Legality of Self-help by Lessor to Repossess Property from Tenant-at-Sufferance
TFacts he Appellants, as the administratrix and administrator of the Estate of Late Anthony Onyegbuman Chiadi, instituted an action against the Respondents at the High Court of Rivers State. They sought inter alia, declaration of title in respect of the property known as No 188, Victoria Street, Port Harcourt, Rivers State. In the alternative, they claimed the sum of N263,800.00 (Two hundred and sixty three thousand, eight hundred Naira) being the value of the said building. Their statement of claim was later amended and the value of the building was revised to N850,000.00 (Eight hundred and fifty thousand Naira).
It was the case of the Appellants, that before the Nigerian Civil War, Late Anthony Onyegbuman Chiadi (“deceased”), who was their predecessor in title, was granted a lease of the property in dispute by the Rivers State Government. The deceased developed the land by building a storey building on it; however, he had to relocate from Port Harcourt to Lagos after the war started. During the war, the property was treated as abandoned property by the Rivers State Government, and managed by the Rivers State Abandoned Property Authority. After cessation of hostilities, the
deceased applied for a renewal of the lease but the approval was not granted. However, the property which had erstwhile been declared as an abandoned property was released to him by virtue of a Rivers State Government Notice, which was published in the official gazette, and an instrument of transfer was executed by the Chairman of the Abandoned Property Authority in favour of the deceased. The Appellants stated that thereafter, the Appellants’ Attorney went into occupation of the property and paid the necessary property and water rates until sometime in 1983, when the 1st Respondent entered the premises in dispute and interfered with the Appellants’ possession, claiming that she had bought the property from the Rivers State Government.
The 1st Respondent, on the other hand, stated that the property in dispute is a State land, and that the lease of the land to the Appellants expired on 31st December, 1971 and was never renewed. She stated that in 1983, the Rivers State Government sold the property to her through a sale agreement executed between her and the Government.
After a consideration of the case, the trial Court dismissed the Appellants’ claim further to which they appealed to the Court of Appeal which dismissed the appeal. Aggrieved, the Appellants lodged a further appeal at the Supreme Court.
Issue for Determination The Appellants formulated 10 grounds of appeal and one issue for determination, out of which they formulated seven sub-issues. The Respondents all filed Notices of Preliminary Objection. The 2nd and 3rd Respondents, challenged the competence of all grounds of appeal, while the 1st Respondent challenged the competence of grounds 1,2, 3, 4 and 7, and asked the Court to strike them out along with the issues formulated therefrom. The Respondents also distilled issues for determination respectively. The issue for determination as considered by the court: Whether having regard to the state of pleadings in this case and evidence led in proof, the Court of Appeal was right in affirming the judgement of the trial court, which disregarded the decision of the Supreme Court in UDE v NWARA (1993) 2 NWLR (Pt. 278) 638 and dismissed the claims of the Appellant.
Arguments Counsel for the Appellants contended that the decision of the Court of Appeal affirming that of the trial Court was unconstitutional, null and void, and in breach of the combined provisions of Sections 36 and 44 of the Constitution of the Federal Republic of Nigeria, 1999. He argued that the two lower Courts, having raised suo motu, Sections 10 and 28(1) of the State Lands Law Cap 122, Laws of the Eastern Nigeria (applicable to Rivers State) and considered the case of UDE v NWARA for adjudication, had no choice than to bow to same in favour of the Appellants under the well known principle of stare decisis.
Counsel for the 1st Respondent submitted that, the concurrent findings of fact by the Courts below should be sustained, as they were arrived at after a proper evaluation of the evidence by the trial Court. The 2nd Respondent submitted that, the instant case is different from that of UDE v NWARA, and that there is no basis for the allegation of miscarriage of justice alluded to by the Appellant. The 3rd Respondent argued that, by Section 10 of the State Lands Law, if a person whose lease of State land for a period of less than 30 years has expired, fails to remove his building on the land within three months, it shall be forfeited to the State. He submitted that, the Appellants failed to discharge the burden of proof laid upon them. In the Supreme Court of Nigeria Holden at Abuja On Friday, the 30th Day of June, 2017
Before Their Lordships
Ibrahim Tanko Muhammad Mary Ukaego Peter-Odili (Dissented) Olukayode Ariwoola Kumai Bayang Aka’ahs Paul Adamu Galinje
SC.89/2007 Court’s Judgement and Rationale The Supreme Court upheld the preliminary objection of the Respondents, to the effect that grounds of appeal were vague and the issue formulated thereon, was illogical and thereby, incompetent.
In its judgement, the Apex Court relied on its decision in UDE v NWARA, particularly the submission of Nnaemeka Agu JSC, in which His Lordship held that, a Lessee whose term of lease had expired, but who held over and remained in possession with or without the Landlord’s assent or dissent, becomes a tenant-at- sufferance, having come upon the land lawfully in the first place. The Court further held that, a tenancy-at-sufferance does not arise by grant, but by operation of law.
The Court held that, the Appellants need not be in physical possession to be recognised in law as being in possession. The Appellants had during the trial, given evidence showing that they were in constructive possession of the property, and this possession was further fortified by the approved building plans exhibit C which Mr. Chiadi used to erect the uncompleted building. Although, the lease over the property was no longer subsisting since it was not renewed after the expiration of the term on 30th April, 1971, Mr. Chiadi - the Appellants’ predecessor in title - became a tenant-at-sufferance, and was liable for use and occupation of the land. He could rely upon his possession of the land against the whole world, until the Lessor recovered possession from him in the manner authorised by law.
Further,
the proviso to Section 10 of the State Lands Law gives the Lessee whose lease has expired, a statutory right to remain in possession and the only means by which the lessor can recover possession as provided under Section 28 of the Law, is to enter a suit at the High Court to recover possession. Therefore, the lessor cannot resort to a right of re-entry or any other type of self help.
The Court held that its decision in UDE v NWARA is binding on the trial Court and the Court of Appeal, and the only difference between the instant case and the case of UDE v NWARA is that in the latter case, after the Lessor had released the land to the Lessee after the expiration of the lease, the Lessee continued to pay rent which was accepted by the Lessor, and so the lease was deemed to be in existence.
On the Appellants’ main relief however, the Supreme Court refused to grant same, because as at the time the property was sold to the 1st Respondent, the Appellants were only in constructive possession of the property and not in physical occupation, since they failed to take advantage of the release to re-enter the property. The Court held that
as the Appellants never paid any rent after the expiration of the lease and since the 2nd Respondent did not apply to Court to repossess the property, the transaction entered into between the Government of Rivers State and the 1st Respondent would be made subject to the claim for compensation by the Appellants for the improvements their predecessor in title made on the property.
The Court concluded that, it would be inequitable to disturb the quiet enjoyment of the 1st Respondent who officially entered into the property as a bonafide purchaser for value in 1983, and granting the Appellants’ alternative relief was the appropriate option to consider in the circumstance.
On the Appellants’ alternative claim for damages, the Court held that where the trial Court fails to consider the question of the damages or award to be made, an Appellate Court has the power to proceed to assess the damages when it allows the appeal without necessarily referring the case to the trial Court for that exercise. However, this depends on the state of pleadings and the circumstances of each case at the trial Court, before the matter comes up on appeal. DUMBO v IDUGBOE (1983) 1 SCNLR 29. The Apex Court berated the trial Court for closing its eyes to the decision of the Supreme Court in UDE v NWARA where the Court held that the provision of Section 10 of the State Lands Law which the 2nd Respondent made heavy weather of, was inconsistent with the provision of Section 31 of the 1963 Constitution (now Section 44(1) of the 1999 Constitution) which prescribes payment of compensation by the Federal Government as a pre-requisite to the compulsory acquisition of property by the Government. The evidence of PW4 and the valuation report tendered at trial were not contradicted by the Respondents; hence, the Appellants were entitled to the sum of N850,000.00 claimed as compensation for the value of the building constructed by Mr. Chiadi on the land in dispute.
Appeal Allowed on a ratio of 4:1 with Peter-Odili, JSC dissenting.
Mr. Igwe and E. Ofor Esq. for the Appellants
C.A.J. Chinwo for the 1st Respondent. Mrs. P.K. Omereji, DCL Rivers State Ministry of Justice, for the 2nd Respondent. Reported by Optimum Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))