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In The Supreme Court
of
On Friday, the 11th day of May
2007
S.C. 226/2001
Before Their
Lordships
Between
And
Judgement of the Court
Delivered by
Aloysius
Iyorgyer Katsina-Alu,
J.S.C.
This is an appeal
against the decision of the Court of Appeal, Kaduna Division,
delivered on 14th December, 1999 which allowed the appeal of the
Plaintiff.
The 1st Respondent
M/S Ola Ilemobola Co. Ltd. as Plaintiff in the trial
High Court claimed against the Defendants as per
paragraph 42 of her amended statement of claim. The said paragraph 42 reads
as follows:
"42.
Whereof the plaintiff
prays this Honourable
Court for the following orders-
(a)
That the purported order of revocation of the plaintiff right of
occupancy dated the 12th day of June, 1986 does not apply to the
plaintiff right of occupancy with certificate of occupancy No NC3640
dated the 21st
day of September, 1977.
(b)
That the purported order of revocation of the plaintiff right of
occupancy dated the 12th of June, 1986 is null and void and of no
effect whatsoever since same took retrospective effect.
(c)
That the revocation order is defective in law since same is not in
compliance with the provisions of the Land Use Act of 1978.
(d)
A declaration that the plaintiff is still the
rightful holder of the .right of occupancy over
the said piece of land known as No. 4 Maichibi Close and covered by a
certificate of occupancy No
3640 and dated the 21st day of September, 1977.
(e)
The plaintiff also claims against the defendants jointly and or
severally as follows:-
(i)
The sum of
(ii)
The plaintiff further claims the sum of
The plaintiff essentially
brought this action challenging the revocation of the
statutory right of occupancy over a plot of land
known as Plot, No 4 Kaduna South,
Maichibi Close, Industrial
Estate Kaduna. At the close of pleadings,
parties called evidence and addressed the trial curt. In the course of his
address, learned counsel for plaintiff
abandoned the prayer for damages.
In his judgment delivered on 3rd
November, 1993, the learned trial Judge held
that the revocation order was valid and
consequently dismissed the plaintiff’s
action.
The plaintiff appealed against
the dismissal of his claim to the Court of
Appeal. The
plaintiffs appeal was allowed.
Being dissatisfied with the
judgment of the Court of Appeal, the 4th defendant
Brossette Manufacturing Nigeria Ltd has appealed
to this Court.
The facts which led to the
institution of this action are short. The plaintiff was
granted the Right of Occupancy over Plot No
4 Maichibi Close on 21st September
1977. Sometime in the year 1981 it extended into
a Lease Agreement with the 4th defendant
for a ten year period. The consideration was
Based on the grounds of appeal
filed, the appellant has raised two issues for determination on page 2 of
the Appellant's brief of argument. These are:
(1)
Whether the 1st Respondent had not admitted the fact that
he sub-leased the property in dispute covered by Certificate of Occupancy
No 3640
and received consideration the in the sum of
(2)
Whether having regard to the facts contained in the printed record
before the Lower Court the learned Justices of the Court of Appeal
were
not in grave error in invalidating the revocation
order of the interest of the 1st Respondent the land in dispute -
Ground 2.
For its part, the lst
Respondent formulated a lone issue for determination
which reads:
"Whether
the Court of Appeal was right in its application of
section 22(1) & (2) of the Land Use
Act to the facts of this case having regard to the decision of the
Supreme Court in (sic) and other Supreme Court cases on the content of
revocation notice."
The all important issue for
determination is whether the 1st Respondent as
Plaintiff and holder of the statutory right of
occupancy over the land in question had alienated his right of occupancy or
part thereof by sublease without the
consent of the Governor first had and obtained. In order to satisfactorily
consider this issue, recourse must be had
to the pleadings and the evidence before court.
In paragraph 42 of the amended
statement of claim the Plaintiff claimed as
follows:
“(42)
Whereof the
plaintiff prays this Honourable Court for the following orders:-
(a)
That the purported order of revocation of
the Plaintiff right of occupancy dated the 12th day of June, 1986
does not apply to the plaintiff’s Right of Occupancy with Certificate of
Occupancy No
NC 3640 and dated the 21st day of
September, 1977.
(b)
That the purported order of revocation of the plaintiff Right of
Occupancy dated the 12th day
of June, 1986 is null and void and of no effect whatsoever since same took
retrospective effect.
(c)
That the revocation order is defective in
law since same is not compliance with the provision of the Land Use Act of
1978.
(d)
A declaration that the plaintiff is still
the rightful holder of the Right of Occupancy over the said piece of land
known as No 4 Maichibi Close and covered by a Certificate of
Occupancy No NC 3640 and dated the 21st
day of September, 1977.
(e)
The plaintiff also claims against the defendants jointly and or
severally as follows:-
1.
The sum of
11.
The Plaintiff further claim the sum of
Earlier in the pleadings, the
Plaintiff pleaded in paragraphs 12, 13, 14, 15, 20, 21, 23, 24 and 25 as
follows:
“12.
That based on the, agreement reached between the Plaintiff and the 4th
Defendant, a sublease agreement was drawn up between the Plaintiff and the 4th
Defendant for the proposed sublease of the plaintiff plot of land. And the
said sublease agreement is hereby pleaded and will be founded and relied
upon at the hearing of this suit.
12.
That after the preparation of the sublease agreement, it could not be
registered as there was embargo in the Kaduna State Land Registry by the
government in power in Kaduna State.
13.
That in order not to contravene the terms of the grant, plaintiff
approached one Alhaji A. O. Ja'afaru, the Chief
Lands officer who advised that the sublease agreement could be signed by the
parties but not to be dated pending when embargo will be lifted. And the
Plaintiff hereby pleads copy of their letter dated the 29th of
March, 1985 and will find and rely on same at the hearing of this suit.
14.
That on the premises of the averment contained in paragraph 12 of
this statement of claim, the Plaintiff and the 4th Defendant's
Company agreed into signing the sublease agreement without inserting any
effective date for its commencement as manifest in the sublease agreement
hereby pleaded.
16.
That the Plaintiff after signing the sub-lease agreement and not
being able to register same at the Land Registry
due to the embargo did not notify the 4th defendant of the
embargo.
20.
That while the Plaintiffs Managing Director/Chairman was in his
home-town undergoing treatment the 4th Defendant on lifting the
embargo took it upon themselves to have the sublease agreement perfected as
manifest in the 4th Defendant's letter with Ref. No.
JAO/10/117/
82-A and dated the 21st
day of October, 1982 and same is hereby pleaded and will be founded and
relied upon at the hearing of this suit.
20.
That the 4th Defendant on the 9th May of
December, 1982 did write another letter to their Solicitors requesting them
to liaise with the Plaintiff to ensure that the sublease agreement was duly
registered and was given the free hand to have same registered, that the
said letter dated the 9th day of December, 198 is hereby pleaded
and will be found and relied upon at the hearing of this suit.
21.
That at the time the 4th Defendant's Company wrote the two
letters referred to in paragraph 20 and 21 of this statement of claim, the
proposed sub-lease was yet to take effect same was not operative; and
consequently could not be registered.
22
That the 4th defendant’s
Company on the 10th day of November, 1982 did write another
letter to their solicitors reminding them of the registration of the
sublease agreement that the said letter with Ref. No. JAO/BA/666/82-A
and 10th November, 1982 is hereby pleaded and will be relied upon
at the hearing of this action.
24.
That the 4th
Defendant not being able to register the said sublease agreement as
same was yet to become operational due to lack of date of
commencement of the sub-lease demanded the original copy of the
Certificate of Occupancy from the plaintiff contrary to the proposed
sublease agreement.
25.
That the Plaintiff is refusing to hand over the certificate of
occupancy to the 4th Defendant company who then needed same to
raise loan from their bankers, then reported the Plaintiff to the 3rd
Defendant complaining of illegal sublease against the plaintiff.”
In its re-action the 4th
Defendant in paragraph 14 of its amended statement
defence averred as follows:
"14.
In further answer to paragraphs 21, 22, 23 and 24 of the statement of
claim, the 4th Defendant will contend at the hearing of this suit
as follows:-
(a)
That the 4th Defendant never assumed responsibility for
registration of the sublease referred to in the statement of claim.
(b)
That
when its interest became adversely affected by the conduct of the plaintiff,
the 4th Defendant instructed its Solicitors Messrs Aliyu Umaru &
Partners to communicate directly with the plaintiff.
At the time of hearing of this suit, the 4th Defendant
will rely on letter No. AUP/BRO/VOL/1/34
dated 29th October, 1984 written to the plaintiff by the 4th
Defendant's Solicitors and for the purpose of this, the Plaintiff is hereby
given notice to produce the original copy of the said letter.
(c)
That the Plaintiff did not even bother to reply the letter pleaded in
paragraph 14(b) of this statement of defence.
(d)
That consequent upon the Plaintiffs
refusal to comply with the terms contained in the letter referred to in
paragraph I4(b) of this statement of defence, the
4th Defendant's
Solicitors wrote a letter No AUP/BRO/VOL.1/84 dated 11th
March, 1985 to the 3rd defendants in which the 4th
defendant sought the intervention of the Kaduna State Government in the
matter. At the hearing of this suit the 4th defendant will rely
on the said letter."
What has emerged clearly from
the pleadings cited above is that the parties
had entered into an agreement to sublease which
was to be presented to the Governor for
his necessary consent. It is common ground that the agreement did
not bear any endorsement of the Governor's
consent. I must stress that the agreement
was not registered and delivered.
What then was the evidence
before the trial court? PW1 was Alhaji Muraina Ilemobola, Director of the
plaintiff company. In his evidence-in-chief he said inter alia thus;
"I know Brossette Nig. Ltd. I know a company
called Automobile and Engineering Industries Nigeria Ltd; I know that
Automobile and Engineering Industries Nigeria Ltd is the new name of
Brossette Manufacturing Nigeria Ltd. M. Ola Ilemobola Enterprises Nigeria
Ltd. had an arrangement with Automobile and Engineering Nigeria Limited at a
time. The arrangement was in writing, but it was not
dated ....................
The document was not dated because we had
not yet obtained the approval of the Governor ...”
Under cross-examination this witness
testified thus:
"Automobile and Engineering Industries Ltd,
is the same company with Brossette Nigeria Limited. I collected
It will be seen clearly that the Plaintiff
led evidence in line with its pleadings. That there were
negotiations between the Plaintiff and the 4th Defendant which
ended with a written agreement for presentation to the Governor for his
necessary consent. That is to say that the sublease agreement was
understood and entered into subject to the consent of the
Governor.
It was against this state of
affairs that the Governor of Kaduna State revoked the
plaintiffs certificate of occupancy over No 4
Maichibi Close, Southern
Kaduna.
The revocation notice was admitted in evidence as Exhibit 4(a) which
reads as follows:
"And
Whereas
the said M/S Ola Ilemobola
Trading Company illegally subleased their title to Brosette Manufacturing
Nig. Limited without the formal consent of the Commissioner for Lands
thereby contravening Section 28-(1)
of the Land Tenure Law Cap. 59
and Section 22 of the
Land Use Act of 1978:
Whereas:
I intend to revoke this title
for breach of contract and contravention of both the
Land Tenure Law Chapter 59 and
Land Use Act of 1978 and as recommended by the Kaduna State Land Use and
Allocation Committee
Now Therefore
in exercise of the powers which
conferred upon me by Section 28(1)(2)
of the Land Use Act of 1978
I hereby revoke with effect from the 10th day of March,
1981 the said right of occupancy of the said M. Ola Ilemobola Trading
Company Ltd over that piece of land at No 4
Maichibi Close, Kaduna South on the plan in the schedule to the said
certificate of occupancy numbered NC 3460.
Given under
my hand this
12 day of
June1986
The Governor
It will be seen clearly that the only ground
for the revocation contained in the
notice of revocation set out above is the sublease of the property to
a third party without the
consent of the Governor. It was said that the Plaintiffs action was in
contravention
of section 22(1) of Land Use Act 1978.
The law in this regard is now settled.
Section 22(1) of the Land Use Act
1978 reads;
"22
(1)
it shall not be lawful for the holder of a statutory right of
occupancy granted by the Governor to alienate his right of occupancy or any
parts thereof by assignment, mortgage, transfer of possession, sublease or
otherwise howsoever, without the consent of the Governor first had and
obtained."
Section 22(1) quoted above is clear and
unambiguous. The section prohibits the holder of a statutory right of
occupancy from alienating his right of occupancy or any part thereof by
assignment, mortgage, transfer of possession,
sublease or otherwise without the consent of the Governor first had and
obtained. But the holder of a statutory right of occupancy is certainly not
prohibited by Section 22(1) of
the Land Use Act, 1978 from
entering into some form of negotiation which may end with a written
agreement for presentation to the Governor for his necessary consent. I
think this is good sense because the Governor when giving his consent may
require the holder of the statutory right of occupancy to submit an
instrument executed in evidence of the assignment, mortgage sublease in
order that his consent under subsection (1) may be signified by endorsement
thereto: See Awojugbagbe
Light Ind. Ltd,
v.
Chinukwe
(1995) 4 NWLR (Pt. 390)379
where section 22(1) of the
Land Use Act was exhaustively
dealt with.
What is more, sections 22(2) and 26
presupposed the existence of an agreement of a sort before the Governor's
consent. Sections 22(2) and 26 of the
Land Use Act provide as follows:
“22
(2)
The Governor when giving his consent to an assignment, mortgage or
sublease may require the holder of a statutory right of occupancy to submit
an instrument executed in evidence of the assignment, mortgage or sub-lease
and the holder shall when so required deliver the said instrument to the
Governor in order that the consent given by the Governor under subsection;
(1) of this section may be signified by endorsement thereon.
26
Any transactions or any instrument which purports to confer on or
vest in any person any interest or right over land other than in accordance
with the provisions of this Act shall be null and void."
Exhibit 3 in the present case
is the agreement to sublease. It was not dated. It was not delivered.
Although it was admitted in evidence, the learned trial Judge
expunged it in the course of his judgment. There
was therefore no agreement as envisaged by sections 22(2) and 26.
The learned trial Judge fell
back upon oral evidence of the documentary
evidence which he had rejected. He said:
"The provision of
section 15 of the
Land Registration Law and
21(4) of the
Stamp Duties Law make Exhibit 3
inadmissible in evidence. Exhibit 3 ought not to have been pleaded or
tendered in evidence and its admissibility (sic) by the court was wrong,
accordingly therefore Exhibit 3 is hereby expunged from the records. The
abundant oral evidence before the court that the plaintiff entered into a
lease agreement with the 4th
defendant, without the consent of the 1st
defendant and without same
being stamped and registered is however admissible evidence and same remains
part of the records of the court."
The learned trial Judge was
clearly in error. This Court in
Olaloye
v. Balogun
(1990)5 NWLR (Pt. 148)24 said that:
"This court in
Abiodun v. Adehim
(1962)1 ALL NLR 550 at 555
relying on section 131(1)
of the evidence Act has
said that once there is a documentary evidence of sale of land, oral
evidence of the sale would be excluded and the question as to what
land was sold has been settled by the document. So in the instant case oral
evidence
as to the land sold by each of Exhibits K, Kl, K3 is inadmissible."
The agreement, Exhibit 3, was
prepared in anticipation of obtaining
Governor's consent. In his
evidence the Plaintiff said:
"the
document was not dated because we had not yet obtained the approval of the
Governor."
The legal consequence of this
is that the agreement was inchoate or at best a
mere escrow till the consent of the Governor was
obtained. What this means is this;
That agreement did not and could not transfer
title in land. See: Anambra
State Housing Developtnent Corporation v. Emekwue
(1996)1 SCNJ 98
at 132-133 where
this court held as follows:
"Being a mere escrow,
therefore the Deed of Lease passed no interest in the property to the
Defendant. It follows therefore that whatever view one takes of Exhibit 3
they did not pass any interest in the property
here concerned to the Defendant and he
consequently acquired no legal title to the property."
The Court of Appeal in the
course of its judgment held as follows:
"Section
22 of the Land Use Act Cap.
202 of the
Laws of Federation of Nigeria 1990
does not render null and void or illegal a purported sublease, such an
agreement would only be dormant or inchoate and creates no legal
relationship until the requisite consent is
sought and obtained from the appropriate authority. That this was the
intention of the appellant was quite manifest from his testimony before the
learned trial Judge. Section 22(2)
of the Land Use Act envisages
a situation whereby some form of agreement would be presented to the
Governor to which he would consent or withhold his consent. It is not likely
to be the intention of the maker of the enactment for the Governor to accede
to a mere intention of the parties. I think some concrete terms should be
agreed to by the parties for presentation to the Governor. In my respectful
opinion what the appellant and fourth respondent did in Exhibit 3 is in
substantial compliance with provisions of
Section 22 of the Land Use Act."
One can hardly fault the views expressed
above.
I agree entirely with the
Court of Appeal. In the result I find that there was nothing contrary to law
in entering into written agreement for the sub-lease before the Governor's
consent was obtained.
In conclusion, this appeal is
devoid of merit. Accordingly I dismiss it and affirm the judgment of the
Court of Appeal.
The 1st Respondent
M/S Ola Ilemobola Co. is entitled to costs assessed at
Judgement delivered by
Niki Tobi, J.S.C.
The 1st respondent
was the plaintiff in the High Court. The appellant was the 4th
defendant in that court. On 21st September, 1977, he was granted
a Right of Occupancy on or in respect of Plot No 4
Maichidi Close. Following an agreement between
the 1st respondent and the appellant, a sub-lease agreement was
drawn between them. It was for duration of ten years. It was not registered.
The consideration was
1st respondent sued
in the name of Brossette Manufacturing Ltd which
is now Automobile and Engineering Industries
(Nig.) Ltd. The learned trial Judge dismissed the case. He said in the last
paragraph of the judgment at page 160 of the Record:
"Exhibit 4(a) is not a piece
of legislation in any sense; it simply extinguished the title of the
plaintiff with effect from the 10th day of March, 1981. In
conclusion therefore I hold that 1st respondent validly, properly
and rightly revoked the plaintiff's Certificate of Occupancy and the
revocation of the
said Certificate of Occupancy is legal and proper in law."
The Court of Appeal allowed
the appeal. That court was not satisfied with the conduct of the appellant
who was the 4th respondent in the court. The court lashed the
respondent at page 224 of the Record:
"The fourth respondent
deserves whatever eventually befalls him and deserves no sympathy for his
fate, or misfortune. Its hands were soaked in blood and could not expect
equity to come to his aid. The outcome of this appeal is not against an
innocent third party but a party who deliberately set out to plan and
execute evil and has unfortunately, sorry fortunately reaped whirlwind."
Aggrieved, the appellant has
come to this court. Briefs were filed and duly exchanged. The appellant
formulated two issues. The 1st respondent formulated one issue.
The main issue is whether the order of revocation by the 2nd
respondent is legal or lawful.
I should take
Exhibit 3 first. It
is the sublease agreement. It was not dated. Learned counsel for the
appellant submitted that the Court of Appeal was wrong in holding that
Exhibit 3 was
admissible in proof of the evidence of an agreement. Learned counsel for the
1st respondent submitted that the Court of Appeal was right in
holding that the trial Judge cannot after expunging
Exhibit 3 from the
record, fall back upon oral evidence of the documentary evidence which he
had already rejected.
In rejecting
Exhibit 3, the
learned trial Judge
said at page 153 of the
Record:
"The provisions of
sections 15 of the
Land Registration Law and 21(4)
of the Stamp Duties' Law make
Exhibit 3 inadmissible in evidence. Exhibit 3 ought not to have been pleaded
or tendered in evidence and its admissibility by the court
were wrong. Accordingly therefore Exhibit 3 is
hereby expunged from the records."
The learned trial Judge
however relied on the oral evidence on the issue of lease agreement. He said
on the same page:
"The abundant oral evidence
before the court that the Plaintiff entered into a lease agreement with the
4th Defendant
without the consent of the 1st Defendant and without same being
stamped and registered is however admissible evidence and same remains part
of the records of this court."
With the greatest respect, the
learned trial Judge got it wrong. While he got the one expunging
Exhibit 3 right, he
got the one where he relied on what he
called "the abundant
oral evidence before the court" wrong. Where there is documentary evidence
on an aspect of a party's case, no oral evidence is admissible on that
aspect. This is because our adjectival law does not admit oral evidence on
an aspect or area covered by a document. A party cannot benefit from two
ways: documentary evidence and oral evidence. He can only lead evidence in
respect of one and not the two of them. But this principle of law is subject
to an important qualification and it is this. If the parties by their ad
idem agree by oral agreement to change part of the written agreement,
the court will not reject the oral agreement. But that is not the position
here.
As the learned trial Judge
rightly rejected Exhibit 3,
he was no more competent to fall back on the oral evidence on the
same aspect or area, my learned brother has usefully cited the case of
Olaloye
v. Balogun
(1990) 5 NWLR
(Pt.148) 24 on the issue. I need not go
further. I also agree with him that Exhibit 3 is a mere escrow.
Section
22(2) of the Land Use Act
is clearly on the point. It
provides:
"The Governor when giving his
consent to an assignment, mortgage or sub-lease may require the holder of a
statutory right of occupancy to submit an instrument executed in evidence of
the assignment, mortgage or sub-lease and the holder shall when so required
deliver the said instrument to the Governor in order that the caveat given
by the Governor under sub-section (1) of this section may be signified by
endorsement thereon."
Section 22(2)
is clear as to what the holder of a statutory right of occupancy must do to
obtain the consent of the Governor. He must submit an instrument executed in
evidence of the alienation by way of assignment, mortgage or sublease. This
case involves a sublease. The question is whether an instrument was executed
as required by section 22(2)? The
answer is no.
What is the effect of not
complying with section 22(2).
The answer is in
section 26.
By the section, any transaction or any instrument which purports to
confer on or vest in any person any interest or
right over land other than in accordance with the provisions of the Act
shall be null and void. The section is mandatory and failure to comply with
the provisions of the Land Use Act will nullify the transaction or
instrument. As Exhibit 3
did not comply with section
22(2) of the Act, it is null and void, vide
section 26.
In
Awojugbagbe
Light Industry v. Chinukwe (1995) 4 NWLR (Pt. 390) 379, this court held
that section 22(1) of the
Land Use Act prohibits the holder
of a statutory right of occupancy from alienating his right of occupancy or
any part thereof by assignment, mortgage, transfer of possession, sublease
or otherwise without the consent of the Governor first had and obtained.
This court also held that section 26
of the Act expressly provides
that any transaction which purports to confer on or vest in any person any
interest or right over land other than in accordance with the provisions of
section 22(1) shall be null and
void. The case has stated the correct position of the law. I therefore, with
respect, do not agree with the submission of learned counsel for the
appellant that the decision has no legal effect in the light of the evidence
of DW1.
Learned counsel for the
appellant submitted that the Court of Appeal ought to have invoked its power
under section 16 of the
Court of Appeal Act in the
evaluation of Exhibit 3
on the ground that the exhibit was wrongly rejected. The submission,
with the greatest respect, is neither here nor there. As opposed to the view
of learned counsel, Exhibit 3
was rightly expunged from the Record after admission. I cannot
fault the reasons given by the learned trial Judge for expunging
Exhibit 3 and so a
section 16 power was not available to the Court of
Appeal. And so, the case of
Mba v. Agu (1999) 9 SCNJ 84 cited
by counsel is not helpful to the case of the appellant.
Learned counsel also submitted
that a wrongful exclusion of a vital and material
evidence is tantamount to violation of right of fair hearing. I have the
impression that counsel is referring to the exclusion of
Exhibit 3, I have
seen in recent times counsel forcing into cases the principles of fair
hearing even when they are so
distant from the case. The principles of fair hearing will not be
invoked in favour of a party where the trial Judge correctly expunges an
exhibit earlier admitted. It is only when the document is wrongly or
wrongfully expunged from the record that a party can be heard to canvass to
an appellate court that he was denied fair hearing. The law is elementary
that a trial Judge has the right to expunge from the record a document which
he wrongly or wrongfully admitted. He can do so suo motu at the point
of writing judgment. He needs no prompting from any of the parties, although
a party is free to call his attention to the document at the stage of
address. Where a trial Judge is wrong in expunging a document, the appellate
process will correct it and so an argument that the Judge ought to have
expunged the document suo motu at the stage of writing judgment, will
not avail the party wronged. After all, it is better for a Judge to expunge
suo motu a document which is clearly inadmissible under the Evidence
Act than allow it to be on the record to give headache to the appellate
court. As the appellate court has the competence to expunge it from the
record, why not the trial Judge?
Learned counsel relied heavily
on the evidence of DW1. He submitted that as DW1 gave evidence in favour of
2nd, 3rd and 4th respondents who are not
parties to Exhibit 3,
the learned trial Judge ought to have considered the evidence of DW1.
I think I have taken the issue when I dealt with the procedural status of
oral evidence in the face of documentary evidence covering the whole field.
Let me take it in respect of DW1 for whatever it is worth.
And so I ask: what did DW1
say? Part of his evidence reads:
"Between April and September,
1977 one M. Ola llemobole
Trading Company was allocated a plot at No. 4 Maichibi Close Kaduna
South Industrial Area under a right of occupancy No. NC. 3640 and it
was for industrial purpose. The grant was subject to the condition that the
Company should make an improvement within 2 years of the grant. Furthermore
the grantee was to pay rents in every January of the year. The grantee
Company was not to mortgage or sublet or assign the plot without the consent
of the Governor sought and obtained. These were some of the conditions of
the grant. The terms and conditions of the grant are contained in the letter
of offer and the Certificate of Occupancy itself. Exhibit 2 is the
Certificate of Occupancy issued to the Company in 1981 the company sublet
the empty or undeveloped plot of land to Brossette Nigeria Ltd, at the rent
of
It is clear that DW1 was
narrating so much of Exhibit 3
and he cannot do that in the light of the exhibit. That is the
point the learned trial Judge got wrongly. That is the point the Court of
Appeal got rightly. That is the correct
position of the law. And so the evidence of DW1
as it relates to Exhibit 3
that
was expunged from the record
goes to no issue.
It is for the above reasons
and the more comprehensive reasons given by my learned brother, Katsina-Alu,
J.S.C that I too dismiss the appeal. I also award 1st respondent
Judgment delivered by
Ikechi
Francis Ogbuagu, J.S.C.
I have had the privilege of
reading in advance, the lead Judgment of my learned brother, Katsina-Alu,
J.S.C. I agree with his reasoning and conclusion on that, the appeal is
devoid of any merit and stands dismissed. However, for purposes of emphasis,
I will make my own contribution.
This is an appeal (described
in the lst Respondent's Amended Brief of
Argument as
"unnecessary appeal")
against the decision of the Court of Appeal, Kaduna Division and
(hereinafter called "the court below") delivered on 14th
December, 1999 allowing the appeal of the Plaintiff/1st
Respondent and setting aside, the order of dismissal of its claims by the
trial court and its stead, granted the reliefs sought by the 1st
Respondent.
Dissatisfied by the decision,
the Appellant has appealed to this Court on three (3) Grounds of Appeal in
its Amended Notice of Appeal
dated and filed on 9th June, 2006. Without their
particulars, they read as follows:
"Ground 1
The learned Judges (sic) (meaning Justices) of the Court of Appeal
misdirected themselves in law when without fully adverting their minds to
the peculiar facts of this case stated thus:
"Section
22 of the Land Use Act Cap 202 of the Laws of the Federation of Nigeria
1990 does not render null and void or illegal a purported sublease,
'such an agreement would only be dormant or inchoate and creates no legal
relationship until the requisite consent is sought and-obtained from the
appropriate authority. That this was the intention of the appellant was
quite manifest from his testimony before the learned trial Judge Section
22(2) of the Land Use Act envisages a situation whereby some form of
agreement would be presented to the Governor to which he would consent or
withhold his consent. It is not likely to be the intention of the maker of
the enactment for the Governor to accede to a mere intention of the parties.
I think some concrete terms should be agreed to by the parties for
presentation to the Governor. In my respectful opinion what the
appellant and fourth respondent did in exhibit 3 is substantial compliance
with provisions of Section 22 of the Land Use Act (supra)".
and
this occasioned a serious miscarriage of Justice.
Ground 2
The Learned Justices of the Court of Appeal erred in law when they granted
the plaintiff's claims and set aside the revocation of the plaintiff's right
of Occupancy when from the facts on the record the plaintiff did not prove
his case.
Ground 3
The Learned Justices of the Court of Appeal erred in law when they
invalidated the revocation of the 1st Respondent's Right on the
decision of Awojugbagbe Light
Industries Limited v. Chinukwe (1995) 4 NWLR (Pt.390)
without adverting their minds to the factual situations that arose in this
case".
I note that in its amended
brief of argument, the 1st Respondent gave notice of preliminary
objection in respect of the said grounds submitting that they are grounds of
mixed law and facts which it says, are incompetent for want of compliance
with Section 233 (3) of the
Constitution of the Federal Republic of Nigeria, 1999. This Court, has
laid down that the test to be applied in determining whether a ground of
appeal, is one of law alone or of mixed law and fact in the cases of
Ogbechie v. Onochie (1986) 2-NWLR (Pt.23) 484 (a)191 and Nwadike &
ors. Ibekwe & ors. (1987) 4
NWLR (Pt.67) 718 (733),
(1987) 11-12 SCNJ. 72.
The phrase “a question of law” and a “question fact”, was
examined in the case of Metal Construction (West
Now, to
the merits of the appeal.
The Appellant; has formulated two (2) issues for determination, namely,
"(1)
Whether the 1st Respondent had not admitted the fact that he sub-
leased the property in dispute covered by Certificate of Occupancy No.
3640 and received
consideration
there from in the sum
(2)
Whether
having regard to the facts contained in printed record (sic) before the
Lower Court the Learned Justices of the Court of Appeal were not in grave
error in invalidating the revocation order of the interest of the 1st
Respondent over the land in dispute — Ground 2.
On its part, the 1st
Respondent, has formulated one lone issue for consideration, namely,
"
Whether the court of Appeal was
right in its application of Section 22(1) & (2) of the Land Use Act to the
facts of this case having regard to the decision of the Supreme Court in
Awojugbabge Light Industries v. Chinukwe (1985) 4 NWLR (Pt.390) pg 379
and other Supreme Court cases on the content of revocation notice",
I agree with the learned
counsel for the lst Respondent, that the crucial and all
important issue for determination, is whether the 1st Respondent,
had in
fact and indeed, sub-leased or alienated the subject matter of the dispute,
without the consent of the Governor being sought
and obtained. I will therefore, reproduce
the provisions of Sections 22(1) &
(2) and 26 of the Land
Use Act.
"22(1) It shall not be lawful for the
holder of a Statutory right of occupancy granted by the Governor to alienate
his right of occupancy or any part thereof by assignment, Mortgage, transfer
of possession, sublease or otherwise howsoever without the consent of the
Governor first had and obtained".
22(2) The Governor when
giving his consent to an assignment, Mortgage or sublease may require the
holder of a Statutory right of occupancy to submit an instrument executed in
evidence of the assignment, mortgage or sub-lease and the holder shall when
so required deliver the said instrument to the Governor in order that the
consent given by the Governor under subsection (1) of this section may be
signified by endorsement thereon".
26
Any transactions or any instrument which purports to confer on or
vest in any person any interest or right over land other than in accordance
with the provisions of this Act shall be null and void".
Firstly, the position of
Section 22 of the Act, is
undoubtedly that a holder of a right of occupancy, may enter into an
agreement or contract, with a view to alienating his said right of
occupancy. In entering into such an agreement or contract, he does not need
the consent of the Governor. He merely operates within the first leg/stage
of a "transfer on sale of an estate in land" which leg/stage, ends with the
formation of a binding contract for a sale constituting an estate contract
at best. However, when he comes to embark on the next leg/stage of
alienating or transferring his right of occupancy which is done or
effected by a
Conveyance
or
Deed, which
culminates in the vesting of the said right in the particular "purchaser",
he must obtain the consent of the Governor in order to make the transaction
valid. If he fails to do so, then the transaction is
null and void under
Section 22 of the Act.
See the case of International
Textile Industries (Nig.)
Ltd, v.
Dr. Aderemi & 4 ors.
(1999)
SCNJ. 46.
Now, in the book Authority of
Conveyancing Laws & Practice by
(i)
the contract stage ending with the
formation of a binding contract for sale.
(ii)
the conveyance stage culminating in the
legal title vesting in the purchaser by means of the appropriate instrument
under seal.
As held in the above case -
per Uwaifo, J.S.C, it follows that it is only after a binding contract for
sale is arrived at, that the need to pursue the procedure for acquiring
title, will arise. It does therefore mean that it is when the obtainment of
the necessary consent to alienate the property becomes an
issue in order to make the alienation valid. See
the case
of
Denning v. Edwards
(1961) A.C. 245
(P.C.)
referred to in the case of Awojugbagbe
Light Industries
Ltd, v. Chinukwe & anor.
(1995) 4 NWLR
(Pt.390) 379; (1995) 4 SCNJ.
16. In effect, there is need for some
form of written agreement to be entered into before applying for the
Governor's consent.
Secondly, I note that
Exhibit 3 is/was not dated.
It is now firmly established that for an agreement of a lease to be
valid, it is essential that there
must be an agreement
on the date of commencement
of the term. In other words,
both the commencement and the maximum duration of the term must either be
certain or capable of being rendered certain, before the lease takes
effect. In the case
of
Marshall v. Berridge (1881) 19 Ch.D. 233 (a), 245.
Lush L.J. stated inter alia, as
follows:
"There must be a certain beginning and a certain ending, otherwise it is not
a perfect lease, and a contact must in order to satisfy the Statutes of
Frauds, contains this reference".
In the case
of
"It is settled beyond question that in order for there to be a valid
agreement for a lease, the essentials are that there shall be determined not
only the parties, the property, the length of the term and the rent, but
also the date of commencement".
See also the case
of Lace v.Chantler (1944) K.B.
368 (a), 370-371. In the case of Okechukwu
v. Onuorah (2000) 12 SCNJ. l46 (a), 153.
Belgore, J.S.C, (as he then was), referred to the
case of Osho & anor. v. Foreign Finance Corporation & anor.
(1991) 4 NWLR (Pt.184) 157, 197: (1991) 5 SCNJ.
52 as to the requirements of a valid contract to include, complete
agreement leaving
no ambiguity as to its purport, the
identification of the parties to the agreement and the commencement and the
duration of the agreement.
In this case, there is the unchallenged and
uncontroverted evidence of the Plaintiff/1st Respondent through
PW1, that the sub-lease - Exhibit 3, was not
dated because, the parties had not got/obtained the approval/consent of the
Governor. See pages 90 & page 91 -PWl's evidence
under cross-examination. I have noted in this Judgment, that there is the
need for some form of a written agreement to be entered into, before
applying for the Governor's consent. See also, the pleadings of the 1st
Respondent in paragraphs 12 to 16, 22, 24 and 25
of the Amended Statement of Claim at page 47/52 and
49/54 of the Records. In Okechukwu
v.Onuorah's case (supra) which also
dealt with commencement date as in the instant case leading to this appeal,
Iguh, J.S.C, at page 157, stated that in
order to have a valid agreement for a lease (here a sub-lease), that it is
essential that it should appear either in express terms or by reasonable
inference from the language used in the instrument, on what day, the term is
to commence. Ayoola, J.S.C, on his part at page 160, referred to
Halsbury's Laws of
"A tenancy for a term of years arises by express contract or by Statute, and
it is essential to the contract that the
commencement
and duration of the term should be so defined as
either to be certain in the first instance, or to be capable of being
afterwards ascertained with certainty".
I note that at the time the Appellant
instigated or alleged by his letter, that the 1st
Respondent, had sub-leased the property
without the consent of the Governor, it
did not realize that that complaint, will boomerang against it. This
is because, the sub-lease had not been dated, not
stamped and not registered. In other words, the agreement had not been
delivered.
Surely and this is settled, a Deed becomes effective in law at the
time of delivery. See
Awojugbagbe's case (supra). A
contravention of Section 22 of
the Act will occur in the case of a proper/conclusive alienation of a right
of occupancy carried out by a Deed,
at the time when the relevant deed was
delivered and not
at the time when it was
executed or even
sealed. So, if a Deed is delivered after
the Governor's consent, there will be no contravention of
Section 22 of the
Act.
This is because, in my
respectful view, it is settled that a transaction created by a deed,
will not come into effect prior to the delivery of the deed.
In other words, a deed
only becomes effective, upon its delivery.
So, until the time specified had arrived or the condition had been
performed or the Governor has given his consent, the instrument, will not be
a deed; so to speak,
but is a
mere escrow. See also
Halsbury's Laws of England 4th edition, Vol. 1
paragraph 1329 - citing the cases of
Goddard v.Denton (1584) 76
E.R 396 P.C.; where though, the deed was undated but it had been
delivered,
Mowatt
v.
Castle Street
and Iron Works (1887) 34
Ch. D. 58
and
Vincent v. Premi
Enterprises Ltd, (1969) 2 Q.B. 609.
What is an Escrow?
In the book authority of
Norton upon Deeds
1st Edition, page 15, Escrow is defined as follows:
".....
an instrument delivered to
take effect on the
happening of
a specified event, or upon
the condition that it is not operative until some condition is performed,
then pending the happening of the event or the performance of the condition,
the instrument is called an Escrow ….... until
the specified time
has arrived or the condition has been performed, the instrument is not a
deed, it is a mere escrow".
'The cases
of Beesly v. Hallward Estates
Ltd. (1961) 1 Ch. 105 (a) 116
Xenos
v.
Wickham (1966 L.R.2 (H.L) 296
(a), 322
and Vincent v.
Premi
Enterprises Ltd. (supra)
are/were referred to.
In the
case of Anambra State Housing
Development Corporation v.
Emekwue
(1996) 1 SCNJ.
98 (a), 114 - per
Belgore, J.S.C, (as he then was); 122 - per Wali, J.S.C and 132 - 133 - per
Ogundare, JSC, the deed was signed, but not
delivered, it was
held that non-delivery, was due to the failure of the Respondent, to fulfil
a fundamental condition to pay the full price within the stipulated time,
The case of Awojugbagbe etc v. Chinukwe (supra) was also referred to.
Ogundare, J.S.C, (of blessed
memory), had this to say inter alia:
"Being a mere escrow, therefore, the
Deed of Lease passed
no interest in the property
to the defendant. It follows therefore, that whatever view one takes of
Exhibit O they did not pass any interest in the property here
concerned to the defendant and he consequently
acquired no legal title to
the property
.......
As there was
no need for the
defendant to Execute
any deed of Surrender since title has not passed
to him. I cannot say
there was an agreement which he breached by his refusal to execute
such a deed ........."
[the
underlining mine]
At page 3 of the Appellant's
Brief, in the said evidence of the PW1, reproduced therein, the following,
is included:
"........
I
personally
signed the
agreement but it was
not dated ......"
I note that the Appellant,
included the
following statement – “He went further to state
that exhibit 8 was not dated
because approval of the Governor was not obtained ....” Pages 95-97
of the Records, were therein referred to.
This last sentence, is the crux of the matter and
the Appellant, did not controvert this relevant and weighty evidence. Heavy
whether has been made in the said Brief about the signing. That the 1st
Respondent signed the document, on the decided authorities, was/is of no
moment. I so hold.
It is conceded at page 5 of
the Appellant's Brief that Section 22 of the
Act
"does not prohibit any form of negotiation prior to the drawing up of an
agreement in the hope of obtaining consent to that agreement". At
page 10 of the said Brief, it is again
conceded, that "based on the
decision of Awojugbagbe Light
Industry (supra) .........
there is nothing wrung in
forming an intention
to sublease". But it is with
respect, "lamely" submitted that the Act, frowns at and prohibits,
"deliberate steps" being taken by a holder
of a Certificate to circumvent the clear provision of the law. But the
evidence of the PW1, runs contrary to this
speculation which does not apply to the
instant case. The 1st
Respondent, never neglected
to obtain the said consent as borne
out by his evidence both in-chief and under cross-examination. I so hold.
Of course, as rightly found as
of fact and held by the court below at page 212 of the Records, firstly,
that the purport of the said evidence of the PW1 that
the document -
Exhibit 3, was not dated
because they had not obtained the approval of the Governor, is/was that the
contract or sub-lease, is/was inchoate and creates/created, no legal
relationship.
Secondly, the agreement prepared in
anticipation of receiving the Governor's consent, is inchoate and
does not transfer any interest in law.
"He (meaning the PW 1) collected the sum of
[the
underlining mine]
At page 4/138, it is recorded
inter alia, as follows:
".......
In one of the letters from the 3rd
Defendant to him, he said
the 3rd Defendant alleged that he had sublet No 4
Maichibi Close to Brossette
Nigeria Limited an allegation which he denied. He admitted signing
Exhibit 3...........,."
[the
underlining mine]
Interestingly, the Court of
Appeal in the said Awojugbegbe’s
case
(supra) which came on appeal to this Court, held
that the execution of
a document or deed of
mortgage, before submitting it
to the Governor
for his consent, did not
contravene Section 22 of the
Act. The following appear in that
said Judgment inter alia:
"There is nothing in the Act preventing prior
execution of an instrument
before an approach is made to the Governor for his consent so that the
provisions that the consent of the Governor must first be had and obtained
before a mortgage can be made, means no more than the agreement entered
into, will remain inchoate
until the Governor's Consent thereon is sought and obtained. Governor would
be handicapped in his
duty to protect public policy if he gives his consent blindfolded. Public
policy is better protected by his having fore-knowledge of what he is called
upon to consent to. Consenting to a sublease, mortgage, transfer of
possession prior to the
parties drawing an agreement
is analogous to
buying a pig in the poke. Section 22(2) seems to be ......"
See also the case of
Anambra State Housing Dev. Group v.Emekwue
(supra) (a), 132 -133
- per Ogundare, J.SC, (of blessed memory).
At page 220 of the Records,
the court below stated inter alia, as follows:
"Exhibit 3 is incohate (sic) agreement as escrow which becomes
registrable after the consent had been obtained and delivered by inserting a
date subsequent to the receipt of the Governor's consent. It is not an
illegal document. The revocation of the appellant's statutory right of
occupancy on the ground that he had no consent of the Governor before
drawing it up appears improper since it seems to derive support for what it
did from the provisions of Section 22 (2) of the Land Use Act
(supra). The position would have been different if it had dated or
delivered the document. It is not execution of the document that is frowned
upon but delivery of the same before
or without obtaining Governor's consent".
[the
underlining mine]
I
agree.
At page 213 of the Records,
the court below, stated inter alia, as follows:
"Section
22 of the Land Use Act Cap 202 of the Laws of Federation of Nigeria
1990 does not render null and void or illegal a purported sublease, such
an agreement would only be dormant or incohate (sic) and creates no legal
relationship until the requisite consent is sought and obtained from the
appropriate authority. That this was the intention of the appellant was
quite manifest from his testimony before the learned trial
judge,
Section 22(2) of the Land Use Act envisage a situation whereby
some form of agreement would be presented to the Governor to which he would
consent or withhold his consent. It is not likely to be the intention of the
maker of the enactment for the Governor, to consent to a mere intention of
the parties. I think some concrete terms should be agreed to by the parties
for presentation to the Governor. In my respectful opinion what the
appellant and fourth respondent did in Exhibit 3 is substantial compliance
with provisions of Section 22 of the
Land Use Act (supra) ......"
The above are findings of fact
and holdings and I also agree.
Thirdly, I note that the learned trial Judge
at page 15/153 of the Records, held that Exhibit
3 was inadmissible in that it constituted a breach of the conditions
for the grant of the Certificate of Occupancy. Although, His
Lordship, raised this issue
suo motu in his judgment, he
proceeded to expunge it from the Records. I am aware and this is settled
that neither a trial court nor the parties have the power to admit without
objection, a document that is no way or circumstances, admissible in law.
See Alase & ors. v. Ilu & ors. (1965) NMLR 16 (a), 77: Olukade Abolade
Alade (1976) 1 ANLR
(Pt 1) 67 and Oba Oseni & 14
ors. v. Dawodu & 2 ors. (1994) 4 NWLR (Pt.339) 390 @456
(1994) 4 SCNJ. (Pt 11) 197. In my
respectful view, if a trial court during its final judgment, finds out that
it erroneously admitted a document that is definitely inadmissible in law,
in any event, it can ignore/discountenance the same. But erroneously, with
respect, Exhibit 3, was voided as inadmissible,
on the ground that it was a registrable instrument and that it was not
stamped or registered under Sections
15 of the Land Registration Law
and 21(4) of the Stamp Duties
Law.
Now, what is the effect or consequence of
the learned trial Judge expunging Exhibit 3 from his records? I or one may
ask in my respectful view, having expunged it, it is no longer of any moment
or consequence. It no longer forms a part of his Record. That being the
position, the Appellant, cannot now eat his cake and have it so to say. It
can no longer anchor or find its case on Exhibit 3 that is no longer part of
the Records. Its case or appeal to this court is founded on quick
sand with no foundation at all. I note that the Appellant has not appealed
against the said fact or order expunging Exhibit from the Records. As far as
I am concerned, that is the end of this appeal. This Court or any court,
cannot act on a document or evidence, not before it.
This trite. On this ground/point and on any of the first and second
points discussed by me in this Judgment, or on all the three (3) points this
appeal has collapsed like a pack of cards. But I am not yet done.
I note that the Revocation Notice served on
the 1st Respondent, did not give as a reason for the revocation,
the non-payment of rent, but on the "grant of the sub-lease, without the
consent of the Governor”. The revocation
Exhibit 4(a) reads in part,
as follows:
"AND WHEREAS the said M/S Ola
llemobola Trading Company
illegally subleased their title to Brossette
Manufacturing Nig. Limited without the formal consent of
the Commissioner
for Lands thereby contravening Section 28
-
(1)
of the Land Tenure Law Cap 59 and Section 22 of the Land
Use Act of 1978 .....".
[the
underlining mine]
I also note that the recommendation of the
Kaduna State Land Use and Allocation Committee that the Right of Occupancy
granted to the 1st Respondent be revoked,
was based on a Petition by the
Appellant who was the 4th Defendant/Respondent and
who eventually, was allocated the
very land which was the subject of revocation.
After it lost at the court below, it wants now, to benefit from its
own wrong by bringing this appeal and the question of
non-payment
of rent is being "hung" or "waved" before this Court. I note that a copy of
the said Recommendation was never served on the 1st Respondent.
Although, I also note that the Certificate revoked, is/was No
3460 instead of
3640
of the 1st Respondent.
But this fact, has not been made an issue
in this Court, because I note that at page
108 of the Records that, DW1 - An Assistant
Director, in the Land Department, stated in his
evidence-in-chief, that it was a
typographical error and his evidence, was not challenged. So, I
ignore the error. I also note that even the Revocation, was made to be
retrospective. Exhibit 4(a),
was given in 1986, but related back to 1981.
So, I or one may ask, if the Revocation is with effect from 1981,
will the Kaduna Government, be entitled to payment of rent for the period of
1982 to 1985? So,
which ever
way one looks at this matter, the said Government or Committee, cannot be
complaining of non-payment of rent when as at 1981, the 1st
Respondent would not have been accused of
non-payment of rent even if it was a
reason for the revocation and I hold that it was not the reason. As I have
stated and found as a fact and held in this Judgment, a copy of the
Recommendation of the Land Use and Allocation
Committee was never served on the 1st
Respondent.
I will pause here to deprecate
the conduct of the Appellant in all
the
circumstances of this case. It may be suggested or argued that the 1st
Respondent after collecting the sum of
However, in the Judgment of
the trial court, the evidence of the PW l is recorded at page 4/138 of the
Records inter alia, as follows:
"He said he made a part payment of the ground rents from 1982 - 1985 because
of disagreement as to the amount payable ..... The witness also agreed,
(i.e. under cross-examination) that he and the 3rd Defendant
entered into communication on issue of payment of ground rents.
So, it cannot/could not be
that he refused or neglected to pay the rents, In any case, from what I have
stated in this Judgment on the law or principle that an escrow agreement,
cannot ripen until the event has occurred or the condition is met, there is
no way, the 1st Appellant, can or could be accused of being
dishonest or breaching the terms of Exhibit 3. Afterwards, the Appellant was
in possession of part of the land or property of the lst
Respondent. The lst Respondent's grouse was that the Appellant,
wanted to
claim the entire property instead of the portion which he the 1st
Respondent insists it granted to the Appellant. In order to have its way,
the Appellant, wrote the
mala fide Petition and colluded
with the Government officials, to have the
Certificate of Occupancy of the 1st Respondent, revoked and then
be granted to it, the whole of the said
properly.
It perhaps, naturally,
jubilated when the trial court found in its favour.
When that Judgment was set aside by the court
below, it still wants to benefit from its
own wrong or mischief. This Court will not oblige it. This is because,
it will not allow any person or party or body, to
benefit from his or its own wrong. See the cases of
Solanke v. Abed
(1962) 1 All NLR 230: (1962) NRNLR 92 and Re
The 1st Respondent
pleaded in paragraph 41 of its Amended Statement of Claim about the above
facts and curiously and significantly as also stated by the court below at
page 224 of the Records, in its paragraph 18 of its statement of Defence,
the Appellant, admitted
the said averment in the 1st Respondent's paragraph 41
thereof. I am not surprised that the court below, stated inter alia, as
follows:
"The fourth respondent deserves whatever eventually befalls
him
(sic) and deserves no sympathy for his fate or
misfortune. His
hands were soaked in blood (sic) and could not expect equity to come to his
(sic) aid. The outcome of this appeal is not against an innocent third party
but a party
who deliberately set out to plan and execute evil and
has unfortunately,
sorry, fortunately reaped whirlwind".
I agree, except that, with
respect, I do not agree about the Appellant, soaking its hands in blood,
although this expresses the disgust of the learned
Justice in respect of the whole or entire
scenario in all the circumstances of this
case.
In concluding this, perhaps
lengthy, Contribution/Judgment, it is from the
foregoing and the fuller lead Judgment of my
learned brother Katsina-Alu, J.S.C, that I
too, dismiss this appeal that is very unmeritorious. I too, affirm the
painstaking and well and thoroughly considered
Judgment of the court below per Salami,
J.C.A. I also award
Judgment delivered by
Francis
Fedode Tabai, J.S.C
I had the privilege to read,
in draft, the leading judgment of my learned brother Katsina-AIu J.S.C, the
judgment of
the
court below was founded mainly on the strict interpretation of the contents
of the Revocation Notice Exhibit 4(a). The ground for the revocation is
stated therein to be illegal sublease of the property to the 4th
Respondent without the formal consent of the Commissioner for Lands.
The notice is silent on the
question of the Respondent's default in paying the ground rents. I do not
think it is proper to look beyond the Notice of Revocation itself to
ascertain the reasons for the revocation. I agree with the reasoning and
conclusion in the leading Judgment that the appeal be dismissed. I also
agree on the issue of costs.
Judgement delivered by
Pius Olayiwola
Aderemi.
J.S.C.
The appeal here is against the
judgment of the court below delivered on 14th December, 1999
allowing the appeal of the 1st respondent who was the plaintiff
in the trial court. By paragraph 42 of its amended statement of claim the 1st
respondent as plaintiff before the trial court claimed the following
reliefs: -
“(42) WHEREOF the
plaintiff prays this Honourable Court for the following orders: -
(a)
That the purported order of revocation of the plaintiffs right of
occupancy dated the 12th day of June 1986 does not apply to the
plaintiff right of occupancy with certificate of occupancy No NC3640
dated the 21st day of September 1977.
(b)
That the purported order of revocation of the plaintiff right of
occupancy dated 12th of June, 1986 is null and void and of
no effect whatsoever
since same took retrospective effect.
(c)
That the revocation order is defective in law since same
is
not in compliance with the
provisions of the Land Use Act of
1978.
(d)
A declaration that the plaintiff is still the rightful holder of the
right of occupancy over the said piece of land known as No.4
Moriolubi Close and covered by a Certificate of Occupancy No.3640 and
dated the 21st day of September, 1977.
(c)
The plaintiff also claim (sic) against the
defendants jointly and severally as follows: -
(i)
the sum of
(ii)
The plaintiff further claim the sum of
Sequel to the close of
pleadings of the parties, calling of evidence in proof of the averments in
the respective pleadings of the
parties and the final addresses of their respective counsel
during which the learned counsel for the plaintiff sought and obtained the
leave of court to withdraw the prayer for damages, the learned trial judge,
in a reserved judgment delivered on the 3rd of November, 1993
dismissed the plaintiffs suit.
Suffice it to say that the appeal lodged by
the plaintiff
to the court below succeeded
hence the judgment of 14th
December 1999, is appealed
against in this court.
I shall not go
over the facts
leading to the present appeal as
they have been succinctly stated in the leading judgment
of my
learned brother, Katsina-Alu
J.S.C. I need however to say that the
purport of this action is to
challenge the revocation of the statutory right
of occupancy over a plot of land known as Plot No 4, Kaduna South,
Moriolubi Close, Industrial Estate, Kaduna. The
plaintiff/1st respondent had been in possession of the said
parcel of land since 1977 and later in 1981 it extended into a Lease
Agreement with the 4th defendant/respondent for a period of ten
years for a consideration of
“The governor may revoke a
right of occupancy on the grounds of: -
(a)
a breach of any of the provisions which a
Certificate of Occupancy is by Section 10 of the Act deemed to
contain.
(b)
a breach of any term contained in the
Certificate of Occupancy or in any special Contract made under
Section 8 of the Act.
(c)
a refusal or neglect to accept and pay for
a certificate, which was issued in evidence of a right of occupancy but has
been cancelled by the Governor under
Section 9 (3) of the Act.”
See
C.S.S. Bookshops Ltd, v.
R.T.M.C.R.S. (2006) 11 NWLR
(pt. 992) 530. the Revocation Notice which was tendered as Exhibit 4 (a)
is a letter dated 12th June 1986 and signed by the Governor
himself did not contain any reason within the purview of
Section 28 (5) of the Land Use Act.
I will also agree with the judgment of the Court of Appeal as correctly
stating the position of the law.
In the final analysis, for the
little I have said supra but most especially for the detailed reasoning of
my learned brother, Katsina-Alu. J.S.C contained in the leading judgment, I
agree with him in toto that this appeal is unmeritorious. It must be
dismissed and I accordingly dismiss it while affirming the judgment of the
Court of Appeal and I do abide by all other
consequential orders made in this appeal
including the order as to costs.
Counsel
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