Critiquing the Provisions of the Lagos Anti-Land Grabbing Law – Prince Ikechukwu Nwafuru

Critiquing the Provisions of the Lagos Anti-Land Grabbing Law – Prince Ikechukwu Nwafuru


Proem
This article aims to
critique  the Lagos State Properties Protection Law, 2016 (“Anti-Land
Grabbing Law
” or “the Law”) for the purpose of  appraising the
likely efficacy of the legislation in tackling the menace of land grabbing and
identifying any potential shortfalls  that might hamper the effective implementation
of the Law and the actualization of the goals set for the Law.


Before going into the meat
of the piece, it is pertinent to state the importance of investor-friendly
business environment which has been identified as a sine qua non for
economic growth and development in any country. Therefore, it behooves every
government to improve its business operating environment and ease of doing
business in order to attract both local and foreign investors. The strategic
position occupied by the State of Lagos[1], Nigeria’s largest business and commercial city,
accounts for its choice as a relevant study location for business practices,
processes and regulations such as urban planning laws, land registry laws,
environmental laws, state laws, and local government taxes in the World Bank
Ease of Doing Business Survey which incidentally makes use as part of its key
indicators, acquisition and registering of properties. Unfortunately Nigeria as
a country has continued to be relegated to the bottom of the table in the World
Bank’s Ease of Doing Business Report[2] due to factors which include those discussed in
this work.

In a bid to address the
challenges affecting the business operating environment, particularly those
relating to the acquisition and ownership of landed properties, the Lagos State
Governor, Akinwunmi Ambode prior to the 2015 Governorship Election, made it one
of his campaign promises, the creation of more investor-friendly business
environment by improving the ease of doing business in the State. One of the
ways he proposed to actualize this was by flushing out land-grabbers and
outlawing their nefarious activities in the State. That promise, which could
have passed as “election campaign rhetoric”, was however, recently fulfilled
with the signing into law on 15 August 2016 of the Anti-Land Grabbing Law by
the Governor.
The menace of land
grabbing itself has always been with us as a country but the problem seems to
be more pronounced in Lagos as a result of its afore-noted strategic economic
position and the crucial need for land in the aquatic State. Land has often being
jocularly referred to as the “oil” of Lagos. Notwithstanding, the perennial
problem of land grabbing, the political will to legislate against it only
manifested with the enactment of the Anti-Land Grabbing Law of 2016. To be fair
to the previous administrations in Lagos, the Anti-Land Grabbing Law, contrary
to the widely held belief, is not the first legislative attempt to deal with
the issue of land grabbing. The Criminal Law of Lagos State, 2011 has
several provisions that are geared towards addressing some of the challenges
faced in land transactions and ownership such as forcible entry to land,
fraudulent alteration of title documents at the Land Registry[3] and other nefarious activities by land grabbers[4]. The 2016 Law, however, may well be described as the
most specific and most decisive so far.

Provisions of LPPL
The Anti-Land Grabbing Law
is by all means a short legislation. Therefore, a section by section
consideration of the provisions will be done in this work, in no particular
order, in order to aid proper understanding of the Law. In terms of structure,
the Law contains 15 sections with some of the sections having sub-sections
except sections 1, 5, 6, 7, 12, 13, 14 and 15. The language of the Law is
simple devoid of the antiquated diction often seen in most of our legislations
particularly those inherited from our colonial past. The dictional deviation is
commendable and reflects the modern approach to legislative drafting.

Definition/Interpretation
Section
Section 1 of the Law is
the interpretation section and has six defined terms, viz: “agent”,
access”, “construction activities”, “encroachment” “landed
property
” and “State”. For reasons that will be shown later, three
of these definitions will be considered in this work and they are reproduced as
follows:

Agent” is defined
to mean “a person who acts or purports to act on behalf of any party to a real
property transaction, whether in respect of a sale, lease, license, mortgage or
other dealings or disposal of, or relating to the property including any person
engaged for the purpose of forceful takeover of a landed property”

Encroachment”
means entry into another’s property without right or permission; trespass,
violation, intrusion and usurpation:”

Landed property
on the other hand means “a property, a parcel of land, an improvement on land,
a building, any land ancillary to a building, a site comprising of any
building(s) with any land ancillary to it”

One common trend with the
definitions is the use of the word “means” which suggests an intention to
restrict the meaning of the defined terms as against the word “include” which
when employed in interpretation section suggests a wider meaning. For instance,
the definition of “constructive activities” in the Law preceded with the word
“include” and this could also explain the draftsman’s intention to enlarge the
meaning of “constructive activities”.

As can be gleaned from the
afore-referenced definition of “agent”, it extends to a person engaged
for the purpose of forceful takeover of a landed property. The question is, can
an “agent” charged with any offence under the Law invoke as a defence,
the principle of agent of a disclosed principal? It is submitted that such
defence will not avail the agent as this principle only applies in civil cases.
Similarly, the concept of vicarious liability has no place in our criminal
jurisprudence, as the offender whether he acted as an agent or otherwise will
be personally liable for the crime committed either alone or together with the
principal depending on what the proof of evidence discloses. However, where the
facts and available evidence disclose the offence of conspiracy or aiding and abetting,
the conspirators whether acting as the agent or principal will be jointly
liable. The likelihood of charging together the offender and the principal is
very high given the definition of “agent” which as noted above extends to “any
person engaged for the purpose of forceful takeover of a landed property
”.
It is therefore very unlikely that the agent will be charged alone in such
scenario discussed above.

Another point worth
mentioning under this sub-head is the inconsistency in the use of the terms “land”,
“property” and “landed property” which refer to the same thing i.e. interest in
land. As one would observe, they are used interchangeably in the Law. One would
have expected consistency in the use of those terms to avoid confusion.
Nonetheless, the definition of landed property is wide enough to guide the
Court and in any case, land in law, includes anything affixed to land and
improvements thereon.[5]
Substantive Provisions
Sections 2, 3, 4, 5, 6, 7,
8, 9, 10 and 11 of the law create various offences. Some of the
offence-creating sections however, do not provide for punishments for the
respective offences created therein and the effect of this legislative lapse
will be considered later in this work.

Forceful Take-over
of Landed Property
Section 2(1) prohibits the
use of force or self-help to take over any landed property or to engage in any
act inconsistent with the proprietary right of the owner. The use of the
disjunctive “or” means that the offence under subsection 1 of section 2 can be
committed in two alternative ways, viz: (1) “use of force or
self-help to take over any landed property” or (2) “use of force or self-help
to engage in any act inconsistent with the proprietary right of the owner”. The
Law does not define “self-help” or “force” and recourse will be made to an
external aid in construing these words. It is safe to assume that self-help
includes using any measure not prescribed or permitted by the law to take over
any landed property, often referred to in local parlance as taking the law into
one’s own hand.

A property owner can be
found criminally liable under the first limb of the subsection if he employs
force or self-help to eject a trespasser on his property. As can be deduced
from the letters of the Law, a property owner is required to follow due process
in ejecting a trespasser or enforcing his right in any property and it is not a
defence to the offence under section 2(1) of the Law that the property belongs
to the offender. It remains to be seen whether the defence of bona fide claim
of right under section 23 of the Criminal Law of Lagos will avail a property
owner caught by this subsection.

Section 2(2) gives a
three-month window period to any person or persons who use force to take over
any landed property before the commencement of the Law, to vacate the property.
Failure to vacate the property and remaining in possession of the said property
three months after the commencement of the law will expose the defaulter to an
offence under the sub-section. By calculation, three months after the
commencement date of 15 August 2016 (i.e. the day the Governor gave his assent)
would have lapsed on or about 14 November 2016.[6] It has been argued that the provision of section
2(2) appears to convey a retroactive effect given that the actus reus of
the offence, which is the “use of force to take over a landed property”
predates the Law.[7] However, this impression can be doused since the
law does not seek to punish the offender for what has been done in the past but
makes the continuous infraction of “remaining or being in unlawful possession
of another’s property”, the sole physical element of the offence. It was
further argued that the way to make the provision of section 2(2) clearer is to
delete the seemingly retroactive aspect from the text of the subsection and
make the act of “remaining or being in unlawful possession of another property”
the sole element of the offence.[8]
I cannot agree more with
the above view except to add that even in the absence of such suggested
amendment, the provision as it is, is still capable of curbing the mischief
which it sets out to cure. It will be preposterous for an offender who has been
in unlawful possession of another’s property after the expiration of the three
months grace period to be heard arguing that he entered into possession prior
to the commencement of the Law. Thus, aside the civil remedy available to the
property owner which can be defeated by laches and acquiescence if not enforced
within a reasonable time, a liberal interpretation of this provision will
clearly reveal the legislative intention which is to forestall an act of being
in unlawful possession of another’s property. The emphasis, as noted by Okanga[9], should be on “remaining in possession” which by its
nature and in my view is a positive act. Viewed differently, remaining in
possession in such circumstance could also amount to encroachment and the
offender can be charged under section 4 of the Law for being an encroacher
provided there is a prior demand for him to leave the property and it is of no
moment that he entered into possession prior to the commencement of the
Anti-Land Grabbing Law.

What is not clear under
section 2(2) is whether a property owner who uses force to retake possession of
his own property and so remains in possession three months thereafter can be
criminally liable. One would have expected the draftsman to include in section
2(2), a similar provision as found in section 3(2) of the Law to the effect
that a person’s right to possession or occupation of a property shall not
constitute lawful authority for the use of force to retake any property. In my
view, a property owner can be found criminally liable under section 2(2) as
there is nothing in the Law to suggest otherwise. The mischief that is sought
to be prevented under section 2 generally is the use of force to take over any
property, whether by the owner, or owner’s agent or by a trespasser. It is not
therefore a defence that the offender has a right to possession or occupation
of the property as the Law expects such owner to follow due process of law in
recovering or retaking possession.

An offender under the
provisions of section 2(1) and (2) is, on conviction, liable to ten (10) years
imprisonment.

Threat or Use of
Violence to secure Entry into Landed Property
Section 3(1) of the Law
criminalizes the use or threat of violence for the purpose of securing entry
into any landed property either for oneself or for another, without lawful
authority. As already noted earlier in this work, a person’s right to possession
or occupation of any property shall not constitute lawful authority or a
defence for the purpose of this section. As can be seen from subsection 3
thereof, the offence is committed whether or not the violence is directed
against the person or against the property provided the violence is intended to
secure entry for the purpose of acquiring possession of the property or for any
other purpose. Section 3(4) creates two categories of punishments – thus, while
section 3(4)(a) provides for ten (10) years imprisonment for an offence of
forceful entry, section 3(4)(b) provides for four (4) years imprisonment for
any person who (i) makes forceful entry with fire arms, offensive weapons, or
any obnoxious or chemical materials (ii) is in company of any person so armed
or (iii) wounds or uses violence on any person. It follows that the cumulative
punishment for an offence under section 3(1) is 14 years depending on whether
such offender makes use of fire arms, offensive weapons, or chemicals as
provided under the sub-section.

It has been argued that
the provisions of the Anti-Land Grabbing Law is not applicable to tenancy
relationship[10], perhaps (though not so expressly stated), in view of
the provisions of section 44 of Tenancy Law of Lagos State, 2011 which
prohibits forceful ejection and re-possession and further provides for a
punishment of a fine not exceeding Two Hundred and Fifty Thousand Naira
(N250,000:00) or a maximum of six (6) months imprisonment for an offender.

My view on this is
different as there is nothing in the Anti-Land Grabbing Law that precludes its
application to landlord/tenant relationship. A landlord or a lessor who
threatens or uses violence or force or self-help to eject a tenant or lessee
from his property can be held criminally liable under section 3 of the Law. Of
course, the facts of each case will determine whether to charge under the
Anti-Land Grabbing Law or under the Tenancy Law. To further drive home the
point, the afore-quoted definition of “agent” under section 1 of the Anti-Land
Grabbing Law is wide enough to include the agent of a landlord. In fact, the
words “lease” and “license” were both mentioned in that definition and tenancy
includes lease. Similarly, section 47 of the Tenancy Law defines “tenancy” as
“holding of interest in land or property by a tenant under a tenancy agreement”
and goes further to define tenancy agreement as “an agreement whether written
or oral, express or implied between a landlord and a tenant regarding possession
of premises and use of common areas and includes leases and
sub-leases
.”

Therefore, it can be
argued that the provisions of the Anti-Land Grabbing Law on use of force,
self-help or violence to retake possession complement the Tenancy Law provision
and the prosecutor will readily resort to the former given the more severe
punishment provided therein as against the 6 months imprisonment or paltry fine
of 250,000,000 provided in the latter.

Illegal occupation
of Landed Property (Encroachment)
Section 4 criminalizes any
encroachment on peoples’ properties and provides for fine not exceeding N5
million or 5 year imprisonment or both, against any such encroachment. A
condition precedent for the activation of the offence is a demand by the owner
or his agent that the encroacher leaves the property and it is only when the
encroacher fails to leave after such demand that an offence is committed.
Okanga in his afore-referenced article has queried the absence of timeline
within which the encroacher shall vacate the property after being asked to
leave and opined that there exists a vacuum in this regard. In my view, the
demand period should be reasonable depending on the circumstances of each case.
For instance, if the property is developed, the timeline will be longer to
enable the encroacher remove his belongings from the property. Another lacuna
in the Law is the failure to provide for the form the demand will take – will
an oral demand suffice? It is safer to put the demand in writing as it will be
easier to prove a written demand coupled with the fact that such written demand
will ordinarily state the timeline within which the encroacher shall vacate the
property.

Section 4(2) seems to have
expanded the definition of “landed property” by providing that “a reference to
property includes reference to an access to the property, whether or not such
access itself constitutes property within the meaning of this Law”.
Incidentally, the Law only defines “landed property” and not “property”. In the
writer’s view, such extended definition is not necessary given that the right
of way is often appurtenant to proprietary right and the extent of such right
is a question of fact. The section also goes further to provide that any
person who enters into occupation of any property by virtue of any title
derived from an encroacher or license or right given by an encroacher shall
himself be treated as an encroacher.

Encroachment with
Weapon
Section 7 addresses
encroachment with firearms or dangerous/offensive weapons and provides for punishable
of ten (10) years imprisonment. What constitutes “firearms” or
“dangerous/offensive weapons” will be left to the court to decide, relying on
external aids, as the Law provides no guide.

Use of Agent for
Forceful Take-over of Landed Property
Section 5 complements the
provisions of section 3 on the use of force by prohibiting the placing of land
agent on any land or landed property for the purpose of forceful takeover of
the said land. On the surface, it will appear that no punishment is provided
for the offence created under section 5 of the Law. Were this to be the case,
it would mean that no person can be convicted for the said offence based on the
legal principle to the effect  that no person shall be convicted of a
criminal offence unless that offence is defined and the penalty is prescribed
in a written law. This principle which is in section 36(12) of the Constitution
of the Federal Republic of Nigeria, 1999 (as amended) was applied in the case
of Aoko v. Fabgemi (1961) 1 All NLR 400. However, a closer
look at Section 3(4)(a) will reveal that the punishment provided therein will
cover the offence created under section 5 of the Law. Section 3(4)(a) of the
Law provides that “any person who commits the offence of forceful entry under
the provisions of this Law” shall on conviction be liable to
ten (10) years imprisonment. What follows is that the offence of forceful
takeover by whatever means is punishable under section 3(4)(a) of the Law.
Similarly, where the offender is armed or is in company of a person who is
armed, section 3(4) (b) will apply as well. Thus, section 3(4) is a
one-size-fits all punishment provisions for the offence of forceful entry under
the Law.

Illegal Use of Law
Enforcement Agent/Vigilante Group to enforce Judgment
Another offence-creating
provision that is silent on punishment-provision is section 6 of the Law which
prohibits the illegal use of law enforcement agent, vigilante group, ethnic,
cultural/traditional militia to execute the Judgment of a Court under. The
reason for omitting the punishment provision by the lawmakers is not clear;
neither is it clear what consequence will flow if someone commits the offence
under the said provision. It is submitted that there is no legal consequence
for committing the offence under section 6 of the Law in view of the express
provision of section 36(12) of the Constitution. However, flowing from the
preceding analysis in respect of section 5 of the Law, and given that illegal
use of Law Enforcement Agent or Vigilante Group will sometimes (but not always)
entail the use of force, it can be argued that an offence under Section may be
punishable under section 3(4) of the Law provided that the illegal use of law
enforcement agent or vigilante group involves “force” in a bid to enforce the
Judgment and take over the landed property. Other than this arguable, limited
and possible application of section 3(4) to the offence created under section 6
of the Law, it is doubtful if any punishment will be imposed on any person
found liable for illegal use of law enforcement agent or vigilante group to
enforce Judgment.

Sale of Property
without Authority
Section 8 of the Law
provides three categories of offences in relation to sale of landed property.
First, under section 8(1)(a) of the Law, any person who “offers for sale” any
property knowing that he has no lawful title to the property or the authority
to offer for sale is criminally liable on conviction to a fine of N500,000.00
or six months imprisonment or both. All that is required to ground this offence
is to “offer for sale” and it is not a defense that the actual sale was not
consummated. Knowledge plays a very important role under this category as the
person selling or offering for sale must know that he has no lawful title at
the material time. It is submitted that where the seller establishes that he
has a bonafide claim or honest belief that the land belongs to him, such claim
or belief is capable of vitiating the requisite mens rea necessary
to ground conviction provided there is evidence to support such claim.

The second category of
offence is provided under section 8(1)(b) & (c) of the Law which is
targeted at the actual sale. Thus, a person who “sells” a property knowing that
he has no lawful title to the property or that the property has been previously
sold by him or his privies or without the lawful authority of the owner sells a
property entrusted to him is criminally liable on conviction to a fine not
exceeding 100% of the value of the property or to imprisonment for five years
or both and the property shall revert to the lawful owner. By providing that
“the property shall revert to the lawful owner”, the Law seems not to have
taken into consideration, a situation where it will be impossible to so do,
such as where an innocent purchaser without knowledge of the defect in title
has made substantial improvement on the property. Even in our civil
jurisprudence, a court will not order specific performance of a contract for
sale of land where a third party had acquired the subject matter of the contract.
Specific performance will, in such circumstances, be defeated by the concept of
impossibility of performance.[11] Thus, section 8(1)(b)(c) did not consider the
impossibility of reverting the property to the lawful owner in such
circumstance as noted above and to further demonstrate the injustice that will
arise from strict application of the subsection, no remedy is provided for the
innocent third party who may have invested heavily in improving such property.
The purchaser no doubt has his remedy in civil court against the seller who
sold to him without lawful authority.
The third category of
offence under section 8 which incidentally carries the heaviest punishment
under the Law is at section 8(2)& (3). Under these subsections, it is an
offence (i) to sell or cause to be sold, a family land or property without the
consent of the family head and other accredited family members (ii) to sell
Government land or property without the consent of the authority of the State,
(iii) to sell or offer for sale any land that has been previously sold without
a Court Judgment repudiating the initial sale. Any person or persons convicted
for any of the offences under this category shall be liable to twenty-one (21)
years imprisonment. Again, as noted by Okanga, the subsequent seller of the
property must be aware of the previous sale at the time he was attempting to
make the subsequent sale as it would be absurd for the law to sanction a vendor
who genuinely sells his own property. I agree with this view as it further supports
my earlier position that a bonafide claim of right can vitiate the requisite
mental element required to ground conviction under the section. Even though
knowledge of previous sale is not specifically mentioned in this category 3
offence, the severity of punishment is such that the prosecutor will be
required to prove beyond reasonable doubt that the seller knew or ought to know
that the land has been previously sold.

Professional
Misconduct
Section 9 targets
professionals such as lawyers and estate agents who engage in professional
misconducts in respect of land transactions. The professional misconducts
prohibited under section 9(1) and (2) of the Law are: (1) facilitating
contractual agreement between land owning family and any other party in contravention
of the Law or any other law; and (2) execution of Court Judgment without
following due process as provided in the Sheriff and Civil Processes Act or any
other law. Going by the provision of section 9(3), contravention of the
provisions of section 9(1) by a professional
constitutes an offence of aiding and abetting the commission of such offence.
This is a laudable provision as it will curtail professional malfeasances often
seen in land transactions. Clearly, the offence created under section 9(1) is
aiding and abetting. Thus, a professional who facilitates contractual agreement
between parties knowing that such contract will contravene any provision of the
Law or any other Law is liable to face the punishment provided for that
offence. Illustration will aid a better understanding if this provision. If Mr
A who is a lawyer facilitate or prepares an Agreement for a sale of land by Mr
B to Mr C, and such sale is contrary to say section 8 of the Anti-Land Grabbing
Law, Mr A commits the offence of aiding and abetting the offence created under
section 8 thereof and will be liable for the punishment provided under the said
section 8 of the Law. The above illustration is not exhaustive of possible
scenario where a professional can be found criminally liable for aiding and
abetting under the Law or any other law. However, there is a lacuna in section
9(3) in view of the fact that the offence of aiding and abetting is only
restricted to facilitating contractual agreement under section 9(1) without
more. It does not extend to the offence of executing Judgment without following
due process under section 9(2) of the Law. Thus, it remains to be seen what
offence, a professional will be charged with if he is suspected of aiding and
abetting illegal use of law enforcement agent or vigilante group to enforce
Court Judgment under section 6, as there is no specific punishment for the
offence created under the said section 6 as already noted above. It is
suggested that the Law be amended to address these obvious shortfalls.

Section 9(4) of the Law
provides that any professional found guilty “under the provisions of the Law”
shall be reported to the relevant professional body for misconduct and
necessary action. A holistic consideration of the provisions of section 9 will
reveal that the only offence created under the said section is the offence of
“aiding and abetting”.

False and Frivolous
Petitions
In other to minimize
incidents of false and frivolous petitions, section 10 specifically prohibits
writing of frivolous and unwarranted petitions to any Law Enforcement Agency
knowing the content to be false. The Section further makes it a statutory
requirement for a petitioner to accompany with his petition a sworn declaration
in form of Affidavit. Surprisingly, no punishment is provided for the offence
of writing false and frivolous petition under the section. However, the only
consolation in the midst of this legislative lapse is that such a petition
writer will be exposed to perjury[12] since the petition as a matter of law must be
accompanied by a sworn affidavit. Thus, the fear of perjury alone is enough
deterrent to false and frivolous petitions.

Illegal Demand for
Fees
Another laudable provision
in the Law is section 11 which addresses the recurrent issue of illegal demand
for fees and all sorts of levies by the “Omonile”. It prohibits any person from
demanding either personally or through an agent any fee or levy in respect of
construction activities on any property or from disrupting construction work.
There is however, a proviso in section 11 to the effect that the section shall
not prohibit land owning families under the authorization of family head to
demand customary fee for possession from buyers or ratification fees pursuant to
Court Judgment. What qualifies as customary fee for possession or ratification
fees is left to conjecture as no clue or definition of these vague terms are
provided under the Law. It is submitted that a lot of illegal demands and
extortions can still be made under the guise of “customary fee for possession”
as all that is required is to have the support of family head to legitimize
such extortion. The only good news is that a person who has paid such customary
fee to the family head cannot be subjected to subsequent demands or extortions
by the Omonile as often seen in most parts of the State
especially where a construction work is about to be commenced. It is advisable
that the person making the payment insists on having a receipt to serve as a
proof of such payment in the event of subsequent demand by any other group
under whatever guise.

An offender under section
11 is liable to a fine not exceeding N1 million or two years imprisonment or
both.

Other provisions
The Law establishes a Task
Force under section 12 without specifically providing for its duties except the
general power to enforce the Law. It is also not clear whether the Task Force
can sue or be sued. It is submitted that even in the absence of such express
provision, the Task Force can be sued for any act done under the Law in view of
its power under section 13 to arrest offenders. The power of arrest under the
Law can also be exercised by any other Law Enforcement Agency or Unit in the
State.

Section 14 provides that
Special Offences Court or any other Court shall have jurisdiction to try
offenders under this Law. Lastly, section 15 is the citation and commencement
section.

Conclusion
In the preceding
paragraphs, I have critically considered the provisions of the Law and the
target menace of land grabbing, which manifests in many forms such as forceful
takeover and possession of landed properties, encroachment, illegal sale and
resale of land, illegal use of Law Enforcement Agents and Vigilante Groups to
enforce Judgments, misconducts by professionals in land transactions, writing
of frivolous and false petitions, unlawful demands by Omonile,
touting, amongst other ills which have become the nightmare of stakeholders
involved in land transactions. Like in most legislations, few lacunae have also
been identified, particularly the failure to provide punishments for some of
the offences created in the Law, which failure, as earlier noted, has the
effect of hampering the effective implementation of the Law, particularly the
affected provisions. Notwithstanding the few identified lapses, the Law is
nonetheless laudable and will go a long way in curbing land grabbing in the
State. I have also made reference to some provisions of the Criminal Law of
Lagos State, 2011 which I believe will complement the provisions of the
Anti-Land Grabbing Law, in checkmating the incidents of land grabbing in the
State. To achieve this and more, there is a need for the necessary will power
and mechanism to ensure proper implementation and enforcement of the law as the
objectives of the Law can only be achieved when its provisions are implemented
to the letter and without fear or favour. It is hoped that this think piece
will guide the lawmakers in possible future amendment as well as provide the
needed insight for other States that might want to enact a similar legislation.
[1] Lagos is reportedly the 5th largest economy in
Africa.
[2] For more on the Ease of doing business, see this
writer on “Suspension of FRCN Codes of Corporate Governance: Lessons Learnt”,https://www.linkedin.com/pulse/suspension-frcn-codes-corporate-governance-lessons-learnt-nwafuru –
published 12 December 2016,  the article discussed in some details,
Nigeria’s current position in World Bank Ease of Doing Business Report..
[3] See for instance, sections 52 and 53 of the
Criminal Law of Lagos State, 2011 which respectively provide for the offences
of forcible entry into land in actual and peaceable possession of another and
illegal possession of land without a claim of right in a manner likely to cause
a breach of the peace. The offences under sections 52 and 53 are punishable
with 2 years imprisonment. Similarly, section 56 of the Criminal Law also
prohibits threat to break or damage a residential house and offenders risk one
year imprisonment or 3 years imprisonment if the offence is committed in the
night. See also the offences of concealment of register of title and deed of
assignment evidencing title to land at sections 286 and 288 of the Criminal Law
of Lagos 2011 respectively.
[4] Section 324 of the Criminal Law of Lagos,
2011 which specifically targets the activities of Land speculators and
professional misconduct of real estate lawyers provides as follows “Any
person who, being a seller or mortgagor of any property or being the solicitor
of agent of any such seller or mortgagor, with intent to induce the purchaser
or mortgagee to accept the title offered or produced to him, and with intent to
defraud – (1) conceals from the purchaser or mortgagee any instrument to the
title, or any encumbrance; or (2) falsifies any false pedigree on which the
title depends or may depend; or (3) makes any false statement as to the title
offered or conceals any fact material to it, is guilty of a felony and is
liable to imprisonment for seven years.”
[5] The principle is quic quid plantatur solo
solo cedit
 – meaning whatever is affixed to the land becomes in
contemplation of law as part of it. What this implies is that once a party is
adjudged to be the rightful owner of the land in dispute, such land together
with what is on it automatically becomes his.
[6] In Akeredolu v. Akinremi (1985) 2 NWLR
(Pt.10) 787
, the Supreme Court held that computation of months or years
is done in days.
[7] See Okanga Okanga “Understanding the Lagos State
Properties Protection Law, 2016”https://www.linkedin.com/pulse/understanding-lagos-state-properties-protection-law-2016-okanga –
accessed on 07 January 2017.
[8]Ibid
[9] Ibid
[10] Ibid
[11]Oshafunmi & Anor v. Adepoju & Anor(2014)
LPELR-23073(CA)
[12] Perjury carries the punishment of 7 years
imprisonment under the Criminal Law of Lagos, 2011. Writing of frivolous
petition may also give rise to any of the offences under sections 94 – 96 of
the Criminal Law, 2011 which relate to making false accusation and false
statements.

Prince Ikechukwu Nwafuru
Associate at Paul Usoro & Co

Ed’s Note – This article was fist published here


Photo Credit – www.akinwunmiambode.com 
Possession Vs Ownership – Prince O Williams -Joel

Possession Vs Ownership – Prince O Williams -Joel



The word possession in
land law often coincides with ownership. Although the two words are often
confused and majority of people take these words to mean the same thing but
possession is not the same as ownership. Possession means having physical
custody or control of a property with an intention to continuously retain the
property, while ownership is the exclusive legal right to possesses something. 

With the help of an illustration, I will further explain the difference between
ownership and possession. For instance, where there is a land purchased and
owned by Mr. Adamu, squatters on such land other than Mr. Adamu are possessors.
Mr. Eze using Mr. Adamu’s land for farming is in possession of Mr. Adamu’s land
while Mr. Adamu remains the owner of the land.
Another illustration is in
the case of a landlord and tenant. A tenant has possession of a landlord’s
house and not ownership. The landlord owns ownership of the land. However, a
wrongful possessor could be protected by law even against the true owner of the
property. For instance, the law will protect a tenant that was forcefully
ejected from his house by the landlord even when the tenant is in arrears of
his rent.
A person can either
possess a land lawfully or unlawfully.
INSTANCES OF LAWFUL
POSSESSION:
  • The relationship between a landlord
    and a tenant; after all necessary agreement has been met by the tenant to
    the landlord, the tenant is said to lawfully possess the house.
  • A person that has the consent of the
    owner to stay on the property is said to lawfully possess the land.
  • A person that has occupied a land for
    years without disturbance and claim to the land is said to lawfully
    possess the land and such person can sue any trespasser on the land even
    if the land is not legally owned by such possessor.
INSTANCES OF UNLAWFUL
POSSESSION:
  • A tenant that has not met with the
    terms and conditions of the tenancy agreement and is in arrears of his
    rent, is in unlawful possession of the property.
  • A trespasser on a property is said to
    own an unlawful possession of the land or property.
  • A person that has occupied a land
    without the consent of the owner is said to have unlawful possession of a
    land.
It is, however, important
to note that ownership gives right to possession while possession does not give
right to ownership. Now you know there is a difference between ownership and
possession.
Ed’s Note – This article
was originally posted here.

Redefining The Concept Of Damages For Use And Occupation Of Land And Mesne Profits – Tanimola Anjorin


Redefining The
Concept Of Damages For Use And Occupation Of Land And Mesne Profits[1]
          For starters,
it should be noted that the concept of damages for use and occupation of land is
a remedy available to the Landowner/Landlord in the event that a contractual
tenancy ceases to exist and the tenant/occupier thereafter enjoys statutory
protection under the Law[2].
By all standards, the requirement to pay compensation for use and occupation of
land is only applicable to a tenant[3]

          According to
the Lagos State Tenancy Law 2011, a tenant includes a sub-tenant or any person
occupying any premises whether by payment of rent howsoever or by operation of
law and not persons unlawfully occupying any premises under a bona fide claim
to be the owner[4].
Undoubtedly, in a valid claim for damages for use and occupation, a tenancy
which may be contractual or statutory[5]
must exist. 
          Where a
tenancy is created by operation of law, the tenant does not become a trespasser
until the tenancy has become duly determined according to law[6].  This position was emphasized by the apex
court in African Petroleum v Owodunni[7]
as follows:
“Because a claim for ‘Mesne profits’ is based on trespass
and is inappropriate in respect of lawful occupation as a tenant, it can only
be maintained when the tenancy has been duly determined and the tenant becomes
a trespasser…where a tenancy is created by operation of law, the status of
trespasser will not arise, until the tenancy is duly determined according to
law… however, the lawful use and occupation of the land and premises implies an
agreement to pay damages for use and occupation of the land and premises. It is
a quasi-tenancy which the law recognises…”
          This
presupposes that when a person holds over having the status of a statutory
tenant, he is not liable to pay mesne profits since he is not a trespasser but
would be liable to pay compensation for use and occupation. This position
appears to have received statutory backing. The Kaduna and Rivers landlord and
tenant laws provide that, where in the absence of an express subsisting tenancy
one person uses or occupies property of another person by his permission or
sufferance, there shall be implied a promise by the user or occupier to make a
reasonable payment for such use or occupation[8].
It goes further to provide that where an implied promise to pay for use and
occupation of property arises under this edict, it shall be enforceable by
action to be known as action for use and occupation[9].
          For a claimant
to be entitled to compensation for use and occupation, there must have been
some tenancy, express or implied, between the claimant and the defendant during
the period in respect whereof the compensation is claimed and it is not enough
that the claimant was really entitled to the property. For example, where the
defendant occupied the property as tenant of another person from whom he
obtained the possession (aside from the landlord/landowner), or as a mere wrong
doer or willful trespasser, no action can be maintained. In the latter part of
this paper, judicial authorities shall be reviewed to ascertain whether there
is a distinction between these two concepts.
          While the
concept of damages for use and occupation is well appreciated under common law
and a couple of judicial authorities have tried to make a distinction, the laws
on recovery of premises of most States seek to merge these two separate heads
of claim without making any distinction[10]
     DISTINCTION BETWEEN DAMAGES FOR USE AND
OCCUPATION OF LAND AND MESNE PROFITS
          Rent
is different from damages for use and occupation of land and mesne profits. Rent
is liquidated and ceases once the tenancy is determined while damages for use
and occupation commence immediately after determination of the tenancy and runs
until the court orders the tenant to vacate the property. Upon the obtention of
a valid court order, mesne profit begins to runs against the occupant who is
now adjudged a trespasser in the eye of the law.
          The
basic similarity between these two heads of claim is that they both seek to
compensate the Landowner/ Landlord either as damages for use and occupation
under a quasi-contract in the case of a statutory tenant or as mesne profits
under the law of tort in the case of a trespasser.
Idigbe JSC
defined the term ‘statutory tenant’ in Pan
Asian African Co. Ltd. v. National Insurance Corporation
[11]
as:
“an occupier, who when his
contractual tenancy expires, holds over and continues in possession by virtue
of special statutory provision”.
          On the other hand, a trespasser
according to the Merriam-Webster online dictionary is defined as:
“one who enters or remains on the real property of another
wrongfully or without the owner’s or possessor’s authority or consent”.
          Stemming from
the above, a statutory tenant is a lawful occupant while a trespasser is
undoubtedly an unlawful occupant. Therefore, by all standards in our law, damages
for use and occupation is different from mesne profits.
          Whether a
tenant holds over at common law or as a statutory tenant under the relevant
statute, the contractual obligation of payment of rent hitherto binding on the
tenant becomes extinguished upon the expiration of the contractual term.
However, the law, general or statutory, compensates the landlord for the loss
of use and/or occupation and in appropriate cases where the tort of trespass is
established, for ‘mesne profits’. The two heads of claim differ from the
contractual rent in two material particulars. First, while damages for use and
occupation is usually liquidated at the agreed rent[12]
and certain, the quantum of mesne profit payable to the landlord in the event
of adversely holding over by the tenant is unliquidated and may not necessarily
follow from the amount initially fixed as rent. Secondly, while damages for use
and occupation is operative during the subsistence of the statutory tenancy,
mesne profit starts to run only after the expiration of the statutory tenancy
and the tenant holds over.
LAGOS STATE AND RIVERS STATE LAWS AS
A CASE STUDY
          The
Lagos State Tenancy law 2011, has a different view as to how and when mesne
profits can be claimed. First we shall look at Section 47 Lagos State Tenancy
Law which defines mesne profit as follows:
“Mesne profit means the rents and
profits which a tenant holds over during his occupation of the premises and
which he is liable to pay as compensation to the person entitled to
possession”.
          Section 31 of the Lagos State Tenancy
Law also provides:
“Where mesne profits or a sum for
the use and occupation of the premises are claimed
, the claim shall show
the rate at which such is claimed, and where it is proved, judgment shall be
entered for the amount so proved”.
          The
Lagos State Tenancy Law 2011 does not make a clear distinction between the
period mesne profits and damages for use and occupation of premises may be
claimed. By virtue of the use of “or” in Section 31, the law recognises that
there is a distinction between these two concepts but it does not fully
appreciate or elucidate on any of these distinctions.
          From
the above underlined it means that mesne profit can only be claimed where it is
proven and judgment is to be given for the amount proven. The operative words
here are prove and judgment. What can therefore be deduced
from Section 31 of the Tenancy Law 2011, is that for the Landlord to claim
mesne profits same must have first been proven and judgment granted to the
landlord. There needs to be a revision of the Lagos State Tenancy Law 2011 to
make a clear distinction between these two heads of claim. The Law needs to
expressly provide for what is to be proven i.e. how damages for use and
occupation is to be measured, how mesne profits is to be calculated, the
prevailing rent in that locality for similar premises, the need to provide
expert evidence to confirm the prevailing rent amongst others.
          Asides
from the Lagos State Tenancy Law,
Landlord
and Tenant Law Cap 75 Laws of Rivers State, 1999
does not have any specific legislation on mesne
profits but only provides for damages for use and occupation. Section 101 of
the Rivers Law[13] provides:
“(1) Subject to this Law or any other
written Law in force in the State and in the absence of an express subsisting
tenancy, where one person uses or occupies property of another by his
permission or sufferance, there shall be implied a promise by the user or
occupier to make a reasonable payment for such use or occupation.
Provided that no such promise shall
be implied where the circumstances clearly negative it.
(2) Nothing in this section shall
apply where a person uses or occupies a property without the knowledge of the
owner or a trespasser or otherwise against the will of the owner”.[14]
          The
effect of Section 101 and 102 of the Law is to the effect that a claim for
mesne profits is impliedly subsumed under the concept of damages for use and occupation.
          ANY PRACTICAL JUSTIFICATION FOR THE
DISTINCTION?
          In
appreciating the distinction, it must be noted that damages for use and
occupation is only applicable to a statutory tenant. The follow up question is:
Can mesne profit be claimed against a statutory tenant? Under common law and
judicial precedents, a statutory tenant cannot be liable to pay mesne profits.
Professor I. O Smith SAN in his work also submits that it is a misnomer to
claim mesne profits from a statutory tenant[15].
He opined that since a claim for mesne profits can only be maintained when the
tenancy has been duly determined and the tenant becomes a trespasser, the
concept of mesne profit is only applicable after the determination of the
statutory tenancy and an order to deliver vacate possession has been obtained.
Where the defendant remains in possession after the date mandated by the court
and execution does not follow immediately, liability of the tenant may then lie
in mesne profits for it is only on such rare occasion that his occupation can
be said to be wrongful and there after become a trespass.[16]  
          A
practical justification for a distinction between these two heads of claim is
founded on the fact that while damages for use and occupation is classified
under a quasi-contract between the landlord and the tenant being a tenant
protected by statute, a claim for mesne profits can only be founded under the
law of tort. Another practical justification for the distinction is that the
measurement of liability under these two heads of claim differs. The liability
of a statutory tenant is usually measured at the rate of the rent fixed under
the expired or terminated contractual tenancy while a tenant adversely holding
over at common law is a trespasser liable to pay mesne profits which is usually
unliquidated and need not be the equivalent of the amount of rent fixed under
the expired or terminated contractual tenancy but rent obtainable in similar
premises within the same locality. 
ATTITUDE OF THE NIGERIAN COURTS
          The
judicial authorities on the point are conflicting. This is due to the fact that
different judges have given their own independent judgements and opinion on the
subject matter of mesne profits. It is worrisome that in recent times, lawyers
and our courts (particularly the magistrates’ court) have failed to appreciate
the distinction between these two heads of claim which is why a claim for ‘mesne profit for use and occupation’ at
the agreed rent is usually prayed for and the same granted by some courts[17].
We shall however analyse some of these different views vis-à-vis the relevant
statutory provisions.
          The
earliest reported decision on in this regard appears to be Yekinni v. Etti[18], where De Lantang CJ observed:
 “A tenant who holds over under
the Rent Restriction Act is not a trespasser and does not become one until he
disobeys an order of the court ordering him to give up possession. Strictly
speaking therefore rent should be claimed up to the date of the order of
possession and mesne profits thereafter. In practice it is immaterial whether
the claim is labelled rent or mesne profits as there is usually no monetary
difference between rent and mesne profits”
.
          The
decision above appeared to have been based on the Rent Restriction Act which was
the applicable law at that time. However, Section 18(2) of the Rent
Control Law 1976 (Lagos) suggests that the two items of claim may be different.
It provides as follows:
“If mesne profits are claimed and the
writ or plaint shows that the rate at which such mesne profits are claimed
is the same as the standard rent of the premises, judgment shall be entered for
the ascertained amount as liquidated claim and if the mesne profits are claimed
at the rate of the said rent up to the time of obtaining possession the
judgment shall be extended to include such claim and shall be a second
alternative in Form J”
.
          Further,
the learned Chief Judge stated that mesne profits are recoverable, not from the
determination of the tenancy, but from the date the tenant is ordered to vacate
possession by a competent court. But the provisions of the rent control
statutes are to the contrary. For example, Section
13 of the Rent Control and Recovery of Premises Act, Abuja provides that the
amount claimed under any writ or plaint for arrears of rent and mesne profit
shall be treated as one claim[19]
          The
above law clearly states that mesne profits, may and can be claimed from the
determination of the tenancy or any day appointed for hearing, or any day named
in the plaint. In other words, it must not be from the date of judgement.
          In
Adebajo Vs Tennessee Nig Ltd[20] a tenant who was
granted a one-year term with expiry in January 1966 failed to surrender the key
until August 1966. The Supreme Court held that the landlord was entitled to
compensation for the tenant’s use and occupation of the premises from February
to August 1966. Elias CJN (as he then was) observed:
“where a tenant holds over after the
expiration of lease he is liable to the landlord an amount adjudged by the
court to be due for the use and occupation of the premises concerned’.
          In
Oshinfekun Vs Lana[21] a monthly tenant
held over after a valid determination of his tenancy. In an action to recover
possession, the landlord joined a claim for $108.65.8d as compensation for the
use and occupation of the premises during the period of 13 months he held over.
The landlord’s action was dismissed for claiming the wrong relief. This is
quite different from the decision handed down by Odesanya J in Dafe Vs Macaulay[22] where the
landlord claimed a sum as compensation for use and occupation instead of
arrears of rent. Although the learned Judge gave the landlord’s counsel a
swipe, he remarked;
‘The description of rent as money due
for use and occupation did not occasion and could not in any case have
occasioned any miscarriage of justice’
          Notwithstanding
the argument that the tediously technical aspect of real property law should
not be permitted to adversely affect a landowner in his just claim, the law
still remains that the court cannot grant a relief which has not been asked by
the Claimant[23].
          The Supreme Court in African Petroleum Ltd v. Owodunni[24]
while delivering the lead judgment succinctly explained the distinction thus:
“…In order to be
able to decide the second issue, it is necessary to consider the followings
namely:
(i) Would the
plaintiff be entitled to mesne profit or to damages for use and occupation of
the premises? Or are the two expressions interchangeable?
(ii)When could
the claim for mesne profit or for damages for use and occupation properly begin
to run?
(iii) What is
the right measure?
Now According to
Wharton’s Law Lexicon (14th Ed.) at p. 652: “Mesne profits” are
the rents and profits which a trespasser has or might have received or made
during his occupation of the premises, and which therefore he must pay over to
the true owner as compensation for the tort which he has committed. A claim for
rent is therefore liquidated, while a claim for mesne profit is always
unliquidated.
It follows
therefore that a claim for mesne profit is inappropriate when the occupier is
still a tenant. It can only be maintained when his tenancy has been duly
determined and he becomes a trespasser. In this respect, a statutory tenant
such as the defendant, though merely a protected tenant cannot properly be
adjudged to be liable for mesne profit unless and until his tenancy has been
duly determined according to law. On the other hand, where a tenant who entered
upon a premises lawfully occupies the land or premises of another without an agreement
with or consent by the true owner, what he has to pay is not rent, because as
there is no longer a demise, he no longer has an estate, he will not pay mesne
profit because he is not a trespasser. Rather, he will be liable for damages
for his use and occupation of the land or premises. The action arises out of an
implied agreement to pay out of what may be called a quasi – tenancy rather
than a relationship between a landlord and a tenant
(see Woodfall: On Landlord and Tenant (21st Ed.) p.666. See also Rochester (Dean and Chapter v. Pierce) (1808) 1 Camp 466.
So, the
defendant would be liable for damages for use and occupation. He could not be
liable for mesne profits because the element of wrongful and tortuous
occupation was absent. In the circumstances, for the Court of Appeal to have
made an award as “mesne profits for use and occupation” was an error.
But it did not lead to a miscarriage of justice”.
          The court also went
further to make a fine distinction between the commencement date for calculating
mesne profits and damages for use and occupation. The apex court held thus[25]:
Another area of
difference between mesne profits and damages for use and occupation is the date
of commencement. Mesne profits start to run from the date of service of the
process for determining the tenancy (see
 Canas Property Co. Ltd. v. K.L. Television Services Ltd. (1970) 2 Q.B. 433. But damages for use and occupation
start to run from the date of holding over the property, the function of the
court being to ascertain an amount which may constitute a reasonable
satisfaction for the use and occupation of the premises held over by the
tenant. The previous rent may sometimes be a guide, but may not be
conclusive.”.
 
          From the plethora of judicial
authorities cited above, there are clear distinctions between these two
concepts and pitiably, they are yet to be appreciated by subsequent
legislations and lower courts despite the established doctrine of stare decisis
[26]
RECOMMENDATIONS
          It is noteworthy that these two heads of
claim need to be redefined from the current statutory and judicial
interpretation which fail to actually create a laudable distinction. The laws
should be revised to actually make damages for use and occupation apply when
the tenant holds over at the expiration of the contractual and statutory
tenancy. The reason for this suggestion is that damages for use and occupation
should be calculated against a trespasser at a higher rate putting into
consideration the going rate in similar apartments and also to place a penalty
in the form of a high interest rate from the period of holding over till delivery
of judgment.
Alternatively,
parties to any agreement relating to land or property may insert provisions in
the agreement which will expressly state the consequences of holding over to
include the mode of computation of damages for use and occupation. This is a
more reliable and effective way to prevent tenants or occupiers from holding
over after the expiration of their tenancy and not having to pay adequate compensation
to the landlord/landowner after several years of litigation.
By: Tanimola
Anjorin


[1] Tanimola
Anjorin
holds a bachelor’s degree in History
and International Studies from Lagos State University. He thereafter obtained a
Bachelor of Laws degree from Lagos State University and was called to the
Nigerian Bar. He is also an Associate of the Chartered Institute of Arbitrators
(UK) Nigeria Branch.
[2] The applicable law is the Recovery of Premises Law of the various
states. For the purpose of this paper, I shall consider the laws of Lagos, Rivers
States and Abuja.
[3] The requirement for tenancy under the law is lawful occupation. See
Ibiyemi Odunje v Nigerian Airways Ltd
(1987) NWLR Pt. 55 P.126
[4] There are corresponding provisions in the interpretation sections
of the Recovery of Premises Law of other states.
[5] A tenancy is said to be contractual where the consent of the
landlord is granted and statutory where the tenancy is necessitated by
operation of law.
[6] See Omotosho v Oloriegbe
(1988) 4 NWLR Pt. 87; 225
[7] (1991) 8 NWLR Pt 210 P. 418 Para B
[8] . Section 101 (1) of Landlord and Tenant Law Cap 75 Laws
of Rivers State, 1988 and section105(1) of Recovery of Premises Law, Kaduna
State
[9] Section 105 of the Landlord and Tenant Law Cap 75 Laws of Rivers
State, 1999 and section 109 of the Kaduna State Law
[10] See section 101 and 102 of the Landlord and Tenant Law Cap 75 Laws
of Rivers State, 1999; Section 31 of the Lagos State Tenancy Law 2011
[11] (1982) 9 SC at p.13
[12] The Supreme Court per Ariwoola JSC in Ayinde v Lawal &Ors (1994) 7 NWLR Pt. 356 p. 263 held that: “
…It is the duty of the court to ascertain an amount which may constitute a reasonable
satisfaction for the use and occupation of the premises held over by the
tenant. It has been held that while previous rent may not be conclusive, it may
sometimes be a guide…”
[13] Landlord and Tenant Law Cap 75 Laws of Rivers State,
1999
[14] Section 102 of the Landlord and Tenant Law Cap 75
Laws of Rivers State, 1999 provides for who is liable for payment for use and
occupation
[15] Smith, I. O The
Status and Liability of a Tenant Holding Over Under the Rent Control &
Recovery of Premises Law in Nigeria
(1992)3 Nos (9-10)
[16] A trespasser is a person in wrongful occupation of land or premises
and does not acquire lawful occupation by his act of trespass.
[17] Anyanwu v Sangosanya:
Suit No. MCY/2491/15 (Unreported) where the claim was made for possession and mesne
profits at the agreed rent from the determination of the tenancy until
possession is given up.
[18] (1964)
ANLR 482, (1964) ALL NLR 69
[19] This is a faulty legislation which needs to be revised
so as to appreciate the clear distinction between these two separate claims.
See also
Section
20 of the then Rent Control Law of Lagos 1976 which contains similar
provisions.
[20] (1974) 1 ALLNLR 24
[21] (1958) WNLR 122
[22] (1975) CCHCJ 381
[23] Ativie v
Kabelmetal Nig Ltd
. (2008) 10 NWLR Pt. 1095 P. 309
[24] (1991) 8 NWLR
(Pt.210)391 per Nnemeka-Agu JSC
[25] African
Petroleum v Owodunni
(Supra)
[26] Stare decisis et non queta movere – stand by what has
been decided and not to disturb and unsettle things which are established. See Adesokan v Adetunji (1994) 5 NWLR Pt.
345; Okeke v Okoli (2000) 7 NWLR Pt.
642 p. 654 Para D-F