Action
for damages for breach of
contract for lease of land
Non-registration of a document
renders it inadmissible under
section
15
of Land Registration Ordinance,
1924.-Appeal allowed.
Held: The objection to the
admission in evidence of a
document conferring a right to
claim specific performance and
for
damages for breach was a sound
one, as the document was an
instrument within the meaning of
the Land Registration
Ordinance, 1924 and had not
been registered.
(2) Although the
defendant-appellant may have
been charged with a duty under
the agreement not to obstruct
the obtaining of the Governor's
approval which was necessary
under section 3A of the Native
Lands Acquisition Ordinance, no
breach of that duty is alleged
and the claim for damages must
fail.
The facts are fully set out in
the judgment.
E.
J.
Alex Taylor (with him
A. Alakija) for Appellant.
W.
Wells Palmer for
Respondents.
The following joint judgment was
delivered :--
KINGDCN, C.J, NIGERIA, PETRIDES,
C.J., GOLD COAST AND BUTLER
LLOYD, J., NIGERIA.
In this case brought in the
Ibadan Division of the High
Court, the Plaintiffs' claim
against the Defendant was for
"specific performance by the
defendant of his contract or
engagement to lease the premises
situate at Lebanon Street,
Ibadan, known as the property of
the Plaintiffs for a period of
three years from the 1st day of
November, 1937." In the
alternative the Plaintiffs
claimed f1 H2 :I S damages for
breachh of contractt.
There were pleadings in which
the Plaintiffs alleged a verbal
agreement to sub-Jet a shop to
the Defendant and that such
verbal agreement was reduced to
writing on the 19th September,
19~7. In his defence the
Defendant expressly pleaded the
Native Lands Acquisition
Ordinance, all the parties
being" Aliens" within the
meaning of that Ordinance.
The case first came on for
hearing on the 8th February,
1939, before Graham Paul, ].,
when the document relied upon by
the p1r·jntiffs was received in
evidence by consent and marked
Exhibit "A." It is in the
following terms :--
•. Dear Sir,:Mr. Nayif Fawaz
Ibadan, 19th September, 1937.
Re rent shop ill our new
buildings at [badan.
As per our verbal conversation
we now agree to give you a lease
for a period of three years and
two years option from the date
the buildings are finished. of
the shop being No. G in the
building on the left at the
yearly rental of (£96)
ninety-six pounds.
Payable yearly in advance for
the first year and thereafter
every six months in advance.
It is understood that the
building mentioned above is the
one on the left going down the
new street from Labanon Street.
This is subject to the approval
of the Government authorities in
Ibadan.
Yours faithfully,
For: M Elkalil & R. S. Moukarim
(Sgd.) R. S. MIoukarim
•• I agree to take a lease of
the ahove mentioned shop in the
terms set above.
(Sgd.) :- Nayif Fawaz."
A consent order was then made to
the effect that Plaintiffs
should submit a formal sub-lease
and Defendant should execute it.
Nowhere from the record does it
appear that the Plaintiffs did
so submit a sub-lease, but the
parties continued at
logger-heads, and on the 26th
February, 1940, the case, again
came before the Court, then, and
hereafter in this case,
constituted by .John, J. It was
adjourned till the 8th April,
1940, and again till the 6th
May, 1940, on which date the
hearing was started de novo.
At this fresh hearing the
written agreement, the terms of
which have already been set out,
was again tendered in evidence
by the Plaintiffs. Objection to
its admission was taken by
Defendant's Counsel on the
ground that it was an instrument
affecting land and, not having
been registered, was
inadmissible under the
provisions of section 15 of the
Land Registration Ordinance 1924
(No. 36 of 1924). The objection
was overruled, the learned Trial
Judge being of the opinion that
the document was not an "
instrument" within the meaning
of the Land Registration
Ordinance, 1924, and that " no
interest in the land is affected
in this case." The document was
admitted as Exhibit "A." After
the close d the Plaintiffs' case
the Defendant called no evidence
but relied upon his statutory
defence and his objection to the
admission of Exhibit" A."
Counsel for the
Plaintiffs-Respondents has told
us in this Court that in the
Court below" it was realized
early in the proceedings that
the claim for specific
performance could not be
proceeded with on account of the
Ordinance and it was abandoned."
He did however press his
alternative claim for damages
for breach of contract. This
claim the learned Trial Judge
upheld giving judgment for the
Plaintiffs for .£192 and costs.
On appeal to this Court the
Defendant-Appellant relies upon
the same two points upon which
he relied in the Court below,
namely, that Exhibit" A " was
not admissible in evidence and
that the claim must fail by
virtue of the provisions of the
Native Lands Acquisition
Ordinance (Cap. 89). As to the
first point we are of opinion
that the document, Exhibit" A,"
which may be described as an
agreement for the lease of a
shop, should have been rejected
when it was tendered in
evidence. If it were an
agreement between natives (when
of course it would not contain
the clause subjecting it to the
approval of the Government
authorities) there can be no
question but that, upon the
authority of Abdallah Jammal
v. Namih Saidi and Yesufu
Fetuga (11 N.L.R. 86)-with
which we see no reason to
differ-it would be an instrument
within the meaning of the Land
Registration Ordinance, 1924
(No. 36 of 1924). We cannot
subscribe to the view of the
learned Trial Judge that it was
possible for the Defendant to
have the use of a shop under a
sub-lease" without any interest
or right in the land being
conveyed." It may, however, be
argued that ill view of the
inclusion of the" subject to
approval" clause the document
would not become an "
instrument" within the meaning
of the Ordinance unless and
until the necessary approval
were given. However this may be,
\t was tendered in evidence as
the document upon which the
claim was founded, i.e. as a
document which had conferred on
the Plaintiffs (and therefore
necessarily on the Defendant) a
right to claim specific
performance by execution of a
lease and in the alternative to
claim damages for breach. If it
is such a document as the party
tendering it held it out to be
when tendering it, then it is
clearly an instrument within the
meaning of the Land Registration
Ordinance, 1924, and it was
tendered as affecting land. This
being so, the objection to its
admission was, in our view,
sound and should have been
upheld and the document
rejected.
In our opinion, therefore, the
appeal must succeed upon the
ground that the judgment of the
Court below is based upon a
document which should not have
been received in evidence.
As to the second point Counsel
for the Respondents agrees with
the contention of the Appellant
that the claim for specific
performance cannot b~ enforced.
This indeed, seems clear from
the provisions of section 3A of
the Native Lands Acquisition
Ordinance (inserted therein by
Ordinance No.5 of 1938), the
material part of which reads :-
"3A. Where any interest or right
in or over any land has been
acquired by an alien from a
native with the approval in
writing of the Governor as
provided for in section 3 such
interest or right shall not-
H
(a)
be transferred to any other
alien without the approval in
writing of the Governor; "
It is not suggested in this case
that the written approval of the
Governor has been given, nor was
any evidence led that it had
been sought.
But Respondents' Counsel
contends that, though this
agreement cannot be specifically
enforced, damages can be
recovered for a breach of it. It
may be that the Defendant became
charged with a duty under the
agreement, namely not to
obstruct the obtaining of the
Governor's approval and, if and
when that approval was obtained,
to execute a lease in proper
terms when it was submitted to
him. But the statement of claim
does not allege a breach of that
duty and no evidence was led to
prove a breach of it.
Consequently the Plaintiffs are
not entitled to recover any
damages in respect thereof. The
appeal therefore succeeds on
this point also.
The appeal is allowed, the
judgment of the Court below,
including the Order as to costs.
is set aside and it is ordered
that in the Court below the
Plaintiffs' claim do stand
dismissed and judgment be
entered for defendant. The
Appellant is awarded costs in
this Court assessed at 35
guineas and in the Court below
assessed at ] 5 guineas.