OLANREWAJU COMMERCIAL SERVICES LIMITED v. MRS JUMOKE SOGAOLU & ANOR (2014)

OLANREWAJU COMMERCIAL SERVICES LIMITED v. MRS JUMOKE SOGAOLU & ANOR

(2014)LCN/7544(CA)

In The Court of Appeal of Nigeria

On Thursday, the 20th day of November, 2014

CA/L/863/10

RATIO

CONTRACT: TERMS OF CONTRACT; WHETHER PARTIES ARE BOUND BY THE TERMS OF THEIR CONTRACT
It is settled law that parties are bound by the terms of contract contained in an agreement without subtraction or addition. The court has no power to rewrite the contract See Afrotec v. Mia and Sons Ltd (2000) 12 SC pt II pg. 1 at 15, Ibama vs. SPDCN Ltd (2006) 7 WRN pg. 160. per. U. I. NDUKWE-ANYANWU,J.C.A.

CONTRACT: TERMS OF CONTRACT; WHETHER THE COURT DO NOT HAVE POWERS TO INTERFERE IN CONTRACT AND IMPOSE TERMS ARBITRARILY

EVIDENCE: PROOF OF TITLE TO LAND; WHETHER AN UNREGISTERED REGISTRABLE INSTRUMENT IS ADMISSIBLE TO PROVE TITLE
For an instrument to be pleaded or given in evidence in any court as affecting land, such instrument must be registered. However, an unregistered registrable instrument, though not admissible to prove title, is admissible to prove other things like in this agreement. See Olanrewaju v. Ogunleye (1997) 2 NWLR pt. 485 pg, 12, Alaya vs. Akindunu (Supra), Obienu vs. Okeke (2006) 16 NWLR pt. 1005 pg. 225.
per. U. I. NDUKWE-ANYANWU,J.C.A.

TORT: TRESPASS TO LAND; WHAT IS TRESPASS AND WHAT A CLAIM FOR DAMAGES FOR TRESPASS AND INJUNCTION AGAINST FURTHER TRESPASS POSTULATES

This is so because trespass is legally understood to mean a wrongful interference with the plaintiff’s possession of the property in question see Oyadeji vs. Adenle (1993) 9 NWLR pt. 316 pg. 224.
Similarly in Ezewusim vs. Okoro (1993) 5 NWLR pt. 294 pg. 478, the court held that:-
“it has been held that a claim for damages for trespass and injunction against further trespass postulates that the Appellant was either the owner of the land or was prior to the trespass in exclusive possession of the land in dispute” per. U. I. NDUKWE-ANYANWU,J.C.A.

TORT: TRESPASS TO LAND; WHEN IS TRESPASS TO ANY PROPERTY ACTIONABLE AND WHAT A PLAINTIFF IS REQUIRED TO PROVE IN AN ACTION FOR TRESPASS
It is trite that trespass to any property is actionable at the instance of the person in possession. Exclusive possession gives the person in possession the right to retain the property and to undisturbed enjoyment of it against all wrong doers except a person who can establish a better title. See Adepoju vs. Oke (1999) 3 NWLR pt. 594 pg. 154, Oyadare vs. Keji (2005) 7 NWLR pt. 925 pg.571, Balogun vs. Akanji (2005) 10 NWLR pt.933 pg.571.
Trespass to a property can be the slightest disturbance to the possession of property by a person who cannot show a better right to possession. Imona – Russel vs. Niger Construction Ltd (1987) 3 NWLR pt. 6 pg. 298 In an action for trespass, all that a plaintiff is required to prove in court is not title to the property in dispute but exclusive possession of the property on which trespass has been committed. See Adegbile vs. Ogunfaolu (1990) 4 NWLR pt. 145 pg. 578 Ogunbiyi vs. Adewunmi (1988) 5 NWLR pt. 93 pg. 215 per. U. I. NDUKWE-ANYANWU,J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

OLANREWAJU COMMERCIAL SERVICES LIMITED Appellant(s)

AND

1. MRS JUMOKE SOGAOLU
(For and behalf of the estate of Mrs. Folashade Olayinka Sogaolu)
2. CETEL NIGERIA Respondent(s)

U. I. NDUKWE-ANYANWU,J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State, Lagos Division delivered on 30 June, 2010. The 1st Respondent, as claimant in the lower court, claimed the following Reliefs against the Appellant as 1st defendant and another in its amended Statement of Claim of 28 March, 2005:-
1. A Declaration that the various acts, conduct and or neglect (sic) Defendant in respect of the building agreement over property situate at 52, Alof Street, Lagos Inland, Lagos is a breach of contractual agreement mutually mode between the Claimant and the defendant.
2. A Declaration that the Claimant is entitled to recover possession of the premises situate at 52, Alof Street, Lagos Island, Lagos and reimbursement of all payments and expenses made by the Claimant as a result of refusal and or neglect by the Defendant to pay or perform statutory or contractual duties in respect of property situate at 52, Alof Street, Lagos Island, Lagos.
3. A Declaration that the Claimant is entitled to original copy of the approved Building Plan in respect of property situate at 52, Alof Street, Lagos Island Lagos and all relevant payment receipt.
4. A mandatory order compelling the Defendant to surrender forthwith original approved Building Plan and all payment receipt and document of the property lying, situate and being at 52, Alof Street, Lagos Island, Lagos to the Claimant forthwith.
5. An order of injunction restraining the Defendant from doing any act or further acts inconsistent with Claimant Legal and Beneficial right of ownership in and over 52, Alof Street, Lagos Island, Lagos.
6. The sum of N252,680,00 being special damages resulting from various payment made by the Claimant on behalf of the Defendant and which sum the Defendant has failed,neglected and omitted to refund to the Claimant despite repeated demand.
7. The sum of N1,000,000.00 as general damages as a result of Defendant breach of the agreement and cost of this suit.
After a full trial, the learned trial Judge gave her considered judgment in favour of the 1st Respondent.
Being dissatisfied, the Appellant filed a notice with nine grounds of appeal. The Appellant filed his Appellant’s brief on 4 October, 2012 and articulated five issues for determination. They are as follows:
“1. Whether the learned trial judge was right in her conclusion that the 1st Respondent was entitled pursuant to the Building Development Agreement (Exhibit 4) to a shop on the ground floor and exclusive possession of the roof top of the developed property
2. Whether the unilateral commercialization of the decked roof top by the 1st Respondent did not amount to a breach of the Terms of Exhibit 4.
3. Whether in the circumstances of this case, the Appellant was in breach of clauses 8 and 9 of Exhibit 4
4. Assuming but not conceding that the Appellant was in breach of the aforesaid clauses, whether in the circumstances of this case, the said breaches and other actions of the Appellant amount to breach of fundamental terms sufficient to warrant the repudiation of the entire contract.
5. Whether the learned trial judge was right in dismissing the Appellant’s counter claim.”
Also filed is the reply to 1st Respondent’s brief on 4 October, 2012.
The 1st Respondent had earlier filed a cross appeal which he later abandoned. The 1st Respondent’s brief was thereafter filed on 11 October, 2012 and articulated four issues for determination. They are as follows:
1. Whether the learned trial judge was not correct to decline Appellant prayer for entitlement to possession of Shop pursuant the Building Development Agreement which has NO REFERENCE to shop in any clause relating to some.
2. Whether from the express term of the Building Development Agreement, Appellant have any legal interest in and over the last floor roofed by concrete decking or at all.
3. Whether failure by the Appellant to comply with the mandatory as agreed and Statutory Provision to insure the property and register same is not a fundamental breach to warrant forfeiture of the property and as avoid the agreement according to the statutory over registration of instrument Law of Lagos State.
4. Whether the judgment of Lagos State High Court should not be affirmed to forfeit the interest of Appellant on 1st Respondent property after Appellant had successfully alleged title in one Stella John and failed and neglected to register the instrument pursuant to Land instrument Registration Law of Lagos State.
The 2nd Respondent filed its brief on 1 August, 2013 but deemed properly filed and served on 26th November,2013. In it, the 2nd Respondent articulated two issues for determination. They are as follows;
1. Whether by virtue of the Building Development Agreement Exhibit 4, the Appellant could lay any claim or assert any right to the decked roof top of the property with the 1st Respondent?
2. Whether the Lower Court was right in dismissing the Appellant’s Counter Claim for an injunction and alleged trespass by the 2nd Respondent?
In a nutshell, the Appellant is a finance developer that went into a contract with the 1st Respondent to build a 3 Storey Building.
The Appellant was to take the whole of the ground floor, 1st floor and 2nd floor. The 1st Respondent was to take the 3rd floor. The roof was decked and left open without anybody having it. They placed their water tanks on that deck. The 1st Respondent also used it for her church activities without disturbance for so many years. The parties executed an agreement after the initial negotiation on 9 March, 1992 and admitted in evidence as Exhibit 1.
During the execution of this contract, the building collapsed. The parties still entered into another contract dated 1 July, 1993 which was admitted in evidence as Exhibit 4. The Appellant was supposed to remain in possession of his floors for a period of 23 years, commencing at the completion of the building. Clause 9 of their agreement stated;
“that the Appellant shall be responsible for payment of solicitor’s fees, electricity bills consumed on the ground, first and second floor, ‘be of the water rate together with any other expenses made for the preparation and “Registration of these”.
In 2004, the 1st Respondent let the open space roof top of the building to the 2nd Respondent. A lot of bad blood developed between the Appellant and the 1st Respondent. The Appellant said it went into negotiations with the 1st Respondent.
The terms of the so called negotiations were thereafter reduced to writing. The 1st Respondent refused to sign that document. It appears that the situation deteriorated and culminated in the 1st Respondent taking out a suit claiming the reliefs already recapped.
The Appellant however complained that the 2nd Respondent built a mast on the roof top which impacted negatively on the structure of the house. After the full trial, the 1st Respondent, as claimant, was granted all the reliefs claimed. The issues as articulated by the parties are virtually the same.
However, I will use the issues articulated by the Appellant to determine this appeal.
ISSUE 1
Learned counsel to the Appellant submitted that the learned trial Judge was wrong to hold that the 1st Respondent was, pursuant to exhibit 4, entitled to a shop on the ground floor and exclusive possession of the decked roof top.
Counsel referred the court to clauses 5 and 6 of Exhibit 4.
The 1st Respondent admitted that she was only entitled to a shop on the ground floor through a verbal agreement. It was also corroborated by CW2.
Counsel submitted that verbal agreement cannot override the written agreement and referred the court to Chitty on Contract 23rd Edition paragraph 625.
“In construing a contract, the court is not entitled to look at what the parties thereto said or did whilst the matter was in negotiation nor con drafts be admitted either to alter the language of a contract or help in its interpretation except where it is sought to rectify the document”
See also paragraph 645
“Where the parties have embodied the terms of their contract in a written document the general rule is that extrinsic evidence is not admissible to add, vary, subtract from or contradict the term of the written instrument, ff there be a contract said Lord Denman C J which has been reduced into writing, Verbal evidence is not allowed to be given of what passed between the parties either before the written instrument was made or during the time it was in a state of preparation so as to add, subtract from or in any manner to vary or qualify the written contract. And this was always the rule of the courts of equity as well as courts of Law”
Counsel submitted that the trial Judge’s reliance on inadmissible parole evidence of conduct of parties, subsequent to the performance and execution of the contract, amounted to making a new contract for the parties.
It is settled law that parties are bound by the terms of contract contained in an agreement without subtraction or addition. The court has no power to rewrite the contract See Afrotec v. Mia and Sons Ltd (2000) 12 SC pt II pg. 1 at 15, Ibama vs. SPDCN Ltd (2006) 7 WRN pg. 160.
Finally, counsel submitted that where parties have embodied the terms of their contract in writing, no extrinsic evidence is admissible to vary in any form the contents of the said agreement, See HSHM Co Ltd vs. Taffer (2004) WRN Vol. 22 page 80. Counsel, therefore, urged the Court to resolve this issue in favour of the Appellant.
In Response, the learned counsel for the 1st Respondent submitted that the Appellant covenanted that it shall observe all the conditions of the agreement. That the Appellant shall peaceably hold and enjoy the ground, 1st and 2nd floors during its term of 23 years. The Appellant failed, neglected and omitted to perform the following terms:
(1) Insure the property
(2) Get approved plan
(3) Obtain consent
(4) Register the agreement
The Appellant cannot also incorporate into the term, its entitlement to Roof/decked portion of the property from the clear reading of the agreement. The appellant is only seeking a remedy not open to him, See NWPC vs. Famfa Oil Ltd (2009) ALL Federal Week Law Report pt. 480 pg. 604. Counsel, therefore, urged the court to resolve this issue in favour of the respondent.
The parties signed an agreement, Exhibit 1. Therein parties agreed to a building agreement. After the completion of the building, the Appellant was entitled to the ground, 1st and 2nd floors of the building.
The 1st respondent was to get for her use the 3rd floor.
It is trite law that parties are bound by the terms of the contract they legally go into. The agreement represents the intention of the parties and stipulates the benefits each should derive from the agreement.
The court does not have the necessary vires to rewrite an agreement for the parties. The courts have been consistent in holding that it will not rewrite any agreement entered into by the parties. The court can only interprete terms in line with the express terms of the contract. See Sona Brewery Plc vs. Peters (2005) 1 NWLR pt. 908 pg.478 where the court held as follows:
“A court of law must always respect the sanctity of the agreements reached by the parties, it must not make a contract for them or re-write the one they have already made for themselves”.
See Eubuomwan vs. Elema (1994) 6 NWLR pt. 353 pg. 638 where the court held
“if the parties enter into on agreement they are bound by the terms. One cannot legally or properly read into agreement the terms on which the parties have not agreed”.

The intention of the parties, in a written contract, is always to be gleaned from the agreement itself. The terms of any agreement are to be determined by the parties and not the court.The duty of the court is to construe the words used by the parties in the agreement. Dantata vs. Dantata (2002) 4 NWLR pt.756 pg, 144
The agreement, Exhibit 4, clearly and expressly provided that the Appellant was to occupy the ground floor, 1st and 2nd floors. The agreement did not in any way give the Appellant any right in respect of the deck roof top of the building. The Appellant’s contention that it was entitled to the deck roof top of the building is baseless. The word of the agreement was clear and unambiguous and as such should be given its ordinary meaning. See UBN vs. Ozigi (1994) 3 NWLR pt. 333 pg-333, Owoniboys Technical Services Ltd vs. UBN Ltd (2003) 15 NWLR pt. 844 pg. 545.
‘The express mention of one thing is the total exclusion of others”. A.G. Bendel State vs. Aideyan (1989) 4 NWLR pt. 118 pg.646, Ogbunyinya vs. Okudo (1979) 6-9 SC pg.32.

The courts do not have powers to interfere in contracts and impose terms arbitrarily, However, courts may imply a term in order to fill a gap left by the parties in the terms expressly agreed upon which fail to regulate their respective rights and inabilities in the situation that had arisen Mazin Eng. Ltd vs. Tower Aluminium (1993) 5 NWLR pt. 295 pg. 526.
In the present case, the 1st Respondent is still the owner of this building. The appellant had only the ground, 1st and 2nd floors. The agreement entered by the parties was silent on the roof top deck. It would appear that since, the building is still that of the 1st respondent, she had a right to the use of that roof top Mazin Eng. Ltd vs. Tower Aluminum (supra).
I agree with the judgment of the trial judge that since the agreement did not expressly allocate the decked roof top to the appellant it could not challenge the authority of the owner of the property over the decked roof top. On the question of the 1st Respondent occupying a shop on the ground floor is extraneous. The Appellant was supposed to have absolute use of the ground floor. The 1st Respondent has no part on that ground floor. The Exhibit 4 was very explicit on this issue.
However, the 1st Respondent said she verbally negotiated this. The CW2 also corroborated that assertion. It appears that she actually did negotiate for the one shop in addition to her 3rd floor.
The court cannot enforce what is not in the terms of their written contract. The court will not allow any of the parties to vary, add or subtract from their written contract. The Appellant is still entitled to the whole of the ground floor as per Exhibit 4. This issue is, therefore, resolved in part against the Appellant.

ISSUE 2
Counsel submitted that the trial judge was wrong in failing to consider the unilateral commercialization of the roof top. Counsel referred the court to Exhibit 4 and the specification for the type of roof the floor was to be constructed.
The 1st Respondent had used it for a place of worship even though water tanks servicing all the floors were placed there. It was in 2004 that the 1st Respondent leased the said roof top to the 2nd Respondent.
Counsel, therefore, urged the court to hold that commercialization of the roof top negates the intention of the parties to the contract and that act amount to a breach of terms of the Exhibit 4 by the 1st Respondent.
I had earlier in issue one held that the Appellant is not entitled to the roof top deck. The Appellant is only entitled to the ground, 1st and 2nd floors of the building. There is no way it can be implied to have access to the roof top deck. Since the 1st Respondent is still the owner of the house, all areas not covered by their agreement will be deemed to be that of the landlord, 1st Respondent. This issue is also resolved against the Appellant.

ISSUES 3 AND 4
The learned counsel to the Appellant submitted that the trial Judge was wrong in holding that the Appellant was in breach of clauses 8 and 9 of Exhibit 4 and the said breaches and other acts of the Appellant amount to breach of fundamental terms of the contract. Counsel agreed that the learned trial Judge had held that there was no proof that the quality of the work done on the 3rd floor was not according to the approved building plan.
Counsel opined that clauses 2, 3 and 4 were the essential terms of the contract and it had been fulfilled. It is on record that the parties enjoyed a cordial relationship until the roof top was rented to the 2nd Respondent in 2004. Counsel stated also that it paid its own part of the water rates to the 1st Respondent. It also insured the property. See pg. 372 of the Record of Appeal. Counsel referred the court to Chitty on Contract 23rd Edition where fundamental term was defined as follows:-
“The expression “Fundamental term” is likewise used in two different senses. First, it indicates a term of contract which is by reason of intention of the parties or as the result of the operation of a rule of law, considered to be of such importance that any breach entitles the innocent party to treat himself as discharged. In this sense, it is simply equivalent to a promissory condition. Secondly, in relation to exemption clauses, it has been used to denote a term which is narrower than a condition of the contract and which underlies the whole contract so that if not complied with the performance becomes totally different from that which the contract contemplates” (paragraph 734).
See also the Supreme Court in the case of I.M.N Ltd v. Pegofor Ind. Ltd (2005). 39 WRN pg 1 per Edozie JSC defines fundamental breach as follows:
“The expression Fundamental breach is used to denote a performance totally different from that which the contract contemplated or a breach of contract more serious than one which would entitle the other party thereby to damages and which at least would entitle him to refuse further performance of the contract” Suisse Atlantique case (1967) A.C 361 at 392, 399″
Counsel, therefore, urged the court to hold that it has not breached the fundamental terms of the contract as it had done the following:
a. That the Appellant furnished consideration for the contract at inception, See Evidence of CW2 at page 367 of the Records.
b. That the contract was performed or executed within the stipulated time.
c. That upon completion of the construction the Appellant delivered the 1st respondent’s portion to her as agreed upon.
d. That the Appellant has never interfered with the quiet enjoyment of the 1st Respondent’s lawful occupation of her portion of the developed property.
e. That the building was constructed in substantial and workmanship like manner.
f. That the 1st Respondent had taken more than her fair share of the developed property through her exclusive use of o shop on the ground floor and commercialization of the decked roof top.
g. That the breaches complained of dates back to 2000 without any step taken by the 1st Respondent until the year 2005 when the Appellant protested against commercialization of the decked roof top.
h. That even after the collapse of the building constructed pursuant to the 1st Agreement, ‘Exhibit 1′, the 1st Respondent nevertheless executed another agreement, Exhibit 4 apparently because of the huge capital involved.
i. That the contract had been substantially performed.
Counsel argued that apart from the fact that special damages to cover the expenses on water rates and general damages were awarded, in favour of the 1st Respondent, the learned trial Judge still found that she was entitled to repudiation of the contract and entitled to possession of the entire property.
This counsel argued will amount to double compensation of the 1st Respondent. See A T Eng. Co Ltd v. Mil Gov of Ogun State (2009) 40 WRN.
Counsel, therefore, urged the court to resolve these issues on behalf of the Appellant.
In response, the 1st Respondents’ counsel submitted that the failure of the Appellant to comply with the mandatory and statutory terms to insure the property and register the agreement is a fundamental breach. This breach warrants a forfeiture according to the statutory provisions under the Registration of Instrument of Law of Lagos State.
Counsel referred the court to clauses 8 and 9 of Exhibit 4 where it provided clause 8 “the finance/Developer shall throughout the term hereby create insure and keep insured the demised premises against loss on damage”
Clause 9 “The Finance/Developer “shall” be responsible for payment of solicitor fees, together with other expenses incurred for the preparation, stamping and registration of these present”.
Counsel argues that the word shall in both clauses is mandatory and imperative that, the Appellant shall insure the house and register the agreement. A breach of which would warrant the agreement being rescinded. See Kwara vs. Innocent (2009) All Federal Weekly Law Report pg, 460 pg. 719 Buhari vs. INEC (2009) ALL FWLR (pt.459) pg.479.

A party may be discharged from a contract, if the other party breached a fundamental term of the contract. Counsel argued that the Appellant’s default and total failure to insure and register the agreement are fundamental breaches and should discharge 1st respondent from the contract.
Counsel argued that the Appellant deliberately refused to or neglected to insure the property nor registered the agreement despite a letter from her solicitors. Where there is true frustration as in this appeal the contract is determined automatically. See ADH Ltd vs. Amalgamated Trustees Ltd (2007) ALL FWLR pt. 1392 at page 178.
The agreement, Exhibit 4 is a registrable instrument which is governed by the Land Instrument Registration Law of Lagos State. Section 14 of the Land Instrument Registration Law of Lagos State provides that every instrument affecting land shall be void unless same in registered within six months from its date. Failure of the Appellant to register this agreement, Exhibit 4 renders the agreement void by virtue of Section 15 of the Land Instrument Registration Law of Lagos State. An unregistered document affecting Land must not be pleaded and where pleaded and or admitted, the document must be expunged for reason of lacking essential value, See Akinduru vs. Alaya (2007) All FWLR pg, 381 pg, 1653.
Counsel, therefore, urged the court to hold that the Finance/Development agreement, Exhibit 4, having not been registered is void and should be so declaimed. See Owner of M.V. Arabella vs. NAIC (2008) ALL FWLR pg. 1208.
It is true from the terms of agreement that there are many terms included in Exhibit 4. However, Section 14 and Section 15 of the Land Instrument Registration Laws of Lagos State provides that any Registrable instrument affecting Land must be registered within six months of the date embodied in the instrument. Where such instrument is not registered, the instrument would be void at the expiration of the six months.
For an instrument to be pleaded or given in evidence in any court as affecting land, such instrument must be registered. However, an unregistered registrable instrument, though not admissible to prove title, is admissible to prove other things like in this agreement. See Olanrewaju v. Ogunleye (1997) 2 NWLR pt. 485 pg, 12, Alaya vs. Akindunu (Supra), Obienu vs. Okeke (2006) 16 NWLR pt. 1005 pg. 225.
Exhibit 4 has been tendered to show that there was a transaction between the lessor and lessee. It will therefore, be admissible. It will also be admissible if it is meant to establish a fact which one or both parties have pleaded under these two conditions. Such a document does not qualify as an instrument as defined in the Land Instruments Registration Law. Thus, it is proper in Law to admit in evidence an unregistered lease agreement to show the terms of the lease as regards termination and renewal and reference to arbitrator if necessary, See Ojonye vs. Ibrahim (2002) 1 NWLR pt.747 pg. 165, Ogbimi vs. Niger Construction Ltd. (2006) 9 NWLR pt. 984 pg 474, Obienu vs. Okeke (2006) 16 NWLR pt. 1005 pg. 225
The 1st Respondent had urged the court to hold that Exhibit 4 was an unregistered instrument and as such should be discountenanced. This is the position of the law. However, I have held above that this agreement may be admitted in evidence to show what transpired between the parties.
Counsel to the 1st Respondent had argued strenuously that the Appellant had breached fundamental terms of the agreement i.e.
(i) failure to register the agreement and
(ii) failure to insure the property.
These terms are indeed relevant to the agreement. The Appellant during the course of developing this property suffered a loss due to the collapse of the initial development. The 1st Respondent sees it as fundamental to insure her against a future mishap to the said property. The Appellant failed to insure the property.
The Appellant also failed to register the agreement. This term, though important, has militated against the Appellant. The 1st Respondent is now asking the court to hold that these breaches were fundamental and render the agreement void.
I agree with the Appellant that the contract had been substantially performed and cannot be rescinded by the failure of the Appellant to fulfill two of the terms of the contract. Even though the terms of clause 8 and 9 were important, they are not fundamental to void the agreement as argued by the 1st Respondent.

ISSUE 5
Learned counsel to the Appellant submitted that the trial Judge was wrong in dismissing the Appellant’s counter claim. That the 1st respondent was not entitled to a shop and exclusive possession of the decked roof top. The learned trial Judge rightfully found in her judgment that:
“as far as this court is concerned the counter-claimant was under no legal obligation pursuant to the terms of Exhibit 4, to put the Claimant in occupation of the said shop. Nevertheless, from the pleadings, and oral evidence before the court, it is evident that what can be considered a gentleman’s arrangement existed between the claimant and counter-claimant, to which, the former was put in possession of the one shop on the ground floor immediately upon completion of the building to date at no rent and I so hold” See page 447 the Records”.
Counsel continued that the trial Judge was wrong to have allowed extrinsic evidence to vary the terms of the contract between the parties See LARMIE vs. DMS Ltd (2006) 12 WRN pg. 150, Ilorin Local government vs. Samad PC Co. Ltd (2008) 51 WRN pg, 132 where the court held;
“It is not proper to read into a contract, terms other than those which have been expressly provided for in the agreement and those which apply by implication of law or practice in respect of which there is no express provision varying negativing them in the agreement”
See Obajimi vs. Adediji (2008) 5 WRN pg. 172.
It was established that the 1st Respondent was occupying a shop on the ground floor and, therefore, the Appellant is entitled to arrears of rent and possession of same.
Learned counsel to the Appellant submitted that it applied for a structural test of the building from the office of a consultant at Lagos State Materials Testing Laboratory. The said documents were pleaded in paragraph 3 of the 1st Defendant/ Appellant reply to 2nd Defendant/2nd Respondent’s to defence to its counter claim filed on 28th January, 2008. These documents were rejected by the trial Judge because –
1. they were not front loaded
2. they were obtained lis pendis
Counsel urged the court to set aside the judgment of the lower court and substitute same with judgment in favour of the Appellant as per its counter claim.
In response, the learned counsel to the 2nd Respondent submitted that it is an elementary but fundamental requirement of law that whoever claims in trespass must establish, as a condition precedent, that he is in possession. This is so because trespass is legally understood to mean a wrongful interference with the plaintiff’s possession of the property in question see Oyadeji vs. Adenle (1993) 9 NWLR pt. 316 pg. 224.
Similarly in Ezewusim vs. Okoro (1993) 5 NWLR pt. 294 pg. 478, the court held that:-
“it has been held that a claim for damages for trespass and injunction against further trespass postulates that the Appellant was either the owner of the land or was prior to the trespass in exclusive possession of the land in dispute”
Counsel submitted that possession has two elements
(i) the physical possession of the thing; and
(ii) the intention to appropriate to oneself the exclusive use of the thing possessed.
See also the case of Oke vs. Oke (2006) 17 NWLR pt. 1009 pg.224 per Augie JCA defined possession as:
“possession means the exercise of dominion over property; the right under which one may exercise control over something to the exclusion of all others, The continuing exercise of a claim to the exclusive use of a material object, and something that a person owns or control”
Counsel went on to State that the trial Judge was right to have found that the Appellant who failed to established exclusive possession of the decked roof top of the property could not succeed against the 2nd respondent for trespass. Counsel submitted finally that:
“It is the case of Appellant that the lower court rejected evidence it sought to adduce in support of its claim for damage caused by the alleged act of trespass of the 2nd Respondent, on this point, the 2nd Respondent further submits that assuming but without conceding that the lower court was wrong in rejecting the said evidence, the admissibility of the said evidence will not sustain the Appellant’s (who was neither the owner of the property or the person in possession of the decked roof top) claim for injunction and trespass against the 2nd Respondent”.
Counsel, therefore, urged the court to resolve this issue in favour of the Respondents.
Trespass is a civil wrong against possession in that it is an unlawful and unauthorized invasion of the right of the party in possession, who can maintain an action in trespass against the whole world except the owner, See UBA Plc vs. Samba Petroleum Co. Ltd. (2002) 16 NWLR pt.793 pg.361
If the above is true, then the Appellant cannot maintain an action in trespass. The trial Judge had held that the Appellant was not in possession of the land nor the decked roof top and this its claim for trespass against the 2nd respondent would fail. I have, in determining the other issue, held that the Appellant was only entitled to ground, 1st and 2nd floors of the building. Other than that, the Appellant had no other proprietary interest in the other parts of the building. The Appellant was not also the owner of the building.
It is trite that trespass to any property is actionable at the instance of the person in possession. Exclusive possession gives the person in possession the right to retain the property and to undisturbed enjoyment of it against all wrong doers except a person who can establish a better title. See Adepoju vs. Oke (1999) 3 NWLR pt. 594 pg. 154, Oyadare vs. Keji (2005) 7 NWLR pt. 925 pg.571, Balogun vs. Akanji (2005) 10 NWLR pt.933 pg.571.
Trespass to a property can be the slightest disturbance to the possession of property by a person who cannot show a better right to possession. Imona – Russel vs. Niger Construction Ltd (1987) 3 NWLR pt. 6 pg. 298

In an action for trespass, all that a plaintiff is required to prove in court is not title to the property in dispute but exclusive possession of the property on which trespass has been committed. See Adegbile vs. Ogunfaolu (1990) 4 NWLR pt. 145 pg. 578 Ogunbiyi vs. Adewunmi (1988) 5 NWLR pt. 93 pg. 215
With the foregoing, the Appellant cannot claim to be in possession of the roof top neither can it claim to be the owner. Therefore, the Appellant cannot maintain an action in trespass. The trial Judge was right when it held inter alia.
“in the instant case pursuant to my findings in issues Nos; 1, 2 and 3 above this court is persuaded that there is a colossal failure on the part of the counter-claimant to establish his entitlement to said reliefs and same is hereby refused. Counter-claim 8(ii)-(iv) for possession of the one shop, arrears of rent, mesne profit and general damages must for similar reasons fail and same is hereby refused and dismissed.
It will also affirm the findings and final decision of the trial Judge to the Appellants counter claim.
In summary, the Appellant succeeds in part in issue 1 and failed in all the other issues. The following orders are therefore necessary to spell out the obligation of the parties:-
(1).Even though the Appellant has breached clauses 8 and 9 of the Finance/Development agreement, it is not fundamental to the contract. Therefore, the Appellant is to be allowed to enjoy the remaining part of his 23 years Island occupation of No 52 Alof Street, Lagos Island, Lagos. The Appellant shall give up possession at the expiration of his 23 years,
(2) Special damages in the sum of N51,525,00 being ‘be of the unpaid water rote as agreed in clause 9 of Exhibit 4
(3) The 1st Respondent is entitled to the original copy of the approved building plan in respect of No 52 Alof Street, Lagos Island, Lagos.
(4) The sum of N50, 000.00 as general damages for breach of some terms of the contract
(5) N50, 000.00 cost to the 1st Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of preview of the robust judgment prepared by my learned brother, Uzo Ndukwe-Anyanwu, J.C.A., with which I agree with nothing extra to add. I gratefully adopt the comprehensive judgment as mine and abide by the consequential order(s) made therein.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read before now the lead judgment just delivered by my brother UZO I. NDUKWE – ANYANWU JCA and I agree with the conclusions reached and I have nothing extra to add.
I too allow the appeal and affirm the judgment of the lower court in the Appellants counterclaim and abide by the orders in the lead judgment as well as the cost stated therein.

Appearances

T.A. DairoFor Appellant

AND

M.A. Kazeem, E. Ize-Iyanu, O. Olarewaju, E.O. Uma, O.O. Iranloye, A.R.M. Nwandu (Mrs.)For Respondent