MR. CHARLES OGBONNA & ANOR v. KADUNA
STATE DEVELOPMENT & PROPERTY COMPANY
LIMITED & ORS
CITATION: (2013) LPELR-22359(CA)
In The Court of Appeal
(Kaduna Judicial Division)
On Friday, the 24th day of May, 2013
Suit No: CA/K/82/2006
Before Their Lordships
DALHATU ADAMU
THERESA NGOLIKA
ORJI-ABADUA
ITA GEORGE MBABA
Justice, Court of Appeal
Justice, Court of Appeal
Justice, Court of Appeal
Between
1. MR. CHARLES
OGBONNA
2. MR. JAMES MADAKI
And
1. KADUNA STATE
DEV. & PROPERTY CO.
LTD.
2. ALHAJI DAHIRU
1
Appellants
Respondents
MOHAMMED
3. MRS. RHODA
SAMUEL HARUNA
RATIO DECIDENDI
1 EQUITY - EQUITABLE LEASE: When does
an equitable lease arise
"The law is that the situation where the
intended lessee is treated as having the same
rights as if a lease had in fact been granted to
him, only applies if the lessee is entitled to
specific performance. The equitable interests
which the intended lessee has under an
agreement for a lease do not exist in vacuo
but arise because the lessee has an equitable
right to specific performance
by the
agreement. In such a situation, that which is
agreed to be and ought to be done is treated
as having been done and carrying with it in
equity the attendant rights. But the intended
lesses's equitable rights do not in general
arise when that which is agreed to be done
would not be ordered to be done, for example
where there is a breach of covenant in the
headlease. See Opara vs. Dowel Schlumberger
(Nigeria) Ltd & anor (2006) 15 NWLR Part
1002 page 342 at 363. Walsh vs. Lonsdale
(1882) 21 CH D 9 is the authority for the
equitable maxim that "equity regards as done
2
that which ought to be done." It created the
doctrine of anticipation whereby a specifically
performable agreement to create or transfer a
property right will be good in equity, even if
not finally effective in law, i.e., where a lease
is held to be effective in the absence of the
formality. An equitable lease arises where
there is an agreement to lease in writing
which does not abide by formal requirements
(i.e. not a deed). In equity, "an agreement for
a lease is as good as a lease." It is a principle
which has the effect of saving a lease, or
other grant, where the parties have attempted
to create a legal estate but have not satisfied
the formality of executing a deed." Per
ORJI-ABADUA, J.C.A. (Pp.14-15, paras. E-E) read in context
2 EQUITY - EQUITABLE LEASE: Whether the
Court of equity can enforce a lease where
parties have signed a lease but the same is
not in the form of a deed
"...Equitable lease does not meet the
requirements of a Legal Lease but is valid and
enforced by the Courts in the interest of
fairness and justice. It is trite that if parties
have signed a lease but the same is not in the
form of a deed, the Court of equity may
nonetheless decide that the lease should be
enforced if to do otherwise would offend good
conscience. Equity may even intervene if the
3
parties have not recorded their agreement in
writing. Equity also recognizes an act of part
performance on the part of a party." Per
ORJI-ABADUA, J.C.A. (P. 21, paras. B-E) read in context
3 CONTRACT
EXECUTION
OF
CONTRACT/DEED:
Whether
written
contracts or deeds will be legally enforceable
when it is not executed in accordance with
specific requirements
"It is well established that written contracts
must be executed in accordance with specific
requirements otherwise they will not be
legally enforceable. However, in some
jurisdictions, in order to execute a deed, only
a signature is required. To be formally valid, a
document must be subscribed by the grantor
and witnessed by one other aged person at
least 16 as was done in Exhibit 5. Under the
English Law, if a document is unsigned, a
party is not bound unless he is aware that the
document contained contract terms or the
other party had taken reasonable steps to
bring the terms to his notice. Definitely, it is
stated that when a contract is not signed by
either party, it might still be valid if there is
other evidence that both sides intended for it
to go into effect. That evidence might be
letters, memoranda, or even the beginning of
performance by one or both parties." Per
4
ORJI-ABADUA, J.C.A. (Pp. 20-21, paras. F-B) read in context
4 LAND LAW - LEASE: Nature of a valid lease
of agreement
"...In Okechukwu vs. Onuorah (2000) 15
NWLR Part 691 page 597, it was held that in
order to have a valid agreement for a lease,
there shall be determined not only the
parties, the property, the length of the term
and the rent, but also the date of its
commencement. It is further recognized that
the parties may agree that the lease shall
begin upon the occurrence, of an uncertain
event or other uncertain event. Such an
agreement, though at first conditional and
dependent upon the occurrence of an
uncertain event becomes absolute and
enforceable as soon as the stipulated event
occurs. Further, where a person has expended
money on the land of another, in the
expectation, induced or encouraged, by the
owner of the land that he would be allowed to
remain in occupation thereof, an equity was
created such that the Court would protect his
occupation of the land and the Court has
power to determine what way the equity so
arising could be satisfied." Per ORJI-ABADUA,
J.C.A. (Pp. 15-16, paras. F-C) - read in
context
5
THERESA NGOLIKA ORJI-ABADUA, J.C.A.
(Delivering the Leading Judgment): The record
of this appeal shows that in 1993, the 2nd
Appellant applied to the 1st Respondent for a Plot
of land measuring 820m2 at its Narayi High Cost,
Barnawa, Kaduna. An offer was made to him for
grant of Sub-Lease for a period of 40 years. The
2nd Appellant accepted the offer, paid all the
necessary fees and consequent upon which a Deed
of Sub-Lease was entered into between him and
the 1st Respondent in respect of the said property.
Then, in 1997, the 2nd Appellant assigned the
residue of his Sub-Lease to the 1st Appellant who,
in turn, entered into a Sub-Lease agreement with
the 1st Respondent and has since been paying the
ground rents to the 1st Respondent without default.
The 1st Appellant thereafter took possession of the
said plot of land, fenced it round, started the
development of a boy's quarter up to the D.P.C
level. While the 1st Appellant was about procuring
a gate to seal the entrance to the Plot, an unknown
person trespassed, went and mounted his own gate
on the fence built by the 1st Appellant. The same
person uprooted, removed and replaced all the
existing government survey beacons Nos. 8839,
8841, 8840 and 8819 with his own personal survey
beacons Nos. 8677, 8678, 8679, 8689 and 8676.
However, in January, 2004 when the 1st Appellant
went to pay for the 2002 & 2003 ground rents, his
6
file could not be located, and, as such, he could not
pay the rents. After a thorough investigation, it was
discovered that a new file has been opened for the
2nd Respondent in respect of the same plot which
was described as "NEPA ABUJA". The development
was brought to the knowledge of the 1st
Respondent, which confirmed the re-allocation of
the said plot to the 2nd Respondent on the ground
of non - payment of ground rents by the 2nd
Appellant. It denied ever having any Sub - Lease
Agreement with the 1st Appellant.
Trouble then ensued which necessitated the
Appellants filing an action against the Respondents,
though, it was only the 1st Appellant who claimed
against the Defendants jointly and severally as
follows:
"(a) A declaration of title over all that piece of land
consisting and measuring about 820M2 lying, and
situate at No 2 Abubakar Dangiwa Road, Barnawa
phase 1, Narayi High Cost (KDLP 3818) in Kaduna
South Local Government Area and delineated by a
Red verged Line and bounded by Ground Beacons
Nos. 8839, 8841, 8840, 8819 on the survey
drawing.
(b) A declaration that the 1st Plaintiff acquired a
land and Sub-Lease from the 1st Defendant i.e.
Kaduna State Property and Development company
Limited through the 2nd Plaintiff.
(c) A declaration that the 1st Plaintiff is the
beneficial owner of plot No. 2 Abubakar Dangiwa
Road, Barnawa Phase II, Narayi High Cost.
(d) An Order of injunction restraining the
7
Defendants, their Servants and agents from
trespassing into the said Plot or in any manner
whatsoever from interfering with the 1st Plaintiff's
peaceful and quiet Possession of same.
(e) or in the alternative special Damages as
Follows:(i) Site clearing - 205,000.00
(ii) Excavation - 160,050.00
(iii) Cost of Fence wall/boys - 1, 486, 640.00
quarter up to DPC level
(iv) Concrete work in foundation - 333,500.00
Amount of work done on site - N2, 147,190.00
(f) General damages in the sum of N3, 000,000.00
being the loss incurred during the period of delay
and when the project would have been completed
by avoiding the escalating cost of building materials
and usage."
At the trial, the parties called their respective
witnesses and tendered several documentary
evidence, all which were evaluated by the trial
Court, and, at the end of which it dismissed the
entire claim. Being deeply distressed by the
judgment, the Appellants filed a Notice of Appeal
against the said judgment of the lower court
delivered on the 5th August, 2005. However, on
8/10/08, leave was granted the Appellants to
amend their grounds of appeal by adding new five
grounds of appeal to their original grounds of
appeal. The parties were respectively served with
the record of appeal. Then, on 23/6/09 the
Appellants were granted further leave to amend
their Amended Notice of Appeal by renumbering
8
the grounds of appeal therein as Nos. 1-6.
The Appellants' Brief of Argument dated 6/7/2009
was deemed filed by the order of this court made
on the 14th April, 2010. The same was served on
the Respondents who never deemed it wise or
necessary to file their Respondents' Brief of
Argument. Following the Respondents' abject
failure to respond to their contentions, the
Appellants applied to this Court by a Motion on
Notice which was served on the Respondents, for
an order of this Court setting the appeal down for
hearing on the Appellants' Brief alone. The same
was granted on 7/5/12 and this appeal was heard
as such. In the Appellants' Brief of Argument four
issues were presented for the determination of this
Court. The issues are:
"1. Whether there was a valid and subsisting Sub Lease Agreement between the 2nd Appellant and
the 1st Respondent.
2. Whether the 1st Appellant has a valid and
subsisting Sub-Lease Agreement with the 1st
Respondent and can thus utilize same.
3. Whether Exhibit 5 can stand alone for the 1st
Appellant without further evidence as envisaged in
Exhibits 6, 8, 19 and 20.
4. Whether in proof of special damages the
Appellants necessarily need to call oral evidence to
succeed despite the tendering of documentary
evidence."
In tendering argument in respect of issue No. 1, it
was contended on behalf of the Appellants by their
learned Counsel, G. U. Akobueze Esq; who
9
prepared their Brief of Argument, that Exhibit 1,
the offer for the Sub-Lease, was not a contract
document as at the date it was made, because it
was an 'offer' yet to be accepted by the offeree.
Then, Exhibit 2 was the contract made by the 2nd
Appellant and the 1st Respondent on 23/12/96. He
submitted that the contract, i.e. the Sublease
Agreement came into effect on the 23rd December,
1996 between the 1st Respondent and the 2nd
Appellant. He referred to page 1 paragraph 1 of
Exhibit 2, i.e. the introductory recital which states:
"the lessee shall develop improve, build upon the
demise property No. 2 Abubakar Dangiwa Umar
Road, within a period of 3 years from the date
hereof", and contended that the trial Court's
holding that P.W.1 did not comply with the
conditions contained in Exhibit 1, the letter of offer,
that development of the land be completed within
three (3) years
indicates that the Court did not properly evaluate
the evidence brought before it.
He stressed that ground rent was duly paid by the
2nd Appellant through the 1st Appellant and that
non-payment of ground rent was not the reason
shown in Exhibit 12 for revocation of the lease. He
further argued that since the Agreement took effect
from 23/12/96, it could not have been possible for
the 2nd Appellant to have commenced development
of the land prior to that date, and that, as at
10/7/97, when the 2nd Appellant transferred his
interest in the title to the 1st Appellant, the said
period of three years was still subsisting and had
10
not elapsed, hence the Sub-Lease Agreement
between the 1st Respondent was valid and
subsisting. He urged this Court to so hold.
Submitting in respect of issue No. 2, the learned
counsel turned to the testimony of D.W.1 where he
sighted Exhibit 5 and acknowledged that it carries
the signature of the former Managing Director and
a former Secretary of the 1st Respondent, thereby
implying that Exhibit 5 was issued by KSDPC. He
pointed out that D.W.1 never said in evidence that
Exhibit 5 was either forged or obtained by fraud. He
submitted that it is the law that in the absence of
evidence to the contrary, the Court shall presume
that the signature to any such certificate (sub-lease
Agreement) is genuine and that the persons that
signed it held the offices which they professed at
the time when they signed it. He further contended
that in law, it is only the 1st Appellant who can
query or raise the issue of non-signing of Exhibit 5
to vitiate the same. Learned Counsel made
reference to the lower Court's remarks at page 115
of the record that even if Exhibit 5 was executed by
the 1st Plaintiff, that document alone will not be
adequate evidence of sub-Lease between him and
the 1st Defendant, and, then, listed the ingredients
of a valid contract, that is to say, an offer,
acceptance, consideration, intention to create a
legal relationship and capacity of parties to contract
which he stressed must co-exist before a valid
contract is made between parties. He cited the
cases of Odua Investment Co. Ltd vs. Akinyemi
(2002) FWLR Part 84 pages 188 paragraph A, and
11
198 paragraphs F, and Union Bank of Nigeria Plc
vs. Erigbuem (2003) FWLR Part 180 page 1365 at
1400 paragraph C, to buttress the point. He
contended that Exhibit 7, i.e., the Demand Notice
for the 2000 and 2001 ground rents by the 1st
Respondent to the 1st Appellant, and, payment of
the same via Exhibit 8, i.e., the receipt issued by
the 1st Respondent, constituted other external
manifestation of assent or act done by the 1st
Appellant (offeree) from which the court can infer
that the offer was indeed accepted. He also
explained that part payment of the consideration
i.e., N16,000 was made leaving a balance of
N22,718.46 (Exhibit 12) then paid by the 2nd
Appellant. He further explained that the 1st
Appellant paid for the Sublease agreement by
paying the agreed sum of N38, 718.46 to the 1st
Respondent. He then stated there is ample
evidence proving that the 1st Respondent had a
valid and subsisting Sub-Leave Agreement with the
1st Appellant.
On issue No. 3, learned counsel submitted that
apart from Exhibit 20 which is similar to Exhibit 5,
Exhibits 16, 18 and 19 manifest further steps or
procedures taken by D.W.2 on or after the
sub-Lease agreement as they are incidental to the
Sub-Lease agreement. He then relied on the
authority of Union Bank of Nigeria Plc. V. Erigbuem
(supra) at pages 1399-1400 paragraphs A-B, and,
submitted that in contract of sale of land, the
agreement to sell is concluded when the parties,
the subject matter, the nature of the transaction
12
and the consideration are agreed upon. He
emphasized that at the time Exhibit 5 was issued,
the subject matter was Plot No. 2 Abubakar
Kangiwa Road, Narayi High Cost, Kaduna, the
nature of the transaction was sub-lease of the said
plot for a term of 40 yards, the consideration was
the sum of N38, 718.64, all had been agreed on by
the parties. He, therefore, urged this court to hold
that the finding of the trial court on this point is
unfounded.
Dealing with issue No. 4, learned counsel submitted
that in law, claims of special damages may be
proved in court by either oral or documentary
evidence, and, then referenced the cases of Matori
v. Bauchi (2004) ALL FWLR Part 197 page 1041
paragraphs D - E and U.T.B vs. Ozoemena (2007) 3
NWLR Part 1022 page 448 at 492 paragraphs C - D,
where it was held that no oral evidence is needed
when the receipt is produced. The production of
receipt as evidence of payment is sufficient to meet
the requirement of strict liability proof of special
damages notwithstanding the maker of the receipt
are not called as a witness. He stressed that
Exhibits 9, 10 and 11 are evidence of payments
made by the 1st Appellant to the person he
contracted to erect the fence and boys quarters on
the property. He pointed out that the 1st Appellant
was not cross-examined on the said Exhibits 9, 10
and 11 yet the trial Court held that the said
Exhibits 9, 10 and 11, are not reliable evidence of
any development on the land. He urged this Court
to allow the appeal and grant the reliefs sought by
13
the Appellant.
As I earlier noted, the Respondents did not file any
Respondents' Brief of Argument. I will now proceed
to consider the issues framed by the Appellants in
their Brief of Argument. I have carefully examined
the issues presented by the Appellants for the
determination of this Court. However, issues Nos.
1, 2 and 3 seem interwoven and cannot be
conveniently and individually treated without
incursion into the other. Therefore, I think it
pertinent to determine the said issues 1, 2 and 3
together.
The issues are firstly, 'whether there was a valid
and subsisting Sub-Lease agreement between the
2nd Appellant and the 1st Respondent; secondly,
'whether the 1st Appellant has a valid and
subsisting Sub-Lease Agreement with the 1st
Respondent and can thus utilize same, and, thirdly;
'Whether Exhibit 5 can stand alone for the 1st
Appellant without further evidence as envisaged in
Exhibits 6, 8, 19 and 20.
The law is that the situation where the intended
lessee is treated as having the same rights as if a
lease had in fact been granted to him, only applies
if the lessee is entitled to specific performance. The
equitable interests which the intended lessee has
under an agreement for a lease do not exist in
vacuo but arise because the lessee has an equitable
right to specific performance by the agreement. In
such a situation, that which is agreed to be and
ought to be done is treated as having been done
and carrying with it in equity the attendant rights.
14
But the intended lesses's equitable rights do not in
general arise when that which is agreed to be done
would not be ordered to be done, for example
where there is a breach of covenant in the
headlease. See Opara vs. Dowel Schlumberger
(Nigeria) Ltd & anor (2006) 15 NWLR Part 1002
page 342 at 363. Walsh vs. Lonsdale (1882) 21 CH
D 9 is the authority for the equitable maxim that
"equity regards as done that which ought to be
done." It created the doctrine of anticipation
whereby a specifically performable agreement to
create or transfer a property right will be good in
equity, even if not finally effective in law, i.e.,
where a lease is held to be effective in the absence
of the formality.
An equitable lease arises where there is an
agreement to lease in writing which does not abide
by formal requirements (i.e. not a deed).
In equity, "an agreement for a lease is as good as a
lease." It is a principle which has the effect of
saving a lease, or other grant, where the parties
have attempted to create a legal estate but have
not satisfied the formality of executing a deed.
In Okechukwu vs. Onuorah (2000) 15 NWLR Part
691 page 597, it was held that in order to have a
valid agreement for a lease, there shall be
determined not only the parties, the property, the
length of the term and the rent, but also the date
of its commencement. It is further recognized that
the parties may agree that the lease shall begin
upon the occurrence, of an uncertain event or
15
other uncertain event. Such an agreement, though
at first conditional and dependent upon the
occurrence of an uncertain event becomes absolute
and enforceable as soon as the stipulated event
occurs. Further, where a person has expended
money on the land of another, in the expectation,
induced or encouraged, by the owner of the land
that he would be allowed to remain in occupation
thereof, an equity was created such that the Court
would protect his occupation of the land and the
Court has power to determine what way the equity
so arising could be satisfied.
In the instant appeal, the 2nd Appellant testified as
P.W.1 saying that the land at No. 2 Abubakar
Dangiwa Umar Road, Narayi High Cost, Kaduna
which he sold to the 1st Plaintiff, i.e., the 1st
Appellant, was allocated to him by the 1st
Defendant. The Allocation letter given to him was
tendered as Exhibit 1. A photocopy of the original
agreement the 1st Defendant had with the 2nd
Plaintiff was admitted in evidence as Exhibit 2 since
the original copy is in the custody of the 1st
Defendant. He explained that after his agreement
with the 1st Appellant to sell the property to him,
he, P.W.1 took the 1st Appellant to the office of the
1st Respondent where transfer or the residue of his
40 year term was made and every document was
changed to his name. The Plot was allocated to him
in 1993. See, also, paragraph 7 of the Appellants'
Statement of Claim where it was averred that the
2nd Appellant assigned or transferred the residue
16
of his Sub-Lease to the 1st Appellant in 1997, who,
in turn, entered into a Sub-Lease Agreement with
the 1st Respondent and, has, ever since been in
possession and paying the ground rents to the 1st
Respondent. The 1st Defendant, however asserted
at paragraph 5 of its Statement of Defence that it
was in 2001 it revoked the Sub-Lease it granted to
the 2nd Appellant in March, 1993.
It is clear in Exhibit 1, issued in 1993 that an offer
for Sub-Lease of the land situated at Narayi High
Cost Barnawa, Kaduna and measuring about
787.06m2 for a period of 40 years was made to the
2nd Appellant by the 1st Respondent. Even though
the column for acceptance was not signed by the
2nd Appellant, Exhibit 2 signed on 23/12/96 was
executed between the 1st Respondent and the 2nd
Appellant. The said Exhibit was not objected to nor
was any dispute raised on the respective signatures
of the Managing Director and Company Secretary of
the 1st Respondent thereon.
Exhibit 3 is a receipt dated 26/5/99 evidencing
payment for the annual ground rents and
development charges for Plot No. 2 Abubakar
Dangiwa Road, Barnawa Phase II, made by the 1st
Appellant to the 1st Respondent for the period
between 1994 and 1999 in the sum of N5, 922.36.
It was indicated in the offer letter, i.e., Exhibit 1,
that the ground rent was N787.06 per annum and
the development charges was N200 annually. This
then explained why the total sum of N5, 922.36
was paid by the 1st Appellant in 1999 for the said
period.
17
It is clear in the evidence of the parties before the
lower Court, that as at the time the 2nd Appellant
transferred the residue of his Sub-Lease to the 1st
Appellant in 1997, when the 1st Respondent, via its
then Managing Director and Secretary, executed
Exhibit 5 in favour of the 1st Appellant in April,
1997 and, the time the accumulated ground rents
and development charges were paid in 1999, for
the years, 1994 - 1999, the 1st Defendant had not
revoked the Sub-Lease of the 2nd Appellant. The
2nd Appellant's lease subsisted till 1997 when he
transferred the residue of the same to the 1st
Appellant. It is clear that the allegation in Exhibit
14 dated 18/4/2001 made by the 1st Respondent
that ground rents were owed for 9 years over the
said property could not have been true due to the
contents of Exhibit 3 which indicated there was
payment of ground rents in respect of the property
on 26/5/99 for a period of six years from 1994 to
1999. Further, Exhibit 8 was tendered by the
Appellants to prove further payments by the 1st
Appellant in respect of the said property at No. 2
Abubakar Dangiwa Umar Road, Barnawa, Phase II,
for the years 2000 and 2001 in the sum of N7,
983.09k. It was issued on 6/6/02 by the 1st
Respondent to the 1st Appellant. Also, Exhibit 7
titled "Settlement of Outstanding Ground Rent and
Development Charges for the year 2000-2001.
(KSDPC Site Services Scheme) was issued to the
1st Appellant by the 1st Respondent. Further,
Exhibit 5 signed on 23/4/1997 by the 1st
Respondent's Managing Director and Secretary
18
respectively confirmed the Appellants' assertions
that after the transfer of the residue of the 2nd
Appellant's Sub-Lease to the 1st Appellant, and, his
introduction of the 1st Appellant to the 1st
Respondent, the 1st Respondent entered into
another Sub-Lease Agreement with the 1st
Appellant in 1997. Though, Exhibit 5 was not
signed by the 1st Appellant and his witness, it was
signed on behalf of the 1st Respondent. Exhibit 4
dated 10/7/1997 evidenced the transfer by the 2nd
Appellant to the 1st Appellant.
D.W.1 identified the signatures on Exhibit 5 and
confirmed the same as the signatures of the 1tt
Respondent's former Managing Director and former
Secretary respectively. D.W.1, also, confirmed that
Exhibit 7 is from their office and that it was
addressed to the 1st Appellant.
I must observe that the evidence of D.W.1
portrayed him as a person being too economical
with the truth. He denied his office knowing the 1st
Appellant and having anything to do with him and,
even, Exhibits 3 and 8. Unfortunately for him, he
could not carry on with his story telling and denials
when Exhibit 7 was shown to him. He admitted that
Exhibit 7 emanated from the 1st Respondent's
office, and that it was addressed to the same 1st
Appellant he had earlier denied ever knowing or his
office having anything to do with. D.W.1 further
confirmed that it was the figure contained in
Exhibit 7, the 1st Respondent communicated to the
1st Appellant as the ground rents and development
charges for the years 2000-2001. That was
19
evidenced by Exhibit 8 as having been paid by the
same 1st Appellant to the 1st Respondent. D.W.1
admitted that the 1st Respondent did not write a
letter of revocation to the 1st Appellant.
The question is, 'who was the purported defaulter?
Obviously, D.W.1 spoke from the two sides of his
mouth. He was lying through his teeth. His
evidence ought to have been treated with caution.
It is said that half the truth is often a whole lie,
meaning, if one does not tell the whole truth, he
can mislead people just as if he told them an
outright lie. He denied the 1st Respondent's
relationship with the 1st Appellant but he could not
keep on hanging in there. The moment of truth
came and it reared its head. The whole truth was
not told by D.W.1 who also acknowledged the
signatures of the 1st Respondent's former
Managing Director and former Secretary on Exhibit
5 titled "KSDPC Land Sub-Lease (site and Services
Schedule) Between Kaduna State Development and
Property Company Limited and Charles Ogbonna"
made in favour of the 1st Appellant. Exhibit 5, as I
stated earlier was signed on behalf of the 1st
Respondent on 23/4/1997.
It is well established that written contracts must be
executed in accordance with specific requirements
otherwise they will not be legally enforceable.
However, in some jurisdictions, in order to execute
a deed, only a signature is required. To be formally
valid, a document must be subscribed by the
grantor and witnessed by one other aged person at
least 16 as was done in Exhibit 5. Under the
20
English Law, if a document is unsigned, a party is
not bound unless he is aware that the document
contained contract terms or the other party had
taken reasonable steps to bring the terms to his
notice. Definitely, it is stated that when a contract
is not signed by either party, it might still be valid
if there is other evidence that both sides intended
for it to go into effect. That evidence might be
letters, memoranda, or even the beginning of
performance by one or both parties.
Equitable lease does not meet the requirements of
a Legal Lease but is valid and enforced by the
Courts in the interest of fairness and justice. It is
trite that if parties have signed a lease but the
same is not in the form of a deed, the Court of
equity may nonetheless decide that the lease
should be enforced if to do otherwise would offend
good conscience. Equity may even intervene if the
parties have not recorded their agreement in
writing. Equity also recognizes an act of part
performance on the part of a party.
In the instant case, the fact remains that whether
the 1st Appellant authenticated Exhibit 5 or not,
there is ample evidence of the 1st Appellant's and
1st Respondent's intention to create a Sub-Lease.
There was evidence of the former Managing
Director and former Secretary of the 1st
Respondent signing the said i.e. Deed of Sub-Lease,
the document. Exhibit 5 shows that the property in
question measuring about 820m2 is situated at No.
2 Abubakar D. Giwa Road, Barnawa Phase II,
21
Narayi High Cost (KD. CLP 381B) Kaduna and
delineated by Beacons Nos. 8839, 8841, 8840 and
8819. There was also evidence of the 1st
Respondent writing to the 1st Appellant via Exhibit
7 demanding for settlement of outstanding ground
rent and development charges for the year
2000-2001. There was indeed, the evidence of the
1st Appellant, complying with the demands of the
1st Respondent in Exhibit 7 via Exhibit 8. The 1st
Appellant went into possession of the premises and
expended money on the land pursuant to the
Sub-Lease agreement with the 1st Respondent as
shown in the 1st Appellant's testimony in the belief
that he had been allowed to remain in occupation
of the premises by the 1st Respondent after paying
all the necessary fees and ground rents in respect
of the same. As far as this Court is concerned,
Exhibits 18, dated 24/10/2002, 19 dated
17/4/2002 and 20 dated 31/10/2002 have no iota
of relevance since there was no proof before the
lower Court of any Letter of Revocation of the said
Sub-Lease held by the 1st Appellant before they
were issued. The 1st Appellant was the first in time
on the said property, therefore, the doctrine of
priority would operate against the 2nd and 3rd
Respondents. It is in a situation such as this that
the Supreme Court in the cases of Okechukwu vs.
Onura (supra) and Bosah vs. Oji (2002) 6 NWIR
Part 762 page 137 opined that the Court would
protect the occupation of the land by the person
who had been lurred or encouraged by a land
owner to expend money on the said land in the
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expectation that he would be allowed to remain in
occupation of the same. Exhibit 14 could not have
represented the true position of affairs existing
between the Appellants and the 1st Respondent as
at 2001 in the light of Exhibit 5 dated 23/4/1997
and signed by the Managing Director of the 1st
Respondent in favour of 1st Appellant. It is the law
that where a trial Court fails to properly evaluate
the evidence on record or erroneously does so or
the conclusion reached is not supported by the
evidence on record, then the appellate Court, in the
interest of justice must exercise its own powers of
reviewing those facts and drawing the appropriate
inference from the proved facts.
It is, therefore, my profound view that there was
ample evidence before the lower proving the reliefs
sought by the 1st Appellant and the same was not
properly evaluated by the trial Court. The trial
Court attached undue weight to Exhibits 14, 18, 19
and 20 tendered by the Defendants. The Appellants
sufficiently proved their case before the lower
Court and, as such, are entitled to have judgment
entered in their favour in relation to reliefs (a) to
(d) sought by the 1st Appellant. I would, therefore,
at this juncture invoke the powers conferred on this
Court by section 15 of the Court of Appeal Act,
2004 and allow this appeal in terms of reliefs (a) to
(d) as contained in the Appellants' Statement of
Claim, that is to say;
It is hereby declared:
(a) That the 1st Appellant is entitled to all that
piece of land consisting and measuring about
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820M2 lying, and situate at No 2 Abubakar
Dangiwa Road, Barnawa Phase II, Narayi High Cost
(KDLP 381B) in Kaduna South Local Government
Area and delineated by a Red Verged Line and
bounded by Ground Beacons Nos. 8839, 8841,
8840, 8819 on the survey drawing.
(b) That the 1st Plaintiff acquired a land and
Sub-Lease from the 1st Defendant i.e. Kaduna
State Property and Development Company Limited
through the 2nd Plaintiff.
(c) That the 1st Plaintiff is the beneficial owner of
plot No. 2 Abubakar Dangiwa Road, Barnawa Phase
II, Narayi High Cost.
(d) An Order of injunction is hereby granted
restraining the Respondents, their servants and
agents from trespassing into the said Plot or in any
manner whatsoever, and from interfering with the
1st Plaintiff's peaceful and quiet possession of the
same.
A close study of issue No. 4 shows it is unnecessary
since it relates to the 'Alternative Relief' sought by
the Appellants. The Law is that alternative reliefs
will only be granted where the main reliefs have
failed. In the instant matter, the main relief
succeeded, therefore, the grant of the alternative
relief do not arise. There will be costs to the
Appellants against the Respondents in the sum of
N100, 000.00 only.
DALHATU ADAMU, J.C.A.: I have read the draft
of the lead judgment of my learned brother T.N.
Orji-Abadua JCA in this appeal. I agree with the
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reasoning and the conclusion arrived at in the said
lead judgment that there is merit in the appeal.
Reliefs (a)-(d) are hereby awarded. As for the
alternative relief it can only be granted where the
main relief fails. Therefore the alternative relief
does not arise with the grant of reliefs (a) - (d). I
abide by the order of costs as made in the lead
judgment.
ITA G. MBABA, J.C.A.: I have had the privilege of
seeing and reading the lead judgment by my
learned brother, T.N. Orji-Abadua, JCA, I agree
with his reasoning and conclusion on the issues.
Accordingly, I too allow the appeal and abide by the
consequential Orders in the lead judgment.
Appearances
G. U. Akobueze Esq.
For Appellants
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