Lease

• Pages: 283-292

LEASES

(1) BREACH OF CONVENANT

601. What constitutes waiver of right of lessor to re-enter property let.

“In Mathews v. Smallwood (1910) Ch. 777, a case cited by both counsel, Parker, J.

said at page 786: - “Waiver of a right of re-entry can only occur where the lessor with

knowledge of the facts upon what his right to re-enter arises, does some unequivocal

act recognising the continued existence of the lease unless at the time when the act

is done he has knowledge of the facts under which or from which his right of re-entry

arise.” - Per Tobi, J.C.A. in Seaview Investment Ltd. v. Munis Suit No. CA/L/282/

89; (1991) 6 N.W.L.R. (Pt. 195) 67 at 89.

(2) FORFEITURE

602. Can a claim relating to forfeiture or relief against forfeiture of lease be

determined in isolation?

(1) “By this singular application the appellant has singled out claim (a) to be agitated

by the Court and be determined leaving the issues claim that the agreements be

voided, the issue of rent possession and damages for use and occupation at the rate

of N50, 000.00 per annum from January 1964 all untouched. It seems to me that it is

premature for the appellants to have applied to the Court for relief from forfeiture

merely because they have paid their rents at the close of proceedings. In my view the

Court in determining the whole substance of the case cannot nearly render substan-

tial justice without considering the related claims as well as the conduct of the appel-

lants who remained for a long time without any payment of rent.

Having regards to the seeming non-chalant attitude by delaying payment for

several years, it is, I am of the view, ill considered act on its part to move the Court,

expunge from the counter claim the issue of forfeiture without the Court having to

examine and consider all the facets of the case in particular, issues of the new rental

and possession. It is difficult not to feel that the appellant was being clever by half by

making the application in the manner it proceeded. If the Court below had granted

the prayer that would have been the end of the case.” - Per Pats-Acholonu, J.C.A.

in Costain (W.A.) Ltd v. Kotun Suit No. CA/L/43/92; (1998) 10 N.W.L.R. (Pt. 586)

84 at 94-95.

(2) “From the respondents’ claims as contained in the counter-claim, the procedure

under Section 210 and section 212 of the Common Law Procedure Act, 1852 and

section 20 of the Miscellaneous Provisions Law Cap. 68 Laws of Lagos State do not

apply to abate the claims of the respondent notwithstanding the fact that the appellant

had paid all the arrears of rent outstanding and has given undertaking as to costs. An

examination of the respondents’ claim show among other things a claim to avoid the

lease on grounds of illegality. In my view the procedure under the aforesaid Act is

irrelevant and inapplicable to the claims of the respondent.” - Per Musdapher, J.C.A.

in Costain (W.A.) Ltd. v Kotun Suit No. CA/L/43/92; (1998) 10 N.W.L.R. (Pt. 586)

84 at 95.

283

Breach of convenant Paras. 601,602