C.S.S. Bookshops Ltd V. The Registered Trustees Of Muslim Community In Rivers State & Ors (2006)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division which on 26-4-2001, allowed an appeal by the 1st defendant from the decision of Manuel, J. of the High Court of Justice of Rivers State sitting at Port Harcourt delivered on 3-3-1997. The Court of Appeal in its decision allowed the appeal, set aside the judgment of the trial court and dismissed the plaintiffs’ claim. The appellants which were the plaintiffs at the trial High Court had sued the respondents and claimed against them as defendants in paragraph 27 of their amended statement of claim the following reliefs -27. The 1st defendant (sic) have persisted and intend unless restrained by the Honourable Court to repeat the acts complained of at paragraph 26 above, and the plaintiff’s claim:-
(i) A declaration that the purported publication in the Rivers State Government’s Notice No. 235 of 27th April, 1985, purportedly revoking the alleged rights of occupancy of the plaintiffs in and over Plots A-F Block 77 in Port Harcourt Township Layout does not constitute a valid notice to the plaintiffs as envisaged by the Land Use Act, 1978 and consequently the said revocation is illegal, null and void and of no effect whatsoever and does not extinguish the rights of occupancy of the plaintiffs.
(ii) A declaration that the purported revocation of the right of occupancy of the plaintiffs in and over the said Plots A-F in Block 77 Port Harcourt Township Layout aforesaid is null and void and of no effect and the said notices thereof are null and void and of no effect in that the said revocation and the notices thereof are:-
(a) Not for the public purposes envisaged by the Land Use Act, 1978.
(b) Not for public purpose stated in said notice.
(c) Ultra vires
(d) Capricious and
(e) An abuse of power.
(iii) A declaration that the purported revocation of the alleged right of occupancy in and over Plots A-F Block 77 in Port Harcourt Township Layout contained in Government Notice No. 235 dated 27th April, 1985 and published in Official Gazette of Rivers State Government No.27 Volume 17 is unconstitutional, null and void and of no effect in that it is contrary to the fundamental rights of the plaintiffs who were not heard or given opportunity to be heard before the purported revocation.
(iv) A declaration that the notices aforesaid are not in accordance with the law.
(v) A declaration that the grant of certificate of occupancy to the 1st defendant by the 2nd defendant is inoperative, illegal, null and void and of no effect in that the said grant of certificate of occupancy:
(a) Is ultra vires
(b) Is not for public purpose envisaged by the Land Use Act, 1978
(c) Is not for public purpose as stated in the Government Notice No. 235 of 27th April, 1985 and published in Rivers State Government Gazette No. 27 Volume 17.
(vi) An order setting aside the said grant of Certificate of Occupancy by the 2nd defendant to the 1st defendant.
(vii) A declaration that the plaintiffs are the persons in whom Plots A-F Block 77 Port Harcourt Township Layout were vested immediately before the commencement of the Land Use Act, 1978 and consequently are deemed to be and still are Holders of Plots A-F Block 77 Port Harcourt Layout as if a statutory right of occupancy had been issued to them by the Governor of Rivers State.
(viii) An injunction to restrain the defendants, their servants, agents and functionaries from unlawfully interfering in any way whatsoever with the plaintiffs’ occupation and enjoyment of the said properties and/or ejecting or attempting to eject the plaintiff, its servants, agents and workers from the said properties.
Before the case came up for hearing at the trial High Court, pleadings were duly filed, exchanged and subsequently amended by the parties. In the course of the hearing, the plaintiffs called two witnesses who testified in support of their claims while the 1st defendant called only one witness. Although the 2nd, 3rd and 4th defendants also filed a joint statement of defence which was later amended, no evidence was called to support the facts pleaded therein.
As can be seen from the reliefs claimed by the plaintiffs, the subject maters of dispute between the parties are Plots A-F Block 77 in Port Harcourt Township Layout. The facts of this case as presented the parties through their pleadings and witnesses being mainly supported by documents, are not in dispute between the parties. What was in dispute was the application of the law to the facts.
The rights of the plaintiffs to the property in dispute originated from a lease dated 27 -1-1918 signed by the then Governor General of Nigeria, between the Government of Nigeria and the Dempster and Company Limited, by which the property known as Plots A-F Block 77 in Port Harcourt Township Layout was leased out by the Nigerian Government to the Elder Dempster and Company Limited for a term of 75 years commencing from 27th day of January 1918. On 10-6-1936, the Elder Dempster and Company Limited assigned the same property to E. D. Realisation Company Limited for all the residue of the term of years then unexpired and the same was duly registered. Again on 25-1-1940, E. D. Realisation Company Limited assigned the same property to the Church Missionary Trust Association Limited for all the residue of the term of years then unexpired and the same was duly registered in the Land Registry Later, on 28-1-1965, by another Deed of Assignment, the Church Missionary Trust Association Limited assigned the same property to the plaintiffs now appellants, C.S.S. Bookshops Limited for all the residue of the terms of years then unexpired and the same right was duly registered. In the same year 1965 when the lease was assigned to the plaintiffs, the leasehold had an unexpired term of 28 years and there was a building standing on the property used residential purposes by the staff of the plaintiffs. However building was destroyed during the civil war in the area between 1967 and 1970. The plaintiffs however continued to enjoy this leasehold interest on the property in dispute from 1965 up to 29-3-1978 when the Land Use Act came into operation. The plaintiffs continue to enjoy the interest in the property in dispute which devolved to it with the commencement of the Land Use Act until 27-4-1985, when by a notice published in the Rivers State Government Gazette No. 27 Volume 17, the Military Governor of Rivers State of Nigeria, the 2nd defendant, purported to have revoked the right of occupancy of the plaintiffs in the property in dispute without affording the plain the opportunity of being heard. Subsequently, the same property dispute was granted to the 1st defendant by the 2nd defendant under a certificate of occupancy in exercise of powers under the Land Use Act. Aggrieved by the action of the 1st defendant in revoking their right of occupancy, the plaintiffs filed this action at the trial Port Harcourt High Court of justice challenging the alleged revocation on the grounds among others that the revocation was illegal, null and void and of no effect whatsoever and did not extinguish the right of occupancy of the plaintiffs as the 1st defendant’s action in the revocation was contrary to provisions of the Constitution and the Land Use Act.
The 1st defendant on its part asserted that the action of the 2nd defendant in revoking the plaintiffs’ right of occupancy was quite in order under the law and so also was the grant of the same property in dispute to it by the 2nd defendant taking into consideration the fact that the 1st defendant had been using the property in dispute for special prayers for many years. The 1st defendant therefore merely regarded the action of the 2nd defendant in issuing a certificate of occupancy dated 27-4-1985 in respect of the land in dispute to it, as only confirming the right of the 1st defendant over the property in dispute which it had been using before the coming into force of the Land Use Act in 1978.
At the end of the hearing of the case in the dispute between the parties in the course of which two witnesses were called by the plaintiffs while only one witness was called the 1st defendant, a number of documents were tendered and received in evidence. The trial court after hearing the addresses of the learned counsel for the parties came to the conclusion that the plaintiffs had succeeded in proving their case against the defendants particularly the 2nd – 4th defendants who offered no defence to the action, and granted all the reliefs claimed by the plaintiffs. Apparently, the 2nd, 3rd and 4th defendants had no quarrel at all with this judgment against them and therefore did not appeal against it. The 1st defendant however whose interest was at stake over the property in dispute, has appealed against the judgment to the Court of Appeal, Port Harcourt Division, which after hearing the parties comprising the plaintiffs and the 1st defendant alone as active participants since the 2nd, 3rd and 4th defendants did not participate in that appeal, allowed the appeal, set aside the judgment of the trial High Court and dismissed all the plaintiffs’ claims. The present appeal now in this court is by the plaintiffs which were dissatisfied with the decision of the Court of Appeal dismissing their claims. Henceforth in this judgment, the parties shall be referred to as the appellants in place of the plaintiffs and the respondents instead of defendants.
In their notice of appeal dated 30-4-2001 and filed at the Registry of the court below on 3-5-2001, the appellants challenged the decision of the Court of Appeal delivered on 26-4-2001 against them in 14 grounds of appeal from which the following five issues were formulated –
- Whether the appellants were persons in whom the land was vested immediately before the commencement of the Land Use Act, 1978, entitling them to be deemed holders of statutory right of occupancy; and if the answer is in the positive whether the trial court adequately evaluated the evidence.
- Was the revocation of the right of occupancy of the appellants in accordance with Land Use Act, 1978; and did the trial court adequately evaluate the evidence.
- Was the grant of the right of occupancy to the 1st respondent by the 2nd respondent in accordance with the Land Use Act, 1978.
- Had the 1st respondent any locus standi in the court below.
- Was the judgment supported by the weight of evidence.
In the respondents’ brief filed by the 1st respondent, its learned counsel saw only two issues arising for determination from the 14 grounds of appeal filed by the appellants. The issues are
- Whether the land was vested in the appellant immediately before the commencement of the Land Use Act so as to be deemed holder of a statutory right of occupancy.
- Whether the court below was right in holding that the trial court ought not to have granted the declarations sought in the circumstances of the case.
Although the 1st respondent’s brief of argument contains arguments on preliminary objection raised regarding the competence or otherwise of some of the grounds of appeal filed by the appellants, no notice of the preliminary objection to the hearing of the appeal was filed by the 1st respondent as required by Order 2 rule 9 of the Rules of this court within the period of three days prescribed. All the same since the appellants also have responded fully to the objections in the reply brief of argument, I shall deal with the preliminary objection first.
Without quoting grounds 1 and 3 of the grounds of appeal to show how these grounds do not relate the particulars thereof, it was argued by the 1st respondent’s counsel that the two grounds are incompetent relying on the case of Sala v. Sankole (1986) 3) NWLR (Pt.27) 141. On going through the two grounds of appeal together with their particulars, there is nothing in the framing of these grounds of appeal that may be regarded as having affected the competence of the grounds which are quite in order.
Grounds 4 and 14 on the other hand were described as grounds raising issues of mixed law and fact which required the leave of the court below or of this court before filing as prescribed by section 233(3) of the 1999 Constitution. Ground 4 is complaining on the finding of the court below that the land in dispute was undeveloped.
The evidence on record is that while the appellants were saying that the land was developed, the respondents were claiming that it was not. Therefore since the ground of appeal is not predicated on accepted, undisputed or admitted facts between the parties, the ground at best is one of mixed law and fact. Ground 14 on the other hand is an omnibus ground whose status as a ground of fact alone is obvious. Therefore, the two grounds of appeal 4 and 14 being grounds of mixed law and fact and fact alone, could only have been filed with the leave of the court below or of this court as required by section 233(3) of the 1999 Constitution. In the absence of the leave sought and granted before filing the two grounds, the grounds remain incompetent and are accordingly hereby struck out. Consequently, issue No.5 in the appellants’ brief arising from these grounds of
appeal is hereby struck out. See Ferodo Ltd. v. Ibeto Industries Ltd. (2004) 5 NWLR (Pt.866) 317 at 344.
The next grounds of appeal attacked by the 1st respondent are grounds 5 and 13 on which it was alleged no issues for determination have been distilled. Looking at ground 5, it complained against the failure of the court below to evaluate the evidence adduced on the development or otherwise of the property in dispute. This ground of appeal has been clearly covered under issues two and three in the appellants’ brief which touched on evaluation of evidence. Ground 13 on the other hand which complained of the error of the court below in inferring from evidence that the appellants have lost interest in the property in dispute, is in my view adequately covered by the appellants’ issue No. one which deals with the vested rights of the appellants over the property in dispute. Accordingly, I hold that grounds 5 and 13 of the appellants’ grounds of appeal are competent as they are covered by issues one, two and three in the appellants’ brief.
According to the 1st respondent, ground 6 of the appellants’ grounds of appeal relates to an issue not decided by the court below. As that ground of appeal contains a quotation of what the court below said on the question of locus standi which the appellants are challenging in this appeal, the ground cannot be said to have not risen from the decision of the court below. Ground 6 is quite competent and I so hold.
Next for consideration is whether grounds 7,8,9,10 and 12 of the appellants’ grounds of appeal are incompetent on the ground that they do not arise from the decision of the Court of Appeal being appealed against as claimed by the 1st respondent in the preliminary objection. There is hardly any difference in my view between the ground upon which the competence of ground 6 was challenged and the ground upon which these remaining five grounds are being challenged. To say that a ground of appeal does not relate to an issue decided by the court below is virtually the same as imputing that grounds of appeal do not arise from the decision of the same court. In any case, taking into consideration that the trial High Court in its judgment granted all the reliefs sought by the appellants in their claim against the respondents which the court below in its judgment on appeal against the decision of the trial court, allowed the appeal of the respondents, set aside the judgment of the trial court in favour of the appellants and dismissed the appellants’ claim containing all the reliefs granted by the trial court, grounds 7, 8,9, 10 and 12 of the grounds of appeal which complained in the main against the dismissal of the appellants claim against the respondent, certainly arise from the decision of the court below and are therefore competent. This
disposes the preliminary objection.
When this appeal came up for hearing in this court on 30-1-2006, only the appellants and the 1st respondent filed their respective briefs of argument. The other parties comprising of the 2nd, 3rd and 4th respondents were absent and not represented by counsel although they were duly served. Inspite of the fact that these set of respondents were duly served with the appellants’ and the 1st respondent’s brief of argument, no respondents’ brief of argument was filed on their behalf before the appeal came up for hearing. As a result of this situation, this court acted in accordance with the provisions of Order 16 rule 8(7) of the Supreme Court Rules, 1985 to deem the appeal argued on the appellants’ and the 1st respondent’s brief of argument only. This rule states:-
(7) When an appeal is called, and it is discovered that a brief has been filed for only one of the parties and neither of the parties concerned nor their legal practitioners appear to present oral argument, the appeal shall be regarded as having been argued on that brief.
See also the case of Franchal Nigeria Ltd. v. Nigeria Arab Bank Ltd. (2000) 9 NWLR (Pt.671) 1 at 10 where Uwais, Chief Justice of Nigeria explained the position of the law. The present appeal was therefore heard on the appellants’ and the 1st respondent’s brief of argument alone. The action of the 2nd, 3rd and 4th respondents in this case means they are no longer prepared to play the role of co-respondents with the 1st respondent in this appeal which is to demonstrate if appropriate, that no error was committed by the court below in the judgment and to defend, within the limits of the law, the decision appealed against. See Ogunye v. The State (1999) 5 NWLR (Pt. 604) 548 at 563 where Iguh, JSC outlined the role of a respondent in an appeal. I think this action on the part of these set of respondents who were the key players in the dispute between the appellants and the 1st respondent in this appeal, having declined to actively participate in the appeal at the court below where the 1st respondent was the appellant, is certainly taking the right path in declining to play the same role in this court where the appellants who were the successful parties at the trial court are now the appellants. In other words these respondents having thrown their weight behind the 1st respondent in this appeal in the struggle to defend the action at the trial court but failed to achieve the desired result, their decision to play the role of onlookers in subsequent combat between the two parties may not be out of place having regard to the nature of the dispute and parties involved.
In the 1st respondent’s brief of argument, an erroneous view was held that having regard to the fact that out of the three issues raised by the parties in the appeal at the court below which determined the appeal on two of the three issues alone, only two issues could arise for determination in the appeal in this court. This is not the correct position in law. Issues arising for determination of an appeal are determined by the number of competent grounds of appeal filed by the appellant challenging the decision of the court being appealed against. The law is that neither a party nor a court is permitted to raise or deal with any issue which is not related to or does not arise from any ground or grounds of appeal. See Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514; Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188 and Mark v. Eke (2004) 5 NWLR (Pt.865) 54 at 82. Therefore since the two issues formulated in the 1st respondent’s brief have the backing of the grounds of appeal filed by the appellants, they are relevant for the determination of this appeal. The remaining four issues in the appellants’ brief are equally potent having regard to the grounds of appeal in their support. I shall determine the appeal on the issues as identified in the appellants’ brief.
The first issue for determination is whether the appellants were persons in whom the land or property in dispute was vested immediately before the commencement of the Land Use Act in March 1978 entitling them to be deemed holders of statutory right of occupancy. It was submitted for the appellants on the authority of the decision of this court in Nkwocha v. Governor of Anambra State & Ors. (1984) 6 S.C. 362 at 403; (1984) 1 SCNLR 634, that under the Land Use Act, the only right cognizable is the right of occupancy.
According to the appellants, on the evidence adduced at the trial High Court particularly the contents of exhibit B’ the deed of assignment in 1965, the land or property in dispute known as and called Plots 1-6 (A-F) in Block 77, Port Harcourt, Township Rivers State, was assigned by the Church Missionary Association Limited to the Church Missionary Society (Nigeria) Bookshops, subsequently known as C.S.S. Bookshops Limited who are the appellants. The root of title of the appellants in Exhibit B’, argued the learned counsel, was traced in evidence to exhibits C’, D’, and E’ which are leasehold titles deeds which originated from the Government of Nigeria, pointing out that from the oral and documentary evidence, the appellants as plaintiffs had established that they were persons in whom the land known as and called Plots 1-6 (A-F) in Block 77, Port Harcourt, Township Rivers State was vested immediately before the commencement of the Land Use Act in 1978 thereby entitling the appellants to be deemed holders of statutory right of occupancy.
For the 1st respondent however it was contended that the appellants were not and cannot be deemed holders of a statutory right of occupancy because of the nature of the appellants’ interest before the promulgation of the Land Use Act; that the appellants being lessees of the land which was State land, will remain on the land in accordance with the terms of the lease not withstanding the promulgation of the Land Use Act, learned counsel further submitted that the appellants being in occupation of the Land in dispute under a lease cannot be regarded as a holder of right of occupancy but as an occupier of the Land under the Land Use Act which defines who is a holder of right of occupancy and who is a mere occupier of land. The case of Abioye v. Yakubu (1991) 6 SCNJ 69, (1991) 5 NWLR (Pt. 190) 130 was relied upon in support of the stand of the 1st respondent.
It is not at all in dispute between the parties in this appeal that following the Deed of Assignment of State Land by indenture of a lease dated 27-1-1918 and subsequent assignments of the same up to 1965, the appellants had acquired and were holders of a State to lease title over the land or property in dispute up to the date of 29-3-1978 when the Land Use Act came into force. In other words the evidence led by the appellants and even supported by the evidence of the witness of the 1st respondent who agreed that the land in dispute originally belong to the appellants, clearly established that the land in dispute was vested in the appellants immediately before the commencement of the Land Use Act. Consequently, the right of the appellants was protected under section 34 of the Land Use Act which in sub-sections (1), (2) and (5) state as follows –
34(1) The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act.
(2) 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 this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act.
(5) When on the commencement of this Act the land is undeveloped, then –
(a) One plot or portion of the land not exceeding half of one hectare in area shall subject to subsection (6) of this section, continue to be held by the person in whom the land was so vested as if the holder of the land was the holder of a statutory right of occupancy granted by the Governor in respect of the plot or portion as aforesaid under this Act.
Applying the provisions of the Act quoted above to the undisputed facts of this case that the land in dispute located in the Urban Area of Port Harcourt Township was vested in the appellants immediately before the commencement of the Act in 1978, the same land in dispute shall continue to be held by the appellants as if the appellants were holders of statutory right of occupancy issued by the Governor under the Act. See Ogunleye v. Oni (1990) 2 NWLR (Pt.l35) 745 at 780; Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) 116 at 164 and Ilolla v. Idakwo (2003) 11 NWLR (Pt.830) 53 at 83. In view of the location of the land in dispute in the Urban Area of Port Harcourt Township, the argument of the 1st respondent that the appellants were only occupiers of the land in dispute under the Act immediately before the commencement of the Land Use Act is baseless because under the Act, the term occupier means a person lawfully occupying land under customary law. See Ogunleye v. Oni (supra) at page 783. The case of Abioye v. Yakubu (1991) 6 SCNJ 69, (1991) 5 NWLR (Pt. 190) 130 relied upon by the 1st respondent in which the land in dispute was held under customary law is not applicable to the present case which involves a dispute over plots of land in Port Harcourt Township Layout, which are the subject of a right of occupancy under the Land Use Act. I resolve this issue in favour of the appellants.
Next issue for determination is whether the revocation of the right of occupancy of the appellants was in accordance with the Land Use Act. The determination of this issue will also take care of the next issue No.3 which is whether the grant of a right of occupancy to the 1st respondent by the 2nd respondent was in accordance with the Land Use Act. Learned counsel to the appellants observed that the 2nd respondent who revoked the appellants’ right of occupancy and granted a certificate of occupancy to the 1st respondent did not appeal against the judgment of the trial court and at the hearing did not call any witness. Learned counsel stressed that in support of their case at the trial court, the appellants challenged the validity of the revocation of their right of occupancy on a number of grounds including that –
(1) the notice of revocation in the Gazette was null and void being contrary to the provisions of Land Use Act which prescribed personal service;
(2) the revocation was not for the public purpose as envisaged by the Land Use Act;
(3) the revocation was not for the public purpose stated in the said notice; and
(4) the appellants were not heard before the revocation.
Learned counsel furthher argued that the appellants led unshaken, uncontradicted and virtually unchallenged evidence in support of all these grounds and that by virtue of the decisions in Aweni v. Olorunkosebi (1991) 7 NWLR (Pt.203) 336 at 356; Bello v. Eweka (1981) 1 SC 101 at 124; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 4 I 7 and Niger Construction Company Limited v. Okugbeni (1987) 4 NWLR (Pt.67) 787, the trial court was satisfied that the appellants had proved their claim that the revocation of their right of occupancy over the property in dispute and the granting of a certificate of occupancy by the 2nd respondent to the 1st respondent over the same property in dispute, was illegal, null and void and of no effect. To this end, concluded the learned counsel, the judgment of the court below allowing the 1st respondent appeal and dismissing all the reliefs granted to the appellants by the trial court, was given in error to warrant and justify its being set aside in allowing this appeal.
The two issues under consideration covering the revocation of the appellants’ right of occupancy over the property in dispute and granting of right of occupancy over the same property by the 2nd respondent to the 1st respondent, was not addressed at all in the 1st respondent’s brief of argument. Instead, its learned counsel dwelled extensively in argument on the question of equitable defence of laches raised in the second issue for determination in the 1st respondent’s brief which defence did not arise at all in any of the grounds of appeal filed by the appellants. It must be emphasised that issues for determination in an appeal must arise from the grounds of appeal filed by the appellant. Equally arising from this statement of the law is that the arguments in support of the issues must be traced to the issues and the grounds of appeal from which such issues were framed. I say no more.
The provisions of the law empowering the Governor to revoke right of occupancy granted by him or deemed granted by him under section 34(2) and (5) of the Land Use Act are contained in section 28 of the Act where the relevant subsections provide:
28(1) It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
(2) Overriding public interest in the case of a statutory right of occupancy means
(a) the alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made thereunder;
(b) the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the state, or the requirement of the Land by the Government of the Federation for public purposes of the Federation.
(c) the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.
(4) The Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes.
(5) The Governor may revoke a statutory right of occupancy on the ground of –
(a) a breach of any of the provisions which a certificate of occupancy is by section 10 of this Act deemed to contain;
(b) a breach of any term contained in the certificate of occupancy or in any special contract made under section 8 of this Act;
(c) a refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under subsection (3) of section 9 of this Act.
(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 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) of this section or on such later date as may be stated in the notice.
It is not at all in doubt that the provisions of section 28 of the Act contains comprehensive provisions to guide the Governor of a State in the exercise of his vast powers of control of land within the territorial areas of his State particularly the power of revocation of a right of occupancy. One of the preconditions for the exercise of this power of revocation is that it must be shown clearly to be for overriding public interest. In order not to leave the Governor in any doubt as to the conditions for the exercise of his powers, the law went further to provide adequate guidance by defining in clear terms what overriding public interest means in the case of a statutory right of occupancy under the Act in subsection (2) of section 28. What this means of course is obvious. Any revocation of a right of occupancy by the Governor in exercise of powers under the Act must be within the confine of the provisions of section 28 of the Act. Consequently, any exercise of this power of revocation for purposes outside those outlined or enumerated by section 28 of the Act or not carried out in compliance with provisions of the section, can be regarded as being against the policy and intention of the Land Use Act resulting in the exercise of the power being declared invalid, null and void by a competent court in exercise of its jurisdiction on a complaint by an aggrieved party. See Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt.184) 157; Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) 562; Dantsoho v. Mohammed (2003) 6 NWLR (Pt.817) 457 at 483 and Ibrahim v. Mohammed (2003) 6 NWLR (Pt.817) 615 at 644 where in the judgment of this court, Kalgo JSC in the lead judgment had this to say on the exercise of powers of revocation of right of occupancy under section 28 of the Act –
Furthermore, the Act itself provides some checks and balances which must be observed before making any grant, the conditions under which such grants can be revoked and what follows after such revocation. It provides under S. 28 that the Governor can only revoke a right of occupancy for overriding public interest’ which has been defined both in respect of statutory and customary rights of occupancy. If such powers of revocation are to be exercised, the holder of the right of occupancy must be notified in advance. Revocation of a right of occupancy for public purpose or in the public interest does not include the revocation of the right of a grantee for the purpose of vesting it in another. Therefore, since revocation of the grant involves the deprivation of the proprietary rights and obligations of a grantee, all the terms and conditions laid down by the Act must be strictly adhered to and complied with. And so for a revocation of a right of occupancy to be valid in Nigeria, it must be made strictly in compliance with S. 28 of the Land Use Act.
In the present case, one of the complaints of the appellants against the revocation of their right of occupancy was the failure of the 2nd respondent to issue and serve adequate notice of the intended revocation on them in advance. On this question of notice, the trial court in its judgment at page 134 of the record found as follows on the evidence:
From the above it is clear that the notice of revocation published in the said Rivers State Government Notice No. 235 dated 27th April, 1985 and published in Volume 17, No. 27 of the Official Gazette was not a valid mode of service in accordance with the Land Use Act. This is because the mode fell short of the requirement in the Act. There was no personal service or in this case which is a registered company, there was no service on the secretary or clerk of the company as provided for. The mode of service is therefore null and void and of no effect.
I entirely agree with the trial court on this finding on the question of notice particularly when the 2nd respondent whose powers were being challenged made no attempt to throw light on the question. The effect of the failure of the 2nd respondent to serve adequate notice on the appellants as required by the Land Use Act prior to the revocation of the right of occupancy means the power of revocation was not exercised in compliance with the provisions of the Act. On the need for notice to be served and its contents, see L.S.D.P.C. v. Banire (1992) 5 NWLR (Pt.243) 620; Nigeria Engineering Works Ltd. v. Denap Ltd. (2001) 18 NWLR (Pt. 746) 726 at 757: and Provost, Lagos State College of Education v. Dr. Kolawole Edlin & Ors. (2004) 6 NWLR (Pt.870) 476 at 508. Furthermore, the other complaints of the appellants were that the revocation of their right of occupancy was not done in compliance with the Land Use Act section 28 in that the revocation was not done for overriding public interest as defined in the section and that the appellants were not afforded any hearing before being deprived of their right. All these complaints of the appellants which were fundamental and touching on denial of right under the constitution, remained unanswered by the respondents. The same issues were also not addressed by the court below which dwelled in the main on the question of whether or not the property in dispute between the parties was developed. What the court below failed to realise was that the right of the appellants as deemed holders of right of occupancy under the Land Use Act over the property in dispute located in the Port Harcourt Urban Area, remained unaffected under the Act irrespective of whether or not the land vested in the appellants was developed provided the land or property in question does not exceed half of one hectare. Apart from the property in dispute being described as Plots A-F (1-6) in Block 77 in Port Harcourt Township Layout, there is no evidence on record that the property is more than half of one hectare which under section 34(5) of the Act, the appellants could have been entitled to hold as deemed holders of right of occupancy if the land was undeveloped. In any case the fact that the property was developed by having a residential building on it which was destroyed during the Nigerian Civil War contained in the evidence adduced by the appellants and accepted by the trial court remained on record in support of the case of the appellants. In the result, the findings of the trial court that the revocation of the appellants right of occupancy was invalid is quite in order on the evidence presented by the appellants and the law. The court below therefore acted in error in setting aside that decision.
On the issue of whether the grant of the right of occupancy to the 1st respondent by the 2nd respondent in the circumstances of this case was in accordance of the Land Use Act, the answer is obviously in the negative. This is because having resolved the issue that the revocation of the appellants right of occupancy was invalid, the question of whether there was a valid grant of right of occupancy in respect of the same property of the 1st respondent had been definitely laid to rest. The reason is of course quite clear. This court has held in several decisions that the mere grant of a right of occupancy over an existing right of occupancy or interest, does not amount to the revocation of such existing interest as was being suggested in various arguments behind section 5(2) of the Land Use Act. See Ibrahim v. Mohammed (2003) 6 NWLR (Pt.817) 615 at 645 where Kalgo, JSC put the position of the law thus –
It is not in dispute that in the instant appeal, the respondent was not notified by the Governor of the intended revocation of his earlier grant exhibit 1 before granting exhibit A8 (AI3) to the appellant. This is in clear contravention of section 28(6) of the Act, it was also not shown by evidence that the respondent’s land was required for public purposes or interest. The respondent was not heard before the grant of his land was made to the appellant and no compensation was offered or given to the respondent as required by the Act. It is my respective view therefore, that under these circumstances the grant of the statutory right of occupancy over the same piece or parcel of land to which the respondent had earlier been granted certificate of occupancy, was invalid, null and void.
See also Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) 562; Nigeria Engineering Works Ltd. v. Denap Ltd. (2001) 18 NWLR (Pt.746) 726 and Ilona v. Idakwo (2003) 11 NWLR (Pt.830) 53 at 83-84.
Therefore in the instant case, the grant of the right of occupancy to the 1st respondent by the 2nd respondent which was done in violation of the provisions of section 28 of the Land Use Act is invalid, null and void and did not confer any valid title on the 1st respondent.
This disposes the third issue for determination.
The remaining issue of whether or not the 1st respondent had any locus standi in the court below has already been determined in the course of the determination of the preliminary objection of the 1st respondent to the appellants’ grounds of appeal where I dealt with the effect of the failure of the 2nd, 3rd and 4th respondents to defend the case against them by the appellants in the trial court, the court below and in this court. The fact that these set of respondents decided to abandon the 1st respondent in its fight to defend the invalid and unlawful grant of the property in dispute to it inspite of the fact that these respondents were the cause of its difficulties and the problems it faced in the prosecution of the appeal, defending the case and in the fact that it has interest in the matter which required the determination by the trial court and the court below, it cannot be said that the 1st respondent had no locus standi in the court below. In other words, until the final determination of the dispute between the 1st respondent and the appellants on which of the parties is the rightful holder of the right of occupancy in respect of Plots (A-F) 16 Block 77 in Port Harcourt Township Layout by this court it cannot be said that the 1st respondent has no locus standi. The 1st respondent therefore had locus standi in the court below as an appellant whose interest in the land in dispute was the subject of litigation before that court.
The law is trite that a decision of a court is perverse when it ignores the facts or evidence adduced and admitted before it and, when considered as a whole, amounts to a miscarriage of justice. In such a case, an appellate court is bound to interfere with such a decision and to set it aside. The several decisions of this court upholding this principle of law include Queen v. Ogodo (1961) 2 S.C. 366; Mogajiv. Odofin (1978) 4 S.C. (Reprint) 53; (1978)
S.C. 91; Ebba v. Ogodo (1984) 1 SCNLR 372; Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643; Agbomeji v. Bakare (1998) 7 S.C. (Pt.1) 10 (1988) 9 NWLR (Pt.564) 1 at 8 Jack v. Whyte (2001) 3 S.C. 121; (2001) 6 NWLR (Pt.709) 266; Odugbo v. Abu (2001) 7 S.C. (Pt.1) 168; (2001) 14 NWLR (Pt.732) 45; and NEPA v. Ososanya (2004) 1 S.C. (Pt.1) 159; (2004) 5 NWLR (Pt.867) 601 at 624-625. Incar (Nigeria) Plc. v. Bolex (Nigeria) Ltd. (2001) 5 S.C. (Pt.II) 224; (2001) 12 NWLR (Pt.728) 646. Taking into consideration the evidence presented by two disputing parties in this case in support of their claims over plots (1-6) A-F in Block 77, Port Harcourt Township Layout, I am of the firm view that the court below had clearly ignored relevant facts before it resulting in that court falling into the error of setting aside the judgment of the trial court.
Consequently, this court in the determination of this appeal against the judgment of the court below which in all respects in law qualifies as a perverse decision, is duly bound to set it aside.
In the final analysis and for all the reasons I have given in this judgment, I find myself agreeing with the learned senior counsel for the appellants that this appeal has merit. Accordingly, the appeal is hereby allowed. The judgment of the court below delivered on 26-4-2001 is set aside. In place of that judgment set aside, I restore and affirm the judgment of the High Court of Justice of Rivers State Port Harcourt delivered on 3-3-1997.
The appellants are entitled to costs which I assess at N5,000.00 the court below and N10,000.00 in this court.
SC.307/2001
