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EFEFIOM JOHN EYAMBA& 3 ORS v. JOSEPH ROTHOS ANTHONY KOURI

JELR 81013 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]

Coram
Cor. KINGDON and PETRIDES, C.JJ., and BUTLER LLOYD, J.

Judgement

PETRIDES, C.J., GOLD COAST.

Appellants by their writ dated the 13th February, 1936, sought (a) to recover possession of a piece of land of the value of £140 on the waterfront at Calabar, and (b) the removal by the respondent of the buildings thereon.

The trial Judge, in a reasoned judgment, which sets out all the material facts, dismissed both claims.

By a deed dated the 1st May, 1923, three members of the Eyamba family, of whom the then Etubom was one (therein called the lessors, which term included the successors in title of the lessors where the context so admitted), leased the land in dispute under the Native Lands Acquisition Ordinance (Chapter 89) to the third plaintiff, a Syrian of Calabar, therein called the lessee, which term included the successors in title of the lessee where the context so admitted. This lease was duly approved by the Lieutenant-Governor on the 25th May, 1923.

One of the terms of the lease was that the lessee should erect on the land leased buildings to the value of at least £300. It is admitted that the third plaintiff erected buildings on the land of a value of more than £2,000 and by a series of advances paid rent up to 1942.

In pursuance of a judgment of the High Court of the Calabar-Aba Judicial Division against the third plaintiff, a writ of Fi. Fa. issued. The land in dispute and the buildings thereon were apparently seized in execution under this writ. The notice of sale by auction (Exhibit “J”) contained a number of conditions of sale, of which numbers 1, 2, 5 and 6 are in the following terms :--

“1. All these above buildings are on leasehold lands. Leases are all in the hands of the judgment debtor, and intending purchasers are to make their own arrangements with the landlords.

“2. The Deputy Sheriff gives no guarantee as to the Title to the Lands.

“5. The purchaser shall be entitled to the possession of the lot immediately after the full payment of the purchase money.

“6. Upon the payment of the residue of the purchase money within the time above specified, and provided that the sale has become absolute, or has been confirmed by the Court, the Court shall cause to be given to the purchaser a certificate to the effect that the purchaser has purchased the right, title and interest of the judgment debtor in the lot.”

The sale took place on the 27th January, 1936, and the property sold was knocked down to the defendant for a sum which has been stated in this Court to have been £2,900. A certificate of purchase (Exhibit “F”) was issued on the 21st February, 1936, after Mr. Clinton, Counsel for the plaintiff, had stated in Court on the 18th February that he was not opposing the issue of certificate of purchase.

Before this certificate was issued the plaintiffs launched this action.

It will be seen from the plaintiffs' writ and statement of claim that they do not allege that the defendant took possession of the property in dispute before the writ was issued, and they have given no evidence that such was the case. It is true that the defendant says he sent a bed to the premises soon after he bought them, but there is no evidence that the bed was sent before the date of the writ or that he took possession of the premises before that date. It is admitted that the defendant is and has been in possession of the premises from the time he took possession soon after the sale.

Of the five grounds of appeal filed by the appellant the first only was relied upon by appellants' Counsel in his arguments to this Court. This ground reads :--

“The judgment is wrong in law and in contravention of the Native Lands Acquisition Ordinance.”

Appellants' Counsel admitted that the notice of sale (Exhibit “J”) is a notice of sale of the whole of the third plaintiff's interest in the land in dispute. He also admitted that the certificate of title (Exhibit “F”) purports to convey this interest to the defendant.

Although appellant's Counsel admitted that the sale that has taken place was one that in effect conveyed the third plaintiff's interests in the unexpired portion of the lease created by the deed of the 1st May, 1923, to the defendant, he contended that this sale was inoperative, in so far as it purported to transfer the third plaintiff's right to enjoy the land in dispute for the unexpired term of the lease to the defendant, by reason of sections 3 and 4 of the Native Lands Acquisition Ordinance, but that in so far as it purported to convey the buildings on the land to the defendant the transaction was a good one.

We have therefore to consider not whether the transaction purports to be an assignment of the third plaintiff's rights in the unexpired portion of the term created by the lease of the 1st of May, 1923, as this is admitted, but whether such an assignment is null and void by reason of the provisions of sections 3 and 4 of the Native Lands Acquisition Ordinance.

If appellants’ Counsel's contention is sound the result would be that although the defendant has paid £2,900 for the unexpired term of the lease, he would have to deliver up the land and remove the buildings thereon without being paid any compensation.

Section 3 in this Ordinance is in the following terms :-- “(a) No alien shall acquire any interest or right in or over any lands within the Protectorate from a native except under an instrument which has received the approval in writing of the Governor. “(b) Any instrument which has not received the approval of the Governor as required by this section shall be null and void.”

Now it is perfectly clear that this section can have no application in the present case, for it is obvious that the defendant has not acquired by the sale any interest or right in or over any lands in the Protectorate from a native. All that the defendant has acquired by this transaction is all the right title and interest that the third plaintiff, a Syrian and therefore an alien, had acquired and enjoyed by reason of the deed of the 1st May, 1923. Such a transaction clearly does not come within the ambit of section 3 of the Native Lands Acquisition Ordinance.

By section 4 of the same chapter it is provided that it shall be unlawful for any alien or for any person claiming under an alien to occupy any land belonging to a native unless the right of the alien to occupy or authorise the occupation of the land is evidenced by an instrument which has received the approval of the Governor (or his delegate) in writing and that any person guilty of this offence shall be liable on conviction to a fine or imprisonment.

It is not necessary to consider whether the defendant has committed an offence under this section before the issue of the writ as in my opinion it has no bearing on any issue before this Court.

The issue this Court has to decide is whether the plaintiffs' action for recovery of the land in dispute was maintainable on the facts found by the trial Judge.

It is well established law that the plaintiffs can only recover possession of the land on the strength of their own title, and not on the weakness of the defendant's. It was incumbent upon the plaintiffs to establish that they had a right of entry at the date of the writ.

It is quite clear that the third plaintiff had no such right, as he had, by reason of the judicial sale of his interest in the lease of the 1st May, 1923, lost his right to enjoy the unexpired portion of the lease. His appeal must therefore fail.

As regards the first, second and fourth plaintiffs it is obvious that they had no locus standi to bring this action and appellants' Counsel has very wisely not contended in this Court that they had.

It is obvious (1) that in the absence of the Etubom, who is trustee of all Eyamba land, that these three plaintiffs could not bring any action in respect of Eyamba lands and (2) that even if they were the proper persons to bring an action in respect of such lands they had no right of entry at the date of the writ.

Furthermore the trial Judge, in the course of his judgment, stated :-

“I am satisfied that first, second and fourth plaintiffs, in so jar as their consent was necessary (though I am of opinion that it was not) agreed to defendant becoming the tenant under the lease in place of third plaintiff and that the claim as far as they are concerned must fail.”

I cannot help being struck by the amazing effrontery of these three appellants prosecuting the action in the Court below and the appeal before this Court after the Eyamba family had been paid £50 on the 1st day of April, 1936, on which date these appellants were not parties to the action, as a consideration for the Eyamba family authorising the defendant to sub-let the premises, as evidenced by Exhibit “E,” which was signed by the first and second defendants and other members of the family, including the Secretary, and bore the official stamps of the Eyamba family.

I am of the; opinion that the appeal of all the appellants should be dismissed with costs. KINGDON, C.J., NIGERIA. I concur.

BUTLER LLOYD, J. I concur.

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