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In The Supreme Court of Nigeria On
Friday,
the 2nd day of March 1990 SC 120/1987
Before
Their Lordships
Between
And
Judgement
of the Court Delivered by Salihu
Modibbo Alfa Belgore
The plaintiffs in the trial High Court, now respondents, took out a writ of summons as executors of the estate of Chief Samuel Oyekoya Oyelate Sode, (deceased), who was the owner of the property on the plot variously known as 132 Yakubu Gowon Street or Broad Street. Lagos. The property is a two-storey building and the claim inter alia was as follows:
(i) possession of the ground floor business premises with the appurtenances situate at 132 Broad Street, Lagos from 2nd and 3rd defendants.
(ii)
(iii)
The writ further explained in the endorsement as follows:
The 1st defendant was a yearly tenant of the plaintiffs while the 2nd and 3rd defendants are trespassers of plaintiffs' premises.
The
annual rental value of the premises is about
In 1971, the street which was from the time it was constructed known as Broad Street, was renamed Yakubu Gowon Street, it has reverted to the former name from 1975. By a deed of lease dated 15th day of June 1971 between the deceased. Chief Sode, and a Lebanese by the name Adnan El-Fayad, the lessee (Fayad) was to hold the ground floor of 132 Broad Street for twenty five years at the yearly rent of £3,000 and four years' rent amounting to £12,000 was paid in advance. Mr. Fayad apparently took possession of this ground floor. Not long after Mr. Fayad was deported from Nigeria. The deed of lease. Exhibit C. was tendered at the trial Court. By a letter, Exhibit D, written bv Messrs. T.A. Oyagbola. Solicitors, to Messrs Gbenga Adenowo, Solicitor for the deceased, it would appear that Adnan Ahmad Fayad assigned the remaining term of the lease to Messrs Jebs Limited. The letter written on 19th June 1972 reads:-
Dear Sir,
NOTICE OF INTENTION TO ASSIGN LEASE OF NO. 132, YAKUBU GOWON STREET, LAGOS
With reference to your letter dated 13th June, 1972 our clients Messrs Jebs Limited are arranging to pay the arrears of telephone bill. Mr. Adnan Ahmad Fayad, in accordance with Clause 3(iii) of the Lease Agreement, has assigned the premises to Messrs Jebs Limited.
As indicated at paragraph 2 of your letter, we are expecting your letter as early as possible.
Yours faithfully, (Sgd.) T.A. Oyagbola & Co. Solicitors.
The deed of lease, Exhibit C in paragraph 3(iii) reads:
(iii) That the tenants may assign underlet the whole of the demised ground floor and part thereof during the said term on a formal notice to the landlord.
Jebs Limited took possession of the ground floor and was running a restaurant there; he apparently had paid some rents on the property. At any rate by 1972 when Exhibit D was written. the deceased raised no objection to the assignment of the lease to Jebs Ltd. not until 1979 when it was obvious that the Federal Military Government had, by forfeiture order acquired the unexpired lease from the company. Jebs Limited was apparently wholly owned by one J.H. Bassey, a Deputy Commissioner of Police. and as such a public officer who had been found guilty of misdeeds by an investigation panel. The Supreme Military Council in the exercise of the powers conferred by section 8 of the Investigation of Assets (Public Officers and other Persons) Decree 1968 [1968 No.37], made Public Officers (Forfeiture of Assets) Order 1978 (L.N. 33 of 1978) with commencement date fixed as 14th July 1977, but actually signed on 2nd July, 1978; this Order of 1978 was further amended by Legal Notice No.17 of 1979 still based on Decree 10 of 1976 and decree No.37 of 1968. Legal Notice No.17 of 1979 amended Legal Notice No.33 of 1978 in Part I thereof, paragraph 3 by substituting a new list of assets of Mr. J.H. Bassey to be forfeited. Included in this new list is an B item under paragraph 3 sub-paragraph(s) which reads
(S) Unexpired term of the leasehold in respect of the Ground Floor of 132 Broad Street, Lagos, granted to Jebs Limited.
To my mind, this amendment in Legal Notice No.17 of 1979 was merely to avoid any doubt as to the assets to be forfeited by Mr. J.H. Bassey. The provisions in Public Officers (Special Provisions) Decree 1976, Public Officers (Forfeiture of Assets) Order 1978 and Investigation of Assets (Public Officers and other Persons) Decree would have sufficed to make forfeited all undeclared assets of Mr. Bassey, including JEBS LTD. as and when they are found. By the provisions of the Decrees and consequent orders made on them, it would have made no difference to the situation of J H. Bassey vis-a-vis his assets to be forfeited.
The Public Officers (Special Provisions) Decree 1976 provides for removal of Public Officers from office either because of old age, or for the reorganisation of public service; and if it was felt that a removal was necessary because a public officer has been found to have corruptly enriched himself by engaging in corrupt practices or has enriched any other person by some corrupt practices. The removal from office would entail dismissal or summary termination or the polite request to the officer to retire voluntarily. The Decree provided for investigation of assets and if any officer was found to have acquired more than he legitimately earned during his tenure as public officer, such excess assets were to be forfeited. (See section 3 of the Decree 10 of 1976.)
The 1968 Decree No.37 provided for investigation of assets of public officers and other persons (whether public officers or not) and verification of such assets (see S.2 and S.3 thereof). It is a very exhaustive Decree of verifymg and searching and tracing of assets, and finally provided for forfeiture of excess or ill-gotten assets. The L.N. 33 of 1978 and L.N. 17 of l979 ordering forfeiture of the assets deemed to be corruptly acquired by J.H. Bassey, a public officer, being a Deputy Commissioner of Police, were made by virtue of Decree 10 of 1976 and Decree No.37 of 1968. Now, section 12 of the investigation of Assets (Public Officers and Other Persons) Decree 1968 (i.e. 1968 No.37) provides
12. The validity of any direction, notice or order given or made or of any other thing whatsoever done, as the case may be, under this Decree, or the circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation [1963] shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree. (Square brackets mine)
Decree No.10 of 1976 [i.e. Public Officers (Special Provisions) Decree] is more explicit as to ouster purport than decree 37 of 1968 in that by its S.6 it provides as follows:
6 (1) For the purposes of this Decree the operation of the provisions of section 152 of the Constitution of the Federation and the corresponding provisions of the constitution of a State, which protect certain pension rights, is hereby excluded.
(2) The provision of any enactment, law or instrument (including the Constitution of the Federation and the constitution of a State) relating to the benefits to which this Decree applies or relating to appointment, dismissal and disciplinary control of a public officer shall have effect subject to this Decree.
(3) No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and made void.
(4) Chapter III of the Constitution of the Federation is hereby suspended for the purpose of this Decree and the question whether any provision thereof has been or is being or would be contravened by anything done in pursuance of this Decree shall not be inquired into in any court of law.
Since 17th June 1972 when notice of sublease to Jebs Limited was given to the late testator, Mr. Sode, no angry finger was raised and things went on smoothly. During all this period the original lease to Fayad was not dead, all that took place was the sublease of the remaining term to Jebs Limited. This silence on the part of the late testator is understandable because the deed of lease, Exhibit C, in paragraph 3(iii) thereof permitted this. The executors of the estate of Mr. Sode started their skirmishes with the forfeiture decrees immediately they became aware of it. What is contained in the statement of defence of the 2nd and 3rd appellants in paragraphs 6, 7, 9, 10 and 11 is very illuminating:
6. The defendants further aver that by virtue of the provisions of the enactment mentioned above, the 1st defendant took possession of the unexpired term in the property situate being and known as 132, Broad Street, Lagos then owned by Jebs Limited.
7. The 1st defendant subsequently advertised the said property through their Agents Messrs Shote Dawodu & Co., to the Public at large for sale, thereof the 2nd defendants made an offer and which offer was accepted by the 1st defendant.
8. Thereafter the 1st defendant sold the property in question to the 2nd defendant and also executed a DEED OF TRANSFER dated 24th September, 1979 and which was registered at the Lagos State Land Registry dated 27th September, 1979. The deed of transfer vested in the 2nd defendant the unexpired part of the lease which was then vested in the Federal Government.
9. The 2nd defendant was then put in possession by the 1st defendant and thereafter the 2nd defendant being the Principal Director of the 3rd defendant put the 3rd defendant into possession thereof.
10. The 2nd and 3rd defendants contend that they nave been in Undisturbed possession since the transfer.
11. As regards paragraphs 29 of the Plaintiff's Statement of claim the defendants contend that the Plaintiffs have received the ground rent for the period commencing from 1st August. 1979 to 31st July, 1980. The defendants further contend that the Plaintiff has refused to accept the Cheque payment of the period commencing from 1st August, 1980 to 31st July, I981.
The sublease to Jebs Limited was in 1972. Rents were being received by the deceased and later, after his death in 1977, by his executors. There was nothing in evidence that Exhibit D, which reads:
Office 30, Ikorodu Road, Yaba. Phone: 47553 Postal P.O. Box 70, Mushin Lagos State. 19th June. 1972
"Exhibit 'D'
T. Ade Oyagbola & Co. Barristers & Solicitors Of The Supreme Court of Nigeria & Notaries Public.
Olugbenga Adenowo, Esq., Barrister & Solicitors. 47 Ojo Giwa Street. Lagos.
Dear Sir,
Notice of Intention to Assign Lease of No. 132, Yakubu Gowon Street Lagos.
With reference to your letter dated 13th June, 1972 our clients Messrs Jebs Limited are arranging to pay the arrears of telephone bill. Mr. Adnan Ahamad Fayad, in accordance with Clause 3(iii) of the Lease Agreement, has assigned the Premises to Messrs Jebs Limited. As indicated at paragraph 2 of your letter, we are expecting your letter as early as possible.
Yours faithfully, (Sgd.) T.A. Oyagbola & Co. Solicitors.
was received by the executor of the estate of Sode or by Sode himself during his lifetime. By 1978 when it was obvious Mr. J.H. Bassey was in trouble with the Federal Military Government over the corruptly acquired assets including the ground floor of 132 Broad Street, Lagos. Notice to Quit was served, not on 2nd and 3rd appellants but on Jebs Limited, a company already forfeited to the Federal Military Government. By 31st July 1980, another Notice to Quit was served on Rachel Restaurants Ltd. "Cafeterea" referring to the 3rd appellant as tenant at will/trespasser. The whole exercise of the executors who are now respondents smacks of trying to sleep by closing one eye and attempting to see the goings on with the other. They were presumed in law to have seen not only the substantive laws i.e. Public Officers (Special Provisions) Decree 1976 (1976 No.10) and Investigation of Assets (Public Officers and Other Persons) Decree 1968 (1968 No.37) but also the consequent orders in Legal Notice No.33 of 1978 and Legal Notice No.17 of 1979. The respondent decided to pursue a different route by applying Recovery of Premises Act (which totally has no relevance to this matter) and ignored the forfeiture decrees and orders in legal notices made pursuant to them. Great reliance was placed by the respondents, as plaintiffs, on alien Law of Western Nigeria and Land Instrument Registration Law also of former Western Nigeria and submitted that because the whole transaction between Fayad and Jebs Limited was not registered, it was null and void. The learned Judge dismissed this outright because according to him, by virtue of Lagos State (Applicable Laws) Edict 1968 (No.2 of 1968 Lagos State) the Laws of Western Nigeria have no application to Lagos State. Ile held as follows:
It therefore stands to reason that a law or laws which had ceased to have effect in Lagos State as far back as 1968, cannot effect the transactions entered into and governed by the Laws of Lagos State in 1971. I therefore am of the opinion that both the Aliens Law as well as the Lands Instrument Registration Law of Western State do not affect Exhibit 'B', Counsel's contention there-fore appears to be wrong in law. In the view I have taken, Exhibit 'B' need not comply with the provisions of any law other than the Laws of Lagos State applicable to the transactions of that nature: and in so far as there was no evidence of an infringement of the laws of Lagos State. I am of the opinion that the transaction is not vitiated by any law and so Fayad obtained a perfect title. In the circumstances I do not think that the authorities to which my attention was drawn by learned Counsel to the Plaintiffs were applicable.
He held that the Federal Government validly took possession of the ground floor of 132 Broad Street by virtue of the Decree and Orders cited earlier in this judgment. What however was thus forfeited to the Federal Government was the unexpired term of the lease originally granted to Fayad and sublet to Jebs Limited. Learned trial Judge admirably saw clearly the issues and held:
What the Federal Military Government possessed according to the Public Officers (Forfeiture of Assets) (Miscellaneous Pr6visions) Order 1979, was the unexpired period of the terms in Exhibit 'B' and this it purported to pass on to 2nd and 3rd Defendants. Exhibits 'E' notified the Plaintiffs of the sale of the premises in dispute: by this documents, I think two options were open to the Plaintiffs; they could either lodge a caveat against the sale or bid at the sale, neither of this was done: they folded their arms, had their eyes wide open, and the sale was conducted in my A view according to law. 3rd Defendant therefore in my opinion is a purchaser for value without notice.
In Rasaq Ademola Balogun v. Saminu Salami and 2 others (1963) 1 All N.L.R. 129, a family house which had been mortgaged by owners in fee-simple was sold at auction by order of Court, and the purchaser A.F. applied to the Registrar of Titles for first registration. The first defendant was in possession at the time of the auction, and shortly afterwards the family head sold a portion of the house to the second defendant, who went into possession. The family knew about the auction sale, they could have entered a caution under section 43 of the Registration of Titles Act or opposed the registration under Section 10, and the second defendant could have done likewise, but none of them took any steps, and A.F. was given first registration. He later sold to the Plaintiff, who registered and later sued the defendants for possession and an injunction.
The first defendant and third, both members of the family, pleaded that the plaintiffs could not have validly bought any legal interest in what was family property; and 2nd defendant pleaded that she had bought a portion and gone into possession.
The trial Judge observed that A.F. and the plaintiff knew that the defendants were in possession but the plaintiff did not ask them what their interests were; he therefore dismissed the claim on the authority of Kabba v. Young, 10 W.A.C.A. 135 in the belief that the plaintiff's legal estate under his land certificate was subject to Section 52 of the Registration of Titles Act.
He relied on the Supreme Court decision in the matter and concluded as follows:
I hold that by the combined effect of this decision, the provisions of section 149 of the Evidence Act as it relates to the Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order 1979, the Defendants have obtained a valid and good title to the premises in dispute and so the 2nd and 3rd Defendants are entitled to the unexpired period of the leasehold interest bought in 1979 and therefore entitled to remain in possession of the said premises and to be registered or 3rd defendant only to be registered as the proprietor of the unexpired period of the said premises.
The Plaintiffs having failed to establish their claims, the action is hereby dismissed.
In the Court of Appeal, the grounds filed comprised that
(1) the judgment was against weight of evidence
(2) that learned trial Judge erred in failing to give judgment as claimed by the plaintiff because the document relied upon, Exhibit C, the lease agreement between the testator Mr. Sode and Mr. Fayad not having been registered in accordance with S. 14 Lands Registration Act Cap 99 Laws of the Federation of Nigeria 1958 (Vol.IV) rendered that agreement null and void.
The appellants (now respondents in this court) filed a brief without setting out issues for determination but adverted at length to the grounds of appeal. The second and third appellants now before this Court filed a brief and took up the same issues indirectly with matters contained in the brief of appellants (now respondents). The whole matter, according to the respondents rested on Exhibit C. the lease agreement and Exhibit D letter notifying the testator of the sublease to Jebs Limited. Cleverly attempt was made to sidetrack the forfeiture decrees and orders made thereunder (supra). The Court of Appeal, set aside the judgment of the trial Court in allowing the appeal and in doing so Nnaemeka-Agu, J.C.A. (as he then was) helped frame the issues from the grounds of appeal and arguments in the written briefs by saying in his lead judgment as follows:
(i) whether the jurisdiction of the High Court was ousted by the Decrees and Orders and if the answer to the above is in the negative.
(ii) whether the lease to Adnan Fayad, Exhibit C was void for want of Governors consent.
(iii )whether Exhibit C was void for non-registration.
(iv) what interest if at all [there was any] was transferred to Jebs Limited by Fayad.
(v) whether Exhibit M (which was the transfer to the Federal Military Government in Lands Registry) should be rectified. (Square brackets mine for emphasis).
Learned Justice of the Court of Appeal in his judgment held that the "pith and marrow" of the argument of the appellants before the Court of Appeal was whether it was the company called Jebs Limited that was being forfeited or was it the leasehold in the ground floor of 132 Broad Street, Lagos. If the evidence indicated that Jebs Limited had no leasehold property in 132 Broad Street, the Court was competent to say so and to hold there was jurisdiction to declare that the Courts right to entertain the action was not ousted. There was however ample evidence that forfeited ground floor was advertised on behalf of the Federal Military Government, the evidence was clear that Fayad (who was deported after Exhibit C was made) had exercised his right to sublet and that Jebs Limited took the sublease for the unexpired terms, Exhibit D. This Exhibit, learned justice observed never proved any sublease conclusively as there was nothing from Fayad indicating his exercise of thatright of subletting. Nnaemeka-Agu. J.C.A. (as he then was) went further to assert as follows:-
It is observed that Exh. D was on the face of it a letter dated 19th June, 1972, written by a Solicitor to Jebs Limited. There is nothing coming from Fayad or his agent or representatives to show that he agreed to its contents. Curiously it was captioned "Notice of Intention to Assign Lease ." and went ahead to say that "Mr. Adnan Ahmad Fayad has assigned the premises to Messrs Jebs Limited.In my view this document, coming from an agent of Jebs Limited, is at best a self-serving piece of evidence and therefore worthless for purposes of proving that Jebs Limited had the property in dispute assigned to him.
Worse still, there is no evidence any where to show that what was A acquired by Jebs, if at all, was the eighteen years term which was sold to the 2nd and 3rd respondents. This state of the facts completely knocks the bottom out of any assertion that Jebs Limited acquired an eighteen years leasehold term 'over the property in dispute. Indeed the only evidence before the Court is that of P.W. I to the effect that the appellants' father objected to the proposed assignment between Fayad and Jebs Limited. From the pleadings in paragraphs 11 and 12 of the Statement of Claim there is nothing to amount to positive admission that the assignment of the residue of the term was completed inspite of the objection from the appellants. But I must say that the pleadings in paragraphs 13 and 14 of the said statement of claim are sufficient to show that Jebs Limited went into possession of the premises in dispute. In that state of the facts, it appears to me that when the Federal Military Government made the orders No.33 of 1978 and No.17 of 1979 with respect to the "unexpired term of the lease in respect of the Ground Floor of 132 Broad Street, Lagos" the Orders could not vest in the 1st respondent legal leasehold interest for 18 years which was never shown to belong to Jebs Limited. As the clear intention of the Orders was to forfeit the leasehold interest of Mr. I.H. Bassey, per Jebs Limited, and not that of Chief Sode those orders would not have the effect of passing the title in the property in dispute for 18 years to the 1st respondent. In keeping with the maxim: nemo dat quod non habet, the 1st respondent had no leasehold term of 18 years to sell to the 2nd and 3rd respondents. But it is my view that on the principle of de minimis what the order succeeded in vesting on to 1st respondent was the possessory right of Jebs Limited as yearly tenants. That was what the 1st respondent could have sold to the 2nd and 3rd respondents. As the latter were in possession of the premises for which they paid rents up to 1983 they were yearly tenants within the meaning of the law. They cannot therefore be adjudged trespassers. But their tenancies would be determinable by notice and were duly determined by exhs. K1-K3.
As a result of the above, Court of Appeal held that the trial Court as well as Court of Appeal had jurisdiction to hear or inquire into the matter because their jurisdiction was not ousted despite the decrees and orders G made consequent upon them. He held no leasehold interest for the remaining eighteen years vested in the Federal Military Government and thus the 1st appellant in this Court, had nothing to vest in the 2nd and 3rd appellants because nemo dat quod non habet. The reason for this decision by the Court of Appeal lies in not seeking consent of the Governor because Exhibit C was a document between a native (Nigerian) and non-native (an Arab) Secondly, so held the Court of Appeal, it is a document that ought to be registered and it was not registered. However, learned justice also held as follows:
It is observed that these two issues were raised on the pleading (see paragraph 9 of the Statement of Claim and paragraph 3 of the statement of defence of each defendant). Inspite of the above state of pleadings, no positive evidence was called by either side on the issues of Governor's consent and registration. It has not been disputed that Exh. C was ex facie not registered. This has been conceded by the respondents. It is equally clear that no Governor's consent has been endorsed thereon. It is true that under S.10 of the Land Registration Act Cap. 99, it is only by endorsement that the consent of the Governor has been given can be proved. But, where, as in the instant case, the instrument has not been registered the question of the registrar being otherwise satisfied that such consent has been given does not arise, and, in any event has not been proved.
Learned justice after making the above observation further held that as of the date Exhibit C was made (15th June 1971), there was no law applicable in Lagos State which prescribed that the consent of the Governor was necessary. But he went further and held that the instrument (i.e. Exhibit C) was registrable and it was not registered and as such the instrument is void and Federal Military Government had nothing to transfer to the 2nd and 3rd appellants. He held that because Exhibit C was not registered, it was void and the transfer to 2nd and 3rd respondents was equally void.
The Court of Appeal unfortunately never adverted fully to the ouster provisions of Decree No.10 of 1976 and Decree No.37 of 1968. The former in section 6 and the latter in section 12 (quoted in full earlier in this judgment), clearly excluded jurisdiction of any Court or tribunal looking into these forfeiture decrees. Section 12 of Decree No.37 of 1968 is wide enough to exclude jurisdiction of the Courts; S.6 of Decree No.10 of 1976 made it dearer. The Court of Appeal reversed the High Court's decision and held that the Federal Military Government had, at best, yearly contract inherited from Jebs Limited.
On appeal to this Court the first appellant, Attorney-General of the Federation who represents the Government, and 2nd and 3rd appellants, Who got their right from 1st appellant based their grounds of appeal in the on the applicability of S.14 Land Registration Act, which Court of Apendered Exhibit C void.
The Courts must be alert that their jurisdiction is not tampered with or diminished by mischievous construction. That is when the jurisdiction exists by statue and supported by the Constitution. Is it not the Constitution that is the fountain of all our laws. Indeed, all laws, whether existing before the Constitution and those that are made after the Constitution has come into commencement, owe their legality to the Constitution. But once in clear language barring all ambiguities, a law which ousts the jurisdiction of the Courts and tribunals from looking into validity of an executive act and all the (C provisions of the Constitution as to fundamental rights are suspended as is done in Military Regimes, it is not the law to assume jurisdiction. Once a military regime comes in, whether by their being handed power by democratically elected government or through act of a coup d'etat and the effective governance is being exercised by such regime whether de facto or dejure effect must be given to that ouster. No military regime claims to respect laws inimical to its policy. Perhaps I shall make the point clearer by asserting even though Courts are not happy with ouster clauses in decrees and edicts, it should be borne in mind that a military regime will be an anomally if it decides to govern by the entrenched rights as contained in Chapter III of 1963 Constitution of the Federation or in Chapter IV of the Constitution of the Federal Republic of Nigeria 1979; in fact the military came and suspended and modified those Constitutions. To the Military, the Constitution is a veritable working document and no more, because once they promulgate a decree and that decree excludes the provisions of the Constitution (even as suspended and modified by them), the decree has the superiority to the exclusion of the Constitution and any other enactment on the subject matter of the decree (See Decree No.28 of 1970). At the time material to the Orders now in question, Decree 10 of 1976 and Decree No.37 of 1968 clearly ousted the jurisdiction of the Court in respect of any act done in the forfeiture of assets. It made irrelevant all the protective provisions of other laws and the Constitution, and indeed this includes the Constitution itself. It is for the reason of preventing Courts from arrogating to themselves powers they never had that the Constitution of 1979 itself provided a safeguard in S.6(6)(d). [See Mastapha v. Governor of Lagos State & Ors. (1987) 2 N.W.L.R. (Pt.58) 539.541; Uwaifo v. Attorney-General, Bendel State (1982) 7 S.C. 124]. The most overwhelming part of the ouster of jurisdiction is that contained in section 6(3) and (4) of Public Officers (Special Provisions) Decree (No.10 of 1976) earlier quoted in this judgment. The pith of the Order now being questioned by the respondents is that
No civil proceedings shall lie or be instituted in any Court on account of or in respect of any act, matter or thing done or purported to be done by any person under this decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and made void.
If the Court of Appeal had adverted to this provision, certainly it would not have embarked on finding out if there was registration of the deed or if the Governor's consent was sought. The provisions of Land Registration Act, (Cap 99 Laws of the Federation of Nigeria 1958), Land Instrument Registration Act; Registration of Titles Act are irrelevant in the face of the overriding provisions in the ouster clauses in Decree No.10 of 1976 and Decree 37 of 1968. The purport of the decrees is very clear, it was to divest persons of ill acquired assets and were not concerned with niceties of registration or consent of Governor or indeed the protection of human rights provisions of the Constitution. When Courts are faced with such situation, it is for the Courts to interpret the laws accordingly that is to say, as words in decrees prescribe. The Courts must interpret the laws as they are, including the Decrees. The purport of ouster provisions in Decrees is clear, that is, no Court or Tribunal should look into the matter the Courts are so prevented from looking into. This is the peculiarity of the Military regime, which make the Constitution subjected to their Decrees. Attorney-General of Lagos State v. Hon. Justice Dosunmu (1989) 3 N.W.L.R. (Pt.III) 552. The original source of jurisdiction is the Constitution itself, but when a military regime by a Decree promulgated ousts jurisdiction of Courts or Tribunals in any subject-matter as provided by the Constitution or any other law, the Decree must be followed.
It should be borne in mind that the principle of equity still exists. Who assuming that Exhibit C must be registered or consent of the Governor must be sought, is to act? The person to ask for consent is the holder of the land instrument, he is also to register the instrument. The deceased as the holder of the right of occupancy voluntarily let out the ground floor of the property to Mr. Fayad. The agreement for letting contains the provision for subletting. He had the notice of the subletting and apparently received rents from the sub-lessee i.e. JEBS LTD., and on the death of the deceased, his executors also continued to receive such rents, it will be unconscionable of the executors to now run round and contend that no consent of the Governor was obtained or that the instrument, registrable was not registered. Solanke v. Abed & Anor. (1962)1 All N.L.R. 230, 234.
For the
above reasons the Court of Appeal was in error to have brushed aside the clear
ouster provisions of the decrees. I allow the appeal and set aside the decision
of the Court of Appeal. My decision is that this case as initiated in the High
Court was without jurisdiction and therefore it is struck out. I award
Judgement delivered by Bello
I read in advance the judgment of my learned brother, Belgore, J.S.C. I agree the appeal should be allowed and I endorse the order as to costs.
Like the Attorney-General of Lagos State of Nigeria v. Justice Dosumu (1989)3 N.W.L.R. (Pt. 111)552, this appeal would have to be decided on the narrow issue of ouster of jurisdiction of the courts of law to determine the claim of the plaintiffs/respondents. The property in question. was leased by deceased owner Chief Sode, on 15th June 1971 to a Lebanese, Adnan ElFayad, for 25 years and 4 years rents were paid in advance. Shortly thereafter the lessee, who was deported out of Nigeria, sub-leased his remaining term to Messrs Jebs Ltd. In consequence of investigation under the Investigations of Assets (Public Officers and Other Persons) Decree 1968. one Bassey, a Deputy Commissioner of Police, was found to be the owner of Jebs Ltd. and to have improperly enriched himself. By Order made with effect from 4th July 1977, Public Officers (Forfeiture of Assets) Order 1978, Jebs Ltd. was forfeited to the Federal Military Government in pursuance of the said 1968 Decree and Public Officers (Special Provisions) Decree 1976. With effect from the said date the interest of the company in the property question was further forfeited by the Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order 1979. Accordingly, as from 4th July, 1977 interest of Jebs Ltd. in the property stood forfeited to the Federal Military Government.
Furthermore, on 24th September 1979, the Federal Military Government it sold the property in question to the 2nd appellant who thereafter put the 3rd appellant in possession. The evidence showed the 3rd appellant paid the reserved rent to the respondents up to July 1980. The respondents refused to accept rent for the period August to July 1981.
Although
the property was actually forfeited by the Order made on 2 June 1978, the
appellants did nothing until on 30 October, 1980 when they filed their writ of
summons claiming possession of the property in question and rent of
The grounds upon which the plaintiffs/respondents founded their claim were stated in paragraph 9 of the Statement of Claim which reads:
9. The lease for a term of 25 years (if any) was invalid for:-
(a) non registration.
(b) Not in compliance with the form prescribed under the registration of Title Act Cap 181.
(c) not properly executed.
(d) failure of the tenants to obtain permission as required by law before acquiring interest in land, the Tenant, being an alien.
The defence of the defendants/appellants was that the Federal Military Government had acquired a valid title by virtue of the Decrees and Order I have earlier on stated.
After having fully considered the evidence adduced by the parties, the relevant Decrees and law cited by counsel, the trial Judge held that the defendants/appellants had acquired good and valid title to the property in dispute. He dismissed the plaintiffs/respondents' claim.
Not satisfied with the decision of the trial court, the plaintiffs/respondents appealed to the Court of Appeal where the issue of jurisdiction was canvassed. The respondents thereat contended that the trial court had no jurisdiction to adjudicate on the dispute. They relied on sections 12 and 6(3) of the said Decrees of 1968 and 1976 respectively which ousted the jurisdiction of the courts of law at the material time.
In dealing with ouster of jurisdiction, after it had considered Halsbury's Laws of England, Vol.10, 4th Ed. paragraph 720, Anisminic v. Foreign Compensation Commission (1969)2 A.C. 147 at p.170, Adelumo v. Col Johnson (1974)1 All N.L.R. (Pt.1) 28 at pp.30-33, African Newspapers v. Nigeria (1985) 2 N.W.L.R. (Pt.6) 137; Barclays Bank v. Central Bank (1976) 6 S.C. 175 at 189 and Wilkinson V Barking Corporation (1948)1 K.B. 721 at 725, the Court of Appeal concluded that courts had jurisdiction to construe the ouster provisions to find out the legislative intention - what it intended to oust and the extent of the ouster.
The Court of Appeal then proceeded to review the evidence and found that the lease granted to EI-Fayad had not been registered under the Registration of Titles Act, Cap. 181 of the Laws of the Federation 1958. In con-sequence thereof, the Court of Appeal declared the lease null and void and held that EI-Fayad had only acquired a yearly tenancy. It concluded that the Federal Military Government had forfeited the yearly tenancy which it could only pass to the 2nd defendant/appellant. Having found that plaintiffs/respondents had given notice terminating the yearly tenancy, the Court of Appeal set aside the judgment of the trial court and granted possession to them.
I consider it necessary to reiterate the relevant ouster provisions of the Decrees. Section 12 of the 1968 Decree reads:
(a) The validity of any direction, notice or order given of made, or of any other thing whatsoever done, as the case may be, under this Decree. or under any enactment or other law repealed by this Decree, or the circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of Chapter III of the constitution of the Federation shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree. (Italics mine)
Section 6 of the 1976 Decree was in these terms:
(b) (3) No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be dis charged and made void. (Italics mine)
(c) (4) Chapter III of the Constitution of the Federation is hereby suspended for the purpose of this Decree and the question whether any provision thereof has been or is being or would be contravened by anything done or purported or proposed to be done in pursuance of this Decree shall not be inquired into in any court of law.
It needs to be emphasized that the issue of jurisdiction must be resolved around the provisions of the two Decrees which were then the applicable law. In parenthesis, it may be pointed out that the Investigation of Assets (Public Officers and Other Persons) Decree 1968 No.37, was repealed by the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals, ETC) Decree 1979 with effect from 30th September, 1979. However, the other Decree, Public Officers (Special Provisions) Decree 1976 and the two Forfeiture Orders made thereunder have not been repealed and the three are "existing law" within the meaning of section 274 of the 1979 Constitution.
To my mind, the provision of section 12 of the 1968 Decree is clear and unambiguous that, inter alia, the circumstances under which the order (in this appeal the Forfeiture Orders, L.N. 33/1978 and L.N. 17(1979) has been made or other thing whatsoever done, shall not be inquired into in any court of law." (Bracket and italics mine]. It is clear on the face of the two Orders 'I the "thing" done in the case on appeal was the forfeiture of the unexpired term of the leasehold in respect of the property in question. The section 12 prevented a court of law from inquiring into the forfeiture.
Furthermore, Section 6(3) of the 1976 Decree was more emphatic in its terms in that "No civil proceedings shall lie or be instituted in any court on account of or in respect of any act, matter or thing done under" the Decree. Certainly, the prohibition was absolute in that no civil proceedings would lie or be instituted in respect of forfeiture which was a matter or thing done under the Decree. Accordingly, the Court of Appeal erred in law in holding that the courts of law have jurisdiction to determine not only the interest forfeited but also its quantum.
It follows upon the correct interpretation of the relevant provisions of the two Decrees, court of law had no jurisdiction to determine any issue arising from the two Decrees and the two forfeiture Orders made thereunder.
Finally, one may observe that although the 1976 Decree and the two Orders are "existing law", nevertheless, the provision of section 6(6)(d) of the 1979 is not relevant because the competence of their makers was not in issue.
Judgement delivered by Obaseki
I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Belgore, J.S.C. I agree with him that the plea of ouster of jurisdiction succeeds and the appeal is allowed. The decision of the Court of Appeal is hereby set aside and the suit is accordingly dismissed for want of jurisdiction to inquire into the validity of the title of the appellants.
The property, the subject matter of the action, filed in the High Court, has been the object of a forfeiture order published as LN.33 of 1978 as amended by Order published as LN. 17 of 1979. The property forfeited to the Federal Military Government was described as
Unexpired term of leasehold in respect of the ground floor of E 132 Broad Street, Lagos granted to Jebs Ltd.
Jebs Ltd. had taken an assignment of the unexpired term from one Adnan EI-Fayad a Lebanese who had been deported by the Federal Military Government from Nigeria. Adnan El-Fayad had taken a 25 years term of lease from Chief Samuel Oyekoya Oyelate Sode who had since then died and the executors of whose will are the respondents herein. Jebs Ltd. was fully owned by one J. H. Bassey a former Deputy Commissioner of Police who, on being probed was found to have accumulated assets far in excess of his legitimate income.
The detailed narration of the facts of this case has been made by my learned brother, Belgore, J.S.C., in his judgment just delivered and I need not repeat these here except those portions of the facts necessary for this concurring judgment. The main issue in this appeal is whether the courts, i.e. High Court and the Court of Appeal and Supreme Court can exercise jurisdiction to determine the claim filed by the respondents in respect of the property. This question has been answered by my learned brother, Belgore, J.S.C., in the negative. I too will answer it in the negative. This is because of the clear ouster provisions of section 12 of the Investigation of Assets (Public Officers and Other Persons) Decree 1968 (1968) No.37) which reads:
The validity of any direction, notice or order given or made or of any other thing whatsoever done as the case may be, under this Decree, or the circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation 963 shall apply; in relation to any matter :arising out of this Decree or out of any enactment or other law repealed by this Decree (Italics mine)
The protection offered or given by this Decree has been continued by section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979. See Uwaifo v. Attorney General, Bendel State (1982) 7 S.C. 124. The other Decree relevant herein is Public Officers (Special Provisions) Decree 1976 No. 10 of 1976 section 6(3) and (4). These two subsections of section 6 read:
(3) No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this Decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the proceedings shall abate, be discharged and made void:
(4) Chapter 111 of the constitution of the Federation is hereby suspended for the purpose of this Decree and the question whether any provision thereof has been or would be contravened by anything done or purported or proposed to be done in pursuance of this Decree shall not be enquired into in any court of law.
Finally, section 6(6)(d) of the 1979 Constitution of the Federal Republic of Nigeria creates a total ouster of jurisdiction. It reads:
(a) (b) (c) (d) shall not as from the date when this section comes into force extend to my act ion or proceedings relating to any existing law made on or after 15th January 1966 for determining any issue or question as to the competence of any authority or person to make any such law.
Existing law has been defined and a forfeiture order forfeiting the assets of any person pursuant to powers given by the Investigation of Assets (Public Officers and Other Persons) Decree l968 i.e. Decree No.37 of 1968 comes within the definition. See section 274(4)(b) of the Costitution of the Federal Republic of Nigeria 1979. See Uwaifo v. Attorney General, Bendel State (supra).
It is an incontrovertible fact that the Supreme Military Council exercised the powers conferred on it by section 8 of the Investigation of Assets (Public Officers and Other Persons) Decree 1968 (1968 No.37) and made the Public Officers (Forfeiture of Assets) Order 1978. (LN.33 of 1978 with retrospective effect from 2nd July, 1977. The order which was amended by Legal Notice No. 17 of 1979 forfeited to the Federal Military Government the property described as
Unexpired term of the leasehold in respect of the ground floor of 132, Broad Street , Lagos, granted to Jebs Ltd.
The respondents claim for
(1) possession of the ground floor business premises with appurtenances situate at 132 Broad Street, Lagos from 2nd and 3rd defendants;
(2)
(3)
cannot lies as it is caught by the three counter provisions set out above, the property having been forfeited to the Federal Military Government. Section 12 of the Investigation of Assets (Public Officers and Other Persons) Decree 1968 (1968 No.37) bars the court from questioning the validity of the forfeiture Orders. That section again, for emphasis reads:
The validity of any direction, notice or Order given or made or of any other thing whatsoever done, as the case may he, under this Decree or the circumstances under which such direction, notice or order has been given or made on other thing whatsoever done, shall not be enquired into in any court of law, and accordingly nothing in the provisions of Chapter III of the constitution of the Federation shall apply in relation to any matters arising out of this decree or out of any enactment or other law repealed by this Decree.
Since the 2nd and 3rd defendants/appellants derived title from the 1st defendant/appellant who is protected by the Decrees referred to above; their occupation cannot be in trespass. Since the 1st defendant/appellant acquired the interest of Jebs Ltd. and Jebs Ltd. acquired the unexpired term of the lease of 25 years granted to Adnan EI-Fayad, the 1st appellant is not a yearly tenant as alleged. The learned trial judge was therefore justified when in concluding his judgment he held:
I hold that by the combined effect of this decision, the provisions of section 149 of the Evidence Act as it relates to the Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order 1979, the defendants have obtained a valid and good title to the premises in dispute and so the 2nd and 3rd defendants are entitled to the unexpired period of the leasehold interest bought in 1979 and therefore entitled to remain in possession of the said premises and to be registered or 3rd defendant only to be registered as the proprietor of the unexpired period of the said premises.
For the above reasons, I agree that the appeal be allowed and the judgment of the High Court be restored.
I accordingly allow the appeal and I hereby set aside the decision of the H Court of Appeal and restore the decision of the High Court dismissing the claim with costs. Judgement delivered by Nnamani
I had a preview of the judgment just delivered by my learned brother, Belgore, J.S.C., and I agree with him that the appeal ought to be allowed.
For this short concurring judgment I rely on the facts of this case as stated in the lead judgment. I intend to comment on the fundamental issue of jurisdiction which was raised in the lower court. The jurisdiction impugned was that of the High Court of Lagos State to entertain this Suit. The question of jurisdiction arose from two forfeiture orders made by the Federal Military Government which forfeited the leasehold interest held by Jebs Ltd., the matter in contest in this Suit. The two orders were made pursuant to powers vested in the Supreme Military Council under the Investigation of Assets (Public Officers and other Persons) Decree No.37 of 1968. Under the first order, Public officers (Forfeiture of Assets) Order L.N. 33 of 1978 which was made on 2nd June, 1978 but had retrospective effect to 4th July 1977, Jebs Ltd. was forfeited. By the Public Officers (Forfeiture of Assets) Miscellaneous Provisions) Order No. L.N. 17 of 1979 the earlier forfeiture order was made more specifically applicable to the "unexpired term of the leasehold in respect of the Ground Floor of 132 Broad Street, Lagos."
This is the property in issue in this suit for JEBS Ltd. (owned by J.H. Bassey a former Deputy Commissioner of Police) was alleged to have got the unexpired 18 years of Mr. Fayad's lease from the appellants' predecessor in title, the late Sode. It was this property that the first respondent sold to 2nd and 3rd respondents.
It was contended that by the combined effect of Section 12 of Decree No.37 of 1968 and the Public Officers (Special Provisions) Decree No.10 of 1976 Section 6(3), the jurisdiction of the court was totally ousted. Jinadu, J., in the High Court held pursuant to L.N. No.17 of 1979 among other things that the unexpired 18 years held by JEBS LTD. passed to the 1st appellant which only passed same to 2nd and 3rd appellants.
In the Court of Appeal, Nnaemeka-Agu, J.C.A. (as he then was), fully adverted to the issue of jurisdiction and held as follows:-
From what I have said, it appears to me that the High Court as well as this court has jurisdiction to inquire whether or not its jurisdiction has been ousted. A necessary corollary of this proposition is that the court can look at the ouster provisions and the orders in question to see whether the orders were intended to vest any other person's property other than the property of Jebs Ltd. and J.H. Bassey on the 1st respondent. From what I have said, there was no leasehold interest for eighteen years vested in the 1st respondent or sold to the 2nd and 3rd respondents.
The learned justice of the Court of Appeal had delved into the Land Instruments Registration Law to discuss the validity of the lease between Fayad and Sode and of course the validity of the assignment of the unexpired 18 years of the lease to Jebs Ltd. Having held that he had jurisdiction to inquire into these matters, he had held, as stated above, in effect, that there to forfeit at the time L.N. 17 of 1979 was made and so nothing passed to 1st appellant herein.
Section 12 of Decree No.37 of 1968 provides as follows:-
The validity of any directions, notice or order given or made or of any other thing whatsoever done as the case may be under this Decree or under any enactment or other law repealed by this Decree, or the circumstances under which such direction, notice or order has been given or other thing whatsoever done, shall not be inquired into in any Court of Law, and accordingly nothing in provisions of Chapter III of the Constitution of the Federation shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree?
Section 6(3) of Decree No.10 1976 is in these terms:-
No civil proceedings shall lie in any court for or on account of or in respect of any act, matter or thing done or purported to be done by any person under this decree and if any such proceeding has been or is instituted before or after the commencement of the Decree, the shall abate be discharged and made void.
It would seem to me that these two provisions totally oust the jurisdiction of the courts to inquire into the nature of those forfeiture orders. The terms of the ouster clauses are such that it cannot be open to the court as Nnaemeka-Agu, J.C.A. (as he then was) did to inquire as to whether there was anything to forfeit i.e. whether there was assignment of the 18 years residue or not.
The attitude of this court to ouster clauses is now fairly settled in many decisions of this court. See Mustapha v. Governor of Lagos State & Ors. (1987) 2 N.W.L.R. 539; Uwaifo v. A.G. Bendel State (1982) 7 S.C. 124 and lately A.G. Lagos State v. Justice L. J. Dosunmu (1989) 3 N.W.L.R. (Pt. 111) 552
I am not unmindful of the fact that this Suit was filed in 1983. However, it is settled that the relevant law is the law at the time the cause of action arose. See Garba v. University of Maiduguri and Uwaifo (Supra).
Finally I am also aware of the fact that the Decree No.37 of 1968 was repealed by Decree No. 105 of 1979 which took effect on 28th September 1979, I am however of the view that the situation is full saved by Section 6(1)(b) of the Interpretation Act, 1964.
For these reasons, and the more detailed reasons, I allow the appeal and endorse all the orders made by Belgore, J.S.C.
Judgement delivered by Uwais
I have had the opportunity of reading in draft the judgment read by my learned brother, Belgore, J.S.C., and I agree that this appeal has merit and that it should be allowed.
The facts of the case may be stated as follows. The respondents, as plaintiffs, sought an action in the High Court of Lagos State, claiming the following reliefs
(a) possession of the Ground Floor business premises with appurtenances situate at 132 Broad Street, Lagos from 2nd and 3rd Defendants (now 2nd and 3rd appellants)
(b)
(c)
Now the
property at the ground floor of No. 132. Broad Street, Lagos belonged to one
Chief S.O.O. Sode (now deceased). By a deed of lease dated 15th day of June.
1971 (Exhibit C) the deceased leased the property to one Adnan Fayad, an alien
who was subsequently deported from Nigeria on the 25th day of October, 1971.
Exhibit C granted to Mr. Adnan Fayad a leasehold term of 25 years with effect
from the 1st day of August, 1971. The agreed rent was £3,000. (
T. Ade Oyagbola & Co. Barristers & Solicitors of The Supreme Court of Nigeria & Notaries Public
Office: 30 Ikorodu Road, Yaba, Phone 47553, Postal: P.O. Box 70, Mushin Lagos State, Nigeria. 19th June, 1972.
Olugbenga Adenowo, Esq. Barrister & Solicitor, 47, Ojo Giwa Street, Lagos.
Dear Sir,
Notice of Intention to Assign Lease of No. 132, Yakubu Gowon Street Lagos.
With reference to your letter dated 13th June. 1972 our clients Messrs Jebs Limited are arranging to pay the arrears of telephone bill. Mr. Adnan Ahmad Fayad, in accordance with Clause 3(iii) of the Lease Agreement, has assigned the Premises to Messrs Jebs Limited.
As indicated at paragraph 2 of your letter, we are expecting your letter as early as possible.
Yours faithfully. (Sgd.) T.A. Oyagbola & Co. Solicitors.
Consequently, Jebs Limited, took possession of the property in dispute and started to use it as a restaurant. Jebs Limited, was owned by one Mr. J.H. Bassey who was a Deputy Commissioner of Police. An Investigation Panel was set-up by the then Federal Military Government. As a result of the report submitted by the Investigation Panel, an order called the Public Officers (Forfeiture of Assets) Order, 1978 (LN.33 of 1978) was issued by the Federal Military Government. In the order the property of Mr. J.H. Bassey, including Jebs Limited, were forfeited to the Federal Military Government. The 1978 Order was amended by the Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order 1979 (L.N. 17 of 1979). Later the property in dispute was, at the instance of the 1st appellant, advertised for sale by auction, and it was subsequently purchased by the 2nd appellant, who later transferred his interest in the property in dispute to the 3rd appellant. Hence the suit in the High Court by the respondents against the appellants.
At the hearing, the learned trial Judge, (Jinadu, J.) held as follows
By the provisions of the Public Officers (Forfeiture of Assets) Miscellaneous Provisions) Order 1979, among the properties forfeited to the then Federal Military Government were Jebs Limited and 'the unexpired term of the leasehold in respect of the Ground Floor of 132, Broad Street, Lagos granted to Jebs Limited." By Exhibit 'D' to which references had been made above, the Plaintiffs were aware of the assignment of the unexpired term of the lease of 132, Broad Street by Fayad to Jebs Limited, there was no evidence of refusal by the Plaintiffs to the assignment and so I hold that Jebs obtained possession of these said property to the knowledge and tacit consent of the Plaintiffs: it was this assignment that was forfeited to the Federal Military Government;Plaintiffs did not contest the possession by the Federal Military Government. I therefore hold that the Federal Military Government was lawfully in possession of the premises in dispute.
What the Federal Military Government possessed according to the Public Officers (Forfeiture of Assets) Order 1979, was the unexpired period of the terms in Exhibit 'B' and this it purported to pass on to 2nd and 3rd Defendants.
and concluded his judgment thus
I hold that by the combined effect of this decision, (Balogun v. Sabiu, (1963)1 All N.L.R. 129) the provisions of section 149 of the Evidence Act as it relates to the Public Officers (Forfeiture of Assets) (Miscellaneous Provisions) Order 1979, the Defendants have obtained a valid and good title to the premises in dispute and so the 2nd and 3rd Defendants are entitled to the unexpired period of the leasehold interest bought in 1979 and therefore entitled to remain in possession of the said premises and to be registered or 3rd defendant only to be registered as the proprietor of the unexpired period of the said premises.
The Plaintiffs having failed to establish their claims, the action is hereby dismissed.
The respondents appealed to the Court of Appeal against the decision of the learned trial Judge and raised five issues for determination; the most important of which, for the purpose of this judgment, was: whether the jurisdiction of the High Court to inquire into the Orders made in 1978 and 1979 was ousted by virtue of the provisions of The Investigation of Assets (Public Officers and Other Persons) Act, 1968 (No.39 of 1968) and Public Officers (Special Provisions) Act, 1976 (No.10 of 1976). In dealing with the issue, the Court of Appeal (per Nnaemeka-Agu, J.C.A., as he then was) observed as follows
I should however note that even though by statute a court's jurisdiction may appear to have been ousted, that court has jurisdiction to decide whether or not it has jurisdiction to deal with the matter: see Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria, (1976) 6 S.C. 175 at p.189; also Wilkinson v. Barking Corporation, (1948)1 K.B. 721, at p.725, C.A. It seems to me to follow also from this that the Court has jurisdiction to construe the ouster provisions to find out its legislative intention - that it intends to oust - and the extent of the ouster. It is on the above principles that I proceed to consider the submissions on ouster of jurisdiction of the Courts in this case.
After considering the provisions of section 12 of the Investigation of Assets (Public Officers and Other Persons) Act, 1968 (No.37 of 1968) and section 6 subsections (3) and (4) of the Public Officers (Special Provisions) Act, 1976 (No.10 of 1976), learned Justice of Court of Appeal went on to observe as follows -
The power to acquire the property in dispute was ex facie exercised under the latter Decree (Act). The former Decree (Act) ceased to have any effect upon coming into effect of the 1979 Constitution, subject of course to section 6 (6) (d) of the said Constitution which again excludes courts from determination of any issue as to the competence of any authority or person to make any law or proceedings in relation to any existing law made between the l5thofjanuary, 1966 and 1st of October, 1979. But the latter became an existing law under section 274 of the said Constitution. See F.S. Uwaifo v. Attorney-General of Bendel State & Ors. (1982) 7 S.C. 124 at p.213.
and after examining the pleadings and the evidence adduced before the trial Judge, learned Justice of Court of Appeal held
.. But I must say that the pleadings in paragraphs 13 and 14 of the said statement of claim are sufficient to show that Jebs Limited went into possession of the premises in dispute. In that state of the facts, it appears to me that when the Federal Military Government made the Orders No.33 of 1978 and No.17 of 1979 with respect to the 'unexpired term of the leasehold in respect of the Ground Floor of 132 Broad Street, Lagos' the Orders could not vest in the 1st respondent legal leasehold interest for 18 years which was never shown to belong to Jebs Limited. As the clear intention of the Orders was to forfeit the leasehold interest of Mr. J.H. Bassey, per Jebs Limited and not that of Chief Sode, those Orders would not have the effect of passing the title in the property in dispute for 18 years to the 1st respondent. In keeping with the maxim: nemo dat quod non habet, the 1st respondent A had no leasehold term of 18 years to sell to the 2nd and 3rd respondents.
.From what I have just said, it appears to me that the High Court as well as this Court has jurisdiction to inquire whether or not its jurisdiction has been ousted. A necessary corollary of this B proposition is that the Court can look at the ouster provisions and the Orders in question to see whether the Orders were intended to vest any other person's property other than the property of Jebs Limited and J.H. Bassey on the 1st respondent. From what I have said, there was no leasehold interest for eighteen years vested in the 1st respondent or sold to the 2nd and 3rd respondents.
The above opinions were based on the assumption that Exhibit C, the lease to Mr. Fayad was valid, (Italics mine).
The Court of Appeal then considered inter alia the failure to register exhibit C under the provisions of section 14 of the Land Registration Act, Cap. 99 of Laws of the Federation of Nigeria, 1958 and the Registration of Titles Act, Cap. 181 of the same Laws of the Federation of Nigeria 1958. It came to the conclusion that exhibit C was void by virtue of the provisions of Section 14 of the Land Registration Act. Cap. 99.
The appellants were not satisfied with the decision of the Court of Appeal. They therefore appealed to this Court. Separate Notices of Appeal were filed by the 1st appellant on one hand and the 2nd and 3rd appellants jointly on the other. However both the 1st appellant and the 2nd and 3rd appellants formulated identical issues for determination in their respective briefs of argument. The issues, as per the brief of 1st appellant, read
(1) Whether Exhibit C is void for non-compliance with the provisions of S.14 of the Land Registration Act, Cap. 99, 1958 Laws of the Federation of Nigeria or the non-compliance with the provisions of the Registration of Titles Act, Cap., 181, 1958 Laws of F the Federation.
(2) What was the nature of the interest of Messrs Jebs Limited in the property in dispute which was forfeited to the Federal Military Government by virtue of the Public Officers (Forfeiture of Assets) Order, 1978 Legal Notice 33, as amended by Public Officers (Miscellaneous Provisions) Order, 1979. Legal Notice No.17 of 1979
(3) Whether the Court has jurisdiction to set aside the forfeiture of assets Order in view of the ouster of Court's jurisdiction provisions and the abatement provisions in Decree and Orders.
(4) Whether at best 2nd and 3rd defendants/appellants are only yearly tenants whose tenancy has been effectively determined by the respondent.
The respondents did not include |