A. O. Williams V. Lagos State Development And Property Corporation (1978)

LawGlobal-Hub Lead Judgment Report

A. R. ALEXANDER, C.J.N. 

The plaintiff/appellant, by Originating Summons filed in the High Court of Lagos State, sought the determination of the following two questions-

“1. Whether the Defendant corporation has a right of pre-emption in respect of the residue of the term of years evidenced by Land Certificate No. 7147.

2. Whether the Defendant corporation has a right to demand payment of 5 per cent of the consideration or valuation of the land comprised in the title aforesaid upon the assignment of the same to the Plaintiff.”

The facts relevant to the determination of the two questions are not in dispute, and are set out in the affidavit evidence before the High Court and in the judgment of the learned Judge. The land which is the subject-matter of the summons is Plot No. 2055 in Scheme 2 of the defendant/respondent’s Apapa Development Scheme and is comprised in a Land Certificate (Exhibit AOWI) Title No. M07147 dated 16th May, 1968, and is otherwise known as Nos.28 and 28A, Marine Road, Apapa, Lagos.

The respondent, then known as the Lagos Executive Development Board, by a Deed of Lease dated November 23, 1956 and registered under Title No. MO7147, demised the said land to the appellant’s predecessor in title, namely, Imperial Chemical Industries (Export) Limited, for a term of ninety years from September 1, 1956, subject to the terms and conditions contained in the lease and to the covenants and conditions implied by virtue of the Apapa Town Planning Scheme (Western Area) 1953 Regulations 1954 now entitled the Lagos Town Planning (Apapa Town Planning Scheme) Regulations: See Cap. 133 in Volume VII of the revised Laws of the Lagos State of Nigeria (1973).

The deed of lease contains the following stipulation –

“That the lessee will where he sublets the whole or any part of the property hereby demised with or without the Board’s consent under and by virtue of clause 5(v) of the Apapa Town Planning Scheme (Western Area) 1953 Regulations 1954 register every such sublease with the Board within two months of the date of commencement thereof.”

The lessee, namely, Imperial Chemical Industries (Export) Limited, with the consent of the respondent, transferred the demised property to I.C.I. (Nigeria) Limited, by a deed of assignment dated November 14, 1967, in consideration of the sum of 20,500 Pounds. The deed of assignment was registered under Title No. MO.7147 on May 16, 1968 and effected an assignment to I.C.I. (Nigeria) Limited of all the lessee’s right, claim and interest in the residue of the term of ninety years created by the head-lease.

The sub-lessee, namely, I.C.I. (Nigeria) Limited thereafter agreed to assign its interest in the property to the appellant for the sum of N120,000.00. His solicitor therefore wrote Exhibit B to the respondent requesting the respondent’s consent to the assignment. The respondent’s Acting General Manager replied by Exhibit D on behalf of the respondent in the following terms-

“This is to bring to your attention the policy of the Corporation, which took effect from 1st April, 1972, and to which wide publicity had been given that:-

1. In all cases of assignments, transfers, etc. the Corporation must be given the first offer to purchase.
2. That where the Corporation decides not to purchase such rights or interests of the lessee, the latter (the Vendor) shall pay outgoings on the gross proceeds of the sale at such rate being currently charged by the lessor at the time of the sale. Such rate as at present is 10 per cent on the gross proceeds in cases of industrial and commercial buildings, and 5 per cent for residential buildings.
3. The consent of the Corporation must first be received before any sublease, transfer, assignment or before any payment is made or transaction concluded or put into effect in respect of properties which are subject of leases from the Corporation.

No consent of the corporation will be given unless the above conditions are complied with.”

The appellant disputed the respondent’s contention that it was entitled to a right of pre-emption in respect of the residue of the term of years evidenced by Land Certificate No. MO. 7147. That was the first question for determination by the High Court. It was answered in favour of the appellant and, therefore there is no appeal from this decision.

The appeal before this court is in respect of the second question which the High Court answered in the affirmative.

The grounds of appeal filed and argued are as follows: