➥ CASE SUMMARY OF:
Babatunji Olowofoyeku V. The Attorney-General of Oyo State & Ors. (SC.113/90, 20 December 1996)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Joint ownership;
Trespass;
Western Nigeria.
➥ CASE FACT/HISTORY
Chief Babatunji Olowofoyeku was, between January 1963, and January, 1966, the Attorney-General of former Western Region of Nigeria. After the 1966 Military Coup, the then Military Government of the former Western State of Nigeria set up Somolu Assets Tribunal and empowered it to probe the assets of some key public officers, who were alleged to have committed unlawful enrichment during the course of their public duties. In July, 1969, following the release of Somolu Report, certain properties of Chief Olowofoyeku, the appellant, in this appeal, were forfeited to the former Western State of Nigeria, by virtue of the Public Officers and (Other Persons Forfeiture of Assets) Order, 1969 – WSLN, 65 of 1969. The properties are: (a) A piece of land at Commercial Reservation, Ibadan (b) A house at No.9 Queen Elizabeth II Road, Ibadan (c) A piece of land at Ojo Road, near Apapa, off Badagry Road, Lagos State. (d) A house known as No. 101 Awolowo Road, S.W. Ikoyi, Lagos. The appellant soon after the release of Somolu’s report instituted an action in the Lagos High Court and challenged the forfeiture order, contesting that not a single property of those listed above or any other property had been illegally or corruptly acquired by him. The case was still pending in court when the Federal Military Government enacted into law the first ouster Decree with general application, to wit, the Federal Military Government (Supremacy and Enforcement of Powers) Act, No. 28 of 1970, which ousted the jurisdiction of courts from determination of any action Which challenges the legality of a Decree or an Edict and the powers exercised under them.
After the promulgation of the Ouster Decree, the Federal Attorney-General applied for the action filed by the appellant to be struck out, for want of jurisdiction. The suit was accordingly dismissed. The appellant appealed to the Supreme Court, and pending the determination of his appeal, his application for stay of execution of the judgment of the High Court was granted. He was thus permitted to remain in occupation of his properties but on condition that he paid rents of (N2,000.00) per annum, for the use and occupation of all the properties involved, including No. 101 Awolowo Road, South West Ikoyi, Lagos, which is the subject of the action. It was the decision of the High Court in respect of this house which brought about this appeal.
Meanwhile, whilst the appellant’s appeal before the Supreme Court was pending he wrote to both the Federal and Western State Governments seeking for a review of the forfeiture order and release of his properties back to him. In a reply to his letters, the Western State Government headed by Governor Brigadier Jemibewon, wrote on 30th December, 1975, and explained that the appellant’s request for the release of his properties on compassionate grounds could only be given after he had produced satisfactory evidence showing that both the case he instituted and the appeal lodged in the Supreme Court have been discontinued. In February, 1976 the Old Western State was divided into three states, namely, Oyo, Ondo and Ogun States. Brigadier Jemibewon remained in Ibadan but as governor of the new Oyo State. In March, 1977, the appellant wrote to Governor Brigadier Jemibewon of Oyo State, and offered to re-purchase all his forfeited assets. By this time, the forfeited properties of the appellant had become vested jointly in the Military Governors of Oyo, Ogun arid Ondo States as successors in title to the Military Governor of Western-State, by virtue of States (Creation and Transitional Provisions) Act, 1977 (Act 17 of 1977) which was later amended by States (Creation and Transitional Provisions) (Amended) Act 1977 (Act 53 of 1977).
After the creation of Oyo, Ogun and Ondo States their respective Military Governors met and shared properties jointly owned by the three states. At the end of the meeting the property known as 101, Awolowo Road, Ikoyi, Lagos was shared to Ogun State. It is the contention of the respondents that at the time the Military Governor of Oyo State wrote to the appellant, on 16th March, 1977 accepting the offer to allow the appellant to re-purchase 101, Awolowo Road, Ikoyi, he had no capacity to do so. In view of the reasons given above, Oyo State Government wrote to the appellant to come and collect back the amount he paid in respect of the forfeited assets.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Upon the promulgation of States (Creation and Transitional Provisions) Act 12, 1976, in whom did the properties of the appellant forfeited by Western State Legal Notice 65 of 1969 vest?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE PROPERTY DID NOT VEST IN THE GOVERNOR OF OYO STATE AS THE APPELLANT ARGUES
‘From the above, it is clear that when the properties were forfeited they were vested in the Military Governor of Western State of Nigeria and he held the properties in trust for the Government of Western State. But when three states were created and the governor of Western Nigeria was re-appointed governor of Oyo State his responsibility, as the appellant very well knew, became limited to the geographical area of the new Oyo State. The States (Creation and Transitional Provisions) Act, 1977 (Act 17 of 1977), which was made to commence as from 3rd February 1976, provided that any immovable property of the former Western State which was situated in the area of that state should vest in the Military Governors of Oyo, Ogun and Ondo and such properties would be held for the benefit of the respective state. After the promulgation of Act 17 of 1977 it became clear that it did not cover other properties belonging to the former Western State which were outside the area of that state, particularly Lagos State. This I believe, was what brought about the enhancement of States (Creation and Transitional Provisions) (Amendment) Act, 1977 (Act 53 of 1977). This amendment provided for the vesting, of properties of the former Western States situate in the Old Colony Province of Lagos, jointly in the Military Governors of Oyo, Ogun and Ondo. There is no dispute over the location of No. 101 Awolowo Road, S.W. Ikoyi (Property D). The W.R.L.N. 139 of 1954 clearly showed that Ikoyi was not part of Old Colony Province of Lagos. The Court of Appeal accepted that Act 53 of 1977, did not cover Property D since that property was not part of the Old Colony Province of Lagos. The appellant’s argument on the issue concerning Property D is that the Governor of Oyo State, being former Governor of Western State, held that Property in trust by virtue of W.S.L.N. 65 of 1969. His trusteeship extended to 3rd February 1976 and that Act 12 of 1976 which created new states did nothing to derogate from that trust. The appellant argued further that Act 17 of 1977 extended the control of the Governor of Oyo State over property D. This is indeed a spurious argument. How Act 12 of 1976 and Act 17 of 1977 entrusted Property D in the Governor of Oyo State is a submission cloaked in a shroud of mystery. The appellant failed to cite any section of the law which gave the Governor of Oyo State that authority.’
THE PROPERTY VESTS IN THE SUCCESSORS OF THE WESTERN STATE JOINTLY
‘I believe that the issue over the forfeited properties of the appellant is well settled. When the properties were forfeited they were made to vest in Western State Government and when the three states were created they became successors jointly to all the assets of the former Western State. Those assets include Property D. I cannot see how, after the sharing of the assets and assigning Property D to Ogun State, Oyo State Governor would continue to hold the property in trust. It is a question to ask; in whose trust was the Governor of Oyo State holding the property? If the appellant says that a statute made the Governor of Western State a trustee to that property, that state no longer existed after Act 2 of 1976. And he cannot hold it in trust for Ogun and Ondo States when the two states have their governors who have been put in charge of assets they inherited from the former Western State. This argument is without any basis whatsoever.’
‘In view of the numerous exercises of States Creation in this country and the method adopted in sharing the assets it is now a notorious fact that the assets vest jointly in the states carved out from the former one. Committees are established by the Federal Government for the sharing of the assets and unless a contrary enactment is made by a competent authority all the assets vest jointly in the new states created.’]
.
.
↪️ II. After the creation of Oyo, Ogun and Ondo States, out of the former Western State by Act 12 of 1976, had the Governor of Oyo State power to enter into a contract with the appellant for the sale of any of the properties belonging to him which were forfeited to the former Government of Western State?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE GOVERNOR OF OYO STATE HAS NO POWER TO ENTER INTO AN AGREEMENT TO SELL OF THE JOINTLY OWNED PROPERTY
‘However, after the promulgation of Act 12 of 1976 the former Governor of Western State, Brigadier Jemibewon, had no power or capacity to deal with any of the properties vested in the three States without the concurrence of the Governors of Ogun and Ondo States. The combined reading of Acts 17 and 53 of 1977 establishes that after the creation of the three states any property vested in the former Western State can only be disposed off by a joint instrument executed by the Governors of the three states. One Governor had no valid power to enter into any agreement for the disposition of any property jointly owned by the three States. The learned Justice of the Court of Appeal is not wrong therefore to opine thus: “As at 7th March, 1977 when Exhibit “12” was written by the appellant, to Brigadier Jemibewon, the three states had been created out of the Western State. No law or instrument made the Military Governor of Oyo State the trustee of Property D; and there is no basis for one to imply from the circumstances of this case that he was a trustee or that he could validly act for his colleagues.” I do not see how the issue of agency could fit in, as the appellant has tried to do, in the case in hand. An agent is regarded as having “apparent” or “ostensible” authority where the doctrine of estoppel operates to give rise to the agency relationship, or to create some if not all of the effects of that relationship. The agent’s authority is the product of the principal’s conduct, his representation that the agent has been authorised to act on his behalf. It is an authority which “apparently” exists, having regard to the conduct of the parties. In a situation like the present case a reasonable person, which I have no doubt the appellant is, would be put upon enquiry as to the capacity of Governor Jemibewon to validly sell Property D to him without the concurrence of the Governors of Ogun and Ondo States. Governor Jemibewon had no ostensible authority to enter into such agreement.’]
.
.
↪️ III. Having entered into a unilateral contract with the appellant is the purported contract made between Governor Jemibewon of Oyo State and the appellant binding on the governments of Ondo and Ogun States?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[‘It is without doubt that the appellant assumed, at the time of his negotiations to re-purchase Property D that the Governor of Oyo State was acting on behalf of his colleagues in Ogun and Ondo States. It is pertinent, however to point out that the appellant being a lawyer of standing knew that if a property was vested in three persons it required the consent of all of them before an instrument of transfer could be validly executed. Acts 17 and 53 of 1977 had made such consent a statutory pre-requisite. It is for the appellant to prove that the other joint owners had given their consent to the purported sale of Property D to him. That he had failed to do.’]
.
.
.
✓ DECISION:
‘In the result, this appeal, being devoid of any merit, fails and it is dismissed. The judgment of the Court of Appeal is hereby affirmed. The respondents are entitled to the costs of this appeal which I assess at N1,000.00.’
➥ FURTHER DICTA:
⦿ CONCURRING OPINION NOT JUDGEMENT OF THE COURT
should be observed that Bello’s judgment was a contribution to the lead judgment, in that appeal, which was written by Oputa, J.S.C. Bello’s judgment was not therefore the decision of this Court in that appeal. — Mohammed JSC.
⦿ WHERE PROMISE TO BE MADE BY SEVERAL PERSONS JOINTLY AND ONE FAILS TO MAKE
It is trite Law that: “Where a promise is intended to be made by several persons jointly, if any of those persons fail to enter into the agreement, or to execute the instrument of the agreement, there is no contract, and no liability is incurred by such of them as have entered into the agreement.” See Halsburys Laws of England, 4th Edition Volume 9 at page 135, para 257. See also section 2(a) of Act 17 of 1977 and Section 1(b) of Act 53 of 1977.” — Mohammed JSC.
⦿ TRESPASS IS ACTIONABLE BY THE PERSON IN POSSESSION OF LAND
This is where he obtained an equitable interest, being at the time in possession of the disputed property. It is however clear that before the appellant went to court and filed a claim for damages for trespass, he was no more in possession of Property D having leased the property to Total Nigeria Limited. It is trite law that trespass is actionable at the suit of the person in possession of land. Possession means the occupation and physical control of land. Thus a tenant in occupation can sue, but not a landlord. Plaintiff who was not in possession of the land in dispute at the time he filed his claim cannot succeed in an action for trespass – see Ekwere and ors. v. Iyiegbu and ors. (1972) 6 S.C. 116; (1972) NSCC 438 at 444 and Okon Nyong Ekpenyong v. Effiong Nta Eyibio (1965) NSCC 288. — Mohammed JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Mohammed, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
J.Y. Akinwande (Miss).
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ TRESPASS TO LAND IS ACTIONABLE BY A PERSON WHO IS IN EXCLUSIVE POSSESSION WHETHER HE US THE OWNER OR NOT
In the case of Pius Amakor v. Benedict Obiefuna (1974) 1 All NLR 119 at 114, this Court held: “It is trite law that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers except a person who could establish a better title”.
➥ REFERENCED (OTHERS)
