In The Supreme Court of Nigeria
On Friday, the 2nd day of March 1990
SC 120/1987
Before Their Lordships
Mohammed Bello-Justice, Supreme Court
Andrews Otutu Obaseki-Justice, Supreme Court
Augustine Nnamani-Justice, Supreme Court
Adolphus Godwin Karibi-Whyte-Justice, Supreme Court
Salihu Modibbo Alfa Belgore-Justice, Supreme Court
Abubakar Bashir Wali-Justice, Supreme Court
Between
Attorney-General of the Federation, Samuel Adedoyin,
Rachel Restaurant Ltd.-Appellants
And
C. O. Sode
B. A. Okunoren
K. Odujoko
(Executors of the Will of Chief S.O.O. Sode)-Respondents
Judgement of the Court
Delivered by Salihu Modibbo Alfa Belgore. J.S.C.
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) N6,000.00 arrears of rent for the period between 1st day of August, 1979 and 31st day of July 1980 from the 1st defendant to the plaintiffs.
(iii) N50,000.00 per annum against 2nd and 3rd defendants for use and occupation of the said premises with effect from 1st day of August 1980 until possession is given up.
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 N50,000.00.
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.
