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JOSEPH NAHMAN
V.
J. A. ODUTOLA
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS
28TH DAY OF NOVEMBER, 1953
W.A.C.A. NO. 160/1953
2PLR/1953/59 (WACA)
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OTHER CITATION(S)
2PLR/1953/59 (WACA)
(1953) XIV WACA PP. 381-385
LEX (1953) – XIV WACA 381-385
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
COUSSEY, J.A.
DE COMARMOND, S.P.J., NIGERIA
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BETWEEN:
JOSEPH NAHMAN – Appellant
AND
J. A. ODUTOLA – Respondent
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ORIGINATING COURT(S)
Appeal by the defendant from the decision of the Supreme Court, Ibadan Judicial Division
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REPRESENTATION
G. B. A. Coker, with Teesdale — for the Appellant
F. R. A. Williams, with Ogubanfo — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LEASE:- Lessee with prior lease – Native Lands Acquisition Ordinance (Cap. 144), section 3(1) and (3) — Alien making agreement for lease without approval – How treated
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PRACTICE AND PROCEDURE LAW
EVIDENCE:- Evidence Ordinance (Cap. 63), section 34(1) — Evidence in other proceedings — No proof that witness not available — Record of proceedings put in
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CASE SUMMARY
Sections 3(1) and (3) of the Native Lands Acquisition Ordinance provide that:-
“(1) 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 Lieutenant-Governor in that behalf, and then only under an instrument which, and the terms whereof, have also been approved.
“(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.”
Section 34(1) of the Evidence Ordinance provides that:-
“Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the Court considers unreasonable:
“Provided:-
“(a) that the proceeding was between the same parties or their representatives in interest;
“(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and
“(c) that the questions in issue were substantially the same in the first as in the second proceeding.”
The parties were competing lessees in respect of a plot at Ibadan.
The appellant, defendant below, made an agreement for lease. He, being an alien, required approval under the Native Lands Acquisition Ordinance, but was told he could not have it, and this was conveyed to the members of the family who had made the agreement with him.
Then the said members as representing the family gave a lease on 1st May, 1950, to the respondent-plaintiff, who had it registered on the 25th May.
The defendant asked the Olubadan in Council for reconsideration and the Olubadan wrote to him on 5th August that the Resident’s approval had been given and that the defendant was at liberty to proceed with the building on the land leased to him by the family as his lease had been approved. Thereafter on the 22nd August, 1950, the same four persons who had given a lease to the plaintiff gave a lease (not expressly in a representative capacity but this does not really bear on the case) to the defendant for a term beginning with the 1st June, 1950, and this lease was registered on the 29th August, 1950.
Prior to this lease to the defendant, the plaintiff sued the family for an injunction to restrain them from alienating the land in his lease. In that suit a District Officer gave evidence. The Judge held that the evidence was inconclusive as to whether the family was competent to grant a valid lease to the plaintiff.
The demise in the lease given to the defendant on the 22nd August, 1950, was expressed to be made with the consent of the Olubadan of Ibadan for himself and on behalf of the Chiefs and people of Ibadan. On the 2nd July, 1951, a deed was entered into by the Olubadan for his Chiefs and people as lessor and the said members of the family as lessees who, having surrendered any claim of title to the land, received a long demise for the family from 1st June, 1950, at a rent of a shilling per annum and covenanted not to assign or part with possession without the Olubadan’s consent, and to pay him a share of the rent received from sub-letting.
In the action brought by the plaintiff to recover possession from the defendant, the defendant lost and appealed arguing that he had a better title on the ground that the land was vested in the Olubadan and Council and not in the family; he pointed in support to the evidence of the District Officer in the earlier suit between the plaintiff and the members of the family, the record of which suit had been admitted in evidence; and he also relied on his earlier agreement for lease as the first step in a continuous transaction culminating in his lease.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
(1) Notwithstanding the fact that the whole record of the former suit between the plaintiff and the lessors was admitted in evidence by consent, the conditions laid down in section 34(1) of the Evidence Ordinance were not established at the time the record was admitted in evidence for the reception of the evidence of the District Officer, and his statements in the former suit could not be accepted as evidence of the Olubadan and Council’s title to the land.
(2) Section 3(1) and (3) of the Native Lands-Acquisition Ordinance require, not only the approval of the terms of the instrument by which an alien acquires an interest in land, but also approval in writing of the alien as a person to acquire such interest, and that was not proved in this case.
(3) The letter from the Olubadan telling the defendant that he was at liberty to proceed to build on the land leased to him by the family was an admission that the family had title to the land; and the defendant did not and could not take a term of years as the family had already divested themselves of the term by the lease they had given to the plaintiff.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
To my mind this is a plain case. The parties are competing lessees in respect of a plot of land at Ogunpa Ifeleye, Ibadan. The plaintiff’s lease is dated 1st May, 1950. It is expressed to be granted by Mosadogun, the Mogaji of the Fadesere family and three other members of that family for and on behalf of themselves and the other members of the family as lessors and is for a term of 65 years from the date thereof at a yearly rent of £100 per annum, and in respect of which the lessors acknowledged payment by the plaintiff of £1,000, being ten years’ rent in advance.
The defendant’s lease is dated 22nd August, 1950. The same four persons are lessors, but not in a representative capacity. The demise is expressed to be made with the consent of the Olubadan of Ibadan for himself and on behalf of the Chiefs and people of Ibadan for a term of 60 years from the 1st June, 1950, at the same rental as the plaintiff’s lease. The defendant testified that he had paid £200 in respect of two years’ rent in advance.
The plaintiff’s lease was registered in the Lands Registry on the 25th May, 1950, whilst the defendant’s lease was registered on the 29th August, 1950.
To avoid the priority that the plaintiff would enjoy by prior registration the defendant produced an agreement for lease with his lessors (but not including the Olubadan) for a lease of the land to be granted the defendant as soon as the Ibadan Native Authority approved that the plot of land belongs to the proposed lessons. This agreement purports to have been made on the 18th October, 1949. It was not, however, stamped, as the endorsement thereon shows, until the 24th October, 1951, when a penalty of £10 was also paid in respect of it.
The defendant is a Syrian merchant and therefore an alien in Nigeria. On the 25th April, 1950, the District Officer wrote to the defendant informing him that the Olubadan in Council had decided since 1948 not to grant (meaning, I think, sanction) any lease to aliens of land in the area mentioned in the agreement above referred to. A copy of this letter was sent to Mosadogun. On the 28th April, 1950, Mosadogun and the three other persons who later executed the defendant’s lease wrote the defendant that their efforts to obtain approval of a lease of the land to him had failed as he was an alien. An offer was made of land at another site. On the 2nd May, that is, a day after the plaintiff’s lease had been executed by and on behalf of the Fadisere family, the defendant wrote the Olubadan in Council asking that the decision not to grant him a lease might be reconsidered.
On the 25th May, 1950, the Olubadan and his Councillors addressed a letter to the District Officer, Ibadan, asking that their decision to grant a lease to the defendant be ratified.
There is no record of a reply by the District Officer to this letter but on the 5th August the Olubadan wrote the defendant that the difficulty that faced the Fadesere family had been removed, that the Resident’s approval had been given and that the defendant was at liberty to proceed with the building on the land leased to him by the family as his lease had been approved.
On the 2nd July, 1951, however, a deed was entered into by the Olubadan of Ibadan for his Chiefs and people as lessor of the one part and Ishola Mosadogun and the three other members of the Fadesere family, on behalf of the family as lessees, whereby in consideration that the lessees, the Fadesere family, had surrendered and thereby surrendered any claim of title to the land called therein “the Premises situate at Ogunpa, Ibadan” as shown on a plan annexed to the deed the Olubadan demised the land to the family for a term of 100 years from the 1st June, 1950, at an annual rental of one shilling. By this deed the family as lessee covenanted (inter alia) not to assign or part with the possession of the land or any building thereon without the Olubadan’s consent and to pay to the Olubadan one-tenth of any rent received by the family for any sub-lease of the premises or part thereof.
The plaintiff initiated these proceedings against the defendant in the Supreme Court, Ibadan Judicial Division, for possession of the property, claiming that after he had taken possession of the land under his lease the defendant entered upon the land and, in spite of the plaintiff’s protest and warning of his title, erected a building thereon and remained in unlawful occupation. The Court, after reviewing the facts and the law applicable thereto, entered judgment for the plaintiff decreeing possession of the land as against the defendant.
From this judgment the defendant appeals.
The defendant-appellant submits that at the time of the plaintiff’s lease, namely 1st May, 1950, ownership of the land in dispute was vested in the Olubadan and Council of Ibadan and not in the Fadesere family and, consequently, that the plaintiff who took a lease from the family only had no right to possession whilst the defendant, who took a lease from the family and the Olubadan, has a better title than the plaintiff. It is argued that if the learned trial Judge had paid due weight to the evidence of a Mr. Simpson, District Officer (Lands) of Ibadan, given in an earlier suit between the present plaintiff and his lessors, the Fadesere family and instituted before the date of the defendant’s lease, wherein the plaintiff sought an injunction to restrain the said family from alienating the land comprised in his lease to another person in breach of his, the plaintiff’s lease from the family, he, the trial Judge, would have held in the present suit that the Olubadan and his Council were the real owners of the land.
The proceedings in the suit referred to were admitted in evidence in this suit by consent as exhibit D. The judgment in that suit is, undoubtedly, admissible and relevant, being between the plaintiff and his lessors, who the defendant-appellant also claims to be privy to. In fact the trial Judge in that suit held that the evidence was inconclusive as to whether the Fadesere family was competent to grant a valid lease to the plaintiff. Learned counsel for the defendant-appellant contends, however, that this Court should examine the evidence of Simpson and bold that it establishes the title of the Olubadan in Council. In my opinion Simpson’s evidence cannot be accepted as proving anything of the sort for the simple reason that the conditions laid down in section 34 (1) of the Evidence Ordinance (Cap. 63) were not established at the time the proceedings were admitted in evidence for the reception of Simpson’s former testimony and this notwithstanding that the whole record in the former suit was admitted in evidence by consent.
I refer to the rule of evidence that the best evidence must be given and that no evidence will be received in substitution until it is established that primary evidence cannot be given owing to the witness being dead, or unable to be found or incapable of giving evidence or that he is kept out of the way by the adverse party or that his presence could not be obtained without unreasonable delay or expense. None of these conditions was established as to Mr. Simpson and, therefore, his previous statements could not be accepted by the Court below as substantive evidence or evidence-in-chief of the Olubadan and Council’s title to land.
The learned trial Judge was right in my opinion in holding that there was no evidence before him to support the defendant-appellant’s contention that by native law and custom a lease could not be granted by the Fadesere family without the approval of the Olubadan in Council. He was also right in holding that the judgment in the former suit did not dispose of the issue before the Court or debar the plaintiff from bringing his action against the defendant-appellant.
It is clear that the Fadesere, a land-owing family of Ibadan, could demise the land in dispute. Having granted the land to the plaintiff as they did by exhibit A, certain members of the family were led to believe that a lease to an alien could be effected which would override the plaintiff’s lease by the expedient of adding the Olubadan and Council to the defendant’s lease as consenting party. It seems to have been overlooked that by exhibit R, of the 5th August, 1950, the Olubadan had written the defendant-appellant that he was at liberty to proceed to build on the land leased to him by the family, an admission that the Fadesere family had title to the land. Aware, it seems, that the Olubadan and Council claimed to exercise some form of administrative control over the leasing of lands in Ibadan, these four members of the Fadesere family after the lapse of over a year, that is on the 2nd July, 1951, entered into a so-called lease with the Olubadan-in-Council by which they purported to surrender the title to the land in dispute to the Olubadan-in-Council in consideration of the immediate demise of the same land to the defendant’s lessors for a term of 100 years as from the 1st June, 1950, a date prior to the defendant’s lease.. But the family had a reversionary interest only at that date. It is obvious that the lease duly granted to the plaintiff could not be affected by this deed ex post facto. If it were countenanced any lessor wishing to rid himself of an unprofitable tenancy could simple resort to this device.
In the Court below the defendant-appellant relied on the agreement for lease, exhibit F, dated 18th October, 1949, as conferring on him an equitable interest in the land prior in date to the defendant’s lease. The learned trial Judge rightly held that this equitable right could not be enforced against the plaintiff, a lessee under seal without notice of it. He further rightly held that the defendant-appellant’s agreement for a lease was null and void by virtue of the provisions of sections 3 (1) and 3 (3) of the Native Lands Acquisition Ordinance (Cap. 144) as the defendant, an alien, had not been approved in writing by the Lieutenant-Governor prior to entering into the agreement for a lease nor had his agreement been so approved.
In the argument to this Court learned counsel for the appellant intimated that he did not rely on exhibit F as conferring an equitable interest. He argued that exhibit F did not need approval as it was the first step in a continuous transaction which culminated in the lease, exhibit O, to the defendant, a lease which bears the approval of the Governor’s delegate endorsed thereon. He thus abandoned one of his main defences in the Court below. In this dilemma exhibit O does not in my view save the defendant-appellant for as I interpret them. sections 3 (1) and 3 (3) of the Ordinance in question require, not only the approval of the terms of the instrument by which an alien acquires an interest in land, but also approval in writing of the alien as a person to acquire such interest; and that was not proved in this case. Further having been thrown back on exhibit O, in view of the finding that the Olubadan-in-Council bad no title to the land it follows that the defendant-appellant did not and could not take a term of years thereunder as the Fadesere family by the plaintiff’s lease, exhibit A. had already divested themselves of the term in favour of the plaintiff. The family as already pointed out, had only a reversionary interest in the land on the 22nd August, 1950.
The other grounds of appeal argued are subordinate to the grounds I have dealt with. They do not in my opinion, affect the judgment appealed from. I can find no reason to dissent from the learned trial Judge’s findings in law or fact and I would dismiss this appeal.
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VERITY C. J.
I concur.
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DE COMARMOND, S. P. J.
I concur.
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Appeal dismissed.
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