Calabar Central Co-operative Thrift & Credit Society Ltd & Ors. V. Bassey Ebong Ekpo (2008)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN, J.S.C

This is an appeal against the judgment of the Court of Appeal holden at Calabar in appeal No. CA/C/5/99 delivered on the 24th day of April, 2007 in which the court dismissed the appeal of the appellants against the judgment of the High Court of Cross River State holden at Calabar in suit No. C/11195 delivered on the 20th day of November, 1995 in which it entered judgment for the present respondent who was the plaintiff in the suit.

The action was instituted by respondent by way of originating summons for the determination of the question;

whether, in accordance with the Land Use Decree 1978, valid title has been passed from the plaintiff to the 1st defendant arising from the agreement of 25th January, 1987, over the plaintiff’s property situate at No. 3C Enebong Avenue, Calabar”

In addition to the above question, the plaintiff/respondent sought the following reliefs:-

“(A) A declaration that the purported conveyance is null, void and of no effect whatsoever and is against the provisions of the Land Use Decree of 1978.

(B) An order directing the 1st defendant, its agents, servants, privies, assigns to vacate the property situate at No. 3C Enebong Avenue, Calabar.

(C) An order directing that the original documents of the survey and building plans and the agreement originally conveying the plot/parcel of land known as 3C Enebong Avenue, Calabar to the plaintiff be returned to the plaintiff.

(D) The sum of N400,000.00 (Four hundred thousand Naira) as general damages.”

The facts leading to the action include the following: The plaintiff/respondent was employed as a clerk by the 1st defendant/appellant sometime in July, 1964 and rose to the position of Senior Travelling Secretary by May, 1974. In June, 1987 the respondent was, by a letter, exhibit B suspended from his employment by the 1st appellant on the ground that the respondent perpetrated some fraudulent acts which tarnished the image of the 1st appellant, pending the result of an investigation into the matter. The suspension was with immediate effect. The respondent was subsequently arrested by the police at the instance of the appellants and detained for investigation and/or interrogation. In all, the respondent was arrested three times in the course of the investigation, the third of which saw the respondent being taken by the police to the Police Headquarters at Diamond Hill, Calabar where he was shown round the police cells occupied by hardened criminals (murderers and rapists) and was told by the police to sign a deed of “Mortgage” over his property situate at No. 3C Enebong Avenue, Calabar, to surrender his ownership of the said property to the 1st appellant in exchange for or discharge of an alleged debt of N80,000.00 to the 1st appellant by the respondent with a threat of being thrown into the cells with the criminals, if he refused to comply. The respondent stated that he had no option than to sign Exhibit A which turns out to be a conveyance and handed over all the original documents relating to the said property to the 1st appellant, after which he was released by the police; that up to the time of instituting the action, the appellants had not released the result of the investigation or informed him of the outcome of any wrong doing or fraud he allegedly committed. Respondent maintained that the appellants exercised undue influence or duress over him resulting in his signing of exhibit A and that the appellants had thereby defrauded him of his property.

On the other hand, it is the case of the appellants that the respondent was suspended from duty on the ground that the respondent, in the course of his employment with the 1st appellant, defrauded the 1st appellant to the tune of N80,000.00 which later increased to N100,000.00 following the audit of the 1st appellant’s accounts by auditors; that the .respondent admitted his role in the fraud at a management committee meeting of the 1st appellant as evident in exhibit A attached to the counter affidavit the minutes of that meeting. The appellants denied ever intimidating the respondent in executing exhibit A attached to the affidavit in support of the originating summons; that the conveyance, exhibit A – was a voluntary act of the respondent to avoid criminal prosecution for the fraud committed on the 1st appellant.

The learned trial judge, at pages 41 to 42 of the record held thus:

“On the whole, I hold the view that fraud against the plaintiff has not been proved. If so, the plaintiff should have been charged to court. The idea of converting what should have been a criminal case into a civil one is wrong. The purported exchange of a house for the sum of N80,000.00 as contained in Exhibit A is completely wrong in law. Exhibit “A” itself form (sic) the foregoing is not valid in law, the transaction being a nullity.

Having regard to all the foregoing, I think I should accede to the reliefs sought and do so accordingly by making the following orders of this court….. ”

The court proceeded to grant reliefs A-C as claimed and the sum of N 100,000.00 in respect of relief (D). The defendants were not satisfied with that judgment and consequently appealed to the Court of Appeal which appeal, as stated earlier in this judgment, was dismissed resulting in the instant further appeal to this Court.

It is very important to note that though the learned counsel for the appellants identified seven issues for determination in the lower court, to wit;

“(a) Whether or not the question of nullity/voidity of a document/instrument particularly on ground of coercion/fraud (see basis of claims) at p. 1 and judgment at p.38 lines 10-11 of proceedings is a question of interpretation of the document and therefore fit to be taken vide the originating summons procedure or an issue to be proved on hard facts by viva vocae (sic) evidence allowing cross examination of witnesses. Did this non-receipt of viva (vocae) evidence by the learned trial judge occasion a miscarriage of justice to the defendants/appellants

(b) Whether the totality of the evidence supports the judgment.

(c) Whether the learned trial Chief Judge was right by law when he held that the transaction between the plaintiff/respondent was void because the consent of the Governor was not first sought and had.

(d) Whether or not it is competent for a party to benefit from his own omission to the detriment of another party to the same transaction.

(e) In the unlikely turn that the learned trial Chief Judge was right in his judgment, should be not have ensured restitution intergrum by ordering the refund of the purchase money. Should the plaintiff/respondent keep both the house and the money, particularly the sums paid by the 1st defendant/appellant to the plaintiff/respondent’s creditors.

(f) Whether or not the 2nd and 3rd defendants/appellants are personally liable jointly, the two of them along with the 1st defendant/appellant or severally each of them, for any of the reliefs sought in the lower court.

(g) Whether or not in the circumstances of this case the Court of Appeal is competent to enter a proper judgment herein.”

The lower court, following the success of preliminary objections to some of the grounds from which some of the issues were formulated struck out grounds 1, 5 and 6 of the Amended grounds of appeal and issues (a), (e), (f) and (g) formulated therefrom thereby leaving issues(b) (c) and (d) for determination. It is also important to note that in determining the appeal, the lower court preferred the two issues formulated by learned counsel for the respondent, to wit:-

“1. Whether on the evidence before the learned trial judge, the respondent proved his case and was entitled to judgment in his favour.

2. Whether there is a binding and enforceable contract between the appellants and the respondents”

And used same to determine the appeal.

With regard to issue 1, the lower court held, at pages 166 to 167 inter alia:

“Paragraphs 9, 10, 11, 12 and 13 of the respondent’s main affidavit considered by the learned trial judge are mere ispi dixit of the respondent and are admissible pieces of evidence resting on the assertion of the respondent who made them. But having been seriously challenged by the appellants in their counter affidavit, they are not enough for deciding the issue of duress without calling for oral evidence from witnesses. It was not the business of the judge to speculate on the issue of duress. Therefore, (I disagree with the learned trial judge, and I hold the view that there is no evidence to show that exhibit A was procured by duress. Even though the circumstances of this case leading to the signing of exhibit A, the Deed of Conveyance, by the respondent are not salutary I am however, not prepared to accept the view that there was duress on the respondent to sign exhibit A. Indeed, I frown at the conduct of the appellants in compromising with the respondent and the police the case of fraud and embezzlement reported against the respondent and their colluding with the respondent to give away his property by signing exhibit A, without prosecuting the respondent for the criminal allegations in a court of law. Then after about eight years of signing exhibit A the respondent was aroused from his complacency to challenge in the court his signature on exhibit A claiming that it was procured by duress or coercion on him. It is apparent to me from the surrounding facts of this case, that the parties were interested in settling the criminal allegations against the respondent out of court by agreeing with the respondent to sign exhibit A and also make exhibit B (the statutory Declaration of House Ownership) in discharge of the purported debt of N80,000.00 owed by the respondent to the 1st appellant, which sum of money was equivalent to the said sum of N80,000.00 allegedly defrauded and embezzled by the respondent, rather than prosecute the respondent in court. The whole idea behind the execution of exhibit A was to conceal the true facts and show the existence of an imaginary debt of N80,000.00 by the respondent to the 1st appellant, when in actual fact there was none. In my view, therefore, the respondent did not on the evidence before the court below prove that there was duress on him to entitle him to judgment on that score.”

From the above passage, it is very clear that the lower court resolved the first issue against the respondent and there is no appeal by the respondent on that score before this Court.

On the second issue, the lower court held at pages 169 -170 inter alia as follows:

In the instant case, there is the deed of conveyance (exhibit A) which does not bear the consent of the Military Governor as provided by section 22 of the Land Use Act, 1978. It is therefore my firm view in the instant case that the deed of conveyance Exhibit A is null and void and of no effect whatsoever.

Finally the question of the respondent being allowed to benefit from his own fraud to take advantage of his own default is non siquitur. The respondent cannot be said to have benefited from the fraud and embezzlement alleged against him which were not established in a court of law. The learned trial judge was right in my view to hold in his Ruling that he was not satisfied that the allegation of fraud had been established against the respondent and the question of his being allowed to benefit from his fraud did not arise In the final result therefore, I hold that this Appeal lacks merit and it is hereby DISMISSED.

From the resolution of the two issues it is very clear that the appeal was dismissed based on the nullity of exhibit A the Deed of Conveyance on the ground that the consent of the Military Governor of Cross River state was not first had and obtained contrary to section 22 of the Land Use Act. 1978. The importance of the excursion into the issues before the lower court and their resolution will become apparent when one looks at the issues now formulated for the determination of the instant appeal which appeal is or ought to be primarily on the single issue resolved by the lower court against the appellants. With the above backgrounds in mind, one then wonders how learned counsel for the appellants could come by three issues for the determination of the instant appeal.

The issues as formulated in the appellant’s brief filed on 25/10/02 and adopted in argument of the appeal on 19/11/07 by Nta A. Nta Esq, are as follows:-

“(a) Whether or not the finding complained against in ground of appeal No.1 herein was erroneous having regard to the evidence,and incongruous with an earlier holding in the same judgment that the Respondent was not coerced into signing away his property to the appellants.

(b) Whether or not the deed of conveyance Exhibit “A” to the originating summons was null and void and of no effect whatsoever under the Land Use Act for the reason only that the consent of the Governor was not first sought and obtain before it was signed/executed.

(c) Whether or not ground of appeal No.5 before the Court of Appeal arose from the decision of the High Court that Exhibit A the deed of conveyance, was a nullity, and therefore a fit and proper ground of appeal. ”

On the other hand, learned counsel for the respondent, Charles E. Duke Esq, in the respondent’s brief of argument submitted two issues for determination, namely:

“1. Whether on the evidence before the learned justices of the Court of Appeal, the Appellants had proved their case that there was a genuine case of indebtedness against the Respondent.

2. Whether Exhibit A confers a binding enforceable contract between Appellants and the Respondent.”

Before proceeding any further, it is pertinent to note that learned Counsel for the respondent has raised preliminary objection with regard to the competence of grounds 1 and 3 of the grounds of appeal.

It is the submission of learned Counsel for the respondent that ground 1 of the grounds of appeal is based on the concurrent findings of facts by the lower courts to the effect that fraud against the respondent has not been established but that the appellants have not obtained the leave of the Court of Appeal to appeal against such findings contrary to order 2 Rule 32 of the Supreme Court Rules and section 233(3) of the Constitution of the Federal Republic of Nigeria, 1999 (herein after referred to as the 1999 Constitution); that it does not matter that counsel for the appellants christened the ground an error in law whereas in actual fact it is a complaint on facts; learned Counsel cited and relied on the case of Tibury v. Oguniyi (1988) 1 NSCC 531; Akwiwu v. Songonuga (1984)5 S.C 1 184 at 186; Ojeme v. Momodu III (1983) S.C 173; Erisi v. Idika (1981) 4 NWLR 503 at 511.

Secondly, learned Counsel for the respondent submitted that ground 1 of the grounds of appeal contains complaints against facts that are being challenged far the first time in this Court and therefore need the leave of the court; that since no leave was obtained, the ground of appeal is incompetent and should be struck out.

Turning to ground 3 of the grounds of appeal, learned Counsel submitted that it does not relate to the judgment on appeal and consequently incompetent; that a similar objection on a similar ground was raised in the court below and sustained, referring to pages 125,160 and 161 of the record.

Secondly learned Counsel submitted that the said ground 3 seeks to raise issues that were not canvassed at the lower court, relying on Federal Mortgage Bank of Nigeria v. Nigeria Deposit Insurance Corp. (1999) 2 NWLR (pt.591) 333 at 359 – 360.

On his part, learned Counsel for the appellants, Nta A. Nta Esq, in the reply brief filed on 31/3/03 submitted that ground 1 is a ground of law, not facts; that ground 1 was not being raised for the first time in this Court as it was dealt with under issue 1 before the Court of Appeal, which related to ground 2 of the grounds before the said court.

In respect of ground 3 of the grounds of appeal, learned Counsel submitted that the ground arose from the judgment of the trial court as well as the lower court in that they failed to make the appropriate consequential orders after holding that the conveyance between the parties was null and void and thereby allowed the respondent to benefit from the transaction to the detriment of the appellants and urged the court to dismiss the preliminary objection.

However, grounds 1 and 3 of the grounds of appeal complain as follows:- .

“1. The learned Justice of the Court of Appeal erred in low when they found and held thus:-

“In the absence of the appellants establishing that there is in reality a genuine debt of N80,000.00 owed to the 1st appellant by the Respondent for which the Respondent’s property at No. 3C Eneobong Avenue, Calabar was conveyed to the 1st Appellant by Exhibit A in discharge of the said debt, there is nothing that the Respondent can be said to be taking advantage of the Appellants in the court below were unable to establish a genuine indebtedness and so cannot complain”

Partculars of error

(a) Exhibits C – C4 attached to the Respondent’s counter affidavit mentioned at pages 7 (paragraph 15 of counter affidavit at lines 8 – 22) and 15 (paragraphs 9 & 10 of the further and better counter affidavit at lines 12 – 29) of the record before the Court of Appeal are receipts/vouchers issued by the Respondent to the 1st appellant to the Respondent on account of

the property the subject of this appeal.

(b) This finding is incongruous with the earlier holding that the Respondent was not coerced into signing away his property to the appellants.

3. The Court of Appeal erred in low when it held that:

“It is my firm view that grounds ” 5 and 6 thereof do not relate to or arise from the decision of the judgment being challenged by the appellants They are hereby struck out.”

Particulars of error

(a) The issue raised in ground 5 in the Court of Appeal was a consequential order which should ordinarily, without more, follow a finding of nullity of on agreement for which consideration had passed. Failure to make the order was therefore a proper ground of appeal. ”

It is very clear that ground 1 together with the particulars thereof is simply a ground attacking finding of facts by the court below; it is not a ground of error of law at all. To establish the existence of the debt of N80,000.00 one needs facts to prove same, not law so a finding that the existence of such a debt has not been established is a finding based on the facts presented in proof of the assertion, not otherwise. The above finding complained of being a finding of fact, it is settled law that for the appellants to successfully appeal against the finding, they must first of all obtain the leave of either the lower court or of this Court. It would have been otherwise if the complaint was purely a complaint of error in law. It is clear from the record that appellants never obtained the leave of either the lower court or of this Court to appeal on the facts so ground 1 of the grounds of appeal in so far as it is a complaint against the findings of facts is incompetent and is consequently liable to be struck out.

That apart, there is the second problem involving the said ground 1, which is that it is a complaint against the concurrent findings of facts by the lower courts. In addition to the above observation, the lower court specifically found as a fact that; appellants did not appeal against the finding of the High Court to the effect that:

“On the whole, I hold the view that fraud against the plaintiff has not been proved. If so the plaintiff should have been charged to court. The idea of converting what should have been a criminal case into a civil one is wrong. The purported exchange of a house for the sum of 580,000.00 as contained in Exhibit A is completely wrong in law. Exhibit A itself from the foregoing is not valid in law, the transaction being a nullity” See page 170 of record.

By stating at page 170 of the record as follows:-

“I agree with him. There is no appeal against the above finding of the learned trial Chief Jude and therefore there is no basis for this court to disturb it.” (Emphasis supplied by me)

I have to observe that the appellants in this Court have not challenged the above finding by the lower court. They have not stated that the lower court was in error in finding/holding that there was no appeal against the above finding by the trial court. That being the case, it means simply that the lower court was right in so holding with the effect that it is rather too late in the day for the appellants to now turn round to appeal against that finding in this Court whereas their appeal before this Court is supposed to be based on the judgment of the lower court, not that of the trial court; it is settled law, however, that a finding of a court or tribunal not appealed against is deemed accepted by the party against whom the finding was made – in the instant case, the appellants. However, if the appellants had sought and obtained the leave of the courts to appeal against the findings of facts or mixed law and facts or to raise fresh issues not raised in the court below, it would have been sufficient to sustain ground 1 of the grounds of appeal. Since no such leave was sought and obtained the affected ground is doomed to be struck out for being incompetent. I therefore order accordingly.

On the competence of ground 3 of the grounds of appeal, I hold the view that the complaint therein is against the judgment of the lower court and therefore valid. What is being determined here is the competence of the ground not its merit, if any. In fact, the ground quoted a portion of the judgment of the lower court complained of. To that extent I hold that ground 3 is valid before this Court and that the preliminary objection of the respondent partially succeeds.

As I had earlier stated in this judgment, the main decision of the lower court which was against the appellants is the confirmation of the declaration of nullity of the Deed of Conveyance, exhibit A, for non compliance with the provisions of section 22 of the Land Use Act, 1978. That should, therefore, be the main focus of the appeal as the first issue in the lower court was resolved in favour of the appellants, as earlier demonstrated in this judgment.

That apart, having found that ground 1 of the grounds of appeal before this Court is incompetent, it follows that appellants’ issue (a) formulated therefrom is incompetent and is hereby struck out, thereby leaving us with issues(b) and (c) as formulated by the learned Counsel for the appellants.

In respect of issue (b), learned Counsel for the appellant’s submitted that the Land Use Act has no intention of forbidding and rendering null and void any alienation of rights of occupancy howsoever without requisite consent, hence the provisions in sections 28(2) and (3) (d) making such an .alienation without consent a ground for revocation of the right of occupancy; that the word “void” should not be interpreted to mean void for all purposes unless the statute so states, relying on the case of Bucknor- Maclean vs Inlaks Ltd (1980) 8 – 11 S.C 1; that it is not 1he intention of section 22 of the Land Use Act, 1978 to render every transaction by way of alienation without consent null and void for all purposes as parties clearly enter into transactions of alienation of rights of occupancy before seeking the Governor’s consent, which in any event can be obtained even after the execution of the agreement or transaction such as exhibit A in the instant case; that the court should do substantial justice between the parties in this case by not declaring the document, exhibit A null and void as the effect of non obtaining of the Governor’s consent renders the document, exhibit A inchoate not null and void, relying on the case of Solanke v. Abed (1962) 1 ANLR 130; Ogbo v Adoga (1994) 3 NWLR (pt 333) 369 at 476; that the case of Savannah Bank Ltd v Ajilo (1989) 1 SCNJ 169 which held that there can be no alienation without Governor’s consent does not apply to the facts of this case since the transaction had not been duly ,registered but was at the agreement – exhibit A – stage and therefore inchoate as against Ajilo’s case which was duly completed and registered; that a party cannot rely on his wrong to avoid his obligation, relying on Adedeji v. NBN Ltd (1989) 1 NWLR (pt. 96) 212; Awojugbagbe v. Chinukwe (1993) 1 NWLR (pt. 270) 485; that it is wrong for a party whose duty it is to seek for and obtain the Governor’s consent, but failed to do so to turn round and benefit from the default by contesting that the agreement without the consent is null and void, relying on Buswell v. Goodwin (1971) 1 All E.R 418 at 421; that the court should not adopt the literally interpretation principle since to do so would result in the respondent benefiting from his wrong and urged the court to resolve the issue against the respondent and allow the appeal.

I have to observe that learned Counsel for the appellants did not make any submission in relation to issue No. C as formulated by him in the brief of argument and is consequently deemed to have been abandoned. The non presentation of arguments in relation to issue No. C supra confirms my earlier view that only one issue actually calls for determination in this appeal arising from the judgment of the lower court, that is, whether the failure to seek and obtain the consent of the Governor of Cross River State to the alienation evidenced in exhibit A renders the transaction null and void and of no effect whatsoever.

On his part, learned Counsel for the respondent treated the matter under his issue No.2. Having regard to the fact that appellant’s issue (a) was struck out for being formulated from an incompetent ground of appeal, the respondent’s issue No.1 thereby becomes irrelevant and is therefore discountenanced by me.

In respect of issue 2, learned Counsel for the respondent submitted that the lower court was right in holding that there was non-compliance with the provisions of the Land Use Act, 1978 in the alienation of the respondent’s right of occupancy in respect of the property in issue and thereby declared the transaction null and void. Learned Counsel referred the court to sections 22 and 26 of the Land Use Act, 1978, the case of Savannah Bank of Nig. Ltd v. Ajilo (1989) 1 NSCC 135; that no consent of the Governor of Cross River state was sought or obtained in respect of the transaction in issue thereby rendering the same null and void; that the court is being called upon in the instant case, to interprete the provisions of the Land Use Act, 1978 not to consider equitable principles and as such the cases cited by learned Counsel for the appellants on consideration of equitable principles do not apply to the facts of this case; that exhibit A was completed, not inchoate as contended by learned Counsel for the appellants; that the transaction was never in stages; that it is the appellants who are contending that exhibit A is valid that have the duty or burden to seek the consent as decided in Rockonoh Property Co. Ltd vs NITEL PLC (2001) 14 NWLR (pt. 733) 468. Learned Counsel urged the court to resolve the issue in favour of the respondent and dismiss the appeal.

Two provisions of the Land Use Act, 1978 are relevant for the determination of the issue under consideration. These are sections 22 and 26 of the Act.

Section 22 provides as follows:-

“22. 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:

Provided that the consent of the Governor –

(a) …

(b) …

(c) …

(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.”

On the other hand, section 26 of the Act provides that:

“26. Any transaction or any instrument which purports to confer on or rest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.”

It is not disputed that exhibit A is a conveyance between the 15t appellant and the respondent in respect of the respondent’s property situate and lying at No. 3C Enebong Avenue, Calabar for an alleged consideration of the sum of N180,000.00. Exhibit A therefore qualifies as an instrument crafted to alienate the right of occupancy of the respondent in the property in question by conveying same to the 1st appellant. Also not disputed is the fact that no consent of the Governor of Cross River State was first sought and obtained prior to the making of exhibit A or anytime thereafter. It is therefore clear that at the time of institution of the action, which was about eight years after the execution of exhibit A, the purported alienation had been completed by the execution of exhibit A. It is not pleaded, neither is there any evidence on record to support or suggest that exhibit A was to be executed or made in stages so as to render same inchoate until the final stage is completed. It is settled law that parties and the court are bound by the pleadings of the parties in any matter and that facts not pleaded ground to no issue. In the instant case, it is not the case of the appellants, as evidenced in their pleading, that the document of alienation, exhibit A, is inchoate neither is there evidence on record in support of same. That being the case, I hold the considered view that ‘arguments of counsel, however brilliant is no substitute for the pleadings and evidence in proof of same and therefore ground to no issue. The argument of learned Counsel for the appellants as to the inchoate nature of exhibit A is therefore discountenanced by me.

The question that calls for determination is what is the meaning of the provisions of sections 22 and 26 of the Land Use Act, 1978 supra To me, the provisions are very clear and unambiguous and therefore ought to be given their literal interpretation or meaning. It is settled law that where the words of a statute or Constitution are clear and unambiguous, they call for no interpretation, the duty of the court in such a circumstance being to apply the words as used by the legislature. Section 22 (1) of the Act clearly provides that it shall be unlawful for a holder of a right of occupancy to alienate same or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise without the consent of the Governor first had and obtained. It is very clear that the said provision is by the tone and tenor, mandatory; it makes the obtaining of the Governor’s consent a precondition for the validity of any alienation of a right of occupancy, under the Land Use Act, 1978. Though there is no time limit to the obtaining of the said consent by the provision it is very clear that before the alienation can be valid or be said to confer the desired right on the party intended to benefit therefrom, the consent of the Governor of the state concerned must be “first had and obtained.” That does not, by any means, make the transaction without the requisite consent inchoate. It makes it invalid until consent is obtained. It should be noted that it is not the case of the parties or any of them that exhibit A is an agreement for sale of land but a conveyance of the land in question – a completed act of the parties.

The consequence of the unlawful act of alienating a right of occupancy without the requisite consent of the Governor is what is stated under section 26, also supra. It makes the transaction, such as exhibit A expressly null and void. Section 26, in declaring such as act null and void used the word “shall” which, in the instant case makes the provision mandatory, not directory or discretionary. Learned Counsel for the appellants wants the court to hold that section 26 of the Act does not say that the alienation is void for all purposes but I do not see how that interpretation can be achieved. The provision, as earlier stated is clear and unambiguous and therefore calls for no interpretation – it says that an alienation made contrary to the provisions of the Act “shall be null and void” which to my mind, means “null and void” for all purposes under the sun; if it were not so the law would expressly or by necessary implication have stated so.

I therefore have no option than to come to the conclusion that the lower courts were right in coming to the conclusion that exhibit A is void for non compliance with the provisions of section 22 of the Land Use Act, 1978 – see the case of Savannah Bank of Nig. Ltd vs Ajilo supra.

There is the argument that appeals to the conscience of the court as to whether the respondent should be allowed to benefit from his wrong etc particularly in view of the fact that appellants did expend money to settle the indebtedness of the respondent in respect of the property which the court failed to order to be refunded by way of consequential order. It should be noted that I am not commenting on that submission because it is validly raised before this Court, as it is the law that the court does not grant to a party what he does not request or ask. In the instant case the appellants never made an alternative prayer to the lower courts to that effect, hence it was never considered. However, the purpose for my commenting on the point is to advise the appellants to take up an action before the appropriate court to recover whatever money(s) they consider legitimately due to them in respect of the property. This court is not a father Christmas. The original respondent is now late, as disclosed in the brief of argument of the appellants an action to recover whatever sum deemed recoverable can be maintained against his estate. All is therefore not lost, as the appellants would want us to believe.

In conclusion I resolve the only issue for consideration in this appeal against the appellants and consequently find no merit whatsoever in the appeal which is hereby dismissed with costs, which I assess and fix at N10,000.00 against the appellants and in favour of the respondent.

Appeal dismissed.

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SC.262/2002