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JOHN CHIDIAK
V.
DAVID COKER
WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
22ND DAY OF MAY, 1954
2PLR/1954/46 (WACA)
OTHER CITATION(S)
2PLR/1954/46 (WACA)
(1954) XIV WACA PP. 506-509
LEX (1954) – XIV WACA 506-509
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BEFOE THEIR LORDSHIPS
FOSTER-SUTTON, P.
DE COMARMOND, AG. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
JOHN CHIDIAK – Appellant
AND
DAVID COKER – Respondent
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ORIGINATING COURT(S)
Appeal by the defendant: No. 191/1953.
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REPRESENTATION
H. O. Davies for Appellant
R. A. Fani Kayode for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LEASE:- Agreement for lease – Covenant to repair – Lease executed after fire. Crown Lands Ordinance (Cap 45), sections 7(b)(iii) – Governor’s consent to sub-lease obtained after fire
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CASE SUMMARY
The above section 7(b)(iii) provides that:-
“Except as otherwise prescribed or provided in the lease, there shall in every lease under this Ordinance be implied by virtue of this Ordinance:
“(a)
“(b) covenants by the lessee …
“(iii) not to assign, sublet or otherwise part with the possession of the land comprised in such lease or any part thereof, without the previous consent of the Governor in writing.” (Note: The Governor’s power is delegated)
The plaintiff (now respondent) had a lease of Crown Land on which he had put up buildings. He gave the defendant a sub-lease for a term, and when that expired the parties agreed on a further term, and the defendant stayed on. The defendant executed a fresh sub-lease which had a recital that the Governor’s prior consent had been obtained (but stated no date of such written consent) a habendum as from the expiry of the previous term, and a covenant to repair. A fire destroyed the buildings whilst in the occupation of the defendant after his executing the sub-lease but before the date of the Resident’s approval on the Governor’s behalf. The plaintiff sued on the covenant to repair and obtained judgment, and the defendant appealed.
A habendum is prospective in operation and, equity apart, the lessee in occupation is not liable on the covenant to repair until the lease is executed by the lessor. In equity if the agreement for a lease was such as could be specifically enforced, the tenant who had entered thereunder would be bound by the covenant.
The trial Judge was of opinion that after the Governor’s consent is received and the sub-lease is executed, a valid legal estate is created; that from the Resident’s subsequent endorsement and the recital that the Governor’s prior consent had been obtained it could be presumed that such written consent had been obtained before the plaintiff executed the sub-lease, which the Judge inferred the plaintiff did was about the same time as the defendant.
In fact the sub-lease was dated as of the date of the Resident’s approval; apart from this approval, there was no evidence of the Governor’s consent; and the plaintiff’s own evidence indicated that he executed the sub-lease at the date of approval-which was later than the fire.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal) that:
(1) On the evidence, the plaintiff executed the sub-lease after the fire; therefore the covenant to repair was not binding in law on the defendant at the time of the fire.
(2) By section 7(b)(iii) of the Crown Lands Ordinance the prior consent of the Governor in writing was a condition precedent to a valid sub-lease, but on the evidence this consent was not received until after the fire; it followed that at the time of the agreement to sub-let there was an absolute absence of the estate which the plaintiff purported to sub-demise and neither party could have sued for specific performance ; therefore the defendant never had the consideration for which he covenanted to repair, and equity could not be invoked in plaintiff’s favour.
Cases cited:-
(1) Shaw v. Kay, 154 Engl. Reps. 175.
(2) Cardwell v. Lucas, (1836), 2 M. and W. 111.
(3) Pitman v. Woodbury, (1848), 3 Exch. R. 477; Rev. Reps. 537.
(4) Swatman v. Ambler, 155 Engl. Reps. 1264.
(5) Toler v. Slater (1867), L.R., 3 Q.B. 42.
(6) Walsh v. Lonsdale (1882), 41 Ch. D. 9.
(7) Forrer v. Nash, 35 Bear. 167; 55 Engl. Reps. 858.
(8) Brewer v. Broaduood, (1882), 22 Ch. D. 109.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
The question involved in this appeal is whether, under a covenant to repair in a sub-lease of a portion of premises on Crown land at Port Harcourt, the defendant-appellant is liable to rebuild the premises which were destroyed by fire whilst in his occupation.
In an action against him in the Port Harcourt Judicial Division of the Supreme Court, the Court held that he was liable ‘and awarded damages against the defendant for breach of the covenant to repair. The plaintiff held the property under an occupation lease dated 26th November, 1932, from the Government of Nigeria for a term of 99 years subject to, and under the provisions and stipulations of the Crown Lands Ordinance (Cap. 45). Under an express covenant contained in the lease the plaintiff had erected buildings on the land. By section 7 (b) (iii) of the Crown Lands Ordinance the prior consent of the Governor in writing is a condition precedent to a valid sub-demise of the property comprised. in the plaintiff’s lease.
There was an earlier sub-lease between the parties the term of which expired on 30th June, 1950. The parties negotiated for a new sub-lease for a term of two years from 1st July, 1950. The defendant-appellant continued in occupation of the property from the expiration of the first sub-lease. The new sub-lease was executed by the defendant-appellant in July or August, 1950. On the 2nd December, 1951 the premises were destroyed by fire.
The only evidence as to when the plaintiff executed the new sub-lease is a passage in his own evidence that “in 1952 I entered into a sub-lease with defendant (appellant)”. In the absence of other evidence this must refer to the 17th January, 1952, the date the deed exhibit 3 bears and the date of ·the Resident’s endorsement on the document of the Governor’s consent to the lease. Although exhibit 3 contains a recital that the Governor’s prior consent in writing to the sub-lease had been obtained, no such writing or evidence thereof was proved at the hearing. The only evidence of consent is the endorsement in the form of an approval of the deed of the 17th January, 1952. The executed sub-lease was not handed to the defendant-appellant. It was produced at the trial by the plaintiff.
The learned trial Judge expressed the view that after the Governor’s consent is received to a sub-lease of Crown land and the deed is executed a valid legal estate is created; that in this case the endorsement on the deed signed by the Resident and the recital in the deed to the effect that the Governor’s previous consent had been obtained, were prima facie evidence from which the Court, in the absence of rebutting evidence, could presume that such written consent was obtained before the date of execution of exhibit 3 in July or August, 1950.
The appellant’s main grounds of appeal are directed to these passages of the judgment.
It is to be observed in the first place, that the deed of sub-lease exhibit 3 is dated 17th January, 1952, but the habendum of the lease states that the premises are to be held by the lessee, the defendant-appellant from the 1st July, 1950.
As to this, the learned trial Judge referred to the principle settled in Shaw v. Kay (1) that the operation of the habendum is perspective only and the lease in occupation is not liable on the covenant to repair until the lease is executed.
The learned Judge found by inference that the deed was executed in July or August, 1950. The evidence however is that the defendant-appellant executed the deed in July or August, 1950, but the plaintiff executed it in 1952, which, as I have already said, must refer to 17th January, 1952, the date of the lease. The position therefore, as from July or August, 1950, to the 16th January, 1952, was that the lease bad been executed by the defendant-lessee but not by the plaintiff, the lessor. The execution of the lease by the lessor is a condition precedent to the lessee becoming liable on the covenant – Cardwell v. Lucas (2). The lessor’s execution of the lease is a conveyance of an estate in law. At law, according to the old cases the defendant-appellant would not be bound by the covenant to repair before the lessor bad executed the lease. It is a covenant which depends upon the interest of the lease, a covenant made because the covenantor gets that interest, it is not obligatory if the lessor does not execute; not because the lessor is not a party to the lease but because the interest or estate has not been created to which the covenant to repair is annexed. The covenant does not begin to operate unless the term commences and, unless there is a term, a covenant to repair during it is void, for if the foundation of the covenant fails, the covenant also fails: Pitman v. Woodbury (3); Swatman v. Ambler (4); Toler v. Slate (5).
But since the Judicature Act, 1873, the lessee may be liable upon an implied tenancy on the like terms and conditions as those expressed in the lease, if the incompletely executed lease is capable of operating as an agreement for a lease which could be specifically enforced, and the tenant who had entered thereafter would be bound in equity by the covenant to repair-Walsh v. Lonsdale (6).
The question therefore is whether there was such mutuality between the parties that the contract could be enforced by either party against the other. In determining this issue it cannot, in my opinion, be assumed that the consent in writing of the Governor had been given in July, 1950, or before the date of the fire or at any time prior to the date of the Resident’s endorsement on the deed. The recital is silent as to the date. The onus was therefore on the plaintiff to establish it, and this he failed to discharge. That being so, and as the Governor’s prior consent was a prerequisite, it follows that the plaintiff was not then in a position to make out a valid title to the lease, for his title was contingent upon the will and volition of the Governor. There was therefore an absolute absence of the estate which he purported to demise. The plaintiff had not obtained the Governor’s consent before July, 1950, to that which he was sub-letting so that he could not enforce the agreement against the defendant nor could the defendant compel the plaintiff to lease to him without the Governor’s consent to the assignment. Forrer v, Nash (7); Brewer v. Broadwood (8). Specific performance could not therefore have been obtained.
It follows on the authority of Shaw v. Kay (1) and the other cases supra, that the plaintiff could not hold the defendant-appellant to this covenant to repair, It is no answer for the plaintiff to say that the head lessor, the Crown, bas not taken steps to avoid the lease for a sub-letting without consent or that the subsequent approval of the lease is retroactive. To convey an interest to the defendant-appellant the consent should have been obtained before the sub-lease – Forrer v. Nash (7) supra. It is true the defendant was in occupation at the time of the fire but he was in occupation first as a tenant at will and at the time of the fire as a tenant from year to year having paid rent. He therefore never had the consideration nor did he enjoy the estate for which he covenanted to repair. It is very unfortunate for the plaintiff-respondent that he blundered in not obtaining the Governor’s consent in proper form at the proper time. He delayed the completion of the lease until after the fire. The result is regrettable for him but it is necessary to deal with the matter in accordance with the law.
I would therefore allow the appeal, set aside the judgment of the Court below and enter judgment for the defendant with costs in this Court and the Court below. The costs in this Court are allowed at £34 6s. 0d.
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FOSTER-SUTTON, P.
I concur.
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DE COMARMOND, AG. C.J.
I concur.
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Appeal allowed.
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