Henrison Okechukwu V. Humphrey C. Onuorah (2000)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C

The plaintiff now appellant in this court was the respondent at the Court of Appeal. He was given judgment at the trial High Court of former Anambra State sitting at Onitsha. He is the son of a retired Minister of religion. The respondent is a businessman and was the defendant at the trial court and appellant at the Court of Appeal.

By a deed of lease made on 17th day of July 1972 between the plaintiff/appellant and the defendant/respondent and his late brother Davidson Orizu Onuorah and registered in Deeds Registry as No. 12 at page 12 in volume 8 the parties agreed as follows:-

“(i) To build on the site demised a storey building containing on the whole 8 (eight) shops and 6 (six) rooms and conveniences on the ground floor and 2 flats and conveniences on the first floor containing 8 (eight) rooms, that is, parlour and three bed rooms with conveniences on the second flat all in accordance with the approved building plan Nos. OPA/No.754, OUCC: 179/72 prepared in the Lessor’s name within one calendar year from the date the building plan is approved subject to unforeseen circumstances.

(ii) To give to the Lessor one shop, at the junction of Aljen Lane and Old Market Road on the ground floor free of rent and one flat containing parlour, 3 (three) bed rooms, latrine, bath toilet and kitchen on the first floor for his own use or the use of other person or person authorised by him.

(iii) To pay to the Lessor a monthly rent of #14:5s (Fourteen pounds five shillings) per month for the areas of land and the building and convenience occupied by him on the leased. For the time being to pay to the Lessor the sum of #855 (eight hundred and fifty five pounds) representing five years rent paid in advance on executing this lease.

(iv) To pay rent half yearly in advance after the expiration of five years rent having been paid in advance. The building plan No. OPA/No. 754 OUCC, 179/72 is hereby pleaded”.

As a result of the convenants in the lease the respondent erected a one storey building on the premises situated at 30 Old Market Road Onitsha. But the respondent was never in peace right from when he started developing the land. The plaintiff/appellant apparently invited the Town Engineer of Onitsha Local Government by a letter that the respondent was erecting an illegal structure whereby the initial structures erected were demolished by the council. The appellant referred to respondent as “unknown persons” in his letter to the Town Engineer of Onitsha Council. There was no evidence of any variation of the lease agreement between the parties but it seems the appellant created difficulties for the respondent during and after development of the land. Certainly the respondent, even though carried out all his obligations under the lease, was not in quiet possession due to harassment from the Onitsha Urban Council through instigation by the appellant. Despite paying the rent due and allowing the appellant to take possession of a flat on the first floor and one shop on the ground floor the appellant finally resorted to holding that the lease agreement itself was null and void. The appellant’s contention on nullity is predicated on the agreement not having a commencement date. The respondent’s argument is that the appellant (lessee) obtained the permission of Onitsha Urban Council to occupy the building after completion. This permission is referred to as “certificate of occupancy”, not a term of art as in Land Use Act, but were use of words to describe the permission to occupy a newly completed building if found by the relevant supervisory authority to be tenantable and habitable. The trial Court upon all the evidence before it gave judgment for the appellant taking refuge in the belief that the lease agreement had no commencement date and was therefore null and void.

On appeal to the Court of Appeal, trial court’s decision was set aside, and plaintiffs suit was dismissed. The appellate court held that Exhibit 1, the lease agreement, was valid and was not vitiated by absence of commencement clause because the date of commencement could easily be inferred from the agreement, right from the date of its execution. The plaintiff has now appealed to this court.

The following issues have been formulated for the appellant:-

“(a) Were the learned Justices of the Court of Appeal right when they held that Exhibit one (i.e. the purported lease agreement) was valid

(b) Whether Exhibit 1, which the Justices of the Court of Appeal held was valid actually contained the legal essential requirements that will make a lease valid

(c) Whether the learned Justices of the Court of Appeal were right to have held that the Certificate of Occupancy obtained by the Lessor was sufficient to make the lease operational when in fact no such term or condition was contained in Exhibit 1.

(d) Was the learned trial Judge right to have considered other reliefs not in the alternative claim after he has pronounced and based his judgment on the alternative relief

(e) Were the learned Justices of the Court of Appeal adversely influenced by the above method adopted by the trial court which affected them in holding that Exhibit 1 was valid”

The main purport of any legal agreement is to set out clearly what the parties agreed upon. The agreement clearly states:-

“The lessor demises to the lessees all that parcel of land known as and called No. 30 Old Market Road, Onitsha to hold the same unto the lessees for a term of 50 (fifty) years from the day the lessees are issued with a certificate of occupancy in respect of the whole building or any part thereof.”

In Osho & Anor. v. Foreign Finance Corporation & Anor. (1991) 4 NWLR (Pt. 184) 157, 193 this court sets out requirements of valid lease as:

i. words of demise

ii. complete agreement leaving no ambiguity as to its purport

iii. the identification of the parties to the agreement

iv. the premises must be clearly identified,

v. commencement and the duration of the agreement.

.In Exhibit 1, the words of demise are clearly set out. The lease agreement is clear as to its purport, that is to say, giving on lease a plot of land to be developed by the defendants to a clear specification and on completion to have portions of the building for the plaintiff’s use absolutely without any charge. Parties to a suit must only plead facts and facts only and not law; similarly where a provision of law is alluded to in an agreement the coming into operation of that legal provision, when uncertain, is as good as stating a commencement of the operative date of an agreement. The issuance of a “certificate of occupancy” i.e. the authority of the relevant council that a new building is fit for occupation after inspection, is a date always uncertain, but the authority certainly will be given if the building complies with all the health and structural regulations. Thus, the agreement, Exhibit 1, is clear is to its terms when it provides:

“From the day the lessees are issued with a certificate of occupancy in respect of the whole property or any part thereof’ As I mentioned earlier, a “Certificate of Occupancy” alluded to in the Exhibit 1 is not the same as in Land Use Act. It is clear by Exhibit 1 that there is certainty that the local authority would not fail issuing the authority or consent to enter the building for purpose of habitation once there is certificate satisfying that it was built to specification. Thus the commencement date of Exhibit 1 can easily be inferred. The premises, No. 30 Old Market Road, Onitsha is clear on the agreement. It is clear the plaintiff did everything to frustrate Exhibit 1, and at his instance by letter to local authority, delayed issuance of authority to enter into the premises.

He however collected all rents due to him; he moved into a flat on the premises and similarly took possession of a shop as provided in the agreement without payment of any rent. When entering into an agreement of this nature the parties must be uberrimae fidei and I find nothing in the Exhibit 1 to defeat this presumption. This contract was subject to a contingency not for validity but for commencement and as I said earlier the authority to occupy the building was not forthcoming. Where parties agree in a solemn contract they are supposed to fulfill all the conditions therein faithfully and honestly. Parties who enter into a contract are expected to honour its terms. A party who induced the other party to enter into a contract, which contract provides benefits for the inviting party which he has utilized without complaint, he cannot be found to deny the validity of that contract. The appellant has enjoyed five years rent, he is still enjoying the occupation of a flat and a shop on the demised premises, it is not for him now to assert the invalidity of the contract. To my mind the invalidity is self-induced but it does not make the contract invalid. Where a contingency is uncertain as to precise time of occurrence, e.g. the issuance of authority to occupy the premises by local council, the mere statement that the time the authority is issued is the commencement is enough. The appellant, has benefited immensely from Exhibit 1 and he cannot now resile from it. All these years he collected all the rents due, and had the benefit of occupying portions of the building erected on the land in question free of charge as provided in the agreement. He has no case against the respondent.

I therefore find no merit in this appeal and I dismiss it with N10,000.00 costs

to the respondent.

SC.248/1993