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In The Supreme Court of Nigeria

On Friday, the 20th day of July 1990

SC 187/1986

 

Before Their Lordships

 

 

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

 

 

Between

 

Chief S. A.Okubule

Mr. Percy Savage

(Trustees representing St. Paul's Breadfruit Church, Lagos)

......

Appellants

 

And

 

Mr. Thomas . A. Oyagbola

Alhaji Folorunsho Awolowo

Mr. Tajedeen Adelabu

(Executors of the Estate of A.K. Adelabu (Deceased))

.......

Respondent

 

Judgment of the Court

Delivered by

Adolphus Godwin Karibi-Whyte. J.S.C.

 

 

 On the 12th February, 1986, the Court of Appeal, Lagos Division allowed the appeal of the respondents.

 

Appellants were the plaintiffs in the High Court. On the 13th March, 1986, appellants who were the respondents in the court below filed a notice of appeal to this court against the whole of the decision. Appellants are in this appeal seeking to set aside the judgment of the court of Appeal and the restoration of the judgment of the High Court of Lagos State delivered by Omololu-Thomas, J. (as he then was) on the 16th day of July, 1982. The main issue contested in this appeal is whether the discussions and correspondence between the parties through their solicitors resulted in a new contract for a lease claimed by the appellants but denied by the respondents. The trial Judge held that it did. The court of Appeal reversed that decision.

 

The action before the High Court of Lagos State, which resulted in this appeal was between appellants, who as plaintiffs, are the trustees of St. Paul's Breadfruit Church, Lagos, who are the owners of No. 10 Murray Street, Lagos, and otherwise described as Sub-Area 3, Plot No.11, in the Lagos Central Planning Scheme (now described as 34 Balogun Street, Lagos) and defendants, who are the executors of the Will of Abudu Karimu Adelabu. Plaintiffs together with Mr. Ebun Bucknor, a third trustee (now deceased) granted a lease of 34 Balogun Street, Lagos to Abudu Karimu Adelabu for a term of 99 years commencing from the 1st day of November, 1957 at a rent during the period of N1,000.00 (One thousand naira only) per annum. This deed of lease is Exh. P1 in these proceedings. The deed of lease was registered in the Lands Registry Office with the Registrar of Titles as No.LO 3153.

 

The deed of lease contained conditions, covenants and other items of the holding. Appellants/plaintiffs claimed that subsequent to the grant of the lease, Abudu Karimu Adelabu proceeded to commit breaches of the covenants and conditions of the lease. Sequel to these breaches an action was brought against him in 1968 in the High Court of Lagos claiming inter alia, forfeiture of the lease. This is Suit No.LD 694 /68 W. Ebun Bucknor v. Alhaji A. K. Adelabu. Sowemimo J., as he then was, gave judgment (Exh. P2) against Alhaji A.K. Adelabu, subject only to a condition to remedy his breaches within a given period. Plaintiff dissatisfied, appealed to the Supreme Court against the condition granting relief from forfeiture. Defendant also dissatisfied appealed against the judgment. The appeals had not been heard and determined when first Plaintiff W. Ebun Bucknor, then later his Counsel, Chief Ayodele Williams, and finally on the 3rd March, 1977 Alhaji A.K. Adelabu died. It seems clear that neither party pursued the prosecution of their appeals.

 

We now enter a second phase in this litigation. Early in 1978 Mr. Oyagbola, one of the Executors of Alhaji A.K. Adelabu, initiated discussion for an amicable resolution out of Court of the matter. Counsel to the parties held meetings and discussions with a view to an amicable settlement out of court. Counsel acting for defendants expressed willingness in writing to enter into a new lease

 

………as agreed………..The annual rent is to be N6,500 for the remainder of the term of years left to run on the old lease starting from 1st November, 1977, and on the terms and conditions that existed on the old lease.

 

 - See Exhibit P5. Subsequent to this, counsel to the trustees wrote in Exh. P6 demanding payment of twenty years rent in advance on the agreed rent to be made on or before the execution of the lease. Counsel to the executors of the estate of Alhaji Adelabu in his reply offered in writing to pay the agreed rent of N6,500 per annum but five years rent in advance. The letter then concluded as follows –

 

We would appreciate it if you would confirm your acceptance of this terms to us in writing as soon as possible -See Exhibit P7,

 

Counsel to the trustees in their letter Exh. P8 dated 2/2/79 accepting this offer by counsel to the executors, put a time limit of fifteen days from the date of their letter for the payment of the agreed rent and the preparation of the new lease. In Exhibit P9 by counsel to the executors, dated 27th February, 1979, they accepted the revised rent and the conditions for completion, but went on to advise as follows –

 

In order to protect the executors however, we consider that you will need to file a motion in court whereby the names of the executors are substituted for that of the dead defendant in the suit. At the same time the terms of settlement to be filed and Probate Registrar put on notice.

 

We think this is the only way that the executors………and will be paying the new rent under the lease will be protected. Please take steps towards putting these items into action. Mr. Oshunbiyi hopes to see you on Friday as arranged.

 

Perhaps because of this caveat, and despite the unambiguous acceptance of the new terms and conditions, counsel to the executors had not by the 13th March, 1978, returned the draft lease agreement or paid the agreed rent of N32,500 in discharge of the obligations. Rather in a letter in reply to counsel to the trustees complaint on the failure, they said they were still studying the lease agreement and will communicate soon. The result of that study is a letter dated 23/4/79 Exhibit P12 rejecting the entire agreement and that no agreement was reached on previous discussions. They referred to the judgment of Sowemimo, J. (as he then was) and argued that the executors were still bound by the terms of the original lease which remained valid. The letter claimed that Alhaji A.K. Adelabu was granted relief from forfeiture if the Mortgage Deed executed in favour of the Mutual Aids Society Ltd. was discharged on a release dated 26th August, 1969.

 

The executors then offered to pay the rent due and forwarded a cheque for N2,000 being payment for rent due for 2 years.

 

The trustees thereupon brought an action claiming as follows –

 

1.      The defendants have surrendered and yielded up their estate and interest in the plaintiff's landed property and premises situated and known as No.10 Murray Street, Lagos, now redesignated as 34 Balogun Street, Lagos, otherwise known and described as Sub-Area 3 Plot No.11 in the Lagos Central Planning Scheme to the plaintiffs.

 

2.      The defendants are trespassers on the aforesaid property.

 

Whereof the plaintiffs claim N50,000 damages as per the writ of summons.

 

After due trial on pleadings filed and exchanged by the parties, the plaintiff gave evidence, but the defendants offering no evidence relied on the case of the plaintiffs, the learned trial Judge entered judgment for the plaintiffs on all the claims. He awarded N35,000, as the amount 

 

...which roughly would have been amount of rent the plaintiffs would have been entitled to have the defendants fulfilled their side of the bargain.

 

In coming to his decision the learned trial Judge considered the following three issues as arising from the submissions before him.

 

(a)    Was there a contract for a new lease between the plaintiffs and the defendants and what is the effect of such contract in relation to the original lease.

 

(b)    Was there a surrender whether express, by operation of law or by estoppel; whether there was a consideration for the change in the lease, whether the plaintiffs had altered their position and whether estoppel need be pleaded.

 

(c)    Whether Mr. Osunbiyi had authority to bind the defendants.

 

In respect of the first issue, the learned trial Judge held that on a reading of Exhibits P3, P6, P7 and P8 it was clear that the parties agreed on the terms of a new lease 

 

on the terms and conditions that existed on the old lease. 

 

The only variation was that the rent payable for the remainder of the term of years starting from 1st November, 1977 was to be N 6,5OO per annum. The amount payable in advance was also agreed. It was accordingly held that the exhibits disclose a valid contract between the parties as at 2nd February,1979 which was confirmed by the defendants again as at 27th February, 1979 in Exhibits P8 and P9.

 

In respect of the remaining two issues (b) and (c), the learned trial Judge held that the effect of the contract of the new lease is that as of the date of the agreement, as evidenced by Exh. P8, the old terms of the lease become merged in the new lease which was yet to be formalised in the draft of lease later in the possession of the defendant.

 

With respect to the fulfilment of the condition for the relief from forfeiture learned trial Judge held that although Exh.P4 indicated there a discharge of the mortgage to Mutual Aids Society, there was no evidence before him linking the entries in Exh. P4 to the averment of the defendants in their statement of defence. No oral evidence was offered in support of the defendants' case, there was no evidence that the first three breaches of the conditions for relief against forfeiture in Suit No.LD/694/68 ever fulfilled. He therefore found that the conditions for the relief against forfeiture were not fulfilled. Accordingly, forfeiture and immediate possession was deemed to have been granted the plaintiffs.

 

By entering into the new lease agreement, plaintiffs were deemed to waived their right to immediate possession on failure of defendants to the conditions for relief against forfeiture. This he regarded as alteration of their position to their detriment.

 

Finally, it was held that this case concerns the operation of equitable principle of surrender by operation of law or by estoppel. It is also a case of estoppel by representation or conduct. The defendants appealed to the Court of Appeal contending forcefully that no new contract arose from the various discussions as between the parties. It was also contended that the conditions for relief against forfeiture having been met, the old lease agreement remained the contract between the parties. It was submitted that the issue of surrender of the lease did not arise for determination on the pleadings. Finally it disputed that appellants were trespassers within the meaning of the Recovery of Premises Law and the Recovery of Residential Premises law.

 

On the issue whether a new contract arose between the parties from the various exchanges, discussions, meetings between their both counsel, the Court of Appeal held that the offer in Exh. P7 dated 27/4/78 of five years rent in advance is a rejection of Exh.P6 which asked for 20 years. Again Exh. P8 which appeared to have accepted the offer of five years rent, but introduced the condition that the payment must be made before the new lease was prepared and giving a time limit of 15 days to complete. This new term, it is argued is the introduction of new conditions and terms. These new terms amount to a counter offer which lapsed after 15 days. It was held therefore that Exhibit P9 coming after 15 days is a complete nullity, coming after the 15 days limit.

 

The Court of Appeal also observed that plaintiffs introduced new conditions and terms before the signing of the new lease which were not complied with. Similarly not complied with were the requests by the defendants for the substitution of the new executors to safeguard their interest before they could enter into the new lease.

 

It was also observed that the date of the commencement of the new lease and that the term of the new lease would incorporate those of the old lease in order to effect a surrender of the 1958 lease were not stipulated.

 

The Court of Appeal held that the learned trial Judge was in error to hold that there was a surrender of the old lease on the pleadings. It was held that was not the case of the plaintiffs. Their case was that parties have reached agreement including surrender of the old lease embodied in a draft lease which defendants failed to execute. It is not a case of surrender by operation of law or on the equitable principles of conduct or estoppel It was held that once an enforceable contract cannot be inferred, the basis for the surrender of the old lease is absent.

 

Referring to the issue of the conditions for relief against forfeiture, the Court of Appeal held that this was not an issue in the case, the plaintiff having not made it part of their case. The learned trial Judge ought not to have made any adverse finding against the defendants. It was observed that there had been a forfeiture for non-fulfillment of the conditions for possession and possession had reverted as far back as 1969, the question of a surrender of the lease already forfeited would have been unnecessary.

 

The Court of Appeal did not deal with the applicability of the Recovery of Premises Law and the Rent Control of Residential Premises Law.

 

The appeal was allowed. Judgment of the High Court was set aside. The claims of the plaintiff in the High Court were dismissed in their entirety, with N 500 as costs in each court.

 

Plaintiff has now appealed to this court. There are five grounds of appeal. All the five grounds of appeal are challenging the Court of Appeal for

 

(a)    refusing to hold that there was a new concluded agreement between the parties on the discussions and exchange of letters between their counsel;

 

(b)    that there was a surrender by operation of law of the old lease; and

 

(c)     that the trial Judge was wrong in law for evaluating the non-fulfillment of the conditions for relief against forfeiture.

 

I do not consider it necessary to set out the grounds of appeal, as the issues for determination adequately cover them.

 

Counsel to both parties filed their briefs of argument and relied on their briefs in argument before us. Counsel are ad idem in the formulation of issues for determination, with minor and inconsequential variations.

 

Learned Senior Advocate to the appellant's formulation is as follows –

 

………the main issue raised by this appeal is whether or not there was a valid agreement for a new lease concluded in 1979. The next issue which arises is whether the 1958 lease was surrendered, and if so, was it surrendered by operation of law and the conduct of the defendant. Arising out of this is whether issue was joined on the question of whether Abudu Adelabu had complied with the conditions for relief from forfeiture, and if it had been, what was the effect of his non-compliance on the plaintiffs' claim that the lease had been surrendered.

 

Learned Senior Advocate to the respondent had submitted that the sole issue for determination in this case is,

 

was there a contract for a fresh lease negotiated and reached between the parties on the 21st March, 1978.

 

In his submission it was not permissible to look at any correspondence after the 21st March, 1978 for the formation of a contract.

 

It is of immense importance to appreciate that both parties rely on the same documents, but arrive at opposed conclusions on their effect. It is also relevant to consider that respondent having not given oral evidence relied entirely on the case of the appellant.

 

The following facts are undisputed and are agreed to by the parties.

 

First, there is an existing lease agreement between the parties for 99 years at a rent of N 1,000 per annum dated 28th February, 1958.

 

Secondly, Judgment in Suit No. LD 694/68 W. Ebun Bucknor v. Aihaji A.K. Adelabu, gave judgment in favour of the plaintiff and ordered forfeiture and possession. Relief was granted against forfeiture, if within six months of the judgment i.e. before 2/11/69, defendant discharged the mortgage deed executed in favour of the Mutual Aid Society. Defendant should also comply with the request to

 

(i)     disclose the type of building erected on the premises

 

(ii)    disclose the names of the present occupants of the premises and the terms of their holdings

 

(iii)   produce for inspection the receipts for the current insurance premium and for rates, taxes or any other charges. assessment relating to the said premises.

 

Thirdly, there are letters between counsel to the parties referring to conclusions of discussions relating to negotiations for a new agreement in respect of the lease agreement of 1958 -Exh.P3, P6, P7, P8, P9, Pl0, PI2A. Although counsel to the respondents raised objection to some of these letters being admitted in evidence, the objection was rightly overruled by the learned trial Judge.

 

The construction of Exhibits P3, P6, P7, P8, P9, Pl0, PI2A became relevant in determining whether a new lease agreement resulted, from the negotiations and at what point of the negotiation can it be concluded that agreement was reached.

 

In Exhibit P3 the defendants confirmed their willingness to enter into a new lease agreement. It seems to me that both parties assumed the existence of the 1958 agreement despite the fact of the relief against forfeiture. It is also clear that the annual rent of N 6,500 was already agreed to run for the remainder of the term of years of the old lease, starting from 1st November, 1977. The conditions and terms of the old lease were to apply. Exhibit P6 referred to Exhibit 3 and asked for payment of rent of 20 years in advance to be made before the execution of the lease. In Exhibit P7 respondents offer to pay 5 years rent in advance at the rate of N6,500 per annum. Exhibit 8 dated 2nd February, 1978 is an acceptance of this offer by the appellant who called for the cheque for N32,500 in payment of five years rent in advance as long overdue and as a matter of priority. Appellant warned that the fresh lease could not be prepared until payment was made. They requested completion within fifteen days on the 27th February, 1979. The defendants/ respondents wrote in Exhibit 9 and stated that –

 

In connection with the above matter, this is to state that the executors agreed in principle with the settlement of the court case on the property and the revised new rent as discussed and agreed with one Mr. Oshunbiyi.(italics mine)

 

The same letter stated in paragraph 2,

 

In order to protect the executors however, we consider that you will need to file a motion in court whereby the names of the executors are substituted for that of the dead defendant in the suit. At the same time the terms of settlement to be filed and Probate Registrar put on notice.

 

    We think this is the only way that the executors who will be paying the new rent under the new lease will be protected. Please take steps towards putting these items into action. Mr. Oshunbiyi hopes to see you on Friday as arranged.

 

Although this letter was written on 27th February, 1979, it is curious to serve that in their letter dated 10th April, 1979 in reply to Exhibit P10 by the appellant dated 13th March, 1979 they stated that they were still studying the draft lease. Their letter dated 23rd April, 1979 Exhibit Pl2A to the previous discussions on the matter, and to Suit No.LD/694/68 original lease of 28/2/58 stating that they were still bound by it. The letter referred to the relief against forfeiture and claimed to have satisfied the conditions. Respondents tendered a cheque for N 2,000 being payment for two years rent due as from Nov., 1977.1 do not think that the submission of Mr. G.O.K. Ajayi, S.A.N., that as at March 1978 the agreement for a new lease between the parties had been concluded is correct. From what will be said anon it is obvious that the terms to be incorporated were not all set out in Exhibit P3 For instance, although the unexpired residue of the original 99 year term was to commence as from 1st November, 1977; the rent was to be at N 6,500 per annum, and the other terms and conditions were to be as in the original 1958 lease, but the stipulation about the completion date and the question of payment were not in Exhibit P3.

 

Learned counsel to the respondent has submitted that Exhibit P6 was not an acceptance of the offer in Exhibit P3; being a counter-offer was a rejection of that offer. Counsel relied on Brogden v. Metropolitan Railway (1877) 2 App. Cas. H.L., June v. Daniel (1894) 2 Ch. 332; Chitty on Contracts Vol.1 p.53, para. 52; pp.53-54, paras. 54 & 55. Halsbury's Laws of England Vol.9 Title Contract, paras.227 and 245 Balonwa v. Odunukwe 1971 ALR.388; Rejendram Madras Manufacturing Co. Ltd. (Suit 1D118&74); Oliver Johnson v. Christian Council of Nigeria (LD/599172) all reported in Casebook on the Nigerian Law of Contract (I.E. Sagay). It is obvious that the suggestion of 20 years rent in advance in Exhibit P6 was by plaintiffs. This is clear from Exhibit P7 where plaintiff accepted payment of 5 years rent in advance suggested by the defendants. This is also a written confirmation of what had been agreed between the solicitors. Counsel to the respondent contends that Exhibit P7 is not a written confirmation of what had already been agreed by the parties. His reason is that Exhibit P8 dated February 2, 1979 raised fresh terms giving conditions for preparing the lease agreement, and Exhibit P9 requiring certain formalities to protect the executors.

 

I think learned counsel to the respondents' submission founded on the consideration that the introduction of new conditions to the contract between the parties, i.e. the unilateral conditions for drawing up the lease agreement, is a rejection of the offer made by the respondents is right. Ordinarily as soon as all the terms of the new lease were agreed, a new contract had come into existence. This final agreement could have been reached when the parties agreed on 5 years rent in advance in Exhibit P7.

 

It seems to me too clear for argument that Exhibit P8 was referring to a concluded agreement. But, both the fact of payment and the time limit of 15 days, unilaterally imposed by the appellants were at no time considered a term of the agreement and were not part of the agreement for the lease. The period of 15 days requested by the appellant for completion of the agreement was not a term of the agreement. This is exemplified by the request in Exhibit P8 that

 

The agreed rent is long over due and you must pay it within 15 days so that we can complete, and if you do not I will consider you in breach of our agreement to lease.

 

It seems clear to me that this suggests that they are terms introduced by the appellant after what was regarded as an agreement had been reached. There is nothing in any of the Exhibits from where it could be inferred that either of the rent or completion within 15 days is a term of the agreement. They therefore constitute a counter-offer which operates as a rejection and an acceptance of the offer - See Hyde v. Wrench (1840)3 Beav. 334 Thus a new agreement has not arisen from the negotiations.

 

I therefore do not agree with counsel for the appellants that the Court of Appeal was in error when it said that the Respondents, i.e. appellants before us, through Exhibit P8 dated 2nd February. 1978 

 

purported to accept the offer of five years rent in advance but introduced new terms i.e. that payment must be made before the new lease is prepared and that there must be time limit of 15 days to complete.

 

In their criticism of the judgment of the learned trial Judge, the Court of Appeal observed that plaintiff did not put in evidence the draft lease which counsel to the defendant failed to return or give counsel notice to produce, or on his failure to tender the counterparts in his possession.

 

It is pertinent to refer to the observation by the Court of Appeal that it was defendants pleading in paragraphs 15,16,17,18,19 of the statement of defence that plaintiff introduced new terms in the draft agreement which were not originally agreed upon.

 

It is well settled that where a party has alleged the existence of a fact, in this case introduction of new terms, the onus is on him to show the existence of such facts. Here the onus that plaintiffs in fact made new proposals in the draft is on the defendant. He it is who must establish it. I think this was clearly satisfied on the Exhibits before the court. It was therefore not necessary for defendant to lead any evidence.

 

I think Chief G.O.K. Ajayi. S.A.N., cannot be right in his submission that the Court of Appeal failed to recognise that the agreement for the lease had been concluded since 1978 and that all subsequent correspondence were with the object of enforcing that agreement.

 

I have no doubt therefore that there was not a new contract between the parties. Appellant having by his counter offer rejected respondent's offer to pay the agreed rent. The Court of Appeal was therefore right to hold that there was no such contract.

 

I now turn to the issue about the effect of the order for forfeiture. The Court of Appeal held that since the pleadings of the appellants did not raise the issue whether the respondent satisfied the conditions laid down in the judgment enabling relief against forfeiture, no issue was joined as to the non-compliance vel non with the conditions.

 

The Court of Appeal agreed that Dr. Braithwaite, counsel to the respondents in the court below in his submission referred the court to paragraphs of the statement of claim where in his opinion the issue was raised. But the court observed that the issue ought to have been more explicitly expressed in the pleadings. It was observed that there was no specific averment that the conditions prescribed against relief from forfeiture were not fulfilled.

 

It is pertinent to observe at this juncture that the issue of compliance or not with the conditions for relief against forfeiture was raised by the respondent. It was raised undoubtedly in reaction to appellants' claim that there was a new lease agreement. It is well settled that having so asserted the onus of proof rests on respondents. It is not for the appellants to prove that respondents have complied or not complied with the conditions for relief against forfeiture.

 

The Court of Appeal had relied on the issue of forfeiture to hold that creation of a new lease agreement was not possible in law. It was stated as follows –

 

.......If there had been a forfeiture for non-fulfilment of conditions and possession had reverted to respondents as far back as November, 1969 according to the findings of the Judge, there can hardly be any point in talking about surrender of the lease already forfeited by any negotiation in 1978/79, for by that time the 1958 lease had gone. It is absurd to talk about surrender of something that is no longer in existence.

 

I agree with this reasoning.

 

The contention of the Court of Appeal is right. The situation here would seem to me different. Both parties were negotiating an amicable settlement to resolve their litigation out of court. At the time of these negotiations there were pending appeals against relief from forfeiture on the part of the appellants. The settlement if it was reached would result in either party abandoning its strict legal rights acquired under the judgment subject matter of the appeals. For the appellant who could exercise its right to forfeiture and re-entry, it meant abandoning the exercise of such right. Unfortunately, because of the terms introduced by the plaintiff into the offer made by the defendant, no concluded agreement was reached, and parties returned to the status quo ante; the continuance of the old lease agreement, subject to forfeiture and the fulfilment of relief from forfeiture.

 

The 1958 lease agreement was not forfeited. As I have already pointed out in this judgment, since the 1958 lease was not forfeited, and there was no new lease agreement, it continued in force. Learned counsel to the respondents has again raised the question of the application of the Rent Control and Recovery of Residential Premises Edict 1976 of Lagos State.

 

The Court of Appeal observed that respondent did not canvass the issue at all in the High Court, and did not urge the matter seriously in that court. But learned senior counsel has in respondent's brief contended that at no stage was the issue abandoned.

 

It was submitted that in the circumstance, appellants having abandoned their right for forfeiture and on the view now held, respondents could not be trespassers. I agree with the submission that since the 1958 lease was still in force, having not been forfeited, respondents are still tenants of the appellants. They are not trespassers.

 

A person whose entry or continuance upon premises is with the leave and licence of the owner who is the landlord, cannot become a trespasser. The relationship of landlord and tenant having been created exists between them.

 

The conclusions which follow from the foregoing are this

 

(i)     There did not come into existence from the negotiation between the parties, a valid and subsisting agreement to lease the property on the same terms and conditions as the original lease and as to the amount payable as rent per annum, and the number of years.

 

(ii)    There was no evidence before the court that the conditions for relief against forfeiture were satisfied.

 

(iii)   The respondents are tenants of the appellants and are therefore not trespassers.

 

For the reasons I have given above, the appeal of appellants against the judgment of the court below is hereby dismissed. The judgment of the High Court granting a declaration that respondents are trespassers is set aside.

 

Respondents are entitled to the costs of this appeal assessed at N 500

 

 

Judgment delivered by

Uwais,  J.S.C.

 

I have had the opportunity of reading in draft the judgment read by my learned brother, Karibi-Whyte, J.S.C. I entirely agree with the reasons and conclusion therein. I do not deem it necessary to add anything. Accordingly, the appeal fails and it is hereby dismissed with N500.00 costs to the respondents. The decision of the Court of Appeal, which set aside the decision of the trial court, is affirmed.

 

 

Judgment delivered by

Kawu, J.S.C.

 

I have had the advantage of a preview in draft of the lead judgment just delivered by my learned brother, Karibi-Whyte, J.S.C., and for the reasons stated in the said judgment, I entirely agree that the appeal should be dismissed. I will therefore dismiss the appeal and affirm the decision of the lower court with N500.00 costs awarded to the respondents.

 

 

Judgment delivered by

Agbaje, J.S.C.

 

The facts of this case have been succinctly set out in the lead judgment of my learned brother Karibi-Whyte, J.S.C., which I have had the privilege of reading in draft. I need not go over them here. Suffice it to say that the primary facts are not in dispute. For counsel for the defendants at the trial court, Mr. Oyagbola, called no evidence for the defendants and rested their case on the evidence adduced by the plaintiffs.

 

According to the plaintiffs/appellants, as per the brief of argument filed on their behalf by their counsel Chief G.O. K. Ajayi, S.A.N..the issues arising for determination in this appeal are:-

 

The plaintiff submits that the main issue raised by this appeal is whether or not there was a valid agreement for a new lease concluded in 1979. The next issue which arises is whether the 1958 lease was surrendered, and if so, was it surrendered by operation of law and the conduct of the defendant.

 

Arising out of this is whether issue was joined on the question of whether Abudu Adelabu had complied with the conditions for relief from forfeiture, and if it had been, what was the effect of his non-compliance on the plaintiffs' claim that the lease had been surrendered.

 

For the defendants, the respondents, it is contended by their counsel, Mr. H.A. Lardner, S.A.N., in the latter's brief of argument as regards the issues arising for determination here:

 

The sole issue for determination in the case was:

 

 was there a contract for a fresh lease negotiated and reached between the parties on the 21st March 1978?

 

This is the main issue said by the plaintiffs/appellants to arise for determination in this appeal. I will address myself to this issue and then decide whether or not it is the sole issue arising for determination.

 

I have said above that the primary facts are not in dispute. They consist in the main of documentary evidence. It is the plaintiffs' case that the contract sued upon by them has been reduced to the form of a series of documents. In the circumstances it follows in view of section 131(1) of the Evidence Act that no evidence may be given of the terms of the contract except these series of documents; nor may the contents of these documents be contradicted, altered, added to or varied by oral evidence.

 

The series of documents are Exhibits P3, P5, P6, P7, P8, P9, Pl0 and exhibit P11. I have left out Exhibits 12A for in it the defendants were saying through their solicitors Messrs. T.A. Oyagbola & Co., that they were no longer interested in the subject matter of Exhibits 3, 5-11 and were sticking to the old lease between them and the plaintiffs evidenced by Exhibit P1 in these proceedings.

 

The question for determination therefore on the point at issue is whether, as contended for by the plaintiffs, Exhs. 3, 5-11, show that a concluded agreement had been entered into between the plaintiffs and the defendants for the surrender of the old lease Exh. P1 and for the grant of a new lease in respect of the property to which Exh. P1 relates. The defendants contend for the contrary and so did the Court of Appeal find having reversed the trial court on the point.

 

It will be necessary at this stage to set out the relevant passages of the documents in evidence in this case starting with Exh. P3 a letter of 3.2.78 from the defendants' solicitor to the plaintiffs' solicitors –

 

Re: 34 Balogun Street, Lagos Leasehold between the Trustees of St. Paul's Breadfruit Church, Lagos AND Alhaji A.K. Adelabu (Deceased)

 

I refer to our several meetings on the above matter and our recent discussion of a new lease agreement between the Trustees of St. Paul's Breadfruit Church and the Executors of the late Alhaji A.K. Adelabu and hereby confirm our willingness to enter into this said new agreement.

 

As agreed between us the annual rent is to be N6,500.00 for the remainder of the term of years left to run on the old lease starting from 1st November, 1977 and on the terms and conditions that existed on the old lease. Please confirm these terms as agreed accordingly. Your early reply would be appreciated.

 

Yours faithfully,

(Sgd.) S.O. Oshunbiyi, Esq.,

T.A. OYAGBOLA & Co.

 

And then I go to Exh. P6, a letter of 21/3/78 from the plaintiffs' solicitor to the defendants' solicitor in reply to Exh. P3:-

 

Dear Sir,

Re: New Lease on 10, Murray Street, Lagos

With reference to your letter of 3rd February, I am sorry not to have been able to reply earlier. This main reason was that I had not been able to bring the subject to the full Council of St. Paul's Church Breadfruit Lagos, the Landlord.

 

However, I am happy to inform you that the Landlord has agreed to grant the executors of Late Alhaji Adelabu a new lease of the above property for the residue unexpired of old lease at the agreed rent of N6,500 per annum (Six thousand, five hundred Naira). They have asked me to request you to pay twenty years rent in advance and which must be paid on or before the execution of the lease. Perhaps, you may wish to meet me for further discussion in which case I will be available as from 12th ApriI,1978.

 

Yours sincerely,

(Sgd.) O.A. BRAITHWAITE,

 

It will be seen in Exh. P6 the plaintiffs have asked for 20 years rent in advance.

 

I then go to exhibit P.7 a letter of 27 April, 1978 from the defendants' solicitors to the plaintiffs' solicitors. I need not reproduce it. Suffice it to say that it makes a counter-offer of 5 years' rent in advance and asks for the acceptance of that offer by the plaintiffs in writing.

 

I will next proceed to the letter of 2nd February, 1979, Exh. P8 from the plaintiffs to the defendants I reproduce below:-

 

Dear Sir,

Re:New Lease on 10 Murray Street, Lagos

-Payment of rent

 

Please refer to previous correspondence on the above subject. Please forward to us, as a matter of priority your client's cheque for the sum of N32,500.00 (Thirty-two thousand, five hundred Naira) in payment of the five years' rent in advance (long due) in respect of the proposed lease of the above property.

 

The cheque should be made out in the name of St. Paul's Church Breadfruit, Lagos- the Owner of the property. We must mention that until you make the payment, we cannot prepare the fresh lease. And in this regard, we must now place a time-limit on completion which is hereby fixed at FIFTEEN DAYS from the date hereof.

 

It is to be observed first that the plaintiffs by Exh. P8 do not expressly accept the counter offer of 5 years' rent in advance. Instead they demand the payment of the 5 years' rent in advance from the defendants.

 

Then Exh. 8 raises the following new point, namely, a time-limit for the completion of the contract in question was fixed at 15 days from the date of, the letter i.e. 2/2/79. In other words the whole contract was now made subject to its being concluded within 15 days from 2/2/79, that is on or before 17/2/79.

 

The contract was not completed on or before 17/2/79. After the latter date, the defendants on 27/2/79 wrote Exh. 9 to the plaintiffs. Exh. 9 thus:-

 

Dear Sir,

 

Re: New Lease on 10 Murray Street, Lagos (now 34 Balogun Street, Lagos)

 

In connection with the above matter this is to state that executors agreed in principle with the settlement of the court case on the property and the revised new rent as discussed and agreed with our Mr. Oshunbiyi.

 

In order to protect the executors however we consider that you will need to file a motion in court whereby the names of the Executors are substituted for that of the dead defendant in the suit. At the same time the terms of Settlement to be filed and the Probate Registrar put on Notice.

 

We think this is the only wav that the Executors who will be paying the new rent under the new lease will be protected.

 

Please take steps toward putting these items into action Mr. Oshonbiyi hopes to see you on Friday as arranged.

 

It will be seen that in Exh.9 the defendants drew the attention of the plaintiffs to what they regarded as the impediments standing in their way in the matter of the new lease being negotiated. And then they specifically, asked the plaintiffs to clear the impediments in order to pave way for a concluded contract.

 

The plaintiffs did not clear the impediments referred to by the defendants but replied to Exh. 9 by the letter of 13/3/79 expressing disappointment at the failure of the defendants to return the draft lease, most presumably executed, and at the failure of the defendant to pay the 5 years' rent.

 

The contents of Exh.11 are of no importance in this case and finally by Exh. P.12 the defendants called off the whole negotiations a conduct which gave rise to this case.

 

Having stated the facts I can now state the relevant law applicable in my view.

 

I will only concern myself with the following legal propositions.

 

First: According to the general principles of contract law an agreement will not be binding on the parties to it until their minds are at one both upon matters which are cardinal to the species of agreement in question and also upon matters that are part of the particular bargain. See Rossiter v. Miler 1878 3 App. Cases 1124 at 1139.

 

Second: Chitty on Contract General Principles 23rd Edition says:-

(a)    at pages 25-26 paragraphs 48-50 on Acceptance in general:-

 

48.    In general. Two main rules govern the acceptance of an offer. The first is that there must be positive evidence from which the court may infer an acceptance: this may consist in words, in writing or in conduct; it may not consist simply in intention, for a mere mental acceptance is not enough. The second rule is that the acceptance must be communicated to the offeror. This is, however, subject to certain exceptions, the most important of which concerns communications sent through the post: here the general role is that the acceptance is completed as soon as it is posted.

 

49.    Acceptance inferred from conduct. Once it is clear that a definite offer has been made by one party it is necessary to show that that offer has been accepted by the other party. As has been indicated above, this acceptance may be demonstrated by the conduct of the parties as well as by their words or by documents that have passed between them. Thus an offer to buy goods can be accepted by supplying them; and an offer to sell goods, made by sending them to the offeree, can be accepted by using them.

 

But conduct will only amount to acceptance if it is clear that the offeree did the act with the intention of accepting the offer. Thus in one case it was held that an offer by an insurance company to insure a car had not been accepted when the offeree took the car out on the road. as there was evidence that he intended to insure with another company.

 

50.    Correspondence between acceptance and offer. The acceptance must correspond with the terms of the offer. If it purports to qualify the offer, that is, if it is in different terms, it may amount to a counter-offer and not to an acceptance. Thus an offer to sell 1,200 tons of iron is not accepted by a reply asking for 800 tons; nor, generally, can an offer be accepted by a reply which introduces an entirely new and material term.

 

And third: At page 26 paragraph 51 the same work, on the effect of counteroffer says:-

 

A counter-offer by the offeree has a dual significance: it amounts to a rejection of the offer; it also destroys that offer so that it cannot subsequently be accepted.

 

It appears clear to me that a matter which is part of the bargain between the parties to this appeal for a new lease in respect of the property in question is the amount of the rent that will be paid in advance by the defendants to the plaintiff. By Exh. 6 the plaintiffs in reply to Exh. 13 from the defendant demanded 20 years' rent in advance. To this the defendant made a counter-offer, by Exh. P7, of 5 years rent in advance. The effect of this counter-offer, on the authorities, is not only a rejection of the offer but also its destruction.

 

The counter-offer was not expressly accepted by the plaintiffs. However, by Exh.P8, of 2/2/79,about 10 months after Exh. 7 was written, the plaintiffs wrote, without specifically referring to Exh. P7, to demand from the defendants. the payment of the 5 years' rent in advance mentioned in Exh. P7. The plaintiffs did not say in Exh. P8 that they agreed to this particular terms of the bargain.

 

If the defendants had paid the said rent and the plaintiffs had accepted it, it appears to me on the authorities that the plaintiffs would be said by their conduct to have accepted the term of the bargain in question.

 

But the defendants did not pay the 5 years' rent in advance they offered in Exh. M. Another complication is that by Exh. 8 the plaintiffs introduced a dead-line for the payment of the advance rent, breach of which, according to the plaintiffs,would bring the whole negotiations to naught. Because of the foregoing the conclusion l reach is that the plaintiffs have by Exh. 8 only evinced an intention to accept the offer of 5 years' advance rent by the defendants. Even that too was subject to a condition, namely, completion of the contract - which must necessarily include payment of the 5 years' advance rent - within 15 days of the date on Exh. P8.

 

Such an intention to accept an offer or such a conditional acceptance of an offer will not in law in my view constitute an acceptance of the offer in question.

 

The conclusion I reach therefore is that there was no concluded contract between the plaintiffs and the defendants for the grant of a new lease of the property in question seeing that there was no agreement between them on a matter which was part of the particular bargain between them.

 

So I resolve issue 1 in favour of the defendants.

 

Having held that there was no contract between the plaintiffs and the defendants for a new lease of the property to which Exh. P1 relates it follows accepting my judgment that Exh. P1 will continue to govern the rights and obligations of the parties to this case in respect of the said property, in the light of the decision in Exh. P2, the judgment of a court of competent jurisdiction on Exh. P1.

 

It follows too in my judgment that there is no issue in this case as to the surrender of the lease Exh. P1 by operation of law or by the conduct of the defendants or at all.

 

In the consideration of the point raised by counsel for the appellant's Chief G.O.K. Ajayi, S. A N., as to whether any issue was joined in this case on the question of whether Abudu Adelabu the lessee in Exh. P1 complied with the conditions for relief from forfeiture stipulated in the judgment Exh P2, I would first of all like to reproduce the passages in Exh. P2 where the conditional relief from forfeiture was granted. The passage is as follows:-

 

Considering all these circumstances, I think this is a case in which I should grant forfeiture and possession on conditions. I am prepared to grant a relief against forfeiture and possession provided the defendant will. within 6 months from date, discharge the mortgage Deed executed in favour of the Mutual Aids Society Limited, Exhibit B, so that the only outstanding indebtedness would be that of the Barclays Bank D.C.O. Should he fail to comply with this condition on or before the 2nd of November,1969, the Lease would be deemed to be forfeited and the plaintiffs would be entitled to immediate possession. He should also within the same period comply with the first three requests in Exhibit G in default of any of which forfeiture and immediate possession will be deemed to be granted.

 

The plaintiffs' claims against the defendants namely:-

 

a declaration that:-

 

1.      The defendants have surrendered and yielded up their estate and interest in the plaintiffs' landed property and premises situate at and known as No. 10 Murray Street, Lagos (now redesigned as 34, Balogun Street, Lagos) otherwise known and described as Sub Area 3 Plot No. 11 in the Lagos Central Planning Scheme Lagos to the plaintiffs.

 

2.     The defendants are trespassers on the aforesaid property whereof the plaintiffs claim N50,000 damages.

 

are not predicated on the above passage in Exh. P2. An examination of the plaintiffs statement of claim shows that the only references to the claims and the judgment thereon in Exh.P2 and their sequel and/or aftermath will be found in the following paragraphs of the Statement of claim:-

 

5.     Subsequent to the granting of the leasehold, the Lessee, A.K. Adelabu(deceased) proceeded to commit breaches of his convenants and conditions of the Lease to the extent that the Lessor in 1968 issued a writ in the Lagos High Court claiming inter alia, against A.K. Adelabu (deceased) forfeiture of the Lease in Suit LD694/68 W.Ebun Bucknor v. Alhaji A.K. Adelabu.

 

6.     In the ensuing judgment, Sowemimo,J.,as he then was gave judgment for forfeiture of the Lease. The Judge however annexed conditions for the forfeiture in his judgment by allowing the defendants to remedy his breaches within a given period.

 

7.     The plaintiff (Lessor) being dissatisfied with that part of the judgment (granting relief ) appealed the part to the Federal Supreme Court.

 

8.     The plaintiffs aver that the appeals have filed years ago, none of the appeal has been argued in the Federal Supreme Court due to the factors beyond the deaths of the first, the plaintiff in that action, Mr. W. Ebun Bucknor, then that of the leading counsel for the plaintiff, Chief Ayodele Williams(deceased) and then that of the defendant lessee Alhaji Abudu Karimu Adelabu(deceased).

 

9.     However, the disagreements remained until early in 1978 when the defendants through their solicitors, T. Ade Oyagbola & Co., initiated moves for an amicable resolution of all disagreements "once and for all"."

 

The plaintiffs then went to plead that a contract was subsequently entered into between the plaintiffs and the defendants for the grant of a new lease by the former to the latter in respect of the property to which Exh.P1 relates, the subject matter of Exh.P2. It is the breach by the defendants according to the plaintiffs, of this contract which has given rise to this action.

 

It appears clear to me therefore that the plaintiffs’ claim against the defendants were not predicated, as I have said earlier on, on the conditional relief from forfeiture granted in Exh. P2. So the plaintiffs have not raised any issues, in my judgment, as to whether or not, Exh.P1 has been forfeited.

 

It is true that the defendants by paragraphs 20 and 21 of their statement of defence pleaded that the conditions for relief from forfeiture granted by Exh. P2 have been complied with.

 

It is trite law that the claim before the court is determined by reference to the claim brought by the plaintiffs when there is no counter-claim as it is the case here. It is also the law that a court will not grant a relief which has not been sought or asked for by a plaintiff. See Kalio v. Kalio 1975 2 S.C. 15. Nor will it award more than the plaintiff is claiming see Ekpenyong v.Nyong 1975 5 S.C. 71.

 

So in my judgment since the plaintiffs claim raise no question as to the conditional relief from forfeiture granted by Exh. P2 any arguments touching that point does not arise for determination in this case. Although the defendants raised this point it is in my judgment, absolutely irrelevant to the plaintiffs' claims in this case. Both the trial court and the Court of Appeal ought to have ignored this issue raised by the defendants and concentrated on the only issue arising for determination in this case going by the plaintiffs claims and their statement of claim, namely whether or not the parties to this action have entered into a valid contract for a new lease in respect of the property in question.

 

In my judgment the trial court was wrong in holding that there was a concluded agreement between the appellants and the respondents for a new lease of the property to which the Deed of Lease. Exh. P1. relates. So in my judgment the Court of Appeal was right in over-turning that judgment.

 

For the above reasons and the fuller reasons given in the lead judgment of my learned brother Karibi-Whyte, J.S.C., I too would dismiss the appellants appeal with costs as assessed in the lead judgment.

 

 

Judgment delivered by

Wali. J.S.C.

 

I have had the privilege of a preview of the lead judgment of my learned brother Karibi-Whyte. J.S.C. which has just been delivered. My Lord has exhaustively considered all the issues raised in this appeal and I entirely agree with his reasoning and conditions.

 

For these same reasons I also will dismiss the appeal of the appellants against the judgment of the court below set aside the judgment of the High Court declaring the respondents as trespassers and award N 500.00 costs to the respondents.

 

 

 

Counsel

 

Chief G.O.K. Ajayi. S.A.N.

With E.E, Akpan

........

For the Appellants

H.A. Lardner. S.A.N.

With B.A. Olufola

........

For the Respondents