Attorney-general. Of Rivers State & Anor V. Mrs. Vidah C. Ohochukwu & Anor (2003)
LawGlobal-Hub Lead Judgment Report
DAVID ADEDOYIN ADENIJI, J.C.A.
This is an appeal against the judgment of H. George, J., sitting at High Court of Rivers State, Port Harcourt, delivered on 7th January, 1994, giving judgment for the plaintiff/respondent for declaration as sought and perpetual injunction restraining defendants jointly and severally from further interfering with the plaintiffs’ ownership or possession of the property, situate lying and being at Plot A 27 G.R.A. Phase 1 Port Harcourt.
The 1st and 3rd defendants/appellants being dissatisfied with the decision appealed against same, each filing a notice of appeal containing one ground of appeal. The 3rd defendant later filed an amended notice of appeal, with leave of court, containing 7 additional grounds of appeal. From the said grounds of appeal, the 3rd defendant distilled 4 issues for determination by the court, these are:
“1. Whether the trial court had jurisdiction to hear this suit having regard to the provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984 (Ground 2).
2. Whether the approach adopted by the trial court in writing the judgment in this suit prejudiced the case of the appellants (Grounds 3 and 5).
3. Whether the trial court appreciated the issues raised in this suit (Ground 6).
4. Whether the trial court was right in awarding judgment to the plaintiff, having regard to the pleadings and evidence tendered in this suit (Grounds 1, 4 and 7).”
The first appellant appeared to abandon his appeal. He filed no brief and was not represented at the hearing of the appeal. The 2nd respondent also filed no respondent’s brief and was not represented at the hearing of the appeal, which was only between the 3rd defendant and the plaintiff.
The facts of the matter are that the plaintiff/respondent formerly domiciled in a foreign country applied for and got a plot of government land in Rivers State. He however, got allocated another plot of government land in the city of Port Harcourt.
The plot in dispute was however, taken from the plaintiff/respondent on the ground that the allocation was made in error as it ran counter to the State’s government policy of one-man one plot. Apart from that, the plaintiff was said to have willingly surrendered plot A 27 now in dispute in preference for the Plot at 39 Birabi Street in Port Harcourt, where he resided. The 2nd defendant, that is, the Housing and Property Development Authority, also claimed that the plaintiff/respondent defaulted in the discharge of his obligation under the contract.
These allegations, the plaintiff/respondent denied and maintained that the plot was taken from him against his will. He protested in writing but the attempt failed, whereupon he tried to reassign the plot to his wife, Mrs. Vidah C. Ohochukwu (described as his common law wife) who was later substituted for the plaintiff/respondent upon his demise.
In arguing the appeal, the appellant’s counsel submitted that the issue related to the matter of jurisdiction which was raised at the trial court, but which was overruled. The case he argued, arose during the Military regime in the country which regime promulgated the Supremacy and Enforcement of Powers Decree that ousted the jurisdiction of the courts to question any act done under a Decree or edit particularly section 1(2), (b) of the said Decree.
Counsel reproduced the provision of the Decree and maintained that from the tenor of the Decree, no civil proceedings could be initiated to challenge any act of the Federal Military Government or the Government of a State, done or purported to be done under a Decree or Edit., The revocation of the plaintiff/respondent’s certificate of occupancy on the plot in dispute was done by the Military Government of Rivers State pursuant to the Land Use Decree-of 1978 and the revocation was done for purpose of effective maintenance of peace; order and good government of the Federal Republic of Nigeria of which Rivers State is a constituent part.
The revocation was done pursuant to the recommendations of Sanomi Commission on the allocation of land, which was set up to rectify anomalies in the allocation of State lands. Counsel was of the view that the Decree applied to acts done under the Land Use Decree. The trial court, learned Counsel for the appellant stated was wrong in assuming jurisdiction without considering the report of Sanomi’s Commission which would have convinced the court that the revocation done was for the peace and good governance of the State, in which case, the court would have no jurisdiction. Decree No. 13 of the 1984 counsel maintained, had been interpreted in this court in the case of Chief Albert Sanumi & Ors. v. The Military Governor of Ondo State and 3 Ors. (1995) 2 NWLR (Pt.376) 231, where the court held that a letter written by the Military Governor was an act done pursuant to an Edit and a civil action could lie against same.
Counsel referred in that connection to the decision on Olugbemi Obada, Oba of Ponyon v. Military Governor of Kwara State (1990) 6 NWLR (Pt.157) 482. Learned Counsel held the view that the plaintiff/respondent in the suit in effect sought to challenge the act of the Military Government of Rivers State, done pursuant to his powers under the Land Use Decree. In view of this, the court ought to have declined jurisdiction in the case.
On issue No.2, counsel’s grouse was with the way the judgment of the trial court was written. According to learned Counsel, the issue was distilled from grounds 3 & 5 of the grounds of appeal. Counsel conceded to the court, the right to adopt any approach that is convenient to the court in writing its judgments once the court could show that it understood the issues raised before it by virtue of the pleadings and evidence together with the law cited before it. Once the contrary is the case, the court’s trial becomes tainted.
Counsel cited in support the decision in Polycarp Ojogbue v. Ajie Nnubia & Ors. (1972) 6 SC 227 at 236 and the case of Chief Ademigba Afolayan v. Oba Joshua Ogunrinde & Ors. (1990) 1 NWLR (Pt.127) 369 at 383. Counsel conceded also that the court was not bound to consider the case of the plaintiff first, but where the court decided to consider the defence first, it should not make any finding of fact. Counsel relied for this on the decision in Alhaji Oludoja Sanusi v. Oreitun Ishola Ameyogun (1992) 4 NWLR (Pt.237) 527 at 553. The court is not supposed, added counsel, to consider the weakness of defence before considering the plaintiff’s case, which he said the trial Judge did.
The appellant he said was prejudiced by the approach adopted by the court especially, when the court granted the declarations sought even in the face of the plaintiff’s admission that he surrendered the plot and the fact that the 3rd defendant/appellant was a bona fide purchaser for value without notice. This, counsel said, was against the spirit of section 33 of the 1979 Constitution as regards fair hearing. The judgment was thus, a nullity and should be nullified by this court.
On issue No.3 as to whether the court appreciated the issues raised in the suit, the learned Counsel was of the view that the learned trial Judge gave judgment to the plaintiff/respondent under a misconception. Counsel then went on to enumerate the issues for determination linked with that aspect of the case and pointed out that atonement for the mistakes made which the court stressed was not before the court. The court, counsel believed, was also wrong in holding that the defendants did not observe the provisions of the Land Use Decree (Act) under which they acted since the plaintiff/respondent was not given the required statutory notice before revocation of his certificate of occupancy. The issue of notice counsel pointed out, was never raised in the proceedings. Those misconceptions, counsel believed, led the court to the erroneous conclusion it made which he said, occasioned miscarriage of justice.
Learned Counsel concluded by urging this court to correct the anomalies, under section 16 of the Court of Appeal Act.
On issue 4, counsel felt that the plaintiff/respondent was not entitled to be given judgment. Counsel in his address relied mainly on his arguments for issues 1-3 and added that the plaintiff/respondent was supposed to rely on the strength of his own case and referred to the case of Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519, (1991) 9-10 SCNJ 122, more so when the 3rd defendant/appellant defence of bona fide purchaser for value without notice of 3rd party’s right was not in any way controverted.
The property, counsel said, was duly advertised in the Nigerian Tide Newspaper of 27/3/86, exhibit 25 and a search in the Lands Registry did not show the property as encumbered, but the court of trial did not consider that defence. The plaintiff/respondent though aware of the advertisement for sale of the property, he never entered a caveat, said counsel hence, he could not deny the truth of the appellant’s case.
Counsel relied for this on T.O. Wilson & Anor. v. A.B. Orhin & Ors. (1994) 9 NWLR (Pt. 366) 90 at 108. In as much as the plaintiff/respondent had surrendered his right of occupancy over the disputed Plot A 27, the government had the right to deal with the plot as deemed fit. Per section 27 of the Land Use Act, 1978 Cap. 202, Laws of the Federal Republic of Nigeria, 1990, sections 28 and 29 of the Act. The plaintiff/respondent having surrendered his lease, counsel concluded, had no further right to challenge the government that sold the land to the appellant and was therefore not entitled to the judgment he got.
On his part, the counsel for the plaintiff/respondent, Mr. E.O. Asimanah formulated 2 issues for determination after adopting issue one as formulated by the counsel for the 3rd defendant/appellant.
They are as stated hereunder:
(ii) Whether or not, the trial court in its judgment properly evaluated the evidence adduced by the appellant (This issue arises from grounds 3 & 5.)
(iii) Whether or not having regard to the pleadings and evidence before the learned Judge by the appellant and the respondent the judgment to the respondent in this suit was correct (grounds I, 4, 6 and 7.)
All the issues appear to be covered by the issues framed by the counsel to the 3rd defendant/appellant. In his argument on issue 1, that is lack of jurisdiction, counsel stated that Decree 13 of 1984 was not pleaded by appellant’s counsel in the trial and a party could not go outside his pleadings to establish his case. He relied on Egonu v. Egonu (1978) 11 – 12 SC 113 at 133 and Orizu v. Onyeagbunam (1978) 5 SC. Counsel agreed however that lack of jurisdiction by a court can be raised at any stage of the trial and even on appeal relied on I.T.T. Nigeria Ltd. v. Okpon (1989) 2 NWLR (Pt.103) at 337 and Oredoyin v. Arowolo (1989) 4 NWLR (pt.114) 172. In any case even where the plea of jurisdiction is raised the court could still entertain the suit to determine if it had jurisdiction in the case. Counsel referred to C.O. Sode v. Attorney-General of the Federation of Nigeria (1986) 2 NWLR (pt.24) 568 at 573 paras. C-D.
Counsel went on to say that statutes, which encroach on the rights of the subject, must be construed strictly going by the decision in Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt.9) 734 at 753.
The court he said, was therefore right when it held that the 1st respondent did not comply with the laid down procedure in the Land Use Act in purporting to revoke the plaintiff/respondent’s right of occupancy and his certificate of occupancy. The court was thus right in assuming jurisdiction in the case.
On issue No.2, counsel submitted that the cases submitted on the approach adopted by the court in deciding the case were irrelevant. The learned trial Judge he said carefully reviewed the evidence of the parties. He however, conceded that the court failed to ascribe probative value to the evidence of the case for the appellant, but that did not occasion miscarriage of justice. The trial court came to the conclusion that the certificate of occupancy granted to the plaintiff/respondent still subsisted thereby nullifying both the sale of the land in dispute and the revocation of the certificate of occupancy. Having so found by the court, the plea of bona fide purchaser for value did not arise.
Counsel further argued that the case of Mogaji v. Odofin (1978) 4 SC 91, laid down the principle in writing judgment but the trial Judge he said, did not violate any of the principles hence, the method adopted was not prejudicial to the case of the defendant/appellant. On issue 3 formulated by him arising as he said from grounds 1, 4, 6 and 7 of the grounds of appeal counsel pointed out, covered issues 3 and 4 formulated by the appellant. He submitted that the trial court appreciated the issues raised by the parties during trial from the available evidence.
The real issues in contention he said, was whether the 3rd defendant/appellant was a bona fide purchaser for value and if so what is the effect of the plaintiff/respondent’s claim on him. If the revocation was done contrary to the Land Use Act, then there would be nothing for the 3rd defendant/appellant to purchase. The trial court he said, appreciated those points. The trial court therefore came to a right conclusion, when it held that the evidence in support of the alleged error was not satisfactory. There was no law he argued, restricting a person to only one landed property in the country and the right to own property he said was guaranteed by the 1979 constitution.
Whoever, asserts must prove counsel emphasized and cited sections 135 and 137 of the Evidence Act in support. He also relied on the decision in Elias v. Omo-Bare (1982) 5 SC 25; Imana v. Robinson (1979) 3 – 4 SC 1; Osawaru v. Ezeiruka (1978) 6 – 7 SC 135. The appellant, counsel said, did not assert error in the grant of the land and did not prove any. Not even the 1st defendant/respondent who raised the point proved same to the satisfaction of the court.
On the other hand, the evidence of the plaintiff/respondent on how he got the allocation was not discredited, maintained counsel. A piece of evidence not challenged or discredited said counsel, ought to be accepted. Counsel cited Nwogo v. Njoku (1990) 3 NWLR (Pt.140) 570; Incar (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt.8) 453;Omoregie v. Omigie (1990) 2 NWLR (Pt.130) 29. Counsel was of the view that the issue of atonement brought in by the Judge did not affect his mind and was not the rationale for the judgment given by him. The court he added was fully aware of issues raised and resolved them in favour of the plaintiff.
The court he said, was also right in holding that the Land Use Act was not observed to the latter before revocation of the certificate of occupancy granted to the plaintiff/respondent. To gloss over such issues will amount to condoning illegality by the court and that aspect overrode issues of pleading. He relied for this on the decision in Belvoir Finance Co. Ltd. v. Harold G. Cole (1969) 2 AER 904 at 908. It is the duty of the court to take on such issues even when not asked by the party, said counsel. He relied for this on Phillips v. Copping (1935) 1 KB 15 at 21. The trial court was not wrong in declaring the revocation void.
Counsel insisted that the plaintiff/respondent never surrendered his right of occupancy over the disputed property. He vehemently protested against the revocation of his right of occupancy, counsel pointed out. Even then a mere surrender (not conceded) would not excuse the Governor from complying with the statute as regards notice. The trial court’s judgment, counsel maintained, was therefore right and proper. He urged this court to dismiss this appeal.
Before considering the issues canvassed in the appeal by counsel on both sides, I will first consider the objection raised by respondent’s counsel to the grounds of appeal filed by the counsel to the appellant. According to counsel to the respondent, ground one of the grounds of appeal is vague and contains no particulars of error. That ground as amended reads:
“The decision of the court below cannot be supported having regard to the facts and circumstances of the case.”
In my view, that ground is more or less as to weight of evidence, which is in no way vague and does not require the furnishing of particulars of errors.
The second point taken by counsel is in relation to the grounds 3, 4, 5 and 7 of appeal. I have had a close look at the grounds as filed and have found that ground 3 as framed appear to be sequel to the facts of the case. All the same, in as much as the decision of the court below was final, the appellant required no leave to appeal against same. That is, in the light of section 241 of the 1999 Constitution, but section 220(1)(a) of the 1979 Constitution.
Ground 4 of the appeal is purely a matter of law requiring no leave, while ground 5 is as in ground 1 more or less a matter of weight of evidence. In my view, ground 6 is an issue of law, while ground 7 is one emanating from the final decision of the trial court, thereby covered by section 220(1)(a) of 1979 Constitution. In short, all the objections raised lack merit. They are consequently overruled.
Having considered the submissions of counsel in this appeal, I believe that the issues calling for determination are clear and simple. The first is the issue of jurisdiction raised by the counsel to the 3rd defendant. The defendant/ appellant’s counsel however, felt it was irregularly raised same not having been canvassed at the trial court.
That point is well taken but it is trite that the matter of jurisdiction can be taken at any stage of the proceedings. That fact was conceded by the plaintiff/respondent’s counsel in his argument. The other point relevant to that issue is the propriety or otherwise of raising such a point via section 13 of the Federal Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984. The act of the Governor complained of is revocation of the rights of the plaintiff’s occupancy and was done under the Land Use Act Cap. 202, Laws of the Federation, 1990.
The Land Use Act is a statute by itself not dependent on Decree 13 of 1984 and was in fact promulgated by a Military Regime. In the Act, a Governor of a State was empowered to grant or revoke a certificate of occupancy and the High Court is vested with jurisdiction to hear and determine complaints arising from the Act. Section 39(1) of the Act reads:
“39(1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings:
(a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act; and for the purpose of this paragraph, proceedings includes proceedings for declaration of title to a statutory right of occupancy;
(b) Proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this act.
(2) All laws, including rules of court, regulating the practice and procedure of the High Court shall apply in respect of proceedings to which this section relates and the laws shall have effect with such modifications as would enable effect to be given to the provisions of this section.”
Section 40 of the Act adds:
“40 Where on the commencement of this Act proceedings had been commenced or were pending in any court or tribunal (whether at first instance or on appeal) in respect of any question concerning or pertaining to title to any land or interest therein, such proceedings may be continued and be finally disposed of by the court concerned, but any order or decision of the court shall only be as respects the entitlement of either of the parties to the proceedings to a right of occupancy, whether statutory or customary, in respect of such land as provided in this Act.”
The High Court in this regard has been interpreted to mean the State High Court per section 51 of the Act.
These are provisions in the Act carefully inserted in the law to facilitate its operations, without jeopardizing the interest of the citizens and they are clear and unambiguous. It therefore admits no further or other construction, in so far as, the duly expressed excludes the unexpressed. I cannot therefore see the need to drag section 12 of the Decree 13 of 1984, into the clear intention of the lawmakers. I have gone through the decided cases cited by appellant’s counsel in support of his contention and none of them pertained to the acts done under the Land Use Act. In short, I hold that, the trial court clearly had jurisdiction to try the case and the judge rightly assumed jurisdiction.
Issue No.1 as formulated by the 3rd defendant/appellant’s counsel therefore fails.
On question of approach in the writing of the court judgment, suffice it to say that there are no hard and fast rules on the writing of judgments. Each tribunal or Judge must have his/her own peculiar way of writing such judgments, the important factor being the highlighting by the Judge of the important features of the evidence given, proper evaluation of such evidence and supportable findings based on facts before the court and the law as at the time of writing such judgments. This much the appellant’s counsel conceded. His grouse is with the way the court decided to demolish certain aspects of the defence case before coming to his findings proper. That line of approach is unorthodox and inappropriate.
I have gone through the judgment, delivered by the court and I have carefully studied the words used. I agree that the presiding Judge appeared piqued by certain facts in the case particularly, the issue of mistake in allocating two plots of land to the plaintiff/respondent in spite of the one man one plot of State land policy of the Rivers State Government, more so, when no compensation was paid to the plaintiff/respondent for his contribution to the development of the plot. That by itself is however, not enough to set aside the entire judgment. The court made full evaluation of the evidence before it, which evidence spanned through pages 119 – 131 of the record of proceedings.
According to appellant’s counsel, the court failed to consider the 3rd defendant/appellant’s defence through the method it adopted and thereby, denied the defendant/appellant his right of fair hearing under section 33 of the 1979 Constitution.
The plaintiff/respondents’ counsel thought otherwise and stood firmly by the approach adopted by the court in arriving at its decision. I tend to agree with him on that score. The style adopted by a judge is always peculiar to the Judge the important thing being the dispensation of justice of the parties. In this particular instance, I cannot see how the 3rd defendant/appellant was denied fair hearing in the circumstance. The issue No.3 also fails.
Issue No.3 is the most intriguing part of the case, that is, whether the trial court appreciated the issues raised in the case. Put in the other more acceptable way, that is, whether the issues raised made correct impact on the mind of the court. This is a situation where the plaintiff/respondent applied for and was given two plots of government land one at 39 Birabi Street and another Plot A 27, against the Government’s policy of one man one plot of government land. On discovering the anomaly, the plaintiff/respondent was apprised of the situation and he was said to have surrendered plot A 27 and retained No. 39 Birabi street, otherwise known as No. 39 GRA Phase 1.
The State Government then went on to revoke the plaintiff/respondent’s right of occupancy on the plot surrendered though he protested against the move and tried to assign the disputed plot to his wife (The common law wife). The plaintiff/ respondent did not succeed in doing so.
The plaintiff/respondent gave evidence on oath as PW1 testified thus on page 53 line 4 – 16:
“In 1984, I was summoned before the Sanomi Committee set up by the Military Government to enquire into sale of properties by the former civilian government. I appeared before them. They informed me that from the records before them that I had two properties in the GRA Phase 1. That I should choose which of the two properties that I would like to take. I decided to retain No. 39 Birabi Street, where I now reside. The committee said the government would take over the other property. That was the property in dispute, Plot A 27.”
The plaintiff/respondent testified further that he applied to assign the other property that is, Plot A 27 to the 2nd plaintiff (his wife) and the government agreed. See page 53 lines 30 – 34. He paid the fee of N839.10 on it. The chief lands officer however refused the move by him to assign the property.
Under cross-examination the plaintiff/respondent agreed that he got Plot 39 at the same time he got Plot A 27, but said he made two applications for the two plots. In his further evidence, he testified on page 57 lines 19 – 22 thus:
“The reason the Sanomi panel gave me for asking me to choose one of the two plots allocated to me was that, it was government policy that one man should have one plot.”
Plaintiff/respondent continued still on page 58 lines 29 – 36 thus:
“I made it known to the Sanomi panel that I would like to keep plot 39 out of the two plots. I am aware that the 2nd defendant have (sic) sold the property in dispute to the 3rd defendant.”
The above are the words of the plaintiff/respondent himself. Though he protested, the surrender had been accepted and acted upon. The 3rd defendant/appellant is thus, a bona fide purchaser without notice. Strangely however, the court did not make any pronouncement on the issue of surrender whether or not proper and effective. It merely busied itself with lack of atonement, which was never made an issue, and which the counsel for the plaintiff/ respondent conceded as uncalled for. It is also held that, no notice was served on the plaintiff/respondent before the certificate of occupancy was revoked. That point was never made an issue at the trial and did not in fact arise going by the circumstances of the case. This is a situation in which the plaintiff/respondent surrendered the plot. The government accepted the surrender and went on to reallocate the property.
Going by all the above, one would see that the issue were patent and cogent enough to warrant pronouncement on that aspect of the case, but strangely enough, the lower court simply glossed over them.
Once there is a surrender of a right, the giving of notice by the authority accepting the surrender will be unnecessary; hence, the issue of notice was very far fetched. It did not relate to the salient point which was in fact the crux of the whole matter, that is, that the plaintiff/respondent had surrendered his right of occupancy over the property in dispute, albeit reluctantly. What then is the effect of such surrender? Could it enable the Rivers State Government to revoke the certificate of occupancy already granted to the plaintiff/respondent and if not what will be the fate of 3rd defendant/appellant, a bona fide purchaser for value without notice? On the other hand, if it did affect the right of occupancy of the plaintiff/respondent, what is there in protection of his interest?
All these issues were not considered by the court thereby creating a lacuna, a solution to which this court has to find. In short, the plaintiff/respondent having already surrendered the plot in dispute, he no longer has any right in the said plot of land, though he would be in order to claim for improvements made on the land by him.
The Rivers State Government therefore, had the right to accept the surrendered plot and deal in same as deemed appropriate under the provisions of the Land use Act Cap. 202, Laws of the Federation of Nigeria, 1990. Issue No.3 is therefore, answered in the negative since the trial court failed to ascribe proper probative value to the evidence in that regard.
As regards issues No.4, that is whether the trial court was right in awarding judgment to the plaintiff/respondent having regard to the pleadings and evidence led in the suit. The answer is simple, going by my findings above and it is that the plaintiff/respondent could not in any way have been given judgment on his claim even on his own showing.
Going through the issues formulated by the respondent as reproduced supra, I can say that my views above have already dealt with them with the addition that the judgment given in the suit was altogether inappropriate, the Judge having failed to hit the nail on the head, thereby making him miss the crucial point at stake.
In the result, I am of the view that this appeal succeeds and it is allowed. The judgment of H. George J., given on 7th January, 1994, is hereby set aside. The claim of the plaintiff/respondent in suit No. PHC/557/86 in the lower court fails. It is accordingly, dismissed with costs assessed at N3,000.00 in favour of the appellants and N5,000.00 costs in this appeal also, in favour of the appellants.
Other Citations: (2003)LCN/1401(CA)