Inna Akubo V. Mrs. Joanna D. Braide & Anor (2009)
LawGlobal-Hub Lead Judgment Report
EJEMBI EKO, J.C.A.
The Appellant was the Plaintiff at the High court of Rivers State where he had gone claiming, as per his amended statement of claim the following reliefs
(i) A declaration that the plaintiff is the lease holder, owner or lessee of the piece or parcel of land together with the building thereon situate or lying at No. 43 Bishop Johnson Street, Port Harcourt, otherwise known as and called Plot ‘O’ Block 196, Port Harcourt
(ii) N5, 500. 00 being special and general damages for trespass.
(iii) Perpetual injunction restraining the 1st defendant, her servants or agents and all other persons claiming through or under them from committing further acts of trespass on the said property.
The learned trial judge heard evidence of the parties and the submissions of their respective counsel. In his considered judgment the learned trial judge dismissed the case of the Appellant, as the plaintiff, on 8th June, 2004. Hence this appeal.
The undisputed facts of the case are – the Appellant, by lease dated 24th February, 1951, was granted a non-European lease of plot No ‘O’ Block 196 otherwise known as No. 43 Bishop Johnson Street, Port Harcourt for 20 years commencing on 17th May, 1948. The lease was granted by the then Government of Eastern Nigeria. Upon the execution of the lease, the Appellant erected a building on the plot of land. He lived in the building with his family. During the civil war, the Appellant left Port Harcourt to his home community in old Owerri province, now Imo State. He left Port Harcourt in 1967. The civil war lasted fro 1967 to 1970. He came back to Port Harcourt upon the Cessation of the Civil war. The property was treated as an abandoned property during the civil war. After the civil war the Appellant returned to Port Harcourt and resumed his occupation of the house No. 43 Bishop Johnson Street, Port Harcourt (hereinafter referred to as “the disputed property”). In the meantime Rivers State upon its creation in 1968 became the successor to Eastern Nigeria, and therefore the grantor of the Appellant’s non-European lease in respect of the disputed property.
In 1973 by an Instrument of Transfer, dated 5th April, 1973 pursuant to section 18 of the Abandoned Property (Custody and Management) Edict No.8 of 1969 of Rivers State the Abandoned Property Authority of Rivers State formally transferred to the Appellant “the control and management” of the disputed property. This Instrument is in evidence as Exhibit B. The return of the disputed property to the Appellant as the “owner” of the land by the Governor of Rivers State was published earlier in the official gazette of Rivers State No. 56 of 1st November, 1972 (Rivers State Government Notice No.451). The gazette is in evidence as Exhibit C.
By its tenure of 20 years, the Non-European Lease” Exhibit A”, was executed for the period of 1948 to 1968. After Exhibits B and C the Appellant applied to the Government of Rivers State for the renewal of the lease vide letter dated 5th April, 1973. He received no replies to the letter. However, by letters dated 26th April, 1978 and June 1978 (respectively Exhibits D and E) from the Ministry of Lands and Survey the Appellant was directed to pay his outstanding arrears of the ground rents in respect of the disputed property Appellant paid the arrears of ground rents on 5th July, 1978. Thereafter Appellant requested the said Ministry of Lands and Survey to give him “Rates Payment Demand” to enable him pay land or ground rents from 1979 to 1984. He paid property rates to the appropriate Local Government of Rivers State from 1977 to 1983.
In 1981, precisely on 18th August, 1981, out of premonition that the Rivers State Government might sell the disputed property the Appellant caused a warning notice to both the Government and prospective buyers to desist from buying or selling the property. The publication was in the Nigerian Tide of 18th August, 1981 – Exhibit H. The Government of Rivers State, now represented by the 2nd Respondent, eventually sold the disputed property to the 1st Respondent and issued her with certificate of occupancy over the same. Their defence is that with the expiration of the lease, the plot reverted to ‘the Government of Rivers State and that the Appellant’s interest in it had been extinguished upon the expiration of the lease. The Respondents contend that the certificate of occupancy issued to 1st Respondent by the Government of Rivers State was proper and valid. Appellant at the trial court argued that he had an interest in the disputed property that is constitutionally protected or guaranteed.
The learned trial Judge (Justice E.N.T. Ebete) held in his considered judgment, delivered on 8th June, 2004 inter alia that
i. Once the lease expired on the 16th May, 1968 the land automatically passed on to the State in accordance with section 10 of the State Lands Law Cap. 122 of the Laws of Eastern Nigeria.
ii. The authority of UDE v. NWARA ([1993] 2 SCNJ 47,[1993] 2 NWLR [pt.278] 638 which laid down the principles that where the leasee continues to pay rents and the landlord continues to accept the rents a new lease under the Law Cap. 122 has been created does not apply in the instant case because of the certificate of occupancy, Exhibit V, issued to the 1st Respondent by the 2nd Respondent.
iii. Though the instrument of Transfer was not a registrable instrument, it made no valid transfer since the lease had expired and was not renewed because at the time of the transfer the property no longer belonged to the Appellant. On this ground the learned trial judge distinguished the case of JOSEPH IGBONGIDI v. JOHNSON UMELO (1993) 8 NWLR [pt)310] 130.
iv. Since the Appellant did not plead the unconstitutionality of the sale of the disputed property to the 1st Respondent by the 2nd Respondent as basis for urging the setting aside of the sale, he could not grant the relief.
v. The evidence adduced by the Respondents was stronger than the evidence of the Appellant.
The appeal was previously set down for hearing on 27th May, 2009. At the hearing of the appeal on 27th May, 2009 only the counsel for the Appellant, A.I. Adedipe, SAN, was present in court. We allowed the learned senior Counsel to proceed in the appeal in the absence of the Respondents as we were satisfied that the Respondents had sufficient notice of the hearing of the date.
Only the 1st Respondent filed respondents brief in response to the Appellant’s Brief of Argument. The 1st Respondent’s Brief of Argument dated 1st February, 2007 but filed on 2nd March, 2007 was accordingly deemed argued or adopted. The Appellant’s brief dated 13th September, 2006 but filed on 18th September, 2006 with motion dated and filed on 18th September, 2006 was deemed properly filed and served on 16th January, 2007. The 1st Respondent’s Brief filed on 2nd March, 2007 was filed in time. The Appellant’s Reply brief dated 15th February, 2008 and filed on 19th February, 2008, along with motion on notice for extension of time to file the Reply Brief and deeming same duly filed and served, was deemed filed and served on 18th March, 2008. At the hearing of the appeal on 27th May, 2009 the learned Senior Counsel adopted the Appellant’s Brief and the reply Brief to 1st Respondent’s Brief as his argument in the appeal, and urged us to allow the appeal. The Senior Counsel pointed out that Appellant’s Issue 1 covers ground 1 of the grounds of appeal, and that Issue 2 covers ground 2 and Issue 3, grounds 3 and 4 of the grounds of appeal.
The Appellant’s three (3) issues formulated from the four grounds of appeal are as follows –
- Whether on a true construction of the provisions of the States Land Law Cap 122 laws of Eastern Nigeria 1963, applicable to this case, the State can sell off a building on a leased land, which said lease had expired?
- Whether, on the State of the pleadings and evidence before him, the learned Trial Judge was correct in effectively ignoring the constitutional protection the appellant was entitled to, on the ground that no specific reliance on the said provisions of the constitution was pleaded?
- Whether on the available evidence, and the law, the learned Trial Judge was correct in holding that the evidence adduced by the defendants was stronger than that adduced by the plaintiff to justify the dismissal of his case?
The 2nd Respondent filed no brief of argument. On her part the 1st Respondent, through her counsel, the learned F.C. Amadi, Esq., formulated two issues out of the grounds of appeal for determination of the appeal. They are –
1 whether the lease for a definite term of 20 years granted to the Plaintiff/Appellant in 1948 can subsist after its expiration in 1968 without renewal by virtue of sections 10 and 28 of the State Lands Law Cap. 122 Laws of Eastern Nigeria, 1963.
- Was the learned trial judge right in dismissing the plaintiff’s claims?
In my considered view the issues formulated by the parties viz- a- viz the four grounds of appeal at pages 115 – 117 of the Record of Appeal could be reformulated as follows –
- Whether, without renewal of an expired lease a leasee in possession, who pays rents demanded and received by the lessor, has any interest .in the buildings on the demised property that is protected by law?
- Whether the learned trial judge was right in holding that the Appellant did not plead that the sale of the disputed property to the 1st Respondent by the 2nd Respondent as unconstitutional?
- Whether the learned trial judge was right in dismissing Appellant’s suit?
ISSUE NO 1
The interpretation of sections 10 and 28 of the State Lands Law, Cap 122, Laws of Eastern Nigeria, 1963 applicable in Rivers State is the epicenter of the appeal and it is considered by both counsels as crucial to the resolution of this issue. They are herein below reproduced –
“10. In the absence of special provisions to the contrary in my lease under this law all buildings and improvements on state lands, whether erected or made by the leasee or not shall on the determination of the lease, pass to the State without payment of compensation:
Provided, however, that, in the absence of any special provision to contrary in the lease, when land is leased for a term not exceeding thirty years the lease shall be at liberty within three months of the termination (otherwise than by forfeiture) of such lease to remove any buildings erected by him on the land leased during the currency of unless the minister shall elect to purchase such buildings. In the event of the Minister and the leasee not agreeing as to the purchase price of such building, the same shall be determined by arbitration. The lease shall make good any damage done to the land by any such removal.
28 (1) when any person without right, title or licence or whose right, title or licence has expired or been forfeited or cancelled, is in occupation of state land, the Attorney-General, or the principal lands officer, or some person appointed by the Attorney-General may enter a suit in the High Court to recover possession thereof.
(2) if on the hearing of such suit the defendant does not appear, or appears but fails to establish an absolute right or title to the possession of the land, the court shall order that the possession of the land sought to be recovered shall be given by the defendant to the plaintiff, either forthwith or on or before such day as the court shall think fit to name, and shall issue such process as may be necessary for carrying such order into effect.”
The learned Senior Counsel for the Appellant submits in respect of section 10 of Cap. 122 1963 that the learned trial Judge’s conclusion that once the lease of the land had expired, the land automatically reverts back to the State was without reference to the proviso thereto, and that sections 10 and 28 of the Law Cap. 122 should have been read together. It is further his submission relying on MAXWELL ON INTERPRETATION OF STATUTES, 12th Edition a page 258 and BELLO v. DIOCESSAN SYNOD OF LAGOS & ANOR (1973) 3 SC103 at 130 that in construing statutes which de rive proprietary rights, the courts should confine those exercising the power to the strict letters of the statute and that in such situation a construction sympathetic to the party whose proprietary right is being taken should be adopted. Senior Counsel further submits that the Supreme Court in UDE v. NWARA (1993) 2 SCNJ 47 having authoritatively interpreted the provisions of sections 10 and 28 of the Law Cap. 122, the learned trial judge was in error when he held that upon expiry of a lease under the State Lands Law, Cap. 122 of 1963 the demised property automatically reverted to the State.
In reply to 1st Respondent’s submission that upon expiration of the lease the leasee in possession ought to remove his building within three months of the termination of the leas , unless the appropriate Minister (the Commissioner) elects to purchase it on behalf of the State, the learned senior counsel submits, on authority of UDE v. NWARA [supra], OBIOHA v. DAFE (1994) 2 NWLR [pt.325] 157 and REX v. PAULSON (1921) 1 AC 272, at 283, that the leasee has statutory right to remain in possession of demised property for at least 3 months after expiration of the lease, and if he holds over, he remains a tenant at sufferance and to recover possession from him, the Attorney-General must institute action in the High court to that effect. Senior Counsel further submits that while the leasee is still in possession, the State, as leasor, can not, within the ambits of the law alienate the property. It is further submitted that the Rivers State Government, by collecting rates and ground rents after the expiration of the lease, is by conduct deemed to have renewed the lease. He relies on the dictum of Katsina-Alu JCA (as he then was) at pages 174 – 175 G- B in OBIOHA v. DAFE [supra] for this submission on equitable principle.
The Senior Counsel further submits that section 40 of the 1979 Constitution (now section 44 of 1999 Constitution) which guarantees protection against compulsory acquisition of interest in immovable property avails the Appellant. In otherwords, that the Appellant has an interest in the disputed property that is protected by law and the Constitution. He submits further on this that if section 30 of the State Land Law Cap.122, 1963, as submitted for the 1st Respondent, is in conflict with the Constitution, section 1 of the Constitution renders section 30 of Cap.122 void to the extent of the conflict.
The 1st Respondent has opined that this appeal is essentially anchored on the interpretation of sections 10 and 28 of the State Lands Law, Cap. 122. The vexed question, according to 1st Respondent is whether by virtue of sections 10 and 28 of Cap. 122 the expired lease of the Appellant would continue to run indefinitely and the Appellant continue to own the building on the land whose lease had expired since 1968 without renewal of the lease by the Rivers State Government at the expense of the 1st Respondent who was issued a certificate of occupancy over the disputed property by the said Rivers State Government. 1st Respondent’s counsel is of the opinion that the issuance of the certificate of occupancy followed due process. Counsel submits that with the expiration of “his lease the Appellant’s interest in the disputed property had been extinguished with effect from 16th May, 1968. He relies on ISAAC NLEWEDIN v. KALU UDUMA (1995) NWLR [pt.402] 383 at 396, 400 – 401 for extinction of interest of lease on expiration of the lease to justify the judgment of the learned trial judge. I read this authority and I must from the onset say that it does not support the contention of the 1st Respondent. The issue decided in NLEWEDIN v. UDUMA is that there can be no order for specific performance of a lease contract unless there is a definite and certain contract.
On section 10 of Cap. 122 it is the contention of 1st Respondent’s counsel that there is no evidence that the Appellant removed his building within 3 months of the expiration of the lease. Counsel concedes that by section 28 of the said Law a’ leased State land, the lease of which has expired or otherwise terminated and if not renewed, is liable to be recovered by an action in the High Court by the Attorney-General of the State etc. He however added that the omission to recover possession in accordance with section 28 does not permit the leasee to treat the lease as running ad infinitum. Counsel further submits that section 30 of the Law, cap 122, unlike section 10 thereof which requires the leasee to remove his buildings within 3 months of the expiration of the lease, gives the Rivers State Government liberty to bring action for recovery of possession and there is no limitation of time for that. That upon expiration of the lease the legal interest in the disputed property resided in the leasor, who therefore has power to deal with that interest in the manner he wishes, including alienation to the 1st Respondent for 99 years. And that the principle of Nemo dat quod non habet does not apply. Finally counsel submits that UDE v. NWARA [supra] is distinguishable in three respects namely that –
- UDE v. NWARA bordered on outright sale of State land, while the instant case is one of a term of years evidenced in a certificate of occupancy issued to 1st Respondent.
The reliefs in UDE v. NWARA included a claim against the interest of a 3rd party, the purchaser. There is no such claim against the 1st Respondent in the instant case. And that the court could not grant a relief not sought – SADIQ v. BUNDI (1991) 8 NWLR [pt. 210] 446.
In UDE v. NWARA there was evidence from Plaintiff/Appellant to the effect that Rivers State Government promised to renew the tenancy. There is no such evidence in the instant case.
On section 40 of the 1979 Constitution it is submitted for the 1st Respondent that the Appellant’s lease having expired, the Appellant had no valid and subsisting interest in the disputed property which the 2nd Respondent could compulsorily acquire.
I have read UDE v. NWARA (1993) 2 NWLR [pt.278] 638. The facts are on all fours with the instant case. Like in this case the lease in respect of a developed plot in Port Harcourt granted before the civil war expired in 1971, after the civil war during the civil war the leasee fled from Port Harcourt and the property was treated as an abandoned property. Even though the lease expired in 1971 the property was duly released to the Appellant, the owner, in 1973 by Rivers State Abandoned Property Authority through formal instrument of Transfer. Even after expiration of the lease Mr. Ude, the appellant, still paid his ground rents and other property rates to the Government of Rivers State. While the attorney of the appellant, the leasee (Mr. Ude), was in physical occupation of the building on the plot land possession of the property the Government of Rivers State sold the property to the 1st Respondent. In 1983 the 1st respondent entered the premises and interfered with the appellant’s possession claiming that he had bought the property from the Government hence the appellant sued the 1st respondent, the third party purchaser, and the Government.
I find no distinction, on facts, between the UDE v. NWARA [supra) case and the instant. The distinction urged by 1st Respondent’s counsel is a mere distinction without difference The 1st Respondent, testifying as DW.1, admitted the outright sale of the disputed property to her before the Certificate of occupancy Exhibit V, was issued to her by 2nd Respondent. She tendered Exhibits L, M, O, P, Q, R, S, T and U to establish the sale and her purchase of the disputed property.
It was submitted in UDE v. NWARA [supra], as F. C Amadi, Esq. of counsel to the 1st Respondent had painstakingly done in this appeal, that if a leasee of State land fails to remove his building on the demised plot within three months after the expiration of his lease, the building shall be forefeited to the State. The statement of Nnaemeka-Agu, JSC at page 659 C – D clearly puts the matter beyond doubt thus –
Learned counsel for the 2nd respondent has invited us to interpret section 10 [of the State Land Law cap. 122] set out above to mean that if a person, whose lease of State land for a period of less than 30 years has expired, fail to remove his buildings on the land within three months it shall be forfeited to the State without compensation. It is my view that such an interpretation will fail against the letters and spirit of section 31 of the Constitution of the federal Republic, 1963. The State Lands Law first came into force as Crown Lands Ordinance in 1918 which was Cap 45 of 1948 and Cap. 122 of 1963. It was therefore an existing law at the time the 1963 Constitution came into force. And section 1 of that constitution has declared void any law inconsistent with the Constitution. I should not, if possible, interpret that section out of existence by adopting such an interpretation in view of the maxim ut res magis valeat quam pereat.
Sections 1 and 31 of the 1963 Constitution are forerunners of sections 1 and 40 of the 1979 Constitution, now sections 1 and 44 of the 1999 Constitution.
By the proviso to section 10 of the State Lands Law, Cap. 122 the parliament or the law makers clearly intend that the common law principle of quic quid plantatur solo cedit shall not apply with respect to leases of State lands for periods less than 30 years. The Appellant’s lease was for 20 years. It therefore comes within the ambit of the proviso to section 10. Again Nnaemeka-Agu, JSC at page 660 E – F of the report in UDE v. NWARA [supra] puts it further beyond doubt that –
it is the intendment of the proviso to section 10 of the state Lands law applicable in Rivers State that the maxim quic quid plantatur solo solo cedit SHALL NOT APPLY TO BUILDINGS AND OTHER IMPROVEMENTS ON STATE LANDS SUCH AS THE INSTANT WHICH HAS BEEN LEASED FOR PERIODS OF LESS THAN THIRTY YEARS. This is, therefore, an exception to the application of the maxim.[Emphasis supplied]
The cardinal principle of law of interpretation is that a court, when interpreting a provision of a statute, must give the words and the language used, their simple and ordinary meaning, and not to venture outside it by introducing extraneous matters that may lead to circumventing or giving the provision an entirely different meaning from what the lawmaker intended it to be. See UNIPETROL v. E.S.B.I.R (2006) ALL FWLR [pt.317] 413 at 423. The last will of the law maker, through the words of the statute, must be obeyed. Since the law maker by introducing the proviso to section 10 of the State Lands Law, as express exception to the Common Law maxim of quic quid plantatur solo solo cedit to leases for periods less than 30 years it will tantamount to willful disobedience of the lawmaker to insist on application of the maxim to such leases or transactions.
The unique feature of this case is that the Appellant’ lease for a term of twenty years ran from 1948 to 1968. Yet in 1978, ten years thereafter, the Rivers State Ministry of Lands and Survey Wrote the Appellant requesting him to pay arrears of the ground rents for the lease which the Appellant paid and the Ministry accepted.
By virtue of section 151 of the Evidence Act when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, to deny the truth of that thing in any proceedings between himself and such person. See ODACHE v. OKUJENI (1973) ALL NLR 803; NASARALAI v. ARAB BANK (1986) 4 NWLR [Pt.36] 409 and recently NSIRIM v. NSIRIM (2002) 3 NWLR [pt.755] 691.
The 2nd Respondent is therefore estopped from insisting that the Appellant’s lease had terminated in 1968 and that he was no longer a lessee of the disputed property. I think it is by operation of the rule of estoppels by conduct that another principle evolved that once, as in this case, the lessee holding over paid rents and the landlord accepted them, it would be deemed to be a renewal of the lease on the same terms and conditions as the original lease. See UDE v. NWARA [supra] at pages 660 – 661 H – A; PAN ASIAN AFRICAN CO. LTD v. NICON (1982) ALL NLR 229. By the general rule of estoppel the landlord is estopped from denying the tenant’s possession, and the tenant is estopped from denying the landlord’s title. See section 152 Evidence Act.
On these estoppels the Appellant’s position is further reinforced by his letter dated 5th April, 1973 wherein he applied for renewal of lease contained in Exhibit A, Which expired in 1968. This is further boostered by Rivers State Government gazette, Exhibit C, of 1972 and the Instrument of Transfer, Exhibit B, of 5th April, 1973, issued by the Abandoned Property Authority. There is no doubt that from the conduct of Rivers State Government they had manifested a definite intention to treat the Appellant’s lease as subsisting years after it had expired. In a situation akin to this, Katsina-Alu JCA [as he then was] held in OBIOHA v. DAFE (1994) 2 NWLR [pt.325] 157 at 174-175 G- B thus-
I do not think it can be seriously argued that the Abandoned Property Authority dealt with this matter without relevant documents which established title to the property in the plaintiff. In other words, the Authority had full knowledge, through the documents submitted to it by the plaintiff that the property belonged to the plaintiff. The documents clearly specify the duration of the lease. They were therefore aware that the life span of [the lease] was to terminate on 31st March 1971. the Authority nevertheless and perhaps having regard to the circumstances of the case, proceeded to issue Exhibit D, the instrument of transfer, in favour of the plaintiff. The plaintiff duly and dutifully paid rates over the years. I think the issuance of Exhibit D and the receipt of annual rates by the State Government under such circumstance shows a definite intention to treat the lease as subsisting.
And so, as it was in OBIOHA v. DAFE so also it was and is in the instant case.
There is provision in the State Lands Law, cap 122, in section 28 thereof, as to the manner the leasor could recover from the leasee whose lease period had expired and he is holding over. Once the statute prescribes a particular method or procedure of exercising a statutory power, any other method of exercising the power is thereby excluded. The leasor, by virtue of section 28 of the State Lands Law can not resort to a right-of re-entry or any other type of self-help. That is the imperative rule of law that the 2nd Respondent must submit or succumb to. See UDE v. NWARA [supra] at 661 D – F. Since the Rivers State Government can not resort to the right of re-entry into the disputed property or through any other form of self-help without due process of law provided for in section 28 [1] of the State Lands Law; it follows that it can not, on the maxim Nemo dat quod non habet, empower the 1st Respondent, through sale transaction or agency of the certificate of occupancy it issued, to her to do the same, It is mandatory for the Attorney-General of the State under the section 28 (1) procedure, to enter a Suit in the High Court to recover possession of demised property after the lease had expired. The use of the word “May” in section 28 [1] connotes the imperative or mandatory directive on the Attorney-General. See CHIEF J. O. EDEWOR v. CHIEF M. UWEGBA (1987) 1 NWLR [pt.50] 313 which was adopted and applied in UDE v. NWARA [supra] at page 661.
There can be no question, therefore, of the house or unexhausted improvements on the disputed property automatically reverting to the Rivers State Government or the 2nd Respondent because the Appellant’s lease had expired and had not been formally renewed. The combined reading of sections 10 and 28 does not permit the Interpretation suggested by the 1st Respondent’s counsel.
The 2nd Respondent had not followed the statutory procedure or manner of recovering possession from the leasee whose lease had expired and not formally renewed. The 2nd Respondent cannot circumvent the law by the rather unwholesome transaction with the 1st Respondent to defeat the interest of the Appellant in the disputed property. The illegality of the sale transaction and the issuance of the certificate of occupancy, Exhibit V, do not diminish the legal or equitable interest of the Appellant in the disputed property.
I have no doubt whatsoever that the Appellant’s interest in the disputed property particularly the unexhausted improvements thereon remain extant in law notwithstanding the purported sale of the same and the issuance of certificate of occupancy to the 1st Respondents by the 2nd Respondent. It is not a mere co-incidence that on 26th April, 1978 and June 1978 the Ministry of Lands and Survey of Rivers State wrote the Appellant to pay the arrears of ground rents. The appellant paid the same on 5th July 1978 and thereafter continued to pay property rates from 1977 to 1983. The Ministry did what they did quite cognizant of the provisions of the Land Use Act. The Land Use Act, 1978 was promulgated as Decree No.6, 1978, on 29th March, 1978. The Land Use Act provides in section 34 thereof inter alia-
- (1) the following provisions of this section shall have effect in respect of land in 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 a statutory right of occupancy issued by the Government 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.
Section 35 (1) of the Act puts it beyond doubt that section 34 of the Act shall have effect notwithstanding that the land in question was held under a lease hold, and that compensation for, improvements thereon shall be paid by the Governor in accordance with section 29 of the Act if the right of occupancy is revoked by the Governor for over ridding public interest under section 28 of the Act. Overriding public interest defined by section 28 (2) of the Act does not include sale of the land to a private individual as the 1st Respondent. It means: where the occupier had caused alienation of his interest in the land contrary to the provisions of the Act (subsection 2 [a]); or the requirement of the land for public purpose by the Federal, State or Local Government (subsection 2 [b]); and/or the requirement of the land for mining purposes or oil pipelines or for any purpose connected there with (subsection 2 [c]). It is the law that a public institution or authority cannot use its powers of compulsory acquisition of property to satisfy private interest of individuals. Doing so is abuse of powers vested by law on such institution or authority. See BELLO v. DIOCESSAN SYNOD [supra].
Where a statute confers a power, particularly one which may be used to deprive the subject of proprietary rights, the courts will confine those using the power to the strict letters of the statute. Accordingly, it has been the policy of the courts to declare that those the legislature has given power to interfere with private property for one purpose should not use that power for another purpose. That has been a well settled policy of the courts of law and equity to restrict the exercise of such power to its definite object. See CALLOWAY v. THE MAYOR & COMMONALTY OF LONDON (1866)1 A.C. 34; WESTMINISTER CORP v. LONDON & NORTHWEST RAILWAY CORP.(1905) A.C. 426 adopted and applied by the Supreme Court in BELLO v. DIOCESSAN SYOD [supra]. And also MAXWELL: INTERPRETATION OF STATUTES. It is in the with this policy of great antiquity that the Supreme Court, in OSHO v. FOREIGN FINANCE CORP (1991) 4 NWLR [pt.184] 157 at 201 held that “public purposes”, as defined in section 51 of the Land Use Act, do not include the revocation of the right of occupancy of one grantee for the purpose of vesting in another.
The Land Use Act, in my view has further strengthened the right of the Appellant to own the interest in the disputed property as a holding over lessee of State land who continued to pay rents after the expiration of his lease hold and who had not been dispossessed in accordance with the procedure enacted by section 28 (1)of the State Lands Law, Cap.122, and whose lease is by law deemed to enure or continue to enure. The Appellant is a tenant at will. Notwithstanding that his leasehold expired in 1968, his leasor years after formally released the control and management of it to him and thereafter received, on demand, arrears of rents from him. In law the conduct of his landlord, the 2nd Respondent is tantamount to renewal of the leasehold. Section 50 (2) (b) of the Land Use Act that provides that-
any instrument or other evidence relating to the allocation of any land, whether or not expressed to have been made after the Act, shall be deemed to have been validly issued or given under or pursuant to this Act and shall continue to have effect according to its tenor and intendment accordingly, seems, in my view, to save or further save the lease held by the Appellant.
All I have been trying to say is that Issue NO.1 whether as formulated by me or counsel respectively for the Appellant and 1st Respondent, deserves to be and is hereby resolved in favour of the Appellant. The Appellant’s interest to the disputed property, including his right of occupancy or possession of the same, remains inviolate and extant in law notwithstanding the purported sale of the same to the 1st Respondent by the 2nd Respondent, and the latter issuing to the former a purported certificate of occupancy, Exhibit V. A certificate of occupancy shown to have been issued in evidence of a right of occupancy not lawfully acquired within the provisions of the Land Use Act, or any other statute relating to land, is a sham piece of paper. See JOSEPH DALYOP v. GEORGE BUKAR (1981) 1 FNLR 9; DABUP v. KOLO (1995) 9 NWLR [pt.317] 254. The maxim Nemo dat quod non habet very much applies in the instant case. The grantor cannot convey more title to the grantee more than he has or has not. See OSUJI v. OGULAJI (2003) FWLR [pt.l49] 1596
ISSUE NO.2
The learned trial Judge in dismissing the Appellant’s claims had at page 108 of the Record of Appeal, the judgment, held that the Appellant did not plead that the sale of the property in issue by the 2nd Respondent to the 1st Respondent was unconstitutional. At the trial court the Appellant’s counsel had submitted that the sale of the Appellant’s property to the 1st Respondent by the 2nd Respondent, done without paying compensation to the Appellant, violated section 40 of the 1979 Constitution that prohibited expressly the taking of a citizens’ property without compensation and that since the Appellant did not authorize the sale of his property to the 1st Respondent the sale was unconstitutional. The Appellant in paragraph 16 of the statement of claim had averred that as a citizen of Nigeria he was entitled to own property any where in Nigeria. In response to this averment the 1st Respondent averred “that she is also as a Nigerian citizen entitled to own property and that since the house in dispute belongs to her it cannot at the same time belong to the Appellant”. She had averred that she bought the house from the 2nd Respondent.
It is submitted for the Appellant, rightly in my view, that by operation of Order 25 Rules 4 and 6 of Rivers State High Court [Civil Procedure) Rules, 1987, the parties are not expected to plead the law upon which they rely, and that they are only expected to plead facts upon which legal consequences may be inferred. It is sufficient if the material facts. Which will lead to a certain legal result are pleaded. Once such material facts have been pleaded, the inference to be drawn from such pleaded facts and the particulars of the law to be relied upon for such inference need not be pleaded. See ANYANWU v. MBARA (1992) 5 NWLR [pt.242) 386 at 398. From the state of pleadings in this case the necessary inference on whether the Rivers State Government can compulsorily take over the Appellant’s interest in the disputed property and thereafter transfer same to the 1st Respondent without compensation paid to the former is incidental. Appellant needed not to plead the constitutional prohibition against the government acquisition of Appellant’s interest in the disputed property without compensation in the circumstance.
I resolve this issue against the respondents in favour of the Appellant.
ISSUE NO.3
The only dispute is legal, and it is whether the Government of Rivers State can rely on section 10 of the State Lands Law to sell Appellant’s unexhausted improvements on the disputed property to the 1st Respondent upon the expiration of Appellant’s lease granted for 20 years from 1948 to 1968. Available undisputed facts establish that the Appellant was a tenant at will. He held over after the expiration of the lease and was in active possession. He paid ground rents on demand by the Ministry of Lands and Survey, ten years after the expiration of the lease. The 2nd Respondent, years after the expiration of the lease, through the agency of Abandoned Property Authority formally issued Instrument of Transfer of the “management and control” of the disputed property to the Appellant, as the owner thereof. where was also evidence that the 2nd Respondent, at the back of the Appellant and without his knowledge, sold the property to the 1st Respondent and thereafter purportedly issued certificate of occupancy to the 1st Respondent in evidence of the 1st Respondent’s purported right of occupancy over the disputed property. From the state of the pleadings and evidence the resolution of the dispute depend on the legal inference to be drawn from-the available facts.
This has been resolved under Issue 1. Section 10 of the State Lands Law does not avail the Respondents in their contention that the Appellant’s right of occupancy and possession of the disputed property were automatically extinguished upon the expiration of the lease in Exhibit A. The combined effect of the proviso to section 10 and section 28 (1) of the State Lands Law Cap. 122 are that extinction of Appellant’s interest is not automatic upon the expiration of the leasehold. Since the Appellant, as leasee, held over the property and paid ground rents on demand to the 2nd Respondent the expired leasehold, Exhibit A, is in law deemed to have been renewed.
The learned trial Judge was clearly in error to have dismissed the Appellant’s claims, holding as he did that the evidence adduced by the Respondent was stronger than the evidence adduced by the Appellant, as the plaintiff. This issue is also resolved in favour of the Appellant.
The learned trial Judge was in error to have dismissed the Appellant’s claims even in the face of overwhelming decisions of courts superior to his. It is the law under the doctrine of stare decisis that this court is bound not only by decisions of the Supreme Court but also its own decisions. See MEGWALU v. MEGWALU (1996) 2 NWLR [pt.428] 104. It is trite that the trial High court on this doctrine of stare decisis, is bound by the decisions of the Supreme Court and this court. The reckless disregard of the authoritative pronouncements of the Supreme Court and this Court on crucial aspects of this case by the learned trial Judge smacks of judicial impudence. The interpretation of sections 10 and 28 of the State Lands Law, Cap. 122 in UDE v. NWARA [supra] by the Supreme Court and OBIOHA v. DAFE [supra] by this court were useful precedents the trial court could not easily ignore.
The decision of the learned trial Judge dismissing the claims of the Appellant is erroneous. It can not stand. I hereby set aside the said decision, as I allow the appeal. By authority of section 15 of the Court of Appeal Act, 2004 and Order 4 Rules 1 and 3 of the Court of Appeal Rules, 2007 I shall consider the claims of the Appellant at the trial court that were erroneously dismissed with the view of making the appropriate order(s) that the Appellant may appear entitled to.
Appellants claims are as follows –
i. A declaration that the plaintiff is the leaseholder/owner of lease of the piece or parcel of land together with the building thereon situate or lying at No.43 Bishop Johnson Street, Port Harcourt, otherwise known and called plot ‘O’ Block 196 Port Harcourt.
ii. The sum of N5, 5000. 00[five thousand five hundred Naira] being special and general damages for trespass.
iii. Perpetual injunction restraining the defendant her servant or agent and all other persons claiming through her form committing further act of trespass on the said property.
Considering all I have said in the foregoing paragraphs the Appellant, as the Plaintiff, merits these reliefs. Accordingly, I make the orders as prayed. For avoidance of doubt I hereby declare that the Appellant is the lease holder/owner entitled to the right of occupancy and exclusive possession over all that piece or parcel of land together with the building thereon situate or lying at No. 43 Bishop Johnson Street, Port Harcourt, otherwise known and called plot ‘O’ Block 196, Port Harcourt. The 1st Respondent is hereby perpetually restrained by herself, her servant or agents and all other persons claiming through her from committing further acts of trespass on the said property. Undisputed facts are available to the effect that in June, 1984 the 1st Respondent took police and military personnel to No. 43 Bishop Johnson Street Port Harcourt to disturb the peace and quiet possession of the Appellant and his family living thereon. Thereafter the Appellant was made to appear before sanomi Plots Allocation Committee. Taking all these facts and others into consideration I think an award of N5, 500.00 general damages as claimed for trespass in favour of the Appellant against 1st Respondent is fair and just. I order accordingly.
I allow the appeal. Costs assessed at N50, 000.00 are hereby awarded in favour of the Appellant against the 1st Respondent.
Other Citations: (2009)LCN/3433(CA)
