Appeal Court. 10 June, 1937.
Appeal from Judgment of High
Court.
Claim for possession of land and
removal by defendant-respondent
of buildings thereon-Land bought
at public sale under execution
order of Court-Native Lands
Acquisition Ordinance, Cap.
89 of Laws of Nigeria-Effect
of sections 3 and 4
thereof.
Held: The first, second and
fourth plaintiffs-appellants
having no
locus standi,
and the third
plaintiff-appellant having lost
his right of enjoyment in the
land by reason of a judicial
sale, all appeals are dismissed.
The facts of the case are
sufficiently set out in the
judgment. C.
W. Clinton
for the Appellants.
E. J. Alex Taylor
(with him
Dove Edwin)
for the Respondent.
The following judgment was
delivered :-
PETRIDES, C.]., GOLD COAST.
Appellants by their writ dated
the 13th February, 1936, sought
(a)
to recover possession of a piece
of land of the value of £140 on
the waterfront at Calabar, and
(b) the removal by the
respondent of the buildings
thereon.
The trial Judge, in a reasoned
judgment, which sets out all the
material facts, dismissed both
claims.
By a deed dated the 1st May,
1923, three members of the
Eyamba family, of whom the then
Etubom was one (therein called
the lessors, which term included
the successors in title of the
lessors where the context so
admitted), leased the land in
dispute under the Native Lands
Acquisition Ordinance (Chapter
89) to the third plaintiff, a
Syrian of Calabar, therein
called the lessee, which term
included the successors in title
of the lessee where the context
so admitted. This lease was duly
approved by the
LieutenantGovernor on the 25th
May, 1923.
One of the terms of the lease
was that the lessee should erect
on the land leased buildings to
the value of at least £300. It
is admitted that the third
plaintiff erected buildings on
the land of a value of more than
£2,000 and by a series of
advances paid rent up to 1942.
In
pursuance of a judgment of the
High Court of the CalabarAba
Judicial Division against the
third plaintiff, a writ of
Fi. Fa.
issued. The land in dispute and
the buildings thereon were
apparently seized in execution
under this writ. The notice of
sale by auction (Exhibit " J ")
contained a number of conditions
of sale, of which numbers I, 2,
5 and 6 are in the following
terms :-
•. 1. All these above buildings
are on leasehold lands. Leases
are all in the hands of the
judgment debtor, and intending
purchasers are to make their own
arrangements with the landlords
.
•. 2. The Deputy Sheriff gives
no guarantee as to the Title to
the Lands .
•. 5. The purchaser shall be
entitled to the possession of
the lot immediately after the
full payment of the purchase
money .
•. 6. Upon the payment of the
residue of the purchase money
within the time above specified,
and provided that the sale has
become absolute, or has been
confirmed by the Court, the
Court shall cause to be given to
the purchaser a certificate to
the effect that the purchaser
has purchased the right, title
and interest of the judgment
debtor in the lot."
The sale took place on the 27th
January, 1936, and the property
sold was knocked down to the
defendant for a sum which has
been stated in this Court to
have been £2,900. A certificate
of purchase (Exhibit "F") was
issued on the 21st February,
1936, after Mr. Clinton, Counsel
for the plaintiff, had stated in
Court on the 18th February that
he was not opposing the issue of
certificate of purchase.
Before this certificate was
issued the plaintiffs launched
this action.
It will be seen from the
plaintiffs' writ and statement
of claim that they do not allege
that the defendant took
possession of the property in
dispute before the writ was
issued, and they have given no
evidence that such was the case.
It is true that the defendant
says he sent a bed to the
premises soon after he bought
them, but there is no evidence
that the bed was sent before the
date of the writ or that he took
possession of the premises
before that date. It is admitted
that the defendant is and has
been in possession of the
premises from the time he took
possession soon after the sale.
Of the five grounds of appeal
filed by the appellant the first
only was relied upon by
appellants' Counsel in his
arguments to this Court. This
ground reads :-
" The judgment is wrong in law
and in contravention of the
Native Lands Acquisition
Ordinance."
Appellants' Counsel admitted
that the notice of sale (Exhibit
" J ")
is a notice of sale
of the whole of the third
plaintiff's interest in the land
in dispute. He also admitted
that the certificate of title
(Exhibit" F") purports to convey
this interest to· the defendant.
Although appellant's Counsel
admitted that the sale that has
taken place was one that in
effect conveyed the third
plaintiff's interests in the
unexpired portion of the lease
created by the deed of the 1st
May, 1923, to the defendant, he
contended that this sale was
inoperative, in so far as it
purported to transfer the third
plaintiff's right to enjoy the
land in dispute for the
unexpired term of the lease to
the defendant, by reason of
sections 3 and 4 of the Native
Lands Acquisition Ordinance, but
that in so far as it purported
to convey the buildings on the
land to the defendant the
transaction was a good one.
We have therefore to consider
not whether the transaction
purports to be an assignment of
the third plaintiff's rights in
the unexpired portion of the
term created by the lease of the
1st of May, 1923, as this is
admitted, but whether such an
assignment is null and void by
reason of the provisions of
sections 3 and 4 of the Native
Lands Acquisition Ordinance.
If appellants' Counsel's
contention is sound the result
would be that although the
defendant has paid £2,900 for
the unexpired term of the lease,
he would have to deliver up the
land and remove the buildings
thereon without being paid any
compensation.
Section 3 in this Ordinance is
in the following terms :-
tt (a)
No alien shall acquire any
interest or right in or over any
lands within the Protectorate
from a native except under an
instrument which has received
the approval in writing of the
Governor.
tt (b)
Any instrument which has not
received the approval of the
Governor as required by this
section shall bnull
and void."
Now it is perfectly clear that
this section can have no
application in the present case,
for it is obvious that the
defendant has not acquired by
the sale any interest or right
in or over any lands in the
Protectorate from a
native.
All that the defendant has
acquired by this transaction is
all the right title and interest
that the third plaintiff,
a Syrian and therefore ·an
alien,
had acquired and enjoyed by
reason of the deed of the 1st
May, 1923. Such a transaction
clearly does not come within the
ambit of section 3 of the Native
Lands Acquisition Ordinance.
By section 4 of the same chapter
it is provided that it shall be
unlawful for any alien or for
any person claiming under an
alien to occupy any land
belonging to a native unless the
right of the alien to occupy or
authorise the occupation of the
land is evidenced by an
instrument which has received
the approval of the Governor (or
his delegate) in writing and
that any person guilty of this
offence shall be liable on
conviction to a fine or
imprisonment.
It is not necessary to consider
whether the defendant has
committed an offence under this
section before the issue of the
writ as in my opinion it has no
bearing on any issue before this
Court.
The issue this Court has to
decide is whether the
plaintiffs' action for recovery
of the land in dispute was
maintainable on the facts found
by the trial Judge.
It is well established law that
the plaintiffs can only recover
possession of the land on the
strength of their own title, and
not
on the weakness of the
defendant's. It was incumbent
upon the plaintiffs to establish
that they had a right of entry
at the date of the writ.
It
is quite clear that the third
plaintiff had no such right, as
he had, by reason of the
judicial sale of his interest in
the lease of ..
the 1st May, 1923, lost his
right to enjoy the unexpired
portion of
the lease. His appeal must
therefore fail.
As regards the first, second and
fourth plaintiffs it is obvious
that they had no
locus standi
to bring this action and
appellants' Counsel has very
wisely not contended in this
Court that they had.
It is obvious (1) that in the
absence of the Etubom, who is
trustee of all Eyamba land, that
these three plaintiffs could not
bring any action in respect of
Eyamba lands and (2) that even
if they were the proper persons
to bring an action in respect of
such lands they had no right of
entry at the date of the writ.
Furthermore the trial Judge, in
the course of his judgment,
stated :-
" I am satisfied that first,
second and fourth plaintiffs, in
so far as their consent was
necessary (though I am of
opinion that it was not) agreed
to defendant becoming the tenant
under the lease in place of
third plaintiff and that the
claim as far as they are
concerned must fail."
I cannot help being struck by
the amazing effrontery of these
three appellants prosecuting the
action in the Court below and
the appeal before this Court
after the Eyamba family had been
paid £50 on the 1st day of
April, 1936, on which date these
appellants were not parties to
the action, as a consideration
for the Eyamba family
authorising the defendant to
sub-let the premises, as
evidenced by Exhibit" E," which
was signed by the first and
second defendants and other
members of the family, including
the Secretary, and bore the
official stamps of the Eyamba
family.
I am of the opinion that the
appeal of all the appellants
should be dismissed with costs.
KINGDON, c.J., NIGERIA.
I concur.
BUTLER LLOYD, J.
I concur.