Paul N. Uzor & Ors V. Jannasons Company Limited (1989)

LawGlobal-Hub Lead Judgment Report

UWAIFO, J.C.A. 

This interlocutory appeal questions the propriety of an order appointing a receiver made by Aneke, J., on 30 October, 1986 at the Onitsha High Court. The order was made following an application by the plaintiff who had originally sued the first to third defendants for damages of N100,000.00 for trespass and a perpetual injunction. The other defendants were later joined by order of court upon their application.

The plaintiff relies on the title of its vendor to the parcel of land which it alleges is situate at Onitsha-Owerri Road, Onitsha. On the other hand the second and third defendants deny that the land in dispute is situate at Onitsha-Owerri Road, and say that the other defendants who are members of the Mozie family of Obosi as owners from time immemorial granted them leases of the respective portions of the land.

The plaintiff seems to say that it brought the application for the appointment of a receiver to manage, control and collect rents and profits from the building the defendants were erecting on the land and in respect of which they were arranging to let the building to tenants. The defendants claim that they erected their building on the land well before the action was brought.

In considering the application and later making the order for the appointment of a receiver, the learned Judge said:

“Now as I say the court cannot and does not at this stage determine who is right or who is wrong, but one fact is clear and that is that whoever turns out to be the owner of the land becomes also the owner of all that is found on it…

In a case of this kind founded in trespass it is decided law that a receiver may be appointed – see Halsbury’s Laws of England Vol. 32, 3rd Edition at paragraph 633 (page 394) and the case of Cummins v. Perkins (1899) 1 CR. C.A. at p.20.”

He then appointed the firm of Akporiaye, Azukanma & Co. of 93 Upper New Market Road, Onitsha as the receiver.

The defendants/appellants have complained against the decision and have submitted the following issue for determination: “Whether the learned trial Judge was right in law, and considering the circumstances of this case, to have made an Order appointing a Receiver to manage and control the building on the land in dispute and to collect all the rents and profits accruing therefrom pending the determination of the suit.” The plaintiff/respondent raises five questions for determination but I think only the second one need be stated as the issue raised by the defendants/appellants appears to encompass all the others. The second issue by the respondent reads. “Is it a condition precedent to the appointment of a Receiver that the applicant applying for the appointment of a Receiver must first be declared the owner of the property in respect of which the application for the appointment of a Receiver was made before such an appointment could be made?”

The High Court has extensive jurisdiction to appoint a receiver upon interlocutory application, the only limitation being that the jurisdiction is to be exercised when it appears to be “just and convenient” per Jessel, M.R., in Gawthorpe v. Gawthorpe (1878) W.N. 91; Real and Personal Advance Co. v. M’Carthy and Smith (1879) 40 L.T. 878. I think a pertinent Issue to consider in the present case is whether the plaintiff/respondent can as of now claim to be entitled to the rent accruing from the buildings which the defendants/appellants erected on the land when there is a real dispute between them as to ownership. In other words, even if and when the plaintiff/respondent succeeds in the substantive suit and the defendants/appellants lose the buildings they erected on the land to it, can it rightly ask for all account from the defendants/appellants in respect of the rents received by them before judgment?

The defendants did not build the houses for the plaintiff; they may only lose them to him. There is no relationship of principal and agent or any other fiduciary, trusteeship, mortgage, partnership or similar relationship between them; the property in question is not a devise in a will which both parties are contesting; nor one shown to have been bought by the plaintiff from the true owner together with the buildings thereon and that the defendants are merely claiming some incumbrances thereon. There is no tenancy relationship under which the landlord is suing to recover possession and asks in the meantime for the appointment of a receiver of the rents and profits: see Gwatkin v. Bird (1882) 52 L.J.Q.B. 263. What seems to connect both parties is the tortious act of trespass alleged.

A trespasser who farms on another person’s land over a period is not under the common law accountable for the harvest from the land. That was a phenomenon of Roman law. There is no such thing in the modern law we practice. I say nothing about any customary law. A trespasser does not account for the mere use of land but he stands to pay damages and to forfeit whatever he plants or permanently erects on the land to the owner under the doctrine of quicquid plantatur solo, solo cedit. But where there is a contest as to whether there has been a trespass, that is to say, when the defendant claims to have title or right to the land, that doctrine cannot operate until the true ownership is determined and the equities are shown to be in favour of the plaintiff: see Solomon v. Mogaji (1982) 11 S.C. 1 at 45.

The court will not appoint a receiver except in aid of existing rights: see Philips v. Jones (1884) 28 S.J. 360. Hence the court will appoint a receiver at the instance of a mortgagee whose principal is immediately payable or whose interest is in arrears, for the appointment of a receiver is necessary to enable the applicant to obtain that to which he is entitled: see Re Crompton & Co. Ltd. (1914) 1 Ch. 954.

The duty of the court upon a motion for a receiver is merely to protect the property for the benefit of the person to whom the court, when it has all the facts necessary for a determination, shall think it properly belongs: see Blackeney v. Dufaur (1851) 15 Beav. 42.