Isaac Ogualaji V. Attorney-General Of Rivers State & Anor (1997)
LAWGLOBAL HUB Lead Judgment Report
O. ADIO, J.S.C.
In the High Court of Justice, Port Harcourt Judicial Division of the Rivers State of Nigeria, the appellant, as plaintiff, sued the respondents. The appellant claimed against the respondents the following reliefs:-
“(1) A declaration that the plaintiff is the owner of the building known as and called Plot 18 Block 256 Orije Layout, Port Harcourt or No. 67 Sangana Street. Port Harcourt or No. 61 Ikot Ekpene Street, Port Harcourt.
(2) A declaration that the purported sale of the said property by the Ministry of Housing and Environment, Port Harcourt to the 2nd defendant without the consent of the plaintiff is unconstitutional, null and void and of no effect whatsoever.
(3) An injunction restraining the 2nd defendant from entering, trespassing or doing anything whatsoever on the said property which is against the proprietory interest of the plaintiff in the said property. ”
The evidence led by the appellant was that the parcel of land on which he built a house, which is now in dispute, was assigned to him by one Mr. Briggs who got an original lease of it from the then Government of Eastern Nigeria. According to the appellant, when war broke out in Nigeria in 1967, he (appellant) left Port Harcourt. After the end of the civil war the house was returned to him by an instrument of transfer dated 17/1/93 by the Abandoned Property (Custody and Management) Authority of the Rivers State Government. The appellant took possession of the property, renovated it and put some persons there as his own tenants.
The 1st respondent led evidence that the lease of the said property was originally granted to one Mr. Briggs who assigned his residual interest in the lease to the appellant. The residual interest assigned to the appellant expired on 31/12/68. It was contended for the 1st respondent that on the expiration of the original lease on 31/12/68 the land reverted to the Government of the Rivers State. It was also contended for the 1st respondent that the land did not really become an abandoned property and that the Government of the Rivers State eventually sold it to the 2nd respondent.
The 2nd respondent led evidence that the land in dispute belonged to him. He purchased it from the Rivers State Government.
After consideration of the evidence led by the parties and of the submissions of their learned counsel, the learned trial Judge dismissed the appellant’s claim. He held that on the expiration of the lease granted to Mr. Briggs, which was subsequently assigned to the appellant, the appellant ceased to have any interest in the land in dispute or in the building thereon. He also held that, in the circumstance, the Government of the Rivers State was perfectly entitled to sell the land in dispute to the 2nd respondent.
Dissatisfied with the judgment of the learned trial Judge, the appellant lodged an appeal against it to the Court of Appeal. The Court below dismissed the appeal. The court below affirmed the decision of the learned trial Judge that at the time that the Government of Rivers State sold the land in dispute to the 2nd respondent, the appellant no longer had any interest in the land in dispute as the lease granted to one Mr. Briggs which was subsequently assigned to the appellant had expired. It also held that the property in dispute was not really an abandoned property.
Dissatisfied with the judgment of the court below, the appellant has lodged a further appeal to this court. The parties duly filed and exchanged briefs. The appellant filed an appellant’s brief and each of the respondents filed a brief. The appellant filed a reply brief to the brief of each of the respondents. When the appeal came before us, the learned counsel for each of the parties made oral submissions to us. Several issues for determination were raised by the parties in their briefs.
In my view, most of them were minor issues because the resolution of them in favour or against any of the parties would not necessarily result in this appeal being determined in favour of that party. For example, there was a complaint against the rejection of an alleged instrument of transfer of the property in dispute to the appellant as an abandoned property. Altogether four issues were raised in connection with that aspect of the appeal, namely, issues No. 1,2,3, and 5 in the appellant’s brief. Be that as it may, the issues raised by the appellant in his briefs will be used for the determination of this appeal. They are as follows:-
“(1) Was the Court of Appeal right in holding that the rejection of the instrument of transfer by the court of trial is no longer appealable being that the appellant consented to it.
(2) Did the refusal of the Court of Appeal to consider the issue of the rejection in evidence of the instrument for transfer and did the rejection of the instrument of transfer in evidence by the trial court occasion a miscarriage of justice to the appellant
(3) Did the failure of the Court of Appeal to consider the issue of the refusal of the trial court to grant leave to the appellant to amend his statement of claim or pleadings particularly paragraph 11 to reflect a Rivers State Government Official Gazette No. 39, Volume 4 of 1st August, 1972, occasion any miscarriage of justice to the appellant
(4) Was the Court of Appeal correct in holding in its judgment dated 16th February, 1973. affirming the decision of the court of trial as per the judgment of Justice Fiberesima, J. delivered on 9th July, 1986 that at the time of the sale of property in dispute by the 1st respondent to the 2nd respondent in 1982, the appellant no longer had any interest in the property as by effluxion of time his interest or title had expired as at 1st January, 1969
(5) Did the refusal of the trial court to grant leave to the plaintiff/appellant to amend his statement of claim to reflect the said Rivers State Government Official State Gazette No. 39 Volume 4 of 1st August, 1992, occasion any miscarriage of justice to the appellant
(6) Whether the Court of Appeal was correct in holding in its judgment that the sale of the property to the 2nd respondent was valid.”
I will consider issues numbers, 1.2,3 and 5 together. All the aforesaid issues concerned the alleged purported transfer of the property in dispute to the appellant as an abandoned property.
The contention made for the respondents was that the purported transfer of the property by an instrument executed in favour of the appellant and the publication thereof in the Government of Rivers State Gazette were all based on the erroneous belief or ground that the property in dispute was an abandoned property under the appropriate or relevant legislation. The evidence, which was unchallenged and uncontradicted, led by the 1st respondent was that the original lease of the land in dispute, which was granted to the predecessor-in-title of the appellant, one Mr. Briggs who assigned it to the appellant. was to run from 1st January, 1959, to 31st December, 1965, and was initially for a period of seven years. In 1963, the lease was extended for another five years. The unexpired portion of the lease was assigned by Mr. Briggs to the appellant. The unexpired portion of the lease aforesaid assigned to the appellant expired on the 31st December. 1968 and the appellant did not apply to the Rivers State Government for a renewal of the lease at any time. Evidence, which is unchallenged, uncontradicted and in respect of which there is nothing showing that it is incredible should be admitted. See: Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417.
The aforesaid evidence led by the 1st respondent was, therefore, rightly admitted. The fundamental issue raised under issues 1, 2, 3 and 5 was that the appellant was wrongly deprived of the opportunity to prove that the appropriate authority released the property in question to him as an abandoned property. According to the appellant, by wrongfully making it impossible for him to prove that the property was released to him as an abandoned property what the court below did had occasioned a miscarriage of justice to him.
This aspect of this case appears to make an issue which arose in Ude v. Nwara (1993) 2 NWLR (Pt.278) 638 relevant in this case. In Ude’s case, supra, the property in question was released to the appellant though it was later alleged that at the time of the release the lease originally granted to the appellant in that case had expired. This was also the allegation in the present case. In Ude’s case, this court held, inter alia. that by operation of the rule of estoppel a man is not allowed to blow hot and cold. He cannot affirm at one time and deny at the other or to approbate and reprobate. He cannot be allowed to mislead another person into believing in a state of affairs and then turn round to say to that person’s disadvantage that the state of affairs which he had represented does not exist at all or as represented by him.
In the circumstance, the appropriate authority could not be heard to say that he had released the property in dispute to the lessese by an instrument of transfer and turn round to impugn the release on the ground that the lease thereof had expired before the release. The contention made for the appellant was that there was no good reason why the same conclusion should not be reached in this case. It is not enough to complain that evidence was wrongfully rejected. Wrongful rejection of evidence will not alone constitute a good ground for reversing a decision. The party complaining must also show that if the evidence had been admitted the decision in question would have been otherwise. See: Idundun v. Okumagba (1976) 9-10 SC 227.
The judgment of the court below cannot be reversed merely because of the rejection of the alleged evidence. It must appear to the court on appeal that had the evidence, so excluded been admitted it may reasonably be held that the decision could not have been the same. See: Section 22(2) of the Evidence Act. In this case, if the evidence of the release of the property in question by the appropriate authority to the appellant as an abandoned property had been admitted, the decision would not have been the same. The court below would have, in the circumstances which were similar to those in Ude’s case, supra, come to the same conclusion reached by this court in Ude’s case, supra. The respondents would not have been able to rely on the expiration of the term of the lease to defeat the claim of the appellant. The rejection of the evidence of release of the property to the appellant as an abandoned property occasioned a miscarriage of justice to the appellant.
The next question is the question raised under the sixth issue. The question was whether the Court of Appeal was correct in holding in its judgment that the sale of the property to the 2nd respondent was valid. The learned counsel for the appellant pointed out that the alleged conveyance of the land in dispute by the 1st respondent to the 2nd respondent in fee simple absolute was wrong and invalid.
The learned counsel for the 1st respondent conceded the point and argued that a fee simple absolute in relation to a parcel of land could not be granted under the State Lands Law or under the Land Use Act. I think that the point was well taken. An absolute ownership of land is vested in the Governor of each State. An individual person can only have or acquire possessory title, statutory or customary. See: Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192. This court, per Obaseki, J.S.C.. in Abioye v. Yakubu (1991) 5 NWLR (Pt.190) 130 at p. 223 clarified the position when he stated, infer alia, as follows:-
“It has been said that the Land Use Act 1978 has revolutionised the land tenure system in Nigeria and has removed the radical title from individual Nigerians and vested the land in the Military Governor of each State in trust for the use and benefit of all Nigerians (see section 1). The expressed provision of section 1 of the Act gives credence to this statement. Having removed the radical title from Nigerians, it has vested the control and management of the land in each state in the Military Governor in the case of land in the urban areas (see section 2(1)(a) and in the Local Government in the case of non-urban areas (see section 2(1)(b). The only interests in land the Military Governor and the Local Government can lawfully grant are rights of occupancy. (See sections 5 and 6). These rights of occupancy fall into two categories, namely (a) statutory right of
occupancy. (See section 5(1) and (2), customary right of occupancy (see section 6(1) (a & b). They cannot grant absolute interests or fee simple absolute to any person.”
The answer to the question raised under the 6th issue is in the negative.
If the sale of the land in dispute was invalid, did the appellant have any proprietory interest in the building known and called Plot, 18, Block 256 Orije Layout, Port Harcourt What one has to make clear is that the unexpired part of the lease of the land, on which a building was erected and which was granted to the appellant by one Mr. Briggs had expired. The appellant had not applied to the 1st respondent and the 1st respondent never granted the renewal of the lease. Ordinarily, when a lease expires, the relationship of a lessee and a lessor between the grantee and grantor ends, unless there is any agreement or statutory provision to the contrary. In the present case, the main issue is the effect of sections 10 and 28 of the State Lands law, Cap. 122 of the Laws of Eastern Nigeria, 1963, applicable in Rivers State. Section 10 of the Law provides as follows:
“In the absence of special provisions to the contrary in any lease under this Law all buildings and improvements in State Lands, whether erected or made by the lessee 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 the contrary in the lease, when land is leased for a term not exceeding thirty years the lessee 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 such lease, unless the Minister shall elect to purchase such buildings. In the event of the Minister and the lessee not agreeing as to the purchase price of such buildings the same shall be determined by arbitration. The lessee shall make good any damage done to the land by any such removal.
The foregoing provisions of section 10 of the State Lands Law are very clear and unambiguous, Where the words used in the provisions of a legislation are clear and unambiguous it is the words used that govern. The words should be given their ordinary meaning. See Abioye v. Yakubu, supra; Udoh v. Orthopedic Hospital Management Board & Ors. (1993) 7 NWLR (Pr.304) 139 and Odubeko v. Fowler (1993) 7 NWLR (Pr.308) 637. It is, therefore, not clear why the appellant and the 1st respondent, the previous lessee and the lessor respectively, of the property in dispute were behaving as if the provisions of sections 10 and 28 of the State Lands Law, Cap. 122 did not apply to the expired lease. On the determination of the lease when the time for which it was granted expired, the right or interest of the appellant, if any, was prima facie limited by section 10 of the Law to the removal of any building erected by him on the land leased during the currency of such lease. Since the Minister did not elect to purchase the buildings it may be argued that the appellant should be deemed to have waived his right or interest. if any, to remove the buildings because of his failure to remove them within three months of the expiration of the period of the unexpired portion of the original lease. That will be a simplistic view of the matter which ignores the fact that the Law itself enabled the appellant (as tenant under the original lease) to stay on and remove his building within three months after the expiration of the lease, and the fact that after the expiration of the aforesaid statutory period of three months the appellant stayed on, held over, and remained in possession without the assent and dissent of the 1st respondent. The appellant thus became a tenant at sufferance having come into possession of the land lawfully in the first place. He was, as such liable for use and occupation of the land but he could rely upon his possession of the land against the whole world until the lessor recovers possession from him in the manner authorized by law. The foregoing was the interest, if any, and the extent of the interest of the appellant in the property. in dispute, at the time that the 1st respondent purported to sell it to the 2nd respondent.
The provisions of section 28 of the Law then become relevant. The section provides for the manner whereby the lessor could, in the circumstance, recover possession. If the Law prescribes a particular method of exercising a statutory power, any other method of exercise of it is excluded. There could, therefore, be no question of the lessor, in this case, recovering possession by resorting to a right of re-entry or any other type of self-help See Ude’ s case, supra at p. 661. Section 10 of the Law is complemented by section 28 which sets out the procedure for recovering possession from a lessee who holds over after his term has expired.
There could be no question of the house or the land or both automatically reverting to the 1st respondent simply because the lease had expired and had not been renewed.
What then is the position of the 2nd respondent who alleged that he bought the property in dispute which was sold to him by the 1st respondent in fee simple absolute The contention of the appellant was that, apart from other things, he (appellant) was in possession of the property at the material time because the building was occupied by his (appellant’s) tenants. The occupation of a house by a tenant or tenants put there by a landlord is, in law. regarded as the occupation of the house by the landlord who puts the tenants there. See: Mogaji v. Cadbury Fry Export Ltd. (1972) 1 All NLR (Pt.1) 81 at p. 88. When the 1st respondent purported to sell the property in dispute to the 2nd respondent in fee simple absolute, the appellant was in possession of the property in dispute as a lessee whose lease had expired but who was holding over. The appellant was still in possession though his lease which had expired had not been renewed. In the circumstances, the appeal of the appellant succeeds. I allow the appeal and set aside the judgment of the High Court and of the Court of Appeal including the order for costs. For the avoidance of doubt:-
(1) I grant a declaration that the appellant is the owner of the building known as and called Plot 18, Block 256, Orije Layout, Port Harcourt or 61 Sangana Street or No. 61 Ikot Ekpene Street. Port Harcourt.
- I grant a declaration that the purported sale of the said property mentioned in paragraph (1) above, by the Ministry of Housing and Environment, Port Harcourt to the 2nd respondent without the consent of the appellant was unconstitutional, null and void and of no effect whatsoever.
- I make an order of injunction restraining the 2nd respondent from entering, trespassing or doing anything whatsoever on the said property which is against the proprietory interest of the appellant in the said property.
- N1,000 is awarded to the appellant as costs in this Court and N500.00 awarded to him as costs in the courts below.
S. M. A. BELGORE, J.S.C.: I had the privilege of reading in advance the judgment of my learned brother, Adio, J.S.C. and I agree with his conclusion based on his consideration of all the issues in this appeal. For the same reasons in the said judgment, I also allow the appeal with the consequential orders therein.
SC.218/1993
