L.A. Are V Adisa And Nigerian Housing Development Society Ltd (1967)
LawGlobal-Hub Lead Judgment Report
COKER, J.S.C.
The appellant was the plaintiff and the respondents the defendants in an action tried before Ademola J. in the High Court, Ibadan, Western Nigeria. The plaintiffs writ is endorsed as follows:-
‘The plaintiff claims against the defendants-
(i) a declaration that the purported sale of the plaintiffs property situate lying and being at Yemetu opposite University College Hospital, Ibadan, by the second defendant to the first defendant, is illegal and void; and
(ii) an injunction restraining the first defendant from collecting rents from the said property or otherwise proceeding to take possession thereof.’
Pleadings were ordered and delivered. After describing the property concerned and stating that the plaintiff is the owner the Statement of Claim so far as is material to the arguments before us avers as follows:-
‘3. The plaintiff is a native in accordance with the Native Lands Acquisition Law and the second defendant is an alien under the provisions of the said law.
4 (1)-By a deed dated 28th January, 1961, and registered as No. 53 at page 53 in volume 380 of the Lands Registry in the office at Ibadan, the plaintiff purported to convey the said property to the second defendant for a term of 99 years subject to the proviso for redemption contained in the said deed.
5 (1)-In purported exercise of the power of sale conferred by the deed referred to in paragraph 4, the second defendant has sold the said property to the first defendant.
6 The plaintiff will contend at the trial of this action that the deed referred to in paragraph 4 above is void and of no effect because the transaction to which it purported to give effect was not duly approved in accordance with the provisions of the Native Lands Acquisition Law.’
The defendants delivered separate pleadings and both pleadings in substance admit that the plaintiff and the first defendant are ‘natives’ and that the second defendant is an ‘alien’ within the context of the Native Lands Acquisition Law, cap. 80; but both deny that the necessary approval was not obtained and put the plaintiff to the proof of this. At the trial the first defendant called no evidence at all. The only evidence called for the plaintiff was the production of the deed of conveyance vesting the property in him. This was admitted as exhibit A. For the second defendant the deed of mortgage of the property was produced as exhibit B and no further evidence was called. Counsel on all sides thereafter addressed the court. It was submitted on behalf of the plaintiff that the approval of the transaction in exhibit B by the Governor in accordance with section 3 (l) of the Native Lands Acquisition Law was not proved; that the transaction was invalid and that the purported sale of the property of the plaintiff by virtue thereof was also invalid. Both defendants contended that on the face of it the document exhibit B raised a presumption that the necessary approval was obtained and that this presumption was not, as it should have been, rebutted by the plaintiff. In a reserved judgement Ademola J. dismissed the plaintiffs claim with costs holding in effect that on the pleadings and the evidence available to the court the plaintiff did not establish that the necessary approval was not obtained.
Before us on appeal two points were raised. The first was as to where the onus of proof lay and the second as to whether on the face of it the document exhibit B raised a presumption that the necessary approval had been obtained. It was conceded by learned counsel for the plaintiff that if the mortgage exhibit B was valid then the power of sale was rightly exercised.
With regard to the first point it is pertinent to refer to section 135 of the Evidence Act, cap. 62 (Laws of the Federation) which provides that ‘The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.’ On the pleadings of the parties it is manifest that while the plaintiff avers that the necessary approval was not obtained the defendants aver that it was and put the plaintiff to the proof of his averment. If no evidence at all had been forthcoming from the plaintiff he would have run foul of section 135 of the Evidence Act and it would not have availed him that he produced the document exhibit A.
Counsel for the plaintiff submits that it was for the plaintiff to prove the exercise of the power of sale and that the burden shifts to the second defendant to prove that the necessary approval was obtained. The defendants resist these submissions and having regard to the pleadings and the provisions of section 135 of the Evidence Act it is obvious that the plaintiff would have to do more than had been submitted by his counsel.
The learned trial judge apparently took the view that it was for the plaintiff to prove that the defendants had not obtained the necessary approval.
Section 3 (1) of the Native Lands Acquisition Law provides as follows:-
‘Except as provided by any regulations or orders made pursuant to section 7, no alien shall acquire any interest or right in or over any land from a native unless the transaction under which the interest or right is acquired has been approved by the Governor in accordance with the provisions of this Law.’
The procedure for obtaining the necessary approval is set out in the Native Lands Acquisition (Approval of Transactions) Regulations as a subsidiary legislation to the Native Lands Acquisition Law, cap. 80 and those Regulations require inter alia that the transaction if approved shall be evidenced by an instrument duly registered in accordance with the provisions of the Land Instruments Registration Law within one year of the date of approval. The Third Schedule to the regulations also prescribes the form in which the Governors approval may be signified. Section 11 of the Land Instruments Registration Law provides as follows:-
‘No instrument requiring the consent of the Governor or of any public officer to the validity thereof shall be registered unless such consent be endorsed thereon or the registrar is otherwise satisfied that such consent has been given. ‘
The document exhibit B apart from being duly registered in accordance with the Land Instruments Registration Law has attached to it a letter addressed to the second defendant which reads in part as follows:-
No. L.5868/5
Ministry of Lands and Housing
(Lands Division),
Ibadan,
25th January, 1961
Sir/Gentlemen,
Referring to your letter No. 0.685 dated 3rd January, 1961. I have to inform you that subject to the conditions annexed hereto the Governor has approved the proposed transaction.
If the transaction is not evidenced by an instrument duly presented for registration in accordance with the provisions of the Land Registration Ordinance, Chapter 108, within one year from the date hereof this approval shall cease and be void.
This approval shall not cure any defect in any transaction (or in any subsequent instrument) or confer upon it any validity which it would not otherwise have had.
I am, Sir/Gentlemen,
Your obedient servant,
O. ADETIBA,
for Permanent Secretary,
(Lands Division).’
The letter was expressed to be signed by one ‘O. Adetiba’ on behalf of the permanent secretary, i.e. permanent secretary to the Minister of Lands.
Counsel for the plaintiff agrees that the powers of approval under section 3 of the Native Lands Acquisition Law had been delegated by the Governor to the Minister of Lands see section 35 (1) of the Interpretation Law, cap. 51, section 2 of the Delegation of Governors Power Notice and Item 13 (1) of the Schedule to that Notice); he also concedes that not only the permanent secretary but also any other officer in the ministry is entitled to signify an approval on behalf of the minister, but he contends that as the letter attached to exhibit B was signed for and on behalf of the permanent secretary and not on behalf of the minister, it was invalid as a signification of the approval of the Governor under section 3 of the Native Lands Acquisition Law.
The registration of exhibit B under the Land Instruments Registration Law is agreed by all parties and as this might not be effected ‘unless such consent be endorsed thereon or the registrar is otherwise satisfied that such consent has been given’ there must arise a presumption in favour of the approval having been obtained though not that it was otherwise sufficiently in compliance with the statutory requirements. Section 50 (1) of the Interpretation Law, cap. 51 provides as follows:-
‘When any power is given to the Governor to make or give any order, regulation, declaration or appointment or any authorisation, exemption, notice, direction, approval, permission, consent, or other subsidiary legislation, it shall be sufficient, unless it is otherwise expressed, for the same to be signified under the hand of the Deputy Governor or of such public officer as the Governor may appoint for the purpose.’
We are of the view that as submitted by counsel for the defendants and o
Other Citation: (1967) LCN/1485(SC)
