General Cotton Mill Limited Vs Travellers Palace Hotel (2018)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

This Appeal arose from a dispute over a plot of land “situate and lying between Plots 16 and 18 Ridge Road, GRA Onitsha”, and turns on the proper interpretation and application of Section 5 (2) of the Land Use Act, which provides as follows

Upon a grant of a statutory right of occupancy under the provisions of sub-section one of this Section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.

The case for the Respondent, who was Plaintiff at the Anambra State High Court, is that in 1990, the Anambra State Government allocated the land in dispute that is known as “Plot X”, and which is situated between Plots 16 and 18, Ridge Road, to it; and that the said allocation was confirmed by the issuance of a Certificate of Occupancy dated 27/8/1991, which is registered at the Lands Registry, in Awka.

The Appellant, as Defendant, insisted that there was nothing like “Plot X” between the said Plots 16 and 18; that it was

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vested with the same plot at No.18 before the commencement of the Land Use Act, 1978; hence the provisions of its Section 34 are relevant for a proper interpretation of Section 5(2) of the said Act.

The Parties had called one Witness each at the trial, and in his Judgment delivered on 25/2/1997, the learned trial Judge, Nwofor, J., concluded as follows:

I have gone through the evidence of the parties and submission of learned Counsel for both sides and I find as a fact that Plot X granted to the Plaintiff was carved out of Plot 18 for which the Defendant are by virtue of Section 34(2) of the Land Use Act 1978 deemed to be occupiers under statutory grant, Onitsha being an urban area having been in possession since 1973 before the coming into effect of the Land Use Act 1978 – – By virtue of Section 5 (1) – – a Military Governor has power to issue a statutory right of occupancy to a person on application whether the person is already in possession of the land or not. Under Section 5 (2) – -a grant of such a right extinguishes all existing rights – – – Under Section 28 of the Land Use Act, [a] Governor can revoke a grant. Where, however, the grant was made under a mistake of

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fact, the Governor has inherent power to rectify the grant – – – Exhibit D6 reproduced in this Judgment, even though not written by the Governor nor on his authority, admitted that the grant was erroneous and done under a mistaken belief, asked the Defendant to allow the grant to stay. Exhibit D6 did not revoke Plaintiff’s grant. This, in my view, affirms the grant to the Plaintiff and since the rights of the Defendant are deemed to have been extinguished by this grant to the Plaintiff, they no longer have possession or claim over Plot X. The case cited by G.E. Ezeuko, SAN, is no longer the law. I find and so hold that the Plaintiff is entitled by proof to Judgment and I declare:

(a) That the Plaintiff is the holder of the Certificate of Statutory Right of Occupancy in respect of that piece and parcel of land described and more particularly delineated in Survey Plan No. AA/D14/95 and in Survey Plan No. CAI(A) 336, attached to the said Certificate of Statutory Right of Occupancy registered as No. 47 at Page 47 in Volume 1337 at the Lands Registry now at Awka and situate between Plots 16 and 18 Ridge Road, Onitsha.

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(b) That N10, 000.00 damages be awarded against the Defendant – –

(c) Perpetual Injunction restraining the Defendants, its servant, agents, privies- – from trespassing or further entry into the land now in dispute or to disturb the Plaintiff’s possessory rights is hereby granted against the Defendant.

The Appellant then appealed to the Court of Appeal, wherein the Respondent was granted leave to raise and incorporate its Preliminary Objection to the hearing of the Appeal in its Amended Brief. The first Ground of the Preliminary Objection is:

1. The Appeal has been overtaken by events and the Honourable Court is presented with fait accompli –

A. The subject matter of this appeal is the Judgment of Onitsha High Court in 1997 declaring the Respondent “Holder of the Certificate of Statutory Right of Occupancy in respect of that piece and parcel of Land described and more particular delineated Survey Plan No. AND14/95 and in Survey Plan No. 0A(A)336 attached to the said Certificate of Statutory – – “.

B. That from the above paragraph it is clear beyond any iota of doubt that the object of the Judgment is the statutory grant and consequent certificate of occupancy made

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by the Governor of Anambra State in 1990 to the Respondent – –

C. That while this appeal was pending, the Appellant took this matter to the issuing authority, Anambra State Government through a petition to the Director General of Bureau of Lands Survey and Town Planning Anambra State. The 1990 grant to the Respondent was cancelled and the certificate registered as No. 47 at 47 in the land registry was revoked by a letter dated 10/6/1997 by one J. N. Oguejiofor acting Director General of the Bureau of lands survey and Town Planning Anambra State.

D. That by the said revocation of the Respondent’s 1990 grant and certificate of Occupancy, the object of the 1997 Judgment by Nwofor, J., ceased to exist and the appeal over the Judgment remained only as a mere academic exercise —

E. That the basis upon which the Honourable Judge of the trial Court decided the right of the Parties over the disputed plot was the 1990 grant and certificate of occupancy of the Respondent, which no longer exist, as both have been revoked.

F. The decision of the Hon. Court would be a mere academic exercise and in vain as it will not in any way affect the rights

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of the Parties most especially the right of the Respondent respecting the disputed plot as the right of the respondent over the plot is no longer based on the 1990 grant but on the new grant of 23/7/2001.

G. It is, therefore, clear that the Appeal is overtaken by the event of the revocation of the 1990 grant and certificate, the object of the Judgment of this Appeal on 10/6/1997 by the Anambra State of Government.

H. That the Appellant appreciates this position and that is the reason for taken (sic) out a new action – – against the same Respondent over the same subject matter, Plot X Ridge Road, GRA Onitsha when on 23/7/2001 the Governor of Anambra State re-granted same plot of land to the Respondent, the Appellant took out new action to challenge this new grant at the Onitsha High Court in Suit No: 0/498/2001

I. The Appellant took out this action with the full knowledge that the basis of this appeal no longer exists as the subsisting right of the Respondent over the disputed Plot of Land is not based on the 1990 grant and certificate, the object and basis of the 1997 Judgment subject matter of

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this Appeal, but the new grant of 23/7/2001.

J. The new grant of 23/7/2001 is not in issue in the present appeal so if the Hon. Court engages in the difficult task of deciding the Appeal, its decision would be met with a fait accompli, which the Honourable Court would not engage in such proceedings, for it would amount to waste of material and human resources.

The other Grounds of the Preliminary Objection, without their particulars, are that:

– The proceeding is an abuse of Court Process;

– The acts of the Appellant and this process of Appeal is overreaching;

– Estoppel by election; and

– Estoppel by conduct.

The Preliminary Objection was argued with the main Appeal, and in its Judgment delivered on 16/3/2006, the Court of Appeal held as follows on the said Objection:

I have gone through the Preliminary Objection and I am convinced that both Parties from the facts of this case, elected to submit themselves to the jurisdiction of the Administrative Authority and the Parties are, therefore, guilty of the same thing, and none of them is, therefore, innocent. I, therefore, hold that the Preliminary

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Objection is misconceived and cannot stop this Court from hearing this Appeal.

In dismissing the Appeal, the Court of Appeal agreed with the trial Court. It held:

It is manifest from the record that Plot X granted to the Respondent was carved out of Plot 18 for which the Appellant by virtue of Section 34(2) of Land Use Act is deemed to be occupier under statutory grant, Onitsha, being an Urban Area having been in possession since 1973 – – I must also say that by virtue of Section 5(1) of the Land Use Act – -a Governor has the power to issue a statutory right of occupancy to a person on application whether the person was already in possession of the land or not – – – Under Section 5(2) of the Land Use Act, a grant of such a right extinguishes all existing rights – – – From all that I have said herein before, I hold the strong view that the learned trial Judge was not in error when he found for the Respondent in his Judgment — I hold that this Appeal is devoid of merit and it is hereby dismissed.

Dissatisfied with the “Whole Decision” of the Court of Appeal, the Appellant filed a Notice of Appeal containing a Ground of Appeal in this Court. The Respondent, dissatisfied

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with that – “Part of the Decision refusing to accede to the Preliminary Objection challenging the Appeal’, cross-appealed with a Notice of Cross-Appeal, which contains two Grounds of Appeal.

In the main Appeal, the Appellant distilled an Issue for Determination in its Brief of Argument from the Ground of Appeal, i.e.

Whether the interpretation and application of Section 5(2) of the Land Use Act by the Court below was correct, in view of the fact that Appellant was vested with an earlier grant of statutory right of occupancy over the land in dispute by virtue of Section 34(1) & (2) of the Land Use Act; and if the answer is in the negative, whether upon a proper interpretation and application of Section 5(2) the lower Court would not have held that the subsequent grant of a statutory right of occupancy over the same plot of land to the Respondent was invalid, null and void and of no effect whatsoever.

The Respondent, however, contends that the Issue that calls for Determination is:

Whether the Appellant has made a substantial case for the reversal of the concurrent findings of the two lower Courts’ interpretation of Section 5(2) and Section 34 of the Land Use Act.

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Obviously, the Issue formulated by the Appellant lacks the three characteristics of an issue for determination in a Brief, which are “precision, brevity and clarity’ Management Ent. Ltd. V. ABC Merchant Bank (1996) 6 NWLR (Pt. 453) 249. The Respondent’s Issue is more to the point, however, it is my view that the Issue for determination in this Appeal is simply whether the provisions of Section 5(2) of the Land Use Act, 1978, operates to extinguish a statutory right of occupancy, deemed granted under Section 34 of the same Land Use Act, which provides –

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.

The Appellant contends that the lower Courts interpreted Section 5(2) literally and erroneously concluded that an

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express grant of a statutory right of occupancy over a plot of land by a Governor under Section 5(1) extinguishes all the existing rights, thereby going against the intentions and intendment of the Legislature; and it cited Ibrahim V. Mohammed (2003) FWLR (Pt. 156) 902, wherein Uwaifo, JSC, said:

In a nutshell, Section 5(2) is not concerned with the extinguishment of legally vested rights. The meaning of “all existing rights” as used there is limited. It is rights to the use and occupation of land, which are far less and inferior to property rights. Legally vested rights cannot simply be extinguished.

It submitted that the Act provides for two categories of grant of right of occupancy, the actual grant, which is expressly made under Section 5(1)(a) or 6(1) (a) of the Land Use Act, and the deemed grant, which is the one that is made pursuant to Section 34(2) of the said Act; that a deemed grant is as valid as an express grant; that it is clear that it was the title holder and occupier of the Plot since 1973 and at the commencement of the Land Use Act, 1978, and by Section 34(2), it became the deemed holder of a statutory right of occupancy granted by the Governor, and it

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was therefore, a holder of statutory right of occupancy granted by the Governor, citing Provost, L.S.C.E. & Ors. V. Edun & Ors. (2004) All FWLR (Pt. 201) 1641.

It also argued that the Court of Appeal wrongly applied the literal cannon of interpretation in construing the said Section 5(2); that it is not at all times and in all the circumstances, where words of a statute are plain, clear and unambiguous that a Court will apply their ordinary meanings without reading anything into them; and that if applying the literal rule of interpretation will go against the grain and the pith and substance of a Statute or go against the intentions of the legislature then, certainly, the said literal rule will not apply, citing Ibrahim v. Mohammed (supra).

It submitted, citing Ibrahim v. Mohammed (supra), Agundo V. Gberbo (1999) 9 NWLR (Pt. 617) 71, CSS Bookshops Ltd. V. RTMC Rivers State (2006) FWLR (Pt.319) 855 and Gwar V. Adole (2003) All FWLR (Pt.176) 747 at 771, that there was an absolute failure of the checks and balances provided by the Act, in that safeguards provided for under Sections 28, 51, 44 had not been complied with by the State Government;

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and that this is further highlighted by the following:

– No notice of the revocation of the plot of land was given to the Appellant;

– The revocation was not for public purpose as stated in Section 51 of the Land Use Act;

– There was no revocation as stipulated under Section 28 of the Land Use Act and,

– No compensation was paid to the Appellant despite the finding of the High Court and Court of Appeal that Plot X is part of Plot 18, which both Parties agreed belongs to it.

Furthermore, that such clear failure to comply with the relevant sections of the Act will definitely lead to arbitrary exercise of the powers, as conferred by Section 5(2) on the part of the State Governor; and that it is this arbitrariness as exercised in this case that Sections 28, 29, 44 and 51 of the Land Use Act is designed to check.

It also argued that it is trite that expropriatory statutes, which encroach on a person’s proprietary rights, must be construed fortissime contra proferentes, that is strictly against the acquiring authority but sympathetically in favour of the citizen being deprived of his proprietary rights, so there

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must be a strict adherence to the formalities prescribed for its acquisition, citing Provost, L.S.C.E. V. Edun (supra). CSS Bookshops V. RTMC Rivers State (supra), Nangibo V. Okafor (2003) All FWLR (Pt.171) 1529; and that Section 5(2) of the Act cannot be read in isolation, but must be read together with all the related provisions of the Act, which includes Sections 28, 29, 44 & 51, for a proper and meaningful construction of Section 5(2) of the said Land Use Act, and in order to achieve the intention of the lawmakers.

The Respondent also submitted, citing Mobil V. F.B.I.R. (1997) 3 SC 53, Ibrahim v. Mohammed (supra) and Katto V. CBN (1999) 6 NWLR (Pt. 607) 390, that relevant provisions, and the statute as a whole, must be read together; and that the full import of the said Section 5(2) cannot be grasped without reference to other Sections of the Land Use Act, particularly Section 34 (1), (2), (3) and (5),

It, however, argued that the exercise of the power of the Governor to “plot the excess of the undeveloped portion of land of the Appellant’ and grant of same to it was proper and done in furtherance of Section 34 (5) (b) of the Land Use Act,

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which provides that “all the rights formerly vested in the holder in respect of the land shall on the commencement of the Land Use Act be extinguished”; which is exactly what the Governor did when Plot X was carved or plotted out as an excess of Appellant’s undeveloped land under Section 34(5)(a), and acting in accordance with Section 34(5)(b), granted same to it by virtue of Section 5(1) of the said Act.

Furthermore, that since the Governor exercised his powers as provided for by Section 34(5) and Section 5(1) of the Act, the Court of Appeal was right when it held that upon the grant of statutory right of occupancy to it under Section 5(1), the lawful effect will be Section 5(2) of the said Act, which extinguishes all existing rights to the use and occupation of the land, subject of the right of occupancy.

It also argued that even if the carving out of Plot X was wrong and unlawful, jurisprudence envisages that an error could be committed by the Executive, thus, provides that an application shall be made to the authority by the offended party complaining about the error and requesting the Governor to set it aside or nullify the erroneous act, citing

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Saude V. Abdullahi (1989) 4 NWLR (Pt. 116) 387.

It then submitted that in appreciation of the inherent power of the Governor to rectify the error in the grant of the statutory right of occupancy, the Appellant

After the Judgment of the trial Court, made an application to the Governor to set aside the grant of Plot X made to the Respondent in 1990, the basis of the Judgment of Nwofor, J., now subject of this Appeal. The Governor on 10/6/1997, acceded to the application of the Appellant and set aside the grant of Plot X made to the Respondent. The Judgement of Nwofor, J., became useless and eroded the basis of this Appeal Subsequently, when new facts of un-development of the land and the fact that the Governor acted lawfully and properly under Section 34(5) and (b) in granting the plot to the Respondent in 1990 emerged, the Governor granted the plot to the Respondent and issued it with a new Certificate of occupancy – – – The Appellant challenged this new grant of Right of Occupancy to the Respondent in a new Suit No. 014982001 – –

– The Appellant lost the Suit based on the new facts of un-development and did not appeal against the

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decision rather the Appellant chose to prosecute this Appeal, which has been overtaken by the event of the cancellation of the grant, which was the basis of the Judgment, subject matter of this Appeal. This Appeal is now a mere academic exercise as it will in no way affect the rights of the Parties, which has been taken care of by the cancellation of the 1990 Right of Occupancy to the Respondent.

It seems to me that in arguing as it did above, the Respondent appears to have lost sight of the fact that whatever transpired “after the Judgment of the trial Court”, is of no concern whatsoever to this Court, which is being called upon to determine whether the Court of Appeal was right to affirm the “Judgment of the trial Court”.

The Appellant’s right of appeal is circumscribed within the parameters of a decision appealed against because an appeal is an invitation to a higher Court to review the decision of a lower Court to find out whether on proper consideration of facts placed before it and applicable laws that Court arrived at a correct decision see Oredoyin V. Arowolo (1989) 3 NWLR (Pt. 114) 172. Thus, it is the

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opinion of a lower Court appealed against that is affirmed or reversed by a higher Court see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430. In this case, the issue of whether the said grant was revoked and later re-issued is outside the ambit of this Appeal.

The decision that the Appellant is asking this Court to review in this Appeal is the decision of the Court of Appeal affirming the Judgment of the trial Court that “since the rights of the [Appellant] are deemed to have been extinguished by this grant to the [Respondent], they no longer have possession or claim over Plot X”. Can the concurrent findings of the lower Courts on this Issue stand in the light of the applicable law when viewed against the peculiar circumstances of this case

The answer to this question lies in the proper interpretation of Section 5(2) of the Land Use Act vis-a-vis the other relevant Sections of the said Land Use Act. As both Parties rightly submitted, it is well settled that statutory terms must not be interpreted in isolation but must be interpreted in the con of the whole statute in a manner, most harmonious with its scheme, and general purpose see

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Nobis-Elendu V. INEC (2015) LPELR-25127-(SC), and Mobil Oil Plc. V. IAL 36 Inc. US (2000) 6 NWLR (Pt. 659) 146 at 168, wherein Karibi-Whyte, JSC, explained that:

It is an elementary principle and fundamental to the construction of the provisions of any statute to read the sections as a whole to enable the interpreter to gather the collective sense of the provisions. Where the subject matter construed concerns other sections of the same statute, all the related provisions must be read, considered and construed together as forming a composite whole. It is imperative – – to read together all the sections and paragraphs. This is so, because the sub-sections or sub-paragraphs may be and are necessarily complimentary to and explain the meaning and scope of the main section or paragraph. The meaning of a section may be controlled by other individual sections or sub-sections of the same Act.

There are also three basic rules of statutory interpretation the Literal Rule is the first Rule applied by Judges. Here, Judges rely on the exact wording of a statute for the case. They will be read literally and the Judges will take the ordinary and natural meaning of a word and apply it,

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even if doing so, creates an absurd result.

The next Rule is the Golden Rule, which is a modification of the Literal Rule, to be used to avoid an absurd outcome. It is used where the Literal Rule produces a result, where lawmakers’ intention would be circumvented, rather than applied. This Rule was defined by Lord Wensleydale in Grey v. Pearson’s Case (1857) as:

The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the Instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but no farther.

The last Rule is the Mischief Rule, which gives Judges the most discretion of all, and it is intended to rectify “mischief’ in the statute and interprete the statute justly. The four principles to follow were expressed in Heydon’s Case (1584) as follows:

1. What was the common law before the making of the Act
2. What was the mischief and defect for which the common law did not provide
3. What remedy Parliament hath resolved and

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appointed to cure the disease of the commonwealth

4. The true reason of the remedy; and then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy.

In addition to these three rules of statutory interpretation, there are other rules that are held to apply when determining the meaning of a statute, and these include:

1. The statute is presumed not to bind the Constitution;
2. Statutes do not operate retrospectively in respect to substantive law (as opposed to procedural law); see translecial.com.
3. They do not interfere with legal rights already vested:
4. They do not oust the jurisdiction of the Counts; and
5. They do not detract from constitutional law or international law see translegal.com. In this case, it is clear that the Appellant is right; the two lower Courts applied the Literal Rule of interpretation in construing Section 5(2) of the Land Use Act without taking into account its adverse effect on the statutory right of occupancy deemed to have been granted to the Appellant pursuant to Section 34(2) of the said Act.

As Appellant submitted, there are different rights

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of occupancy introduced by the Land Use Act 1978 – the statutory right of occupancy granted by the State Government and Customary right of Occupancy granted by the Local Government see Provost, L.S.C.E. V. Edun (supra), wherein lguh, JSC, stated as follows –

There is firstly the statutory right of occupancy granted by a State Governor pursuant to Section 5(1)(a) of the Act and the customary right of occupancy granted by a Local Government under Section 6(1)(a) of the Act. The second classification is the statutory right of occupancy deemed to have been granted by a State Governor pursuant to Section 34(2) of the Act as against the customary right of occupancy deemed to have been granted by a Local Government under Section 36(2). There, therefore, exist in both cases of statutory and customary rights of occupancy, actual grant as well as deemed grant. An actual grant is naturally a grant expressly made by the Governor of a State or by a Local Government whilst a deemed grant came into existence automatically by the operation of law.

The Land Use Act makes specific provisions with regard to land in an urban area, land in a non-urban area,

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land that is developed, and land that is undeveloped. Section 34 of the Land Use Act dealing with land in an urban area, provides thus:

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.
3. In respect of land to which Subsection (2) of this section applies there shall be issued by the Governor on application to him in the prescribed form a certificate of occupancy if the Governor is satisfied that the land was, immediately before the commencement of this Act, vested in that person.
4. Where the land to which Subsection (2) of this Section applies was subject to any mortgage, legal or equitable, or any encumbrance or interest valid in law such land shall continue to be so subject and the certificate of occupancy issued, shall indicate that the land is so subject,

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unless the continued operation of the encumbrance or interest would in the opinion of the Governor be inconsistent with the provisions, or general intendment of this Act.

5. Where on the commencement of this Act the land is undeveloped, then –

(a) One plot or portion of the land not exceeding half hectare in area shall subject to Subsection (6) below, 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; and

(b) All the rights formerly vested in the holder in respect of the excess of the land shall in the commencement of this Act be extinguished and the excess of the land shall be taken over by the Governor and administered as provided in this Act.

6. Paragraph (a) of Subsection (5) above shall not apply in the case of any person who on the commencement of this Act also the holder of any undeveloped land elsewhere in any urban area in the State and in respect of such a person all his holdings of undeveloped land in any urban area in State shall be considered together –

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(a) One plot or portion not exceeding hectare in area shall continue to be held by such a person as if a right of occupancy had been granted to him by the Governor in respect of that plot or portion; and

(b) The remainder of the land (so considered together) in excess of hectare shall be taken over by the Governor and administered in accordance with this Act and the rights formerly vested in the holder in respect of such land shall be extinguished.

7. No land to which Subsection (5) (a) or (6) of this Section applies held by any person shall be further subdivided or laid out in plots and no such land shall be transferred to any person except with prior consent of the Governor.
8. Any instrument purporting to transfer any undeveloped land – – shall be void and of no effect whatsoever in law and any party to such instrument shall be guilty of an offence and liable on conviction to imprisonment for one year or a fine of N5, 000.
9. In respect of land to which Subsection (5) (a) or (6) (a) of this section applies there shall be issued by the Governor on application to him in the prescribed form a certificate of

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occupancy if the Governor is satisfied that the land was, immediately before the commencement of this Act, vested in that person.

Thus, by virtue of Section 34(2) of the Land Use Act, where the land is developed, it shall continue to be held by the person in whom it was vested immediately before the commencement of the Land Use Act as if the holder of the land was the holder of a Statutory right of occupancy issued by the Governor under the Land Use Act see Orianzi V. Att.-Gen., Rivers State (2017) 6 NWLR (Pt. 1561) 224 SC.

In this case, the lower Courts found as a fact that the said Plot X was carved out of Plot 18 for which Appellant by virtue of Section 34(2) of the Land Use Act “is deemed to be occupier under statutory grant, Onitsha being an urban area, having been in possession since 1973” before the commencement of the said Act. The position of the law on the subject is that where a person owns a deemed right of occupancy over a parcel of land by virtue of Section 34 (2) of the Land Use Act, he is entitled to same rights available to a holder of a statutory right of occupancy. see Provost, L.S.C.E. V. Edun (supra), wherein this Court held as follows-

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The Respondents in the present case were in exclusive physical possession of the land in dispute and were using the same for agricultural purposes in a non-urban area – – immediately before the commencement of the Land Use Act, 1978. They are, therefore, deemed holders of customary right of occupancy in respect of the land in dispute by operation of law at the commencement of the Land Use Act, 1978 on the 29th March, 1978. Their deemed grant is no less effective than a customary right of occupancy expressly granted by the appropriate Local Government. Deemed grants, whether of statutory or customary right of occupancy are as valid as express grants and may not be defeated by any unlawful subsequent dealing in respect of such land by the original owners thereof. This is because after a party has divested himself of interest in land or any res, no right vests in him to deal with such property any further.

So, a statutory right of occupancy deemed to have been granted by the Governor of a State pursuant to Section 34(2) of the Land Use Act, is as valid as a statutory right of occupancy expressly granted by the Governor by virtue of

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Section 5(1)(a). As I mentioned earlier, statutes do not interfere with legal rights already vested, and from the decision of this Court in Provost, L.S.C.E. V. Edun (supra) and the provisions of Section 34(1), (2) & (3) of the Act, it can easily be deduced that the said Section 5(2) of the Land Use Act does not extinguish the right of a land owner, who has a deemed right of occupancy. The said rights, definitely, rank pari passu.

But that is not the end of it. There is another dimension to this case because Section 34(2) applies where the land in question is developed and Section 34(5) applies where the land is undeveloped; in which case, one plot not exceeding half hectare shall continue to be held by a person in whom the land was so vested as if he was the holder of a statutory right of occupancy granted by the Governor Section 34(5) (a); and all the rights formerly vested in the holder in respect of the excess of the land shall be extinguished and the excess of the land shall be taken over by the Governor and administered as provided in the Act Section 34(5) (b).

In this case, the Respondent argued that Plot X was carved

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out of excess of the Appellant’s undeveloped land under Section 34(5) (a) of the Act, therefore, the interpretation of Section 5(2) by the lower Courts of the exercise of the powers of the Governor by granting same to it, was lawful, correct and cannot be faulted. It reproduced the following testimony of Appellant’s witness, Famakinwa Rotimi:

The Defendant erected buildings on the land. In addition, the plot was fenced with wire mesh. Plaintiff broke a wire mesh, entered the land and started to erect a building.

And submitted that this clearly establishes that the land claimed by the Appellant, at all times relevant to this Suit, was not developed by the Appellant; and that the Appellant did not plead nor tender any building Plan, but it tendered its own Plan.

There are two things wrong with the Respondent’s submissions. First of all, one of its claims, as Plaintiff at the trial Court, was for a declaration of title to land, and it is trite law that in a claim for declaration of title to the land that is in dispute, a Plaintiff has the onerous task of establishing his title on the strength of his case and not on the weakness of

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the defence Kodilinye V. Odu (1935) 2 WACA 336. So, the Respondent cannot point fingers at what the Appellant said or did not say.

Secondly, the question of whether Plot X was developed or not was not an issue at the trial Court, and this is confirmed by the Respondent in his brief that

“When new facts of un-development of the land and the fact that the Governor acted lawfully and properly under Section 34(5) and (b) in granting the plot to the Respondent in 1990 emerged, the Governor granted the plot to the Respondent and issued it with a new Certificate of occupancy – – – The Appellant challenged this new grant of Right of Occupancy – – in a new Suit No. O/4982001 – – – The Appellant lost the Suit based on the new facts of un-development and did not appeal against the decision rather the Appellant chose to prosecute this Appeal, which has been overtaken by the event of the cancellation of the grant, which was the basis of the Judgment, subject matter of this Appeal.”

There it is straight from the Horse’s mouth. The issue of un-development of the land in dispute was raised in a completely different Suit that was instituted after the

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Judgment of the trial Court, and as far as the Appeal in this Court is concerned, it is the concurrent findings of the two lower Courts that Plot X was carved out of Plot 18 for which the Appellant was by virtue of Section 34(2) of the Land Use Act “deemed to be occupiers under statutory grant”, that must hold sway; nothing else.

In other words, the trial Court and the Court of Appeal applied the provisions of Section 34(2) of the Land Use Act, which covers “where the land is developed” and not Section 34(5) thereof, which deals with where “the land is undeveloped”. So, the issue of whether Plot X was undeveloped cannot be raised in this Appeal.

Be that as it may, the Appellant also submitted that there is nowhere in the Records that its Statutory Right of Occupancy over Plot 18 or any part thereof was revoked before the Respondent’s Certificate of Occupancy was issued. Thus, the Court of Appeal erred when it held that a grant of a statutory right of occupancy by the Governor extinguishes all existing rights, without taking into consideration the fact that it had a subsisting statutory right of occupancy over the said land.

Once again, the Appellant is right. The Land Use

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Act makes provision for revocation of a right of occupancy by a Governor. Section 28 of the Act provides:

(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 with 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.

The Governor can only revoke a right of occupancy for “overriding public interest’, and it is settled that the revocation of a right of occupancy for public purpose or in the public interest does not include the revocation of the right of

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a grantee for the purpose of vesting it in another see Ibrahim V. Mohammed (supra) cited by both Parties, and Orianzi V. A.G. Rivers State (supra), wherein this Court held:

The Act [Land Use Act] provides checks and balances, which must be observed before making any grant, the conditions under which such grants can be revoked and what follows after revocation. If such powers of revocation are to be exercised, the holder of the right of occupancy must be notified in advance. The revocation of the 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. Since revocation of the grant involves the deprivation of the proprietary right and obligations of a grantee, all the terms and conditions laid down by the Act must be strictly adhered to and complied with. Therefore, for a revocation of a right of occupancy to be valid, it must be made strictly in compliance with Section 28 of the Land Use Act. Even where the revocation is valid, the grantee is fully entitled to compensation under Section 29(1) of the Act. In the instant case, there was no evidence before

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the trial Court that the Appellant’s right was lawfully revoked. He stated that he was not given any notice or any notice in advance that the property was up for revocation. He also stated that he was not paid compensation after it was revoked.

In this case, there is no evidence that the Appellant’s right of occupancy was ever revoked before the issuance of the Certificate of Occupancy to the Respondent. The trial Court focused on the Respondent and not the Appellant when it held that:

Exhibit D6 – – though not written by the Governor nor on his authority, admitted that the grant was erroneous and done under a mistaken belief, asked the Defendant to allow the grant to stay. Exhibit D6 did not revoke Plaintiff’s grant.

The Court of Appeal also reproduced Exhibit D6 in its Judgment, and concluded:

I hasten to say that Exhibit D6 did not revoke the Respondent’s grant.

Obviously, the question is not whether the grant to the Respondent was revoked, but whether the statutory right of occupancy deemed to have been granted to the Appellant by operation of law was revoked before the grant to the

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Respondent; and the answer is in the negative. Exhibit D6, which the trial Court acknowledged was not written by the Governor nor on his authority, is of no moment in this case.

From what has been said, it goes without saying that the concurrent findings of the two lower Courts stand no chance in this Appeal, as they are based on the wrong premise that the provision of Section 5(2) of the Land Use Act extinguishes the deemed right of occupancy granted the Appellant under Section 34 of the Act. This is not so; a deemed right of occupancy under Section 34 of the Land Use Act ranks pari passu with the statutory right of occupancy under Section 5 of the Act, and where the Government wants to revoke a deemed right of occupancy it would have to revoke same in accordance with the provisions of Section 28 of the Act.

So, anything done outside the Land Use Act would be a violation of the right of the holder of the deemed right of occupancy, which is the situation in this case. In the peculiar circumstances of this case, this Appeal would have to be allowed.

As for the Cross-Appeal, which is hinged on events that occurred after the Judgment of the trial Court, when the

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Appeal was pending at the Court of Appeal, I will simply say that Court of Appeal had no jurisdiction to entertain the Objection that is the subject matter of the Cross-Appeal, and this Court has no jurisdiction to look into whether the Court of Appeal was right or wrong in its decision thereon.

In the final analysis, the Appeal itself succeeds and is allowed. The decision of the Court of Appeal affirming the Judgment of the trial Court is hereby set aside. The Cross-Appeal filed by the Respondent is, however, struck out in its entirety.

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SC.297/2006