Agbaje v. Khawam (1986)


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10 November 1986

DR. A. S. AGBAJE & ORS.

V.

JOHN KHAWAM & ORS.

COURT OF APPEAL

(IBADAN DIVISION)

CA/I/20/84

UCHE OMO, J.C.A. (Presided)

JOHN HEZEKIAH OMOLOLU-THOMAS, J.C.A. (Read the Lead Judgment)

IBRAHIM KOLAPO SULU-GAMBARI, J.C A.

MONDAY, 14TH JULY, 1986

LAND LAW – Joint tenancy – Subsequent severance – Effect of Section 63(2) Property and Conveyancing Law, Oyo State.

LANDLORD AND TENANT – Joint lease created – Subsequent partition among lessees to the knowledge and acquiescence of lessors – Propriety of forfeiture on account.

LANDLORD AND TENANT – Lease – Breach of covenant by lessee – Waiver of by Landlord.

Issues:

1.
Is the partition of the joint tenancy to create a tenancy in common within the intendment of section 63(2) Property and conveyancing Law 1881?

2.
In the circumstances of the case could it be said that the breach of covenant had been waived by the Landlord?

Facts:

The plaintiffs/appellants were lessors and landlords of the respondents who took a joint lease from them.

After going into possession, the joint lessees by an instrument (exhibit PL 2) partitioned the land between them, and this was to the knowledge of the plaintiffs, who as a matter of fact were receiving rent in respect of half of the land from one of the appellants for the past seventeen years. The other tenant however was in default of his rent.

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The plaintiffs/appellants then brought this action asking inter alia for a declaration

(a)
that the deed of partition was void and ineffectual,

(b)
forfeiture of the lease for breach of covenants contained therein and

(c)
damages.

At the trial, the defendants/respondents succeeded in convincing the court that the partitioning was done with the knowledge of the appellants and that ever since one of them had been paying his rents regularly to the landlords and had erected a building worth £35,000. If there had been any breach, it had been waived.

The lower court dismissed the action, hence this appeal.

The main point canvassed by the appellants at the Court of Appeal was that the partitioning was contrary to the provisions of Section 63(2) Property and Conveyancing Law Oyo State, which forbade a severance of joint tenancy to create a tenancy in common.

Held (Dismissing the Appeal):

1.
Section 63(2) Property and Conveyancing Law Oyo State disallows or prevents the severance of a jointly tenancy of a legal estate howsoever, so as to create a tenancy in common in land generally, but preserves the right of a joint tenant to release his interest to the other joint tenant in respect of a legal estate or the right to sever a joint tenancy in an equitable interest whether or not the legal estate is vested in the joint tenants.

2.
As the purport of the deed of partition was with a view to partitioning the said premises thereby extinguishing the joint tenancy unilaterally and creating in its place a tenancy in common of the legal estate (without the consent of the lessors) such act could not be said to amount to a release of a joint interest to the other joint tenant or a severance of a joint tenancy in an equitable interest.

3.
The partition is in contravention of Section 63(2) Property and Conveyancing Law, Oyo State.

4.
Since the appellants are aware of the partition and have been receiving half of the rent regularly from one of the respondents, they are estopped by their inaction from denying that fact: [Oke v. Atoloye (1986) 1 N.W.L.R. 241 applied and followed.]

5.
The appellants by their acquiescence have waived the breach.

Nigerian Cases Referred to in the Judgment:

Obasuyi v. M. & K. Ltd. (1962) 2 A.N.L.R. 118

Oke v. Atoloye (1986) 1 N.W.L.R. 241

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Foreign Cases Referred to in the Judgment:

Abbey v. Ollenu 14 WACA567

David Blackstone Ltd. v. Burnetts (Westend) Ltd. (1973) 3 A.E.R. 782

Greater Sydney Development Association Ltd. v. Rivett 1929 S.R. (N.S .W.) 356

Nigerian Statute Referred to in the Judgment:

Property and Conveyancing Law Oyo State, S.63(l)(2)(3)

Appeal:

This was an appeal from the decision of Oyo State High Court dismissing the claim of the appellants. The Court of Appeal also upheld that decision.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Ibadan Division.

Names of Justices that sat on the Appeal: Uche Omo, J.C.A. (Presided); John Hezekiah Omololu-Thomas, J.CA. (Read the Lead Judgment); Ibrahim Kolapo Sulu-Gambari, J.CA.

Date of Judgment: Monday, 14th July, 1986

Appeal No.: CA/I/20/84

High Court:

Name of the High Court: High Court of Oyo State, Ibadan.

Counsel:

Ajakaiye, Esq. – for Appellants.

O. Olaleye, Esq. – for Respondents.

OMOLOLU-THOMAS, J.CA. (Delivering the Lead Judgment): By plaintiffs’ writ of summons, the plaintiffs’ claim, before the High Court of Oyo State, Ibadan, against the defendants jointly and severally, is for

“1.
A Declaration of forfeiture of the respective demises in the undermentioned instruments.”

(a)
No. 20 at page 20 Volume 103 dated 2/7/55 (exhibit PL. 1)

(b)
No.11 at page 11 in Volume 255 dated 5/5/58 (exhibit PL.2)

(c)
No. 13 at page 13 in Volume 1038 dated 1/4/68 (exhibit PL.5)

(d)
No. 8 at Page 8 in Volume 1398 dated 12/9/72 (exhibit PL.6)”

(Bracketed references supplied for easy reference)

“2.
An order declaring void and ineffectual the needs in (b), (c) and (d) above.

3.
Damages of N100 for breaches of the various covenants in the aforementioned instruments in relief 1 above.

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4.
Possession of the premises comprised in the said instruments in 1(a), (b), (c) and (d) above.”

The parties, in this case the plaintiffs and only the 1st defendant, duly exchanged pleadings. The 2nd, 3rd and 4th defendants neither filed any pleadings nor defended the action.

The action proceeded to trial, the plaintiffs and the 1st defendants leading evidence substantially in terms of their pleadings.

In summary, the plaintiff’s case is that they granted a lease of premises comprised in the instrument (exhibit PL. 1) dated 2/7/55 and registered as No. 20 at page 20 in volume 103 of the register of deeds kept at the Lands Registry, Ibadan, to the 1st and 2nd defendants jointly. Their case is that the defendants by an instrument registered as No. 11 at Page 11 in Volume 255 dated 5th May, 1958 partitioned the said premises between themselves, and paid part of the rent contrary to the stipulation in the lease agreement to pay the said rent at the times and in the manner provided by the former instrument of 2/7/55.

Their case is that part of the premises were sublet and also assigned in contravention of clauses 2(i), (iv) and (ii) of the covenants in the instrument of 2/7/55.

The 1st defendant’s case is that the partition occasioned by the instrument of 5/5/58 (exhibit PL. 2) was with the knowledge and consent/acquiescence of the plaintiffs, and that since the partition he had been paying his rents regularly with respect to the portion partitioned to him upon which he had erected a building worth 35,000 at the time, where he had his business office and he also resides with his family. He is contending that if there had been any breach of the covenants in the instruments of 2/7/55 (exhibit PL. 1), the breaches had been waived by the plaintiffs.

The Learned trial Judge, after due consideration of the issues raised by the parties in their pleadings, dismissed the claim against the 1st defendant, and awarded judgment against the 2nd, 3rd and 4th defendants in respect of the other half of the premises known as 79, Lebanon Street, Ibadan under the Partition Deed instrument of 5/5/58 forfeiting it to the plaintiffs. He declared the Instrument dated 1/4/58 and 12/9/72 (Exhibits PL. 5 and 6) void and awarded N100 damages for the breaches of covenants.

The 2nd plaintiff (referred to hereafter as “the appellants”), was dissatisfied with the judgment and has appealed on one original ground of appeal and 2 additional grounds of appeal. Briefs were duly filed by the parties. They are respectively relying on their briefs of argument and their oral submissions.

The appellant sought and was granted leave to withdraw ground 1 of the additional ground (which is hereby struck out). The original ground is hereby re-numbered ground 1, and the remaining grounds will therefore retain their original numbering.

The following questions have been set forth by the appellant for determination

  “1.
Could the 1st and 2nd defendants validly partition the property, the subject of a joint legal tenancy?

  2.
Could the 1st and 2nd defendants validly reach a mutual arrangement/agreement that violates a covenant in a head lease?

  3.
Was the learned trial Judge right in holding that the plaintiffs could not compel John Khawam to pay rents owed by Habib Sulaiman

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because the question was not an issue in the case and must be laid to rest?

The respondent’s formulation of the questions for determination reads:

(i)
Can the appellants claim that the respondent is in breach of covenant to pay rent, having consented to the assignment or partition as contained in exhibit P2 and in fact acquiesced and received rents from the respondent for a period of 17 years in respect of his half share of the demised property?

(ii)
Can the trial Judge lawfully decree payment by the respondents of the unpaid rents owed by the 2nd defendant:-

(a)
When appellants both in their writ of summons and the amended statement of claim never asked for such claim?

(b)
When the appellants in their claims before the court never claim for arrears of rent?

(c)
When there is no evidence before the court for a claim for arrears of rent'”

(iii)
Is exhibit P2 a contravention of any of the covenants in exhibit P1?

Looking at the grounds of appeal to which issues as put by each party relate, the question arising from the complaints is not as to the validity of the partition as such which is one of the reliefs claimed in the writ but as to whether or not the dismissal of the claim was correct in circumstances when there was a partition of the premises contrary to the covenant in the head lease.

I propose to consider the issues on the basis of the complaints in the grounds of appeal filed. Hereafter the defendants are referred to as “the respondents” Ground 1 of the grounds of appeal first argued reads –

“(1)
The learned trial Judge erred in law in dismissing the claim against the respondents when there was admission by the respondent that he paid half of the rent which was contrary to the stipulation in the head lease that it was a breach not to pay part or whole of the rent.”

The argument of the learned appellant’s counsel was that only half of the rent was being paid and both the evidence of the parties in the lower court confirmed this which is clearly in breach of clause 2(1) of the covenant in the head-lease (Exh. P1), the consequence of which breach is forfeiture. The said covenants read –

“(2)     The lessees covenant with the lessors as follows:-

(i)
To pay the said rent at the times and in the manner aforesaid.

(ii)
Not to assign or underlet the premises or any part thereof without the consent of the initiated Ibadan District Council and of the Lieutenant Governor Western Region but the consent of the lessors shall not be necessary.

(3)       PROVIDED ALWAYS and it is hereby agreed as follows:

(i) If the rent hereby reserved or any part thereof shall be in arrear for one month or if there shall be a breach or non-observance of any of the covenants aforesaid on

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the part of the Lessees the Lessors by themselves or by the District Officer of the District on their/behalf may re-enter upon the premises and the term hereby created shall forthwith cease and determine but subject to the rights and remedies of the lessors for or in respect of any rent in arrear or any breach or non-observance of any of the covenants on the part of the lessees to be performed or observed.

(ii)    If there shall be a breach of any of the said covenants hereinbefore contained, and if upon such breach the lessors shall not avail themselves of the powers of re-entry conferred upon them by the last-mentioned proviso the Governor may, by notice in writing, require the lessees to make good such breach within … the term hereby created shall cease and determine but subject to the rights and remedies of the lessors for or in respect of any rent in arrear or any breach or non-observance of any of the convenants on the part of the lessees to be performed or observed. Such notice shall be a good and sufficient notice if the same be addressed to the lessees and delivered on/the premises hereby demised.”

He contended that any mutual arrangements by the 1st and 2nd respondents must take into consideration the conditions in the said exhibit P1, and further stated that due notice of the infringement was served on the 2nd respondent and this is sufficient notice to the 1st and 2nd respondents in compliance with section 161(l)(b) of the Property and Conveyancing (Cap. 100) Laws of Oyo State, 1979.

He submitted that the singular act that the plaintiffs received half of the rents of the demised premises did not water down the effect of the breach committed by the Is1 and 2nd respondents persisted in by the non-payment of the other half of the rents.

Counsel further argued that the case of Obasuyi v. M. & K. Ltd. (1962) 2 A.N.L.R. 118 relied upon by the trial Judge in refusing forfeiture against the lst respondent would not apply, and submitted that the case is distinguishable in that the point in this case is not that the point in this case is not that the 1st plaintiff and the appellant received half-rents in full satisfaction of the rents due, but that the 1st and 2nd respondents by commission and arrangement exclusive to them were paying half the rents due. The Obasuyi’s case deal with an acceptance in advance of rents due in spite of notice of breaches of covenants, on the other hand. The payment of half-rent as against full-rent was the actual cause of breach, and that the question of waiver would not therefore come in.

In my opinion .the principle applicable in the case of a demand for rent or by mere representation that a covenant will not be enforced or by conduct are the same if the effect is that there had been an inducement not to enforce a right to the detriment of the other party who had by such representation or conduct or simply inaction altered his position (see also, Greater Sydney Development Association Ltd. v. Rivett (1929) S.R. (N.S.W. 356 at 360 Oke v. Atoloye (below) David Blackstone v. Burnetts (Below).

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The fact which is undisputed by both sides in this case is that there was a partition of the premises into Nos. 79 and 81 Lebanon Street, whereby each of the 1st and 2nd respondents assigned to the other his joint interest in the premises apportioned into two separate premises. The head-lease clearly created a joint- tenancy, and the point was considered by the trial Judge, and there is no issue raised on the point. The trial Judge also considered whether exhibit PL 2 the deed of partition should have been approved under the head-lease (Clause 2 IV of exhibit PL 1) and held as follows –

“Under section 61 of the Property and Conveyancing Law Cap 100 Laws of the Western State applicable in Oyo State, undivided share in land shall not be capable of being created except, inter alia, granted to joint tenants upon the statutory trust for sale. However, under section 63(2), the right of a joint tenant to release his interest to the other joint tenant, inter alia was reserved and that is presumably why the tenants namely, the two lessees executed the deed of partition or assignment exhibit P2. It is my considered view that as both Khawam and Suleiman had previously obtained the approval of the Minister of Lands and the Ibadan District Council to their joint tenancy, the release of the interest of one in the area occupied by the other would seem to be a domestic arrangement which required no further approval.”

(Italics mine)

Indeed by virtue of clause 2 (IV) of exhibit PL1 (supra) all that is required is the consent of the “Ibadan District Council” and of the “Lieutenant Governor of Western Region.” The consent of the plaintiffs was not required under exhibit PL 1.

The trial Judge therefore correctly held as follows:

“In any case the consent of the lessors, that is the plaintiffs herein are not required under clause 2(IV) of the head lease exhibit PL1. It is therefore my view that exhibit P2 is not a contravention of any of the tenant’s covenants in exhibit P1.”

On the point as to whether or not the respondents were not paying rents in contravention of the covenants the trial Judge held –

“… there is uncontroverted evidence that exhibits D1 to D19 that he has been paying the rents due on his half share on the property, demised under the headlease, regularly to the plaintiffs who have issued receipts in respect of payments not made directly to the bank.

The lessors cannot therefore say that they are not aware of the partition nor does it lie in their mouth to say that the 1st defendant has not been paying his rents regularly.”

The findings of the trial Judge above in effect indicate clearly that the said exhibit PL2, the deed of partition, does not contravene the covenants in the head-lease in that the 1st respondent has been paying his rents regularly to the plaintiffs and that the plaintiffs cannot now say that they are not aware of the partition. In other words by their inaction they are estopped from denying that fact (see Oke v. Atoloye (1986) 1 N.W.L.R. 241 at 259 to 260 per Oputa J.S.C.).

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None of these findings has been specifically challenged and I am of the humble view that the trial Judge’s findings on the points are justified.

The 1st respondent pleaded and gave evidence to the effect that the plaintiffs were aware of the partition and that since the partition he had been paying his rents of the partitioned portion. The appellants received the payments and issued receipts regularly for the payments (exhibit D1-D19). There is also a letter of demand exhibit D20 and exhibits D1-D8 to establish the issue. Considering the evidence indicating the payments made by the 1st respondent with the receipts thereof, can the appellants now resile by saying that they did not receive the rents or that they received only half rents (not in satisfaction of the whole rents due) on occasions when each became due? or that they had no knowledge of the partition, when the payments were continuously being paid regularly over a long period of time?

The learned trial Judge was satisfied that the plaintiffs were aware of the partition and payments of half-rents, not in lieu of the full rent as respectively due but as being the portion due from the 1st respondent in respect of his own portion of the premises since 1958. As rightly submitted by the learned respondent’s counsel if a breach had been occasioned, the appellants having been aware of the payments, are put into an election between forfeiture or waiver; and the only reasonable conclusion in the circumstance is that they elected to waive the breach. They cannot now complain. In the case of David Blackstone Ltd. & Anor. v. Burnetts (Westend) Ltd. & Anor. (1973) 3 All E.R. 782 and 783 cited by the respondent’s counsel, where there was a demand for future rent, it was held that such demand amounted to an election in law and constituted a waiver. It was also held that the knowledge of the basic facts which in law constituted the breach of covenant entitled a landlord to forfeit a lease, (see also the case of Obasuyi v. M. & K.(1962) 2 A.N.L.R. 118).

The complaint in ground 2 next argued reads –

“The learned trial Judge erred in law in not invoking the terms of indemnity to pay rent contained in exhibit P2 to compel 1st defendant to pay rent owed by 2nd defendant when he (the learned trial Judge) deemed the same exhibit P2 as a valid agreement authenticating a domestic arrangement between the 1st and 2nd defendants.”

I must first here observe that the complaint is seriously misconceived in view of the relief 2 in the writ of summons which is seeking that the documents be declared null and void. On the assumption that the trial Judge is entitled to invoke the terms of indemnity to pay rents contained in exhibit L.2 (which is not the case) if the document constitutes a breach of a clause in the head-lease one wonders how the trial Judge can be expected to even look at it in view of the writ and pleadings.

I cannot see the basis of the complaints when the plaintiffs are not parties to nor can they be deemed to be privy to it, besides, the plaintiffs did not recognize the existence of the document. How can they now claim any benefit under it?

        Indeed, the trial Judge considered whether the plaintiffs could compel the 1st defendant to pay rents owed by the 2nd respondent under exhibit PL.2. He did realise that this was not an issue before him hence his following observation –

                                              “The question is whether or not the lessors can take advantage of the benefit of that covenant so as to compel John Khawam

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to pay the rents owed by Habib Suleiman and his successors in title and assigns. The starting point is that the parties did not raise this issue in their pleadings. The second consideration is that exhibit P2 recited the consent of the “executors” of the estate of the Late Chief Salami Agbaje to the partition and this was not canvassed seriously or controverted by the plaintiffs’ counsel (sic) cross-examine the 1st defendant on this. Indeed, the plaintiffs are estopped from denying the said partition having regard to exhibits P8 and P9, letters written by their solicitors asking Habib Suleiman and his assignee Francis Olajide Ajibowo to pay rents due, inter alia, and to make amends for breaches of covenants under the original lease exhibit P1. In view of the above, this question is not an issue in the case and must be laid to rest.

(Italics supplied by me)

Having rested the matter thus, he is justified in law to have so concluded, and the appellant’s counsel is wrong to even suggest that he recognised the document exhibit PL 2 “as validating the arrangement between 1st and 2nd defendants.” There can be no question of invoking clause 3 of exhibit PL 2 in order to enforce the obligations on the part of 1st and 2nd respondents with regard to the headlease, with a view to decreasing payment to the plaintiffs of the rents unpaid since 1971 by the 2nd respondent.

As rightly submitted by the respondent’s counsel payment of arrears of rent is a non-issue and the appellant cannot now be allowed to raise such issue on appeal.

The complaint in ground 3 next argued reads –

“The learned trial Judge erred in law in failing to declare void and ineffectual the deed of partition dated 5/5/58 registered as No. 11 at page 11 in volume 255 when the defendants/respondents as joint tenants of a Legal estate could not validly partition the property and thereby came to a wrong decision.”

The issue here concerns the effect and operation of Section 63(2) of the property and Conveyancing laws of Oyo State (Cap. 100), which according to counsel as quoted by the appellants’ counsel reads thus

“No severance of a joint tenancy of a Legal estate, so as to create a tenancy in common in land, shall be permissible, whether by operation of law or otherwise …”

The argument of the appellant’s counsel that exhibit PL1 as between the plaintiffs on the one part and the 1st and 2nd respondents creates a joint tenancy, and is undivided and could not be severed. He further argued that exhibit PL2 (the deed of partition), which created a tenancy in common between the 1st and 2nd respondents severed the property and renamed the property as Numbers 79 and 81 respectively. He stated that the conduct of the parties indicates clearly that the 1st respondent has no further business or relationship with the 2nd respondent with regard to the property leased to them jointly.

I must observe here that all that the appellants’ counsel said as to the effect of exhibit PL 2 are not in dispute. What is disputed is as to whether or not the estate can in law be severed as a joint tenancy thereby creating a tenancy in

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common, and the submission of the appellant’s counsel on the point is that the partitioning was contrary to section 63(2) of the property and Conveyancing Law.

The whole section 63 reads –

“(1)    Whether a legal estate is beneficially limited to or held in trust for any persons as joint tenants, the same shall be held on trust for sale, in like manner as if the persons beneficially entitled were tenants in common, but not so as to sever their joint tenancy in equity;

     (2)
No severance of a joint tenancy of a legal estate, so as to create tenancy in common in land, shall be permissible, whether by operation of law or otherwise, but this sub-section does not affect the right of a joint tenant to release his interest to the other joint tenants, or the right to sever a joint tenancy in an equitable interest whether or not the legal estate is vested in the joint tenants: Provided that, where a legal estate is vested in joint tenants beneficially, and any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire or do such other acts or things as would, as in the case of personal estate, have been effectual to sever the tenancy in equity, and thereupon under the trust for sale affecting the land the net proceeds of sale, and the net rents and profits until sale, shall be held upon the trust which would have been requisite for giving effect to the beneficial interests if there had been an actual severance; Nothing in this law affects the right of a survivor of joint tenants, who is solely and beneficially interested, to deal with his legal estate as if it were not held on trust for sale.

     (3)
Without prejudice to the right of a joint tenant to release his interest to the other joint tenants no severance of a mortgage term or trust estate, so as to create a tenancy in common, shall be permissible.”

From my reading of this section, subsection (1) of the section creates an “unseverable” joint tenancy with respect to a legal estate which is beneficially limited to or held in trust for any persons “as if the persons beneficially entitled were tenants in common.” Subsection (2) of the section disallows or prevents the severance of a joint tenancy of a legal estate howsoever, so as to create a tenancy in common in land generally, but preserves the right of a joint tenant to release his interest to the other joint tenant in respect of a legal estate, or the right to sever a joint tenancy in an equitable interest whether or not the legal estate is vested in the joint tenants. We are here concerned with the provisions in the subsection.

Subsection (3) clearly excludes the severance of mortgage terms or trust estate so as to create a tenancy in common.

The relevant part of the indenture exhibit PL2 reads –

“AND WHEREAS the parties hereto have agreed by and with the consent of the Olubadan of Ibadan and the Ibadan Provisional District Council and the aforesaid executors of the Estate of the Late Chief Salami Agbaje to make a partition of the said premises as is hereinafter contained.

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NOW THIS INDENTURE WITNESSETH as follows:

IN CONSIDERATION of the assignment hereinafter made by the said JOHN KHAWAM the said HABIB SULEIMAN AS BENEFICIAL OWNER HEREBY ASSIGNS AND RELEASES UNTO the said JOHN KHAWAM ALL THAT one half part of the piece and parcel of land situate at 81 Lebanon Street, Ibadan…. “IN CONSIDERATION of the assignment hereby made by the said HABIB SULEMAN the said JOHN KHAWAM as BENEFICIAL OWNER HEREBY ASSIGNS AND RELEASES UNTO the said HABIB SULEIMAN ALL THAT one half part of the piece or parcel of land situate at 79 Lebanon Street, Ibadan aforesaid …” (Italics mine)

If therefore the purport of exhibit PL2 was merely to release the interest of the joint tenant (the 2nd respondent’s) to the first tenant thereby merging his joint interest in that of 1st respondent, there would have been no problem, and the appellants would not probably have complained; but, as the transfer was with a view to partitioning the said premises thereby extinguishing the joint tenancy unilaterally and creating in its place a tenancy in common of the legal estate (without the consent of the lessors) such act could be said to amount to a release of a joint interest to the other joint tenant or a severance of a joint tenancy in an equitable interest within the contemplation of that subsection; and to this extent exhibit PL2 would seem to me to be in contravention of the said section 63(2).

In my opinion therefore, although the Learned trial Judge was correct in his reading of section 61, and of section 63(2) when he said that the right of a joint tenant to release his interest to the other joint tenant, inter alia, was reserved, he is in my humble opinion clearly wrong when he applied the reading to the deed of partition (exhibit PL3) on the ground that it was a “domestic arrangement.” No such arrangement is within the intendment of section 63(2), and in any case the arrangement cannot properly be so described having regard to the right of the appellants in respect of the legal estate under the head-lease exhibit PL1.

The foregoing notwithstanding as stated already under ground 1, the appellants, having been aware of the breach of the provisions of the head-lease since 1958 elected not to forfeit the lease then, but accepted the “half-rents” for about seventeen years thereafter during which the 1st respondent had erected a building on his own portion of the partitioned land, must be taken as having waived the right to forfeiture and an avoidance of the assignment (exhibit PL.2). They are estopped in equity as stated already and besides, it will be fraudulent on the part of the appellants to now try to take advantage of the breaches complained of, which they have acquiesced in for so long. (See further, H.N.O. Abbey and ors, v. S. K. Ollenus 14 WACA 567 at 568).

In view of the foregoing all the grounds of appeal fail and the appeal is hereby dismissed with costs assessed at N300 in favour of the respondents.

UCHE OMO, J.C A. (Presiding): I have had the privilege of reading in draft the lead judgment of my learned brother, Omololu-Thomas J.C.A. just delivered. I entirely agree with this judgment and have nothing further to add thereto. I will also dismiss this appeal with costs to the respondents assessed at N300.00 only.

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SULU-GAMBARI, J.C.A.: I entirely agree with the judgment just delivered by my learned brother, Omololu-Thomas, J.C.A., a draft of which I have had the privilege of reading.

This appeal entirely fails and it is accordingly dismissed with costs as assessed in the lead judgment.

Appeal Dismissed.

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