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M. Elkali And Another V. Nayif Fawaz (1940) LJR-WACA

M. Elkali And Another V. Nayif Fawaz (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Action for damages for breach of contract for lease of landNon-registration of a document renders it inadmissible under section 15 of Land Registration Ordinance, 1924.—Appeat allowed.

Held : The objection to the admission in evidence of a document conferring a right to claim specific performance and /or damages for breach was a sound one, as the document was an instrument within the meaning of the Land Registration Ordinance, 1924 and had not been registered.

(2) Although the defendant-appellant may have been charged with a duty nnder the agreement not to obstruct the obtaining of the Governor’s approval which was necessary under section 3A of the Native Lands Acquisition Ordinance, no breach of that duty is alleged and the claim fgr damages must fail.

The facts are fully set out in the judgment.

E. J. Alex Taylor (with him A. Alahija) for Appellant. W. Wells Palmer for Respondents.

The following joint judgment. was delivered :—

KINGDCN, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND BUTLER LLOYD, J., NIGERIA.

In this case brought in the Ibadan Division of the High Court, the Plaintiffs’ claim against the Defendant was for ” specific performance by the defendant of his contract or engagement to lease the premises situate at Lebanon Street, Ibadan, known as the property of the Plaintiffs for a period of three years from the 1st day of November, 1937.” In the alternative the Plaintiffs claimed x’192 :is damages for breach of contract.

There were pleadings in which the Plaintiffs alleged a verbal agreement to sub-let a shop to the Defendant and that such verbal agreement was reduced to writing on the 19th September, 1937. In his defence the Defendant expressly pleaded the Native Lands Acquisition Ordinance, all the parties being ” Aliens ” within the meaning of that Ordinance.

The case first came on for hearing on the 8th February, 1939, before Graham Paul, J., when the document relied upon by the P1‘jntiffs was received in evidence by consent and marked Exhibit ” A.” It is in the following terms :–

Ibadan, 19th September, 1937.

” Dear Sir, Mr. Nayif Fawaz

Re rent shop in our new buildings at Ibadan.

As per our verbal conversation we now agree to give you a lease for a

period of three years and two years option from the date the buildings are Elkali finished, of the shop being No. 6 in the building on the left at the yearly & anor. rental of (£96) ninety-six pounds. v.

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Payable yearly in advance for the first year and thereafter every six Fawaz months in advance.

It is understood that the building mentioned above is the one on the left going down the new street from L….13:tnon Street.

This is subject to the approval of the Government authorities in Ibadan.

Yours faithfully,

For M. Elkalil & R. S. Moukarim
(Sgd.) R. S. Moukarim

” I agree to take a lease of the above mentioned shop in the terms set above.

(Sgd.) Nayif Fawaz.”

A consent order was then made to the effect that Plaintiffs should submit a formal sub-lease and Defendant should execute it. Nowhere from the record does it appear that the Plaintiffs did so submit a sub-lease, but the parties continued at logger-heads, and on the 26th February, 1940, the case, again came before the Court, then, and hereafter in this case, constituted by John, J. It was adjourned till the 8th April, 1940, and again till the 6th May, 1940, on which date the hearing was started de novo. At this fresh hearing the written agreement, the terms of which have already been set out, was again tendered in evidence by the Plaintiffs. Objection to its admission was taken by Defendant’s Counsel on the ground that it was an instrument affecting land and, not having been registered, was inadmissible under the provisions of section 15 of the Land Registration Ordinance 1924 (No. 36 of 1924). The objection was overruled, the learned Trial Judge being of the opinion that the document was not an ” instrument ” within the meaning of the Land Registration Ordinance, 1924, and that ” no interest in the land is affected in this case.” The document was admitted as Exhibit ” A.” After the close cf the Plaintiffs’ case the Defendant called no evidence but relied upon his statutory defence and his objection to the admission of Exhibit ” A.”Counsel for the Plaintiffs-Respondents has told us in this Court
that in the Court below ” it was realized early in the proceedings
that the claim for specific performance could not be proceeded with
on account of the Ordinance and it was abandoned.” He did
however press his alternative claim for damages for breach of
contract. This claim the learned Trial Judge upheld giving
iudgment for the Plaintiffs for 1192 and costs. On appeal to this
rourt the Defendant-Appellant relies upon the same two points
upon which he relied in the Court below, namely, that Exhibit ” A “
as not admissible in evidence and that the claim must fail by
=irtue of the provisions of the Native Lands Acquisition Ordinance
Cap. 89). As to the first point we are of opinion that the document,
” A,” which may be described as an agreement for the lease

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of a shop, should have been rejected when it was tendered in evidence. If it were an agreement between natives (when of course it would not contain the clause subjecting it to the approval of the Government authorities) there can be no question but that, upon the authority of Abdallah Jammal v. Namih Saidi and Yesufu Feluga (11 N.L.R. 86)—with which we see no reason to differ—it wouhi be an instrument within the meaning of the Land Registration Ordinance, 1924 (No. 36 of 1924). We cannot subscribe to the view of the learned Trial Judge that it was possible for the Defendant to have the use of a shop under a sub-lease ” without any interest or right in the land being conveyed.” It may, however, be argued that in view of the inclusion of the ” subject to approval ” clause the document would not become an ” instrument ” within the meaning of the Ordinance unless and until the necessary approval were given. However this may be, it was tendered in evidence as the document upon which the claim was founded, i.e. as a document which had conferred on the Plaintiffs (and therefore necessarily on the Defendant) a right to claim specific performance by execution of a lease and in the alternative to claim damages for breach. If it is such a document as the party tendering it held it out to be when tendering it, then it is clearly an instrument within the meaning of the Land Registration Ordinance, 1924, and it was tendered as affecting land. This being so, the objection to its admission was, in our view, sound and should have been upheld and the document rejected. .

In our opinion, therefore, the appeal must succeed upon the ground that the judgment of the Court below is based upon a document which should not have been received in evidence.

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As to the second point Counsel for the Respondents agrees with the contention of the Appellant that the claim for specific performance cannot 1”. enforced. This indeed, seems clear from the provisions of section 3A of the Native Lands Acquisition Ordinance (inserted therein by Ordinance No. 5 of 1938), the material part of which reads :–

” 3A. Where any interest or right in or over any land has been acquired by an alien from a native with the approval in writing of the Governor as provided for in section 3 such interest or right shall not-

” (a) be transferred to any other alien without the approval in writing of the Governor ; “

It is not suggested in this case that the written approval of the Governor has been given, nor was any evidence led that it had been sought.

But Respondents’ Counsel contends that, though this agreement cannot be specifically enforced, damages can be recovered for a breach of it. It may be that the Defendant became charged with a duty under the agreement, namely not to obstruct the obtaining of the Governor’s approval and, if and when that approval was obtained, to execute a lease in proper terms when it was

8c

submitted to him. But the statement of claim does not allege a Elk a 1 i

breach of that duty and no evidence was led to prove a breach of it. avnor. Consequently the Plaintiffs are not entitled to recover any damages Fawae in respect thereof. The appeal therefore succeeds on this point

Kingdom and

also.Petrides,

C. j J. and

The appeal is allowed, the judgment of the Court below, Butler including tha Order as to costs, is set aside and it is ordered that Lloyd, J. in the Court below the Plaintiffs’ claim do stand dismissed and judgment be entered for defendant.

The Appellant is awarded

costs in this Court assessed at 35 guineas and in the Court below assessed at 15 guineas.

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