WITT & BUSCH LTD V. ALLI-BALOGUN

• Pages: 82-88

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NIGERIAN SUPREME COURT CASES [1963] N.S.C.C.

At the highest this plea could only affect the land on which the houses were built

and the plantations made, but on the view which I take of the facts I cannot accept

the submission that the Obeagu people believed that they owned the land, and

even if they did I do not consider that they can invoke natural justice, equity and

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good conscience in the absence of any suggestion that the plaintiffs knew of their

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5

mistake and allowed them to act to their own detriment by persisting in it. This

plea is nothing more than a plea of acquiescence by another name, and must be

judged by the same standard as a plea of acquiescence.

Finally it is submitted that the damages awarded were excessive. I do not con-

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sider that the award of £400 against the representatives of Obeagu can be said to

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have been assessed on any wrong principle, since there was evidence of substan-

tial interference with the plaintiffs' rights over a period of years. The damages

awarded against Enugu Nmaku was based on evidence that 150 loads of sand

worth £3 a load were removed, and would have been higher than £400 if a higher

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sum had been claimed. The evidence of the removal of 150 loads was hearsay

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and the judge did not refer to the evidence on the point called for the defence,

which was to the effect that sand was removed on two occasions only. Accepting

the plaintiffs' figure of about 25 loads on each occasion, I would reduce these

damages to £150.

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Except as regards the reduction of the damages awarded against Enugu

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Nmaku, I would dismiss the appeal, with costs assessed at 18 guineas, a sum which

I have made less than it would have been in recognition of the partial success of

the appeal.

Appeal Dismissed.

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WITT & BUSCH LTD V. ALLI-BALOGUN

30

WITT & BUSCH LIMITED

V

HADJI SULU ALLI-BALOGUN

FEDERAL SUPREME COURT.

BRETT,

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F.J.

TAYLOR,

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F.J.

BAIRAMIAN,

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F.J.

5th March, 1963

APPELLANTS

RESPONDENT

SUIT NO. FSC 338/1962

35

40

Landlord and Tenant - Covenant not to assign, underlet or part with possession

- Breach, criterion.

ISSUE:

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1. What is the criterion for determining when a covenant not to assign, underlet

or part with possession has been breached.

FACTS:

The plaintiff gave to the defendant a lease of certain premises which included

a store area, with a covenant not to assign, underlet or part with possession with-

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out the landlord's consent in writing. Two tenants of the National Bank trespassed

on part of the area. The defendant later wrote to the two asking them to attorn ten-

ants to the defendants. On 31st October, 1960, the defendants made a settlement

with the Bank, under which the Bank would pay the defendant's a proportionate