UKABAM, Titilayo
Department of Estate Management
Yaba College of Technology
An ideal property investment is one that has a high rental value, low outgoings and high capital growth.
The aim of this study is to evaluate how outgoings are determined by estate surveyors managing income producing residential and commercial properties in Lagos metropolis. A questionnaire was randomly administered to key practitioners in twenty-five (about 10 percent) of estate surveying firms in Lagos metropolis. Percentage and relative index were adopted in analyzing the data collected. It was found that repairs as outgoing have the highest effect on rental values of residential and commercial properties. While majority of the respondents treat outgoings as service charges in commercial properties some indicate the percentage of outgoings in rental value. However, a few of the surveyors use an arbitrary 10% flat rate deduction for outgoings and the remainder allows different percentages for each component of outgoings.
This shows that there is great variation in the way outgoings are treated by practitioners and points at the necessity of a standardized approach based on empirical qualification of outgoings to be used as part of a pro-active approach to property management. Further good record keeping is required to facilitate proper determination and adoption of appropriate rates. The will greatly enhance property management and valuation practice while also promoting better decision making in real estate development.
Keywords: Outgoing; Income; Properties.
Property management is usually underrated by practitioners in the property industry as a tedious and less rewarding activity compared with high profile valuations and lucrative activities of selling and leasing. However, the value-adding process of proactive property management can greatly enhance the value of premises (Wills and Dominy, 1998).
ANZ Home Loans Report (1997-2007) stated that an ideal property management is one that has a high rental return, low outgoings and high capital growth. The report also noted that property investors often overlook the effect outgoings can have on net return. In addition, it is noted that maintenance costs, vacancy rates, council rate payments, insurance premiums and body corporate fees are most easily overlooked. The property types and locations can also affect the size of the outgoings.
Three basic methods are most traditionally employed in valuation - replacement cost, market comparison and capitalization of income. The approach that depends most on estimations of outgoings and which is therefore of greatest relevance in this study is the income capitalization approach. Income capitalization rests on the economic principles of utility substitution. It is employed in estimating the value of income generating properties. The approach converts anticipated future benefits of real estate ownership into an estimate of present value by employing the discounting procedure. The underlying theory of the method is that every purchase of an interest is landed property is an investment and it makes use of the relationship between net incomes realizable from the property capital value. In the investment method, the major inputs in the determination of capital value are gross income, outgoings and yield. As a deductible variable, outgoings are of particular importance because an over estimation or underestimation can greatly affect the eventual estimate of capital value. While the other variables can be benchmarked using data from comparables, estimating outgoings in practice often follows a rule of thumb approach because of lack of real data.
The paper examines outgoings applicable to residential and commercial properties in Lagos metropolis and evaluates the way they are analyzed by estate managers. The study was restricted to Lagos metropolis because majority of
Nigeria’s management of properties practice and professional estate surveying firms are in Lagos.
OUTGOINGS - CONCEPTS, ESTIMATIONS AND
APPLICATIONS
Outgoings are annual expenses incurred by landlords or tenants to keep properties in a state to command market rent (Olusegun, 2008). Ifediora (1993) opined that outgoings may be fixed at ascertainable amounts or they may be wholly or partly variable in character and will require to be estimate. He also asserted that the quantum of outgoings in respect of any property is determined by

reference to the expenses of the property in question relative to those of other comparable properties. In analyzing outgoings, the statement on the expenses varies from year to year and that of one year cannot be accepted as typical. Records of previous year’s outgoings can be of great help to valuers but that should not be relied upon too much. Outgoings affect net income from a property and indirectly influence the capital value (Ifediora, 1993). The possibility of future variation in outgoings and consequently on the net income may affect the rate percent at which the net income is capitalized because the risk of such variations reflects upon the security of income. The non-recoverable outgoings are deducted from gross rental value to calculate the net rental value.
The Avenue of Real Estate Consultants-FAQ (2007) listed outgoings as management fees, repairs, rates, insurance and rent payable to a superior interest as appropriate to his contractual or other liabilities. In addition, Olusegun
(2008) included voids and sinking fund. The Journal of
Property Investment Research (2007) included taxes, utility charges for electricity and fuel; maintenance of lifts and general maintenance. The property report of Herron Todd
White Office (2007) considered outgoings to include in addition to the above mentioned and in buildings with multiple tenants; air conditioner contracts, audit fees, common area electricity, fire protection and fire services.
Others classified under miscellaneous costs include pest control, landscaping/plants and gardens, security, sundry costs, telephone, waste removal, body corporate fees and fund associated with strata titled premises. Ifediora (1993) grouped outgoings normal to ownership of real property and deductable from effective income into four though not exclusive groups as:

Fixed expenses (real estate taxes and building insurance)

Operating expenses and repairs

Reserves for replacements

Other charges (special obligations imposed on landlord by statute or legislation)
According to Claybourn (2007), in commercial properties, a net rent release differs from a gross rent lease in that in addition to the rent, the tenant pays the whole or a proportion of statutory or building outgoings
(or both), or increases in statutory or building outgoings
(or both) over a base period.
The challenge for the landlord and tenant is to comprehensively define outgoings in the lease.
Although this task is difficult except it is approached by specifying both the outgoings included and those excluded for better outcome to be achieved. Hence, an effective management of the tenant’s obligations assumes a comprehensive outgoing definition in the lease.
Statutory outgoings can be defined as municipal rates which are recurrent impositions and should be confined to land on which the leased premises are located. If taxes are included, they should be specified, confined to those which relate only to the leased premises, and defined to exclude future taxes and taxes which require a one-off capital payment. Outgoings should include fines and penalties for late payment and should be assessed as it the land is the only land owned by the landlord.
Building outgoings should be defined based on the following considerations:

Items to be included or excluded

Whether the outgoings are relevant to, and of benefit to the leased premises.

Whether any outgoings should be subject to a limit in each accounting period. For example, it might be possible to cap management fees and repairs and maintenance.
Claybourn (2007) is of the opinion that expenditure of a capital nature, contributions to a sinking fund, the cost of replacement, refurbishment or redecoration not reasonably attributable to fair wear and tear and the cost of effecting works of a structural nature should be excluded. Others are costs recoverable under a policy of insurance, interest charges, fines and penalties, charges on amounts owed by the landlord and amortization of capital costs.
In negotiating how best to structure the tenant’s liability for outgoings the tenant may be required to accept the landlord’s approach to outgoings in other leases within the building. The tenants’ liability may be structured so that they pay the whole or a proportion of outgoings or increases in outgoings over a base period. Matters which are relevant in structuring the liability of the tenant include:

When the tenant pays proportion of increases in outgoings over a base period, that proportion should equate to the proportion that the net lettable area of the leased premises bears to the net lettable area of the building.

When the net lettable area of the building changes, the landlord should provide a surveyor’s certificate which identifies the new net lettable area of the building and the date of effect of that change.
 When the tenant’s liability is based on increase in building outgoings over a base period the lease should assume that for the whole of the base period the building was completed, fully occupied and operational, the landlord received no benefit from guarantees or warranties and that all contracts for servicing and maintenance were in place and

operational. The base period and the frequency of updating that base period during the term of the lease need to be established or alternatively, the parties could agree that, to simplify the process, outgoings will be deemed to increase by a fixed percentage at the commencement of each accounting period under the lease.
When determining how tenants might discharge their liability for outgoings, and how that liability might discharge their liability for outgoings, and how that liability might be confined, property managers should:
* Consider if the tenant can pay annual or monthly installments in advance based on the landlord’s estimate, with an adjustment at the end of the outgoings period having regard to an audited statement, or in arrears based on an audited statement of outgoings for the accounting period.
* Not deem statements provided by the landlord in relation to outgoings as conclusive. The landlord should be able to dispute amounts and to require the landlord to provide relevant assessment, invoices and receipts for payment to permit the tenant to determine whether expenses have been properly incurred. In the event of parties being unable to agree, the dispute could be settled in accordance with the dispute resolution provisions of the lease or a dispute resolution which applies only to outgoings.
* Base all calculations on the assumption that the only land owned by the landlord is the land on which the leased premises are located.
* Consider whether it is preferable to update the base accounting period or provide for outgoings for the base accounting period to increase by a fixed percentage in each subsequent accounting period.
* Ensure that outgoings exclude amounts payable by other tenants or occupiers of the land or building.
* Consider whether outgoings should exclude payments by the landlord to perform certain obligations under the lease. {For example, if the landlord incurs expenditure should be excluded from the outgoings.}
* Ensure that if their outgoings liability is overpaid, the tenant has the right to offset the overpayment against future outgoings liabilities or rent.
* Include only those outgoings which benefit the tenant’s. For example, if the tenant occupies ground floor premises, it is reasonable that outgoings exclude the cost of servicing and maintaining the lifts. However, in most cases the ground floor tenants are not excluded.
The following issues need to be considered by a tenant in assuming liability under a net rent lease:

Landlords generally prefer net rent leases, however, that preference sometimes assumes that outgoings are defined by example rather than by comprehensive schedule of inclusions and exclusions.

Each party may incur significant management and administrative costs over the term of the lease in resolving whether expenditure is an outgoing or whether that expenditure incurred was necessary and the quantum is reasonable.

The tenant risks paying for costs included in the rent payable by third parties or for the landlord’s capital improvements in the event that outgoings are not properly defined.
The outgoings components in residential and commercial properties mentioned above can be summed up as maintenance costs, vacancy rates, council rate payments, insurance premium, body corporate fees, general rates, taxes (income, land and real estate) light, power and fuel, lifts maintenance, management fees, repairs, air conditioner contract, audit fees, common area cleaning and electricity, fire protection and fire services. Others are pest control, landscaping/plant and gardens, security, sundry costs, telephone, waste removal, fund associated with strata titled premises/rate payable to superior landlord, water rates, drainage rate, sewer rate and sinking fund. It must be noted that obligations of the landlord and tenant in the lease agreement and the comprehensive listing of the outgoings will determine the parties’ financial responsibilities. Although it was noted by
Small and Oluwoye, (1999) that rental and sales markets of real property are difficult to study empirically due to their heterogeneous nature.
Notwithstanding, the quantum of outgoings must be ascertained even if they are wholly or partly variable in character and will require to be estimated, in respect of any property for accuracy in property value estimate.
Ogunba and Ojo (2007) cited Ogunba (1997), Ajayi
(2003) and Ojo (2004), while asserting that the major inputs in the determination of freehold capital value are gross income, outgoings and yield. In addition, they asserted that the mode of determining the values of these variables by Nigerian estate valuers differs widely from firm to firm. Some valuers deduct a certain fixed percentage from the gross rent. Others rely on records of expenditure on subject or similar properties while others use a subjective assessment based on age and state of repairs.

Furthermore, some valuers treat the rent payable as net on the grounds that service charge payable would take care of all necessary outgoings.
METHODOLOGY DATA ANALYSIS AND
DISCUSSION OF RESULTS
The data analysis was based on the twenty questionnaires returned out of the twenty-five administered randomly to estate surveying firms in Lagos metropolis. Percentages and relative important index (RII) were adopted in analyzing the data. Relative Importance Indices rate factors against a scale to assess the significance of each factor.
RII = W/N
Where W = weighting given to each factor by the respondents and ranges from 0 to 5.
0 indicates ‘no effect’ and 5 means ‘greatest effect’ while N is the total number of respondents.
All the respondents agreed that outgoings have effects on the quantum and security of rental incomes of property.
The significant outgoings of residential properties are rent paid to a superior landlord, repairs, management fees and fire protection (see table I below). Water rates, waste removal, common area cleaning, electricity, landscaping/plant and gardens and security levy were not classified as outgoings even though the tenants paid for them.
1.
2.
Rent paid to superior Landlord
Water rate
3. Drainage rate
4.
5.
Sewer rate
Sinking fund
6. Audit fees
7.
8.
9.
Common area cleaning and electricity
Fire protection
Fire services
10.
11.
Lift and escalator maintenance
Landscaping/plant and gardens
12. Waste removal
13. Security levy
14.
15.
Repairs
Management fees
Source: Field Survey 2007
The outgoings listed for commercial property by the respondents are maintenance cost, insurance, withholding tax and management fee. Other components were treated as service charges. The outgoing that ranked the highest in commercial properties is repairs, followed by rent paid to superior landlord, fire protection insurance and management fees.
The above analysis revealed that from the point of view of the respondents, repairs have highest influence on the rental income of residential and commercial properties hence property managers should give attention to this component so that it
20
0
8
8
8
8
0
16
8
8
0
0
0
20
20
0
80
40
40
0
0
0
100
100
100
0
40
40
40
40 does not have adverse effect on the return on investment.
Responses in the questionnaire survey also indicated that the only method of managing return on investment (income generation) by the estate surveying firms is passing outgoings to the tenants as service charge.
Effects of outgoings on the gross rental value of residential property were examined in table II. The outgoing with the highest effect is repairs, followed by rent paid to superior landlords, fire protection, lift and escalator maintenance.

1.
2.
3.
4.
5.
6.
7.
8.
Rent paid to superior Landlord
Water rate
Drainage rate
Sewer rate
Sinking fund
Audit fees
Common area cleaning and electricity
Fire protection
Fire services
Lift and escalator maintenance
Landscaping/plant and gardens
9.
10.
11.
12.
13.
14.
15.
Waste removal
Security levy
Repairs
Management fees
In addition, 41.67% of the estate surveying firms did not make any allowance for outgoings in five of the commercial properties examined under their management. Of those that professed to be making an allowance, 33.33% listed the outgoings allowed but did not state the sum or percentage applied in the five commercial properties presented from their management portfolio. 25% of the firms indicated the percentage of the rental income that constitutes outgoings. Although, one third (33.3%) of the respondents adopted a flat rate of
10% for the outgoings for all the five commercial properties examined in their management portfolio, the next one third specified the percentage deducted for each outgoing in the five commercial properties examined in their own portfolio as insurance 2%, management fees
5%, withholding tax 10% and maintenance cost varies from 7.5% to 15%. The remaining one third deducted lump sum percentage outgoings which vary from 6% to
15% for the five commercial properties presented for analysis. The only method used in managing the income generated by the estate firms is passing outgoings to the tenants as service charges.
The data analyzed above reveals that there is no uniform method of assessing the quantum of outgoings by the estate firms in Lagos. This also confirms the findings of the previous study of Ajayi (2003), Ogunba and Ojo
(2007). Estate managers are yet to appreciate the importance of managing income generated from investment property. It also revealed that rule of thumb is mostly adopted rather than empirical quantum of the outgoings. The society is demanding high standards for
28
4
4
4
0
8
0
24
4
24
0
0
0
76
20
0.28
0.04
0.04
0.04
0
0.08
0
0.24
0.04
0.24
0
0
0
0.76
0.20 the services it receives and for which it pays. It is crucial, to avoid continuous embarrassment, that the profession of estate surveying and valuation in
Nigeria ensures that the members maintain high standards of professional practice particularly as pertains to management of multi tenanted properties.
CONCLUSIONS
The study has revealed the often overlooked components of outgoings and the importance of effective quantification of the components. The
Nigeria Institution of Estate Surveyors and Valuers must awake to her responsibilities by providing guidelines based on research just as is being done by similar international professional bodies. Training should be organized on the need for proper record keeping on outgoings. This will promote empirical quantification of outgoings and effective and proper monitoring of return on property investments.
11
6
11
3
2
7
7
7
7
3
11
11
11
1
5

REFERENCE:
Ajayi, C. A. (2003). The income approach to
valuation: the preference of the investor.
Paper delivered at a Continuing Professional
Development workshop organized by the Lagos
State Branch of the Nigerian Institution of
Estate Surveyors and Valuers, Lagos.
ANZ Homes Loans Report, (1997 – 2000). Why
invest residential properties, Retrieved on June
5, 2007, from www.ANZ
National Bank Ltd.
Avenues of Real Estate Consultants FAQ, (2007).
Retrieved on July 9, 2007 from www.gurgaorealestate.com
Claybourn R., (2007). Current leasing issues for
commonwealth property management.
Retrieved on July 9, 2007 from www.ags.au/publications/agspubs/commercialnotes
Heron Todd White Office Property Report, (2007).
Retrieved on July 9, 2007 from www.htwresearch.com.au
Ogunba, O. and Ojo O. (2007) Resolving reliability,
consistency and rationality problems of
professionally prepared valuations in Nigerian
practice The Estate Surveyor and Valuer Vol.
30, No. 1 Jan June
Olusegun Kuye (2008) Property valuation,
principles and practice in Nigeria Lagos:
Olusegun and Associates.
Ojo, O. (2004). Reliability, consistency and
rationality of professionally prepared
valuations: suggestion for resolving the
problems in Nigerian practice. Paper presented
at the CPD Training workshop organized by
the NIESV in Lagos, Kaduna and Enugu.
Small, G. Oluwoye, J. (1999). Rental market
experiment RICS Research Conference. The
Cutting Edge. P. 1-22.
Wills, P. and Dominy, C. (1998) Critical analysis of
outgoings in commercial property paper
presented at the Pacific Rim Real Estate
Conference of 1999. Retrieved on July 6,
2007.

OMUOJINE, Emma O. FNIVS, LLB, BL.
Senior Partner, Emma Omuojine and Co. Lagos
ABSTRACT
When is a special resolution of the Institution’s Trustees to amend the constitution unconstitutional, null, void and ultra vires? Following the controversy surrounding the conferment of the position of 16 th President of the Institution and the final decision of the Court, it has become necessary to clarify the details for the benefits of the professional body. The purpose of this paper is therefore not to denigrate any of the parties concerned but rather to ensure that the position of the parties and the reasoning behind the court’s final decision is well understood by all.
INTRODUCTION
Any resolution outside the provision for the amendment of the Constitution is ultra vires and unconstitutional, illegal, null and void. So held the learned Honourable
Justice Lambo Akanbi of the Federal High Court, Lagos in his judgement delivered on Monday 23 rd June, 2008.
The case for the Plaintiffs (S.P.O.F. Ebie, A.O. Shote,
Tade Ismail, Osita Okoli and Pat Igboko) is that the 1 st defendant a the Annual General Meeting held on 18 th
August, 2005 passed a Special Resolution conferring the
2 nd defendant with the status of the 16 th President of
Nigerian Institution of Estate Surveyors and Valuers, a resolution which was accordingly advertised in The
Guardian Newspaper of Monday 19 th September, 2005.
The plaintiffs averred that the said special resolution is contrary to and violates the provision on how National
Officers of the Institution are to emerge. The plaintiffs further submitted that the Constitution in force at the material time was the 4 th Revised Edition of 22 nd
September, 1990.
Prior to this, and at the 35 th Annual General Meeting, a new Constitution was adopted under which it became legitimate for a specified number of members to sponsor a motion of general interest and importance to the
Institution. Consequently a motion was sponsored on the conferment of the 16 th President. The 1 st defendant duly published the resolution in two national dailies and at the expiration of 28 days the 1 st defendants proceeded to register same at the Corporate Affairs Commission on 7 th
October, 2005. The plaintiffs’ objection letter opposing the registration of the Resolution was received five clear days of the date approval was given by the Corporate
Affairs Commission validating the process.
THE PLAINTIFF’S CASE
By an Originating Summon dated 27 th November, 2006, the plaintiffs put two questions forward for determination by the court, to wit:
1. Whether the Special Resolution by the 1 st defendant at her Annual General Meeting dated 18 th August,
2005 conferring the status of the 16 th President of the
Institution on the 2 nd defendant is valid having regard to the Constitution of the Nigerian Institution of
Estate Surveyors and Valuers in force.
2. Whether having regard to the provisions of the
Articles 14, 15 and 17 of the Constitution of the
Nigerian Institution of Estate Surveyors and Valuers which stipulates the officers and the procedure for electing them, the said Special Resolution passed by the 1 st defendants at the Annual General Meeting conferring on the 2 nd defendant the status of the 16 th
National President of the Institution is valid.
In his written address adopted in court the learned counsel for the plaintiffs distilled one question for determination, that is,
Whether the appointment contended that the 2 nd defendant as the 16 th President of the Institution was in compliance with the provision of the
Constitution.
The plaintiffs contended that the Constitution in force at the time of the conferment of the position of the 16 th
President of the Institution was the 4 th revised edition of
22 nd September, 1999 and submitted that the conferment contravenes the provision of Articles 14, 15 and 17 of the
Constitution which made it mandatory for the 1 st defendants to conduct elections to the elective offices of the Institution. It was further argued by the plaintiffs

that the 1 st defendant was in breach of Article 24(C) of the Constitution which clearly spelt out the procedure for convening an Annual General Meeting of the Institution.
The plaintiffs further submitted that the 1 st defendant acknowledged its own unconstitutionally when it purportedly waived the provisions of the Constitution.
Finally the plaintiffs averred that the acts of the defendants are ultra vires .
Also arguing in the alternative, without conceding, that should the Court hold that the Constitution in force is the one attached to the defendants’ counter affidavit, Articles
29 and 30 contained therein are in pari material with the provisions of Articles 14, 15 and 17 of the 4 th Edition.
On this score the plaintiffs submitted the act of the defendants is still ultra vires and urged the Court to judge in favour of the plaintiffs.
THE DEFENDANTS’ POSITION
The written address filed by counsel to the defendants distilled two issues for consideration to wit:
1. Whether the Special Resolution passed by the 1 st defendant at her Annual General Meeting of 18 th
August, 2005 conferring the status of the 16 th
President of the Institution on the 2 nd defendant is valid having regard to the Constitution of the
Institution in force and,
2. Whether having regard to the provisions of Articles
14, 15 and 17 of the Constitution the said Special
Resolution is valid.
The defendants challenged the plaintiffs’ suit from all available fronts. First, they urged the court to strike out paragraphs 12, 14 and 15 of the plaintiffs’ affidavit for purportedly offending the provision of Section 87 of the
Evidence Act and second, they urged the Court to ignore
Exhibit ‘C’ attached to the affidavit for reason that it bears no date and name of the newspaper in which it was published and the page thereon and therefore has no evidential value.
On issue 1, the defendants contended that the
Constitution in force was not the 4 th edition but the original Constitution by which the Institution was incorporated in 1969 and subsequently amended on the
9 th of April 2005 (Exhibit ‘A’). Learned Counsel for the defendants contended that the Institution was incorporated in 1969 with a Constitution and that there is no evidence to show any revised edition of same, urging the Court to deem admitted paragraph 4(a)(ii) of the defendants’ counter affidavit which is not controverted that the only Constitution of the Institution is that of 1969 as amended in April, 2005.
The defendants further argued that the submission of the
Learned Counsel for the Plaintiff arguing in the alternative and placing reliance of the amended constitution alluded to in the counter Affidavit should be ignored because the basis of the Originating Summon was the revised edition of the Constitution which is fictional and imaginative.
On the second issue, the defendants submitted that the
Constitution in force when the Resolution was passed was the 2005 edition as approved by the Annual General
Meeting. On the failure to put the motion in the “order paper” of the Annual General Meeting before moving the motion. It was argued that such non-inclusion is of no moment as long as it meets the requirement of the
Constitution.
The defendants further argued that Section 681 of the
Company and Allied Matters Act (CAMA) had been complied with when the resolution was formally drawn up and published in two national dailies in compliance with Section 677 of CAMA before the approval was given by the Commission. Also it was submitted by the defendants that the Resolution was not a violation of
Section 30 of the Constitution as it did not purport to elect but only and ordinarily to confer the status of the
President on the 2 nd defendant and that the provision is not averse to nor does it prohibit such conferment or accordance to its members.
Finally, the defendants prayed the Court to refuse in its entirely the claim of the plaintiffs.
THE JUDGEMENT
In considering his judgement, Honourable Justice Lambo
Akanbi started with the objection by the defendants to paragraphs 12, 14 and 15 of the affidavit in support of the
Originating Summon which bordered on the contravention or violation of the Constitution. His
Lordship stated that it is trite that a deposition in an affidavit which amounts to a legal argument or conclusion is extraneous and offends the provision of
Section 86 of the Evidence Act. However, relying on the authority of Fawehinmi V. State (1990) NWLR Part 127 page 486 @ 488, His Lordship stated that it is also trite that it is not in all cases that reference to a provision of a law or rules involve a legal argument. The objection therefore failed and was accordingly dismissed.
The Court distilled the pleading of the parties and concluded that the parties were ad idem on four basic facts, to wit, (1) that there was resolution passed by the 1 st defendants wherein the 2 nd defendant was conferred with the status of the National President of the Institution, (2) that the Constitution of the Institution provides that

the Constitution of the Institution provides that the emergence of the official of the Institution shall be by the way of election, (3) that the parties are all members of the
Institution, and (4) that the Institution is a registered
Organization duly registered under CAMA and therefore guided by the provision of CAMA; and that the area of dispute between the parties are as follows:
1.
The Constitution in force
2.
The effect or legal consequence of the resolution conferring the status of National President on the
2 nd defendant.
3.
The non-inclusion in the “order paper” concerning the Annual General Meeting of the motion seeking to confer the status of National
President on the 2 nd defendant.
The Court noted that whereas the plaintiffs submitted that the operative Constitution of the Institution is the
4 th revised edition effective from 22 nd September,
1999 and attached to the Originating Summon, the defendants contested this and submitted that the operative Constitution is the one registered on incorporation in 1969 as amended by the Institution in 2005.
Discussion and Analysis
The Constitution attached to the Originating
Summon which learned counsel for the plaintiffs heavily relied upon has the following endorsements:-
1 st Edition 1 st January, 1980
2 nd Revised Edition 31 st January, 1984
3 rd Revised Edition 5 th August 1989
4 th Revised Edition 22 nd September, 1999.
Section 3(d) of the Constitution defined Constitution to mean “the current approved Constitution of the
Institution. This is Constitution the plaintiffs submitted to be in force at the time of the passing of the resolution on 18 th August, 2005.
The question thus to be addressed by the Court was, which of the Constitutions is the Constitution of the
Institution in force at the relevant period?
The defendants joined issues with the plaintiffs with regards to the Constitution of the Institution and denied the plaintiffs’ exhibited Constitution as the authentic Constitution of the Institution and went ahead to exhibit their own Constitution.
Because in law he who asserts must bear the burden of proof, the Judge held that it was incumbent on the
Plaintiff who asserted the existence of the
Constitution attached to prove that it was indeed the one in force and this could be done by producing a
Certified True copy of same from the Corporate Affairs
Commission. Failure to do so therefore made it difficult to find for them that the Constitution attached was the one in force at the material time. The Learned Judge was now led to examine the Constitution attached to the
Counter Affidavit of the defendants which they submitted to be the authentic Constitution of the Institution.
Section 30 of Chapter VII of the Constitution provides that all officers of the Institution shall be elected annually in accordance with the provision of the Constitution.
The 1 st defendants passed a resolution conferring on the
2 nd defendant the status and privileges of the 16 th
President through a “MOTION” for the Recognition of
Mr. Grersh Henshaw as the 16 th President of the
Institution”.
The judge stated that for all intent and purposes, this resolution is not an amendment to the Constitution a sit did not fall within the mode of electing an officer of the
Institution within the provision of the Constitution. The defendants acknowledging, claimed that such a provision had been waived through paragraph 5 of the same
Resolution which states “That any constitutional constraint(s) militating against this resolution be waived by this august body”.
The proposal for the amendment of the Constitution as contained in Section 80 of Chapter XX must be by a proposal by the Council or the financial member initiated to alter, amend or add to the Constitution, which proposal shall be in writing and shall conform to the provision of
Sections 47 and 48 of the Constitution. In compliance with the provisions of Section 81, a resolution at the
Annual General Meeting to alter, amend or add to the
Constitution shall be passed at such a meeting by a simple majority of the financial members present and voting in person or by proxy.
According to the Learned Judge the motion conferring the status of National President on the 2 nd defendant did not have effect to amend, alter or add to the Constitution as erroneously believed by the defendants; he therefore held that the motion passed recognizing the 2 nd defendant as 16 th President is ultra vires and unconstitutional, illegal, null and void. The ratio decidendi of the Court being that to remain or emerge the National President of the Institution is not by accord or conferment but through a democratic election process as stipulated in the
Constitution.
The written address filed by counsel to the defendants distilled two issues for consideration to wit:

CONCLUSION
The Court has spoken and to all intent and purposes interpreted the will of members as enunciated in the
Constitution.
It is trite law that what the Courts say is law and nothing more pretentious. Without prejudice to the right of appeal, it is hereby submitted that the Learned
Honourable Justice Lambo Akanbi has done great justice to this case as his judicial interpretation of the issues canvassed in flawless.
What this case has done is to elevate the issues, the facts and the law vis-à-vis the Constitution above mere rhetoric, academics and speculations and allowing for a detached interpretation that unbiased, judicial and judicious. It is heartwarming to learn that the Council of the Institution has resolved in accord with the Plaintiffs who are bonafide and respected members of the
Institution that the suit No. FHC/L/CS/1011/06 should not be a trial per se but a request for a judicial interpretation upon which there shall be no further appeal.
Now that the Court has spoken, let all and sundry, especially our hallowed elected Executive Committee and the Council be guided in all that we do by our
Constitution which is the grundnum of the Institution and be reminded always that we are our own ‘watch-dog’.
This is a classical case of “no victor no vanquished”, of which our noble Institution, the Nigerian Institution of
Estate Surveyors and Valuers is the only victor and beneficiary.