Alhaji Abdul-salami Teniola & Ors. V. Alhaji Mustapha Olohunkun (1999)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C

To put the issues in this appeal in their proper perspective, the events that led to the appeal need to be briefly stated. The respondent, who was plaintiff in the High Court and is so referred to in this judgment, was at all material times a petrol dealer and the proprietor of a fuel station situate at Oke-Oya in Kwara State. The appellants, who were defendant in the High court and are so referred to in this judgment, were at all material times farmers resident at Oke-Oya. Sometimes in 1959, the plaintiff, is desirous of building a petrol station and believing that he had purchased a parcel of land for that purpose from the owners, applied for and obtained a certificate of customary land Tenure over the land from the Emir of Ilorin. Alhaji Sulu Gambari. Thereafter, he applied to the government of the then Northern Region of Nigeria for and obtained a grant of right of occupancy and was issued a certificate of occupancy dated March 4, 1962 in respect of the land. The right of occupancy granted him was for an indefinite term from fourteenth day of June, 1961. The certificate of occupancy is No. 102346. The plaintiff did not build the petrol station on the land covered by the certificate of occupancy because it was then occupied by Balfour Beauty & Company Ltd, under a temporary certificate of occupancy.

The plaintiff then bought another parcel of land on which he built a petrol station. That parcel of land is covered by a certificate of occupancy No. 13255 dated 24th August, 1967, which shows that he was entitled to a right of occupancy over the land for a term of 99 years from the thirteenth day of December, 1965.

The third acquisition of property in the neighbourhood by the plaintiff came about when, Costain (W.A.) Ltd, having left the land on which it had built some houses, the plaintiff purchased the houses left by that company on the land from the Government and obtained two certificates of occupancy Nos. 13642 and 573 dated 28th February, 1967 and 31st July, 1970 respectively.

Apparently, aggrieved by the plaintiff’s occupation of the land covered by the last two certificates of occupancy mentioned above, the 5th defendant took action against the plaintiff, first in the Upper Area Court, Ilorin and later in the Grade I Area Court, Oke-Oyi, respectively in 1965 and 1974, claiming, on each occasion, that the land occupied by the plaintiff was his family land. On each occasion, the court dismissed the 5th defendant’s case and advised him to seek whatever remedy he might wish to pursue against the Government in the High Court. In the latter of these two cases, the court was of the opinion that the present plaintiff (then defendant) “had a good title to the land in question and therefore the plaintiff’s claim failed:’

It would appear that rather than allow wise counsel to prevail in line with the opinion of the two courts, the defendant resorted to self-help and entered the land; thereby provoking the action that led to this appeal. The plaintiff’s claim in the High Court was for damages for trespass committed by the defendants on his parcel of land covered by certificates of occupancy Nos. 13642, 573, 13255 and 10346” and injunction.

At the trial, although the plaintiff made reference to the transactions of sale to him of three parcels of land, namely: one by one Towobola, the head of family of the 5th defendant’s family, another by ant: Buhari Magaji and the third by the Government of Northern Nigeria, it is evident that he relied for the right he claimed, on grants to him by the Government of rights of occupancy as witnessed by the certificates of occupancy issued to him. The defendants, on the other hand, contended that the certificates of occupancy (Nos. 10346, 13642 and 573), relied on by the plaintiff, were “irregular and unlawfully obtained as the defendants or their representatives never sold or transferred any land to the plaintiff.” It may well be noted that the defendants laid no claim to any interest in the land covered by certificate of occupancy No. 13255 on which the plaintiff had built his petrol station.

The learned trial Judge being of the view that the plaintiff’s case hinged on the three documents admitted in evidence as Exhibits 1, 2 and 3, proceeded to consider those exhibits and came to the conclusion that they were void. Exhibit 1 was a document titled “Land Agreement” whereby one Mr. Towobola declared that he had transferred land to the plaintiff on 4th November. 1959. Exhibit 2 was a certificate of customary land tenure issued by the Emir of llorin to the plaintiff in January, 1960 and which the plaintiff said was in respect of land mentioned in Exhibit 1. Exhibit 3 is the certificate of occupancy No. 10346 already referred to in this judgment. The trial Judge came to the conclusion that the three exhibits were void on the sole, and, I dare say doubtful, ground that the plaintiff when he was buying the land did not know that it was family land. However, from a careful reading of the judgment of the trial Judge, it is clear that he found that Towobola sold the land to the plaintiff, that he was head of the family which owned the land, and that the sale would have been valid had it been ratified by the principal members of the family. In the event, he held that since the transaction was void, the defendants could not have been trespassers because they were dealing with their family land and dismissed the plaintiff’s claim. What, in the opinion of the trial Judge, made the sale a nullity was that the plaintiff did say that he did not know that it was family land when he was buying the land. It may well be observed that there was no evidence that Towobola claimed to have been selling the land as his personal land. It is appropriate to interpose in this narration of the events, and I venture to think, that when family land is sold by the head of the family what is important and material is the capacity in which the vendor dealt with the land rather than the knowledge of the purchaser as to the status of the land as personal or family land. Where the head of family sells family land as such, but the purchaser did not know at the time that it was family land that should not make the sale void. The position is different where the vendor did intend and did claim to be selling the land as his personal land when he had no title to the land in his own right.

The plaintiff’s appeal to the Court of Appeal from the decision of the High Court of Kwara State was allowed. Having set aside the judgment of the High Court, the Court of Appeal substituted therefore judgment for the plaintiff, awarded him damages for trespass and ordered injunction as sought against the defendants. It is apt to note that the Court of Appeal did not share the opinion of the High Court that the transaction or sale alleged by the plaintiff, culminating in Exhibits 1 and 2, was a nullity. Ogundare, J.C.A. who delivered the leading judgment for the court below with which Uthman Mohammed, J.C.A., as he then was, and Okunola J.C.A. concurred, was of the view that:

“If one or both Exhibits 1 and 2 were admissible evidence of Yoruba estate contract, since there was evidence at the trial that Towobola was head of the family of ile Bale Ode Oke Oyi Oja, the sale would have been voidable as the hands of principal members of that family are not in it. In which case, that family would have been under obligation to bring an action to annul it, or having been sued by the plaintiff, the defendant’s family should have counter-claimed for its annulment, which was not the case here.”

It is evident that, in substance, Ogundere. J.C.A.dwelt more on the evidential value of Exhibits 1 and 2 and came to the conclusion that those two exhibits could not be evidence of sale of land under Yoruba customary law. However, the Court of Appeal held that the certificate of occupancy, Exhibit 3, was valid. That court also held that the certificates of occupancy, Exhibits 6, 9 and 10, relied on by the plaintiff were valid and did confer rights of occupancy on the plaintiff.

On this appeal from the decision of the Court of Appeal, the main complaint and, indeed, the substance of the defendants’ appeal is that the Court of Appeal should not have held that the certificates of occupancy relied on by the plaintiff were valid. The grounds of the invalidity of those certificates urged by counsel for the defendants, summarised; are:

(i) that government having acquired the land covered by Exhibits 9 and 10 for public purposes, the land ought to have been returned to the defendants’ family when it was no more needed for the public purposes for which it was acquired, and not sold to a private person;

(ii) that “the effect of the Land Use Act is now to recognise the customary land owners as the persons entitled to statutory right of occupancy and the certificates of occupancy issued to the respondent is (sic) therefore ineffective to pass title to the respondent, because, having regard to section 36(2) of the Land Use Act, Exhibits 3, 6 and 9 cannot be valid since there is evidence that the customary land owners (the appellants) were in possession before the passing of the Act and are deemed to have customary right of occupancy.

(iii) since the transaction which vested the land is void and the Court of Appeal declared so, there is nothing on which the certificate of occupancy. Exhibit 3, could be premised and the issuing by the Local Authority of certificate of occupancy was, therefore, improper and the same should have been declared null and void by the Court of Appeal, more so, since the defendants were the landowners in possession before the passing of the Land Use Act and by the provision of section 36(2) of the Act they are deemed to have the customary right of occupancy.

The core of the plaintiffs counsel’s submission, admirably summarized in the conclusions in the respondent’s brief of argument, even now much more succinctly stated without doing any justice to its weight, is that the plaintiff’s claim having been based on the certificates of occupancy, Exhibits 3, 6, 9 and 10, which have not been revoked and which had not been challenged by any counter-claim, the judgment of the court below should be affirmed. Leaving aside, for a moment, some peripheral issues raised in the appeal, such as whether the Court of Appeal was right to have used a letter written to the defendants by the Minister of Land. Exhibit 14, “to validate Exhibits 9 and 10” and whether the judgments in the previous action instituted by the 5th defendant operated as estoppel. I turn, straight away, to a consideration of the issue that is decisive of the appeal, which is, whether the rights of occupancy on which the plaintiff relied were sufficient to give him the right to be in undisturbed occupation of the land which is the essence of his claim in trespass and which was found by the Court of Appeal.

Although much issue was made by the trial Judge and by counsel for the defendants on this appeal, of the question of the validity, or otherwise, of the sale by the family of the 5th defendant of part of the land to the plaintiff, and the Court of Appeal ruled that the documents, Exhibits 1 and 2, had no value and were inadmissible, it seems evident to me that the appeal falls to be determined on the efficacy of the grant of statutory rights of occupancy to extinguish all rights to use and occupation existing on the land prior to such grant.

In this regard, three statutes whose provisions call for consideration are the Land and Native Rights Ordinance, Cap. 105 Laws of Nigeria, 1948 (“the Ordinance”): the Land Tenure Law, 1962. No 25 of 1962 (Laws of Northern Nigeria, 1962 (“the Law”); and the Land Use Act. (Cap 202 Laws of the Federation of Nigeria, 1990) (“the Act”). The plaintiff had a grant of right of occupancy of part of the land pursuant to section 6 of that Ordinance as witnessed by the certificate of occupancy. Exhibit 3. Section 4 of the Ordinance having declared all native lands and all rights over the same to be under the control and subject to the disposition of the Governor, provided that “no title to the occupation and use of such land shall he valid without the consent of the Governor. ” Section 6(a) of the Ordinance empowered the Governor to grant rights of occupancy to natives and to non-natives either for definite or for indefinite terms, while section 17(1) of the Ordinance empowered the Governor to issue certificates of occupancy. One of the implied conditions in such certificate was as provided by section 18(1) of the Ordinance. ”That the occupier binds himself to the Governor to pay compensation for any damage caused to native individuals or communities in the exercise of the rights granted to him, and to accept the ruling of the Governor as to the amount of such compensation:’ Section 9 of the Ordinance provided that the occupier shall have exclusive rights to the land the subject of the right of occupancy against all persons other than the Governor:’

The Land Tenure Law, 1962 (Law No. 25 of 1962) (“the Law”) which repealed and replaced the Ordinance, came into operation on October 1,1962. Section 2 of the Law brought out more clearly the distinction between “customary right of occupancy” which was defined as meaning: “the title of a native or native community using or occupying native land in accordance with native law and custom ” and “statutory right of occupancy” which was defined as meaning “a right of occupancy granted under the provisions of section 6 or of any written law replaced by the Law whether by the Governor or the Minister or by any public officer or native authority duly authorised and empowered in that behalf: The right of occupancy witnessed by the certificate of occupancy. Exhibit J. having been granted under the ‘provisions of the Ordinance was, by virtue of section 6 of the Law, a statutory right of occupancy. The rights of occupancy witnessed by the certificates, Exhibits 6, 9 and 10 being granted under the provisions of section 6 of the Law were also, by virtue of section 2 of the Law, statutory rights of occupancy. Section 6(1) of the Law empowered the Minister to grant rights of occupancy to “natives and non-natives” and sub-section 3 of section 6 of that Law provided that: “Upon the grant of a right of occupancy under the provisions of subsection (1) all existing rights to the use and occupation of land which is the subject of the right of occupancy shall be extinguished.

Thus, by virtue of the provisions of the Law, the grant of statutory right of occupancy freed the land from all existing rights to use and occupation of the land with the consequence that the only rights to use and occupation of the land recognised by law are those created by the grant of the statutory right of occupancy. Upon the grant of a statutory right of occupancy under the Law, there can only be one “occupier” rccognised by the law, and that is the person holding the statutory right of occupancy. He is the person who by virtue of section 19 of tile Law “shall have exclusive rights to the land,the subject of the right of occupancy against all persons than the Minister.” The scheme of the Law, and, indeed, of the Ordinance which it replaced, neither envisaged nor provided for a statutory right of occupancy to exist with a customary right of occupancy over the same land. In the case of Akande v. Kolere (1966) NNLR 113, Bello J., as he then was, accepted the argument that the combined effect of section 6(3) and section 19 of the Law was to divest the previous holder of a customary right of occupancy of his rights and vest them in the holder of a statutory right of occupancy. In the case of Sande v. Abdullahi (1989) 1 NWLR (Pt. 116) 387 Obaseki, J.S.C. commenting on section 5(2) of the Land Use Act which was substantially in pari materia with section 6(3) of the Law described section 5(2) of the Land Use Act as creating a statutory revocation of all existing right on the grant of a statutory right of occupancy.” Although the views of Bello, J; (as he then was) and Obaseki, J.S.C. were obiter dicta. I am of the view that they represent the law, subject to the qualification that the provisions of section 6(3) of the Law and section 5(2) of the Act would not preclude the court from setting aside the grant of a statutorily right of occupancy in appropriate case such as for instance, when it had been issued in error or has been obtained by fraud.

The third statute to consider is the Land Use Act. Where, as in the present case, the right which the plaintiff claims over the land in question is founded on grants of statutory rights of occupancy made under the statute applicable before the Act came into operation, the true path of enquiry is to find in whom the land was vested immediately before the commencement of the Act, that is to say, before 28th march, 1978. where the land is in an urban area, the person in whom the land was vested, by virtue of section 34(2), deemed to be the holder of a statutory right of occupancy issued by the Governor under the Act. By virtue of section 36(2) of the Act any occupier of land not in an urban area, whether under customary rights or otherwise however, shall, if that land was on the commencement of the Act being used for agricultural purposes, continue to be entitled to possession of the land for use as agricultural purposes as if customary right of occupancy has been granted to the occupier or holder thereof by the appropriate Local Government. By virtue of section 36(4), where the land is developed, the land shall continue to be held by the person in whom it was vested immediately before the commencement of the Act as if the holder was the holder of a customary right of occupancy issued by the Local Government.

In the present case, the defendants had proceeded on the footing that by virtue of section 36(2) of the Act, their families were deemed occupiers of the land. To my mind, that was an erroneous position to have taken. There is, palpably, a flaw in the argument of counsel for the defendants when he assumed, without any shred of evidence of the designation of the area in which the land is pursuant to section 3 of the Act, that the land had been proved to be in a non-urban area, and submitted that the defendants were the holders of the customary rights of occupancy of the land in dispute and that having retained possession thereof any grant to any person in disregard of the defendants’ customary right is invalid. There was nothing to show that section 36(2) of the Act was the applicable transitional provision.

Besides, the fact that there has been no evidence of the designation of the area where the land is, an obvious misconception in the argument advanced by counsel on behalf of the defendants, is in regard to the effect of a grant of a statutory right of occupancy under the Law, as under the Act, which is to extinguish all existing rights to the use and occupation of the land. In this regard, in addition to the two cases, already referred to in this judgment, reference may as well be made to the case of Gaikon v. Ugochukwu Chemical Industries Ltd. (1993) 6 NWLR (Pt. 297) 55 where Karibi-Whyte, J.S.C., stated as follows:

Mr. Dauda has submitted that an existing customary occupancy must be revoked before a statutory right of occupancy can be valid. This is misreading of section 9(1) (b) of the Land Use Act. A statutory right of occupancy automatically extinguishes all existing rights in respect of the parcel of land over which it is granted ” see Titiloye v. Olupo (supra).

That passage is in my opinion apt for the purpose of the present case.

The argument that the certificates of occupancy relied on by the plaintiff are invalid, is erroneously predicated on assumed existence of a right of occupancy deemed held by the defendants. The submission, trenchantly put forward as the pillar of the defendants’ case on this appeal, that “having regard to section 36(2) of the Land Use Act, Exhibits 3, 6 and 9 cannot be valid since there is evidence that the customary land owners (the appellants) were in possession before the passing of the Act and are deemed to have the customary right of occupancy”, is also erroneous. The submission is neither supported by the law nor by the facts. In the face of the previous actions instituted by the 5th defendant, first in 1968 and secondly in 1974, in which he complained that the plaintiff was occupying and using the land of his father, and the fact that the Court of Appeal upheld the plaintiff’s case that the defendants trespassed on the land and adjudged them trespassers liable to pay damages to the plaintiff, it is difficult to see what evidence of possession there was in the case in favour of the defendants. The findings of possession and trespass made by the Court of Appeal have not been challenged on this appeal. A trespasser cannot claim to be occupier or holder of land for the purposes of section 36(2) of the Act.

In my judgment, the grants of statutory rights of occupancy on which the plaintiff relies are potent to vest the land in him. It was erroneous to argue, as counsel for the appellant had tried to do, that it was the transaction of sale alleged by the plaintiff that vested the land in him, whereas, as has been seen, the land became vested in him by virtue of grants of statutory rights of occupancy which still subsist and have not been set aside. The plaintiff being, indisputably, the holder of statutory rights of occupancy in respect of the land, and being in use and occupation in respect of the land, and being in use and occupation thereof at the time of the tortuous entry thereon by the defendants, it is difficult to see how the facts relied on by the defendants could have been of any avail to them. The grants to the plaintiff were made in exercise of statutory power vested in the Governor or, as the case may be, in the Minister. Where in the exercise of statutory power, grants of statutory rights of occupancy have been made, without want of authority or capacity, the court will not treat the grants as if they have not been made and proceed to determine the rights of the parties as if those grants have ceased to be in existence. There may be circumstances in which there are facts which, if established by evidence, may justify the exercise of the court’s discretion to set aside a grant of right of occupancy. A party cannot, however, rely on such facts as justification for entering on land, subject of the grant, against the wish of the holder, while the grant subsisted and had not been set aside. The facts which may justify the setting aside of a grant of right of occupancy cannot be used as defence in an action in trespass when the grant which vested exclusive possession in the holder had not itself been set aside. The proper thing to do is to advance those facts in an action to set aside the grant.

In my judgment, the plaintiff’s counsel was right in his submissions that the judgment of the Court of Appeal should be affirmed since the rights of occupancy granted to the plaintiff have not been revoked and there has been no action to have them set aside. The requirement that a party who challenges the validity of a grant of statutory right of occupancy should take steps to set such aside, rather than ignore it and behave as if it does not exist, is by no means a mere technicality. A party who seeks the intervention of the court to set aside a grant of statutory right of occupancy may not necessarily obtain relief where there are circumstances precluding relief, such as, the conduct of the party and unreasonable delay in seeking a remedy. An action to set aside a grant affords the defendant in such an action an opportunity to canvass the existence of circumstances which disentitle the plaintiff in such an action to a remedy. To treat the grant as annulled when no such remedy has been sought in the action and to hold that the party challenging the grant has a right to enter the land as if the holder of a right of occupancy had at no time been granted to the plaintiff, cannot at all be right.

The question whether or not the judgments in the previous actions instituted by the 5th defendant constituted estoppel or not is nut of any importance in this appeal. It suffices to point out that had the defendants understood the purport of the judgment, they would have realised that what the judgments in those actions had implied was that the challenge to the exercise by the plaintiff of rights conferred by the grants of rights of occupancy would remain futile until and unless those grants are first set aside.

Ignoring inconsequential digressions that appeared to have found their way into the judgment of the court below, I feel no hesitation in holding that the Court of Appeal came to a correct conclusion on the material and decisive issue when it held that the certificates of occupancy Exhibits 3. 6, 9, were valid and did confer rights of occupancy on the plaintiff. In the result, I dismiss the appellants’ appeal with N10,000 costs in favour respondent.

SC.163/1992