Dr. A.A Azie Vs Commissioner Of Lands, Eastern Region (1960)

LawGlobal-Hub Lead Judgement Report

BAIRAMIAN, F.J.

This is an appeal by the defendant against the judgment of the High Court of the Eastern Region given by Manyo-Plange, J., on the 2nd February, 1959.

The Commissioner of Lands of the Region sued the defendant claiming possession of the premises known as plot 139, in the Government Residential Area, Abe, and forfeiture of the Lease dated 7th December, 1957, granted to the defendant.

The Lease contains a compulsory covenant, that the lessee shall erect buildings within a certain time in accordance with plans approved by the Land Officer, Abe, the purpose of the Lease being that of erecting residence for occupation by the lessee, his family and domestic servants; it also contains a restrictive covenant that, apart from those buildings, he shall not erect any others except in accordance with plans and specifications approved by the said Land Officer.

The defendant, who is the lessee, obtained approval of his plan for the compulsory buildings, and began erecting them. He also but without approval began erecting additional buildings on 26th November, 1957. On the 7th December, 1957, the Land Officer wrote to him that his plan could not be approved. And, as he continued with the construction of the additional buildings, on the 10th January, 1958, the Commissioner of Lands wrote to him that unless the breach of covenant was cured forthwith, an action for forfeiture would be taken.

It is sufficient to note here, that, when the action came on, Counsel for the defendant stated in Court that:-

“The defendant admits breach of his covenant and (is) therefore liable for forfeiture but states breach was due to misunderstanding and so claims relief.”

And at the end of the hearing his Counsel said:

“The breach in this case is not disputed. The defendant very much regrets. Therefore the Court is asked to grant relief and my submission is that plaintiff can be compensated by damages.”

In his judgment the learned Judge discusses the question whether, as stated by the defendant, any assurance of the approval of the plan was given by Mr. Okafor, the Land Officer, to the defendant, and found as a fact that:-

The defendant in spite of Exhibit ‘B’, letter of 7th December, went ahead with his building not on any assurance by Mr. Okafor but in the honest belief that if he built without approval of the plan, the breach would be waived, because of the building by other lessees of two buildings on their plots.

And the learned Judge went on to say that to grant relief on payment of compensation would amount to permitting the defendant to buy a release of his express covenant, and would amount to sanctioning a variation of the contract in a matter capable of being remedied; wherefore, the learned Judge granted relief on condition that the defendant should demolish the second building erected without an approved plan, within two months. The defendant appealed.

Before us the argument on his behalf was that the additional building was of a type which could have been approved if the Land officer had so felt disposed, and that having regard to the Aba Bye-Laws on buildings, enough vacant area was left on the plot; and this Court was asked to replace demolition by an order for damages

The simple question is whether there were any circumstances which made it equitable to let the building stand. The finding of the learned Judge makes it clear that there were no such circumstances, and the appeal should therefore be dismissed with an order that the condition imposed by the learned Judge shall be carried out within two months from today; and as to costs, that the appellant shall pay the respondent twelve guineas.

Appeal dismissed.

Other Citation: (1960) LCN/0845(SC)