Quo Vadis Hotels Limited v. Commissioner of Lands (1973)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C.

The present appellants, Quo Vadis Hotels and Restaurants Ltd., were the second defendants in an action instituted by the Commissioner of Lands, Mid-Western State (now first respondent) in the High Court, Benin City. The first defendant to the action is one Chief Francis Edo-Osagie and the third defendant is the Registrar, Lands Registry, Benin. The plaintiff’s writ is endorsed as follows:-

”Plaintiff claims:-

1. A declaration that the deed of Sublease made 1st day of November, 1968 between the first and second defendants regarding No. 1A Reservation Road, Government Reservation Area Benin City and registered as No. 16 at page 16 in Volume 54 of the Lands Registry Benin City is void and of no legal effect.
2. A declaration that any purported occupation of No. 1A Reservation Road, Government Reservation Area Benin City pursuant to the said deed of Sublease of 1st November, 1968 between the 1st and 2nd defendants is unlawful.
3. Possession of the said land at No. 1A Reservation Road, Government Reservation Area Benin City.”

Pursuant to an order in that respect that parties filed their respective pleadings and the plantiff’s statement of claim avers in substance that the second defendants are aliens and are unlawfully in occupation of the premises in dispute in that the deed of sub-lease executed in their favour by the first defendant, Chief Francis Edo-Osagie, dated the 1st of November, 1968 is void. Paragraph 7 of the plaintiff’s statement of claim pleads as follows:

“7. The plaintiff will contend at the trial of this action that:

(a) The deed referred to in paragraph 5 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.

(b) The occupation of No. 1A Reservation Road, Government Reservation Area by the second defendant by reason of the deed referred to in paragraph 5 above is unlawful.

(c) The registration of the deed referred to in paragraph 5 above by the third defendant is irregular and bad in law.”

In the same way the first defendant Chief Francis Edo-Osagie filed his own statement of defence., In it he stated that he neither applied for nor obtained the necessary approval of the deed of sub-lease in pursuance of the provisions of the Native Lands Acquisition Law, Cap. 80 (Laws of Western Nigeria applicable in the Mid-Western State); that as soon as he became aware of this he tried unsuccessfully to discuss the situation with the second defendants and in particular, paragraphs 4 and 5 of his statement of defence read as follows:-

“4. The 1st defendant will maintain at the hearing that the 2nd defendant is in possession of the premises known as No. 1A Reservation Road, Benin City against the wishes of the 1st defendant.

5. The 1st defendant will rely on all legal and equitable defences available to him and will urge the court to exercise its powers under section 5 of the Native Lands Acquisition Law.”

The second defendants (that is the present appellants) also filed a statement of defence by which they denied that the deed of sub-lease under which they are in occupation did not receive the Governor’s approval and in paragraph 7 of their own statement of defence they plead as follows:-

“7. The 2nd defendant will contend at the trial of this action that-

(a) the deed referred to in paragraph 5 of the plaintiff’s statement of claim is valid, subsisting and current because the transaction to which it gave effect was properly and duly approved in accordance with the provisions of the Native Lands Acquisition Law;

(b) the occupation of No. 1A Reservation Road, Government Reservation Area, Benin City by the second defendants, by reason of the said deed, is lawful and proper and that the second defendants should not be disturbed from peaceful possession thereof;

(c) the registration of the said deed by the 3rd defendant is regular and in conformity with the provisions of the law.”

The third defendant, that is, the Registrar of Deeds, also filed a statement of defence, the principal averments of which are contained in paragraphs 4, 5 and 6 thereof as follows:-

“4. The 3rd defendant says that he is not in a position to deny or admit the non-approval of the transaction between the 1st and the 2nd defendants as alleged in paragraph 5 of the statement of claim and puts the plaintiff to the strictest proof thereof.

5. The 3rd defendant will contend at the trial of this action that the said deed registered as No. 16 at page 16, Volume 54 of the Lands Registry, Benin City was registered by him in accordance with the Land Instruments Registration Law.
6. The 3rd defendant will further contend at the trial that at the time of the said registration such consent was indicated on the said document which will be founded upon at the trial of this action.”

At the hearing the plaintiff called two witnesses the first a State Counsel attached to the Ministry of Justice, Benin City, who produced the certificate of incorporation of Quo Vadis Hotels and Restaurants Ltd. (Ex. A) (the second defendants’ company) as well as other documents tending to show that the second defendants’ company was an alien within the provisions of the Native Land Acquisition Law, Cap. 80; the second witness for the plaintiff was a Lands Officer in the Ministry of Lands and Housing, MidWestern State of Nigeria. His name is Victor Izelein. He testified that the land in dispute is State land of which the first defendant is the lessee and the second defendants are sub-lessees; that the first defendant did apply to the Ministry “for consent to sublet the land” concerned to the second defendants and testified as follows:-

“The approval of the Commissioner for Works, Lands and Transport is endorsed on (Ex. E) and signed by the Commissioner. The approval was granted under the State Lands Law.

None of the 1st or 2nd defendants applied to us for consent to the transaction under the Native Lands Acquisition Law. We have no record of any such application.”

The witness produced the original of the deed of sub-lease to the second defendants and this was admitted in evidence as (Ex. E). Further and in the course of his evidence he testified as follows:-

“I come to the conclusion that there was no application for an approval under the Native Lands Acquisition Law because the applications and other documents that would have constituted records of it are not in our file.

I do not know of the complaints that gave rise to (Ex. H). I do not know that it is the first defendant who complained.

I do not know if the complaints were conveyed to the 2nd defendants. In respect of approval under Cap. 29 the lessee applied and approval was conveyed to him.

The lessee has responsibility for getting approval under Cap. 29.

I do not know that the basis of this action is to help the 1st defendant regain possession or to blackmail the 2nd defendants to pay more rent.”

He admitted that he had no personal know edge of the matters contained in his evidence and did not produce the relevant file concerning the land. The first defendant also gave evidence to the effect that although he had executed the sublease, (Ex. E), in favour of the second defendants, he did not appreciate until later that he had to apply for approval of the Governor to the transaction in pursurance of the provisions of the Native Land Acquisitions Law. He stated inter alia:

“The approval was endorsed on the deed (Ex. E). I got it back by collecting it personally from the Ministry.

When I collected the deed I saw the approval endorsed thereon. When I got it I was satisfied that I got all necessary consent to the transaction. ”

The first defendant was under cross-examination asked a number of questions directed to showing that he had unjustifiably refused to collect rents from the second defendants; that he had incited this action because the second defendants had refused to continue to retain him as their consultant and that indeed on one occasion before the institution of the present proceedings he had invaded the premises of the hotel in question in the company of thugs. The first defendant firmly denied all these suggestions. The second and the third defendants called no evidence and announced this at the close of the evidence of the other parties.

In a reserved judgment, Obaseki J. acceded to the claims of the plaintiff except the claim for possession which had been withdrawn in the course of the trial by the learned Solicitor-General. The learned trial judge found that the first defendant is a native and that the second defendants are aliens and so the land in dispute comes within the purview of the Native Lands Acquisition Law, Cap. 80. He then observed thus:

“The evidence before me has established that the 2nd defendant has not applied for, or received, approval of the Military Governor in accordance with the provisions of the Native Lands Acquisition Law to the transaction of sublease under which the term of 10 years lease was acquired. ”

He referred to the pertinent provisions of the Native Lands Acquisition Law and in particular sections 3 and 4 and in his consideration of the relevant provisions of the State Lands Law, Cap. 29 the learned trial judge remarked:

“It is significant to observe that what is required under section 7 (b) (iii) of the State Lands Law is the previous consent in writing of the Military Governor, whereas what is required under section 3 of the Native Lands Acqusition Law, Cap. 80 is approval of the Military Governor in accordance with the provisions of the Law.

The words “consent” and “to approve” do not have the same meaning, they connote different states of mind.”

The learned trial judge took the view that the case was a “simple one which as the second plaintiff s witness has stated in the box should have received the willing co-operation of the Governor if the initiative had come from the first and second defendants. ” Eventually he gave judgment in favour of the plaintiff against the defendants and made the declarations sought in the claim.

The second defendants have now appealed to this court against that judgment. Several grounds of appeal were filed but learned counsel for the second defendants had argued their appeal under four main heads or points as follows:

(1) That the plaintiff has no locus standi to maintain the present action; (2) That the judgment of the High Court ought to be set aside in any event because of the way and manner in which the first defendant, that is, Chief Edo-Osagie, was allowed to participate in the proceedings;

(3) The High Court was wrong on the facts in finding that the plaintiff has successfully established that there was no approval granted as required by the Native Lands Acquisition Law and that accordingly the occupation by the second defendants of the land in dispute was unlawful; and

(4) Lastly and in the alternative, that the deed of sub-lease (Ex. E) made in favour of the second defendants with the approval or consent of the Military Governor is valid and the second defendants’ occupation of land granted thereunder is lawful. Any further consent or approval of the Military Governor under the Native Lands Acquisition Law is unnecessary.

With respect to the first point it was submitted by the learned counsel for the second defendants that the competence of the Commissioner of Lands to institute any proceedings in respect of land covered by the Native Lands Acquisition Law, Cap. 80 is limited to the matters contained in that statute. Learned counsel for the second defendants also submitted that section 4 (2) of the Native Lands Acquisition Law creates the criminal offence under the statute (as well as the punishment) and that section 5 of the same statute creates the civil liability encompassed by the Law. Learned counsel then submitted that the provisions of section 6 of the Native Lands Acquisition Law only authorised the Commissioner of Lands to institute either criminal proceedings’ ‘for an offence against any provision of this Law” or civil proceedings under the said Law.

Learned counsel referred to a number of authorities to demonstrate that where a statute specifically provides a way of dealing with a particular situation, it is incompetent for the functionary thereby authorised to deviate from the course marked out by Parliament and take as in the present proceedings a declaratory action which is not prescribed by the statute.

On the other hand the learned Solicitor-General argued on this point and submitted that the Commissioner of Lands is a juristic person and can in no way be fettered or restricted in the exercise of his civil rights to maintain any action and that indeed the present proceedings could be initiated by the Commissioner of Lands either in virtue of the provisions of the Native Lands Acquisition Law or the common law. The learned Solicitor-General also referred to sections 12 and 64 of the Mid-Western State High Court Law No.9 of 1964 as well as to the case of Pyx Granite Company Ltd. v. Ministry of Housing and Local Government [1958] 1 Q.B. 554 where at p. 567 following dictum of Lord Denning is reported:-

”So much for the remedy under section 17. Is it the only remedy That depends on the true interpretation of the Act. I take it to be settled law that the jurisdiction of the High Court to grant a declaration is not to be taken away except by clear words … The Act gave him a remedy by way of appeal to a court of summary jurisdiction. Section 23 (4) said ‘he may’ appeal. The planning authority argued that that was the only remedy. But McNair J. and this court held that the existence of the statutory remedy did not bar him from seeking a remedy by declaration. McNair J. said: ‘It is a fundamental rule that if a subject is to be deprived of a right of coming to these courts it must be in clear words.’ I entirely agree. ”

For his part learned counsel for the first defendant, Chief Edo-Osagie, adopted the argument of the learned Solicitor-General but conceded that the only civil proceedings contemplated by section 6 of the Native Lands Acquisition Law is the summary process of ejectment described in section 5 of that Law. He then argued that as section 2 of the Petitions of Right Law, Cap. 90 and section 29 of the State Lands Law, Cap 29 confer powers on the Commissioner of Lands to institute proceedings for the recovery of State lands from unlawful occupiers, the declaratory action taken by that functionary can only be considered an irregularity and not as a nullity in the language of the Privy Council in the case of Macfoy v. U.A. C. Ltd. [1961] 3 W.L.R. 1405 at p. 1409.

The argument on this aspect of the appeal concerns the competency of the Commissioner of Lands as a functionary of the Government to institute the present proceedings which manifestly are for two types of declaration as set out in the claim and certainly not any proceedings. In the course of the argument learned counsel for the second defendants referred to section 2 of the Petitions of Right Law, Cap. 90 which provides as follows:

“2. Claims by the Government or by any Government Department against any private person shall be brought by the Attorney-General or by any officer authorised by law to prosecute such claims on behalf of the Government.”

Learned counsel for the second defendants then argued that it is only the Attorney-General or any other officer authorised by law that can maintain any type of action in respect of the matters envisaged on behalf of the Government and that the Commissioner of Lands is not authorised by any law to prosecute the present type of action. The learned Solicitor-General submitted that the Petitions of Right Law does not apply to the present case but learned counsel for the first defendant argued that section 2 of the Petitions of Right Law applied and that both that section and section 29 of the State Lands Law, Cap. 29 empower the Commissioner of Lands to institute the present proceedings.

To advert shortly to the arguments of learned counsel for the first defendant we observe that he conceded that section 6 of the Native Lands Acquisition Law authorises the Commissioner of Lands only to initiate the civil proceedings of summary ejectment described in section 5 of that Law. His further argument however concerns the application of section 2 of the Petitions of Right Law to section 29 of the State Lands Law. Section 29 of the State Lands Law, Cap. 29 provides as follows:

“29 (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 Commissioner of Lands, or some person appointed by the Attorney-General in writing, may enter a suit in the High Court to recover possession thereof.”

Clearly the action contemplated by this section is “a suit in the High Court to recover possession” of the state land concerned. The present proceedings are not such a suit. The proceedings are for the declarations sought by and on the writ and no claim for possession was litigated therein. We think the argument which relies on section 29 of the State Lands Law Cap. 29 is inept and must fail.

With it must also fail the argument of the learned Solicitor-General which is peculiarly attractive and holds out the view that the Commissioner of Lands had taken out the present proceedings under the common law. Reliance was placed for this proposition on section 12 of the High Court Law (MidWest) No.9 of 1964 which reads as follows:

“12. The jurisdiction by this Law vested in the High Court shall be exercised (so far as regards procedure and practice) in the manner provided by this Law, the Criminal Procedure Act or any other Act of Parliament or written Law, or by such rules and orders of court as may be made pursuant to this or any other Law or Act.”

Clearly this section of the High Court Law deals with practice and procedure and authorises the High Court of the Mid-West State to adopt in the exercise of the jurisdiction vested in it by law the practice and procedure described in the section. We cannot see how this section eo ipso can confer any power or authority on the Commissioner of Lands to institute the particular type of action with which we are here concerned. What we are concerned with in this controversy is the competence of the present plaintiff to institute the present action.

It is fundamental that a person who institutes an action in court must be competent to do so and in the case of Ajao v. Sonola and another delivered on the 10th May, 1973 [See pante] this Court observed thus with respect to the issue of competence:-

“We think it is settled that competency to institute an action is an essential or indeed a vital factor in deciding the competency of the action itself, and if challenged by a defendant, the plaintiff has the onus of establishing it. “See also Lawal and others v. Younan and Sons and Co. [1961] All N.L.R. 245 at p. 254. The section of the High Court Law to which the learned Solicitor-General had referred deals with the way in which the court should exercise its jurisdiction. And before us learned counsel for the second defendants had not attempted to attack or impugn the jurisdiction of the court to entertain the action if and only if the plaintiff was competent to institute that action.

Learned Solictor-General had submitted then that the Commissioner of Lands was competent to maintain this and indeed any type of action before a competent court. No authority was produced or cited to us for this submission since it is universally recognised that the Departments of Government are not, unless specifically provided by statute, entitled to sue or liable to be sued in respect of official acts done by them in their respective official capacities. If that were not so the Commissioner of Police or the Superintendent of Prisons or the Director of Surveys or indeed any other head of a Government Department would be entitled at the suit or at the expense of government to take out civil actions, against citizens in respect of any cause or causes of action. We are satisfied that this would lead to monstrous consequences and we are not surprised that it was impossible to produce any authority in support of such a submission.

It is convenient to deal with the argument concerning the powers of the Commissioner of Lands under the Native Lands Acquisition Law, for in this connection as well, the learned Solicitor-General had argued that the Commissioner of Lands was by that Law competent to institute the present proceedings. We set out hereunder the provisions of sections 4, 5 and 6 of the Native Lands Acquisition Law Cap. 80:-

“4. (1) 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-

(a) was acquired in a transaction which has received the approval of the Governor in accordance with section 3; or

(b) was acquired by virtue of any regulations or order made pursuant to sub-section (1) or sub-section (2) of section 7; or

(c) is evidence by an instrument which has received the approval of the Governor in writing under any statutory provision in force at the time of the approval; or

(d) was acquired, if the land is situate in that part of the Western Region which in the year 1900 was included in the Protectorate of Southern Nigeria, before the 1st of January, 1900, and in the case of lands situate elsewhere, before the 30th March, 1908; or

(e) is authorised by or under any Ordinance or Law.

(2) Any alien or other person who is in unlawful occupation of land belonging to a native, shall be guilty of an offence and liable on summary conviction to a fine of one hundred pounds or imprisonment for twelve months.

5. (1) Where it appears to the court that any alien, or person claiming to be entitled under an alien, is in unlawful occupation of any land belonging to a native, the court may, on the application of the Attorney-General or the Commissioner of Lands or any person authorised by the Governor or on its own motion, cause a summons to be issued to such alien or person aforesaid, requiring him to appear before the court and produce the instrument by virtue whereof the alien, who is occupying the land or under whom the land is occupied, is entitled to occupy or authorise the occupation of the same, or a copy of such instrument certified in accordance with the law relating to the registration of instruments.

(2) If on the hearing of such summons the court shall find that such alien or person claiming under an alien is occupying land belonging to a native, and such alien or person fails to satisfy the court that such occupation is lawful, the court shall order such alien or person aforesaid to give up possession of the land, and shall issue such process as may be necessary for enforcing such order.

6. Notwithstanding the provisions of any written law to the contrary, proceedings for an offence against any provision of this Law and all civil proceedings hereunder, shall be brought in the name of the Commissioner of Lands and may be instituted and conducted by him or any person authorised by him generally, or specifically in relation to any particular proceedings or class of proceedings, by writing under his hand.”

Manifestly section 4 (2) creates the criminal offence (and the punishment therefor) committed by an alien who is in breach of the provisions of section 4 (1) and similarly section 5 (1) prescribes a summary civil process of ejectment to be initiated by “an application of the Attorney-General or the Commissioner of Lands or any person authorised by the Governor” or on the court’s own motion. The application is for the issue of summons as described in section 5 (1) and the procedure is outlined in that section. Then comes section 6 which deals with proceedings for an offence against the Native Lands Acquisition Law and “all civil proceedings hereunder” and the introductory words of which section clearly exclude, for the purposes of the section, the application of the provisions of any written law to the contrary. Learned counsel for the second defendants had submitted that the Commissioner of Lands acting under the powers conferred on him by the Native Lands Acquisition Law can only exercise those powers in conformity with section 6, that is, for the purposes of the criminal offence or offences under section 4 (2) and the civil proceedings of ejectment described in section 5 (1) and indeed in support of this learned counsel referred to a number of authorities including the Institute of Patent Agents v. Lockwood [1894] A.C. 347 where Lord Herschell L.C. dealing with a similar situation observed thus at pp. 361-362 of the Report:-

“You have here, for the first time, a new offence created-the offence of practising as a patent agent without being on the register.

The Legislature, having created that new offence, has prescribed the punishment for it, namely, a penalty of 20 pounds. Can it possibly under these circumstances be open to bring the individual, not before the summary court at small expense to determined the question of his liability to a 20 pounds penalty, but to bring him before the Court of Session with its attendant expense and to ask the Court of Session to make a declaration that he has been breaking the law in a manner which the Legislature has said subjects him to a penalty, and, then, having proved that he has rendered himself liable to a penalty, to ask the Court of Session to interdict him, with this result, that if he were to offend again he would not be subject to the summary procedure and the 20 pounds penalty, but would be liable to imprisonment for breach of the interdict”

Argument similar in nature to that convassed by the learned Solicitor-General was addressed to the House of Lords in the case of Barraclough v. Brown [1897] A.C. 615 and at p. 620 of the report the House of Lords rejected it observing as follows:-

“It was argued for the appellant that, even if not entitled to recover the expenses by action in the High Court, he was, at all events, entitled to come to that court for a declaration that on the true interpretation of the statute he had a right to recover them. It might be enough to say that no such case was made, by the appellant’s claim. But, apart from this, I think it would be very mischievous to hold that when a party is compelled by statute to resort to an inferior court he can come first to the High Court to have his right to recover-the very matter relegated to the inferior court- determined. Such a proposition was not supported by authority, and is, I think, unsound in principle.”

In the case of the Institute of Patent Agents v. Lockwood (supra) Lord Herschell foresaw the difficulties which must accompany the suggestion of the learned Solicitor-General and the Lord Chancellor observed at p. 362 of the report as follows:

“If that be the law, the number of cases must have been almost innumerable in which such a proceeding would have been competent, and yet it is absolutely unheard of. I will not dwell upon the grave inconveniences which would result from sanctioning a procedure of that description. The mode of procedure and the amount of penalty are often regarded by the Legislature as of the utmost importance when they are creating new offences, and the Law would, I believe, contrary to their intention, be most seriously modified if it were held that the party committing a breach of that which for the first time is made an offence were to subject himself by so doing to proceedings of this description which might result in a committal to prison. For these reasons, I think that this action was not competent.”

In 1903 a similar point arose for determination before the Chancery Division in Devonport Corporation v. Tozer [1903] Ch. 759 but the court rejected the argument for the competence of such an action. (See per Collis M.R. at p. 762 of the report).

We have looked at the case of Macfoy v. U.A. C. Limited (supra) on which learned counsel for the first defendant relied for his submission that the cause of action taken by the Commissioner of Lands would at worst in this case be regarded as an irregularity. We are unable to see the substance and indeed the relevance of the argument for if an action or a cause of action is irregular or irregularly taken the action is vitiated and the situation does not call for an application of the antithesis between a void and a voidable act or deed as discussed in the case of Macfoy v. V.A. C. Ltd.

We are not unaware that the decision in Barraclough v. Brown (supra) was considered by the court in the case of Pyx Granite Company Limited v. Ministry of Housing and Local Government to which the learned Solicitor-General had referred, and on which he strongly relied. At p. 567 of that report (i.e. [1958] 1 Q.B.) Lord Denning observed as follows:-

“In Barraclough v. Brown the words were suffIciently clear. In that case Parliament had, ‘by plain implication, enacted that no other court has any authority to entertain or decide these matters’: see per Lord W atson. ”

In the case of Pyx Granite Company Limited v. Ministry of Housing and Local Government (supra) the court was considering the ambit of a statute which gives a special right to a generality of the citizens-section 17 of the Town and Country Planning Act 1947. The section purports to give additional right or cause of action to the persons concerned therein; and the court held, rightly in our view, that the provision or creation of a special or additional cause of action or right of action does not ipso facto destroy the availability of existing causes or rights of action.

Surely this case is distinguishable from the one which we now have in hand. The Commissioner of Lands has, under common law, no rights to institute any form of proceedings except those conferred upon him by statute; and if those are exhausted the Commissioner of Lands has no other grounds to fall upon.

We are satisfied that section 6 of the Native Lands Acquisition Law contemplates only the criminal proceedings created by section 4 (2) and the civil proceedings envisaged by section 5 (1) and those are the only two courses open to the Commissioner of Lands. It may well be argued that the Attorney-General by virtue of the provisions of section 2 of the Petitions of Right Law, Cap. 90 is entitled to institute proceedings for any cause of action but we are not concerned in this case with that matter and do not attempt to decide it.

The present proceedings were instituted by the Commissioner of Lands for the declarations sought by it-declarations to redeclare what the statute itself has already so declared-and we are clearly of the view that the Commissioner of Lands was incompetent to institute such proceedings for such claims. We are ourselves not unaware of the illogicality of an argument which supports the institution of declaratory proceedings in respect of matters already so declared by statute and we cannot but disagree with such argument on the grounds both of principle and common sense. The relevant sections of the Native Lands Acquisition Law have already declared that particular type of occupation unlawful. Indeed section 5 (2) which deals with proceedings for ejectment puts the onus of proving otherwise on the respondent. In those circumstances we can see no room for any doubts as to the intention of the legislature-an intention to remove from the Commissioner of Lands the necessity or the burden of seeking the very types of declaration which are sought in the present proceedings.

We are satisfied that the arguments for the second defendants on the first point of appeal are sound and we accept them.

Leaving aside the second point of appeal for the time being we turn our attention to the third point raised by learned counsel for the second defendants. This point is to the effect that the learned trial judge was in error in arriving at the conclusion that the plaintiff had established his case against the second defendants. Learned counsel for the second defendants conceded that this point concerns issues of facts but submitted that on the facts of the case the Commissioner of Lands did not establish his case for the declarations he had sought and obtained. Learned counsel for the second defendants referred to paragraph 7 of the plaintiff s statement of claim and paragraphs 4, 5 and 6 of the pleadings of the third defendant, that is, the Registrar of Deeds. All these paragraphs of the pleadings had earlier on in this judgment been set out. It is obvious from a perusal of these paragraphs that whilst the plaintiff contends that the deed of sublease produced in evidence as (Ex. E) was an invalid one, the third defendant (i.e. the Registrar of Deeds) an official in the Department of the plaintiff asserts the validity of the same document and positively contends by his pleading that the said document was “registered by him in accordance with the Land Instruments Registration Law.”

Now, there was no issue before the learned trial judge with respect to non-compliance with the provision of the State Lands, Law, Cap. 29. This was never raised and the learned trial judge himself observed in the course of his judgment on this point thus:-

“The lease granted to 1st defendant was in respect of State land and executed in exercise of the powers confered by section 4 of the State Lands Law, Cap. 29.

Under section 7 (b) (iii) of the Law the convenants by the lessees implied include convenant not to assign, sublet or otherwise part with possession of the land comprised in such lease or any part thereof, without the previous consent of the Military Governor in writing.

That consent was endorsed in exhibit E subsequent to execution.”

Later on in his judgment and before the learned trial judge embarked on an exposition on the difference in meaning between “consent” under the State Lands Law and “approval” under the Native Lands Acquisiton Law, he observed briefly as follows:

“It is significant to observe that what is required under section 7 (b) (iiz) of the State Lands Law is the previous consent in writing of the Military Governor, whereas what is required under section 3 of the Native Lands Acquisiton Law Cap. 80 is approval of the Military Governor in accordance with the provisions of the Law.

The words ‘consent’ and ‘to approve’ do not have the same meaning, they connote different states of mind.”

In other words, the learned trial judge himself was alive to the difference between the two acts in law and clearly addressed himself to this difference.

In the course of the evidence it was stated on behalf of the plaintiff and as well by the first defendant Chief Francis Edo-Osagie that the stringent conditions required by section 3 of the Native Lands Acquisition Law and the procedure described by the Native Lands Acquisition (Approval of Transactions) Regulations, 1958 were not fulfilled by the first or second defendants. Before us it was contended for the second defendants that there was no evidence that those conditions were not fulfilled in-as-much as the third defendant, that is, the Registrar of Deeds, asserts the regularity of the deed and its registration and also as the document carries on its face the following endorsement-

Approved this 5th day of November, 1968 (Sgd.) T.E.A. SALUBI

Commissioner for Works,

Lands and Transport

Mid-Western Nigeria

Learned counsel for the second defendants submitted that the plantiff did not establish his case since the document (Ex. E) bears on its face the words of approval and there was no evidence to rebut the preponderance of evidence clearly on the side of the second defendants suggesting the validity of the document and the fact that the necessary approval had been given. In the present proceedings the question was not and it is not whether a consent for the sublease of state land was obtained or not. This was assumed throughout and the learned trial judge as we pointed out earlier on in this judgment had found expressly that such consent was obtained. There has been no appeal before us on this point but learned counsel for the first defendant contended before us that the endorsement on the deed, (Ex. E), shows only that the necessary consent under the State Lands Law had been obtained. The relevant section of the State Lands Law Cap. 29 is section 7 (b) (iii) which prescribes as follows:-

“7. Except as otherwise prescribed or provided in the lease, there shall in every lease under this Law be implied by virtue of this Law:-

(a) covenants by the lessor-

(b) covenants by the lessee-

(iii) Not to assign, sublet or otherwise part with the possession of the land comprised in such lease or any part thereof, without the previous consent of the Governor in writing.”

It is indisputable that what section 7 (b) (iii) postulates is a “previous consent of the Governor in writing”; the requirement of the section is consent anterior in date to the transaction and on the basis of which the very existence of the assignment or subletting must be predicated. There can be no doubt about this meaning and in the words of the learned trial judge himself in his judgment-

“The consent required under section 7 (b) (iii) of Cap. 29 to my mind involves agreement of the Military Governor to the proposal to sublet before the transaction is entered into whereas approval required under section 3 (1) of the Native Lands Acquisition Law involves confirmation of the whole transaction entered into between the native and alien.”

It was common ground throughout the hearing in the court below and indeed before us that the approval of the Governor to the transaction concerned under the Native Lands Acquisition Law would have been signified in any case by the same Commissioner for Lands whose signature appears on the top of the endorsement on (Ex. E). This is so, in view of the relevant statutory provisions dealing with the delegation of the powers of the Military Governor in this connection. The document (Ex. E) is dated 1st November, 1968 and the sublease created thereby is expressed to take effect as from 1st of April, 1969 that is, some five months after its execution. The clause for consideration in (Ex. E) reads as follows:

“In consideration of the rent hereinafter reserved and the convenants on the part of the Sublessee hereinafter contained the Sublessor with the consent of the Military Governor of Mid-Western Nigeria hereby demised unto the Sublessee ALL THAT premises ”

The whole of (Ex. E) was manifestly before the Commissioner of Lands when on the 5th of November, 1968 (four days after its execution by the parties) he signified his approval by the endorsement referred to. Learned Solicitor-General conceded most admirably and honestly before us that the approval endorsed on (Ex. E) could not be otherwise than a subsequent act of approval and that it could not by any stretch of imagination be regarded as previous consent as described, undoubtedly in error, by the learned trial judge. Learned counsel for the first defendant contended before us however that the signification of the Commissioner for Lands as shown on (Ex. E) was for the purposes of the State Lands Law, Cap. 29-a previous consent and that whatever presumption might have been created by section 11 of the Land Instruments Registration Law, Cap 56 is nullified by section 26 of the same statute.

We are of course not prepared to read the word “approved” as “consent’ ‘. The learned trial judge himself spotlighted the enormity of the difference between them and it is ridiculous to equate a “consent” which should be previous to an act or deed and so expressed on a document with an “approval” which should come subsequently and is so expressed on the document. Section 3 (1) of the Native Lands Acquisition Law Cap. 80 provides as follows:-

“3 (1) 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.”

If then the endorsement on (Ex. E) indicates the approval of the Governor under section 3 (1) then clearly there is a presumption that the necessary procedure for obtaining such an endorsement had been pursued. The document (Ex. E) as already stated by us bears on its face the “approval” of the Govemnor and the Registrar of Deeds had suggested this in his pleadings thereby joining issues with the plaintiff on the point that the deed was duly registered in accordance with the provisions of the Land Instruments Registration Law, Cap. 56. Section 11 and 26 of that Law provides as follows:-

“11. 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 .

26. Registration shall not cure any defect in any instrument or, subject to the provisions of this Law, confer upon it any effect or validity which it would not otherwise have had.”

We do not accede to the argument that section 26 of Cap. 56 nullifies section 11. Rather we think that section 26 only applies where a presumption created by section 11 has been rebutted. The Registrar of Deeds apparently registered the document (Ex. E) in compliance with the provisions of section 11. This much is clear on its face and we are driven to the conclusion that there must be that presumption that the Registrar was at least “otherwise satisfied that the necessary consent had been given.” If the word “consent” in section 11 is to have any useful meaning at all it must be regarded as implying a wider concept than that of a mere consent and must in its connotation include an approval or an agreement or concurrence to a transaction either before or after its execution or institution.

We must also refer to a letter addressed by the Permanent Secretary, Ministry of Lands and Housing to the first defendant Chief Edo-Osagie on the 1st of November, 1971, before the institution of this proceeding. The letter which was produced in evidence at the trial of this action as (Ex. H) reads as follows:-

” Sir,

Motel Benin Plaza, 1A Reservation Road, Government Residential Area, Benin

You will recall that the Commissioner for Works, Land and Transport approved on the 5th of November, 1968 the sub-lease in respect of plot 1A Reservation Road, (Government Residential Area) Benin City, between you and Quo Vadis Restaurant Limited. The relevant deed of sub-lease was registered as No. 16 at page 16 in Volume 54 of the Lands Registry at the office in Benin City. In clause 2 (i) of the deed the sub-lessee covenants ‘To use the demised premises for the business of a hotel and its ancillary activities only.’ There have however been persistent complaints from the general public over the use of the premises for some purposes not stated in the deed. Your attention has been on several occasions drawn to these complaints and no efforts have been made by you to remedy the situation.

2. Under the circumstances I have been directed by the Honourable Commissioner for Lands and Housing to inform you that he has revoked forthwith the consent previously given in respect of the sub-lease.
3. Copies of this letter are being forwarded to the Quo Vadis Restaurants Limited and the Motel Benin Plaza, Benin City.”

Clearly the letter speaks even as late as 1st November, 1971 of “approval” having been granted to the sub-lease on the 5th November, 1968 and in the second paragraph thereof the letter speaks of the withdrawing of the “consent” previously given in respect of the sub-lease.

It is trite law that in order to succeed in a claim for declaration the plaintiff must prove his case and rely on the strength of that case.

Section 136 of the Evidence Act, Cap. 62 (Laws of Federation of Nigeria) provides thus:

“136. (1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.

(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.”

What then had the plaintiff in the case proved to justify the declarations awarded by the learned trial judge The Commissioner of Lands had even failed to rebut the presumption which necessarily arises in favour of the second defendants by virtue of the registration of the document, (Ex. E), and the endorsement of approval on that document. There was no evidence, apart from the ipse dixit of the witness, Izelein, about non-compliance with the provisions of the Native Lands Acquisition (Approval of Transactions) Regulations, for that officer testified that he was not employed in that Ministry at the relevant time and he did not produce the relevant file for the court to examine and ascertain the true position. We have already referred to the pleadings of the Registrar of Deeds and it is evident that those matters were strictly put in issue. Confronted with an endorsement of approval by the “Commissioner for Lands” in whose ministry the plaintiff is, the Commissioner of Lands ought to know that he ought to do much more than just produce the document concerned.

We are satisfied that the contention on behalf of the second defendants on the third point of appeal is also well founded.

Having regard to our views on those two points of appeal we consider it unnecessary to deal with the other points of appeal to which counsel on all sides had treated the court to arguments as well exciting as learned and to which must be ascribed the credit of considerable industry. There are, however, some unsavoury aspects of this case to which we propose to make a short reference and observation. We point out that the participation of the first defendant in this action, whilst not illegal, leaves quite a great deal to be desired in view of the way and manner in which his case had been framed. He was the landlord of the second defendants and it is surprising that he has fought this case throughout on the basis that his own acts were illegal and void and in absolute disregard of the established principle of law that he might not derogate from his own grant. The high water mark of the questionability of his mode of participation is reflected in paragraphs 4 and 5 of his statement of defence (which we have set out earlier on in this judgment) and the evidence he gave in support of them; and, any fair appraisal of his manner of participation in the case must leave room for considerable doubts about the honesty of any purpose which he had set out to achieve. Still more startling is the fact that the Commissioner of Lands had thought it fit to sue the Registrar of Deeds-an official in his Department-to court. We were not even told that this officer is capable of suing or of being sued; and it is distressing to see from his pleadings that the Registrar of Deeds was putting his boss, the Commissioner of Lands, to the “strictest proof’ of averments of invalidity of a deed which the former contended was duly registered in accordance with the law.

Be that as it may, for the reasons which we have given, this appeal succeeds and it is allowed. The judgment of the High Court, Benin City in suit No. B/116/71 dated the 30th September, 1972 (Obaseki J.) including the orders for costs is set aside. We order that the plaintiffs case be dismissed with costs and this shall be the judgment of the court. We also order that the plaintiff must pay the costs of the second respondents fixed in the court below at N100 and in this court at N250. We make no order for costs in favour of or against the other defendants who are respondents before us.

Appeal allowed: case dismissed.

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SC.20/1973