➥ CASE SUMMARY OF:
Unilife Development Co. Ltd. v. Mr. Kolu Adeshigbin & Ors (2001) 4 NWLR (Pt.704) 609
by Branham Chima.
Unilife Development Co. Ltd.
Mr. Kolu Adeshigbin
Miss Olusegun Taylor
Mr Olusegun Taylor
Mrs Ajibola Lewis
Mrs Sonia Nelson-cole (Representatives of the beneficiaries of the Estate of E.J. Taylor)
Supreme Court – SC.147/1995
➥ JUDGEMENT DELIVERED ON:
Friday, the 9th day of February, 2001
➥ SUBJECT MATTER
Meaning of ‘premises’.
Rate to be applied to rent.
➥ THIS CASE IS AUTHORITY FOR:
⦿ PREMISES HAVE NO DEFINITE DEFINITION FROM THE AUTHORITIES CITED
Let us first examine the meaning of the term “premises”. From the many learned legal works cited to us by appellant’s counsel Corpus Juris Secondum (supra), Jowitts Dictionary of English Law( supra) and Strouds Judicial Dictionary of English Law (supra), it appears that the term premises’ has a fluid or flexible meaning without a static connotation. It sometimes means bare land and sometimes land with buildings thereon, its meaning at any given. time would be determined according to what the parties so decide, as may be ascertained from the document executed by the parties. On the other hand, from the authorities cited by the respondents Ponsford v. H.M.S. Aerosols, Doe d. Hemming v. Willetes (supra), Cuff v. J & F Store Property Co. Ltd (supra) and Turner v. York Motors Property Ltd the term premises’ under the Recovery of Premises Law, Cap 118, Law of Lagos States, is used in the two senses of buildings with its grounds or appurtenances or simply as land without any building thereon. It may be noted that what can be distilled from the authorities of decided cases cited to us, including a welter of definitions in lexicons is that the term premises’ may connote bare land or the land with the buildings thereon, depending on what the parties intend it to connote, having regard to the circumstances of the case. In the final analysis, there is no doubt whatsoever that the meaning or the definition of the term “premises” is fraught with difficulties and whether it is intended to convey a precise or specific meaning will continue to exercise the courts because the situation in each case will unquestionably depend on the facts of the case thereof. — Achike, JSC.
⦿ WHEN INTERPRETING A CONTRACTUAL DOCUMENT THE WHOLE DOCUMENT SHOULD BE TAKEN CONSIDERATION OF
I am in full support of the submission of appellant’s counsel that it was a misdirection for the lower court in consideration of whether the land, the subject matter in controversy, was bare land or included the structures thereon to have relied on only clauses 3 and 6 in the entire lease agreement to arrive at its conclusion. The learned Justices of the lower court were clearly in error because it is a fundamental rule of construction of instruments that its several clauses, must be interpreted harmoniously so that the various parts of the instrument are not brought in conflict to their natural meaning. Emphasising the same point, the learned authors of Halsbury’s Laws of England. Vo1.12, (4th ed.) para. 1469) stated tersely but pointedly: “The best construction of deeds is to make one part of the deed expound the other, and so make all the parts agree. Effect must, so far as possible, be given to every word and every clause.” The same principle was approved by this Court in Lamikoro Ojokolobo & Ors. v. Lapade Alamu & Anor. (1987) 7 SCNJ 98, (1987) 3 NWLR (pt.61) 339. Surely, a fragmentary interpretation of the various clause of the lease agreement without recourse to the entire Lease Agreement would do violence to the content in which the controversial terms “premises” and “land” were employed and therefore the ascertainment of the parties’ intention in relation to these two terms was bound to be distorted and erroneous and consequently unacceptable. — Achike, JSC.
⦿ LAND AND THE QUIC QUID PLANTATUR SOLO SOLO CEDIT
Let me add to the vexed definitions of land the Roman maxim which found its way into the English common Law quic quid plantatur solo, solo cedit (whatever is affixed to the soil, belongs to the soil) while the judicial and academic conflict of opinion rages whether that maxim of English Common law is also a rule of Nigerian customary law. While that debate subsists, the better view on the authorities of Santeng v. Darkwa 6 WACA 52 and Moore v. Jones 7 NLR 84 appears that it is not. Be that as it may, it must be borne in mind that this maxim is not an immutable rule of law because a lot depends on the fixture attached to the ground or building. See Adeniji v. Ogunbiyi 1965 NMLR 395. The above definitions of land, including the maxim in respect thereto, show the increasing difficulty in determining the legal conception of land, and the final word in this regard. No doubt, even to the laymen today, land no longer means the ordinary ground with its subsoil, but surely includes buildings and trees growing thereon. for the court in any circumstance, therefore, to exclude the structures and objects, like buildings and trees standing on the ground in the connotation of the term “land” it must be shown to be clearly discernible from the content of the executed or written document. — Achike, JSC.
⦿ COURT WILL NOT REWRITE LEASE AGREEMENT FOR PARTIES
In doing so, the court should bear in mind that it has a responsibility not to re-write the Lease Agreement for the parties but simply to give effect to their intention as may be deduced from the language employed by them. — Achike, JSC.
⦿ SEVERAL PARTS OF A WRITTEN INSTRUMENT MUST BE INTERPRETED TOGETHER TO GET THE INTENTION
I agree with Mr. Sofola, S.A.N., in his submission that the court below was in error to have relied on clauses 3 and 6 of the lease agreement only and limited itself in the construction of the lease agreement to the construction of these clauses alone. The approach adopted by the court below is in violation of one of the fundamental and hallowed principles in the construction of document and written instruments, that the several parts, where there are more than one, must be interpreted together to avoid conflicts in the natural meaning in the various parts of the written document or instrument. This rule of construction was approved by this court in Ojokolobo & Ors. v.Alamu & Anor. (1987) 3 NWLR (Pt. 61)377,(1987)7 SCNJ 98. — Karibi-Whyte, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Kehinde Sofola, S.A.N. Esq.
⦿ FOR THE RESPONDENT
T.E. Williams, Esq.
➥ CASE FACT/HISTORY
In the arbitration proceedings which started before Bola Ajibola, Esq. sometime in April 1983, the respondents, inter alia, sought a determination in a controversy between the parties on the amount of rent payable by the appellant under a rent revision clause pursuant to the provisions of a deed of lease. At the arbitration proceedings, the exact question put to the arbitrator for the decision of the High Court, as a question of law, was: “On what basis should the revised rent be computed? Is it on the basis of the fair and reasonable rent which can be obtained for the premises in the open market? Or is it on the basis of the fair and reasonable rent which can be obtained for the bare site, without taking into consideration the buildings or developments on the site?”
The High Court of Lagos Judicial Division presided over by Moni Fafiade, J. on 3rd February, 1989 held that only the bare land (i.e. second basis) should be taken into account in determining the revised rent payable. Accordingly, her Ladyship decided that the revised rent payable on the demised premises would be N30,000.00 per annum with effect from 1st April, 1981, being the rent payable for the bare land.
Dissatisfied, the claimant appealed to the Court of Appeal. That court allowed the appeal, reversed the decision of the trial High Court and held in favour of the first basis, to wit, that the revised rent should take into consideration the improvement made on the demised premises and computed by the Arbitrator at N450,000 per annum. The Appellant, dissatisfied, has lodged this appeal against the judgment of the lower court.
The relevant clause in the Deed of Lease as expressly set out in clause 7(b)(i)-(iii) which runs thus: ‘(b )(i) The rent hereby reserved shall be subject to revision every 20(twenty) years of the term hereby created and such revised rent shall be fixed by agreement between the Lessors and the Lessees; (ii) If the Lessors and the Lessees are unable to agree to the revised rent to be paid the matter shall be referred to an Arbitrator to be appointed by agreement between them or in the absence of such agreement to an Arbitrator appointed by a Judge of the High Court, Lagos. (iii) The amount at which the revised rent shall be fixed by an Arbitrator appointed under this clause shall be such as in the opinion of the Arbitrator is a fair and reasonable rent for the premises having regard to rents obtainable at the commencement of the revision period for similar lands of similar area and amenities similarly situated.’
➥ ISSUE(S) & RESOLUTION(S)
I. should the computation of the revised rent be restricted to the bare land or should it include the developments on the bare land?
RULING: IN APPELLANT’S FAVOUR.
A. THE CLAUSE REFERS AND IMPORTS BARE LAND AND NOTHING MORE
[PER ACHIKE JSC:
‘As earlier stated and emphasised in this judgment, clause 7(b) (iii) is fundamentally the key for the ascertainment of the real import of the words “premises” and “‘ands” as employed by the parties in the Lease Agreement. The term “premises” being elusive as clearly adumbrated above, clause 7(b)(iii) pointedly stipulated that the revised rent for the premises should be rent, having regard to rents obtainable at the commencement of the revision period for similar lands of similar area and amenities similarly situated. It is unquestionably clear that what was demised was bare land. It is equally beyond doubt that having regard to clauses 3,4,5 and 6 that buildings of prefixed descriptions were to be erected and kept in good and substantial repair, yet in clause 7(b)(iii) which is crucially fundamental to computing the assessment of revision of rent, it is significantly worthy of note that that clause did not state that the revised rent should be “rent for the premises having regard to the rents obtainable at the commencement of the revision period for similar premises of similar area and amenities similarly situated.” Rather, the Arbitrator was directed, as expressly stated in the Lease Agreement, that the revised rent should be rent for the premises having regard to the rents obtainable for similar lands of similar area and amenities similarly situated.’ The use of similar lands in clause 7(b)(iii) rather than similar premises is telling. In my judgment, it produces the marked difference and effect that the revision in rent should relate to bare land in contradistinction to premises with its inherent elusiveness in meaning.’
PER KARIBI-WHYTE JSC:
‘I am of opinion that a departure from the clear and unequivocal words of the Lease Agreement would result in the court re-writing the provisions of the lease agreement. and thus making agreement for the parties, This, the court cannot do, The function of the court is to give effect to the intention of the parties as may be deduced from the words of the lease agreement. I therefore answer the question in this appeal that the revised rent should be computed on the basis of the fair and reasonable rent obtainable for the bare site, without taking into account the buildings of developments on the site.’
PER UWAIFO JSC:
These observations remind us that it is important in the present case to examine the terms of the lease or covenant in order to ascertain the demised premises for which a reasonable rent will have to be paid on revision. This is more so in the present case where the improvements carried out after the lease was drawn up were not clearly intended or were not adequately stated to be part of the demised premises for the purposes of rent revision. It would appear the respondents had expected and received due consideration for those improvements in the nature of the rent-free apartment conceded to them in the buildings eventually erected by the appellant; and in addition the entire buildings erected at the expense of the appellant would become the property of the respondents after the period of the case. When properly understood, they in fact support the appellant’s contention. For the above reasons and those given by my learned brother Achike JSC, I find merit in this appeal and therefore allow it. I set aside the decision of the lower court and uphold that of Moni Fafiade, J. I abide by the order for costs made by Achike, JSC.]
‘From all I have said I would answer the question in this appeal to the effect that the revised rent should be computed on the basis of the fair and reasonable rent which can be obtained for the bare site, without taking into consideration the buildings or developments on the site. The appeal is therefore allowed while the judgment of the Court of Appeal is hereby set aside with N10,000.00 costs in favour of the appellant.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 3 of Interpretation Act, Cap. 192, Laws of the Federation.
➥ REFERENCED (CASE)
⦿ RENT INCLUDE THE IMPROVEMENTS MADE ON THE PREMISES
✓ Ponsford v. H.M.S. Aerosols (supra). Here there was lease dated August 19, 1968 of factory premises in Barking for 21 years and the revision of rent was to be referred to a surveyor under an arbitration clause where the parties disagree on the revised rent. In 1969, the premises were burnt down and rebuilt out of the proceeds of insurance. The licence for the improvements which were in fact made was contained in a document dated November 14, 1969, where in clause 1 it provided: “The landlords hereby grant unto the tenants licence to execute in and upon the demised premises the several alterations and works indicated in the plan annexed …. It is hereby agreed and declared that all the lessee’s covenants and conditions contained in the lease which are now applicable to the premises demised thereby shall continue to be applicable to the same when and as altered and shall extend to all additions which may be made thereto in the course of such alterations.” The lease of August 19, 1968 indicated, inter alia, that the rent would be assessed “as reasonable rent for the demised premises”. The trial judge. held that a reasonable rent for the premises should be assessed without taking account of the improvements made by the defendants. The plaintiffs appealed on the ground that the judge was wrong in his construction of the rent review clause. On appeal, the Court of Appeal, by a majority of 2:1, reversed the judgment of the trial court and held that the revised rent would include the improvements made on the demised premises.
✓ Cuff v. J. & F. Stone Proper Ltd. (supra) provided that improvement on the land should not be wholly disregarded. Cuffs case is different from the case before us in the sense that the improvements on the land had been made prior to the execution of the lease. Accordingly the improvement, unless expressly excluded, must be taken into account in computing the revised rent. In the instant case there was not improvement on the bare land at the time of the lease, and the subsequent improvement did not form part of the demised premises. Without doubt, the improvements in the Cuff case formed part of the demised premises.
➥ REFERENCED (OTHERS)