African Petroleum Plc. & Anor. V. Otunba Jonathan Olaniyan Farayola (2009)
LawGlobal-Hub Lead Judgment Report
OYEBISI F. OMOLEYE, J.C.A,
This appeal is against the judgment of Idris M.J. Evuti J., of the High Court of Niger State holden at Kontagora, delivered on 7/11/2006.
The facts of this matter briefly stated are that, the plaintiff (hereinafter referred to as the Respondent) claimed against the defendants (hereinafter referred to as the Appellants) the following reliefs:
(i) Declaration of title to the land lying and situate at Kontagora covered by Certificate of Occupancy No. NSS 1744 dated 30th December, 1979 registered as No. 137 at page 137 in volume 4, at the Lands Registry, Minna
(ii) Recovery of possession of the said parcel of land
(iii) An order of Interlocutory Injunction to restrain the 1st Defendant, its agents, privies and or servants from carrying on activities i.e. sales and or procurement of petroleum and a/lied products on the parcel of land covered by Certificate of Occupancy No, NSS 1744 pending the final determination of this suit.
(iv) Substantial Costs.
The 1st Appellant filed its statement of defence and counter-claimed for the following reliefs:
(1) A declaration that the equitable rights of the 1st defendant created by the registered sublease agreement dated 9th August, 1990 still subsists.
(2) A declaration that the transfer of title to the land in dispute to the plaintiff did not extinguish the subsisting equitable right of the 1st defendant.
(3) An order of this Honourable Court restraining the plaintiff, his agents, privies or any body acting for him or on his behalf from issuing a notice to quit, or attempting to eject the 1st defendant by whatever means until its equitable right under the sublease agreement between it and Umaru Rigiza has duly expired in the year 2020.
The 2nd Appellant filed its statement of defence contained in pages 36 to 38 of the record of appeal and urged the trial Court to dismiss with cost the claims of the Respondent on the grounds that they are baseless, frivolous and speculative.
Pleadings were appropriately exchanged among the parties and trial commenced. In proof of his claim, the Respondent gave evidence, called one witness and tendered a variety of documents in evidence, twelve exhibits in all. The 1st Appellant in establishing its defence and counter-claim, called two witnesses, tendered seven Exhibits; while the 2nd Appellant called one witness.
The case of the Respondent was that, he purchased the property in dispute from the family/heirs of one late Alhaji Umaru Rigiza. The 1st Appellant claimed that there was a valid leasehold agreement between it and the late Alhaji Umaru Rigiza in respect of the property in dispute. That the leasehold agreement was subsisting at the time the property was allegedly purchased by the Respondent. At the end of trial, learned counsel for the parties in obedience to the order of the trial Court filed and exchanged written addresses. In a considered judgment delivered on 7/11/06, the learned trial Judge founded for the Respondent.
The learned trial Judge held” inter alia’ as follows:
‘I hold that the sale land (sic) transfer of the land to the plaintiff by the heirs of late Alhaji Umaru Rigiza as evidenced by deed of assignment created on the 17th April 2000 to (sic) be legal (sic) and validly done. Deeds of Assignment between the family of late Alhaji Umaru Rigiza and Otumba Jonathan Olaniyan Farayola dated 17th April 2000 registered as NGS 59 at page 59 in Vol.8 misc. of the Niger State Land (sic) Registry on the 11th May 2001 is hereby declared valid I find by exhibit H, the 1st defendant had paid for the use of the subject matter a rent of N5,000.00 per annum for 30 years.
The 1st defendant was in occupation and use of the properties till the demise (sic) Rigiza. I find as equitable interest of the 1st defendant a refund of it of the balance of the rent for the non-use of the intended years of 20 years total On hundred thousand Naira less withholding tax not paid to the late Rigiza at the rate of 15%.
I order that the heirs of late Alhaji Umaru Rigiza make up the money and pay to the 1st defendant accordingly. I find the counter claim made to the subject matter to (sic) fail in view of the reasons state (sic) above. Judgment is hereby entered in favour of the plaintiff
The plaintiff Otumba Jonathan Olaniyan Farayola is declared as the rightful owner of that parcel of land lying and situate at Kontagora covered by Certificate of Occupancy No. NGS 1744 dated 30th December 1979 registered as No. 137 at page 137 in Vol. 4 (Certificate of Occupancy) at the Land (sic) Office at the Land (sic) Registry in the Office at Minna. The plaintiff is entitle to possession and peaceful occupation of the said parcel of land.”
Dissatisfied with the said judgment of the trial Court, the Appellants “vide” their notice and grounds of appeal dated 14/11/06 filed this appeal to this Court on the same date. The Appellants were later granted leave to file their additional grounds of appeal. The additional grounds of appeal fried on 18/5/07 was deemed properly filed and served on 21/11/07. The omnibus ground of appeal contained in the original notice and grounds of appeal and the three grounds of appeal contained in the additional grounds of appeal without their particulars are as follows:
- The judgment is against the weight of evidence.
- The learned trial Judge erred in law when he voided Exhibit “M” on the ground that, it having no determinable date, does not satisfy the requirement of a lease agreement.
- The learned trial Judge erred in law when he held that, the death of Alhaji Umaru Rigiza voided the lease agreement.
- The learned trial Judge erred in law when he awarded a relief not sought by the parties.
In the brief of argument of the Appellants, three issues were distilled from the grounds of appeal for the determination of this appeal. These issues state as follows:
(1) Whether Exhibit M, the deed of sublease executed by the parties thereto was validly made and is still subsisting?
(2) Whether the death of a party to a lease agreement could void the lease agreement?
(3) Whether the trial Court was right in ordering the heirs of late A/haji Umaru Rigiza to pay to the r Appellant the balance of rent when such a relief was never sought by any of the parties and especially when the heirs were not parties to the suit before the trial Court?
On the other side, two issues were formulated for determination of this appeal in the Respondent’s brief of argument. These are as follows:
(1) Whether Exhibit ”M” the deed of sublease dated 9th August, 1990 executed between the 1st Appellant and late Alhaji Umaru Rigiza that contains no determinable date is valid in law?
(2) At the death of a Moslem, what law governs the distribution and or disposal of his estate?
This appeal was heard in this Court on 22/10/08. At the said hearing, Mr. Hassain A. Sallawu, learned counsel for the Appellants identified the Appellants’ brief of argument dated 20/11/07 which was filed on 21/11/07 and the Appellants’ Reply brief of argument dated 12/2/08 and filed on 14/2/08. He adopted these briefs and urged this Court to allow the appeal and set aside the judgment of the trial Court. On the other side, the learned counsel for the Respondent, Mr. Oluwole Olukunle referred to and adopted the Respondent’s brief of argument dated 31/1/08, filed on 7/2/08 but deemed properly filed and served on 26/5/08. He urged this Court to dismiss this appeal and affirm the judgment of the trial Court.
I have examined the issues formulated for determination in the briefs of argument filed by the learned counsel for the respective parties; I find that the issues formulated for the Appellants will be adequate for the resolution of the 2 grouse about the appeal. I therefore adopt them and will take them along with the two issues formulated for the Respondent. However, I will consider issues one and two together because they are interrelated and then issue three, in that order.
ISSUES ONE AND TWO
Whether Exhibit “M” the deed of sublease executed by the parties thereto was validly made and still subsisting?
Whether the death of a party to a lease agreement could void the lease agreement?
The learned counsel for the Appellants submitted that one of the requirements of a lease agreement is that it must be clear that there is an intention to create a term of years with a beginning and certain ending. On this legal principle, reference was made to the cases of:
(1) Bosah Vs. Ors. (2002) 6 NWLR (Pt. 762) p. 138 at pgs. 140 – 141 and
(2) Foreign Finance Vs. LSPDC (1991) 5 SCNJ p. 52 at p. 55.
The Appellants’ learned counsel restated that, the essential ingredients to be embodied in a valid lease are, the parties, the rent to be paid, the period of lease and the date of its commencement. It was contended in favour of the Appellants that contrary to the holding of the trial Court, Exhibit M is a valid sub-lease agreement that has met with all the terms and conditions of a valid lease agreement. From the dear and unambiguous provisions of Exhibit M, there is a determinable date and the period of the sub-lease agreement is certain or at least is capable of being ascertained. The period of the sub-lease is from 9th August, 1990 for the residue now unexpired of the term of years created by said agreement less the last day thereof.
It was argued in favour of the Appellants that, in order to have a valid lease, the commencement day and the maximum duration of the term must either be certain or capable of being rendered certain. Thus, what is required by the law is that there must be a fixed date for the commencement of a lease. However, the provision of the ending of a lease agreement is not necessary. It is enough if it is based on a contingency that is certain.
The learned counsel for the Appellants contended that the learned trial Judge failed to properly consider and evaluate the leasehold agreement in dispute, that is, Exhibit M. By the provisions of Section 132 of the Evidence Act, once a document is tendered and accepted in evidence before a court, no extrinsic evidence is admissible to contradict the contents of the document except in the circumstances as spelt out therein. Throughout the proceedings of the trial Court, there is nowhere it is shown that any of the exceptions to Section 132 existed to warrant any other evidence being admitted and used in contradicting the contents of the said exhibit. The law is also trite that, once parties have reduced their intentions into writing especially in the form of a written agreement, it is that agreement that the court would construe and nothing more. On this legal position, reference was made to the cases of:
(1) LM.NL Vs. Pegofor Ind Ltd (2005) 15 NWLR (pt. 947) p. 1 at p. 8 and
(2) H.S.H.M. Co. Ltd. Vs. Jaffar (2004) 15 NWLR (Pt. 896) p.347
From the clear contents, the expressions of the intentions of the parties, the expiration of the lease, is certain. Thus the lease agreement is valid. Therefore, Exhibit M is its own testimony and nothing else should be admitted to contradict it. On this stance, reliance was placed on the case of: Awuse Vs. Odili (2005) 16 NWLR (Pt. 952) p. 416 at p. 449.
It was further argued by the learned counsel for the Appellants that, a lease is said to be subsisting when it is still in existence; that is, when it has not come to an end. Therefore, a lease agreement which is found to be valid can only come to an end when the period stated therein has expired. In the instant case, as can be gleaned from Exhibit A, the initial leasehold agreement dated 8th July 1980 between the 1st Appellant (formerly known as B.P.) and late Alhaji Umaru Rigiza was for a period of ten years. This is evident in pages 23, 26 and 35 of Exhibit A. At page 23 in particular, it is stated that, the approval of consent to mortgage the property covered by NGS 1744was twenty years, with an option of payment for ten years. This option was specifically requested for by the late Umaru Rigizafor which advance payment was made by the 1st Appellant. At the expiration of the lease agreement of 8th July, 1980, on the 7th July, 1990, the late Alhaji Umaru Rigiza applied to the 1st Appellant for an upward review of rent from One Thousand Five Hundred Naira (N1,500) per annum to Six Thousand Naira (N6,000.00) per annum to cover the residue of the Certificate of Occupancy No. NGS 1744 less the last day thereof as required by law, to cover the right of reversion. This was clearly spelt out in the second paragraph of Exhibit ‘J’. The 1st Appellant responded to the application and offered to pay the sum of Five Thousand Naira (N5,000.00) per annum. The late Alhaji Umaru Rigiza accepted the offer and the sum of One Hundred Fifty Thousand Naira (N150,000,00) for thirty years was paid to late Alhaji Umaru Rigiza. The Cheque covering the sum was collected by Usman Rigiza who was introduced to the 1st Appellant by late Alhaji Umaru Rigiza himself via a letter, Exhibit L Therefore, a new sublease agreement dated 9th August, 1999, Exhibit M, was entered into by late Alhaji Umaru Rigiza and the 1st Appellant. Exhibit M was duly registered as No.5 at Page 5 Vol. 18 (Misc) at the Lands Registry, Minna.
Furthermore, the Appellants’ learned counsel submitted that, not only is Exhibit M valid as it met with ail the conditions of a valid lease, it was equally registered and subsisting especially since there was no evidence adduced at the trial Court to the contrary and to show that Exhibit M was invalid and not subsisting.
It was canvassed in favour of the Appellants that the provisions of the lease agreement, Exhibit M relating to the position of the heirs of Late Alha]I Umaru Rigiza under the agreement between him and the 1st Appellant in respect of the land in dispute are clear and unambiguous. In lines 3 to 4 of the first paragraph at page 1 of Exhibit M, is the provision for who are to be bound by the lease agreement; this states thus: “where the context so admits includes his heirs, personal representatives and assigns.” The phrase clearly shows that, the late Alhaji Umaru Rigiza at the time of entering into the lease agreement had intended that his heirs be bound by the provisions of the agreement. Consequently, it is clear that so long as a sublessee shall fulfil all the covenants and stipulations in the lease agreement, he shall continue to enjoy peaceful possession of the leased property until such a time that the lease shall have expired and without any form of interruption from the sublessor or any person claiming through or under him. The heirs to the late Umaru Rigiza were made responsible for ensuring that the 1st Appellant continues to enjoy peaceful possession of the leased property.
In the opinion of the Appellants’ learned counsel, there is no doubt that the Respondent had actual, constructive and prior knowledge of the existence of the lease agreement between the late Umaru Rigiza and the 1st Appellant. Thus, the assignment to the Respondent of the property in dispute by the heirs of the late Umaru Rigiza caused the Respondent to step into the shoes of first, Umaru Rigiza, and then his heirs. He must therefore allow the sublease, Exhibit M, to run its full course. Hence, the trial Court’s finding that the death of Alhaji Umaru Rigiza extinguished the relationship between the deceased and the 1st Appellant was a conclusion reached without due interpretation of the most relevant document, Exhibit M on the disputed land. As a result of this inadvertence, this finding can only be described as perverse and led to serious miscarriage of justice. On this proposition and stance, reliance was placed on the cases of:
(1) F.B.N. Vs. Akiyosa (2005) 5 NWLR (pt. 918) p. 340 and
(2) Ezenwa Vs. Oko (1999) 14 NWLR (Pt. 637) p. 95 at pgs. 98 – 99.
The Appellants’ learned counsel submitted that it is a settled legal principle that when a moslem dies, it is Islamic law that governs the distribution of his estate. However, what was before the trial Court was not the issue of the distribution of the estate of late Alhaji Umaru Rigiza, rather, it was whether the heirs of the late Umaru Rigiza have obligations to fulfil the terms under the lease agreement, Exhibit M just like the deceased himself. It is a cardinal principle of Islamic Law that where a man dies, his heirs do not only inherit his assets and liabilities they equally inherit all obligations left behind unfulfilled by the deceased. Thus where a moslem dies, leaving behind unfulfilled obligations, the heirs to his estate must fulfil them on his behalf, especially if those obligations can be met on the estate of the deceased. The issue of the death of a Moslem voiding a lease agreement was neither raised nor contemplated at trial, in the pleadings, evidence adduced and issues for determinations raised by the parties. As such, the trial Court should not have gone on a frolic of its own to find reasons for voiding a valid lease agreement, when that issue was not before it. It is trite law that courts are to confine themselves to issues raised before them and not to go on a voyage of discovery. Although, a court can raise an issue “suo motu’, where it does, it should invite the parties to address it on the issue. On this position and legal principle, reference was made to the cases of:
(1) Ogida Vs. Oliha (1986) 1 NWLR (Pt. 19) p. 786;
(2) Gharigha Vs. George (2005) 1 NWLR (Pt. 953) p. 163 and
(3) Unokan Ent. Ltd Vs. Omuvwle (2005) 1 NWLR (Pt. 907) p. 293
Replying, the learned counsel for the Respondent submitted that the central issue in this appeal is whether the sublease agreement, Exhibit M executed between the 1st Appellant and Late Alhaji Umaru Rigiza was for a term of twenty or thirty years. The contents of Exhibits G and G1 are explicitly clear and unambiguous as to the duration of the sublease which was to commence from 8th July, 1980. Thus no extrinsic evidence can be given to alter, vary or add to the contents of the said exhibits. Reference was made to the following cases on this position:
(1) U.B.N Vs. Prof Alhert O. Ozigi (1994) 3 SCNJ p. 40 and
(2) Moses Bunge & Anor Vs. The Governor of Rivers State & 5 Ors. (2006) 6 SCNJ p. 48 at p. 82.
The first lease which was created in 1980 was for a specific period of twenty years and elapsed in year 2000. Exhibit M is the sublease agreement dated 9/8/90 as the commencement date but does not contain the expiration date, Exhibit J is in respect of tenancy and not the sublease. Exhibits M and J are not specific as to the period of extension and expiration of the new lease and is therefore to that extent not valid in law. On this legal principle reliance was placed on the cases of:
(1) Isaac O. Nkewedum Vs. Kalu Uduma (J995) 6 SCNJ p. 72;
(2) Brossette Manufacturing Nig Ltd Vs. M/S Ola Ilemobola Ltd & Ors (2007) 5 SCNJ p. 153 at pgs. 175 – 176 and
(3) F. Odebunmi Vs. Isa Abdullah; (1997) 2 SCNJ p.112.
PW1 led unchallenged and uncontroverted evidence to the effect that the original lease of the land in dispute which was granted to the 1st Appellant was to run from 1980 to 2000. The law is trite that evidence which is unchallenged, uncontradicted and in respect of which there is nothing showing that it is incredible should be admitted. On this legal principle reference was made to the case of: Isaac Ogualaji Vs. A.G., Rivers State & Ors (1997) 5 SCNJ p. 240.
The law is now firmly established that, for an agreement of a lease to be valid, both the commencement and maximum duration of the term of the lease must either be certain or capable of being rendered certain before the lease takes effect. The effect of Exhibit A is that the duration of the sublease of 1980 was for a period of twenty years, although Exhibit M is not clear and explicit as to its duration. The trial Court was right when it highlighted that the difference between leasehold and assigned freehold is that, a lease must be for a specific period, while assigned freehold is for an unlimited period. It is clear that there was a leasehold agreement between the 1st Appellant and late Rigiza in 1990. On this position, reference was made to the cases of:
(1) Marshall Vs. Berridae (1881) 19 Ch. D p. 233 at p. 245
(2) A/hajj A. Odutola & Ors Vs. Papersack Nigeria Limited (2006) 12 SCNJ p. 188 at p. 204 and
(3) Akjnbisade Vs. The State (2006) 9 SCNJ p. 1 at p. 12.
The features of a valid and an enforceable leasehold agreement are, the parties thereto, the property involved, the term of its duration, the rent payable, the commencement date, the terms of its covenants and the mode of its determination. Furthermore, for the purposes of obtaining a balanced picture of a documentary evidence, the entire document must be interpreted as a whole and not in parts or pockets as convenient to a party. In other words, a party can not pick and choose extracts that are convenient to his case from a document. That will be tantamount to shutting out the truth searching process in a matter before the court.
The document binding late Alhaji Umaru Rigiza and 2nd Appellant with regard to the Certificate of Occupancy No. NGS 1744 is Exhibit G. Thus Exhibit J is a mere letter of extension, and rent review. It is not competent and do not qualify to enlarge the life span of a sublease and the Certificate of Occupancy for any purpose or reason. The request for advance payment by late Alhaji Umaru Rigiza from the 1st Appellant was in respect of the tenancy agreement and not the leasehold agreement.
It was argued in favour of the Respondent that, it is a cardinal principle of Islamic jurisprudence that, when a moslem dies, his personal law that is, Islamic law and not the common law governs the distribution and disposal of his personal estate. Reference in this regard was made to paragraph 9 of the statement of claim at page 5 of the record of appeal, wherein it is stated that, Alhaji Umaru Rigizawas a moslem and died as a moslem.
The learned counsel for the Respondent submitted that, at trial, the Respondent established by Exhibit I, the letter of Appointment of the Administrators, the heirs of late Alhaji Umaru Rigiza were properly empowered to deal in the property in dispute. The decision to sell the property in dispute to the Respondent being the tenant in occupation therein was proper. For the original lease between the deceased Alhaji Umaru Rigiza which was for a duration of twenty years and not thirty years had terminated in the year 2000. The evidence given by PW2 in this regard was referred to. What is more, at the death of Alhaji Umaru Rigiza, Exhibit M had no legal effect and thus could not be relied upon by the Appellants. Therefore, the order of the trial Court that the Respondent should refund the balance of the rent for non-use of the intended years to the 1st Appellant did not occasion a miscarriage of justice to the Appellants or anyone at that.
I have duly considered the submissions of the learned counsel for both parties and the printed record of appeal herein. The main thrust of this appeal is: whether the deed of sub-lease, Exhibit M signed by the late Alhaji Umaru Rigiza and the 1st Appellant is valid and still subsisting? It is the case of the Appellants that the sub-lease is valid and subsisting because the expiration of the lease is certain. It is settled law that for a lease to be valid, the term of the lease as well as its date of commencement must be certain or capable of being ascertained. In the case of: Bosah Vs Oji supra at p. 149, paras. A – H, his Lordship Katsina-Alu, JSC, stated as follows:
‘In the case of Harvey Vs. Pratt (1965) 2 All ER 786 at 787 Lord Denning M. R. had this to say: ‘It has been settled law for all my time that, in order to have valid agreement for a lease, it is essential that it should appear, either in express terms or by reasonable reference to some writings which would make it certain, or by reasonable inference from the language used, on what day the term is to commence.
In Marshall Vs. Berridge (1881-1885) All ER. Rep. 908 at p- 912 Lush L.J. said:
‘It is essential for the validity of the lease that something should appear either in express terms or by reference to some writing or some instrument, which would make it certain on what day the term is to commence. There must be a certain beginning and a certain ending, otherwise it is not a perfect lease, and a contract must, in order to satisfy the Statute of Frauds, contain this reference.” In Nlewedim Vs. Uduma (1995) 6 NWLR (Pt.402) 383 at 396 this court per Belgore, JSC held that:
“A lease must be clear as to its intent and purpose and it must at least contain
(i) the term of years
(ii) the rent payable and
(iii) commencement date of the lease.”
From the decisions in the above cases it seems clear that if the date of commencement of the lease is certain or ascertainable from the document and its duration is also certain, then the lease is valid and enforceable.”
In the present case, the commencement of the sub-lease Exhibit M is not stated there in, but the duration is certain. Clause 4(1) thereof creates a period of the unexpired residue of the term of years created by the Certificate of Occupancy, Exhibit A, the original title deed of the land in dispute. Exhibit M was executed on 9/8/1990.
It is very pertinent at this juncture to bring to the fore the original title document of the land in dispute. By the Certificate of Occupancy, Exhibit A, title in the land was vested in late Alhaji Umaru Rigiza. The commencement of Exhibit A is 18/6/1979. Its duration is forty years. By simple computation of time, as at 9/8/1990 when the deceased owner of the land in dispute sub-leased it to the 1st Appellant, he, that is, the deceased had one day less the residue of the term of forty years created by Exhibit A. Paragraph 3, clause 1 of Exhibit M states thus:
“- – – To HOLD the same UNTO the sub-lessee from the – day of – 1990 (notwithstanding the date hereof) for the residue now unexpired of the term of years created by the said Certificate less the last day thereof – – – ”
To put it differently, by Exhibit A, the deceased became the holder of a statutory right of occupancy of the land in dispute. However, by Exhibit M, the deceased transferred his interest in the said land to the 1st Appellant.
The valid transfer of the disputed property to the 1st Appellant requires the consent of the Commissioner for Works and Housing of Niger State under the Land Use Act. This is clearly stated in Clause 1(11) of Exhibit A as follows:
“1.(11)Not to alienate the right of occupancy hereby granted or any part thereof by sale, assignment, mortgage, transfer of possession sub-lease or bequest or otherwise howsoever without the consent of the Commissioner first had and obtained”
Therefore in Niger State, a deemed holder of a right of occupancy requires the prior written consent of the Commissioner for Works and Housing before he can transfer, sub-lease or otherwise dispose of his interest in the right of occupancy. See the cases of:
(1) Inmh Vs. Ferado Agro Consortium Ltd (1990) 5 NWLR (pt.152) p. 605 at p. 626:
(2) Crushed Rock Ind. Ltd Vs. Ububa (2002) 8 NWLR (Pt. 770) p.522 and
(3) Lawson Vs. Afani Construction Co. Ltd (2002) 2 NWLR (Pt752) p.585.
The application of the deceased holder of the right of occupancy for the said required consent prior to the subleaseis at p. 23 of Exhibit A. Page 26 of Exhibit A which is Exhibit G is the approval granted to the deceased to sub-lease the property in dispute to the 1st Appellant. It is therefore not in doubt that, title in the land in dispute was properly transferred by the deceased to the 1st Appellant “vide” Exhibit M, the sub-lease agreement. Although the full date of commencement of the sub-lease was not named therein, the date has been made certain by the contingency reserved therein. The result is that, the date of commencement is certain and the duration of the term of the sub-lease is also certain. That being so, Exhibit M is a valid sub-lease.
In my opinion and consequent upon my line of reasoning above, the legal effect of Exhibit M as it relates to the parties who subscribed to it validly is that, the 1st Appellant becomes the legal owner of the land in dispute. By the combined effect of Exhibits M and A, ownership of the land in dispute is conferred on the 1st Appellant for a period of the remainder of the term created under Exhibit A less one day. In essence, the deceased before and after his demise had just one day interest in the property, the terms and conditions of Exhibit M not having been varied in any wise.
I have carefully perused the contents of the file also tagged Exhibit A; this indeed is a compendium of correspondence of the deceased and the 1st Appellant with the Ministry of lands, Survey and Town Planning, Minna, Niger State, both in relation to the Certificate of Occupancy, Exhibit A and the sub-lease agreement Exhibit M. None of those letters and papers could vary and did not in fact vary the terms of the said Exhibits A and M. These correspondence relate to the issue of payment of ground rent, rates and taxes in respect of the land in dispute in line with the provisions of Clause 1(i) (b) and (c) and 2(1) of Exhibit A; Clause 1, 2(ii) and 3(v) of Exhibit M and the Land Use Act. The learned counsel for the Respondent rightly submitted that Exhibit J in particular is a mere letter of extension and rent review which is not competent to enlarge the life span of either both the sublease agreement and Certificate of Occupancy.
Having found that the terms of Exhibit M are intact, title in the property in dispute can only be yielded to the original holder of the right of occupancy in respect thereof at the expiration of the term conferred under the Certificate of Occupancy, Exhibit A, that is, a term of forty (40) years. In essence, the land will revert to the Governor, the custodian of all lands in Niger State pursuant to the provisions of the Land Use Act at the expiration of the said term.
The learned trial Judge in lines 9 to 15 at page 103 of the record of appeal held in his judgment being appealed as follows:
“I find there was a lease agreement created by Alhaji Umaru Rigiza (late) and AP in 1980 to last for twenty years that is to expire in year 2000. The subnet matter of the lease is a land lying land situate at Kaduna – Lagos Road Kontagora. The 1st defendant sells its petroleum products thereon with the plaintiff as its dealer. Rents for the leased property was partly paid for 10 years in 1990 the rent was at the request of late Rigiza reviewed and extension of the lease sought and agreed upon, for the next 30 years then. Some payments were effected presumably for the number of years. ”
Also in lines 23 at page 104 and lines 1 to 4 at page 105 of the record of appeal, the learned trial Judge held as follows:
“Exhibit “M” I find is a document prepared in 1990 between the parties. It did not satisfy or meet the requirement of a lease agreement.
One of the requirements of a lease term, there is no period of commencement and expiration. ”
Pursuant to the above reproduced findings, the learned trial Judge held that, from 1990, there was no valid lease agreement created between AP, the 1st Appellant and the late Alhaji Umaru Rigiza to be relied upon-see lines 13 to 15 at p. 105 of the record of appeal. With due respect to the learned trial Judge, I do not agree with his line of reasoning, findings and conclusions. As already founded by me, Exhibit M is a valid agreement, with a commencement and duration. The duration is the period of its subsistence.
Regarding whether the death of a party to a lease agreement court terminates the agreement; the learned trial Judge in lines 16 to 21 at page 106 of the record of appeal held as follows:
‘T hold that even if there was any such lease agreement in place at that time (sic) 2000, it could have been voided by the death of Rigiza. The 1st defendant’s right could be to get back its equitable interest in the property. In this case, if the administrator or heirs were on notice of the subsistence of the said agreement, the only way would have been to put end(sic) to it formally and refunding(sic) the 1st defendant’s rent If any on the property to it (sic) or in the alternate (sic) ask the 1st defendant to buy it. ”
The above findings of the learned trial Judge are misconceived both in law and fact to say it most mildly.
I agree entirely with the learned counsel for the Appellants that, clearly Exhibit M is the blue print for the relationship created therein between the deceased, Umaru Rigiza, the sub-lessor and the 1st Appellant, the sub-lessee, in the life time or on the death of either party. This is contained in the introduction of and the window into the said Exhibit M. In the first paragraph of Exhibit M, the heirs, personal representatives and assigns of the late Umaru Rigiza on the first part and the successors-In-title and assigns of the 1st Appellant on the other part, are entitled to claim under and bound by Exhibit M. Therefore, the physical death or ceasure of the existence of any of the parties does not put an end to or extinguish the rights created under the sub-lease agreement. This is the reason I agree with the learned counsel for the Appellants that the heirs /administrators of the estate of the late Umaru Rigiza automatically stepped into the shoes of the deceased upon the death of Umaru Rigiza their father. They continue to be bound by the terms of Exhibit M, until the expiration of the term created thereunder. Therefore, the 1st Appellant is entitled to and must continue to enjoy peaceful possession of the property in dispute until the expiration of the said term. Having entered into the shoes of the late Umaru Rigiza, his heirs/administrators of his estate logically and consequently are only entitled to one day, the reversion of the property at the expiration of the term created by Exhibit M, that is, the full term of the sub-lease. It is then that, title in the property will be yielded back to them, -by which time the Certificate of Occupancy, Exhibit A, the original title deed would have expired and become invalid. The said heirs / administrators must have to then apply to the Governor of Niger State, if they are so desirous, for the renewal of Exhibit A in compliance with the relevant provisions of the Land Use Act before they can deal any further in the property in dispute.
As rightly submitted in favour of the Appellants, the issue of devolution of the property of the deceased person, Umaru Rigiza, under Islamic Law is not relevant for consideration in this matter. For it is not the right or capacity of the heirs of the deceased to deal in the deceased’s property that has been put in issue by the parties. Rather, it is: whether on the death of the deceased, his heirs/ administrators of his estate had any title in the property in question to pass on to another in view of the existing rights of parties under Exhibit M. As a result of all that I have said above, I hold that, there was virtually nothing left that the heirs/administrators could assign to the Respondent at the time Exhibit D was executed between the heirs of the deceased and the Respondent. The law is trite that where, as in the instant case, the Vendor/Assignor of a property who does not possess the capacity to sell a property, the maxim ‘nemo dat quod non habet” will apply to nullify the sale. In the instant case, the property in dispute belonged to the father of the supposed assignor, but the title in the property had been validly transferred to the 1st Appellant for a term which is yet to expire under Exhibit M. In the circumstance, the heirs, family or administrators of the estate of the deceased had nothing which could be conveyed to the Respondent. See the cases of:
(1) Adedibu Vs. Makanjuola (1944) 10 WACA p. 33;
(2) Akerele Vs. Atunrase (1969) 1 All NLR p. 201 and
(3) Mohammed Vs. Klargester (Nig.) Ltd (2002) 14 NWLR (pt. 787) p. 335
Therefore, I find that the deed .of assignment Exhibit D purportedly executed between Shehu Umaru Rigiza the heir of the deceased and the Respondent, Otunba Jonathan Olaniyan Farayola on 17th April, 2000 invalid, null, void and of no legal effect whatsoever.
Consequent upon all that I have stated above, issues one and two are bound to and they succeed. They are resolved in favour of the Appellants and against the Respondent.
ISSUE THREE
Whether the trial Court was right in ordering the heirs of late Alhaji Umaru Rigiza to pay to the 1st Appellant the balance of rent, when such a relief was never sought by any of the parties and especially when the heirs were not parties to the suit before the trial Court.
It was contended in favour of the Appellants that the trial Court’s order that the heirs of late Alhaji Umaru Rigiza to pay to the 1st Appellant the equitable interest and the balance of rent which were not part of the claims of the parties was improper. What is more, the said heirs were not parties to the suit before the trial Court. Indeed, the trial Court’s findings in one breath that there did not exist a leasehold relationship between late Alhaji Umaru Rigiza and the 1st Appellant from 1990 upward and in the same breath the making of an order that the Respondent should pay the sum of one hundred thousand naira (N100,000=) less withholding tax as the unused rent were incoherent, contradictory and perverse. This amounts to approbating and reprobating at the same time.
The learned counsel for the Appellants submitted that it is an established and elementary principle of law that, a court must not grant a claim not sought by a party to the suit before it. It is even more elementary in law that, persons who are not parties to a suit before a court cannot be made to suffer under a judgment in such a suit. The Respondent and the Appellants in their statements of claim and defence respectively, did not claim the payment of the balance of the money paid under the lease agreement, especially in the event of the trial Court declaring same void. By granting a relief not sought by any of the parties to the suit before it, the trial Court had made a case for the parties and thereby acted without jurisdiction. Therefore the trial Court’s decision was a nullity. On this position reliance was placed on the cases of:
(1) Gbarigha Vs. George supra,.
(2) Unokan Ent. Ltd Vs. Onuvwesupra and
(3) Jeric Nig. Ltd Vs. UBIN Ltd (2000) 15 NWLR (Pt. 691) p. 447
I have duly perused the claims, defence and counter-claims of the respective parties as contained in the printed record of appeal herein. I have equally given consideration to the submissions of the learned counsel for all parties under this issue. It is settled law that each party in an action is free to formulate his individual case by pleadings and once the case is formulated, parties are not allowed to deviate therefrom. In this regard, I refer to the cases of:
(1) Overseas Construction Ltd Vs. Creek Ent. Ltd (1985) 3 NWLR (Pt.13) p. 407 at p. 409 and
(2) Udengwu Vs. Uzuegbu (2003) 13 NWLR (Pt. 863) p. 136 at pgs. 151- 152.
Parties are therefore bound by their pleadings in the determination of cases, and evidence led on facts which are not pleaded goes to no issue. The court is equally prohibited from entering into enquiry outside the pleadings and from adjudicating upon any matter not put in issue “vide” pleadings. I rely in this vein on the cases of:
(1) Overseas Construction Ltd vs. Creek Ent. Ltd supra;
(2) Odinigi vs. Oyeleke (2001) 6 NWLR (Pt. 708) p. 12 at p. 35;
(3) Emeogkwue vs. Okadigbo (1973) 4 SC p. 113,’
(4) Atanda vs. Ajadi (1989) 3 NWLR (pt. 111) p. 511;
(5) Agu vs. Ikewibe (1991) 3 NWLR (Pt. 180) p. 385 and
(6) Gbadamosi vs. Dairo (2001) 6 NWLR (Pt. 708) p. 137 at p. 158
It is the duty of a court to confine or limit itself, only to the issue raised and or canvassed by the parties before it. There are so many decided authorities in this respect. Some of these are: Onwunalu & Ors. Vs. Osademe (1971) 1 All NLR p.15, Adeosun Vs. Babalola (1972) 5 S.C p. 292; University of Calabar Vs. Dr. Essien (1996) 10 NWLR (Pt. 477) p. 225 at p. 251; Madam Obulor & Anor. Vs. Oboro (2001) 8 NWLR (Pt. 714) p. 25; Nigerian Bank for Commerce & Industry Vs. Integrated Gas (Nig.) Ltd & Anor. (2005) 4 NWLR (Pt, 916) p. 617 and very recently, A.G. Leventis (Nig.) Plc. Vs. Akpu (2007) 17 NWLR (Pt. 1063) p. 416. Hence, the axiom, the court is not a Father Christmas; it’s barred from entering to enquire outside the pleadings. The principle of the determination of disputes between parties is that judgment must be confined to the issues raised by the parties and it is not competent for the court “suo motu” to make a case for either or both parties and then proceed to give judgment in the case so formulated contrary to the case of the parties before it. See the cases of:
(1) Agbeie Vs. Ajibola (2002) 2 NWLR (Pt. 750) p. 127;
(2) Nigerian Housing Development Society Ltd Vs. Yaba Mumuni (1977) 2 SC pg 57 and
(3) Com. for Works Benue State & Anor. Vs. Devcon Develop. Consult. Ltd. & Anor. (1988) 3 NWLR (Pt. 83) p. 407
With this principle of law in mind, the complaint of the Appellants under issue three is well grounded. In the circumstance, the balance of rent for unused period under the sub-lease agreement was not claimed by the parties. The order of the trial Court in the regard was made without jurisdiction and it is hereby set aside.
It is an aberration and indeed an appellate Court has no jurisdiction to interfere with the assessment and evaluation of evidence of a trial court in the absence of special circumstances warranting such interference. It is a basic principle of law that the evaluation of evidence and the ascription of probative value to such evidence are the primary function of a court of trial, which saw and heard and assessed the witnesses while they testified before it. The trial court has a near exclusive jurisdiction on matters of appraising evidence. Where therefore a court of trial has properly evaluated the evidence, the appellate court will generally not interfere with such findings. See the cases of:
(1) Baridan Vs. The State (1994) 1 SC (Pt.5) p. 12;
(2) Bakare Vs. The State (1987) 1 NWLR (Pt. 52) p. 579;
(3) Garba Vs. State (1999) 11 NWLR (Pt.627) p. 422 and
(4) 1 SC Services Ltd Vs. G.C Ltd supra at p. 519 paras. E – F
An appellate court will not lightly interfere with findings of fact of a trial court unless for compelling reasons. See the cases of:
(1) Ebba Vs. Ogodo (1984) 1 SC p. 372;
(2) Ogbechie Vs. Onnochie (1988) 1 NWLR (pt. 70) pg 370;
(3) Omoregbe Vs. Edo (1971) 1 All NLR p. 282 and
(4) Ayua Vs. Adasu (1992) 3 NWLR (Pt. 231) p. 598.
Such compelling reasons are as follows:
(a) If the finding is perverse and cannot reasonably be supported having regard to the evidence or (b) If the finding is an interference from established facts so that an appellate court is in as vantage a position as the trial court to draw its own conclusions or
(c) If the trial court has applied wrong principles of law or
(d) When the decision of the trial Court has occasioned a miscarriage of justice.
Other Citations: (2009)LCN/3093(CA)
