In the landmark case of John Chidiak v David Coker, decided by the West African Court of Appeal in Lagos on 22nd May 1954, the Court examined critical issues surrounding lease agreements, covenants to repair, and the requirements for sub-leases under the Crown Lands Ordinance (Cap. 45). This case provides essential insights into property law in Nigeria, particularly the legal obligations of tenants and landlords when a lease is executed post an unforeseen event such as a fire.
The dispute arose from a sub-lease of Crown Land in Port Harcourt. The plaintiff, David Coker, held a lease from the Government of Nigeria, under which he had constructed buildings. He entered into a sub-lease with the defendant, John Chidiak, initially for a term that later expired. Both parties then agreed to continue the lease for an additional term. A fresh sub-lease was executed by the defendant, which included a recital that the Governor’s prior consent had been obtained, a habendum clause starting from the expiry of the previous term, and a covenant obligating the lessee to repair the premises.
Unfortunately, a fire destroyed the buildings during the defendant’s occupation, after he executed the sub-lease but before the Resident’s approval on behalf of the Governor was formally given. The plaintiff sued the defendant for breaching the covenant to repair and initially obtained judgment. The defendant appealed, raising fundamental legal questions about the enforceability of the covenant under these circumstances.
At the heart of the appeal was section 7(b)(iii) of the Crown Lands Ordinance, which stipulates:
“Except as otherwise prescribed or provided in the lease, there shall in every lease under this Ordinance be implied by virtue of this Ordinance: covenants by the lessee 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.”
The Court had to determine whether the covenant to repair was binding when the sub-lease was executed after the fire and whether the plaintiff had properly obtained the Governor’s consent, a condition precedent to a valid sub-lease.
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Facts of the Case Chidiak v David Coker(1954)
The plaintiff held a 99-year lease of Crown Land from the Government of Nigeria, dated 26th November 1932, under which he had erected buildings. The defendant initially occupied the property under an earlier sub-lease that expired on 30th June 1950. Both parties agreed to a new sub-lease for a two-year term beginning 1st July 1950. The defendant executed the sub-lease around July or August 1950, but evidence showed that the plaintiff did not execute the lease until 17th January 1952, the date on which the Resident endorsed the Governor’s approval.
On 2nd December 1951, a fire destroyed the premises. The plaintiff argued that the defendant was liable under the covenant to repair, but the timing of the lease execution and the Governor’s consent created a legal complication. There was no evidence that the Governor’s consent was obtained prior to the fire, and the sub-lease was executed only after the fire.
Legal Issues Chidiak v David Coker(1954)
The primary legal questions addressed by the Court were:
1.Whether the defendant was legally bound by the covenant to repair under a sub-lease executed by the lessor after the destruction of the property.
2.Whether the absence of prior written consent from the Governor invalidated the sub-lease and the plaintiff’s claim for specific performance.
3.The operation of a habendum clause in a lease and its impact on the lessee’s obligations.
Court’s Analysis Chidiak v David Coker(1954)
The Court held that a habendum clause is prospective in operation:
“The operation of the habendum is prospective only, and the lessee in occupation is not liable on the covenant to repair until the lease is executed by the lessor.” (Shaw v. Kay, 154 Engl. Reps. 175)
The Court emphasized that at law, the execution of a lease by the lessor is a condition precedent to the lessee’s liability under covenants attached to 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.” (Cardwell v. Lucas, 2 M. and W. 111)
Applying these principles, the Court noted that although the defendant executed the sub-lease, the plaintiff’s execution—and therefore legal conveyance of the estate—occurred after the fire. As a result, the defendant did not enjoy the estate for which he covenanted to repair:
“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 Exch. R. 477; Swatman v. Ambler, 155 Engl. Reps. 1264; Toler v. Slater, L.R., 3 Q.B. 42)
The Court further clarified that, in equity, a tenant could be bound by the covenant if the agreement could be specifically enforced, but this was not possible here because the plaintiff had failed to establish the Governor’s prior written consent, an essential condition precedent. Without the consent”There was an absolute absence of the estate which the plaintiff purported to demise. Specific performance could not therefore have been obtained.” (Forrer v. Nash, 35 Bear. 167; Brewer v. Broadwood, 22 Ch. D. 109):
“There was an absolute absence of the estate which the plaintiff purported to demise. Specific performance could not therefore have been obtained.” (Forrer v. Nash, 35 Bear. 167; Brewer v. Broadwood, 22 Ch. D. 109)
The Court concluded that the plaintiff had not obtained the Governor’s consent in proper form at the proper time, and the defendant was therefore not liable for damages under the covenant to repair.
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Judgment Chidiak v David Coker(1954)
The appeal was allowed. The Court set aside the judgment of the lower court and entered judgment for the defendant, with costs awarded to him:
“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.
The decision reaffirmed the importance of formal legal compliance in lease agreements, particularly regarding covenants and conditions precedent such as governmental consent. It remains a key authority in Nigerian property law, especially on issues concerning sub-leases of Crown land and the enforceability of repair covenants.
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