Napoleon S. Orianzi V. The Attorney-general, Rivers State & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

The Appellant in this appeal was the plaintiff at the Rivers State High Court, sitting in Port Harcourt. His claims as endorsed at paragraph 18 of his statement of claim filed on the 9th of May, 1989 are as follows:-

“Wherefore the plaintiff claim from the Defendants a Declaration that:-

a) The plaintiff is the person entitled to the statutory Right of Occupancy of the Land known as Plot 46, Diobu GRA Phase 1, Port Harcourt otherwise known as and called No.46, Obagi Street Phase 1, GRA, Port Harcourt.

(b) The appointment of the Sanomi Commission of Inquiry and the recommendation of the said commission in respect of the aforesaid property as published in the Commission of the Government of Rivers State on the Report of the Commission of Inquiry into Allocation of Plots and sale of Abandoned Houses In Port Harcourt during the period 1st October, 1979 to 31st December 1983 under the chairmanship of Mr Dickens Sanomi by the Rivers State Government is irregular, null and void, and of no effect.

(c) The purported sale of the said property by the

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2nd Defendant is unconstitutional, null and void and of no effect.

2. N10,000.00 general damages for trespass.
3. Perpetual injunction restraining the Defendants, their agents or servants from further trespass to the plaintiffs said property”.

The 2nd Respondent/Defendant filed a 7 paragraphs statement of defence on the 23rd January, 1991. The 1st Respondent/Defendant filed an 8 paragraph statement of defence which he later amended. The 7 paragraph amended statement of defence was filed on the 21st July, 1993. For the 3rd and 4th Respondents who were the 3rd and 4th Defendants at the trial Court, a 19 paragraph statement of defence was filed. Issues having been joined, the case proceeded to trial. At the end of the trial and address, and in a reserved and considered judgment delivered on the 24th March, 1997 Ndu J granted all the reliefs which the Appellant asked for, except for the claim for general damages for trespass which was reduced to N300.00.

The Respondents herein were dissatisfied with the Judgment of the trial Court. Being aggrieved they appealed to the Court of Appeal, Port Harcourt Division. The appeal was heard and in a

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unanimous decision of the justices that sat on the appeal, delivered on the 5th day of April, 2001, the decision of the trial Court was set aside and the claim of the Appellant at the trial Court was dismissed with cost assessed at N5,000.00. The Appeal herein is against the decision of the lower Court. The Appellant’s notice of appeal, at pages 254 to 260 of the record contains 8 Grounds of Appeal.

Parties filed and exchanged briefs of argument. Chief C.A.B Akpananta, learned senior counsel for the Appellant submitted six issues for determination of this appeal as follows:-

“(i) Whether the Appellant had a Right of Occupancy over the disputed property and was at all material times in possession of the said property.

(ii) Whether the Appellant’s Right of Occupancy was validly revoked according to law or as required by the Land Use Act, 1978.

(iii) Whether the Appellant’s Right of Occupancy over the property in dispute was automatically extinguished under Section 5(2) of the Land Use Act by the purported grant of a statutory right of occupancy over the same property to the 3rd and 4th Respondents’ predecessor – in- title.

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(iv) Whether the purported sale agreement with the 3rd and 4th Respondents’ predecessor-in-title and the purported statutory certificate of occupancy issued to him over the said property in dispute were valid in law.

(v) Whether it is the requirement of the law that in order to save an earlier grant of a right of occupancy, the later right of occupancy must be expressly set aside.

(vi) Whether the respondents were trespassers and accordingly liable to pay damages to the appellant.

Mr. Ayodeji Omotoso, learned counsel for the 1st Respondent, who also settled the 1st Respondent’s brief of argument issued a preliminary objection in the following words:-

“Notice is hereby given that the 1st Respondent shall by way of objection, urge on the Court to discountenance Grounds 1 and 4 of the Appellant’s Grounds of Appeal and issue No. ii purportedly distilled from the 2 Grounds of Appeal. Learned counsel argued the preliminary objection and thereafter formulated five issues for determination of this appeal. I shall consider the learned counsel’s argument in his preliminary objection anon. The issues submitted on behalf of the 1st Respondent are

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hereunder reproduced for consideration as follows:-

1. Whether the lower Court was justified in deciding that the Appellant had no prior interest in the property granted or deemed to have been granted under the Land Use Act.
2. Considering the state of pleadings and the evidence adduced at the trial, whether the lower Court was justified in holding that “whatever interest the Appellant had in the property was canceled by the Rivers State Government Notice No. 3 of 1986” and automatically extinguished by the grant of a statutory right of occupancy over the property to the 3rd and 4th Respondents’ predecessor-in-title under Section 5(1) of the Land Use Act.
3. Having regard to the state of pleadings and the evidence adduced, whether it was proper for the lower Court to have upheld the validity of the sale agreement and the certificate of occupancy granted to the 3rd and 4th Respondents – predecessor-in -title.
4. Whether the lower Court was also justified in holding that to save an earlier grant of a right of occupancy, the later right of occupancy ought to be expressly set aside.
5. Whether, going by the entire

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circumstances of the case, the lower Court was justified in holding that the Respondent (now Appellant) was clearly not in possession of the property in dispute, and therefore that he is not entitled to damages for trespass, as the Appellant (Respondent) cannot be adjudged trespassers on the property in dispute in view of Exhibit D4 (certificate of Occupancy) granted to Dr. Dima (3rd and 4th Respondents predecessor-in-title) over the property.

For the 2nd Respondent, Wilcox Abereton, Esq of counsel who settled the 2nd Respondent’s brief of argument formulated five issues as well, for determination of this appeal.

These issues read as follows.-

1. Whether the Appellant made out a case of invalid cancellation/revocation of his right of occupancy over the property.
2. Whether the learned justices of the Court below were not right in holding that Exhibit P3 (Land Agreement) was not a document which could confer a legal title on the appellant ranking above Exhibit D4 (the certificate of occupancy) granted by the Governor to the predecessor of 3rd and 4th Respondents.
3. Whether the Court below was wrong to hold

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that the statutory right of occupancy vide Exhibit D4 granted by the Governor to the predecessor in title of 3rd and 4th Respondents automatically extinguished any other title the Appellant might have over the property.

4. Considering all the circumstances of this case, was the Court below wrong in holding that to save the earlier right of occupancy of the Appellant over the property, he (Appellant) must expressly seek to set aside the later statutory right of occupancy granted to the predecessor-in-title of the 3rd and 4th Respondents.
5. Was the Appellant in possession of the property in dispute at all material times to this suit to enable him succeed in his claim for damages for trespass.

Mr. J.T.O Ugboduma learned counsel for the 3rd and 4th Respondents who also prepared their brief of argument distilled four issues for determination of this appeal. These issues are as follows:-

“1. Whether the interest the Appellant had in the property was a right of occupancy granted or deemed granted under the Land Use Act which conferred on the Appellant a legal title over the property.

2. Whether the Appellant’s interest in the property was

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cancelled by the Rivers State Government Notice No. 3 of 1986.

3. Whether the lower Court was justified in upholding the validity of the Sales Agreement (Exhibit 9) and the statutory right of occupancy (Exhibit D4) granted in favour of the 3rd and 4th Respondents predecessor-in-title and in holding that whatever interest Appellant had in the property was automatically extinguished under Section 5(2) of the Land Use Act upon the grant of the said statutory right of occupancy.
4. Whether the lower Court was justified when it held that the Appellant was not in possession of the property at the material time and therefore not entitled to damages for trespass against the 3rd and 4th Respondents who cannot be adjudged trespassers in view of the statutory right of occupancy granted to Dr Dima (deceased) over the property.

Before I go into the arguments of counsel for the respective parties. I wish to set out albeit in brief, the facts of this case.

Sometimes in 1981, the Rivers State Government offered to sell the disputed property, an abandoned property to the Appellant, who accepted the offer and paid a deposit of N10,000.00 towards its

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total value. An agreement evidencing the sale was subsequently entered into between the Appellant and the Secretary to the Government of Rivers State and the Appellant was put in possession after the agreement aforesaid was registered in the Land Registry.

When the military took over the government in 1983, the Appellant was put in detention and his properties including the disputed property were confiscated.

After his release, he was made to appear before Justice Uwaifo Special Panel on Recovery of Public Properties in Lagos.

The Panel recommended that all his properties including the disputed property be returned to him. This recommendation was approved by the Armed Forces Ruling Council, which was the highest ruling body in the country at the time. Later, the Rivers State Government appointed Sanomi Commission to look into the allocation of plots and abandoned properties between 1st October, 1979 and 31st December, 1982. This commission recommended to the Rivers State Government that the disputed property be retained as Government Quarters. The Rivers State Government accepted the recommendation and published in its

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gazette that the Appellants right over the said property had been revoked. The property was retained as government quarter for six months and was subsequently sold to Dr. Charles Dima of blessed memory inspite of Appellant’s protest through (Exhibit 8) to the 2nd Respondent against the sale.

Learned counsel for the 2nd Respondent issued a preliminary objection and argued same at pages 12 16 of his brief of argument. Learned counsel for the appellant also issued a preliminary objection in his reply brief to the 2nd respondents brief of argument. These preliminary objections were however withdrawn before the hearing of the appeal. They were accordingly struck out. The only preliminary objection left for consideration is the one issued by the learned counsel for the 1st Respondent. Even at the risk of repetition, I wish to set out the objection here for clarity sake. This is how it reads:-

“Notice is hereby given that the 1st Respondent shall by way of objection urge on the Court to discountenance Grounds 1 and 4 of the Appellants’ grounds of appeal and issue No. 11 purportedly distilled from the two (2) Grounds of

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Appeal”.

Where a preliminary objection is issued against any aspect of an appeal, it must be heard and resolved first before the resolution of the issues for determination of the appeal. The reason for this is obvious. An appeal heard on a defective process will result in a void decision.

In his argument in support of the objection, learned counsel for the 1st Respondent submitted that the 1st ground of appeal does not arise from the decision of the lower Court as the lower Court never made any pronouncement to the effect that the Appellant had a right of occupancy that was revoked. Learned counsel contends that any ground of appeal which does not arise from the decision against which the appeal lies is incompetent.

In aid the authority in Saraki V. Kotoye (1992) 279 NWLR (Pt.264) 156 was cited and relied upon.

In a further argument learned counsel submitted that the second issue for determination of this appeal which is formulated on behalf of the appellant partly from the 4th Ground of Appeal, is at variance with the said 4th ground of appeal. On this basis, learned counsel on the authority of Morakinyo V. Adesonyero

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(1995) 7 NWLR (Pt. 409) 602 and Adelaja v Fanoki (1990) 2 NWLR (Pt. 131) 137 urged this Court to discountenance with the said issue and the argument in support thereof. Still in argument learned counsel submitted that since the Appellant has abandoned Ground 4, he has accepted the finding of the lower Court that says the Appellant’s interest in the property was cancelled by the Rivers State Government vide legal notice No. 3 of 1986, as such he has no valid interest upon which his claims will be resolved. The issue of whether the Appellant’s interest was cancelled by the Rivers State Government legal notice No. 3 of 1986, is not a matter to be resolved through preliminary objection as it is one of the core issues to be determined in the main appeal. The law is settled beyond any doubt that grounds of appeal must arise and be related to the decision against which appeal lies, and should constitute a challenge to the ratio of the decision. Any ground of appeal that formulated outside the decision appealed against is incompetent and ought to be discountenanced. See Saraki V. Kotoye (Supra); Egbe V Alhaji (1990) 1 NWLR (Pt. 128) 546 at 590. The objection herein is

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directed at the 1st and 4th grounds of appeal. I reproduced these grounds hereunder as follows without their particulars-

“1. The Court of Appeal erred in law in holding that the revocation of the Appellant’s right of occupancy was valid.

4. The Court of Appeal erred in law in holding that the Appellant’s interest in the property was cancelled by the Rivers State Government Notice No. 3 of 1986.”

At page 245 of the printed record of this appeal, the lower Court in its judgment said:-

“Secondly, upon the grant of a statutory right of occupancy (Exhibit D4) to the Appellant’s predecessor-in-title over the property in dispute, whatever interest the respondent had in the property is automatically extinguished.

Still on the same page, the lower Court held:-

“Thirdly, the Respondent’s interest in the property was cancelled by the Rivers State Government Notice No. 3 of 1986.”

Clearly the two grounds of appeal, subject matter of the 1st Respondents objection do relate to the lower Courts decision highlighted above. Whatever the difference in the language used is a matter of semantics. I failed to see how the two

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grounds of appeal do not relate to the decision of the lower Court. The objection lacks merit and it is accordingly overruled.

Now, for the main appeal, I have read through the judgment against which this appeal lies and argument canvassed by parties’ respective counsel and I am of the firm view that the only issue calling for the determination of this appeal is whether the appellant did prove that he is entitled to the declaration of title over the disputed property and there is no feature that deprived him of his right of occupancy over the said property. In his argument, learned counsel for the Appellant submitted that the evidence before the trial Court clearly shows that the Appellant had an uninterrupted right of occupancy over the disputed land, since the purported revocation was not carried out in accordance with the law. According to the learned counsel the right of occupancy acquired by the Appellant remained valid and subsisting at all material time and the burden is on the Respondents to prove that the right available to him has been legally revoked. In aid, learned

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counsel cited the authorities in Nigerian Engineering Works Ltd V. Denap Ltd. (2002) FWLR (Pt.89) 1062 at 1093; Osho v Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157 at 189. Finally, learned counsel urged this Court to hold that the Respondents failed to discharge the burden placed on them.

For the 1st Respondent it is argued that the sale to the Appellant of the disputed property and the subsequent agreement between him and the Secretary to the Rivers State Government heavily relied upon by the Appellant does not constitute an interest that could confer a right of occupancy on the Appellant under the Land Use Act. According to the learned counsel for the 1st Respondent, the Appellant’s interest which was created in 1983, not having been granted by the Governor does not confer legal right on the Appellant under the Land Use Act, same not having been evidenced by a certificate of occupancy. In a further argument, learned counsel submitted that the issue of whether or not the Appellant had a prior legal right before the revocation does not lie in the mouth of the parties, but is rather a matter of law deducible from the proven facts in the

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record before the Court. Finally, learned counsel urged this Court to hold that the lower Court is right in all its pronouncements.

For the 2nd Respondent, it is argued that the appellant neither established a right of occupancy over the disputed property that is known to the Land Use Act nor did he make out a valid case against the cancellation/revocation of his purported interest or right in the property. In a further argument learned counsel submitted that the Appellant had no statutory right of occupancy capable of being revoked under Section 28(6) and 44 of the Land Use Act, as (Exhibit P3) is not a document recognized by it. In aid learned counsel cited Dabo V. Abdullahi (2005) ALL FWLR (Pt. 255) 1039. Finally, learned counsel urged this Court to resolve the 2nd issue formulated by the Appellant and the 2nd Respondent’s issue against the Appellant.

For the 3rd and 4th Respondents it was argued that in Ogunleye V. Oni (1990) 2 NWLR (pt.135) 745 the defendants deemed grant under Section 34(2) of the Land Use Act was preferred to the plaintiff’s later certificate of occupancy issued on 27th June, 1983 where as in this appeal, the

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respondent has no prior interest in the property granted or deemed to be granted under the Land Use Act. Learned counsel tried to distinguish the present case with the case of Registered Trustees of Apostolic Church V Oluwolein (1990) 6 NWLR (Pt.158) 514 and ended up citing Kari V. Ganaram and contended that the agreement to sell the property in dispute to the Appellant as evidenced by Exhibit P3 was not granted under the Land Use Act and therefore does not confer a legal title on the Appellant.

In a further argument, learned counsel submitted that Exhibit P3 is a mere agreement as no Interest passes until the governor’s consent is sought and had. In aid learned counsel cited Awojugbagbe Light Industries Ltd V. Chinukwe (1995) 4 NWLR (Pt. 390) 379 at 438; International ile Industries (Nig) Ltd V. Aderemi (1999) 8 NWLR (Pt.614) 268 at 313 paragraph E-H. In conclusion, learned counsel submitted that for there to be a right of occupancy granted under the Land Use Act such right must actually be granted under the Land Use Act or deemed to be granted under the Land Use Act by the Governor. In aid learned counsel cited Obikoya & Sons Ltd V. Governor

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of Lagos State & Anor (1987) 1 NWLR (Pt.50) 385 at 410 Paragraphs A-B.

I have set out the Appellants claim at the trial Court elsewhere in this judgment. Even at the risk of repetition, I wish to reproduce the first claim as follows:-

“A Declaration that:-

(a) The plaintiff is the person entitled to the statutory right of occupancy of the Land as Plot 46, Diobu, GRA, Phase 1, Port Harcourt, otherwise known as and called No. 46, Obagi Street GRA, Phase 1 Port Harcourt.

Clearly, the Appellant set out a claim for declaration of title to the disputed property. The law is settled that the burden of proof in a claim for declaration of title to land lies on the plaintiff, who generally must rely on the strength of his own case and not on the weakness of the defendants case. See Kodilinye V. Odu (1935) 2 WACA 336, Udegbe V. Nwokafor (1963) 1 SCNLR 184, Woluchem V. Gudi (1981) SC 291, Piaro V. Tenalo (1976) 12 SC 31. In this case, the Appellant who was the plaintiff at the trial Court had the burden to prove that he is entitled to the declaration which he sought at that Court and he was required to

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discharge this burden of proof on preponderance of evidence.

It is also the law that a claim for declaration of title to land may be proved by any of the five ways stated and restated in numerous decisions of this Court. See Piaro v Chief W. Tenalo (supra); Idundun V. Okumagba (1976) 1 NMLR 200; Makanjuola V. Balogun (1989) NWLR (Pt. 108) 192; Otukoya V. Ashiru (2006) ALL FWLR (Pt. 322) 1479. These five methods of proving title or ownership to land are:-

1. By traditional evidence;
2. by production of document of title which must be duly authenticated;
3. by the exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that the person is the true owner of the land;
4. by acts of long possession and enjoyment of the land, and
5. by proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

In Olukoya v Ashiru (supra) this Court gave the third method of proving ownership of land as follows:-

“By acts of selling, leasing, renting out

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all or part of the land or farming on it or on a portion thereof.

In the instant case, the Appellant gave evidence at the trial Court and produced evidence, a letter of offer of the property for sale, receipt for N10,000.00 being the initial deposit paid towards the total value of the property and a copy of the agreement between him and the Secretary to the Government of Rivers State which were admitted and marked Exhibit P1, P2 and P3 respectively. Exhibit P3 was registered in the Land Registry and the Appellant was put in possession or assumed possession over the property. These pieces of evidence were never challenged in anyway by the Respondents. The 3rd Respondent testified at the trial Court as DW1. Her evidence is that her late husband Dr. Charles Dima bought the disputed house from the Rivers State Housing and Property Development Authority, the 2nd Respondent and was subsequently issued with a certificate of occupancy which was admitted as Exhibits D4. In addition one Rhoda Osanebi a staff of the 2nd Respondent testified as DW2. In her evidence she stated that she could identify the signature of Mrs. R Zidougba on any document. She

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identified a document which she said emanated from her office and the signature on the said document was that of Zidougba. Mr. Pepple applied to tender it Chief Asuk had no objection. Thereafter the Court admitted a letter of 27th August 1987 in evidence and marked it Exhibit D5. The identity of Zidougba was not disclosed and the 1st and 2nd Respondents did not call any witness and they also did not testify before the trial Court even though each of them filed a statement of defence. At paragraph 2 of the 1st Respondents amended statement of defence, paragraphs 1, 3, 5 and 12 of the statement of claim were admitted. The admitted paragraphs of the statement of claim are hereunder reproduced as follows:-

(1) The plaintiff is a contractor and resides at No.8, Road 1, Presidential Housing State, Phase 1, Port Harcourt, within the jurisdiction of the Honourable Court.

(3). Sometimes in 1981 the plaintiff applied to the committee on government properties to purchase one of the abandoned properties being sold to the indigenes of Rivers State and by a letter No RSL/9764/14 of 18th May, 1982 the Government of Rivers State offered to the plaintiff to

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purchase the property known as and called No. 46 Obagi Street, GRA, Phase 1. The plaintiff accepted the offer and paid a deposit of N10,000 00 towards the total value of the property when so determined. The said letter of offer will be founded upon at the trial.

(5) On 5th April, 1983, the Secretary to the Rivers State Government on behalf of the Government of Rivers State entered into a sales agreement in respect of the said property with the plaintiff which agreement was registered as No. 39 at page 39 in volume 96 of the Lands Registry, Port Harcourt.

(12) By Legal Notice No. 3 of 1986 published as a supplement to the official gazette Rivers State of Nigeria No. 9 volume 18 of 27th March, 1985, titled “Revocation of Rights and Certificates of Occupancy Order 1986″, the Rivers State Government published the list of properties whose rights and certificates of occupancy were revoked as well as the list of properties to be retained as Government Quarters.

The plaintiff’s said properties appeared in the latter category. The said legal notice will be founded upon at the trial.”

The 1st Respondent partially admitted the 2nd

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paragraph of the statement of claim to the extent that he is the legal officer of the Rivers State Government and he is sued as representing the said Government only.

The facts contained in paragraphs 1, 3, 5 and 12 having been expressly admitted by the 1st Respondent are deemed established. Where an averment in a statement of claim is not denied in a statement of defence, same is deemed admitted. That which is admitted needs no proof. See Adesanoye V. Adewole (2000) 9 NWLR (Pt. 671) at 145 paragraph A. With the admission of the averments and production of documents, Exhibits P1, P2 and P3, the learned trial Judge was convinced that the Appellant had proved its case, when he held:-

It is hereby declared that the plaintiff is the person entitled to the statutory right of occupancy of the land known as Plot 46, Diobu GRA Phase 1, Port Harcourt

By the evidence before the trial Court, l am of the view that the Appellant had on the authority of Idundun V. Okumagba (supra) acquired ownership of the disputed property and was entitled to a statutory right of occupancy. However, the Court of Appeal from which this appeal

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emanated saw the case differently. The Court of Appeal is of the view that the agreement to buy the land when the Land Use Act had been promulgated does not fall under the Act and therefore did not donate to the Appellant any interest on the land which will in turn give the Appellant a right of occupancy. It is also the view of the Court of Appeal that even if the Appellant had any interest on the disputed property same was cancelled by the Rivers State Government Notice No.3 of 1986. It was on these premises that the Court of Appeal reversed the decision of the trial Court and by virtue of Section 5(1) of the Land Use Act, the subsequent sale and issuance of certificate of occupancy to Dr. Dima was declared valid.

Now it is to be noted that the disputed property is an abandoned developed property. Under what tenure was the original owner holding the right over the said abandoned property Did the Rivers State Government take over the property without taking over the corresponding right that the original owner had Lands in the southern part of this country were governed by the Customary Law of the people as opposed to the Land Tenure Law of the north,

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before the advent of the Land Use Act 1978. I am therefore of the firm view that when the Rivers State Government sold the disputed property to the appellant, the right of occupancy of the original owner passed along with the property to him. To that extent he was deemed to have received along with the property the right which enured to the original owner who abandoned the property and same was deemed granted to the Appellant under Section 34(2) of the Land Use Act which provides thus;-

“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 1st and 2nd Respondents did not testify at the trial Court even though they filed statements of defence, which they effectively abandoned. Yet the lower Court in its judgment made the following findings at page 245 of the printed record of this appeal as follows:-

1. The agreement to sell the property in dispute to the respondent ass evidenced by Exhibit P3 was not granted under the

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Land Use Act and does not confer legal title on the respondent compared with the statutory right of occupancy granted to the Appellants’ predecessor-in-title.

2. At the time of the grant (Exhibit D4) to the Appellant’s predecessor-in-title the legal interest over the property was in the Rivers State Government and not the respondent who was never granted a statutory right of occupancy over the property.
3. Upon the grant of a statutory right of occupancy (Exhibit D4) to the Appellant’s predecessor-in-title over the property in dispute whatever interest the respondents had in the property is automatically extinguished.”

These are matters of evidence. The lower Court was wrong when it set up a case for the Respondents. The law is trite that an appellate Court is only concerned with matters that are properly placed before it. It has no jurisdiction over a matter that was not raised and adjudicated upon at the trial Court. The case of Kyari V. Ganaran (1997) 2 NWLR (Pt. 488) 380 is distinguishable from this particular case. In that case Abba Ganaran applied to the Ministry of Land and Survey, Borno State for a grant of a temporary right of

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occupancy over a piece of land along Maiduguri-Bama Road to be used for car wash. What was given to him was a temporary licence which was subject to revocation by the Government at will. In the instant case the Rivers State Government outrightly sold the disputed property to the Appellant and the agreement in respect of the transaction was registered in the Land Registry. Clearly the transaction did not envisage a temporary holding of the disputed property. In that case of Kyari V. Ganaran (supra) Belgore JSC (as he then was) at page 400 paragraph E-F held:-

“Where there is a subsisting right of occupancy, it is good against any other right. The grant of another right of occupancy over the same piece of Land will therefore be merely illusory and invalid. The Appellant’s right of occupancy subsists up to now as it has not been revoked and the wrongful grant to the 1st respondent has no effect whatsoever on its authenticity.”

I completely endorse the views expressed herein by my Lord Belgore, JSC (as he then was).

The Appellant’s claim was not based on non-payment of compensation or lack of notice which the lower Court over-flogged.

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His case is that he was entitled to statutory right of occupancy over the disputed property which I think he successfully established.

On whether the Appellants right was validly revoked, learned counsel for the Appellant submitted that the 1st and 2nd Respondents did not comply with the provisions of Section 28(1) and 44 of the Land Use Act in their purported revocation of the Appellants right of occupancy. Learned counsel urged this Court to set aside the purported revocation on the authority of Nigerian Engineering Works Ltd V. Denap Ltd (2002) FWLR (Pt 89) 1062 at 1085 paragraphs F-G; Osho v Foreign Finance Corporation (1991) 4 NWLR (Pt.184) 157 at 189 paragraph B-C. Finally learned counsel submitted that the burden was on the Respondents to prove that the revocation of the Appellant’s right of occupancy was valid and since they failed to do so, the purported revocation is invalid, null and void.

Learned counsel for the 1st Respondent argued forcefully that the lower Court was justified in holding that whatever interest the Appellant had in the property was cancelled by the Rivers State Government Notice No. 3 of 1986 and was

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automatically extinguished by the grant of the right of occupancy (Exhibit D4) over the property to the 3rd and 4th Respondent’s predecessor-in-title. Learned counsel further argued that the Appellant is not a holder of a right of occupancy over the disputed land as he failed to adduce facts at the trial to show the quantum of interest he had which entitled him to his claim. According to the learned counsel, the nature of interest established by the Appellant does not amount to a right of occupancy, since it was not created before the Land Use Act or under Section 5(1) of the Act. This being so, learned counsel contended that the Appellant was not a holder of right of occupancy and the revocation of his interest did not require strict compliance with Sections 28 and 44 of the Land Use Act. In a further argument, learned counsel submitted that the failure of the Appellant to challenge the revocation is a pointer to the fact that his interest did not measure up to the right of occupancy, as such he cannot be heard in address regarding the improper revocation of his right of occupancy. In aid learned counsel cited Olagunju V. Adesoye & Anor (2009)

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NWLR (Pt.1146) 225 at 255 paragraphs G-H. Finally, learned counsel urged this Court to hold that the lower Court was justified in holding that whatever interest the Appellant had was properly revoked.

For the 2nd Respondent it is argued that Exhibit P3 is a mere inchoate agreement entered into between the Appellant and officials of the Rivers State Government which does not possess any weight and might under the Land Use Act capable of overriding Exhibit D4, a certificate of occupancy issued by the Governor. According to the learned counsel agreement could be entered by parties, but it is the certificate of occupancy that confers title to land.

Learned counsel for the 3rd and 4th Respondents in his argument submitted that the Appellant did not have a right of occupancy granted to him under the Land Use Act by the Rivers State Government and so the issue of whether his right was validly revoked does not arise at all. Learned counsel urged the Court to dismiss the appeal.

Sections 5 and 6 of the Land Use Act empowers the Governor and the Local Government to grant statutory and customary right of occupancy respectively. Section 8 of

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the same Act provides that the statutory right of occupancy granted under Section 5 (1)(a) shall be for a definite time and may be granted subject to the terms of any contract which may be made by the Governor and the holder not being inconsistent with the provisions of the Act. There is however, no such requirement for a customary right of occupancy. Section 10 of the Act provides for certain condition and provisions in the certificate of occupancy upon grant of a statutory right of occupancy as evidence of such grant to the holder of the right of occupancy.

Sections 34 and 36 of the Act provide for deemed right of occupancy by recognizing the existence of right of ownership before the coming into force of the Land Use Act, 1978. It follows therefore that a customary right of occupancy whether granted or already being used or occupied, must be used in accordance with customary law, either by individual or family Thus, under Section 5 and 6 of the Land Use Act, the following units of ownership exist as follows:-

1. Formal statutory right of occupancy granted under Section 5 of the Act.
2. Formal customary right of occupancy granted under

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Section 6 of the Act.

3. Deemed statutory right of occupancy granted under Section 34.
4. Deemed customary right of occupancy granted under Section 35 of the Act.

All these units of rights are recognized under Section 36 of the Act. From the foregoing, customary right of occupancy predates the Land Use Act and it is not a subject of a grant.

I have stated elsewhere in this judgment that the disputed land was deemed granted to the Appellants since the rights of those who abandoned the property are deemed transferred to him. Subsequent sale to Dr. Dima was invalid ab initio, in absence of proper termination of the agreement between the Rivers State Government and the Appellant. In Olohunde & Anor V Adeyoju (2000) 79 LRCN 2297 at 2328 paras D – E, this Court had this to say:-

“A certificate of statutory or customary right of occupancy issued under the Land Use Act, 1978; cannot be said to be conclusive evidence of any right, interest or valid title to land in favour of the grantee. It is at best, only a prima facie evidence of such right, interest or title without more and may in appropriate cases be effectively challenged and

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rendered invalid, null and void.”

See Kyari v Alkali & 3 Ors (2001) 5 SCNJ 421. The 1st and 2nd Respondents admitted that whatever interest the Appellant had over the disputed land was cancelled. The law is settled that he who asserts has the onus to prove what he asserts if he is to succeed. In the instant case the onus of adducing evidence to establish the facts of revocation is under the Evidence Act squarely on the Respondent. The 1st and 2nd Respondents filed their statement of defence and abandoned them as they did not testify before the trial Court.

In Osho V. Foreign Fin. Corp (Supra) at page 201, paragraphs G – H, Belgore JSC (as he then was) said –

“A party relying on any fact must not only plead that fact but must also proffer evidence in proof thereof. Nowhere in the written record is there evidence of revocation of the right of occupancy of the respondent…”

The Rivers State Government that sold the disputed land to the Appellant, turned round to acquire the land which it said was for public purpose. However, within six months it sold the property to a private individual. Clearly from this transaction, it was

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clear that the acquisition of the property was not for the purpose which it was indicated. The Sanomi panel was just a script meant to raise dust, and clearly that dust blurred the vision of the lower Court. In Osho V. Foreign Finance Corp. (supra) this Court, held that when public purpose is stated to be the ground for revocation of a right of occupancy, if the land is later discovered to be in use for other purposes, the revocation of the right of occupancy is vitiated and the order becomes unlawful.

This is exactly what happened in this case. The sole purpose for the acquisition of the abandoned property was to sell same to Dr. Dima, who was hurriedly issued with a certificate of occupancy after the sale.

Now the question is whether the Appellant’s right of occupancy over the property in dispute was automatically extinguished under Section 5 (2) of the Land Use Act by the purported grant of Exhibit D4 to the 3rd and 4th Respondents. By Section 1 of the Land Use Act all land comprised in the territory of each State in the Federation are vested in the Governor of that State and such land shall be held in trust and administered for the use

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and common benefit of all Nigerians. By Section 28 of the Act, it shall be lawful for the Governor to revoke any right of occupancy for overriding public interest. This right of revocation however must be exercised in accordance with the provision of the Act.

The situation here concerns an abandoned property which the Government sold to the Appellant and the agreement thereof, Exhibit P3, is registered in the Land Registry. By admitting that the right of the Appellant is extinguished is clearly an admission that there was a right available to the Appellant.

Two rights of occupancy cannot subsist in respect of the same property or else there will be anarchy. There is no evidence before the trial Court that the Appellant’s right was lawfully revoked. To revoke a right of occupancy for public purpose, the letter and spirit of the law must be adhered to. The terms of revocation, as provided under Section 28 and 44 of the Land Use Act, must be strictly complied with and strict construction of the provision made. See Bello V. Diocesan Synod of Lagos (1973) 3 SC 131. I therefore fully endorse the view of my Lord Belgore JSC (as he then was) in Kyari v

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Ganaram (Supra), and the view expressed by Ogundare, JSC in Nigerian Engineering Works Ltd V. Denap Ltd (Supra). In Olukoya V. Ashiru (2006) ALL FWLR (Pt.322) 1479 at 1514 Paras. E H, this Court held that an equitable owner in possession cannot be overridden by a subsequent grantee of a legal estate. This is what my brother Ogbuagu, JSC, who read the lead judgment said:-

“As rightly submitted in the Respondent’s brief at page 8, the Jalingo Local Government having lawfully granted the land in dispute to the respondent, in 1981, it was left with nothing to grant to the Appellant subsequently in 1983 during the subsistence of the grant to the respondent… so that, if there is proof that money was paid for the land coupled with an entry into possession it is sufficient, to defeat the title of a subsequent purchaser of the legal estate, if and provided that the possession, is continuously maintained…

Thus, if even it is coupled with possession, it cannot be overridden by a legal estate.” See Ogbu & 4 Ors v Ani & 4 Ors (1994) 78 SCNJ (Pt. II) 363; Sore Mekun V. Shodipo (1959) LLR 30; Orsanmi V. Idowu (1959) 4 FSC 40; Oshodi V.

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Balogun & Ors (1936) 4 WACA 1.

Clearly the right of occupancy available to the Appellant over the disputed property was not automatically extinguished by Section 5(2) of the Land Use Act by the purported sale and subsequent grant of a statutory right of occupancy over the same property to the 3rd and 4th Respondents. To allow such an injustice, is to allow those in authority to benefit from their wrong actions. Rivers State Government cannot determine a contract in which it is a party and then take certain benefit arising therefrom leaving the party aggrieved without any remedy.

On the whole I am of the firm view that the lower Court was wrong in reversing the judgment of the trial Court. For the reasons I have alluded to in this judgment, the sole issue formulated by me is resolved in favour of the Appellant. The appeal therefore shall be and it is hereby allowed.

The judgment of the lower Court is hereby set aside. In its place, the judgment of the trial Court is hereby restored along with all the consequential orders made therein.

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SC.99/2007