Joseph Nahman V. J. A. Odutola (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Leases—Lessee with prior lease.
Native Lands Acquisition Ordinance (Cap. 144), section 3 (1) and (3)—Alien making agreementfor lease without approval.
Evidence—Evidence Ordinance (Cap. 63), section 34 (1)—Evidence in other proceedings—No proof that witness not available—Record of proceedings put in.

Facts

Sections 3 (1) and (3) of the Native Lands Acquisition Ordinance provide
that:—
“ (1) No alien shall acquire any interest or right in or over any land within the Southern Provinces from a native, unless such alien has been approved in writing by the Lieutenant-Governor in that behalf, and then only under an instrument which, and the terms whereof, have also been approved.
“(3) Any transaction and any instrument by or under which an alien purports to acquire any interest or right in or over any land within the Southern Provinces which has not been duly approved in accordance with the provisions of this section shall be null and void and of no legal effect.”

Section 34 (1) of the Evidence Ordinance provides that:—
“Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the Court considers unreasonable:

“Provided:—
“(a) that the proceeding was between the same parties or their representatives in interest;
“(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and
“(c) that the questions in issue were substantially the same in the first as in the second proceeding.”

The parties were competing lessees in respect of a plot at Ibadan.
The appellant, defendant below, made an agreement for lease. He, being an alien, required approval under the Native Lands Acquisition Ordinance, but was told he could not have it, and this was conveyed to the members of the family who had made the agreement with him.

Then the said members as representing the family gave a lease on 1st May, 1950, to the respondent-plaintiff, who had it registered on the 25th May.

The defendant asked the Olubadan in Council for reconsideration and the Olubadan wrote to him on 5th August that the Resident’s approval had been given and that the defendant was at liberty to proceed with the building on the land leased to him by the family as his lease had been approved.

Thereafter on the 22nd August, 1950, the same four persons who had given a lease to the plaintiff gave a lease (not expressly in a representative capacity but this does not really bear on the case) to the defendant for a term beginning with the 1st June,
1950, and this lease was registered on the 29th August, 1950.

Prior to this lease to the defendant, the plaintiff sued the family for an injunction to restrain them from alienating the land in his lease. In that suit a District Officer gave evidence. The Judge held that the evidence was inconclusive as to whether the family was competent to grant a valid lease to the plaintiff.

The demise in the lease given to the defendant on the 22nd August, 1950, was expressed to be made with the consent of the Olubadan of Ibadan for himself and on behalf of the Chiefs and people of Ibadan. On the 2nd July, 1951, a deed was entered into by the Olubadan for his Chiefs and people as lessor and the said members of the family as lessees who, having surrendered any claim of title to the land, received a long demise for the family from 1st June, 1950, at a rent of a shilling per annum and covenanted not to assign or part with possession without the Olubadan’s consent, and to pay him a share of the rent received from sub-letting.

In the action brought by the plaintiff to recover possession from the defendant,
the defendant lost and appealed arguing that he had a better title on the ground
that the land was vested in the Olubadan and Council and not in the family;
he pointed in support to the evidence of the District Officer in the earlier suit
between the plaintiff and the members of the family, the record of which suit
had been admitted in evidence; and he also relied on his earlier agreement for
lease as the first step in a continuous transaction culminating in his lease.

Held

(1) Notwithstanding the fact that the whole record of the former suit between the plaintiff and the lessors was admitted in evidence by consent, the conditions laid down in section 34 (1) of the Evidence Ordinance were not established at the time the record was admitted in evidence for the reception of the evidence of the District Officer, and his statements in the former suit could not be accepted as evidence of the Olubadan and Council’s title to the land.

(2) Section 3 (1) and (3) of the Native Lands Acquisition Ordinance require, not only the approval of the terms of the instrument by which an alien acquires an interest in land, but also approval in writing of the alien as a person to acquire such interest, and that was not proved in this case.

(3) The letter from the Olubadan telling the defendant that he was at liberty to proceed to build on the land leased to him by the family was an admission that the family had title to the land; and the defendant did not and could not take a term of years as the family had already divested themselves of the term by the lease they had given to the plaintiff.

Appeal dismissed.