Alhaji Wahabi Layiwola Olatunji V. The Military Governor of Oyo State & Ors (1994)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
The government of Oyo State pursuant to section 28 of the Land Use Act Cap. 202 of the Laws of the Federation of Nigeria, 1990 compulsorily acquired a parcel of land at Orita Ikereku, challenge for public purpose absolutely simpliciter. The acquisition notice was published in Oyo State of Nigeria Gazette No.10 in Vol. 7 of 11th March, 1982, Exhibit 1, as Oyo State Notice No. 53.
Prior to the compulsory acquisition, one Alhaji Wahabi Layiwola (deceased) (substituted with Rasaki Olatunji by order of this court dated 31st day of January, 1989) had in 1976 purchased the parcel of land at Orita Ikereku, challenge, Lagos Road from Awojobi Kure family of Ibadan the original owners. The land was a subject of litigation between Saidu Gbadamosi and Salawu Adekunle Kuku in Suit No. 1/134/73. In a reserved and considered judgment delivered on 29th January, 1979, the plaintiff’s claim was non-suited. The plaintiff as representative of Kure family was dissatisfied with the order non-suiting his action and appealed to this court in Appeal No. FCA/146/82. In a judgment delivered on 6th day of May, 1985 the order non-suiting the plaintiff’s suit was set aside and was substituted thereafter with an order of declaration of title in favour of the family as well as an order for an injunction.
The sum total of the background story I have hitherto narrated is either acquisition was carried out during the pendency of litigation: The appellant in the present appeal acquired the parcel of land when suit No. 1/134/73 was still pending in the High Court of Oyo State of Nigeria. The compulsory acquisition by the Government also took place during the pendency of Appeal No. FCA/146/82.
It is common ground that the acquisition by government was carried out without notice of the same being served on the appellant. It is equally not in dispute that the parcel of land thus acquired in 1981 ostensibly for public purpose was turned over to fourth defendant herein, Tawa investments Nigeria Limited, a private limited liability company in 1987 because the government no longer required the said parcel of land for public purpose.
On commencement of Land Use Act 1978, the plaintiff applied for a grant of statutory right of occupancy and had to make inexorable enquiries about his application which had apparently stalled somewhere in the Governor’s Office where he eventually discovered to his chagrin and dismay that a certificate of occupancy had been issued to fourth defendant in respect of the parcel of land he had hitherto exercised various acts of ownership. He was naturally disturbed or discomfited and dispatched a protest letter to the Governor who neither acknowledged nor replied.
The plaintiff consequently caused a writ of summons to issue against the four defendants claiming the following reliefs –
“(1) Declaration that the Compulsory Acquisition of the plaintiff’s UNDEVELOPED LAND at Orita-Challenge, Lagos Bye Pass, Ibadan effected by the Oyo State Government Notice No. 53 dated 25th 1anuary, 1981 is unconstitutional, null, void and of no effect – the acquisition having been done in bad faith/mala fide and having not been done in compliance with the Provisions of the Public Lands Acquisition Act, Laws of Oyo State 1978, and the same having not been acquired solely for PUBLIC PURPOSES.
(2) Declaration that the aforesaid Compulsory Acquisition offends against Section 40(1) of the Constitution of the Federal Republic of Nigeria 1979 (as amended) and to that extent null, void and of no effect whatsoever.
(3) Declaration that the grant of Certificate of Occupancy dated 25th day of February 1987 in respect of the Acquired Land to a PRIVATE INTEREST/PRIVATE COMPANY, TAWA INVESTMENTS NIGERIA LIMITED INCORPORATED, the 4th defendant in this case, is null, void and of no effect whatsoever: The grant not being for public purposes.
(4) Declaration that the plaintiff is the only one entitled to the grant of Certificate of Occupancy in respect of the Land having regard to his ownership and Possession of the Land and the Court of Appeal judgment in favour of the plaintiff’s vendors.
(5) Perpetual injunction restraining the defendants, their Agents, Servants and/or Privies from further dealing on the land Pursuant to any Act or Acts arising from or pertaining to the Compulsory Acquisition, or Pursuant to the Grant of the aforesaid Certificate of Occupancy.”
(Italics mine)
The parties then filed and exchanged pleadings. The issues joined on the pleadings were duly tried and in a reserved judgment the learned trial Judge, Adeyemi, J., rejected all the plaintiff’s reliefs and proceeded to dismiss his entire claims.
The plaintiff (hereinafter referred to as appellant) was thereby aggrieved and has appealed to this court on eight grounds of appeal. The parties filed and exchanged briefs of argument incompliance with the practice and procedure of this court. Briefs of argument were settled at amended appellant’s brief, first, second and third respondents’ joint amended respondent’s brief and fourth respondent’s amended brief of argument.
Pausing at this juncture, I am to avert to the existence of a respondent’s notice put in by fourth respondent. It contains three grounds which read as follows:
“1.01 The appellant’s claim should have been dismissed on the ground that the sale under the Deed of Conveyance (Exhibit 5) relied on by him was caught by the doctrine of lis pendens.
1.02 The lower court should have declined jurisdiction and struck out the case on the ground that the plaintiff’s case raises question concerning or pertaining to the right of the 1st respondent to grant a statutory right of occupancy to the 4th respondent.
1.03 The appellant’s action having been based on the provisions of the Public Lands Acquisition Law of Oyo State should have been dismissed for having been barred by a provision of the same Law.”
At the hearing of the appeal, learned counsel for appellant adopted and placed reliance on the amended appellant’s brief. The learned counsel for first, second and third defendants (hereinafter respectively referred to as first, second and third respondents) adopted and relied on their joint brief. The fourth respondent’s brief was duly adopted and relied upon.
Neither party is contesting the competence of the Governor to acquire the property in dispute for public purpose. Nor any of them contesting the acquisition of the same. What is in dispute therefore is whether subsequent grant of the land acquired for public purpose to Tawa investments Nigeria Ltd. constitutes public purpose under the Land Use Act. The issue calling for determination therefore falls within a very narrow compass which is encompassed by the following issues:-
‘(i) Whether the compulsory acquisition is not a nullity taking into account that the appellant who was the owner or a person in effective possession was not served with a notice of revocation.
(ii) Whether the grant to the fourth respondent served the intent of the notice which was for public purpose absolutely.
In arguing the first issue as formulated by me which is related to ground 6 the learned counsel for appellant strenuously contended that the strict requirement of notice stipulated in sections 28(6) and 44 of the Land Use Act and which are similar to those contained in the Oyo State Public Acquisition Law have not been complied with. He referred to the case of Peter Dzungwe v. Gbishe (1985) 2 NWLR (Pt.8) 528. The learned counsel for first, second and third respondents contended that the land in dispute was acquired for public purpose in 1981 under section 28 of the Land Use Act, 1978. He further contended that the acquisition is contained in Oyo State Notice No. 53 in the Oyo State of Nigeria Gazette No. 10, Vol. 7 of 11/3/82. Counsel then submitted that since the land acquired was undeveloped it was not possible to effect personal service of the notice of acquisition on the appellant.
The learned counsel for fourth respondent on behalf of that respondent argued that the issue of non-compliance with the requirement of notice was raised for the first time in this court. He contended that this question was not raised in the appellant’s pleading in the court below and there was therefore no issue joined at the trial. He pointed out that the appellant while giving evidence in 1988 admitted he had knowledge of the acquisition about four years ago. He did not tell the court how he came about his knowledge of the acquisition. He then contended that he could not have derived his knowledge from outside the notice published in the Gazette Notice which he himself tendered as exhibit 1(a). He then urged upon us that his complaint of non-service of notice is an after-thought and it should be rejected.
I have carefully pondered on the submissions of learned counsel. I take those of the learned counsel for fourth respondent which I consider adroit and crucial first. The appellant pleaded in paragraph 11 of his statement of claim as follows-
The plaintiff by humble PETITION dated 1st November 1987 addressed to the Permanent Secretary, Oyo State ministry of Lands, Ibadan for onward transmission and Information to the 1st, 2nd and 3rd defendants drew attention to the ANOMALIES in the grant of the Certificate of Occupancy in respect of the Land to the 4th defendant.”
In proof of the averments contained in paragraph 11 set out above the appellant tendered a letter which he addressed to the Permanent Secretary, Ministry of Lands, Housing and Survey, Ibadan which petition was accepted in evidence and was duly marked as exhibit 6. It reads thus-
“SW4/768, Olorunsogo Street,
Akuro, Oke-Ado,
Ibadan.
18th November, 1987
The Permanent Secretary,
Ministry of Lands, Housing and Survey,
Ibadan.
Petition to the grant of Certificate of Occupancy dated 25th February 1987 and Registered as No. 20 at Page 20 in Volume 2734 Ibadan (LLA 4215)
I humbly send in this petition for your kind consideration.
2. I applied for Certificate of Occupancy for a certain piece of land at challenge area Ibadan in file LUD 4651A. I got bored when your officials were asking for various papers and causing delays. At a time the file could not be located and this exhausted my patience as I was very weak through protracted illness.
3. Recently, when I was making a search in the Ministry, it was discovered that a document quoted above has been registered on the same property. A copy of the certificate of occupancy is herewith attached.
4. On investigation; it was said that the Government acquired the site for public purpose absolutely. I still wonder if such acquisition which was consequently granted to an individual hiding under the name of a company “Tawa Investment Nigeria limited” (LLA 4215) is for public use absolutely.
5. I feel fair play would have demanded that I be notified of that acquisition through my (LUD 4651A) application with you. I did not receive any notification of such acquisition whether personally or by post. I am an illiterate and therefore I was not aware of any publication of such acquisition in the papers.
6. The piece of land has been a subject of various litigations culminating in suit No. FCA/I/146/82 a copy of the judgment of which is also herewith attached for your use. The judgment is dated Monday the 6th day of May, 1985.
7. In conclusion, I am appealing that you rectify the situation before I instruct my solicitors to commence action in court over the issue.
Yours faithfully,
(Sgd.)
(Alhaji Wahab Olatunji”)
(Italics mine)
The substance or essence of exhibit 6 negates the argument that the issue of notice is being raised for the first time on appeal in this court and that it is an after-thought. The notice which the appellant acquired post facto that is, about 1984 in respect of acquisition or revocation carried out in 1981 cannot be said to be within the contemplation of section 28(6) and (7) and 44 of the Land Use Act.
In any case the burden to proof receipt or service of notice in the circumstances of this case is not on the appellants. It is on the party who asserts that notice had been or who will lose if the requisite notice is not given that has the burden to discharge. See sections 135, 136 and 137 of the Evidence Act Cap. 112 of the Laws of the Federation of Nigeria, 1990. In this case, the respondents.
I agree with the learned counsel for the first, second and third respondents that provisions of the Public Land Acquisition Law do not apply to any land compulsorily acquired under the Land Use Act (supra) and I am equally surprised by the frequent reference being made to that Law in spite of express finding of the learned trial Judge that it is Land Use Act and not the Public Land Acquisition Law that is applicable to this case. Exhibit 1 tendered by the appellant clearly states that the land in dispute was acquired under the Land Use Act (Supra). I am by no means saying that a party cannot rely on decided cases on Public Lands Acquisition Law in the interpretation of the Land Use Act where the provisions are in pari materia.
The learned counsel for first, second and third respondents has, in his usual candour, graciously conceded that the appellant was not served with the notice of intention to revoke his statutory right of occupancy on land in dispute which is situated within Ibadan Municipality. Having so conceded, the matter cannot be explained away as he attempted to do. There is nothing in the Act that said that the requirement of notice can be waived where the land is not developed. Both sections 28(6) & (7) and 44 on which Chief Aribisala relied stressed, by mandatory provisions the importance or significance of service of notice on the party whose interest is to be acquired or revoked. They provide as follows:-
“28. x xx xx
x xx xx x xx
(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Military Governor and notice thereof shall be given to the holder.
(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under subsection (6) or on such later dated as may be stated in the notice.”
“44. Any notice required by this Decree to be served on any person shall be effectively served on him-
(a) by delivering it to the person on whom it is to be served; or
(b) by leaving it at the usual or last known place of abode of that person; or
(c) by sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode; or
(d) in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered or principal office or sending it in a prepaid registered letter addressed to the secretary or clerk of the company or body at that office; or
(e) if it is not practicable after reasonable inquiry to ascertain the name or address of a holder or occupier of land on whom it should be served, by addressing it to him by the description of “holder” or “occupier” of the premises (naming them) to which it relates, and by delivering it to some person on the premises or, if there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous part of the premises.”
(Italics mine)
There is evidence produced which appears accepted by the trial Judge that the appellant let a portion of the land in dispute to a mechanic and a carpenter amongst others. One of such tenants, a motor mechanic, Abiodun Ayinla testified as first plaintiff witness and confirmed his presence on the land. In addition, the appellant is farming on remaining half of the land in dispute. It is therefore crystal clear that respondents, particularly first, second and third, made practically no effort to serve the appellant with the notice to revoke his right or interest on the land. The failure to effect personal service of the notice on the appellant in accordance to the manner set out in sections 28 and 44 of Land Use Act (supra) is a gross violation of or serious departure from the set out procedure. Service personally on the appellant is sine qua non of revocation of his interest in the land in dispute and cannot be dispensed with. It cannot be dispensed with because it is after the service in the manner laid down by reading those two sections together that the right of the appellant is revoked. The oblique proposition by counsel for the two sets of respondents that publication in the Gazette was sufficient notice to appellant does not avail them nor hold water. That is not the intendment of the maker of the law, if it were it would have expressly said so.
The publication in the Gazette is a constructive notice to the whole world and not a substitute for personal service enjoined by the enabling legislation. A very careful reading of sections 28 and 44 of the Land Use Act would disclose that publication in Gazette and local newspapers are not mode or manner of effecting service under Land use Act. It does appear to me that omission of publication in the Gazette and newspaper is to further emphasise to acquiring authorities that the legislature has in mind personal service only as it left the acquiring authority with no option. Publication in the Gazette or newspaper is a mere grafting of a manner of serving notice prescribed under section 9(3) of Public Land Acquisition Law on the provisions of section 44 of the Land Use Act. For a notice to be valid it has to be served in accordance with the provisions of the Land Use Act.
A failure to serve notice in the manner prescribed in the two sections would be tantamount to a substantial non-compliance which renders the acquisition bad. The acquiring authority cannot be vested with any interest in the land until the subsisting interest is revoked because there can be no concurrent possession by two parties claiming adversely. Since the acquisition by the government is inchoate or putative it passed nothing to the fourth respondent on the doctrine of nemo dat quo non habet: See Attorney-General Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646, 637 where the Supreme Court held that enactment taking proprietory right away is invariably interpreted narrowly or strictly against the acquiring authority.
The answer to issue (i) is positive. Ground 6 of the grounds of appeal is successful and is allowed.
The remaining issue is whether the grant to the fourth respondent is for public purpose within the contemplation of the Land Use Act (supra). This issue is related to grounds 3 and 4 of the grounds of appeal. Learned counsel submits that the lower court was acting under misapprehension when it held that the use into which a land was put after 1981 cannot under any circumstances retrospectively render the otherwise valid acquisition now a nullity. He argued further that the acquisition and the grant are therefore not unrelated or isolated acts. He submitted that the learned trial Judge having found that the fourth respondent is a private limited liability company cannot proceed to hold that the grant to it is for public purpose absolutely.
On behalf of the first three respondents it was contended that the grant of statutory right of occupancy to the fourth respondent in 1987 on the parcel of land acquired in 1981 should not affect the validity of the acquisition. Counsel’s further contention is that the instant appeal is different from where a parcel of land was specifically acquired for the purpose of granting it to a private company since the acquisition here was initially for public purpose.
The sum total of the submission of the learned counsel for fourth respondent is to the effect that the Governor has power under Land Use Act to revoke right of occupancy of a citizen with a view of vesting it in another citizen.
Before I proceed, any further may I correct the impression learned counsel for appellant seems to have gathered from the learned trial Judge finding that Tawa Investments Limited is a private limited liability company. This finding is based on the composition of its share holding. In other words the learned trial Judge had in mind private and public liability companies within the intendment of Companies Act 1968 and not as to the effect of a grant to it under Land Use Act. In other words, the learned trial Judge never intended nor meant to say by holding that fourth, respondent is a private limited liability company a grant to it qualifies for a public purpose such finding should not, with respect, be imputed to him. Whether a purpose is public or not is a matter for evidence.
I tried to summarise the submission of the learned counsel for fourth respondent as best as I could in as much as he attempted to take us through the whole gamut of the Governor’s power or functions under Cap. 202. There is a host of purposes for which a piece of land can be acquired under Land Use Act for instance “grazing purpose” and “agricultural purpose”. But what we are concerned with here is the use to which a parcel of land acquired under section 28 of the Act can be put. What happens to Governor’s power under sections 5, 10 and others discussed in fourth respondent’s brief should be reserved for some other days when they may call for resolution otherwise there may be a muddle.
The relevant Oyo State Notice, at page 68 of Exhibit 1 reads inter alia as follows-
“OYO STATE NOTICE NO. 53.
LAND USE DECREE NO.6
LAND REQUIRED FOR THE SERVICE OF OYO STATE GOVERNMENT
Notice is hereby given that the following parcel of land at Orita Challenge, Lagos Bye Pass in the Ibadan Municipality is required by the Government for public purpose absolutely.”
What then is public purpose for the purposes of the Land Use Act? The answer is as defined under section 50 of the same Act which provides thus-
“Public purposes” includes-
(a) for exclusive government use or for general public use;
(b) for use by anybody corporate directly established by law or by anybody corporate registered under the Companies Decree 1968 as respects which the Government owns shares, stacks or debentures;
(c) for or in connection with sanitary improvements of any kind;
(d) for obtaining control over land contiguous to any part or over land the value of which will be enhanced by the construction of any railway, road or other public work public or convenience about to be undertaken or provided by the Government;
(e) for obtaining control over land required for in connection with development of telecommunications or provision of electricity;
(f) for obtaining control over land required for or in connection with mining purposes;
(g) for obtaining control over land required for or in connection with planned urban or rural development or settlement;
(h) for obtaining control over land required far or in connection with economic, industrial or agricultural development;
(i) for educational and other social services;”
There is no iota of evidence to bring Tawa Investments Nigeria Limited within the scope of any of the public purposes set out above. I am not unaware that the learned trial Judge found, on the evidence before him, that it is a private limited liability company which shows that it is a body corporate registered under Companies Act 1968. But the evidence produced did not go far enough to enable the learned trial judge to found that the Government as respect it owns shares, stocks and debentures.
The respondents are unanimous in their submission that the appellant is disentitled from raising objection to a grant made to fourth respondent in 1987 of a parcel of land acquired about six years earlier. I cannot see logic behind their respective submissions which to me boils down to saying that it should be allowed to make away with its booty merely because it has been cleverer than most by successfully concealing its intentions from 1981 when the property was improperly acquired and 1987 when the real intention was disclosed. The acquiring authority is required to state one or a combination of the public purposes for which the land was being acquired in his notice to the holder of right of occupancy to enable holder or occupier protest the acquisition. This was not done. The appellant can legitimately protest the acquisition if the purpose for which the land was being acquired was not within the confines of definition of public purpose as defined in section 50 of the Act. The acquiring authority failed to state the public purpose for which the property was acquired. He kept it up his sleeve. In this connection Waddington, J., said in the case of Chief Commissioner, Eastern province v. Ononye 17 NLR 142 at 143 thus-
“…the notice merely states “for public purposes” and I find it difficult to understand why the particular public purpose is not stated. When the matter comes into court it has to be admitted that there is no public purpose involved at all; and the impression is liable to be conveyed, no doubt quite erroneously, that there was something ulterior in the failure to make the purpose public.”
Also in the case Queen v. Sykes (1875) 1 QBD where Justices rejected an application for a licence for beer not to be consumed on a premises were not obliged to state their reasons for rejection. They failed to state their grounds. The application for mandamus to compel them to state their reasons was granted. Quain, J., said at page 54 of the report thus-
“The legislature has expressly enacted that such licence as this shall be requested on four grounds only. The justices, by refusing a licence sues silentio, and refusing to state on which of the grounds they acted, might practically evade the enactment altogether, and refuse licences arbitrarily and on other grounds than the four mentioned in the section.”
These two authorities were quoted with approval by Nnaemeka-Agu, J.C.A (as he then was) in the case of Obikoya & Sons Limited v. Governor of Lagos State (1987) 1 NWLR (Pt.50) 385 at 402 a decision of this court.
The appellant is not entitled to speculate or fish for the ground or grounds for acquiring his interest in the property in dispute. The best he would do in the circumstance is to lie patiently in waiting until the acquiring authority manifest its true intention. Before manifestation of the acquiring authority’s intention he is helpless not only himself would be helpless the court to which he has constitutional access to would equally be left in complete helplessness. But when he exposes his flank and demonstrates his intention by granting a right to a purpose not within the purview of the enabling Act the appellant is at liberty to assert his constitutional proprietary right. Indeed it is when he knew of the grant to the fourth respondent that a cause of action arose. He would be acting on a mere suspicion if he had acted prior to the acquisition being diverted to a purpose other than public and to drive him so soon from judgment seat would render his right to fair hearing nugatory. I find and hold that he is entitled to pursue the action in spite of lapse of time because the devil itself does not know the darkest recess of human mind until he manifests it.
The case of A.O. Osho v. Foreign Finance Corporation (1991)4 NWLR (Pt. 184) 157; Chief A.O. Lawson v. Chief A.A. Ajibulu (1991) 6 NWLR (Pt. 195) 44 and Chief Ereku v. The Military Governor, Mid-Western State of Nigeria (1974) 10 S.C 59; (1974) 1 All NLR (Pt.2) 163 are all decisions saying if a property is ostensibly acquired for public purpose and it is subsequently discovered that it has directly or indirectly been diverted to serve private need the acquisition can be vitiated. The acquiring authority cannot rob Peter to pay Paul by divesting one citizen of his interest in a property by vesting same in another: Dzungwe v. Gbishe (Supra). If the acquiring authority can no longer find a public purpose for the land so acquired the only avenue open to it is to deacquire it and let the same revert to the person in whom it was already vested. And in all cases where public purpose failed, the land reverted to original owner: Ajao & Another v. Sole Administrator for Ibadan City Council (1971) 1 NMLR 74.
Since I have found that the notice of acquisition was never served on the party whose interest had vested, revocation order was an exercise in futility and is for that reason a nullity. The appellant’s case is not, therefore, a challenge to the right of the first respondent to grant a statutory right of occupancy to the fourth respondent.
The first respondent purports to grant a statutory right of occupancy to the fourth respondent when the appellant had not been divested of his interest in the land. The first respondent by so doing has not acted in accordance with the provisions of the Act as enjoined by section 47(1) (b). Before he can grant a right of occupancy he must not only act bona fide but also in compliance with the enabling Act failing which he loses his immunity under the law and his authority is liable to challenge because the power given to him is not absolute or carte blanche it is subject to the other provisions of the enabling enactment and the Constitution after all. I answer the second issue in the negative consequently grounds 3 and 4 of the grounds of appeal are successful and I allow them.
In the course of dealing with appellant’s issue (ii) I disposed of fourth respondent’s ground 2 which fails and it is dismissed.
There is no substance in ground 1.03 and the issue arising therefrom does not call for determination in this appeal. The acquiring authority claims to have revoked appellant’s interest in the land in exercise of his power pursuant to the provisions of section 28 of the Land Use Act (supra). An issue can, therefore, not be framed or formulated in respect of Public Land Acquisition Law which is not the enabling law under which the land in dispute was alleged to have been acquired to act otherwise would amount to engagement in sterile academic exercise or drawing red herring across the track.
The first issue raises a very fundamental challenge to the appellant’s action as it goes to the root of the action indeed if it succeeds it puts the whole action into serious jeopardy. But surprisingly enough the learned counsel for appellant filed no respondent’s brief to the respondent’s notice given by fourth respondent.
The learned counsel for fourth respondent referred the court to paragraphs 4, 5 and 6 of the statement of claim and summarised the averments contained therein as follows-
“(a) that he bought the land in dispute from Awojobi Kure family in 1976 under the Deed of Conveyance (Exhibit 5).
(b) that the land was subject of litigation between his vendor and Salawu Kuku & Another in Suit I/134/73 before the High Court from 1973 -1979 when judgment was delivered.
(c) that the case went on appeal in FCA/146/82 which was determined in May, 1982.”
Learned counsel for 4th respondent submits that Awojobi Kure family, the appellant’s vendor, was a litigant party when they sold the land in 1976 during the pendency of the proceedings in the High Court to the appellant. He therefore contends that the law does not allow a party to litigation to alienate the subject matter during the pendency of proceedings. Exhibits 5 which was executed pendente lite on 22nd September, 1976 was therefore a nullity and is void ab initio. He contends further that the outcome of the suit would be immaterial. He referred to the cases of Ogundiana v. Araba (1978) 6-7 S.C. 55 and Osagie v. Oyeyinka (1987) 3 NWLR (Pt.59) 144 at 156-158.
I agree the learned counsel for appellant seems to have supplied wherewithal to nip in the bud his client’s suit. He pleaded that his client purchased the plot in dispute pendente lite as well as pleading the judgments of both the High Court and of this court. Not only did he in his pleading supply the dates of execution of the deed of conveyance and of delivery of judgments in the respective courts but also duly delivered the coup degrace by tendering the three documents which were respectively admitted and marked Exhibits 5, 7 and 8. Undoubtedly the case is made out that the appellant purchased the land pendente lite but does the doctrine inure to the benefit of a party to a subsequent suit who had no interest whatsoever (however remote) in the property at the time appellant acquired the property and the same was transferred to him? I do not think so.
The doctrine of pendente lite nihil innovateur literarily translates to nothing should change during the pendency of an action affects a person who purchases property the subject matter of a litigation not because he is caught by the equitable doctrine of notice but because the law does not allow to litigants and given to them pending the litigation rights in the property in dispute so as to prejudice the opposing party. See Barclays Bank Nigeria Ltd. v. Ashiru (1978) 6-7 S.C 99, 134; (1978) 1 LRN 266 and Ogundiani v. Araba & Another (supra); (1978) 1 LRN 280, 289 and 190; (1978) 6-7 S.C. 55. Where the defendant alienates the property during the pendency of an action and the plaintiff succeeds the result of the judgment will overreach such alienation as in Wilgram v. Buckley (1894) 3 ch. 483, 492 and J. A. Osagie S. O. Oyeyinka & ors. (supra) at 146, (1987)6 S.C. 199, 239; (1987) 3 NWLR (Pt.59) 144. This other ground also fails and is dismissed by me.
Albeit, I observed casually earlier in this judgment that failure or default of the counsel for appellant to respond to the submission and argument in respect of the issues arising from fourth respondent’s notice I had thought that it was his own funeral. However, I have searched for the reaction of the first, second and third respondents to same without any success. Their default has been source of great concern to me. Methink the default is not in them but in the fourth respondent particularly the manner he got up that aspect of his brief.
Respondent’s notice to vary or affirm judgments, in my opinion is not stricto sensus an appeal but it is a requirement of law to be filed within a specified time failing which the respondent may seek extension of time to do so. It is therefore to that extent may be treated like an appeal. If my premise is correct the respondent who gives a notice for a judgment to be affirmed or otherwise should also treat the same like a cross-appeal and file brief on that aspect and serve the same on the appellant and co-respondents who are prosecuting the appeal through other counsel than counsel whose client gave respondent’s notice. The appellant and other respondents would then assume the role of respondents along with appellant to the notice and their respective respondent’s brief thereto. Except this is done co-respondents may be denied opportunity, if our present state of the Rule is anything to go by, to react to the brief in support of respondent’s notice. The appellant under the cloak of appellant’s reply brief may do so.
But what do we have in the circumstance of this appeal? Fourth respondent who had not filed nor sought extension of time within which to file a respondent’s notice talkless of being given extension of time within which to file a respondent notice at the time he filed his respondents brief sought and obtained leave to file fourth respondent’s amended brief simpliciter in substitution for fourth respondent’s brief which contained no argument in respect of respondent’s notice. In any case, it could not have since at that stage of proceedings he had not given such notice.
Meanwhile he had sought and obtained extension of time within which to file respondent’s notice. However in his final brief which is titled fourth respondent’s amended brief he tacked under, argument in support of the respondent’s notice to affirm the judgment on grounds other than those relied upon by the trial Judge. Not only is this approach wrong, it appears, it is also intended to overreach the other parties to the proceedings particularly appellant who apparently had been caught pants down or on a wrong foot. The brief in support of the notice ought to have been filed in form of a cross-appellant’s brief within a specific time or extension of time sought if it is already out of time within which to file same. In its present form it is prejudicial to other parties who may be willing to join issue with him but do not know how to do it. In the absence of evidence to establish either of the alternatives, that is, it was filed within time or extension of time obtained to file same I am firmly of the view that the aspect of fourth respondent’s amended brief styled RESPONDENT’S NOTICE is clearly incompetent accordingly it is struck out. The respondent’s notice is therefore, deemed abandoned and is dismissed for want of prosecution.
The respondent’s notice is bound to fail and it is dismissed intoto on the merit.
The appeal succeeds on grounds 3, 4 and 6 and it is allowed. The order dismissing the appellant’s claims including the order for costs is set aside. Costs if it is already paid should be refunded to the appellant. In its place there is judgment in favour of the appellant for –
(a) A declaration that the compulsory acquisition of the plaintiff’s undeveloped land at Orita-Challenge, Lagos Bye Pass, Ibadan per Oyo State Notice No. 53 dated 25th January 1981 contained in Oyo State of Nigeria Gazette No. 10 in Vol. 7 is null and void the same having been carried out contrary to the provisions of Land Use Act Cap. 202 of the Laws of the Federation of Nigeria 1990.
(b) A declaration that the grant of Statutory Right of Occupancy to Tawa Investments Nigeria Limited which is evidenced by a Certificate of Occupancy dated 25th February, 1987 and registered as No. 20 at page 20 in Volume 2734 at Land Registry, Ibadan is null and void and is hereby set aside
(c) A declaration that appellant is entitled to a grant of statutory right of occupancy in respect of the same parcel of land and should thereby be issued with a statutory certificates of occupancy as evidence thereof.
(d) An Order of Perpetual injunction restraining the defendants, servants or privies from disturbing appellant’s peaceable possession and enjoyment of the land or further deals on the land pursuance of any act or acts arising from or pertaining to the acquisition or grant of statutory right of occupancy to the fourth respondent.
I make order as to costs which is assessed at N500.00 in the court below and N 1,000.00 at this court in favour of appellants against each set of respondents.
Other Citations: (1994)LCN/0219(CA)
