Samuel Ononuju & Anor. V. Attorney-general, Anambra State & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

P.O. ADEREMI, J.S.C

This is an appeal against the majority judgment of the Court of Appeal, Enugu Division (hereinafter referred to as the court below) coram Thompson Akpabio JCA of blessed memory and Niki Tobi JCA (as he then was) delivered on 13th of July, 1998 dismissing the appeal of the plaintiff who was the appellant before the court below thus upholding the judgment of the trial court which had dismissed the plaintiff’s case on the 24th of October, 1994.

The appellants in this appeal were the plaintiffs in Suit No. HN/53/90; (1) Eng. Samuel Ononuju and (2) Frederick Azubuine (representing Ndumanya Family of Umuohi, Okija) as plaintiffs and (1) Attorney-General, Anambra State, (2) Commissioner for Works, Lands and Transport, Anambra State and (3) Chief Emmanuel Eze Onwuka, as defendants. The plaintiffs had before the High Court of Justice, Anambra State sitting at Nnewi Judicial Division, taken action against the defendants, claiming against them jointly and severally as follows: –

“(1) A declaration that the purported acquisition of the plaintiffs’ land, of the Annual Value of N100,000.00 by the Anambra State Government acting through the 2nd defendant is unconstitutional, null and void and not effective to divest the plaintiffs of their title to the said land.

(2) A declaration that the Certificate of Occupancy issued by the Chairman of the Ihiala Local Government Authority and dated 27th April, 1989, purportedly granting a portion of the plaintiffs’ land to the 3rd defendant is otiose, ineffective to transfer any title to the 3rd defendant and contravenes the constitutional rights of the plaintiffs to their land.

(3) IN THE ALTERNATIVE, if the plaintiffs’ land was at any time legally vested in the Federal Government, a declaration that it is unconstitutional and a contravention of the law empowering the compulsory taking over of a subject’s land to grant a portion of the plaintiffs’ land to the 3rd defendant for his private purpose.

(4) IN THE ALTERNATIVE, if the plaintiffs’ land ever legally vested in the Federal Government, a declaration that the Chairman, Ihiala Local Government Authority was and is not competent to grant the Certificate of Occupancy dated 27th April, 1989, in respect of the said land to the 3rd defendant and the said Certificate conveyed no legal interest in the plaintiffs’ land to the 3rd defendant.

5. IN THE ALTERNATIVE, if the plaintiffs’ land ever legally vested in the Federal Government, a declaration that on failure of the object of public purpose for which the land was acquired compulsorily the land reverted to the plaintiffs.
6. N10,000.00 general damages against the 3rd defendant for his continuing trespass to the plaintiff s said land.

and (7) An injunction restraining the defendants and each of them by themselves or through their agents, servants or privies from remaining on the plaintiffs’ land or doing any act thereon which interferes with the plaintiffs’ possession of the same.”

Pleadings filed and exchanged by the parties are (1) the statement of claim dated 14th August, 1990, (2) the statement of defence of the 3rd defendant dated 25th October, 1990 and (3) the statement of defence of the 1st and 2nd defendants dated 12th November, 1990. Both parties called evidence at the trial, to prove the respective averments contained in their different pleadings. After taking the final addresses of the counsel appearing for the parties, in a reserved judgment delivered on the 24th October, 1994, the trial judge dismissed the plaintiffs’ claims in toto.

Being dissatisfied with the said judgment, the plaintiffs appealed to the court below. After hearing the counsel appearing for the parties on the respective briefs of arguments filed on behalf of the clients, the court below, in reserved judgments delivered on the 13th of July 1998, by a majority judgment (Akpabio JCA and Tobi JCA – as he then was), dismissed the appeal of the plaintiffs/appellants with costs. But on the same date, by a minority judgment wherein Salami JCA dissented, the appeal of the plaintiffs/appellants was allowed, the decision of the trial court including the order as to costs were set aside.

Being dissatisfied with the majority judgment of the court below, the present appellants have appealed to this court by way of a Notice of Appeal filed on 3rd September, 1998 which carries five grounds of appeal. Also, the 1st and 2nd respondents being dissatisfied with part of the majority judgment relating to the issue of proof of title to the land in dispute by the appellants prior to the Land Use Act as averred in paragraph 4 of the statement of claim and for which, according to the 1st and 2nd respondents, they joined issue with the plaintiffs/appellants, that aspect have been struck out in the majority judgment on the ground that it was a non-issue, they have cross-appealed to this court by a Notice of Cross-Appeal dated 15th July, 2002 which carries three grounds. For similar reason, the 3rd respondent has also cross-appealed to this court by way of a Notice of Cross-Appeal dated 22nd June 2002 which itself has three grounds.

When this appeal came before us for argument on the 9th of February, 2009, Chief Onwugbufor learned senior counsel for the 3rd respondent sought and obtained the leave of court to withdraw the Notice of Preliminary Objection filed on the 24th of April, 2006 and the second arm of the Notice of Preliminary Objection filed on 27th June, 2007 and all the arguments canvassed in support of the two Notices as contained in the brief of argument of his client. Immediately thereafter but on the same day, Mr. Osighala, learned counsel for the appellants, adopted his clients’ brief filed on the 21st of August 2000 and the plaintiffs/cross-respondents’ brief deemed properly filed on the 26th March, 2007 and urged that the appeal be allowed while the cross-appeals be dismissed. Mrs. Onwuka, Chief State Counsel, Ministry of Justice, Anambra State representing 1st and 2nd respondents, adopted her clients’ brief of argument filed on the 17th of June, 2002 and urged us to dismiss the appeal; she also adopted the 1st and 2nd cross-appellants’ brief filed on the 29th of April, 2004 and urged us to allow the cross-appeal. Chief Onwugbufor, learned senior counsel for the 3rd respondent adopted his client’s brief filed on 21st June, 2002 his cross appellant’s brief filed on 23rd April, 2004 and the 3rd cross appellant’s reply brief filed on the 25th of May, 2007, he submitted that issues Nos. 3 and 4 on the appellants’ brief did not arise from the court below’s judgment and consequently, those two issues be struck out; he finally urged us to dismiss the appeal but to allow the cross-appeal of his client. The appellants have distilled four issues from their five grounds of appeal for determination; and as set out in their said brief of argument; they are as follows:

“(1) Was the acquisition of the 15,025 hectares granted to the 3rd respondent invalid null and void

(2) Was the majority decision of the court below correct in law when it upheld the finding of the trial court that notices of revocation were served on the appellants

(3) Was the majority judgment of the court below right in holding as did the trial court that the 15,025 hectares of land granted to the 3rd respondent was for public purposes or for a continuation of the public purposes for which the Federal Government built low cost houses on the adjacent 5 hectares of land

(4) Was the Certificate of Occupancy granted to the 3rd respondent by the Chairman of the Ihiala Local Government Council on the 27th of April 1989, valid”

The 1st and 2nd respondents for their part raised for issues for determination by this court, as contained in the brief of argument, they are in the following terms: –

“(1) Whether the plaintiffs proved the ownership of the land in dispute as required by law having regard to the pleadings and the evidence, If so, was the acquisition of 20,025 hectares of land by the Federal Government through the State Government which later granted a portion of it to the 3rd respondent valid in law, having regard to the concurrent findings of facts by the two lower courts.

(2) Whether the procedure for the Revocation of the Rights of Occupancy over the land in dispute especially as to service of Notice was valid, in law and whether on the receipt of compensation by the members of the plaintiffs’ family whom the plaintiffs, on record, represent did not debar the Plaintiffs from questioning the Revocation of Rights of Occupancy as found by the High Court and a majority of the Court of Appeal.

(3) Was the lease of part of the acquired land by the Federal Government to the 3rd defendant for socio-economic purposes to wit:

‘Building extension of low cost houses embarked upon by the Federal Government invalid, null and void after acquisition of the land and payment of compensation to the land owners by the Federal Government as found by the Court of Appeal and the lower court.’

(4) Whether the Customary Right of Occupancy granted to the 3rd Respondent by the Chairman of Ihiala Local Government Council was valid having regard to the circumstances of the case.”

As I have said above, Chief Onwugbufor learned Senior Counsel representing the 3rd respondent had on the 9th of February, 2009 when this appeal came before us for argument sought and obtained the leave of court to abandon his Issue No.1 and the arguments canvassed thereunder; the said issue reads: –

“Whether the court below was right in striking out the Issue of pre-Land Use Act title of the plaintiff/appellant having regard that without such proof the plaintiff/appellant cannot establish their locus standi to institute the action neither can they as they have done claim any reversionary title or interest in the land in dispute. Put the other way, is the proof of pre-Land Use Act title or holding of the plaintiff/appellant not a sine qua non to the institution of this action and obtaining the reliefs sought particularly as to their reversionary interests. ”

With issue No. 1 abandoned, the 3rd respondent is now left with three issues which as contained in his brief of argument are thus: –

“(2) now (1) Whether the court below was right in holding, as was held by the trial court, that the Notices of Revocation was served on the plaintiffs/appellants in accordance with Section 44 of the Land Use Act and Section 36 of the Land Use Edict No.2 of 1979 of Anambra State as validated by the Land Use (Validation) Act of 1979. (see Section 1 of the Land Use Act (Validation of Certain Laws) Act Cap 203 Laws of the Federation. (see also Section 50 of the Land Use Act Cap 202 Laws of the Federation.

(3) now (2) Whether the court below was right in holding, as did the trial court that the acquisition of the said land by the Federal Government and the transfer of same to the 3rd respondent, or socio-economic purpose was not a transfer or lease within the meaning of ‘public purpose’ or an extension of ‘public purpose’ under the Land Use Act 1978 and thus void.

(4) now (3) Whether the Right of Occupancy granted to the 3rd respondent by Ihiala Local Government under the direction of the Federal Government was valid exercise of the power of the Local Government under the law”

As I have said above, the 1st and 2nd respondents filed a cross-appeal and the two jointly filed a cross-appellants’ brief on the 29th of April, 2007. They have jointly raised three issues for determination, and as contained in their afore-said cross-appellants’ brief, they are as follows: –

“(1) Whether the proof of the Pre-Land Use Act, title or holdings of the plaintiffs/appellants is not sine qua non or fundamental issue to vest them with the locus to institute this action and seek the relief they claimed in view of their pleadings and evidence.

(2) Did the parties (plaintiffs/appellants, defendants/ Cross-appellants) join issues on the Pre- Land Use Act title of the appellants to the land in dispute and jurisdiction to entertain the action in view of the locus of the plaintiffs in the issues before the lower court and the court trial.

(3) Can the lower court decline to deal on crucial issues put before it when no decision had been given on them but simply refer to the issues in a sweeping statement as non issues.”

Similarly, the 3rd respondent as said above, filed a cross-appeal and in his cross-appellant’s brief, he raised two issues for determination, they are as follows: –

“(1) Whether the Court of Appeal was right in striking out the issue of the Pre-Land Use Act title or holding of the plaintiffs/appellants on the ground that the issue was not raised by anybody and that the plaintiffs/appellants are not claiming for compensation when there was evidence that the issue arose both at the trial court and the court below.

(2) Whether the plaintiffs/appellants, having failed to prove ownership or Pre-Land Use Act title or holding of the land in issue, have locus standi to institute the action as respects their claim for compensation and reversion.”

At this stage, I consider it necessary to deal with the first arm of the Notice of Preliminary Objection filed on 27th June, 2007, the second arm of that objection having been withdrawn by the learned counsel for the 3rd defendant/respondent. In the first arm of the said objection, the 3rd respondent has argued that grounds 1, 2, 3 and 5 on the Notice of Appeal are grounds of fact or mixed law and fact which require leave of court before they can be argued and since, according to him, no such leave has been obtained, he argued that the said grounds of appeal are not to be entertained. For a proper consideration of the Preliminary Objection, I am of the view that I should reproduce the said grounds of appeal; they are as follows:-

(1) The majority Justices of the court below erred in law in holding that the learned trial judge’s finding that notices of acquisition of the land in dispute were duly served on the appellants as prescribed by Section 44 (e) of the Land use Act Chapter 202 by being posted on abandoned houses not on the land the subject of the suit and on some trees was correct when: –

(a) The pre-requisites for service by posting were not complied with

(b) The said section prescribes that reasonable enquiry should first be made to ascertain the name or address of a holder or occupier of the land on whom the notice should be served and there was no evidence of any such enquiry.

(c) The second requirement that where this was not practicable the notice should be addressed to the holder or occupier by the description of “holder” or “occupier” of the land calling it by its name to which it relates and then delivering the notice to some person on the premises was not complied with.

I do not consider it necessary to quote all the particulars as set out in the Notice of Appeal; suffice it to stop at particular (c) supra since the purpose of the preliminary objection is to find out whether the grounds are those of law or not.

I now reproduce the other grounds in part: –

(2) The court below in its majority judgment misdirected itself in law in dismissing the plaintiff/appellants’ appeal in reliance of the following passages culled from the decision of the Court of Appeal, Benin Division in Integrated Rubber Products Limited v. Oviawe (1999) 5 NWLR (pt.243) 572.

On what is a public purpose.

The establishment of an Industrial Residential Layout is a public purpose as defined in Section 2 (h) of the Public Lands Acquisition Law and acquisition for purpose thereof will qualify as acquisition for public purpose Bello v. Diocesan Synod (1973) 1 All NLR (pt.1) 247; Peenok Investments Limited v. Hotel Presidential Limited (1983) 4 NCLR 122 referred to and distinguished at p.586 paras E – F.

On the effect of a grant of Certificate of Occupancy over land

By virtue of Section 14 of the Land Use Act, once the Governor grants a Certificate of Occupancy to a person, Customary title over that piece of land the subject-matter of a Certificate of Occupancy cannot defeat the grantee’s right.

Some of the relevant particulars are hereunder reproduced

(c) The 3rd respondent, the grantee of a customary right of occupancy was not building low cost houses in continuation of the purpose for which the Federal Government compulsorily acquired the adjoining land as wrongly held by the trial court and confirmed by the court below.

(e) The 3rd defendant built flats for commercial purposes which he let out to tenants at a rent above that stipulated in the Control of Rents Edict. The 3rd defendant was erecting a hotel for commercial purposes.

(f) It is not the law as erroneously held by the court below that a Certificate of Occupancy obtained by fraud as in this case overrides the right of occupancy of the holder or owner.

(3) The court below as did the trial court erred in law in giving any validity to the Certificate of Customary Right of Occupancy flaunted by the 3rd respondent when the said document was ineffective, invalid, null and void, in law.

(5) The court below erred in law in upholding the funding of the trial court that the grant of the land in dispute to the 3rd respondent was for a public purpose as known to law and was as continuation of the public purpose for which the Federal Government acquired the land compulsorily.

Particulars of Error

(a) The public purpose stated by the acquiring authority for the compulsory acquisition was for building low cost houses.

(b) In 1990 when the formal attempt at acquisition was made, the Federal Government had completed the building of low cost houses allocated to Ihiala Local Government Area on 5 hectares of land.

(c) The government did not require the additional 15.025 hectares which it purported granted to the 3rd respondent.

(d) Low cost housing estates were not intended for bank managers, university lecturers and medical doctors but for persons in the low income group.

(e) The 3rd respondent admitted charging a rent of N300.00 per mensem per flat which is more than 800% of the maximum rents prescribed for the flats the 3rd respondent build on the land which N420.00 per annum according to the First Schedule to the Landlord and Tenant Law in force in Anambra State.

(f) Building and operating a restaurant or a bank or a hotel did not come within the definition of public purpose under the Land Use Act.

As I said above, the 3rd respondent, by the first arm of his Preliminary Notice of Objection is contending that grounds 1, 2, 3 and 5 on the Notice of Appeal are of facts or mixed law and facts and to be valid for consideration, the leave of court must be sought and obtained. This condition precedent not having been fulfilled, those grounds, it was contended, are incompetent. Suffice it to say that only ground of law simpliciter does not require leave for its validity before an appellate court. Let me start by saying that the line of distinction between law simpliciter and mixed law and fact is one that is very thin. In other words, the line of distinction is one that is fraught with some difficulties. In determining whether a ground of appeal alleges an arm of law or fact, it has been held that the general requirement or duty of the court is to examine thoroughly the grounds of appeal to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication by it, of the law to the facts already proved or admitted, in which case it would be question of law; or one that will require questioning the evaluation of the facts by the lower tribunal before the application of the law, in which case, it would amount to a question of mixed law and fact. See (1) OGBECHIE v. ONOCHIE (1986) 2 NWLR (pt.23) 484, (2) METAL CONSTRUCTION (W.A.) LTD v. MIGLIORE (1990) 1 NWLR (pt.126) 299 and (3) P.N. UDOH TRADING CO. LTD. v. ABERE (2001) 1 NWLR (pt.723) 114.

Reading ground 1 on the Notice of Appeal, it seems clear to me that the question the court is called upon to answer here is one which is in accordance with a rule of law i.e. Section 44 (e) of the Land Use Act Chapter 202 – this certainly excludes exercise of discretion in answering that question as the court thinks fit in accordance with what is considered to be the truth or otherwise of the matter. Ground 1 in my respectful view, is a ground of law simpliciter. Ground 2 in the Notice of Appeal calls for the construction of the decision of the Court of Appeal in INTEGRATED RUBBER PRODUCTS LTD. v. OVIAWE (1993) 5 NWLR (Pt.243) 572 – for this question I do not hesitate in saying that this ground is also of law simpliciter. Ground 3 relates to the validity of the Certificate of Customary Right of Occupancy put up by the 3rd respondent. It is settled in law that no extrinsic evidence will ever be allowed to add to or vary the terms of any instrument the like of the Certificate mentioned in this ground. This ground calls for an answer in accordance with the rule of law. It is therefore a ground of law. Intrinsic in ground 5 is the issue of whether the grant of the land in dispute to the 3rd respondent was for a public purpose as known to law. This no doubt certainly excludes exercise of discretion in answering the question as the court thinks fit in accordance with what is considered to be the truth or otherwise. Again, this is a ground of law. Let me say that in substance, this appeal revolves round the interpretation of the provisions of the Land Use Act. It is therefore my judgment that all the grounds of appeal are valid; a fortiori, the appeal is consequently valid. This being the end of my treatment of the first arm of the Notice of Preliminary Objection filed on the 27th of June 2007, I shall now proceed to discuss the substantive appeal.

I have had a careful reading of all the issues raised for determination and it is my view that they are all interwoven into one and other. I shall therefore take all of them together. The appellants, through their brief of argument, after reviewing all the pieces of evidence led before the trial court, submitted that the Notice of Revocation was not served on the plaintiffs/appellants in compliance with the provisions of Section 44 of the Land Use Act. And since service of Notice of Revocation of Rights of Occupancy is a sine qua non to a valid compulsory acquisition of land, as rightly subscribed to by all the parties, it was again submitted that the acquisition was vitiated by failure to serve Notice of Revocation as prescribed by law. On the contention of the 1st and 2nd defendants/respondents/cross-appellants as pleaded in paragraph 11 of their defence that the publication in the Government Gazette of Anambra State satisfied the statutory requirement of notice to owners or holders, the appellants argued, relying on the decision in INTEGRATED RUBBER PRODUCTS NIGERIA LTD. v. OVIAWE (1992) 5 NWLR (pt.243) 572, that the publication in the gazette without personal service of the Notice of Revocation did not meet the requirement of the law such as to save the compulsory acquisition. They also referred to paragraph 4 of the statement of defence of the 1st and 2nd defendants/respondents wherein they averred:

” ….. that the land in dispute is a part of greater area of land acquired in 1982 by the Anambra State Government for the public purpose of the Federal Government of Nigeria.”

And they submitted that any purported compulsory acquisition in 1982 without a notice of revocation of rights of occupancy, a fact, according to them, rightly found by the two courts below and the counsel for the parties, is invalid, null and void and therefore, they finally submitted on this point that the evidence of DW3 – Valentine Sunday Nwoye, a Lands Officer attached to Department of Lands, Zonal Office, Abakaliki goes to no issue.

On Issue No.3 it was argued that the 3rd respondent to whom the grant of the land was made never used it for public purpose within the definition of Section 50 of the Land Use Act, rather he built flats on it part of which he let to bank workers, lecturers in nearby university and some private individuals from which he collected rents; while the majority judgment held that the purpose for which 3rd respondent turned the land into use was for public purpose, that minority judgment, which they argued, reflects the correct position of the land, held otherwise. It was submitted though the land was ostensibly acquired for public purposes but later used for other purposes, on the authority of the decision in OSHO V. FOREIGN FINANCE CORP. (1991) 4 NWLR (pt.184) 157 the revocation of the statutory right of occupancy was vitiated and the order made pursuant to it became unlawful.

On Issue No.4, it was argued that the 3rd respondent did not apply for Certificate of Occupancy over the land, the evidence before the court, was that it was Okija Industry Nigeria Limited or the Umuezeagumpi Umuofor Community Development that applied and the only connection between the 3rd respondent and the real applicant for the issuance of Certificate of Occupancy was that 3rd respondent was its director and/or Chairman; this, in principle of law, is wrong. Suffice it to say that the appellants, in their brief, dropped the issue of jurisdiction of the High Court to try case relating to title to land located in a rural area in view of the decision of this court on ADISA v. OYINWOLA (2000) 10 NWLR (pt.674) 116 which has laid that point to rest. They finally, however urge that the majority judgment of the court below which affirmed the judgment of the trial court and substitute it with the minority judgment of the court below.

The 1st and 2nd respondents have argued that failure of the plaintiffs to plead and lead evidence of who were their ancestors, how they came into the land and in short, failure to plead clearly their traditional history and lead evidence therein was fatal to their case placing reliance of many decisions the like of MOGAJI & ORS VS. CADBURY CO. (EXPORT) LTD (1985) 2 NWLR (pt.7) 393; OKO VS. IGWESHI (1997) 4 NWLR (pt.497) 51 and LAWSON VS. AJIBULU (1997) 6 NWLR (pt.507) 19. The plaintiffs, it was argued should be held as having failed to prove their case and it should be dismissed.

On Issue No.2, it was argued that the Notice of Revocation – Ex. J showed the totality of the kind to be acquired and was duly addressed to the holder or occupier and to the whole of Okija Community. The Notice it was further argued, was gazetted but the owners or occupiers failed to show up despite all efforts, it was again submitted, hence the notice was pasted on conspicuous places on the land to be acquired. The revocation of Rights of Occupancy and the service of the Notice of Revocation was therefore proper in law.

On Issue No.3, after reviewing the provisions of Section 28 (1) and (3) and (7) of the Land Use Act, it was submitted that the lease of the land to the 3rd respondent was regular and proper and in particular when compensation had been paid in accordance with the provisions of Sections 35 (1) of the Land Use Act, Section 40 (a) of the 1979 Constitution the plaintiffs therefore have no locus standi to bring this action. They urged that the appeal be dismissed.

On Issue No.2 in the 3rd respondent’s brief, (Issue No. 1 having been withdrawn) it was submitted strenuously as did the 1st and 2nd respondents in their brief that the service of the notice of revocation, having regard to the evidence on record was served in accordance with the provisions of Section 44 of the Land Use Act and Section 36 of the Land Use Edict, No.2 of 1979 of Anambra State as Validated by the Land Use (Validation) Act 1979 Cap 203 Laws of the Federation. Similarly, after referring to the evidence on record, it was submitted in respect of Issue No.3 that the grant or lease of part of the acquired land to the 3rd respondent for socioeconomic purpose was valid, as according to him, it was for public purpose within the definition of Section 51 of the Land Use Act, the case of LAWSON V. AJIBULU (1997) 6 NWLR (pt.507) 14. And on Issue No.4 which is on the issue of the validity of the Certificate of Occupancy granted to the 3rd respondent, it was submitted that it was the 3rd respondent that actually applied for the customary right of occupancy over the said land and not Okija Industries Ltd or Umuofor Community Bank. Again, it was further argued that the issuance of the Certificate of Occupancy by the Local Government was, going by the record, at the instance of the Federal Government who directed the Local Government to do so on its behalf since the land is located in a rural area. He urged the court to strike out this issue as merely academic and being irrelevant. Finally, on Issue No 5, it was submitted that in view of the concurrent findings of facts by the two courts below, this court ought not to disturb them while, in conclusion, it was urged that the appeal be dismissed.

I shall start the consideration of this appeal from the pleadings of the parties in paragraph 1 of the statement of claim, the plaintiffs bringing this action in a representative capacity, aver that they are members of the Ndumanya extended family of Umuohi Okija and that they were the undisputed communal owners of the land in dispute which they inherited from their ancestors and were in exclusive possession thereof on the passing of the Land Use Decree in 1978 under which they became entitled to a Customary Right of Occupancy over same. It is on this all important averment that they founded their claims for declaration that the acquisition of their land without notice was null and void and unconstitutional and order setting aside the Certificate of Occupancy granted to the 3rd respondent over the land etc – the comprehensive claims are set out above. Again, from the pleadings and as agreed by the parties, the land in dispute is in a non-urban area. A holder or occupier of a land whether developed or undeveloped in any area not in an urban area, under a recognised customary tenure before the commencement of the Act in March 1978 would continue to have the land vested in him and enjoy such rights and privileges on the land subject to the Act as if a Customary Right of Occupancy had been granted him by the Local Government of that area; see DZUNGWE VS. GBISHE & ANOR (1985) 2 NWLR (pt.8) 528 where at page 540 Aniabolu JSC opined: –

“Section 36 of the Act has transitional provisions relating to the land situate in non-urban area such as the land in dispute in this case. Sub-section (2) thereof deals with agricultural lands while sub-section (4) relates to developed lands.

In either case, the holder of the Customary Right of Occupancy of such lands shall continue to hold the land and would be entitled as of right, to a Certificate of Occupancy under the Act, neither the Governor nor the Local Government would have a right to divest such land from the person in whom the land was properly vested by the issue of Certificate of Occupancy over the land to another person in whom the land was not vested.” (Underlining mine for emphasis)

What was the case of the 1st, 2nd and 3rd defendants as demonstrated through their respective pleadings. All they have pleaded is that the land in dispute is a part of greater area of land acquired in 1982 by the Anambra State Government for the public purpose of the Federal Government of Nigeria. It was their further averment that after the said acquisition by the Federal Government, appropriate compensation was paid to the identified claimants and that Government went into possession – thus making the land a “State Land”. Notice of Revocation of Right of Occupancy was published in the Anambra State of Nigeria Official Gazette No. 16 Volume 15 of 3rd of May 1990. The 3rd defendant had been granted a Customary Right of Occupancy dated 27th April 1989 by the Ihiala Local Government in respect of the land in dispute. From the case of the 1st and 2nd defendants, it is clear that their claim to title to the land is founded upon “ACQUISITION” by the Federal Government. The validity of the title of the Government will depend on the validity of the acquisition in accordance with the laid-down principles of relevant laws which I shall later treat in this judgment. And since the 3rd defendant is claiming to have derived title from the 1st and 2nd defendants, his fate would be determined by theirs. It has been contended by the 1st, 2nd and 3rd d respondents/cross-appellants that the plaintiffs did not prove their title to the land and therefore they are not entitled to the reliefs sought. All I wish to say is that on the authority of “DZUNGWE” cited above, the plaintiffs/appellants need not go further to prove his title to the land beyond the averments I have extracted from their pleadings. When this same point was taken at the court below, Salami JCA in his dissenting judgment reasoned thus: –

“The appellants, stricto sensu, did not seek for a declaration of title in their claim before the trial court. The claims of the appellants for declaration for nullification of certain actions taken by government officials which they consider inimical to their interests, even though the issue of title might be incidental to the claim, it is not a matter for a declaration of title – for that case, it would not be required of the plaintiffs to establish their title to the land in dispute, especially so when the respondents were not seriously challenging their title to the land.”

I endorse the above holding of the learned jurist. I could not agree more.

As I have said above, on the state of the pleadings, the plaintiffs/appellants were holders or occupiers of the land in dispute prior to the promulgation of the Land Use Act; they therefore had the land in dispute properly vested in them. It follows that no one, including the government, can deprive a holder or occupier of a parcel of land unless the land is acquired compulsorily in accordance with the provisions of the Land Use Act e.g. for overriding public interest or for public purpose by the Local Government or State Government. See Sec. 28 (1), (2) and (3) of the Land Use Act; and by virtue of Section 28 (4) of the said Act, payment of compensation is also a condition precedent to the validity of such acquisition. See OGUNLEYE V. ONI (1990) 2 NWLR (pt.135) 745. The fundamental question to now ask is whether there was a proper acquisition of the land in 1982 Put in another way, was the Notice of Revocation duly served on the appellants as required by law The key witness on this issue is DW3 – Valentine Sunday Nwoye , Land Officer and a civil servant attached to the Department of Lands, Zonal Office, Abakaliki; in his testimony he said: –

“There was in 1990 a Notice of Acquisition which I served at Okija ………….

on receipt of the Notice from Enugu I went to Okija with a staff from office, Mr. S. Nwangwu who incidentally is a native of Okija …………..

We served the Notices but they refused to sign. We saw some abandoned low cost houses on the land. We pasted the notices on the houses. We pasted a notice on a wooden fence and wire fence to the entrance. I pasted on some trees I saw there. I pasted the notices on every conspicuous place within the land. I made enquiries as to the owners. We then went to the Ihiala Local Government. We served the notice on him. We met the Secretary Mr. Ogu and asked him to get the Local Councillor to publicise the acquisition. We sent some of the Notices to the churches for public announcement”

In the majority judgment, in ascribing evidential value to this evidence, Akpabio JCA who read the lead judgment said: –

“First, there can be no argument that effective service of Notice of Revocation is a sine qua non to any valid acquisition of land by any Government, be it Federal, State or Local Government.”

After reproducing the evidence of DW3 as I did supra, he continued to say: –

“At the end of the exercise, the learned trial judge Offiah J. was satisfied with the above evidence that the Notice of Revocation was effectively served as required by Sec 44 (e) of the Land Use Act and I agree with him.”

However, in the minority judgment, Salami JCA on the same issue said: –

“The respondents having failed to establish compliance with the provisions of the Act, the acquisition, in my view, is bad ab initio and any act predicated upon the unlawful acquisition is equally bad. The acquisition on behalf of the Federal Government as well as subsequent grant to the third respondent are bad.”

Section 44 (a), (b) and (c) of the Land Use Act which relates to the service of Notice provides: _

“Any notice required by this Act to be served on any person shall be effectively served on him –

(a) By delivering it to the person or who it is to be served or

(b) By leaving it at the usual or last known place of abode or

(c) By sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode.”

I agree with the view of Salami JCA that the respondents failed to comply with the provisions of the Act going by the evidence before the trial court. If any service was done at all, it was done in violation, again, of the provisions of Section 28 (6) of the Act which read:

“The Revocation of a Right of Occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.” (Underlining mine for emphasis)

The evidence on record shows that no compensation was paid to the appellants. The 1st, 2nd and 3rd respondents have cited the decision in LAWSON V. AJIBULU (1991) 6 NWLR (pt. 195) 44, the principles enunciated in that case is inter alia that where a parcel of land is not property acquired for public purpose, the acquisition is invalid notwithstanding that

(1) there was a lapse of time between the date of acquisition and the transfer of land to a third party

(2) that the parcel of land was only a small portion of a larger parcel of land so acquired (as in the instant case), since the law in matters of acquisition does not concern itself with the smallness or largeness of the land acquired by the Government..

What is important is that if there has to be a compulsory acquisition of land, it must be done in accordance with the law, that is to say, that the acquisition must be for public purpose of the State.

Certainly the transfer or grant of the land in dispute to the 3rd respondent can never be construed for public purpose nor is it for the overriding interest of the public. For all I have been saying, Issues Nos. 1, 2, 3 and 4 in the appellants brief are answered in the negative. Issue No. 1 in the brief of the 1st and 2nd respondents, having regard to what I have said above is Non Sequitur. Issues No. 2, 3 and 4 therein are resolved against them (1st and 2nd respondents). Issues Nos. 2, 3 and 4 in the brief of the 3rd respondents (Issue No. 1 having been withdrawn) are answered in the negative; they are resolved against the 3rd respondent.

In the meantime, it is my judgment that the appeal is meritorious and it is accordingly allowed.

I shall now proceed to the cross-appeal of the 1st and 2nd respondents and that of the 3rd respondent – the theme of both of which is against that part of the decision of the court below in which the court below struck out the issue of non-proof of title to the land in dispute by the appellants prior to the Land Use Act. I have said it in this judgment that from the reliefs claimed, the issue of title does not arise in this case. I have said above that the appellants, based Upon the materials before the court were holders or occupiers of land and by virtue of that, they had the land vested in them and were entitled to enjoy the rights and privileges on the land subject to the Land Use Act. They have by their pleadings satisfied the requirements of the law. A proper and valid acquisition of their land must be subject to strict compliance with the relevant provisions of the Land Use Act as to acquisition of land. That I have said the cross-appellants have failed to do. The cross-appeals of the 1st, 2nd and 3rd respondents are, consequently, adjudged by me to be unmeritorious.

In the final analysis, the appeal having succeeded the judgment of the trial court including the cost awarded and the majority judgment of the court below including the costs awarded are hereby set aside. I affirm the dissenting judgment. The plaintiffs/appellants are entitled to all the reliefs claimed in paragraph 14 of their statement of claim dated 14th August 1990. The appellants are entitled to the costs of this appeal which I assess in their favour at N50, 000.00 against each set of the 1st and 2nd respondents jointly and the 3rd respondent separately.

The cross-appeals of the 1st and 2nd cross-appellants jointly and the 3rd respondent separately being unmeritorious are hereby dismissed with costs of N50, 000.00 against the 1st and 2nd cross-appellants jointly and costs of N50,000.00 against the 3rd respondent separately; both costs being in favour of the plaintiffs/appellants/cross-respondents.

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SC.29/2000