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R. A. UKEJIANYA
V.
J. I. UCHENDU
THE WEST AFRICAN COURT OF APPEAL, HOLEN AT LAGOS, NIGERIA
20TH DAY OF APRIL, 1950
2PLR/1950/43 (WACA)
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OTHER CITATION(S)
2PLR/1950/43 (WACA)
(1950) XIII WACA PP. 45-47
LEX (1950) – XIII WACA 45 – 47
BEFORE THEIR LORDSHIPS:
BLACKALL, P.
AMES, Ag. C.J., NIGERIA
LEWEY, J.A.
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BETWEEN:
R. A. UKEJIANYA – Plaintiff-Appellant
AND
J. I. UCHENDU – Defendant-Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CIV.APP.3205/50.
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REPRESENTATION
Mbanefo — for the Appellant
Bell-Gam — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Temporary Occupation Licence issued under Crown Lands (Temporary Occupation) Regulations – Purported Partition – Correct judgment based on wrong reasons will not be interfered with – Rights of licensee expire at the expiration of one year – Distinction between temporary occupation licence and tenancy from year to year – Court will not issue order which is unenforceable.
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CASE SUMMARY
The appellant was the plaintiff.
The appellant was the holder of a temporary occupation licence issued under the Crown Lands (Temporary Occupation) Regulations. The trial Judge found that there had been a partition in 1934. This Court held that the so-called partition in 1934 had no legal validity. Appellant’s Counsel argued that because the trial Judge based his judgment on his incorrect finding the judgment could not stand. The question of the rights of a holder of a temporary occupation licence were also fully canvassed. By a lease dated the 7th October, 1945, the Resident leased the plot to the respondent and the appellant’s claim was for an order compelling the respondent to transfer the plot to him (the appellant).
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. The judgment of the trial Court was correct and could not be disturbed because it was based on a misdirection.
2. A temporary occupation licence is not analogous to a tenancy from year to year. All rights under a temporary occupation licence automatically expire at the end of a year and, thereafter, the licence has no legal interest.
3. On the 7th October, 1945, when the Resident granted a lease to the respondent, all rights of the appellant had ceased. The Resident was perfectly entitled at that date to grant a lease to anybody.
4. A Court of law will not issue an order which is unenforceable. The respondent could not transfer the plot without the Governor’s consent. The Court cannot compel the Governor to give his consent and, therefore, it should not make an Order which the respondent might not be able to carry out.
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MAIN JUDGMENT
The following Judgment was delivered:
BLACKALL, P.
Several points of interest were raised in this appeal. In the first place it was contended by Mr. Mbanefo that the Judge’s finding that there had been a partition in 1934 was wrong.
What seems to have happened is that the parties were under the impression, as so many of these people a.re, that they can transfer an interest in Crown Lands in the same way as they can dispose of land in their native village by native law and custom, but that is not the case. The rights of a holder of a Temporary Occupation Licence are governed by the terms of the Licence and of the Crown Lands (Temporary Occupation) Regulations, and one of these is that neither the licence nor any of the rights conferred by it shall be transferred to any other person. I agree, therefore, with the appellant’s submission that the so-called partition of 1934 had no legal-validity.
Mr. Mbanefo went on to argue that if that were so, the judgment of the Court below cannot stand, because the learned Judge based his judgment on his finding on that point. It seems to me, however, that what this Court has to decide is whether the decision of the Judge was right; not whether his reasons were.
It is only if the misdirection had caused him to come to a wrong decision that it would be material.
I pass then to consider what rights, if any, the appellant had at the date when the lease of 7th October, 1945, was granted to the respondent. The evidence, so far as it goes, goes to indicate that the Temporary Occupation Licences held by the appellant expired at the beginning of September. The onus was on the appellant to show that the Licence was in existence at the date of the lease, and he has been unable to do so; but Mr. Mbanefo argues that even if the Temporary Occupation Licence had expired, the appellant still had an interest in the premises, because he was in the same position as a tenant from year to year; and he argued that appellant’s rights continued until the Crown determined them, which he contends the Crown did not do.
The first point, then, is whether a Temporary Occupation Licence is analogous to a tenancy from year to year. In my opinion it is not. The essence of a tenancy from year to year, or indeed any other tenancy, is that it must be a term for a certain period in the first instance; it may be for a year, it may be for a month, or it may be for a week. But the Temporary Occupation Licence under these Regulations is nothing of the sort. The only reference to a period is that the licence cannot be granted in any event for longer than a year, but during that year the Commissioner of Lands or the Resident may at any time give the occupier notice to quit.
Now, a tenancy from year to year may not be made subject to a provision repugnant to the nature of a yearly tenancy, so it cannot be made terminable before the expiration of at least one year. It differs, therefore, from a Temporary Occupation Licence which can be made terminable at any time.
In my opinion a Temporary Occupation Licence is exactly what it says it is a licence to occupy land so long as the Resident allows the bolder to occupy it, but subject to the condition that at the end of a year all the rights of the occupier expire. It is true that, in practice, the licence is usually renewed, unless there is some reason for not doing so, but the Resident is under no legal obligation whatever to do so. The only right, in my opinion, that an occupier whose licence is not renewed, has, is that given by section 11 of the Crown Lands Ordinance (Cap. 45) that is to say, within three -months of the termination otherwise than by forfeiture, he may remove any buildings erected by him, unless the Governor elects to purchase the property. It was open to the appellant to do that, but he did not do so. As, then, it has not been shown that the Temporary Occupation Licence was in existence at the date of the 1945 lease, the appellant has no legal claim to any rights under that lease. That really disposes of the case, but there are a couple of other points which I will briefly touch upon.
The first is that a Court of law will not issue an order which is unenforceable. Now the plaintiffs claim was for an Order compelling the defendant to transfer the plot, but the respondent could not do this without the Governor’s consent. This Court cannot compel the Governor to give his consent, and, therefore, it should not make an Order which the respondent might not be able to carry out. The question of fraud was also raised in argument, although it does not seem to have been clearly pleaded, but I need not go into that point further than to say that the learned Judge accepted the evidence for the respondent and clearly found that there was no fraud. I see no reason to differ from his finding on that point.
The respondent appears to have placed the facts before the Resident and the Resident, we must assume, acted properly, and having made such enquiries as he thought fit, decided to give the lease to the respondent. But whether he made enquiries or not, he was perfectly entitled to so grant it without any explanation to anybody.
In my opinion, therefore, this appeal should be dismissed with costs assessed at 15 guineas.
C. G. AMES, AG. C. J. (NIGERIA).
I concur.
ARTHUR LEWEY, J.A.
I concur.
Appeal dismissed.
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