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3RD JUNE, 1959.

F.S.C. 261/58

3PLR/1959/72 (SC)




LIONEL BRETT, F.J. (Read the Judgment of the Court)








LAND LAW – Competing titles – Court order on sale of land – One party claiming pursuant to court order- The other party not claiming pursuant to Court order – Effect.

ETHICS – LEGAL PRACTITIONERS:- Need for proper training in Solicitor’s work.


BRETT, F.J. (Delivering the Judgment of the Court):

This is an appeal by the Plaintiffs against the judgment of Bellamy, J., in the High Court of Lagos, dismissing their action for damages for trespass. The Respondents did not deny entering on the land in question, but pleaded that they did so as of right, and the real issue to be decided concerns the title to the land. It is admitted that the first Respondent acted throughout as the agent of the sec­ond Respondent and that his defence depends on the title of the second Respondent.

The facts concerning the title are not in serious dispute, and the ques­tion for the Court is the legal effect of the facts. The piece of land in question is situated at Surulere, and formed part of the estate of the late James Wil­liams Martins, who died in 1925, leaving a will. A large piece of land at Suru­lere, in which the plot in question is included, had been his absolute prop­erty, and in a suit instituted in the former Supreme Court in 1931 (hereinaf­ter referred to as the 1931 suit) an order was made that the land should be sold and the proceeds paid into Court. By a subsequent order it was directed that an auctioneer named A. Cardozo was to be employed, if still licensed, otherwise there was liberty to apply. In 1937 the father of the Plaintiffs bought the plot in question from Cardozo, paid the purchase price, for which he ob­tained a receipt and entered into possession. He and after him his sons, re­mained in possession until 1955 when the events which gave rise to the pre­sent action took place, but neither he nor his sons obtained a conveyance.

The second Respondent bases his claim on a conveyance of the fee sim­ple executed in 1954 by Solomon Akinola Martins and Rachael Omolara Martins, two of the plaintiffs in the 1931 suit, and children of the late J. W. Martins, after a sale by private treaty conducted on behalf of the estate by an auctioneer named Okadabi. The two persons who executed the conveyance were not the executors of the will of the late J. W. Martins, but they profes­sed to derive authority to execute the conveyance from an order made in 1939 on a motion brought as part of the 1931 suit by one Mesan Forigan. This gentleman had bought a portion of the land and wishing to obtain a formal conveyance he reasonably enough applied to the Court to appoint these two persons to execute it, the executors of the will for some reason which does not appear in the present case, apparently not being available to do so. He went further, however, than to look after his own interest and took it upon himself to invite the Court to authorise these two beneficiaries to execute all future conveyances relating to the sale of the property. The motion was on notice to the plaintiffs in the 1931, suit, but they were not represented at the hearing, and the Court, on being informed by counsel for the applicant that the plaintiffs agreed, made an order giving the requested authority in respect of such premises as have been or shall be sold in pursuance of order of sale.” I am not prepared to accept the submission made by Mr. Moore on behalf of the appellants, that the effect of the order was to authorise the five plaintiffs in the 1931 suit to execute conveyances, and not merely these two, but the authority, particularly having regard to the circumstances in which it was granted must be construed strictly. It authorised S.A. Martins and R.O. Martins to execute conveyance when a sale had been carried out in pur­suance of the Court order. The respondents must therefore show that the sale to the second respondent was carried out in pursuance of the order for sale made by the Court in the 1931 suit, and this in my opinion, they have failed to do. The order of the Court was for the sale of the land by an au­ctioneer to be appointed by the Court, and it is not pretended that Mr. Okodabi, who conducted the sale by private treaty, had been so appointed. This is not a mere technicality; it was further ordered that the proceeds of sale were to be paid into Court and it appears from the conveyance to the second respondent that payment was made direct to S.A. and R. O. Martins through one E.D. Phillips. On the evidence produced in the High Court the whole transaction would appear to have been in contravention of the order of Court and the Court can hardly be expected to recognise the conveyance as valid. In my opinion, therefore, the respondents have failed to show that the second respondent has obtained a legal title to the land in question, and as their defence to the action depended entirely on the claim to the legal title, it follows that the appellants are entitled to succeed. I would set aside the judgment of the Court below, with the order for costs. Bellamy, J. did not assess the damages which he would have awarded if he had given judg­ment for the plaintiffs. It appears that he accepted the evidence as to special damage in the destruction of growing crops, but that those crops were the property of a licensee of the plaintiffs named Ali Peni, and I do not think the plaintiffs can be awarded anything in respect of them. The value of the land is said not to exceed £100, and on the whole I would award £10 damages with costs in the Court below assessed at £70, and costs of this appeal assessed at £21.

If the legal practitioner who advised the second defendant over the purchase of the plot (not Mr. Odufalu, who appeared for him in this Court) had examined the root of title, and the authority of S.A. and R.O. Martins to convey, with proper care he would have discovered the true state of af­fairs, and it is his failure to do so that has led respondents into the position in which they now find themselves. Few practitioners in Nigeria have had much training in this kind of work, which is usually conducted by a solicitor in countries where the two branches of the legal profession are separated, and I mention the matter not with a view to being gratuitously critical, but in the hope that the committee which is now considering the future training of legal practitioners in this country may see fit to examine the desirability of provid­ing for instruction in this important branch of a practitioner’s work.


Appeal Allowed



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