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CHIEF SALAMI AGBAJE
V.
HABIB SULEIMAN AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
28TH DAY OF MAY, 1954
2PLR/1954/33 (WACA)
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OTHER CITATION(S)
2PLR/1954/33 (WACA)
(1954) XIV WACA PP. 535 – 537
LEX (1954) – XIV WACA 535 – 537
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, AG. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
CHIEF SALAMI AGBAJE — Appellant
AND
HABIB SULEIMAN AND ANOTHER — Respondents
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REPRESENTATION
Agbaje, with A. A. Fani Kayode — for the Appellant
H. O. Davies — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Native Lands Acquisition Ordinance (Cap. 144), sections 3 (1) and (3), regulations 1 to 4 — Approval of alien-Approval of instrument.
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CASE SUMMARY
Appeal by the defendant: No. 189/1953.
The parties made an agreement for a building lease of a plot in a Southern Province, but the owner (appellant now, defendant below) refused to execute the deed of lease, though he had received rent in advance and his ground of refusal was untrue. He was sued and lost; and in his appeal he made, for the first time, a submission that the agreement was null and void under the above section, the plaintiffs being aliens.
Section 3(1) provides that:-
”No alien shall acquire any interest or right in or over any land within the Southern Provinces from a native, unless such alien has been approved in writing by the Governor in that behalf, and then only under an instrument which, and the terms whereof, have also been so approved.”
And section 3(3) makes a transaction or instrument not so approved null and void. A procedure is laid down (with forms of instruments) in regulations made under the Ordinance. The alien has to supply certain particulars (regulation 1); the District Officer must satisfy himself that the alien is of good character and desirable as a resident or trader (regulations 2 and 3) and may prepare a draft instrument and submit it with a report to the Resident for transmission to the Regional Lands Officer and approval by the Lieutenant-Governor of the Region. The facts were that the plaintiffs took an application to the District Officer, who being satisfied with the purpose of the lease and knowing them to be desirable persons put up at their request the draft agreement for the lease, and when the parties had signed it submitted it for the Lieutenant-Governor’s approval, which he communicated to them in writing.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
(1) The objection, though not raised at the trial, raised a question of mixed law and fact which the Court of Appeal would consider.
(2) The facts established that section 3(1) of the Ordinance and the regulations made thereunder had been sufficiently complied with.
Case cited:-
(1) J. A. Odulota v. Joseph Nahman, W.A.C.A. Appeal No. 160/1953, decided on 28th November, 1953; distinguished.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
The first ground of appeal argued relates to an objection to the plaintiffs’ claim which was not taken at the trial. It is, however, a question of mixed law and fact and one that this Court will consider.
The main facts are fully dealt with in the judgment appealed from, which ordered the defendant-appellant to specifically perform the agreement hereinafter referred to.
It is sufficient to say that the defendant-appellant entered into an agreement for a building lease with the plaintiffs-respondents, who are both aliens, in respect of a plot of land at Gbaji II, Ibadan, but he refused to execute the deed of lease in pursuance of that agreement, his solicitors having intimated, before the deed was submitted for execution, that he did not consider himself bound by it as his consent to its terms had been obtained by material misrepresentations. The agreement provides that the lessor, the defendant-appellant, shall obtain the consent of the head Chief, the Olubadan, and of the Governor to the granting of the lease and their execution of and endorsement of such consent on the lease. The lease was to accord with the provisions of the Native Lands Acquisition Ordinance (Cap. 144) and the regulations made thereunder. It should be explained that the Governor’s powers under the Ordinance are delegated to the Lieutenant-Governor of the Region.
On the 29th April, 1952, the defendant-appellant received from the plaintiffs-respondents the sum of £1,200 in terms of the agreement as two years rent in advance in respect of the proposed lease.
The pleas that the agreement was obtained by misrepresentation and that its terms were vague and the parties not ad idem were rightly rejected by the learned trial Judge, who records in his judgment an impression of the defendant-appellant as an honest old gentleman who was being impelled by the influence of other persons to endeavour to avoid his contract.
Mr. Agbaje, counsel for the defendant-appellant, submits that the agreement, admittedly made under the Ordinance referred to, is null and void and therefore unenforceable because it contravenes section 3 (1) of that Ordinance with the result stated in section 3 (3) thereof.
Section 3 (1) provides:-
“No alien shall acquire any interest or right in or over any land within the Southern Provinces from a native, unless such alien has been approved in writing by the Governor in that behalf, and then only under an instrument which, and the terms whereof, have also been so approved.”
And section 3 (3):-
“Any transaction and any instrument by or under which an alien purports to acquire any interest or right in or over any land within the Southern Provinces which has not been duly approved in accordance with the provisions of this section shall be null and void and of no legal effect.”
The contravention alleged is that the approval in writing of the Governor in that behalf to the plaintiffs-respondents, as aliens, to the acquisition of an interest in land was not obtained prior to the agreement sought to be enforced.
In support of this contention Mr. Agbaje cited the judgment of this Court in J. A. Odulota v. Joseph Nahman (1) in which the Court, as obiter dictum, observed that the sections of the Ordinance referred to require not only the approval of the terms of the instrument by which an alien acquires an interest in land but also approval by the Governor in writing of the alien as a person to acquire such interest, which, in that case, was not proved.
In my opinion the facts in that case so differ from the case under consideration that they do not support Mr. Agbaje’s submission.
That was a case of competing leases. The alien’s lease was granted in point of time after the plaintiffs’ lease. The lessors, who later executed the alien’s lease, wrote him to the effect that their efforts to obtain approval of a lease to him had failed as he was an alien. Later the Olubadan and his Councillors (but not the lessors) by letter requested the District Officer, Ibadan, to ratify their decision to grant a lease to the alien. There was no record of a reply to that letter, but the Olubadan, some months later, wrote the alien that the Resident’s approval (for the Governor) had been given. In those circumstances it was most pertinent to investigate whether the Governor’s approval had been granted to the alien as a negotiating party to a transaction which would defeat the prior interest of the plaintiff, a native.
In the present case, the evidence of the District Officer, Mr. Simpson, the plaintiffs-respondents’ first witness, establishes that section 3 (1) and the regulations under Cap. 144 were sufficiently complied with. He says the plaintiffs-respondents took an application to him to lease the land from the defendant-appellant. He knew the land. He looked up the survey sheet. He was told the purpose of the lease. He knew the plaintiffs-respondents well ‘and was satisfied that they were both desirable people. He eventually put up the draft agreement for lease at the request of the plaintiffs-respondents.
Thus regulations 1 to 4 under Cap 144 were observed. After the parties had signed it, the District Officer submitted the agreement for lease for the Lieutenant-Governor’s approval, and it was approved by him-a fact which was communicated to the parties by the District Officer in writing. Considering that the agreement had been drafted by the District Officer himself, it is right to assume that the report required by regulation 2 was also submitted to the Lieutenant-Governor, that it was a satisfactory report, and that the approval was of the plaintiffs-respondents as negotiating .aliens as well as of the terms of the agreement. This ground of appeal therefore fails.
The other ground argued by Mr. Agbaje is that the trial Judge erred in his assessment of the plaintiffs-respondents’ damages.
Having considered the submission, I can find no reason for interfering with the damages awarded, which the defendant-appellant could have substantially minimised by complying earlier with the decree for specific performance.
I would therefore dismiss the appeal with costs.
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FOSTER-SUTTON, P.
I concur.
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DE COMARMOND, AG. C.J., NIGERIA.
I concur.
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Appeal dismissed.
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