➥ CASE SUMMARY OF:
Gregory Obi Ude v. Clement Nwara & Anor. (1993) – SC
by PipAr Chima
Supreme Court – SC.282/1990
➥ JUDGEMENT DELIVERED ON:
Friday, February 12, 1993
➥ AREA(S) OF LAW
Nemo day quod non habet.
➥ NOTABLE DICTA
⦿ ONCE A STATUTE PRESCRIBES A METHOD, OTHER METHODS ARE EXCLUDED
It is trite that once the law has prescribed a particular method of exercising a statutory power, any other method of exercise of it is excluded: so there can be no question of the lessor in this case recovering possession by resorting to a right of re-entry or any other type of self-help. I agree with Chief Umeadi that although section 28(1) of the Law states that the lessor “may enter a suit”, “may” should be construed as mandatory i.e. as meaning “shall” or “must”. – Nnaemeka-agu, JSC. Ude v. Nwara (1993)
⦿ THE RULE OF ESTOPPEL PREVENTS ONE BLOWING HOT & COLD
By operation of the rule of estoppel a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or, as it is said, to approbate and reprobate. He cannot be allowed to mislead another person into believing in a state of affairs and then turning round to say to that person’s disadvantage that the state of affairs which he had represented does not exist at all or as represented by him. – Nnaemeka-agu, JSC. Ude v. Nwara (1993)
⦿ TENANCY BY ESTOPPEL
Now tenancy by estoppel is a well known principle of common law and equity. Under this principle, a landlord cannot question the validity of his own grant, nor can the tenant question it while he is enjoying possession of the land. – Nnaemeka-agu, JSC. Ude v. Nwara (1993)
⦿ REVERSIONARY INTEREST CANNOT BE SOLD WHEN ANOTHER IS IN POSSESSION
It appears to me to be the law that a reversioner, such as the 2nd respondent, cannot sell his reversionary interest, that is his particular estate, as fee simple while another person is in possession of the land. He must first either first recover possession from that other person in possession or sell his reversionary interest subject to that person’s possession. For what the reversioner has in such a case is the freehold reversion subject to the possession in another person and not a fee simple absolute free from incumberances. It must be noted that interests in land, whether legal or equitable, are carved out as it were on a plane of time. Any holder of a particular interest or estate who attempts to sell more than the quantum of his estate will be caught by the maxim: nemo dat quod non habet (no one can give or sell what he has not). – Nnaemeka-agu, JSC. Ude v. Nwara (1993)
⦿ STATE LANDS ARE FOR PUBLIC PURPOSES – SUCH LANDS ARE HELD IN TRUST
Their powers under the law are limited to leasing them to diverse persons, and accepting forfeitures and surrenders of leases. There appears to be substance in this contention. State lands in Nigeria invariably originate from compulsory acquisitions of such lands from individuals or communities for public purposes. Such lands are held in trust by the acquiring government for use for the public purpose for which the land was acquired and in accordance with the public policy of the state as enshrined in the laws of the state. – Nnaemeka-agu, JSC. Ude v. Nwara (1993)
⦿ WHAT IS A POWER OF ATTORNEY?
A power of attorney is a document, usually but not always necessarily under seal, whereby a person seised of an estate in land authorizes another person (the donee) who is called his attorney to do in the stead of the donor anything which the donor can do, lawfully usually clearly spelt out in the power of attorney. Such acts may extend from receiving and suing for rates and rents from, to giving seisin to, third parties. It may be issued for valuable consideration or may be coupled with interest, in either case it is usually made to be irrevocable either absolutely or for a limited period. A power of attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so is not an instrument which confers, transfers, limits, charges, or alienates any title to the donee: rather it could be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far, it is categorized as a document of delegation: it is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power, to any person including himself then there is an alienation. – Nnaemeka-agu, JSC. Ude v. Nwara (1993)
⦿ BREACH OF COVENANT IS A MERE GROUND FOR FORFEITURE
The 2nd respondent’s argument is also misplaced in another respect: It assumes that upon breach of a covenant in a lease, the forfeiture of the lease is automatic. It is, however, trite that a breach of a covenant is merely a ground for forfeiture. The lessee may, however, apply for relief. – Nnaemeka-agu, JSC. Ude v. Nwara (1993)
⦿ COURT SHOULD AVOID INTERPRETATION THAT WOULD REDUCE THE LEGISLATURE TO FUTILITY
Where there are two choices of interpretation. The court should always avoid the interpretation that would reduce the legislation to futility and adopt the one that would bring about the effective result.
Gregory Obi Ude
1. Clement Nwara & Anor.
2. Attorney-general of the Rivers State.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
Mr. Ogunwole. (for 1st respondent)
Director of Civil Litigation, Mr. Dappa – Addo. (for 2nd respondent)
➥ CASE HISTORY
Plaintiffs case as revealed by his statement of claim was that before the Nigerian Civil War he was granted a lease of a plot of land at No.2 Umuoji Street, Port Harcourt (now called No.2 Ekpeye Street), by the Rivers State Government. Through his attorney. Mr. S.E. Anusionwu, he developed the plot by erecting a storey building on it. During the Civil War the property was treated as abandoned property by the Rivers State Government and managed by the Rivers State Abandoned Property Authority, but that it was duly released to him after the Civil War and, through his attorney, he managed the property and paid all necessary rates therefore. When the original lease which was for 7 years expired on the 31st of December, 1971, the government promised the plaintiff, through his attorney, that it would renew the lease. In 1983 the 1st defendant came to the premises of the plot in dispute and interfered with plaintiff’s possession of the property by harassing plaintiffs’ tenants therein, claiming that he had bought the property from the Government (2nd defendant). Hence the plaintiff sued the defendants, as I have stated.
1st defendant’s case as revealed by his statement of defence is that the property in dispute was state land, the 7 – year lease of which to the plaintiff had expired on 31st December, 1971, and was never renewed. He denied that plaintiffs attorney erected a building on the land. He contended, without admitting, that if the plaintiff gave a power of attorney to Mr. Anusionwu, it lapsed on the expiry of the lease. He denied that the property was released to the plaintiff, and contended that, if there was such a release, it expired on the expiry of the lease and that the said management of the property and any payment of rates did not create any interest in the property in favour of the plaintiff. He denied that the Ministry of Lands ever agreed to renew the lease. Rather, the property reverted to the 2nd defendant. He had offered to purchase the property from the government in consideration of the sum of N52,000.00 and his offer was accepted, after which he paid the sum of N5,200.00 as part of the purchase price; also N520.00 as legal fees and N40.00 as non-refundable deposit for forms to the Government. Thereafter he entered into an agreement with the Government to purchase the property.
In a Port Harcourt High Court, by an action commenced by a writ of summons, the plaintiff claimed against the defendants jointly and severally as follows: “1. A declaration that the plaintiff is the Lessee of the leasehold property situate at No.2, Ekpeye (Umuoji) Street, Diobu, Port Harcourt (Plot I, Block 261, Wobo Layout). 2. A declaration that the sale of the said property by the Rivers State Government to the 1st defendant is null and void and of no effect whatsoever. 3. N2,000.00 general damages for trespass. 4. A perpetual injunction restraining the defendants, their agents and/or servants from further acts of trespass to the premises.”
In the end Trial Court dismissed plaintiffs claim for a declaration of title and found for him in his claims for trespass and injunction. On defendants’ appeal to the Court of Appeal, the appeal was allowed and plaintiff’s claim was dismissed in its entirety, hence his, appeal to this court.
➥ ISSUE(S) & RESOLUTION
[APPEAL: ALLOWED, IN PART]
I. WHETHER ON THE EXPIRATION OF A LEASE granted under the State Lands Law, Cap. 122 Laws of Eastern Nigeria, 1963, the land together with any improvements thereon reverts automatically to the state.
I.A. I shall now examine the provisions of section 10 of the State Lands Law of Eastern Nigeria setout above. Clearly the substantive part of the section says that upon the determination of such a lease any such improvements like the land itself reverts to the State. If the section had stopped there, it would have been said without argument that the section incorporated the principle of the maxim quic quid plantatur solo, solo cedit. But the proviso makes a special provision with respect to leases for periods of under thirty years. It gives a separate treatment to that and enables the lessee to remove such buildings and other improvements within three months of the termination of the lease, unless the Minister elects to purchase such buildings. … In other words, it is the intendment of the proviso to Section 10 of the State Lands Law applicable in the Rivers State that the maxim quid quid plantatur solo solo cedit shall not apply to buildings and other improvements on state lands such as the instant which have been leased for periods of less than thirty years. This is, therefore, an exception to the application of the maxim.
I.B. The law enables the appellant to stay on and remove the buildings after the lease of the land has expired. While the appellant was authorized by statute to stay on, there is yet another right at common law which then enured to him after the expiration of the statutory period of three months, that is that of a tenant at sufferance. As a lessee whose term of lease had expired but who held over and remained in possession without the landlord’s assent or dissent (for which see: Remon v. City of London Real Property Limited (1921) 1 K.B 49,50), he became a tenant at sufferance, having come upon the land lawfully in the first place. As the appellant paid no rents. He remained a tenant at sufferance, liable for use and occupation of the land but who could rely upon his possession of the land against the whole world until the lessor recovers possession from him in the manner authorized by law.
I.C. Without doubt, the proviso to section 10 gives the lessee whose lease has expired a statutory right to remain in possession. Although it was to be for a period of three months. there is no provision as to what would happen thereafter and, furthermore, at common law he has also become a tenant at sufferance and so remains in possession. It is obviously because of this situation that section 28 has made provision for the manner whereby the lessor could recover possession from him, that is by entering a suit in the High Court to recover possession.
➥ ENDING NOTE BY LEAD JUSTICE – Per Nnaemeka-agu JSC
The conclusion I feel bound to reach is that as on the 16th of August, 1983, the date when the 2nd respondent purported to have sold the land in dispute to the 1st respondent as fee simple absolute in possession, the appellant was in possession of the land in dispute as a lessee whose lease had expired but who was holding over, the purported sale to the 1st respondent was invalid. So, the appellant is still in possession even though his lease which expired on the 31st of January, 1971, has not been renewed.
The learned trial Judge as well as the court below was right to have held that the appellant was not entitled to a declaration that the appellant was a lessee of the property in dispute. But clearly, as he was at all material times in possession, the entry upon the land by the respondents to harass his tenants on the land in dispute was in trespass.
So I allow the appeal and set aside the judgment of the Court of Appeal, including the order as to costs. I restore the judgment of the High Court. For the avoidance of doubt:
(i) As there is no subsisting lease of the property in dispute the claim for a declaration that he is the lessee fails and is dismissed;
(ii) I hereby declare that the sale of the property by the Rivers State Government to the 1st defendant is null and void and of no effect;
(iii) I award N100.00 as damages for trespass against the defendants jointly and severally;
(iv) I also make an order of injunction against the defendants, their agents, privies and servants from any further acts of trespass on the premises known as No. 2 Ekpeye (Umuoji) Street, Port Harcourt. The appellant shall have the cost of this appeal which I assess at N1,000.00 against each respondent in this court and N500.00 against each respondent in the Court of Appeal.
➥ REFERENCED (STATUTE)
Section 10 of the State Lands Law (Cap. 122) Laws of Eastern Nigeria, 1963, applicable in the Rivers State: In the absence of special provisions to the contrary in any lease under this law all buildings and improvements on State Lands, whether erected or made by the lessee or not, shall on the determination of the lease, pass to the State without payment of compensation: Provided, however, that, in the absence of any special provision to the contrary in the lease, when land is leased for a term not exceeding thirty years the lessee shall be at liberty within three months of the termination (otherwise than by forfeiture) of such lease to remove any buildings erected by him on the land leased during the currency of such lease, unless the Minister shall elect to purchase such buildings.”
Section 28 of the State Lands Law (Cap. 122) Laws of Eastern Nigeria, 1963: (1) When any person without right, title or licence or whose right, title or licence has expired or been forfeited or cancelled, is in occupation of state land, the Attorney-General, or the Principal Lands Officer, or some person appointed by the Attorney-General, may enter a suit in the High Court to recover possession thereof. (2) If on the hearing of such suit the defendant does not appear, or appears but fails to establish an absolute right or title to the possession of the land, the court shall order that the possession of the land sought to be recovered shall be given by the defendant to the plaintiff, either forthwith or on or before such day as the court shall think fit to name, and shall issue such process as may be necessary for carrying such order into effect.
➥ REFERENCED (CASE)
⦿ WE SHOULD AVOID INTERPRETATION WHICH WOULD REDUCE THE LEGISLATIVE TO FUTILITY
Nokes v. Doncaster Amalgamated Collieries, Limited (1940) A,C, 1014, Viscount Simon, L.C, staled at page 1022: “If the choice is between two interpretations, the narrower of which will fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.”
⦿ MAKING A PERSON BELIEVE IN A STATE OF THINGS CREATES ESTOPPEL
Joe Iga & Ors v. Ezekiel Amakiri & Ors. (1976) 11 S.C 1, this court stated at pp.12-13: “If a man by his words or conduct willfully endeavours to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; again, if a man either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts. Thirdly, if a man whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented.”
➥ REFERENCED (OTHERS)