3PLR – JAMES FAKOREDE AND ANOR V. THE SOLICITOR-GENERAL
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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JAMES FAKOREDE AND ANOR
V.
THE SOLICITOR-GENERAL
WESTERN STATE OF NIGERIA
3PLR/1968/18 (HC)
BEFORE
REPRESENTATION
F.R.A. Williams with him Adegunwa – for the Plaintiffs
Olowofoyeku (Senior State Counsel) – for the Defendants
MAIN ISSUES
REAL ESTATE – Compulsory Acquisition of Land-Certificate of Title—Effect-Public Land Acquisition Law, WR.S.25.
MAIN JUDGEMENT
AYOOLA, J.:-
By their writ as amended, the Plaintiffs claim as follows,namely:-
“(1) that the plaintiffs are not bound by the terms of Deed of lease dated 1st November, 1934, and registered as No. 20 at page 20 in Volume 318 of the Lands Registry, Ibadan; and
(2) that the plaintiffs are entitled to determine the tenancy of the Government of Western Nigeria in respect of the portion of the property covered by the said Deed which they occupy by giving six months’ notice to the said Government.”
The Deed of Lease dated 1st November, 1934 related to areas of land denoted as Ibadan Acquisitions B,C,D,E, & E The plaintiffs’ claim related to Ibadan Acquisition B, and area of 848.962 acres. The background to this case is not much in dispute. Briefly the facts are as follows. On January 27, 1912 a lease of 99 years was executed in favour of the Government of Nigeria in respect of 5,000 acres of land. Acquisition B was part of the land covered by the lease. The “Bale and Members of the Ibadan Council” were described as the lessors. The Deed of lease was put in evidence and marked as Exhibit ‘D’. On August 8, 1931, Government published a Notice of pro-posed acquisition of the land shown in Exhibit’D’. The acquisition was to be compulsorily made under the then Public Lands Acquisition Ordinance. A copy of the Notice was put in evidence and admitted as Exhibit ‘F. On November 1, 1934, the Government executed a Deed of surrender in favour of the Bale and Council. The Deed of Surrender was admitted in evidence as Exhibit ‘E’. On the same day, November 1, 1934, the Bale and Council executed a lease of 999 years in favour of the Government in respect of various areas of land of which Acquisition B is part. The Deed of Lease was admitted in evidence as Exhibit ‘A’. An annual rent of one shilling was reserved in favour of the Bale and Council acting “for and on behalf of them-selves their heirs and successors and the Chiefs and people of Ibadan.” The rent was to be paid only if demanded. On June 28, 1937 a certificate of Title was obtained under the Public Lands Acquisition Ordinance. The Certificate of Title granted a Lease of 999 years in favour of the Government in respect of the areas of land covered by Exhibit A, and on the “same terms, covenants, conditions and stipulations” contained therein. The Certificate of Title was admitted in evidence as Exhibit G. In 1957, that is twenty years after the issue of the Certificate of Title, Exhibit G, James Fakorede and others filed a petition of right which was referred to the High Court for decision. The Petition of Right had the number 1/136/57 of the Ibadan High Court. The Attorney General was made a Defendant. The Ibadan District Council was joined as a co-defendant to the proceedings on August 24, 1959. Statement of Claim, Defence, Reply and a further Defence were filed by the Plaintiff and the Attorney-General respectively. When the proceedings eventually came before His Lordship Somolu J. (as he then was) on May 1963, the following events happened. I quote from the records of proceedings which have been admitted by consent as Exhibit B in this case:
“Adegunwa for Plaintiff Oduntan (State Counsel) for 1st Respondent (i.e. the Attorney General). Tharmi holds brief, Woye’s brief for 2nd and 3rd Respondents. Oduntan says that 1st Respondent has agreed to pay the accrued rent i.e. f1. 9s. (since 1934) to the Olubadan in Council (the successors to the Bale and Council who leased the land to the Nigeria Government) in accordance with the terms of the lease dated 1/11134 and registered as No. 20 at page 20 in Volume 318 of the Lands Registry, Lagos now kept at Ibadan. Adegunwa agrees. Thanni also agrees but says that the 2nd Respondent (Ibadan District Council) will hold the money when paid, as the land belonged to the Bale and Council and not to the Claimants. He agrees that the 2nd respondent was served with the Statement of Claim on 2/9/59 and has not filed any Statement of Defence. The 2nd respondent was served with further pleadings on 27/1/61 but no defence has been filed to that as yet. Order: The 1st respondent (that is the Attorney-General) is hereby dismissed from the case. No order as to costs. The case will be adjourned till 10/6/63 for the 2nd and 3rd respondents to clarify their positions in the case, with 10 guineas costs to the claimants.”
(The Italics is mine)
When the 2nd and 3rd respondents failed to file their defenses the plaintiff’s Solicitor, Mr. Adegunwa brought a motion for judgement by default against them. The motion succeeded, and on 14th June, 1963, the Court rules as follows:-
“Having read the affidavit filed with this motion, and having regard to the chequered history of the case during which the 2nd and 3rd respondents have either by negligence or indifference treated the whole proceedings with levity and this Court with undeserved contempt, I have no hesitation to hold that the application is amply justified. The said respondents were served with Statements of Claims in 1959 and 1961 respectively, but they filed no Statement of Defence. What was filed on the 8th June, 1963 was put into Court without any application to validate it and it is clear from it that the said respondents are not seriously contending that the plaintiff’s family were the owners of the land so acquired. Even if the pre-decessors-in-title or office of the respondents leased it to the Government, they will be deemed to have done so in trust for the owners (plaintiff’s family) and this court will not allow them to keep the rents paid for the land. In any case I am disregarding the Statement of Defence filed in such utter disregard to the rules of Court. There will therefore be judgement for the plaintiff the rent due on the land which is the subject-matter of this petition, since 1934 i.e. £l.9s. as well as subsequent rents payable there-fore. If the £l. 9s. has been paid to the 2nd & 3rd respondents, it is here-by ordered that they should pay it over to the plaintiff, and should desist from collecting further rents in respect of the land in question.”
Subsequent to the above-quoted decision in Exhibit ‘B’, a letter dated August 15, 1963 was written from the Ministry of Lands to the Secretary of the Ibadan City Council. The letter which was put in evidence as Exhibit ‘C’ referred to the decision in Exhibit ‘B’ and requested that the sum of £1.9s.which the Ministry had earlier paid to the Council be paid over to the plaintiffs.
In the “further pleadings” which was filed by the plaintiffs in 1/136/57, the plaintiffs as Petitioners said in paragraph 1 thereof that they “are now in position to admit that the Crown has acquired a 999 year lease of the area claimed on the 8th day of August, 1931”, but they claimed that the rents reserved on the area be paid to them from the 8th of August 1931 up to and including the date of judgement” and the decision in Exhibit °B’ eventually met their demand. The “further Pleadings” was tendered and admitted in evidence as Exhibit ‘H4’.
Upon those facts the plaintiffs now contend, that they are not bound by the deed of lease Exhibit ‘A’ which conferred on the Government of Nigeria (now the Government of the Western State) a lease of 999 years: they say however that the Government of the Western State remained their tenant “only so long as they pay the annual rent of one shilling”. They also plead-ed the decision in Exhibit ‘B’ as stopping the defendant from denying the plaintiff’s title. Consequently the plaintiffs’ claim that they “are entitled to determine the tenancy of the Government of Western Nigeria in respect of the said property by giving six month’s notice to the said Government.” If the plaintiffs are right in their contention, the practical result would be that the Government would have lost the interest created in its favour in the lease Exhibit ‘A’, and which was subsequently reinforced by the Certificate of Title of 1934 Exhibit ‘G’ which gave a lease of 999 years to the Government. If they are right, then the Government would, as they. Contend, only be plain-tiff’s tenant from year to year in respect of the area m dispute on an annual rent of one shilling. Not unnaturally, the defendant contends that “the estate or interest of the Government referred to in the Certificate of Title and/or Deed of Lease subsists in favour of the Government against any rights, titles, interests, trusts, claims and demands whatsoever including the claims now made by the plaintiffs subject to the terms mentioned in the said Certificate of title and/or in the said deed of lease.” The defendant also pleaded limitation law as barring the plaintiffs’ claim. Reliance was also placed on the proceedings and judgement in Exhibit ‘B’, and also on Exhibit ‘H4’.
That a stranger to a contract cannot sue under a contract to which he is not a party is well settled law. (See Scruttons Ltd. v. Midland Silicones Ltd. (1960) 3 W.L.R. 372 affirmed by the House of Lords (1962) 2 W.L.R. 186). It is also true, that a stranger is not bound by a contract to which he is not a party. He is not bound in the sense that no obligation is placed on him by a contract to which he was not a party. Those principle are enunciated by the rules of the Law of Contract, which must of course consequently be subject to statutory exception. Although a person may not be bound by a Contract to which he was not a party, by statutory provision, he may be barred from setting up his rights or interests against another’s right or interest once created and put in a certain form however defective that right or interest might be. One is barred from challenging it for the purpose of exposing its defects. Such protected titles or interests are consequently by statute rendered indefeasible for all practical purposes.
Section 25 of the Public Lands Acquisition provides that Certificate of Title “shall not be questioned or defeasible by reason of any irregularity or error or defect in the notice or want of notice, or any other irregularity or error or defect in the proceedings previous to the obtaining of such certificate.” Not notice to which section 25 refers is provided for the section 5 of the Law which provides thus:-
Whenever the Governor resolves that any lands are required for a public purpose, he shall give notice to the persons interested or claiming to be interested in such lands, or to the persons entitled by this Law to sell or convey the same or to such of them as shall after reasonable inquiry be known to him (which notice may be as in Form A in the Schedule or to the like effect).
If the present plaintiffs were the owners of the land, they had themselves to blame for not putting up their claims when the notice of Acquisition was published on the 8th of August, 1931. If their excuse is that they were not served with notice of acquisition as required by Section 5 of the Public Lands Acquisition as required by Section 5 of the Public Lands Acquisition Law, (Ordinance, it was in 1931), then that plea amounts to one of want of notice, which by the provisions of Section 25 cannot be pleaded in order to defeat an interest which has ripened into one which is covered by a Certificate of Title. Whatever may be his right to follow the compensation or rents received into the hands of whoever received it, the title or interest covered by the Certificate of Title remains protected.
In my opinion, the events which took place during the proceedings in Exhibit ‘B’ are illuminating. Mr. Adegunwa appeared for the plaintiffs in those proceedings on August 24, 1959. In his presence (and it was placed on the Record of the Court), Mr. Oduntan (State Counsel) who appeared for the Attorney General said that the Attorney General (1st Respondent) had agreed to pay the accrued rent i.e. £1.9s. (since 1934) to the Olubadan in Council (the successors to the Bale and Council who leased the land to the Nigeria Government) in accordance with the Terms of the lease dated 1/11/34 (i.e. Exhibit ‘A’ in the case now before me). And Mr. Adegunwa agreed. How can the plaintiffs now be heard to contend the contrary of what their Counsel openly agreed to. Here in Exhibit B’, their Counsel agreed to the proposal of the 1st Respondent that he would pay all rents due since 1934 to the Olubadan-in-Council, (not to his clients) in accordance with the terms of Exhibits A & G. Counsel agreed, and the 1st Respondent was then dismissed from the case, as it would no longer be necessary to keep the 1st respondent in the case since the plaintiffs’ Counsel had agreed to his stand in the matter. If Counsel for the plaintiffs had then contended that his clients were not satisfied that the 1st Respondent continued to pay rent in accordance with the terms of Exhibit ‘A’, their Counsel ought then to have said so, and the issues would then have been fought out on those points between the plaintiffs and the 1st Respondent. On the contrary, the 1st Respondent was by the fact of the Plaintiffs’ consent to his stand was discharged from the case, and the proceedings continued between the plaintiffs on the one hand, and the receivers of the rent on the other hand. Finally the Court ruled that it would not allow the Bale and Council or its successors in office, the Olubadan and Council or the Ibadan District Council or its successors in office, the Olubadan and Council or the Ibadan District Council to keep the rents: they were to return to it the Plaintiffs if they had already collected it for the period 1934 up to the date of judgement, and they were not to collect the rents for the future. Which rents? the rents which were reserved in Exhibits
‘A’ & ‘G’. The Court had held inter alia that if the Bale and Council grant-ed the lease (as in fact they did see Exhibit ‘A’), then they were deemed to have done so in trust for the owners (the plaintiffs). There was no appeal by either side against that decision. The plaintiffs, for who the Bale and Council must be deemed to have executed Exhibit ‘A’ in trust, are now seeking to take and keep the rents created by Exhibit ‘A’ (their right to which was settled in the proceedings in Exhibit ‘B’), but are at the same time claiming that they are not going to recognise the lease created in Exhibit ‘A’ (which was deemed to have been executed, as the judgement in Exhibit ‘B’ says, in trust for them). The Plaintiffs ought not to be allowed to do that, they ought not to be allowed to approbate and reprobate at the same time, or as com-monly said, blow hot and cold. The judgement which brought to life their stale right to rents recognised the terms in Exhibits ‘A’ & ‘G’ as the root of the rent (although it appeared that the Court thought that the land which attracted the Is. rent was the land on dispute before him, whilst in fact, the land in dispute was only part of the land which attracted the annual rent of Is.). The judgement, Exhibit ‘B ‘does no more and no less than to give the plaintiffs the right to the rents reserved in Exhibits ‘A’ & ‘G’. If that were not so it would be curious on what basis the order of rent was being made. The plaintiffs are entitled, the judgement says to the rents and the respondents were forbidden to collect the rents in future. The Judgement does not have the effect of disturbing the lease of 999 years which ensures in favour of the Government. To interpret the judgement Exhibit ‘B’ as having that effect is to read more into it than was actually said in it. Nor can I easily presume that the Court would have had the intention by the terms of Exhibit B to worsen the position of the Government who had been earlier discharged from the case on the express agreement of Counsel for the plaintiffs to the Government’s stand which when properly examined reveals that the Government was not compromising on its interest in Exhibits ‘A’ & ‘G’, no matter who eventually gets the rents due.
As a further point, reference must be made to Exhibit ‘H4’ filed in Suit 1/136/57 in which the plaintiffs themselves said they were (after seeing the pleadings by the Attorney General) “in position to admit that the Crown has acquired a 999 year lease of the area (now in dispute) on 8th August, 1931 “. They went further that the rents reserved be paid to them up to date, namely the rents reserved in the lease which they were then in position to admit. They in fact succeeded in Exhibit ‘B’ in getting the rents for the past and a right to rents for the future. But it was for the rents reserved in Exhibit ‘A’ and which was confirmed in Exhibit ‘G’ that they asked: and it was those rents they got. They cannot in equity take the rents but reject the terms upon which the rents were paid.
As to the argument that where rents are paid on an annual basis, a yearly tenancy is to be presumed; I dare say that it is only a presumption which may be drawn, if there are no facts or indications to the contrary. (See the Guardians of Woodbridge Union v. The Guardians of Coloneis 13 Q.B. 269 116 E.R. page 1266. Here in the case before me such a presumption cannot be drawn having regard to the circumstances which led to the payment of the rent of one shilling per annum. Far from the rent being paid with the intention to create an annual tenancy, it was paid pursuant to the terms created in Exhibit ‘A’, and with the intention of complying with the order of the Court which ruled that henceforth those rents should go directly to the plaintiffs and no longer to the Olubadan and Council. A dispute as to who should receive the rents cannot by any means be extended beyond its legitimate circumference. This Action therefore cannot succeed and it is hereby dismissed. I make no order as to costs.
Action dismissed.
