3PLR – JANET EBUN AWOLAJA V ALHAJI MOHAMED JIMO SHEHU
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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JANET EBUN AWOLAJA
V
ALHAJI MOHAMED JIMO SHEHU
HIGH COURT LAGOS STATE
FEBRUARY 11, 1972
(SUIT IK/189/70)
LN-e-LR/1972/33 (HC)
BEFORE:
Dosumu J
MAIN ISSUES
Declaration of title to land-Damages for trespass and possession-Trial court dismissing all claims except that for trespass-Plaintiff collecting damages awarded for trespass-Subsequent appeal to Supreme Court-Application restraining defendant from continuing trespass on land in dispute or to transfer same to others-Appointment of receiver for rents on house on land.
REPRESENTATION
Defendant/applicant in person.
Alokolaro for the plaintiff /respondent.
DOSUNMU J.: The plaintiff in the substantive action sued the defendant for the ownership and recovery of possession of the parcel of land situate at Aguda Village, Rate, in the district of Surulere. There were, in addition, claims for damages for trespass and injunction to restrain further acts of trespass.
The action has been tried, and in the judgment of this court delivered on December 20, 1971, the plaintiff lost all the heads of claims except damages for trespass. She was awarded the sum of £200 with costs. I understand that she has since collected this amount from the defendant.
On January 5, 1972, she launched out an appeal against the rest of the judgment to the Supreme Court. On January 8, 1972, she followed up with an application to court praying as follows:
“ 1 (a) An order restraining the defendant/respondent his servants and/or agents from committing further acts of trespass in the property in dispute pending the determination of appeal lodged in this suit.
(b) From selling, transferring, or in any way alienating any interest in the said property pending the determination of appeal lodged to the Supreme Court.
(2) Stay of execution pending the determination of appeal lodged to the Supreme Court.
(3) An order appointing the registrar of the High Court to act as a receiver to collect and receive any rents, profits, moneys that may accrue in the property pending the determination of appeal.”
This application came before my brother Adebiyi J. on January 17, 1972, and he ordered as follows:
“In the circumstances, I order an injunction restraining the defendant/respondent, his servants and/or agents from committing further acts of trespass or from selling, transferring or in any way alienating any interest in the property in dispute pending the determination of the appeal lodged to the Supreme Court in the matter.”
It is clear from the above that the learned judge made no order on the plaintiff’s application for a receiver, possibly due to the paucity of the materials before him because he said: “ I am not satisfied about the third leg. For one thing I have not been told of the rents being payable on the property.” Then on January 21, 1972, the defendant filed the present application seeking for the appointment of a proper person as a receiver with powers to let and receive rents, profits and moneys receivable in respect of the property at No. 4A Nnobi Street, Ikate, Surulere, and to do all such acts and things as may be or become necessary for the management and preservation of the said property until the determination of the appeal to the Supreme Court lodged by the plaintiff /respondent.
It is not in dispute that the property in question is No. 4A Nnobi Street, Rate, Surulere. In the accompanying affidavit the defendant suggests himself for the appointment after stating that the building on the land is practically completed, fit and ready for occupation. The photograph of the said building was exhibited. He stated further that prospective tenants are ready to move in.
Mr. Cole appearing for the defendant/ applicant argued that the effect of the order of injunction made against the defendant is to expose this building to incalculable danger when there would be nobody to go near it, protect or manage it. I do not think that the learned counsel has put the position too high.
According to the affidavit, the defendant has spent some £8,000 on this property, and all this money he expended when there was no injunction against him not to build. It was stated further that in this locality of Ikate it is essential to maintain efficient security against burglary and the like. But the defendant has had to withdraw his nightwatchman in compliance with the order against him. It seems clear to me that there is every reason to apprehend that the defendant who is now applying will be in a worse situation if the appointment of a receiver is delayed. After all the plaintiff has not a penny on this building. On the materials before me, I believe it is just and convenient to appoint a receiver in this case if only to preserve the subject-matter of the appeal.
In all fairness to Mr. Alokolaro who appeared for the plaintiff/ respondent, he did not seem to be opposed to the appointment of a receiver, as indeed he has sought for one in the earlier application. His objection, if I understood him correctly, was that the defendant is not a fit and proper person for the appointment because of the order of injunction which Adebiyi J. made against him on January 17, 1972. 1 have quoted the text of this order above. If the defendant is ever appointed, I do not see how the appointment will be contrary to this order. Put in another way, the defendant can discharge his duties as a receiver clearly within the terms of the said order that he should not sell, transfer, or in any way alienate any interest in the disputed property pending the determination of the appeal. There can be no question of further trespassing if he is appointed a receiver since in that capacity he is an officer of the court.
In Davy v. Scarth [1906] 1 Ch. 55 a partner was appointed a receiver of the partnership assets on the usual terms. There was an argument as to whether he could still keep his remuneration as a receiver and yet be indebted to the partnership. Farwell J. said at page 57 of the report:
“ On principle, I think the latter view is correct, because although fle was a partner, he is also an officer of the court appointed for the convenience of both parties and on the terms that he should do certain work and be paid remuneration therefor. It was an arrangement sanctioned by the court, and as pointed out in the case of Re Regent’s Canal Ironworks Co. to which I have been referred, the honour of the court is involved in seeing that the arrangement is fulfilled with the utmost punctuality by the parties thereto, not of course (as in that case) at the expense of third persons.”
Mr. Alokolaro’s second objection was that the defendant being an interested party is not a fit person for appointment as a receiver. He cited a passage from Halsbury’s Laws of England (3rd ed), Vol. 32, p. 405. In its paragraph 3d it is stated:
“ A party to the action should not be appointed unless by consent, or unless there are special circumstances justifying his appointment in preference to others.”
This passage is not inconsistent with the statement in Kerr on Receivers (13th ed), p. 104 that:
“ but it is competent to the court upon the consent of the parties, and in a proper case without such consent, to appoint as receiver a person who is interested in the subject matter of the action if it is satisfied that the appointment will be attended with benefit to the estate.”
I need hardly say that the parties have not consented to the appointment of one person. In her earlier application the plaintiff wanted the registrar of the High Court. But I share Mr. Cole’s view that the duties required in this particular case are hardly suitable for the registrar to perform. The position is put more clearly in paragraph 15 of the applicants’ affidavit that:
“ 15. I know from experience that new buildings normally require attention for the first six months after completion with regard to defects arising from faulty workmanship or materials used. Such defects may take the form of leaky roof, cracks in the wallplaster.”
I think this is very true, and that the receiver must have the time for this. I must confess that I have a great difficulty in coming to this conclusion, and that is, I cannot think of a more suitable person than the defendant who has expended so much on the property and whose appointment will be attended with benefit to the property.
I do understand the feeling of the plaintiff in this matter. She must feel a bit piqued by this appointment. But she must realise that on the success of her appeal, she would get a very good house free. This is a consolation.
In the result I made an order:
(1) appointing the defendant/ applicant a receiver with powers to let and receive rents, profits and moneys receivable in respect of the property at No. 4A Nnobi Street, Ikate, and to do all such acts and things as may be or become necessary for the management and preservation of the said property pending the determination of the appeal lodged in this matter.
(2) The defendant shall furnish to this court and to the plaintiff’s solicitor within two months from today, or as may be extended, the list of all tenants in the property with full particulars of their names, occupation and rents payable by them. The court and the plaintiff’s solicitor shall also be informed whenever any changes occur in the future.
(3) The defendant/applicant shall enter into a bond in the sum of £2,000 with one surety satisfactory to the chief registrar of this court within 30 days from today.
(4) No order as to costs.
