Brossette Manufacturing Nig. Ltd V. M/s Ola Ilemobola Limited & Ors (2007)
LAWGLOBAL HUB Lead Judgment Report
I. KATSINA-ALU, J.S.C
This is an appeal against the decision of the Court of Appeal, Kaduna Division delivered on 14 December, 1999 which allowed the appeal of the plaintiff.
The 1st respondent M/S Ola Ilemobola Co. Ltd. as plaintiff in the trial High Court claimed against the defendants as per paragraph 42 of her amended statement of claim. The said paragraph 42 reads as follows:-
“42. WHEREOF the plaintiff prays this Honourable Court for the following orders:-
(a) That the purported order of revocation of the plaintiff’s right of occupancy dated the 12th day of June, 1986 does not apply to the plaintiff’s right of occupancy with certificate of occupancy No. NC3640 dated the 21st day of September, 1977.
(b)That the purported order of revocation of the plaintiff’s right of occupancy dated the 12th of June, 1986 is null and void and of no effect whatsoever since same took retrospective effect.
(c)That the revocation order is defective in law since same is not in compliance with the provisions of the Land Use Act of 1978.
(d) A declaration that the plaintiff is still the rightful holder of the right of occupancy over the said piece of land known as No. 4 Maichibi Close and covered by a certificate of occupancy No. 3640 and dated the 21st day of September, 1977.
(e)The plaintiff also claim against the defendants jointly and/or severally as follows:-
(i) The sum of N50, 000.000 (Fifty thousand Naira) only being expenses incurred in clearing and fencing the said plot of land known as No.4 Maichibi Close, Kaduna South as special damages.
(ii)The plaintiff further claim the sum of N1.5 million (One million and five hundred thousand naira) only as general damages and loss of use of the said piece or parcel of land.”The plaintiff essentially brought this action challenging the revocation of the statutory right of occupancy over a plot of land known as Plot, No.4, Kaduna South, Maichibi Close. Industrial Estate Kaduna. At the close of pleadings, parties called evidence and addressed the trial court. In the course of his address, learned counsel for plaintiff abandoned the prayer for damages.
In his judgment delivered on 3 November, 1993, the learned trial Judge held that the revocation order was valid and consequently dismissed the plaintiff’s action.
The plaintiff appealed against the dismissal of his claim to the Court of Appeal. The plaintiff’s appeal was allowed.
Being dissatisfied with the judgment of the Court of Appeal, the 4th defendant Brossette Manufacturing Nigeria Ltd. has appealed to this court.
The facts which led to the institution of this action are short. The plaintiff was granted the right of occupancy over Plot No.4 Maichibi Close on 21 September 1977. Sometime in the year 1981 it extended into a Lease Agreement with the 4th defendant for a ten year period. The consideration was N18,000.00 per annum. By the plaintiff’s admission, it was paid the sum of N180,000.00 for the ten year period. The plaintiff, however, neglected to apply to the Governor for consent to lease. It nonetheless put the 4th defendant into possession of the property. The 4th defendant complained to the Governor of Kaduna-State. After exchange of correspondence, the Governor having satisfied himself that the refusal of the plaintiff to apply for requisite consent was willful, revoked the right of occupancy granted to the plaintiff.
Based on the grounds of appeal filed, the appellant has raised two issues for determination on page 2 of the appellant’s brief of argument. These are:-
(1) Whether the 1st respondent had not admitted the fact that he sub-leased the property in dispute covered by certificate of occupancy No. 3640 and received consideration there from in the sum of N 180,000.00 without the requisite consent of the Governor of Kaduna state first sought and obtained – Ground 1.
(2) Whether having regard to the facts contained in printed record before the lower court the learned Justices of the Court of Appeal were not in grave error in invalidating the revocation order of the interest of the 1st respondent over the land in dispute –
Ground 2
For its part, the 1st respondent formulated a lone issue for determination which reads:-
“Whether the Court of Appeal was right in its application of section 22(1) & (2) of the Land Use Act to the facts of this case having regard to the decision of the Supreme Court in Awojugbagbe Light Ind. Ltd. v. Chinukwe (1995) 4 NWLR (Pt 390) 379 and other Supreme Court cases on the content of revocation notice.”
The all important issue for determination is whether the 1st respondent as plaintiff and holder of the statutory right of occupancy over the land in question had alienated his right of occupancy or part thereof by sublease without the consent of the Governor first had and obtained. In order to satisfactorily consider this issue, recourse must be had to the pleadings and the evidence before the court.
In paragraph 42 of the amended statement of claim the plaintiff claimed as follows:-
“42. WHERE OF the’ plaintiff pray this Honourable Court for the following orders:-
(a) That the purported order of revocation of the plaintiff’s right of occupancy dated the 12th day of June, 1986 does not apply to the plaintiff’s right of occupancy with certificate of occupancy No. NC 3640 and dated the 2151 day of September, 1977.
(b) That the purported order of revocation of the plaintiff’s right of occupancy dated the 12th day of June, 1986 is null and void and of no effect whatsoever since same took retrospective effect.
(c) That the revocation order is defective in law since same is not in compliance with the provision of the Land Use Act of 1978.
(d) A declaration that the plaintiff is still the rightful holder of the right of occupancy over the said piece of land known as No.4 Maichibi Close and covered by a certificate of occupancy No. NC 3640 and dated the 21st day of September, 1977.
(e) The plaintiff also claim against the defendants jointly and or severally as follows:-
(i) The sum of N50,000.00 (fifty thousand naira) only being expenses incurred in A clearing and fencing the said plot of land known as No.4 Maichibi Close, Kaduna South as special damages.
(ii) The plaintiff further claim the sum of N1.5 million (One million and five hundred thousand naira) only as general damages and loss of use of the said piece or parcel of land.”
Earlier in the pleadings, the plaintiff pleaded in paragraphs 12, 13, 14, 15, 16,20,21,23,24 and 25 as follows:-
“12. That based on the agreement reached between the plaintiff and the 4th defendant, a sublease agreement was drawn up between the plaintiff and the 4th defendant for the proposed sublease of the plaintiff plot of land. And the said sublease agreement is hereby pleaded and will be founded and relied upon at the hearing of this suit.
- That after the preparation of the sublease agreement, it could not be registered as there was embargo in the Kaduna State Land Registry by the government in power in Kaduna State.
- That in order not to contravene the terms of the grant, plaintiff approached one Alhaji A. O. Ja’afaru the Chief Land Officer who advised that the sublease agreement could be signed by the parties but not to be dated pending when embargo will be lifted. And the plaintiff hereby pleads copy of their letter dated the 29th of March, 1985 and will find and rely on same at the hearing of this suit.
- That on the premises of the averment contained in paragraph 12 of this statement of claim, the plaintiff and the 4th defendant’s Company agreed into signing the sublease agreement without inserting any effective date its commencement as manifest in the sublease agreement hereby pleaded.
- That the plaintiff after signing the sub-lease agreement and not been able to register same at the Land Registry due to the embargo did not notify the 4th defendant of the embargo.
- That while the plaintiff’s Managing Director/Chairman was in his home-town undergoing treatment the 4th defendant on lifting the embargo took it upon themselves to have the sublease agreement perfected as manifest in the 4th defendant’s letter with Ref. No. JAO/10/117/82-A and dated the 21st day of October, 1982 and same is hereby pleaded and will be founded and relied upon at the hearing of this suit.
- That the 4th defendant on the 9th day of December, 1982 did write another letter to their solicitors requesting them to liaise with the plaintiff to ensure that the sublease agreement was duly registered and was given the free hand to have same registered, that the said letter dated the 9th day of December, 1982 is hereby pleaded and will be found and relied upon at the hearing of this suit.
- That at the time the 4th defendant’s Company wrote the two letters referred to in paragraphs 20 and 21 of this statement of claim, the proposed sub-lease was yet to take effect same was not operative; and consequently could not be registered.
- That the 4th defendant’s Company on the 10th day of November, 1982 did write another letter to their solicitors reminding them of the registration of the sublease agreement, that the said letter with Ref. No.JAO/BA/666/82-A and dated 10th November, 1982 is hereby pleaded and will be relied upon at the hearing of this action.
- That the 4th defendant not being able to register the said sublease agreement as same was yet to become operational due to lack of date of commencement of the sub-lease demanded the original copy of the certificate of occupancy from the plaintiff contrary to the proposed sublease agreement.
- That the plaintiff is refusing to hand over the certificate of occupancy to the 4th defendant’s company who then needed same to raise loan from their bankers then reported the plaintiff to the 3rd defendant complaining ( illegal sublease against the plaintiff: ..
In its re-action the 4th defendant in paragraph 14 of its amended statement of defence averred as follows:-
“14. In further answer to paragraphs 21, 22, 23 and 24 of the statement of claim, the 4th defendant will contend at the hearing of this suit as follows:-
(a) That the 4th defendant never assumed responsibility for registration of the sublease referred to in the statement of claim.
(b) That when its interest became adversely affected by the conduct of the plaintiff, the 4th defendant instructed its solicitors Messrs Aliyu Umaru & Partners to communicate directly with the plaintiff. At the time of hearing of this suit, the 4th defendant will rely on letter No. AUP/BRO/VOL/l/34 dated 29th October, 1984 written to the plaintiff by the 4th defendant’s Solicitors and for the purpose of this, the plaintiff is hereby given notice to produce the original copy of the said letter.
(c) That the plaintiff did not even bother to reply the letter pleaded in paragraph 14(b) of this statement of defence.
(d) That consequent upon the plaintiffs refusal to comply with the terms contained in the letter referred to in paragraph 14(b) of this statement of defence, the 4th defendant’s Solicitors wrote a letter No. AUP/BRO/VOL. 1/84 dated 11th March, 1985 to the 3rd defendants in which the 4th defendant sought the intervention of the Kaduna State Government in the matter. At the hearing of this suit the 4th defendant will rely on the said letter.”
What has emerged clearly from the pleadings cited above is that the parties had entered into an agreement to sublease which was to be presented to the Governor for his necessary consent. It is common ground that the agreement did not bear any endorsement of the Governor’s consent. I must stress that the agreement was not registered and delivered. What then was the evidence before the trial court PW1 was Alhaji Muraina Ilemobola, Director of the plaintiff Company. In his evidence-in-chief he said inter alia thus:-
“I know Brossette Nig. Ltd. I know a company called Automobile and Engineering Industries Nigeria Ltd. I know that Automobile and Engineering Industries Nigeria Ltd. is the new name of Brossette Manufacturing Nigeria Ltd. M. Ola llemobola Enterprises Nigeria Ltd. had an arrangement with Automobile and Engineering Nigeria Limited at a time. The arrangement was in writing, but it was not dated….
The document was not dated because we had not yet obtained the approval of the Governor…..”
Under cross-examination this witness testified thus:-
“Automobile and Engineering Industries Ltd, is the same company with Brossette Nigeria Limited. I collected N 180,000.00 from Brossette Nigeria Ltd. With the hope that after obtaining the Governor’s consent, I will give lease 3 of the land to them. I did not intend to lease the whole land to the Company i.e. Brossette Nigeria Limited. At that time there was an embargo on land transactions during the tenure of Governor Balarabe Musa…”
It will be seen clearly that the plaintiff led evidence in line with its pleadings. That there were negotiations between the plaintiff and the 4th defendant which ended with a written agreement for presentation to the Governor for his necessary consent. That is to say that the sublease agreement was understood and entered into subject to the consent of the Governor.
It was against this state of affairs that the Governor of Kaduna State revoked the plaintiff’s certificate of occupancy over No.4 Maichibi Close, Southern Kaduna. The revocation notice was admitted in evidence as exhibit 4(a) which reads as follows:-
“AND WHEREAS the said M/S ala Ilemoboia Trading Company illegally subleased their title to Brossette Manufacturing Nig. Limited without the formal consent of the Commissioner for Lands thereby contravening section 28(1) of the Land tenure Law, Cap. 59 and Section 22 of the Land Use Act of 1978:
AND WHEREAS: I intend to revoke this title for breach of contract and contravention of both the Land Tenure Law Chapter 59 and Land. Use Act of 1978 and as recommended by the Kaduna State.Land Use and Allocation Committee. NOW THEREFORE in exercise of the powers conferred upon me by Section 28(1) (2) of the Land Use Act of 1978 I hereby revoke with effect from the 10th day of March, 1981 the said right of occupancy of the said M. Ola Ilemobola Trading Company Ltd. over that piece of land at No. 4 Maichibi Close, Kaduna South on the plan in the schedule to the said certificate of occupancy numbered NC 3460.
Given under my hand this
12 day of 6 1986
The Governor
Kaduna State of Nigeria. ”
It will be seen clearly that the only ground for the revocation contained in the notice of revocation set out above is the sublease of the property to a third party without the consent of the Governor. It was said that the plaintiff’s action was in contravention of section 22(1) of Land Use Act 1978. The law in this regard is now settled. Section 22(1) of the Land Use Act 1978 reads:-
“22(1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever, without the consent of the Governor first had and obtained.”
Section 22(1) quoted above is clear and unambiguous. The section clearly prohibits the holder of a statutory right of occupancy from alienating his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise without the consent of the Governor first had and obtained. But the holder of a statutory right of occupancy is certainly not prohibited, by section 22(1) of the Land Use Act, 1978 from entering into some form of negotiation which may end with a written agreement for presentation to the Governor for his necessary consent. I think this is good sense because the Governor when giving his consent may require the holder of the statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage sublease in order that his consent under subsection (1) may be signified by endorsement thereto: See Awojugbagbe Light Ind Ltd. v. Chinukwe (1995) 4 NWLR (Pt.390) 379 where section 22(1) of the Land Use Act was exhaustively dealt with. What is more, sections 22(2) and 26 presupposed the existence of an agreement of a sort before the Governor’s consent. Sections 22(2) and 26 of the Land Use Act provide as follows:-
“22(2) The Governor when giving his consent to an assignment, mortgage or sublease may require the holder of a statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage or sub-lease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under subsection (1) of this section may be signified by endorsement thereon.
- Any transactions or any instrument which purpose to confer on or vest in any person any interest or light over land other than in accordance with the provisions of this. Act shall be null and void.” Exhibit 3 in the present case is the agreement to sublease. It was not dated. It was not delivered. Although it was admitted in evidence, the learned trial Judge expunged it in the course of his judgment. There was therefore no agreement as envisaged by sections 22(2) and 26.
The learned trial Judge fell back upon oral evidence of the documentary evidence which he had rejected. He said:-
“The provision of section 15 of the Land Registration Law and 21(4) of the Stamp Duties Law make exhibit 3 inadmissible in evidence. Exhibit 3 ought not to have been pleaded or tendered in evidence and its admissibility by the court was wrong. Accordingly therefore exhibit 3 is hereby expunged from the records. The abundant oral evidence before the Court that the plaintiff entered into a lease agreement with the 4th defendant, without the consent of the 1st defendant and without same being stamped and registered is however admissible evidence and same remains part of the records of the court.” The learned trial Judge was clearly in error. This court in Olaloye v.Balogun (1990) 5 NWLR (Pt.148)24 said that:-
‘This court in Abiodun v. Adehim (1962) 1 All NLR 550 at 555 relying on section 131 (1) of the evidence Act has said there is a document evidencing sale of land, oral evidence of the sale would be excluded and the question as to what land was sold has been settled by reference to the document. So in the instant case oral evidence as to the land sold by each of exhibits K, K1 – K3 is inadmissible.”
The agreement, exhibit 3, was prepared in anticipation of obtaining Governor’s consent. In his evidence the plaintiff said:-
“the document was not dated because we had not yet obtained the approval of the Governor.”
The legal consequence of this is that the agreement was inchoate or at best a mere escrow till the consent of the Governor was obtained. What this means is this. That agreement did not and could not transfer title in land. See: Anambra State Housing Development Corporation v.Emekwue (1996) 1 SCNJ 98 at 132-133; (1996) 1 NWLR (Pt. 426) 505 where this court held as follows:-
“Being a mere escrow, therefore, the Deed of Lease passed no interest in the property to the defendant. It follows therefore that whatever view one takes of exhibit they did not pass any interest in the property here concerned to the defendant and he consequently acquired no legal title to the property.”
The Court of Appeal in the course of its judgment held as follows:
“Section 22 of the Land Use Act, Cap. 202 of the Laws of Federation of Nigeria, 1990 does not render null and void or illegal a purported sublease, such an agreement would only be dormant or inchoate and creates no legal relationship until the requisite consent is sought and obtained from the appropriate authority. That this was the intention of the appellant was quite manifest from his testimony before the learned trial Judge. Section 22(2) of the Land Use Act envisages a situation whereby some form of agreement would be presented to the Governor to which he would consent or with-hold his consent. It is not likely to be the intention of the maker of the enactment for the Governor to accede to a mere intention of the parties. I think some concrete terms should be agreed to by the patties for presentation to the Governor. In my respectful opinion what the appellant and fourth respondent did in exhibit 3 substantial compliance with provisions of section 22 of the Land Use Act.”
One can hardly fault the views expressed above.
I agree entirely with the Court of Appeal. In the result I find that there was nothing contrary to law in entering into written agreement for the sub-lease before the Governor’s consent was obtained.
In conclusion, this appeal is devoid of merit. Accordingly I dismiss it and affirm the judgment of the Court of Appeal.
The 1st respondent M/S Ola Ilemobola Co. Ltd. is entitled to costs assessed at N 10,000.00.
SC.226/2001
