Oredola Okeya Trading Co. Vs A.G. Of Kwara State (1992)
LawGlobal-Hub Lead Judgment Report
OGUNDARE, JSC.
The plaintiff, a limited liability company bought from the Galadima Family a piece or parcel of land situate at Galadima Village opposite the Ilorin Airport. Sometime later the Government of Kwara State granted a part of the land to the 2nd defendant for the purpose of a petrol station.The latter went into possession and erected a petrol station on the land granted it by the Government, who is represented in these proceedings by the 1st defendant. The plaintiff protested to the Commissioner for Housing and Environment, Ilorin and when it failed to obtain redress, sued the two defendants, claiming as per its statement of claim:
“(i) that it may (be) decreed that its right of occupancy (over the land in dispute) still subsists; and
(ii) that it may be ordered that the second defendant is prohibited from occupying the land in question and/or from committing further acts of trespass on the said land (sic)” (brackets are mine)
Pleadings having been filed and exchanged, the action proceeded to trial at the end of which the learned trial judge, Oyeyipo, J., (as he then was) adjourned the case to 2/3/84 for judgment. Judgment was not delivered within the 3 months period laid down in section 258(1) of the Constitution and the trial was aborted on 27/7/85 by Oyeyipo, C.J. making an order of transfer of the suit to another judge for trial and determination.
A new trial commenced before Fabiyi, J., on 22/7/85 after the 1st defendant had sought and obtained leave to amend his statement of defence. At the conclusion of the new trial and after addresses by learned counsel for the parties, the learned trial judge in a reserved judgment, found:
(a) that as the plaintiff a non-native, purported to buy customary land from. Galadima Family in August, 1974 without the Commissioner’s consent first had and obtained, is has no legal title to which it can maintain action for trespass, and
(b) that the 2nd defendant is a grantee for value without notice of plaintiff’s prior interest and claim.
He then dismissed plaintiff’s claim.
Being dissatisfied with the judgment, the plaintiff appealed unsuccessfully to the Court of Appeal. It has now further appealed to this court upon five grounds of appeal and in its learned counsel’s written brief of argument, the following five questions are set down as calling for determination in the appeal to this court:
“i. What is an instrument and is Exhibit 1 an instrument which must be registered?
ii. Was it right of the learned trial judge to have held that Exhibit 1 was inadmissible and to have expunged it?
iii. Did the plaintiff (appellant herein) have a protectable interest and therefore entitled to a notice of revocation of its interest under section 28(6) and (7) of the Land Use Act?
Could the Court of Appeal have properly ignored the concession made by the learned counsel for the 2nd respondent that the appellant’s appeal be allowed and that the appellant’s case be non-suited?
Was the court of Appeal right in holding that ground 1, the omnibus ground encompassed grounds 2 and 4 (at the Court of Appeal at page 79 of the record).”
In the 1st Respondent’s written brief the following issues are raised:
“i. Whether exhibit 1 was an admissible document (grounds 1 & 2).
ii. Whether the appellant has any interest known to the Land Tenure Law, 1963 or Land Use Act, 1978 in the land, which would entitle it to be given notice of revocation (ground 3).
iii. Whether the concession of one of the counsel in the case (even if made) is binding on the other counsel and the Court (ground 4).
Whether the learned justices of the Court of Appeal considered all the grounds of appeal before dismissing the appeal (ground 5).”
The 2nd respondent has raised only two issues. Having regard, however, to the grounds of appeal and the judgment appealed against I am of the respectful view that the issues as formulated in the written brief of the 1st Respondent are to be preferred. I adopt them for the purpose of the consideration and determination of this appeal.
The two defendants/respondents raised in their respective briefs preliminary objections to the grounds of appeal. These objections have been disposed of at the hearing of this appeal and I will not concern myself any longer with them. Suffice it to say that the said objections were withdrawn and dismissed, as to 2nd Respondent’s and struck out as to 1st Respondent’s.
ISSUES (i) 3 (ii)
Issues (i) & (ii) raise the same issues as Questions (i), (ii) & (iii) in Appellant’s brief. They relate to the admissibility or otherwise and effect of Exhibit 1. This document was admitted in evidence at the trial but in considering his judgment, the learned trial judge was of the view that it ought not to have been admitted in evidence and expunged it from the record.
Exhibit 1 is a document entered into between the plaintiff company and the Galadima family in respect of a piece of land the former purchased from the latter in 1974. It was tendered through PW1, plaintiff’s Managing Director and admitted in evidence without objection. At the address stage learned counsel for the defence submitted that the document was inadmissible and urged the trial Court to expunge it from the records. The learned trial judge, in his judgment, ruled as follows:
“The point which generated heated argument worthy of consideration is that relating to non-registration of exhibit 1 at the Land Registry. Defence counsel contended that exhibit 1 was inadmissible and should be expunged. Mr. Ijaodola submitted that exhibit 1 is not an instrument under the Land Registration Law but a mere agreement to purchase which is subject to the receipt of the statutory consent under sections 27 and 28 of the Land Tenure Law.
Section 27(a) of the Land Tenure Law states:
“It shall not be lawful for any customary right of occupancy or any part thereof held by a native to be alienated by sale, assignment, mortgage, transfer of possession, sublease, bequest or otherwise however – (a) to a non-native without the consent of the Minister first had and received”
Mr. Ijaodola rightly pin-pointed the fact that the plaintiff is a non-native by virtue of section 2 (definition section) of the Land Tenure Law. The plaintiff therefore needed the consent of the Minister as a condition precedent to the purchase. It was not surprising that Exhibit 1 was not registered in compliance with section 15 of the Land Registration Law, Cap. 58 Laws of Northern Nigeria as applicable to Kwara State. Having not been duly registered, exhibit 1 is an inadmissible document. Refer to Samuel Arimore v. Joseph B. Oni (1972) 2 UILR. 185. Exhibit 1 therefore stands expunged. Refer to Alade v. Olukade (1976) 2 SC. 183.
Even it consideration is given to exhibit 1, its effect is that the plaintiff merely secured an equitable interest and not a legal title which could only have come into existence if the consent of the Minister was first had and received prior to the making of exhibit 1. It is glaring that the plaintiff had no good and solid foundation to lay his claim. It is like attempting to put something upon nothing. k is certain to collapse. Refer to Skenconsult (Nig) Ltd &Anor v. Ukey (1981)1 SC. 6 at 9, Macfoy v. U.A.C. Ltd. (1962) AC. 152.”
The same arguments advanced by learned counsel for the parties were repeated both in the court of Appeal and this Court.
In his brief and oral argument before us, Mr. Ijaodola for the plaintiff/appellant submitted that Exhibit 1 was not an instrument within the meaning of the word in the Land Registration Law, Cap. 58 Laws of Northern Nigeria 1963 still applicable in Kwara State and was therefore not caught by the Provisions of section 15 of the Law. Learned counsel referred to Regulation 4 of the Land Registration Regulations, NNLN 165 of 1963 made, under Section 34(d) of the Land Registration Law and submitted that an agreement for sale or for lease affecting land are exempted from registration. He also submitted on this issue that Exhibit 1 was not a registrable instrument and that it was, therefore, property admitted in evidence but wrongly expunged by the learned trial judge. In his further submission, learned counsel was of the view that in view of the finding of the learned trial judge to the effect, that the plaintiff bought land from the Galadima family in 1974, the plaintiff should be held to have some interest in the land under the Land Tenure Law of Northern Nigeria and was therefore, entitled to a notice of the revocation d the said interest under section 28(6) & (7) of the Land Use Act, 1978 before the 1st defendant could validly alienate the land in dispute to the 2nd defendant.
Mrs. Salman-Mann learned Solicitor-General (Kwara State) for the 1st defendant/respondent submitted that exhibit 1 did not meet the requirements of sections 27 and 32 of the Land Tenure Law and S.15 of the Land Registration Law. Learned counsel observed that it was not in dispute that the appellant was a non-native. She submitted that S.15 of the Land Registration Law provided for registration after consent of the Commissioner had been obtained. She, however, submitted that under S. 32, Exhibit 1, which was made without the consent of the Commissioner, was null and void. She further submitted that Exhibit 1 was not an agreement for sale but an outright sale and Regulation 4 therefore would not apply to it. She argued that as the sub-stratum of the plaintiff’s case was Exhibit 1, which was null and void, there was nothing the plaintiff could hold on to. She relied on her brief and urged the Court to dismiss the appeal and uphold the decisions of, both the Court of Appeal and the trial Court.
Olujimi Esq., of counsel for the 2nd defendant/respondent also adopted his brief and associated himself with the submissions made by Mrs. Salman-Mann. He too urged the court to dismiss the appeal.
The main Issue in this appeal centres around the nature of Exhibit 1 and in order to better appreciate the arguments of learned counsel for the parties, is necessary to set down the Exhibit which reads:
“This Agreement of Grant is made this Twenty third day of August, 1974. Between MALLAM AHMAD ALAO, the present holders of Galadima title, SAW DANGANA and ABDUL KADIRI ATABI for themselves and all the family of Galadima, Galadima Compound, Emir’s Palace, Ilorin in Ilorin Division of State (hereinafter called “THE GRANTORS” which expression shall where the context so admits include their heirs, executors, administrators and assigns) of the one pan AND YUSUF ALABI AMOLEGBE for and on behalf of OREDOLA OKEYA TRADING COMPANY of 24, Yakubu Gowon Way, Ilorin in Ilorin Division of Kwara State (hereinafter called “THE GRANTEE” which term shall where the context so admits include his heirs, executors, administrators and assignee) of the second part.
WHEREAS:
The grantors are the accredited representatives of the family known as Galadima’s Family of Ilorin.
The said family is the customary holder of a plot of land situate, tying and being along Ilorin-Lagos Road, in Ilorin Division of Kwara State and described in the first schedule hereto.
The Grantee is the accredited representative of Oredola Okeya Trading Company.
The said Trading Company is duty registered under the Partnership Act, 1890.
The Grantors have agreed to grant the land absolutely to the Grantee for a money consideration.
The Grantee is interested in the land which the Grantors are desirous to grant.
NOW THIS AGREEMENT WITNESSETH as follows:
In pursuance of this agreement and in consideration of the sum of N4,500.00 (Five thousand Five hundred Naira) on or before execution hereof paid by the Grantee to the Grantors (the receipt whereof the Grantors hereby acknowledge) the Grantors as beneficial owners HEREBY GRANTS, transfer and assure unto the Grantee, his heirs, executors, administrators and assigns ALL THAT PIECE OR PARCEL of land situate lying and being along Ilorin-Lagos Road, Ilorin and described in the first ‘Schedule hereto.
The Grantors hereby covenant with the Grantee and his successors in title, as follows:
(a) That they have full power and right to grant and transfer the land hereby granted and transferred.
(b) That the Grantee and his successors in title shall enjoy the land free from any interruption or disturbance from the Grantors or any person claiming through them.
(c) That the land hereby granted to the grantee is free from all charges, encumbrances, claims, and demands whether under customary law or otherwise.
(d) That the Grantor shall indemnify the Grantee and his successors in title against arty defect arising out of title to the land which militate against his peaceful and undisturbed enjoyment of the land.
That Grantors HEREBY DIVEST themselves of all their rights on the said land and VESTS the same absolutely and unencumbered in the Grantee and his successors in title.”
It would appear from Exhibit 1 that the Galadima family granted the land to Oredola Okeya Trading Company, a body said to have been registered under the Partnership Act, 1890. The plaintiff company before us, from its name, appears to be a limited liability company presumably registered under the companies Act. I say presumably because there is no averment in the statement of claim as to its registration nor was any evidence given as to its status by its Managing Director who tested as the only witness for the plaintiff. It would appear however, that it is agreed that the plaintiff is a limited liability company as the case was fought all through from the trial High court to this court on the basis that it is a non-native. Native is defined in section 2 of the Land Tenure Law as meaning a person whose father was a member of another tribe Indigenous to Kwara State and a non-native is defined in the said section as meaning any person other than native as above defined.” From these definitions it would seem right to refer to the plaintiffs company as a non- native.
In 1974 when the plaintiff claimed to have purchased the land in dispute from the Galadima family the relevant Law governing tenure of land in Kwara State was the Land Tenure Law of Northern Nigeria which Law came into force on 1st October, 1962. Section 27 prohibits the alienation of customary right of occupancy of a land to non-native without the consent of Commissioner. The section reads:
“It shall not be lawful for any customary right of occupancy or any part thereof held by a native to be alienated by sale, assignment, mortgage, transfer of possession, sublease, bequest or otherwise howsoever-
(a) to a non-native without the consent of the Minister first had and received.”
Customary right of occupancy is defined in section 2 of the Law as meaning “the title of a native or native community lawfully using or occupying native lands in accordance with native law and custom. I therefore hold that under section 27 of the Law the transaction relating to any land in Kwara State subject to customary right of occupancy between the holder of such right and a non-native without the consent of the appropriate Commissioner having been first had and obtained is invalid and section 32 of the Law declares such transaction or any instrument relating to It to be null and void.
Section 32 reads:
“Any transaction or any instrument which purports to confer on or vest in a non-native any interest or right in or over any native lands otherwise than in accordance with the provisions of this Law shall be null and void.”
From the recitals, In Exhibit 1 the land purportedly sold by the Galadima family to the plaintiff is clearly land subject to customary right of occupancy. It follows, therefore, that the plaintiff being a non-native could not acquire any right over the land in dispute without the consent of the Commissioner first had end received before the sale to It of the said land by the Galadima family. This much is accepted by all sides. It is not in dispute, and plaintiffs counsel concedes this, that the consent of the appropriate Commissioner was not had and obtained before the 1974 transaction between the plaintiff and the Galadima family was entered into.
It is, however, the contention of learned counsel for the plaintiff that Exhibit 1 is not an instrument that is caught by section 32. Instrument is not defined in the Land Tenure Law but it is defined in section 2 of the Land Registration Law to mean:
“a document affecting land in Kwara State whereby one part (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to, or interest in land in Kwara State, and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will”
From the above definition and having regard to the contents of Exhibit 1, it is my view, and I so hold, that the document is an instrument within the meaning of both the Land Registration Law and the Land Tenure Law. Exhibit 1 purported to confer or pass in the plaintiff interest or right in or over the land in dispute. As the Commissioner’s consent was not obtained to the transaction leading to the document and the document itself, I must hold that Exhibit 1 is null and void and the appropriate sale by the Galadima family to the plaintiff is equally null and void.
This is not the end of the matter. Exhibit 1 was never registered and it is the contention of the learned counsel for the defendants/respondents that it is therefore inadmissible in evidence. Section 15 of the Land Registration Law of Northern Nigeria is applicable to the present proceedings. I have already held that Exhibit 1 is an instrument. It is not in dispute that it was never registered. Therefore, it should not have been admitted in evidence and having been wrongly admitted In evidence, the learned trial Judge was right In expunging it from the record. See Samuel Arimoro v. Joseph Babalola Oni and Others (1972) 2 (UILR.) 185,189.
Learned counsel for the plaintiff has referred this court to Regulation 4 NNLN 163 of 1963 titled ‘The Land Registration Regulations’ in support of his contention that Exhibit 1 was an estate contract and consequently excepted from the provisions of the Land Registration Law. Regulation 4 reads:
“4. Agreements for sale or for lease affecting land shall be excepted from the provisions of the Law whether made before or after the coming into operation of these regulations.”
With respect to learned counsel, Exhibit 1 is more than an estate contract. It purported to convey to the plaintiff the grantor’s entire interest In the land in dispute; it is indeed a deed of conveyance. It therefore, does not come within the exception provisions of regulation 4. In any event, even If it were an estate contract, regulation 4 could only protect its admissibility in evidence, it would not clothe it with validity under the Land Tenure Law.
As if this is not enough, even if the plaintiff had wanted to register exhibit 1 at the time of its execution, it could not have done so. For section 10 of the Land Registration Law would have prohibited such registration. Section 10 reads:
“No instrument requiring the consent of the Governor or Minister or of any public officer to the validity thereof shall be registered unless such consent be endorsed thereon or the registrar is otherwise satisfied that such consent has been given.”
The consent of the Commissioner to exhibits 1 not having been given let alone endorsed on the document, it could not be registered and was, therefore, inadmissible in evidence under section 15 of the Law.
In conclusion I agree with both the Court of Appeal and the trial court that Exhibit 1 was not only inadmissible in evidence but equally ineffectual to pass any interest in the land in dispute to the plaintiff as it is null and void having offended sections 27(a) and 32 of the Land Tenure Law and section 15 of the Land Registration Law. In view of this conclusion I have just reached, Grounds 1,2, and 3 fail.
ISSUE (iii)
The learned counsel for the plaintiff/appellant submitted that as counsel for the 2nd defendant/respondent conceded in his address at the Court of Appeal that that court could non-suit the plaintiff, it was incompetent of the Court of Appeal to have dismissed plaintiff’s appeal. He argued that that was an admission against the interest of the 2nd respondent by its counsel. With profound respect to him. I find no merit in learned counsel’s submissions. This is what happened before the Court of Appeal as recorded at page 128 of the record of appeal before us:
“COURT Mr. Awomolo said we can consider non-suit. Mr. Otta said the issue of non-suit does not arise: Mr. Ijaodola said it is not a case for non-suit.”
True enough Mr. Awomolo, learned counsel for the 2nd respondent invited that court to consider non-suit but both Mr. Otta for the 1st defendant and Mr. Ijaodola for the plaintiff submitted that the case was not one for non-suit. Mr. Awomolo, in all fairness to him, had in his main address to the Court of Appeal at the oral hearing before that Court urged it to dismiss plaintiff’s appeal.’ The Court after considering the facts of the case and the law applicable dismissed the appeal. I can find no admission said to have been made by Mr. Awomolo and which would bind not only 2nd defendant but also the Court of Appeal. In any event, the Court of Appeal was entitled, in its wisdom, to decide the appeal before it and light of the facts of a case before it in the light applicable law. This, in my respectful view, the Court below did in this case and I am satisfied it came to the right conclusion.
Ground 4 has no substance and I accordingly dismiss it.
ISSUE (iv)
The Court of Appeal in its judgment per Ogundere, JCA., observed “it seems to me that ground 1 which is omnibus encompasses grounds 3 and 4, and that ground 2 complains that Exhibit 1 is admissible as a non-registrable document.”
It is this passage that is now under attack before us. Mr. Ijaodola for the plaintiff submitted that the Court of Appeal per Ogundere JCA, was wrong in asserting that Ground 1 encompassed grounds 3 and 4. I have examined grounds 3 and 4 and I agree with learned counsel that these grounds were not covered by the general ground 1. But learned counsel has not told us the effect of this error on, the judgment appealed against. I can see no adverse effect the error could have on the judgment. I say this because those grounds do not form the inch pin of plaintiff’s case. They come up for consideration if it is held that Exhibit 1 is valid. Indeed the facts are not in dispute, it is their effect in law that the two lower courts considered and found in favour of the defendant. I therefore can find no substance in plaintiff’s grounds which is accordingly dismissed.
All the grounds of appeal having failed, this appeal equally fails and it hereby dismissed by me. I affirm the judgment of the Court below with N1,000.00 costs in favour of each defendant/respondent.
Other Citation: (1992) LCN/2572(SC)
