) There was a breach by both Respondents as it relates to the restrictive covenants in the Deed of lease making the lessors to write to the lessors vide their solicitors with specific timing as to when the respondents should do the needful.
(c) Both lessors filed a writ of summons against the Respondents praying forfeiture based on the breach complained of.

That in both cases, the Court had to consider same question of law which bordered on the content and validity of both notices, whether they complied with the requirement of Section 14(1) of the Conveyancing Act or S. 161(1) of the Property and Conveyancing Law, Cap 17 Laws of Delta State 2008 (which are in pari materia).

That the trial Court relied solely on Ishola’s case and rightly too, that the Courts are bound to abide by a former precedent where the same points came again in litigation. See OSAKUE VS. FEDERAL COLLEGE OF EDUCATION TECHNICAL, ASABA.

ISSUE 2
From the facts and evidence of this case, was the payment of the N40 annual rent unknown to the Lessee/Respondent and his failure to pay the agreed N40 annual rent not a ground for forfeiture?

It was argued that the fact of N40 as the annual reserved rent was known to the Respondent and so also the default in its payment from inception was not denied. That it was admitted, that there was no dispute on this and thus the Court so found. Referring and producing the Exhibit CL3 as the binding lease Agreement, Appellant’s counsel argued that the content clearly implied that the peaceful enjoyment of the demised property was subject to the payment of the reserved rent that, Exhibit CL3 had clearly and copiously spelt out the consequences of failure to pay annual rent, outgoings, charges etc. on the land.

That lines 1, 2, 3 and 4 of pages of Exhibit 3 had spelt out the basis and condition upon which the land was leased to the Respondents that the right of forfeiture accrues and crystallises once it is found as in the instant case that the annual rent of N40 was not paid.

In response, the counsel submits that parties are bound by the terms of the lease

agreement – Exhibit CL3 and says that Exhibit CL3 is silent on the following:
(a) What constitutes outgoings.
(b) When does the outgoings become due.
(c) Consequences of failure to pay the said outgoings.
(d) The purported right of forfeiture conferred on the lessor, as in this case the Appellant’s family that the trial judge was right in holding that there is no provision in Exhibit CL3 for forfeiture or right of re-entry in the event of a breach of the lessee’s covenants by the Defendant herein.

It was also submitted that the right of forfeiture is not automatic. That the burden of proving the breach of the covenants and giving reasonable time to remedy was on the Appellant (lessor). See AKINTOLA VS. OYELADE (1993) LPELR 359 SC; HELIOS TOWERS NIG. LTD. VS MUNDILI INVESTMENT LTD. (2014) LPELR 24608 CA relied upon.

Counsel submitted that the Appellants have failed to satisfy the requirements as stated in the cases (supra) and was therefore barred from taking any action for forfeiture.
That this issue be resolved in favour of the Respondent.

ISSUE THREE (3)
Whether the learned trial Judge was not

wrong in not properly evaluating the evidence as to the dual capacity of the Appellant in the lease Agreement (Exhibit CL3) thereby refusing the Appellant’s case? (Grounds 1, 2 and 4).

It was argued that the trial Judge was wrong in not finding for the dual capacity of the Appellant as lessor which was clearly stated in the lease agreement. That the Appellant was a signatory and the only male signatory in the Exhibit CL3 and that this was confirmed by the Respondent in cross-examination.

That the reversionary right of the Appellant under the lease was obvious from the statement of claim, Reply to the Defence and statements on oath of Appellant to his claim and Reply. The Respondent in Cross-examination admitted that status of the Appellant.

The learned counsel reproducing the words thus:
“……hereinafter jointly and severally referred to as “the lessors” for themselves and on behalf of the said Jadono family, which expression shall, where the context so admits include the person or persons for the time being entitled to the reversion immediately expectant.”

Also argued that the Appellant may either

singly/solely or along of other co-lessors act on behalf of the Jadono family as in Exhibit CL1 and even bring action in any of these capacities. The learned counsel drawing from Black’s Law Dictionary, Eight Edition, pages 854 and 1406, observes that “joint” – is defined as common or to be shared by two or more persons – severally – distinctly, separately individually, while the word “for themselves” creates individualistic and ability to act in personal capacity.

“The person” as used referring to the claimant in person. That the man – signatory to Exhibit CL3 was referred to as the person entitled to the reversion. S. 161(5)(c) of the Property and Conveyancing Law, Delta State 2008 relied upon. That Appellant having testified uncontradicted that he was the oldest surviving son of Jadono family and based on their Uvwie-Urhobo customary law on inheritance, he was entitled to the reversionary interest in the land. Refers to Appellant’s Statement on Oath attached to his Reply filed on 5th April, 2018 that no contrary evidence was led as to who was the head of the family.

Learned counsel says members of the family may protect family property referring to Mozie Vs. Mbamalu (2006) All FWLR (Pt. 341) 1200 At 1217, but that the head of the family as the Appellant herein, under customary law can take any step be it sale, lease of a family land alone or in his personal capacity and such action can only be voidable at the instance of the principal members and not a mere member of the family and that it was worst of when it is an outsider like the Respondent herein. See EKPENDU V. ERIKA (1959) 4 FSC 79; OJUKWU VS OJUKWU (2001) FWLR (PT. 41) 1948 AT 1956 (CA), the Head or Obi of a family can take action to protect family property. The learned counsel quoting the covenants in the lease Agreement Exhibit CL3 emphasised that the lessee’s rights to enter, peacefully hold, enjoy and build on the land was subject to if and only if the respondent has paid his annual rents and observing and/or performing the several covenants contained in Exhibit CL3.

The learned counsel emphasised that the non-payment of annual rents outgoings and continued denial of the claimant are succulent grounds for forfeiture. That the grant of the relief of forfeiture was

signed for by the parties and ought to be enforced by the Court.

It was vehemently submitted that the Appellant, Mr. Samson E. Jadono can validly issue Exhibit CL1 for the reasons, thus:
1. Mr. Samson E. Jadono is a signatory to the Agreement, Exhibit CL3 and the only male lessor.
2. Mr. E. Jadono pleaded and led evidence that he is a person entitled to the reversionary interest in the land.
3. Pleaded and led evidence that he is the Head of the Jadono family.
4. His rights of inheritance under Uvwie Urhobo Customary Law.
5. That Section 156(2) and 161(5)(c) of the Property and Conveyancing Law of Delta State, Cap. 17, 2008 gave Samson E. Jadono the right to demand, recover and enforce the lease in his personal capacity.

On the whole that the Appellant acted both in his personal capacity (which is entitled to) and in the dual capacity of representative of Jadono family. That this issue be resolved in favour of the Appellant.

On the whole, that the 3 issues be resolved in favour of the Appellant and the Appeal be allowed in the face of the clear and unambiguous provisions of Section 161 (10) of the Property and Conveyancing Law

which was jettisoned even after finding on the N40 annual rent and the evidence.

Responding on issue 3, the Respondents contended that the Appellant had not proved his right to act in dual capacity under the law; that the cases of MOZIE VS. MBAMALU AND EKPENDU VS ERIKA (supra) were in applicable as they dealt with the protection of family property against wrongful alienation or dealings so as to protect family property.

That in this matter, it was a purported violation of Restrictive Covenants in issue and in which no efforts were made at the “appropriate notice” by the right lessors; that no formal pre action notice from Jadono family as required by law was issued.

That the purported Notice was silent on the payment of rent.
That the Appellant did not indicate the capacity in which he issued Exhibit CL1. That this was gravemen.

That the Appellant did not establish the capacity in which he sued at the trial Court. That there was no averment and proof by evidence that the reversionary interest in the land had devolved on the Appellant’s and the Appellant counsel’s address no matter how

brilliant cannot take the place of evidence or fill in the gaps in the evidence. See AYANWALE VS ODUSAMI (2012) ALL FWLR (PT. 610) 1246 (SC).

That it was clear that the Deed of lease was executed by the Jadono family and the Respondent and no where did the Appellant execute in his personal capacity. That Appellant did not execute Exhibit CL3 in dual capacity and the issue be resolved in favour of the Respondent.
That the Appeal be dismissed as lacking in merit.

RESOLUTION OF ISSUES
The issue 1 (one):
Before proceeding to resolving the issues or better still before considering the merit of the appeal on the issues formulated by the Appellants, it needs be pointed out that the Respondent raised what he called preliminary issues arising from the Appellant’s Brief of Argument at pages 3 to 5.

The said preliminary issues is introduced by the Respondent in the following words as contained at paragraph 4.01 of his Respondent’s Brief of Argument at page 7 thereof.
Thus:
“My Lords, the Respondent is objecting to the following issue of “The applicability of Section 161(10) of the Property and Conveyancing Law Cap. P. 17 of Delta State, 2008

to this instant case” raised and argued by the learned counsel for the following points:
a) The said issue as raised and argued by learned counsel for the Appellant did not emanate from any of the grounds of Appeal as contained in the Grounds of Appeal of the Appellant.
b) The said issue despite not been distilled from any of the grounds of appeal is been raised for the first time by the Appellant in this Appeal without seeking the leave of this Honourable Court to raise and argue same.”

It is obvious to me that from the couching and the arguments thereon in respect of the two points raised supra as (a) and (b), the Respondent would appear to have intended to raise a Notice of Preliminary Objection to the Appeal.
This he has not however done as in law, a Notice of Preliminary Objection shall be consummated by the filing of a Notice to that effect of least 3 days before the date of hearing of the Appeal. There is no such Notice filed in this Appeal, nor is the point of preliminary issues the same as a Notice of preliminary objection.
A notice of preliminary objection on point of law when

decided by the Courts should be conclusive of the entire matter. See SANNI VS OKENE LG. TRADITIONAL COUNCIL (2008) 164 LRCN PAGE 117;CARLEN (NIG.) LTD. V. UNIJOS.
In AJAYI V. MILITARY ADMINISTRATOR ONDO STATE (1997) 5 NWLR (PT. 504) 239, the Court held that the procedure of raising in limine a preliminary objection to the competence of an action on point of law is in general only satisfactory when whichever way the point is decided, it is conclusive of the whole matter. See AINA VS THE TRUSTEE OF NIGERIAN RAILWAY PENSION FUND (1970) 1 ALL NLR 28.
When such ground(s) is successful, the matter is struck out or terminated. See OKONKWO & CO. VS UBA PLC. (2011) 6-7 SC (PT. 1) AT 196; NEPA VS. ANGO (2001) 15 NWLR (PT. 737) 627 AT 314; NDIKWE VS. NWADE (1999) 7 SC (PT. 1) 106; (1999) 11 NWLR (PT. 626) 314.
That being the case as aforesaid the “points of preliminary issues” as raised are of no moment but only of academic import. Having been argued as relating to the issue of the applicability or other wise of the invocation of the forfeiture principle and effect on the suit and whether the trial Court rightly held that the lease had been

forfeited by virtue of the lease agreement, the preliminary issues and the argument relating thereto are disregarded not being a point of preliminary objection properly raised as it were. See Orders 6 Rule (1); 2(5) (1) (2) Court of Appeal Rules 2016 and the cases of ONOCHIE & ORS VS. FERGUSON & ORS (2006) ALL FWLR 317 PAGE 544 @ 552 AND DONGTOE VS CIVIL SERVICE COMMISSION PLATEAU STATE & ORS (2001) 9 NWLR (PT. 717) 132 OR (2001) LPELR 959.
The said preliminary issues and the attendant arguments thereon mentioned as arguments on point ‘A’ and point ‘B’ respectively, as raised and Articulated on page 57 and 58 are without legal foundation or basis; they are struck out, as the only way to challenge the brief and issues thereon is by Motion on Notice to have them struck out.
It is in its further ambivalence, that it is even referred to by counsel to the Appellant as “an issue to be resolved”. See page 8 of Respondent’s brief; makes it the more reason why it must be discountenanced. I so discountenance the reference and arguments on “Preliminary Issues”.

RESOLUTION OF ISSUES IN THE APPEAL
ISSUE NUMBER ONE
The Appellant, by its issue one, appears to be arguing that the trial Court was entitled to apply the provisions of Section 161(1)(10) of the Property and Conveyancing Law of Delta State to the extent of recognising it as ousting its jurisdiction to give effect to Section 161(1) on matters bordering on re-entry, forfeiture, relief bordering on account of non-payment of Annual rents.
That is to say, that an order for the relief of forfeiture shall not be made in favour of a tenant or lessee except it is shown or proved that there was non-payment or breach of contract of rent as agreed or covenanted in the lease.
The simple and clear provisions of the Delta State Property and Conveyancing Law Section 161(10), Cap 17 thus:
“This section does not, save as otherwise mentioned affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent.”
Clearly, from the above, the law relating to forfeiture, re-entry or any relief in case of non-payment of rent have not been affected by the said conveyancing Law. The general law relating to forfeiture, re-entry whether for

dealings or in actions/challenge of the over Lord’s title or lessor’s title or for non-payment of Rent as fixed by the lease agreement have not been shown to have been made exceptions by the conveyancing law. What is more, the said law has by the explicit provisions of S. 161 (10) of the Conveyancing Law (supra) been categorical that those incidences and purport of the law relating re-entry forfeiture and relief on non-payment of rent are not affected.
Contrary to the submissions of the learned Appellant’s counsel, the Section 161(10) of the Property and Conveyancing Law, is the specific provision that limits the general provisions of S. 161(1) of the said law.
Indeed, the Subsection 10 of S. 161 is the exception to the law. The principle of interpretation of statutes as enunciated inOBI V. INEC & ORS(2007) is apt and applicable in favour of the trial Court’s view on the interpretation of statutes.
Indeed, in JAMES ORUBU V. NATIONAL ELECTORAL COMMISSION (NEC) & ORS. (1988) 5 NWLR (PT. 94) 323, it was held that specific provisions prevail over general provisions.

This …. the Appellant’s learned counsel appreciated by his submissions at pages 1-5 of his clients Brief of Argument.
There is no doubt that there was a confusion of thought as the learned counsel at page 3 of the Brief of Argument, at paragraph 2.16 thereof had submitted thus: “My Lords Section 161(10) of the Property and Conveyancing Law is a special or specific provision that clearly gave an exception to the applicability of Section 161(1). Subsection (10) of Section 161 oust the jurisdiction of the trial Court to rely on the provisions of Section 161(1), but gave the trial Court (omission) to give effect to any case that borders on re-entry, forfeiture or relief where such case borders on non-payment of Annual rent.
Contradictorily, the learned counsel submitted at page 4 of his client’s Brief of Argument (paragraph 2.17) thus: My Lords, Sub-section (10) of Section 161 Property and Conveyancing Law out rightly aborted the application of the entire Section 161 to proceeding on re-entry, forfeiture or reliefs if it is predicated on disputes arising from non-payment of Annual Rents in lease Agreement.
The Appellant’s argument on this issue is not only

contradictory but in total departure from the essence of the general provisions of Section 161(1) of the Property and Conveyancing Law which he accepts at para. 2.13 to be a general provision. If S.161 (10) had been an exception and abolishment of Section 161(1) as contended by the Appellant’s counsel, then the trial Court would not have been wrong in not granting the relief of forfeiture as it did.
The Appellant shot its self at the leg by its pattern of argument on issue one as framed and was inconsistent in its case and as deprecated in AJIDE VS KELANI (1985) 3 NWLR PT-PAGE 248.
However, on the merit, the issue ought to be resolved in favour of the Appellant as the relief sought was one for forfeiture on ground of non-payment of Annual rent by a lessee and Notice and requirements of Section 161(1) of Property and Conveyancing Law had been shown to exist.
There is no doubt in my mind that the trial Court viewed the lease as one based on common law and not a customary tenancy hence its total acceptance of the Argument of the Lessee/Respondent herein that it was not subject to forfeiture brevi-manu and without compliance with

Section 161(1) of the Conveyance Law, Delta State, 2008 as alleged or thought.
Clearly, a reading of the Exhibit CL3 shows that it was a lease under customary law. I should add that whether under statutory lease or customary lease, by the evidence led, notice had been given for the forfeiture and it was a reasonable one; as the evidence led showed that there was a total refusal to pay the reserved rent and more so there was denial of the lessor’s title. The Notice i.e Exhibit CL1 was in the circumstance not unreasonable in purport or duration; it was a Notice issued by a lessor as defined in the conveyancing and property law relevant and as defined under the lease agreement, i.e the Exhibit CL3.
The learned counsel for the Respondent had clearly and no doubt appreciated that the determinant of this appeal is based strictly on the proper interpretation and/or construction of the Deed of Lease which was tendered at the lower Court and marked as Exhibit CL1 which he said, was not a valid Notice of forfeiture. See pages 12 and 13 of the Respondent’s Brief on this submission.
The learned counsel was right in submitting on the authority of

OGUNDEPO VS. OLUMESAN (2012) ALL FWLR (PT. 609) 1136 particularly at page 1146 HH –SC that a Court should not re-write the contract of the parties.
Indeed, as decided in UDO V. STATE (2016) ALL FWLR (PT. 840) 1179 AT 1206 Paragraph G-H, the best evidence of the contents of a document is the document its self-produced for the inspection of the Court. An inspection of Exhibit CL3 shows who the parties thereto are. They are the Appellant herein, acting as lessor for themselves and representatives of their family jointly and severally as lessors and the Respondents, herein as lessee.
There is no question about the law that the right of a lessor to seek an order of forfeiture is both contractual and statutory and the terms shall be as expressed or as may be implied.
The Respondent’s counsel had argued that the lease was irrevocable except upon the completion of the term or the satisfaction of the conditions for forfeiture which is both a statutory right and a contractual right.
In this case, where no specified duration or mode of forfeiture has been agreed upon, the Appellants were entitled under the common law and statute to give

reasonable Notice in the circumstance to determine the lease in the event of the breach of any of the terms or conditions of the lease i.e., Exhibit CL3. Once a lease, always a lease.
It cannot be correct that the Appellant had no right of forfeiture, as submitted.
That the argument on that score cannot be pressed seriously explains why the Respondent’s learned counsel submits in the alternative that the alleged requisite Notice and reserved rent not paid had not been given and/or demanded.
In any case, it is my candid view that Section 161(1) of the Property and Conveyancing Laws, Cap. 17, Laws of Delta State 1978 does not provide that a right of forfeiture must be stated and agreed upon in a lease agreement before it may be invoked.
Far from that! all that the said section requires and intends is that where a right of entry or forfeiture is sought by fact or reason or justification of any incident arising from or pursuant to any provision or stipulation in a lease; Exhibit CL3 of the parities i.e., lease agreement provides as follows:
1. The lessee hereby covenants with the lessors as follows:
1. To pay promptly during

the continuation of the term hereby granted the rent hereinbefore reserved.
2. To pay any outgoings which now or may in future be assessed or charged on the piece or parcel of land hereby demised.
3. To deliver up the said piece or parcel of land hereby demised peaceably to the Lessors at the expiration or earlier determination of the term hereby demised…

On the other hand, it is the lessors covenant thus:
1. That the lessee paying the rent herein reserved. It may be proceeded with and in certain circumstances and conditions or manner.

By Exhibit CL3, page 2 thereof, peaceful enjoyment, leasing, stay, remaining and building on the land is specifically as follows:
1. That the Lessee paying the rent hereinbefore reserved and observing and/or performing the several covenants on the part of the Lessee in and by these presents reserved and contained shall peaceably hold, enjoy and build on the land hereby demised during the said term without any interruption by the Lessors or any person or persons claiming under, through or in trust for them…..
2. That the Lessee shall upon the determination of the term

hereby granted be allowed the option to renew the agreement for the Lease in respect of the land hereby demised.

The Appellant is therefore right in submitting that “the consequences of failure to pay annual rent, outgoing and charges etc on the land have been set out and agreed upon. The basis and condition upon which the land was leased out had been spelt out and includes the due observance and performance by the lessee of the covenants contained in these presents including the payment of annual rent herein after provided …”

The rights and obligations of the parties had been set out and agreed between them. The Defendant (lessee) had Respondent as lessor to it, the agreed right to enter and peacefully hold, enjoy and build on the land if he paid his annual rent and observing and performing the several covenants contained in Exhibit CL3.

The Exhibit CL3 provides as follows:
“That the lessee paying the rent hereinbefore reserved and observing and/or performing the several covenants on the part of the LESSEE in and by these presents reserved and contained shall peaceably hold, enjoy and build on the land hereby

demised during the said term without any interruption by the Lessors or any person or persons claiming under, through or in trust for them.”

The trial Court having found that the annual reserved rent of N40 was not paid as contained in Exhibit CL3 was not right in holding that the relief of forfeiture could not be granted. The lessee by the lessee’s covenants may be determined earlier than the term demised, upon the breach of any of the terms. See Article 3 of the Lessee’s covenant to that effect.
It was not a lease in perpetuity!

“3. WHETHER THE LEARNED TRIAL JUDGE WAS NOT WRONG IN NOT PROPERLY EVALUATING THE EVIDENCE AS TO THE DUAL CAPACITY OF THE APPELLANT IN THE LEASE AGREEMENT- (EXHIBIT CL3) THEREBY REFUSING THE APPELLANT’S CASE?”
(Grounds 1, 2 & 4).

The Appellant was right when he argued that the decision of the trial judge was against the weight of evidence when it had found the terms of the lease as agreed and that there was a breach of non-payment of the N40 reserved annual rent.

Indeed, that the Appellant was by the lease Agreement (Exhibit CL3) a lessor-being one as defined in the

Agreement is beyond doubt or equivocation.

The Appellant was a lessor in his person and also a lessor in a representative capacity under the lease Agreement Exhibit CL and had given the requisite reasonable Notice of forfeiture and which was served on the Respondent and so proved even by his admission. The Exhibit CL1 was clearly issued by the Appellant pursuant to the lease Exhibit CL3 and who acted in his dual capacity for himself and as representing the Jodono family.

The Respondent who did not object to the locus of the Appellant to sue under the lease has suddenly woken up to contest the capacity on appeal when he argues that Appellant did not lease solely but along with other family members as representatives of the Jadono family. The Appellant acting severally (solely) or jointly was a lessor as defined in the lease i.e., Exhibit CL3.

Indeed, a reversionary title holder was included as a lessor in the contract therefore “the lessor” being seen or perceived as only the corporate family of Jadono is not correct. The Notice Exhibit CL1 issued on the instruction of the Appellant was therefore an appropriate Notice by the

Appellant and effectively was for himself and on behalf of the Jadono family in respect of the lease, Exhibit Cl3. To peacefully hold, enjoy and build without interference does not include letting, leasing, selling or dealing in the land as to deny the landlord/lessors title as provingly shown in evidence to have been done by the Respondent herein. That an option for renewal of the lease is granted the lessee shows that no right to dealings inconsistent with or that may change the character of the lis and relationship is contemplated. See the provision of Article 2 of the lessee’s covenant.

This is however without prejudice to the undertaking by the lessors to protect the lessee’s full enjoyment of the leased property with its successors in title and to so indemnity them. This shall be, so long as it remains a lease and not treated as a sale or outright disposal. The indemnity and protection of the lessee and successors in title in the lease Agreement does not convert the lease to an outright transfer of title or sale nor does it render “useless” the individual principal members of the Jadono family, such as the Appellant

herein, who also executed Exhibit CL3 and issued Exhibit 1 and is so defined and authorised to act for himself as principal member and/or as representative of the Jadono family as lessor; note that the Exhibit CL3 refers to the principal members and representatives as “the lessors” and not the Jadono family as a “lessor”.

What is more, the lessors are referred to and defined as “jointly and severally”, thus any of them may act as such a lessor for the Jadono family. “severally means “individually” or separately. The view that Exhibit CL1 depicts the Appellant as the lessor and not the Jadono family is of no consequence as he is indeed; the Exhibit CL1 (the Notice of forfeiture) had adequately particularised all the instances of the breach of the covenant of the lease agreement (i.e., the Exhibit CL3). The unrebutted or uncontradicted evidence of the Appellant on the Rent and the non-payment thereof and denial of the rights and status of the Appellant is obvious even from the evidence of the Defendant at the trial Court. The value of the rent is not unknown to the Respondents.

The unilateral sub-lettings of the lease hold was clearly brought to the attention of the lessee as rightly found by the trial judge as a breach and going to the root of the lease and for which forfeiture may be anchored. Indeed the Appellants were in no way in breach of the conditions enumerated inISOLA WILLIAMS V. T. A. HAMMOND PROJECTS LTD nor is it correct to hold that the sub-letting without consent and authorisation was not inconsistent with the rights of the lessors, as the lessee’s successor in title shall be protected only as reasonably required. This envisages that they must have been put in with consent or authorisation of the lessors. The oral evidence of a witness must not be the verbatim of the documentary evidence (Exhibit CL1) but only an illumination or broad stating thereof. To state that the specific actions and things done or left undone were not stated in Exhibit CL1 the (Notice) is to beg that issue and the reference to an endless wait to remedy a situation clearly shows that communication to that effect had been made.

The action for the Reliefs of (1) setting aside the Deed of Lease as the principal relief number 1 (one) before the second

prayer and third prayer for injunction were not strange in the circumstances it simply called for termination of the lease for breach by the lessee.

ON THE APPELLANT’S ISSUE 3
Whether the learned trial Judge was not wrong in not properly evaluating the evidence as to the dual capacity of the Appellant in the lease Agreement (Exhibit CL3) thereby refusing the Appellant’s case.
(Grounds 1, 2, and 4).

A consideration of the record of appeal and the Briefs of Arguments adopted at the trial shows that the Appellant herein who was the claimant at the trial Court signed Exhibit CL3 as the only male and principal member and one of the authorised representatives of the Jadono family. The evidence led showed that he had a reversionary right over the leased property as the Head of the Family.
The Respondent had under cross-examination admitted to not paying the N40 yearly rent fixed which must not be demanded before it was to be paid.
The Appellant as Head of the Jadono Family and eldest son can sue to protect the family property. By his indisputable status, he could take action alone or together with the other principal

members in respect of the property; such action can only be challenged if voidable at the instance of a principal or other principal members and not at the behest of a stranger as the Respondent herein; who had admitted in cross-examination that he had “covenanted with the claimant to pay my rent, Exhibit CL3 is the binding relationship between me and the claimant….”
The Head of the Jadono Family as the Appellant herein as testified to validly took the action of issuing the Notice Exhibit CL1 and in instituting the suit. In OJUKWU VS OJUKWU (2001) FWLR (PT. 41) PAGE 1948 AT 1956 – this Court held thus:
“The law is that the head or Obi of a family can take action to protect family property.”
The Respondent had resorted to building, renting, leasing alienating the use of and remaining on the land to tenants but not paying his rents as agreed.
This clearly entitled the claimant to his relief for forfeiture as sought on account of this fundamental breach of the terms of the lease Agreement. I agree with the Appellant that S. 161 (1) of the Property and Conveyancing Law, Cap. 17 of Delta State, 2008 did not provide

for any special form of the Notice of forfeiture and its duration. Ultimately, I am in agreement with the Appellant’s Counsel when he concluded that:
1. Mr. Samson E. Jadono is a signatory to the Lease Agreement (Exhibit CL3 as a matter of fact the only male lessor.
2. Mr. Samson E. Jadono pleaded and led evidence to show that he is a person entitled to the reversionary interest in the land.
3. Mr. Samson E. Jadono pleaded and led evidence that he is the head of the Jadono family.
4. Mr. Samson E. Jadono pleaded and led evidence of his rights of inheritance under Uvwie-Urhobo Customary Law.
It is therefore clear that under Section 156(2) and 161(5)(c) of the Property and Conveyancing Law of Delta State, Cap. 17, 2008, the Appellant had the right to demand, recover and enforce the lease in his personal capacity, more so that the definition clause of Section 161(5) (c) thereof which provides as follows:
“Lessor” includes an original or derivative under lessor, and the persons deriving title under a lessor; also a person making such grant as aforesaid and the persons deriving title under him is clear.”

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If the trial Court had properly evaluated the evidence led on the Exhibits CL3, CL1 and the status and role of the Appellant as not denied by the Respondent, the trial Court would not have arrived at the decision it did. The property was a family property and leased as such. Writing is not unknown to customary law.
The trial Court had rightly found in its judgment that the Appellant had sued for himself and on behalf of the Jadono family. To hold that the Appellant had not stated that the Notice he issued was on behalf of himself and the family and thus defeated the Notice and action is, in my view, tendentious and unjustly strange. Can it be imagined that a man who sues for himself and his family not intend the Notice to be as such for the aggrieved?
The Notice had been served as admitted in paragraph 9 of the Respondent’s Statement of Defence reproduced at page 147 of the record and in the judgment in this word- “Indeed the Respondents denies that the Notice was an invalid Notice” this put paid to it.
It simply means that he admitted that it was a valid Notice. Pure and simple. On the Admission in the pleadings, the

argument and contest on the validity of the Notice was a non sequitor; and in tandem with the law. No burden was even required to be further foisted on the Appellant and his counsel in that regard to prove the validity of the Notice to deliver up possession which is the forfeiture sought.
This has to be as, I also have no doubt that the subject property is a family land or property held under customary law. That being the case, the strict application of the conveyancing and property law was even not necessary as a denial of the overlord’s title by such acts as refusal to pay rent as reserved, proved and undenied but admitted attracted automatic forfeiture of the leasehold.
See EKPENDU VS. ERIKA (supra) and ONIAH VS ONYIA & ORS. (1989) 2 SCNJ 120.

On the whole, the 3 issues formulated by the respective parties which are similar are each resolved in favour of the Appellant and against the Respondent.

Accordingly, I allow the appeal and set aside the decision of High Court of the Delta State in Suit No. EHC/16/2016 delivered on the 28th May, 2019 per E. O. Emudainhwo (Mrs.) J. And in its place, I enter judgment for the

Plaintiff/Appellant per his claims at the trial Court thus:
1. An order of the Honourable Court setting aside the Deed of lease dated the 6th of January, 1978 made between the plaintiff family and the Defendant on the Defendant’s breach of same.
2. An order of the Honourable Court on the Defendant to forfeit all the piece/parcel of land measuring approximately 100ft x 100ft lying, being and situate along Airport Road, now No. 136 Airport Road Effurun in Uvwie Local Government Area of Delta State which said land is the subject of the Deed of lease Dated 6th January, 1978 made between the claimant and his family with the Defendant.
3. An order of perpetual injunction restraining the Defendants by himself, agents, servants, privies or any person(s) howsoever called from trespassing and/or remaining on the claimant’s land.

COSTS:
I award a cost of N300,000 (Three Hundred Thousand Naira Only) in favour of the Appellant against the Respondent.

JOSEPH EYO EKANEM, J.C.A.: My learned brother. MOHAMMED AMBI-USI DANJUMA, J.C.A. has comprehensively treated all the issues that have arisen in this appeal in his lead judgment which

has just been delivered. I agree with the reasoning and conclusion therein that the appeal has merit. I also allow it and set aside the decision of the trial Court.
I abide by the consequential orders made in the lead judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, J.C.A., and I am in agreement with the judgment, and find that the reasoning and conclusions therein have covered the field. I have nothing more to add.

I join my learned brother in allowing this appeal and judgment of lower Court is set aside.

Appearances:

Onoriode W. Ewenode, Esq. For Appellant(s)

I. Okoro, Esq. For Respondent(s)