Major Paul Dickson & Anor V. The Solicitor General Benue-plateau State (1974)
LawGlobal-Hub Lead Judgment Report
COKER, J.S.C.
Although the respondent’s statement of claim in the concluding paragraph spells out a number of claims against the defendants, who are now the appellants, it is clear that the substantive claim against the appellants is for situate their eviction from premises situate at No. 14, Naraguta Avenue, Jos. In the High Court, Jos, the parties filed their pleadings and, by virtue of paragraph 4 of the plaintiff’s statement of claim, which was admitted by paragraph 3 of the defendants’ statement of defence, it is clear that the property concerned was occupied by whoever did so under a “statutory right of occupancy”.
It is stated that the Certificate of Occupancy relevant to the property is No. 9354. At the end of the trial, the learned trial judge gave judgment in favour of the plaintiff, the Solicitor-General of the Benue-Plateau State, now respondent, and made an order of eviction against both defendants who are in physical possession of the premises. The learned trial judge held that the sale or purported sale of the property by S.G. Bonomi Ltd., to the 2nd defendant, through whom the 1st defendant occupied the property, was illegal and ineffective and therefore the occupation of the premises by the defendants or either of them could not be justified.
The defendants have now appealed to this Court against that decision and it was argued for them that the purported revocation of the Certificate of Occupancy No. 9354 granted to S.G. Bonomi Ltd., was invalid and that as the plaintiff’s case throughout was based on that revocation, the learned trial judge should have dismissed the plaintiff’s case and not given judgment against the defendants. The learned Acting Director of Public Prosecutions, Benue-Plateau State, refuted this argument and contended that the defendants had shown no justification for their occupation of land in respect of which the Government of Benue-Plateau State had not only granted a Certificate of Occupancy to the Company. S.G. Bonomi Ltd., but also had both acquired the property back from this Company and also paid the Company compensation for such acquisition.
The arguments before us have been elaborate and perhaps as well interesting but the issue to be decided falls within a small compass. Section 39(3) of the Land Tenure Law, cap. 59, provides that in proceedings brought for the recovery of possession of native lands (which the property in question is by virtue of section 4 of the Land Tenure Law) against any person who is in unlawful possession thereof, the burden of proving a claim by the defendant to any right, title or license shall rest upon him. In the case in hand, the defendants based their claim to the right to be in possession of the premises concerned on:
(i) An agreement by them with S.G. Bonomi Ltd., to sell the property to them or to the 2nd defendant and a payment of an amount of 6,500 Pounds (or N13, 000) to that Company; and
(ii) A power of attorney produced in evidence at the trial as Exhibit 5.
The plaintiff’s case is that the consent of the Commissioner of Lands was not obtained as it should have been obtained to either of these transactions. It is not disputed that the consent of the Commissioner of Lands was not obtained to these transactions and indeed the first defendant in the course of his evidence at the trial stated that to the best of his knowledge no consent of the Commissioner of Lands was obtained to the purported agreement of sale.
The section prescribes as a prerequisite to the legality of any of the transactions contemplated by it that the consent of the Commissioner of Lands should “first be had an obtained”. This means what the section says and unless such consent was first had and obtained before the occurrence of the relevant transactions, the consequences envisaged by the section must follow. We have come to the conclusion clearly in our minds that both transactions offend against the clear provisions of section 28(1) of the Land Tenure Law, Cap. 59. Section 28(1) provides, inter alia, as follows:
“28(1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Military Governor or the Commissioner to alienate his right of occupancy or any part thereof by sale, assignment, mortgage, transfer of possession, sublease, bequest or otherwise howsoever without the consent of the Commissioner first had and obtained.”
The first clause in the power of attorney, which admittedly is unusually exhaustive and elaborate, transfers to the donee of the power of attorney the right to the possession of the premises in question. As this is one of the matters contemplated by section 28(1), it is manifest that the power of attorney itself offends against that section. It is easy to see that the defendants had made out no case at all to entitle them to be in lawful possession or occupation of the property in question and that the learned trial judge was right to conclude that they should be evicted.
A number of other minor points were raised on behalf of the defendants but we do not consider it necessary to deal with all of them. We think it clear that once it is established, as indeed it is in this case, that the defendants have no right to be in possession of the property concerned, it does not matter to them who else occupies it or whether or not the plaintiffs have done or refrained from doing anything of which only the Company, S.G. Bonomi ltd., could complain.
It was argued for instance that the Attorney General of the State should not have instituted by the Solicitor-General but the action by virtue of section 39(1) of the Land Tenure Law. This point was never raised at any stage of the proceedings and we do not think that it could be raised for the first time before us. But besides, this argument overlooks the provisions of section 35 pan 2 of Decree No. 1 of 1966-Constitution (Suspension and Modification) Decree No.1 of 1966 and section 46(4) of the Land Tenure Law, Cap. 59. We have no doubt whatsoever that all the grounds of appeal argued on behalf of the appellants must fail.
The appeals fail and are dismissed. The appellants will jointly and severally pay to the respondent the costs of this appeal fixed at N65.
Other Citation: (1974) LCN/1931(SC)
