MR. ADEDEJI ADEDOYIN v. IGBOBI DEVELOPMENT COMPANY LIMITED (2014)

MR. ADEDEJI ADEDOYIN v. IGBOBI DEVELOPMENT COMPANY LIMITED

(2014)LCN/7167(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 6th day of May, 2014

CA/L/363/2012

RATIO

CONTRACT: WRITTEN, ORAL OR IMPLIED CONTRACT

WHETHER A COURT CAN GRANT A RELIEF NOT SOUGHT BY THE PARTIES

WHETHER A NIGERIAN COURT CAN MAKE AN AWARD IN FOREIGN CURRENCY

Before I proceed, I need to make it clear that the fact that a business transaction was entered into in Nigeria does not preclude the application of foreign currency or the court awarding same if it is part of the transaction. In WITT & BUSCH LTD VS. DALE POWER SYSTEM PLC (2007) 5-6 SC 121, it by the Supreme Court that, it has now been firmly established that a Nigerian Court can make an award in foreign currency. See also UNITED BANK FOR AFRICA PLC VS. BTI INDUSTRIES LTD (2004) 18 NWLR (PT 1904) 180 and MOMAH VS. VAB PETROLEUM INC (2000) 1 SCNQR 348.

In SS. GMBH VS. TUNDE DOSUNMU INDUSTRIES LTD (2010) 11 NWLR (PT 1206) 589, the Apex Court held that:-

“It is no longer in doubt and this is settled that parties can make an agreement or enter into a contract to pay in foreign currency and a Nigerian Court can, in its discretion, award same accordingly. See the case of METRONEX (NIG) LTD VS. GRIFFIN GEORGE (1991) 1 NWLR (PT 169) 651 at 659; OLAWOYIN ENTERPRISES LTD VS. S J & M (1992) 4 NWLR (235) 361 at 385; BROADLINE ENTERPRISES LTD VS. MONTERRJ MARITIME CORPORATION (1995) 9 NWLR (PT.417) 1 (1995) 10 SCNJ at 25 citing MILIANGOS VS. GEORGE FRANK (TEXTILE) LTD (1975) 3 ALL ER 801; UBA LTD VS. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (PT 421) 558; (1995) 12 SCNJ 175; PROSPECT TEXTILE MILLS (NIG) LTD VS. I C I PLC ENGLAND (1996) 6 NWLR (PT 457) 668 at 682) and UBA PLC VS. BTL INDUSTRIES LTD (2004) 18 NWLR (PT 904) 180. Per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICES:

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

MR. ADEDEJI ADEDOYIN – Appellant(s)

AND

IGBOBI DEVELOPMENT COMPANY LIMITED – Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.:(Delivering the Leading Judgment) This is an appeal against the judgment of the High Court of Lagos State delivered by Hon. Justice J.E. Oyefeso on the 1st day of December 2011 wherein the claim was granted in part.

The claimant (Now Respondent) had by a writ of summons and a statement of claim, both dated the 20th January, 2009 claimed against the defendant (now Appellant) as follows:

(a) An order for recovery of possession of the landed property situated lying and being at plot 9, D’Alberto Road, Palmgrove Estate, Ilupeju, Lagos for breach of the covenant to pay rent.

(b) Arrears of ground rent in respect of Plot 9 D’Alberto Road, Palmgrove Estate, Ilupeju, Lagos as follows:-

1st January 2005 – 31st December 2005 = N30,000

1st January 2006 – 31st December 2006 = N30,000

1st January 2007 – 31st December 2007 = N30,000

1st January 2008 – 31st December 2008 = N30,000

1st January 2009 – 31st December 2009 = N30,000

(c) Mesne Profits or pro rata ground rent at the rate of N30,000.00 per annum from 1st day of January 2005 until possession is given up.

The facts of this case briefly stated is that the Respondent in this appeal leased a property, No. 9 and 10 D’ Ablerto Road, Palmgrove Estate, Ilupeju, Lagos to the Royal Insurance Company Limited by a lease agreement dated 13th February 1956 for a term of 99 years from November 1955 at a yearly rent of 200 (Two hundred pounds) and further consideration that the Royal Insurance Company Limited shall erect dwelling houses on the land. The document was registered as No. 39 at page 39 volume 19 of the Lands Registry, Lagos. Subsequently, the Appellant herein bought the residue of the lease limited to part of the property, that is No. 9 D’Alberto Road, Palmgrove Estate, Ilupeju, Lagos, from the Royal Insurance Company Limited by a Deed of Assignment dated 15th April 1967 and also registered as No. 12 at page 12 in volume 982 of the Land Registry, Ikeja Lagos. There was a provision that the appellant shall pay the sum of 100 as rent being half of the 200 as per the original lease. The appellant paid the said sum to the respondents for some years until the latter wrote to seek for an upward review of the rent but the appellant refused on the ground that the original lease agreement Exhibit C1 did not contain a provision for a review of the rent throughout the term of the 99 years lease. After series of exchange of correspondences between the parties, the Respondent then opted to institute this action in the lower court seeking the reliefs as earlier set out in this judgment.

Pleadings were thereafter filed and exchanged between the parties. At the conclusion of pretrial conference and report thereof the matter was set down for hearing. At the trial of the case which commenced on the 16/5/2011 both parties called one witness each who adopted their respective statements on oath and tendered in evidence a number of documents.
Written addresses were subsequently ordered to be filed and served. This was adopted by the parties on 11/7/2011 but readopted on 1/12/2011. In a judgment delivered on the 1/12/2011 the claimants claim was granted in part wherein the lower court held as follows at pages 229 to 230 of the Record:-

I have looked very closely at Exhibit C1 which guided the relationship between the parties and there is no clause allowing the Claimant to review the ground rent. Having said that however, 100 is not N200 today! The Defendant cannot seriously expect to continue to pay N200 and say he is paying 100 If he is insisting on following strictly the Deed of Lease, he must pay 100 or its equivalent in Naira for all the outstanding years 2005 to date! What is fair is fair!

The Claimant is seeking recovery of the property, subject matter of this suit for breach of the covenant to pay rent. Clearly the Defendant did not fail to pay rent.
The Defendant refused to accept what he was paying but happily I have ordered that the Defendant must pay the rent at the prevailing rates for each of the years from 2005 to date and I so hold. The prayer for recovery of possession for breach of the covenant to pay rent fails and is hereby dismissed. The Defendant shall pay the arrears of ground rent from 2005 till date in the sum of 100 or the prevailing exchange rate for each of the years from 2005 till date. This is the prevailing exchange rate for each of the years from 2005 till date. This is the judgment of this court.

Dissatisfied with the said judgment, the defendant (now Appellant) filed a notice of Appeal dated 24/1/2002. It contains two grounds of appeal which reads as follows:-

GROUND ONE

The Learned trial Judge erred and misdirected herself when she held at page 10, paragraph 3 of her judgment that –

“I have looked very closely at Exhibit “C1” which guided the relationship between the parties and there is no clause allowing the Claimant to review the ground rent. Having said that however, 100 is not N200 and say he is paying 100. If he is insisting on following strictly the Deed of Lease, he must pay 100 or its equivalent in Naira for all the outstanding years 2005 to day! What is fair is fair!

PARTICULARS OF ERRORS AND MISDIRECTION:

(a) There is no where in Exhibit “C1” in which it was stated that the ground rent is to be paid in any currency other that in Nigeria Currency.

(b) Evidence adduced at the trial showed that the Respondent had, since 1967, been demanding the ground rent in Nigeria Currency (Naira) and the Appellant has been paying the said rent in Nigeria Currency

(c) The 100 (Nigeria Pound) mentioned in Exhibit “C1” was the Nigerian Currency as at 1967 before the introduction of the present Nigerian Currency (of Naira and Kobo) in 1973.

GROUND TWO

OMINIBUS GROUND

That part of the Judgment being appealed against is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.

1. An Order setting aside that part of the judgment of the Lagos State High Court delivered by Hon. Justice J.E. Oyefeso (Mrs.) on the 1st December 2011 which is being appealed against.

The Respondent also filed a Notice of Cross appeal dated 27/2/2012. The Grounds of the cross-appeal are as follows:-

GROUND ONE
The learned trial Judge erred in law when she held on page 10 paragraph 2 lines 10 to 13, of the judgment that mere collection of ground rent from the Appellant by the Cross-Appellant suffice to create privity of contract between them in relation to Exhibit C1, thus:

‘That cannot be the Claimant consistently dealt with the Defendant as per that same Deed of Lease and cannot be seen to turn 38 years later to say there is no privity of contract! The Claimant is stopped by its conduct from claiming now that there is no privity of contract”

PARTICULARS OF ERRORS

i) Mere collection of rent from a sub-Lessee does not make him legally privy to the terms of the head lease.

ii) A sub-lease without consent in law is not void but merely voidable, and until it is voided by the Head Lessor, the Sub-Lessee is liable to pay some reasonable rent regardless of the ground rent provision of the head lease (Exhibit C1).

iii) A Lessor is at liberty to maintain the same rent for so long without the risk of being stopped from demanding an upward review of the rent at a later future date.

GROUND TWO

The judgment of the court below is against the weight of evidence.

The Cross-Appellant shall seek to file and argue further grounds of appeal on receipt of the Record of Appeal.

4. RELIEF SOUGHT BY THE CROSS-APPELLANT FROM THE COURT OF APPEAL:

i) An Order setting aside the judgment of the Lagos State High Court delivered by Honorable Justice J.E. Oyefeso (Mrs.) on the 1st of December , 2011.

ii) An Order granting the reliefs sought by the Cross-Appellant as contained in its Statement of Claim filed at the Court below.

iii) Such consequential Orders as this Honorable Court may consider appropriate and fair in the circumstances of this case.

In consonance with the Relevant rules of this court parties subsequently filed their briefs of argument. The appellant’s brief of argument settled by R.D. Aribisala Esq. is dated 1/3/2013 and filed on 4/3/2013, while his reply brief dated 13/5/2013 was filed on 14/5/2013. The Respondent’s brief of argument settled by Tope Ibitola Esq. is dated 16/4/2013 but filed on 17/4/2013.

In the Appellant’s brief of argument, two issues were formulated for determination. To wit:-

1. Whether the appellant/defendant who has been paying rent in the stipulated Nigerian Currency since inception of the assignment can now be made to pay ground rent in British Pounds sterling, a foreign currency which is unknown to the parties and was never mentioned Exhibit “C1″.

2. Whether the Respondent/claimant is not stopped from denying the existence of privity of contract between her and the Appellant/Defendant having been collecting rent from the Appellant/Defendant who became seized and possessed of the property situated, lying, and being at 9 Alberto Road, Palmgrove Estate, Ilupeju, Lagos.

The Respondent on the other hand also formulated two issues for determination as follows:-

(1) Whether the collection of the sum of money as rent for so many years is a bar to subsequent upward review of the rent.

(2) Whether mere collection of rent from sub-lesse who went into possession without prior consent of the House-Owner/Landlord” is sufficient to establish a privity of contract between the sublesse and the Houseowner/Landlord vis-a-vis the head lease”.

The issues as raised in the appellant’s brief of argument are more apt to the determination of this appeal and I so adopt same.

ISSUE ONE
Dwelling on this issue, learned counsel for the appellant referred to the Respondent’s claim as contained in the writ of summons and statement of claim to submit that they show that payment for the ground rent was always done in Nigeria Currency and never in British Pound Sterling and this was also averred to in the appellant’s statement of defence. He then wondered why the learned trial judge in her judgment at page 229 of the record held that:-

“he must pay 100 or its naira equivalent for all the outstanding years from 2005 to date. What is fair is fair.”

He submitted that a court cannot grant a relief not sought for and that the court must not make a case for parties to a proceeding. He referred to the case of LONGE VS. F.B.N. (2010) Vol. 2-3 MJSC 128 and SKYE BANK PLC VS. AKINPELU (2010) 3 (PT 1) MJSC.

He added that it was never the case of either of the parties that payment for the ground rent must be made in British Pound Sterling or its equivalent in Nigeria.
He then urged this court to set aside that part of the judgment of the lower court.

The Respondent did not respond to this issue in its brief of argument, I will however consider it on its own merit.

Now the appellant’s ground or reason for refusing to accept a review of the rent payable on No. 9 D’Alberto Road, Palmgrove was because there is no provision for such upward review in Exhibit C1, that is the lease agreement made between the Respondent and the Royal Insurance Company Limited. The implication of this is that the appellant duly subscribed to the fact that he is bound by the terms and condition contained in the said lease agreement.

The portion of the agreement relating to payment of rent reads thus:-

“TO HOLD the same UNTO the lessee from the 4th day of November 1955 for the term of NINETY NINE (99) years, PAYING THEREOF the yearly rent of TWO HUNDRED POUNDS (200) the first payment of FOUR HUNDRED POUNDS (400) being rent for first two years of the said term to be paid upon the execution of these presents and thereafter yearly in advance on the 4th of November each succeeding year”

It is very clear from the above set out portion of the lease agreement Exhibit “C1” that the ground rent payable by the lessee is 200 (Two hundred pounds) yearly. This was in 1956 when Nigeria was still under British Colonial Rule and the British pound was the medium of exchange and the official currency in this country.
The original lessee, (the Royal Insurance Company Limited continued with the payment of the agreed sum of 200 until 1967 when part of the land Plot 9, D’9191Alberto Road, was sublet to the appellant by the aforementioned lessee vide Exhibit D1 a Deed of Assignment dated 15th April 1967.

It was agreed therein that part of the premises comprised in the said lease and known as plot 9 was assigned to the appellant for all the residue of the said term of 99 years subject to the yearly rent of 100 (one hundred pounds) being an apportioned part of the yearly rent of 200 (Two hundred pounds) reserved by the original lease.

The contention of the appellant is that from 1967 (when the lease was assigned to him) and 2005 the Respondent never demanded payment of the rent in British pound sterling. In the other words he had always paid his rent to the Respondent in the Nigerian Currency. Hence his complaint about the holding of the lower court that:-

“He must pay 100 or its equivalent in Naira for all the outstanding years from 20’9705 to date. What is fair is fair.”

Ironically, what engendered the suit in the lower court was the refusal of the appellant to accept an upward review of the rent as requested by the Respondent. He hinged his refusal on the ground that the original lease, Exhibit C1 did not make provision for any increase or upward review of the rent more than the 200 yearly rent stated therein. It follows that he readily agreed and accepted the fact that he is bound by the content of Exhibit C1 including the agreed rent which was fixed at 200 in 1956 and for which he inherited the payment of half of the said sum, having been assigned part of the premises.

Before I proceed, I need to make it clear that the fact that a business transaction was entered into in Nigeria does not preclude the application of foreign currency or the court awarding same if it is part of the transaction. In WITT & BUSCH LTD VS. DALE POWER SYSTEM PLC (2007) 5-6 SC 121, it by the Supreme Court that, it has now been firmly established that a Nigerian Court can make an award in foreign currency. See also UNITED BANK FOR AFRICA PLC VS. BTI INDUSTRIES LTD (2004) 18 NWLR (PT 1904) 180 and MOMAH VS. VAB PETROLEUM INC (2000) 1 SCNQR 348.
In SS. GMBH VS. TUNDE DOSUNMU INDUSTRIES LTD (2010) 11 NWLR (PT 1206) 589, the Apex Court held that:-

However, in the instant case the original parties in Exhibit C1 which interest was transferred in part to the appellant by virtue of Exhibit D1 entered the lease agreement with the financial aspect hinged on the “British Pound” which was the official currency in 1956 when the exhibit C1 was executed and continued to be so till after independence when Nigeria became a Republic in 1963. The change to the “Naira”
denomination took effect in 1971 and the value of the said Naira was still a force to reckon with in the sense that it was almost at per with the British Pound Sterling.

The Appellant executed the Deed of Assignment Exhibit D1 with the Royal Insurance Company Limited in 1967 which agreement requires him to enjoy the residue of the term of 99 years on the payment of 100 rent per annum.

The appellant had insisted that the said 100 which he had agreed to pay is equivalent to the present day N200 and that is what he is bound to pay by virtue of Exhibit C1 and D1.

To my mind, having strongly relied on Exhibit C1 to insist that there is no provision for an upward review of the rent payable annually on the said premises, he should as well be bound by the same agreement for the payment of 100 being part of the original sum of 200 agreed to in Exhibit C1 and this is to the effect that current and further payment of rent on the premises must reflect the value of the pound as at the time the agreement was executed. This to my mind is justice. The appellant should not be permitted to blow hot and cold at the same time. The same Exhibit C1 which he depended upon to justify his non acceptance of an upward review of the annual rent as requested by the Respondent also made provision for payment of rent at the rate of 200 pounds per annum. This was during the time of the reign of British pounds in Nigeria which then was a British Colony.

Granted that the present British pound sterling is of much less value than what it was in 1956, I think, I will want to go with the finding of the lower court that rent payable by the appellant should be assessed not on the basis of a ridiculous N200 per annum based on a wrong premise, that the 100 of 1956 must reflect if not wholly but as near as possible its current value and the only reasonable way out in the assessment is the original source which is the British Pound.

Ironically, the Respondent alluded to this reality wherein it averred in paragraph 3 and 6 of the statement of claim as follows:-

3. The Claimant avers that by a Deed of Lease dated the 13th day of February, 1956 registered as No. 29 at page 39 in volume 19 at the Land Registry, Lagos, it granted a Lease with respect to Plots 9 and 10, D’91 Alberto Road, Palmgrove Estate, Ilupeju, Lagos for a term of ninety’97nine years to Royal Insurance Company Limited, the original Lessee in 1956 at a ground rent of 200 (Nigerian pounds) per annum. In 1971, the ground rent was converted to N400.00 to reflect the change in currency by the then Federal Military Government vide: Decimal Currency Decree No. 20 of 1971. The current value of the Naira is N250.00 = 1.00 at the parallel market. The Claimant shall rely on a Certified True Copy of the said Deed of Lease at the trial of this action and it is herewith attached as Exhibit BFC “1”.

6.The Claimant avers that the Defendant is not an Assignee of the remainder of the term granted in 1956 to the original Lessee.

In this regard I agree with the holding of the lower court that if the appellant insists on following strictly the Deed of lease Exhibit C1, he must pay 100 or its equivalent in Naira for all the outstanding years from 2005 till date.

It is trite law that a court has no power to grant a relief which has not been sought by the plaintiff or the parties as the case may be. In other words, a court cannot award to claimant what he did not claim or prove. It can award less than what was claimed but definitely not more. See OKUGBULE VS. OYAGBOLA (1990) 4 NWLR (PT 188) 731; AJAYI VS. TEXACCO (1987) NWLR (PT 62) 577 and EKPEYONG VS. NYONG (1975) 2 SC 71.
The Respondent in paragraph 18 of the statement of claim claimed in sub paragraphs a and b for arrears of ground rent in respect of the premises from 1st January 2005 to 31st December 2009 in the sum of N30,000 per annum and mesne profit at the Rate of N30,000 per annum from 1st January 2005 till possession is given up.

This will no doubt be more that the current value of the Naira to a pound as averred in paragraph three of the statement of claim which is put at N250 to a pound. Besides the evaluation report on which the Respondent hinged the assessment of the current ground rent was done unilaterally and cannot also hold given the fact that the lower court had in its judgment found and to which I entirely agree, that there is no provision for review of rent in the Deed of lease Exhibit C1. But this Court can award less than the said sum of N30,000 claimed by the respondent as arrears of rent on the property. See A.G. FEDERATION VS. A.I.C. LTD (2000) 10 NWLR (PT 675) 293 and A.G. EKITI STATE VS. DANIMOLA (2003) FWLR (PT 169) 1121; OGUNYADE VS. OSHUNKEYE (2007) 15 NWLR (PT 1057) 218 and FALOMO VS BANIGBE (1998) 6 SC 141.
It is on this basis that I hold that the appellant should keep to his words of strictly abiding by the provisions of Exhibit C1 and as such shall pay 100 or it equivalent as found by the lower court.

This issue is therefore resolved against the appellant.

ISSUE TWO

Dwelling on this issue learned counsel for the appellant posed the question, whether the respondent can deny the existence of privity of contract between her and the appellant having consistently dealt with him for well over 38 years. He added that the Respondent is stopped from making denial because on the authority of IKPUKU VS. IKPUKU (1991) 5 NWLR (PT 193) 571 at 591, this Court held that estoppels prohibits a party from proving anything which contradicts his previous acts or declaration to the prejudice of a party who relying upon them, has altered his position. It shuts the mouth of a party.
Furthermore, he submitted that the Respondent had consistently corrected rents from him in Nigerian currency since 1967 based on the agreement between her the Royal Insurance Company Limited – and this act of collection of rent for over 38 years is an admission of the existence of privity of contract between the Respondent and the Appellant.
Reference was also made to paragraphs 6-8 of the further statement on oath of the Respondents witness at page 81 of the Record where it was complained that the Deed of Agreement made in 1967 was executed without the consent of the Respondent in violation of Clause (3xii) of Exhibit C1. He then submitted that by virtue of Section 162 of the Evidence Act, the denial of such consent holds no water having gone beyond 20 years stated in Section 162. He then urged this court to estop the Respondent from denying Clause 4 of the recital that relates to consent in the assignment dated 1st April 1967.

The Respondent’s Counsel, reacted by submitting that for purpose of clarification, the issue is not whether a form of relationship exists between the Appellant and the Respondent with respect to the property. He added that there is an informal leasehold relationship by conduct, hence the Respondent was collecting rent from the Appellant for some years. Furthermore he noted, that in common law and statutory laws a sublessee let into a property by a lessee without the consent of the lessor has a voidable and not a void interest in the property and unless and until the voidable interest is avoided or nullified by the lessor, the sublessee is obliged to pay reasonable rent to the lessor.

He added that the principle of privity of contract means that a person can only seek to enforce the terms of a contract that he is a party to and that no third party can enforce the terms of a contract even if the contract contains terms which are beneficial to the third party. He cited in support the case of UNION BEVERAGES LTD. VS. ACB (1965) NMLR 374 and LSDPC VS. NIGERIA LAND & SEA FOOD LTD. (1992) 5 NWLR (PT.244) 653.
Learned Counsel referred to Exhibit C1 and D1 to say that the Appellant was not a party to Exhibit C1 and did not pay the consideration therein just like the Respondent was also not a party to Exhibit D1 and received no consideration on it. He added that during the trial in the lower court the Appellant failed to produce the written consent inspite of all the efforts by Respondents counsel to get it from him by offering to discontinue the suit if it could be produced.

He submitted also since the Appellant was not a party to Exhibit C1 and there is not proof of a link between Exhibit C1 and D1 by way of a written consent to assign produced at the trial, the mere collection of rent which the Appellant is obligated under the law to pay for occupying the property, the lower court was in error in holding that privity of contract in relation to Exhibit C1 exists between the Appellant and the Respondent.

It is interesting that the Respondents counsel agreed that there is a leasehold relationship between the Appellant and the Respondent but he classified it as a leasehold relationship by conduct and did not by that create the existence of a contractual relationship between them.

It is not in dispute that Exhibit D1 was executed in 1967 and the Appellant has since then been paying the rent to the Respondent who had also been relating with the Appellant in every transaction connected with the property without any reference to the original lessee, neither was any complaint made since then to the effect that the Appellant has no business with being on the property, because consent for such was not sought and obtained from the lessor before the sublease.

From all that has transpired it is very clear that, but for the dispute over review of rent payable on the property, the issue of privity of contract would not have arisen between the parties after about 50 years of comfortable and condonable relation.

In OGUNDARE VS. OGUNLOWO (1997) 6 NWLR (PT.509), it was held by the Apex Court that, in law there is privity of contract. It is always between the contracting parties who must stand or fall, benefit or lose from the provisions of their contract. Their contract cannot bind third parties nor can third parties take or accept liabilities under it, nor benefit thereunder. See also IKPEAZU VS. ACB LTD. (1965) NWLR 374 and ALADE VS. ALIC (NIG) LTD. (2010) 19 NWLR (PT.1226) 111.

It is also an established rule of law that contracts may be in writing, oral or implied. Consequently, a contract between parties may be expressed by words or by an agreement in writing signed by the parties. Also a contract could be implied by the conduct of the parties themselves. See MAJEKODUNMI VS. NATIONAL BANK OF NIGERIA LTD. (1978) 3 SC 119 AND B. STABILINI & CO. LTD. VS. OBASI (1997) 9 NWLR (PT.520) 293.
In the instant case, the fact that between 1967 when the Appellant and the Royal Insurance Company entered and executed a Deed of Assignment, and 2005 when the Respondent sought to review the rent on the property concerned; the Appellant and the Respondent have been relating and transacting business in connection with the property for about 50 years without let or hindrance or complaint for one day that the presence of the Appellant on the property was without Respondent consent have no doubt created an implied contract between them which the Respondent cannot deny at this stage. In fact the Respondent is estopped from denying the existence of a privity of contract between it and the Appellant with regard to plot 9 D’Alberto Road, Palmgroove Estate, Lagos.
See OKONKWO VS. KPAJIFE (1992) NWLR (PT. 226) 633 OR (1992) 2 SCNJ 290 where it was held by the Supreme Court that: –
“Where a man by word or conduct willfully made representation of a state of facts to another and thereby induced that other to believe the state of things where as represented by that person and that other took him by his words and acted upon that representation, then that person who made the representation by himself or his representative in interest cannot now turn around to say or behave as of the state of things were not as he represented them. He is stopped from asserting the contrary.”
See also IGA VS. AMAKIRI (1976) 11 SC 1 and TIKA TORE PRESS LTD VS. ABINA (1973) 12 SC (REPRINT) 67.

This is however in consonance with the decision of the lower court and therefore prompts one to look askance at the basis for the challenge by the Appellants because the holding of the trial court rather was against the Respondent on that issue. Be that as it may, I hold that this appeal lacks merit and it is hereby dismissed. The judgment of the lower court delivered on the 1st December 2011 is hereby affirmed.
Parties shall bear their respective costs.

CROSS-APPEAL

From the Notice of Cross-appeal filed on 27 /2/2012 two grounds of appeal were contained therein. To wit: –

GROUND ONE

The learned trial Judge erred in law when she held on page 10 paragraph 2 lines 10 to 13, of the judgment that mere collection of ground rent from the Appellant by the Cross-Appellant suffice to create privity of contract between them in relation to Exhibit C1, thus:

“That cannot be the Claimant consistently dealt with the Defendant as per that same Deed of Lease and cannot be seen to turn 38 years later to say there is no privity of contract! The Claimant is stopped by its conduct from claiming now that there is no privity of contract”

PARTICULARS OF ERRORS

i) Mere collection of rent from a sub-Lessee does not make him legally privy to the terms of the head lease.

iii) A Lessor is at liberty to maintain the same rent for so long without the risk of being stopped from demanding an upward review of the rent at a later future date.

GROUND TWO

The judgment of the court below is against the weight of evidence.

The Cross-Appellant shall seek to file and argue further grounds of appeal on receipt of the Record of Appeal.

4. RELIEF SOUGHT BY THE CROSS-APPELLANT FROM THE COURT OF APPEAL:

i) An Order setting aside the judgment of the Lagos State High Court delivered by Honorable Justice J.E. Oyefeso (Mrs.) on the 1st of December, 2011.

ii) An Order granting the reliefs sought by the Cross-Appellant as contained in its Statement of Claim filed at the Court below.

iii) Such consequential Orders as this Honorable Court may consider appropriate and fair in the circumstances of this case.

Two issues were formulated in the cross appellants brief as follows:-

(1) Whether the collection of the same sum of money as rent for so many years is a bar to subsequent upward review of the rent.

(2) Whether mere collection of rent from a sublessee who rent into possession without prior consent of the house owner (landlord is sufficient to establish a privity of contract between the sublessee and the houseowner/lessor vis-a-vis the head lease.

The cross-respondent did not formulate any issue from the cross appeal. However he objected to the cross appellants issue one on the ground that it did not emanate from the ground of appeal. I have read and compared the said issue one with the ground of appeal as contained in the Notice of cross of appeal and I agree with the appellant/cross-respondent that the said issue one did not indeed arise therefrom. It is long established by a long line of authorities that issues for determination as well as arguments in the appeal should be based on the grounds of appeal duly filed. Thus an issue so raised and argument therefrom which does not arise directly from at least one of the grounds of appeal filed is deemed incompetent and ought to be disregarded. See OJE VS. BABALOLA (1991) 5 SCNJ 110; OSINUPEBI BS. SAIBU (1982) 7 SC 104; ONWUMERE VS THE STATE (1991) 4 NWLR (PT 186) 428 and EGBE VS. ALHAJI (1990) 1 NWLR (PT 128) 546.
In the circumstance issue one in the cross-appellants brief is hereby discountenanced.
On issue two, in the brief of argument, that is whether mere collection of rent from a sublessee who went into possession without prior consent of the House owner/Landlord is sufficient to establish a privity of contract between the sublessee an the House Owner/lessor vis-‘C3 -vis the lead lease.
This issue has been exhaustively and adequately addressed and resolved while considering issue two in the main appeal. I do not intend therefore to embark on a repeat expedition but rather adopt the decision reached on the said Appellants issue two in the main appeal as my decision in this cross-appeal.
In this regard, issue two herein is hereby resolved against the cross appellant.
Consequently, this cross-appeal is found to be unmeritorious and it is accordingly dismissed.
The judgment of the High Court of Lagos State delivered on the 1st of December 2011 on the said issue is hereby affirmed.
Parties to bear their costs.

AMINA A. AUGIE, J.C.A.: I read before now the lead judgment just delivered by my Learned brother, Oseji, JCA, and I agree with his reasoning and conclusions regarding the appeal and the cross appeal. He dealt extensively and comprehensively with issues at stake in both appeals and I have nothing useful to add. In the circumstances I do hereby adopt his Judgment as mine and dismiss both the appeal and the cross appeal. I also abide by the consequential orders in the lead Judgment including costs.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI JCA. I agree entirely with the judgment. His Lordship has dealt fully and comprehensively with all the issues raised in the appeal and the cross-appeal. I agree that both are unmeritorious. I abide by the conclusions and consequential orders in the lead judgment including the order as to costs.

Appearances

A. Adedoyin and R. D. Aribisala For Appellant

AND

Olu Tadema and Victor Emele For Respondent