Golden Victor Nangibo Vs Uche Okafor & Ors (2003)
LAWGLOBAL HUB Lead Judgment Report
U. ONU, J.S.C.
This appeal, brought at the instance of the defendant/appellant herein, is sequel to the decision of the Court of Appeal sitting in Port Harcourt coram: A. I. Katsina-Alu and S. O. Uwaifo, JJ.C.A. (as they then were) and S. A. Nsofor J.C.A., dated the 9th day of April, 1998 wherein they allowed the appeal against the judgment of S. E. Charles-Granville, J., who on 24th January, 1995, had dismissed the plaintiffs/respondents’ case in suit No. PHC/125/84.
A review of the facts and background of the case is first necessary for a clearer appraisal of the case as follows:
- The plaintiffs, now respondents, sued the defendant, now appellant, claiming the following reliefs before the Port Harcourt High Court:
“(a) A declaration that the purported sale of plaintiff’s building situate at Plot. 99, Borokiri Layout, Port Harcourt, Rivers State and registered as No. 44 at page 44 in volume 366 at the Land Registry, Enugu now kept at Port Harcourt, (Rivers State) by the Rivers State Government (1st defendant) to the 2nd defendant is unconstitutional, null and void.
(b) A declaration that the plaintiffs are entitled to the grant of statutory right of occupancy of the said premises.
(c) A perpetual injunction restraining the defendants by themselves, their servants and or agents from dealing in the said property.
(d) An order of court setting aside the agreement dated the 26th day of November, 1982, between the Secretary to the Government (on behalf of the Government of Rivers State) as vendor, and the 2nd defendant as purchaser registered as No. 86 at page 86 in volume 95 of the Land Registry in the office at Port Harcourt.
OR IN THE ALTERNATIVE
(e) Against the defendants jointly and severally the sum of two hundred and fifty thousand naira (250,000.00) being the market value of the property situate at Plot 99 in Borokiri Layout Port Harcourt popularly called No.4 Rex Lawson Street, Port Harcourt, and registered as No. 44 at page 44 in volume 366 at the Land Registry Enugu now kept at Port Harcourt, Rivers State.”
The alternative claim(s) was withdrawn in the course of the proceedings.
It was common ground that by a deed of lease made on the 25th of March, 1960 and registered as No. 22 at page 22 in volume 233 at the Land Registry at Enugu now kept at port Harcourt, the piece and parcel of land the subject matter of this case, was granted by the Minister of Town Planning, Eastern Nigeria to one Marcus Ezeuba Nwaokenta for a term of 99 years. The said Marcus Ezeuba Nwaokenta later by a deed of assignment dated the 9th day of August, 1963, and registered as No. 44 at page 44 in volume 366 at the Land Registry at Enugu now kept at Port Harcourt assigned the residue of his lease to the plaintiffs/respondents with the consent of the Governor of Eastern Nigeria vide exhibit B. It was also common ground that the said piece and parcel of land, which was originally known as No.4 J. N. Kanu Street then renamed 4 Rex Lawson Street, had been developed before the outbreak of the civil war. It was the respondents’ case for which they called only one witness, that at the end of the civil war they continued to deal with the property as owners and let same to tenants. They further demonstrated that in May, 1983 Messers Knight, Frank and Rutley who were estate agents for the Rivers State Government sent to them a demand notice for payment of property rates in respect of the property for the period between 1970 and 1983 which were admitted in evidence as exhibits C and C1. According to the respondents, when they went to pay the said property rates they learnt for the first time that the appellant was claiming to have bought the property.
It was the appellant’s case that the said property became an abandoned property during the period of the civil war within the meaning of the Abandoned Property (Management and custody) Edict 1969, and that the respondents had been divested of whatever interest they might have had in the property. The appellant further maintained that the Rivers State Government on November 26, 1982 had sold the property to him.
The appellant thereupon tendered a letter of offer admitted in evidence as exhibit E and another letter, exhibit F, in which he was asked to pay the paltry sum of N18,988.00 as the outright purchase price of the property with the building thereon. The deed of sale was admitted in evidence as exhibit G.
The 1st defendant/respondent’s case on the other hand was that the Rivers State Government had by an instrument dated October 29, 1972, and published in the Extra-Ordinary Gazette No. 56 Vol. 4 Notice No. 452 cancelled the lease in respect of the property and had sold same to the appellant.
The parties addressed the trial court on the 24th of January, 1995.
In a considered judgment wherein the learned trial Judge made his primary findings of fact mostly in favour of the respondents, he held inter alia, that Abandoned Property (Management and Custody) Edict, 1969 did not divest the respondents of their interest in the property. He also proceeded to hold that the Rivers State Government had by virtue of the Extra-Ordinary Gazette No. 56 vol. 4 cancelled the lease of the property. He dismissed the respondents’ case, relying on the cases of Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134 and Peenok Investments Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR 122, (1982) 12 SC 1, (1982) 13 NSCC 477.
Dissatisfied with the said judgment, the respondents appealed to the Court of Appeal, Port Harcourt Division (hereinafter in this judgment referred to as the court below).
On the 9th of April, 1998, the court below in a unanimous judgment, per S. O. Uwaifo, JCA. and concurred in by Katsina Alu, and Nsofor, JJ.C.A. upheld the appeal and entered judgment for the respondents. The learned Justices in addition were of the firm view that the Extra-ordinary Gazette could not have cancelled the lease of the property to the respondents and had not the effect of divesting them (respondents’) of their interest in the property. The court below further held that contrary to the finding of the learned trial Judge, there was no concluded transaction between the appellant herein and the Government of Rivers State until 9th December, 1982, when the sales agreement was registered. The court also further held that the sale of the property in dispute to the appellant by the Government of Rivers State on the basis of Edict No. 15 of 1972 was quite open to contest. It was the court’s opinion also that the High Court should have applied the fortissime contra proferentes rule of interpretation to find for the respondents. Relying on the
decision of this court in the Peenok Investment case (supra) the court below finally held, while allowing the appeal of the respondents, that the sale to the appellant of the property, founded on the whole, on the basis of Edict No. 15 of 1972, was wrong and illegal.
This appeal, as earlier pointed out, is against the said judgment. Arising from the grounds of appeal as well as the additional grounds, the appellant has submitted the following issues as arising for determination, to wit:
“1. If the agreement between the appellant and the Government of Rivers State was made on 26th November, 1982 as shown on exhibit G was the Court of Appeal correct in holding that the validity of the Edict No. 15 of 1972 of the Rivers State Government could be challenged by the plaintiffs/respondents
- Was the Court of Appeal correct in holding that the agreement to sell the property in dispute by the Government of Rivers State to the appellant was concluded on 9th December, 1982 and not on 26th November, 1982 as pleaded, and found by the learned trial Judge
- If and only if, the answers to the above questions are in the affirmative, was the Court of Appeal correct in holding that the appellant herein did not acquire a good title to the property in question, having regard to the proved facts before the learned trial Judge
The respondents for their part, similarly formulated three issues for determination having regard to the original and additional grounds of appeal as well as the cross-appeal, to wit:
“(i) Whether the court of first instance was right in entertaining the case having regard to the provisions of section 6(6)(d) of the 1979 Constitution of Nigeria
(ii) Whether the learned Justices of the Court of Appeal were right in holding that there had not been an effective cancellation of the respondents’ lease by the Rivers State government and the Rivers State Edict did not achieve its intended objective
(iii) Whether the learned Justices of the Court of Appeal were right when they held that the case of Abaye v. Ofili only limited the effect of the case of Peenok Investment Nig. Ltd. v. Hotel Presidential Ltd. And whether they were equally right when they failed to apply fully the decision in Peenok’s case in their judgment”
The parties filed and exchanged briefs of argument with the appellant’s being dated and filed on 16th October, 2000 while the respondents’ was dated the 11th day of July, 2001 and filed on 13th July, 2001.
At the hearing of the appeal on 1st April, 2003, the learned leading counsel for the respondents and cross-appellants in the main appeal, Chief Uche, after submitting that since their cross-appeal raised the case of Abaye v. Ofili (supra) which is more of an academic exercise and did not arise strictly for consideration in this appeal, he was therefore applying to withdraw the cross-appeal. The learned counsel for the appellant having raised no objection to the application, the cross appeal was accordingly struck out with an order for costs made to be in the cause.
In my consideration of this appeal, it is my intention to take the appellant’s three issues and consider them in their order of sequence as follows:
ISSUE NO. 1
For the argument of this issue which covers grounds 2 and 3 of the original grounds of appeal as well as ground 1 of the additional grounds, learned counsel for the appellant submitted through oral expatiation and argument of the issue proper as contained in his brief, that two important areas call for consideration viz (i) whether, as at 26th November, 1982 when the agreement to sell the property in dispute between the Rivers State Government and the appellant and the 1st set of respondents, the sale could validly be challenged under the States Lands Cancellation of Leases Edict No. 15 of 1972 before the High Court and (ii) whether the learned trial Judge had the jurisdiction as at the time the cause of action arose, to entertain the suit having regard to the provision of section 6(6)(d) of the 1979 Constitution of Nigeria
Simply put, it is contended, whether on a careful perusal of the whole of the appellant’s brief, one issue and one issue only, had been raise by the appellant for our consideration, to wit: that as the agreement between the Rivers State Government and the appellant for the sale of the disputed property was concluded on November 26,1982 before the judgment in Peenoks case of December 3,1982, whether the High Court had jurisdiction to determine the validity of the States Lands (Cancellation of Leases) Edict No. 15 of 1972
The above is the gist of the appellant’s complaint in this court wherefor November 26,1982 and December 3, 1982 – the latter being the day when this court invalidated the Cancellation of Leases Edict No. 15 are the dates on which the whole case revolves. For, as the sale was concluded before December 3,1982, the question is whether the appellant has acquired a good title thereby and no court has the competence to question the validity of the transaction. However, if the sale was made after December 3, 1982, that is after this court had pronounced on the invalidity of the edict, then the question is whether the sale transaction would be void and of no effect. As these dates of November 26, 1982 and December 3, 1982 literally permeate almost every page of the appellant’s brief by reason of the delay of about one week which afforded the appellant the opportunity to complete the purported purchase of the disputed land on November 26, 1982, the pronouncement of the judgment much earlier, the invalidation of the Edict as affecting the purchase of the property would have been in order thus rendering the argument as being devoid of merit.
To arrive at such a conclusion, the appellant relied on section 6(6)(d) of the 1979 Constitution of Nigeria which came into operation on 1st October, 1979 and which provided as follows:
“6. The judicial powers vested in accordance with the foregoing provisions of this section:-
(d) Shall not, as from the date when the section comes into force, extend to any action or proceeding relating to any existing law made on or after 15th January, 1966, for determining any issue or question as to the competence of any authority or person to make any such law.”
(italics mine).
The appellant proceeded to cite the case of Uwaifo v. A.-G., Bendel State and others (1982) 7 SC 124, (1983) 4 NCLR 1 in which Idigbe, J.S.C. dealt at length on the construction of the above section to the following effect:-
“Section 6(6)(d) aforesaid provides in very clear terms that judicial powers of the courts – which are neatly set out in sub-paragraphs (a), (b) and (c) of sub-section (6) of section 6 of the 1979 Constitution – shall not extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 [the date, be it noted, when the Military seized power and took over the government of this country] for determining any issue or question as to the competence of any authority or person to make any such law. What exactly does the expression “for determining any issue or question as to the competence of any authority… to make any such law” mean What exactly does the expression “existing law” in the con of section 6(6)(d) aforesaid mean Is it really open to courts in the country, by virtue of this sub-section to pronounce on the validity of an existing law If so, is there any limitation on the area or scope of any such inquiry In my view, the expression “existing law” in section 6(6)(d) aforesaid means “any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date” when the Constitution aforesaid came into force. (See sections 277(1) and 274(4)(b) of the 1979 Constitution… However, it does seem to me that notwithstanding the provisions of sections 6(6)(a), 6(6)(b) and 4(8) aforesaid, the Constitution aforesaid makes special reservations with respect to a class of legislation i.e. those laws which were made “on or after 15th January, 1966 (in other words, those laws which came into existence during the period when this country was governed under the Military Regime). In respect of such laws, the courts are specifically precluded from determining any issue or question as to the competence of any authority or person to make such laws, I found it considerably difficult – in the face of the clear and unambiguous language of section 6(6)(d) aforesaid to accede to the ingenious contention and submission on behalf of the appellant that while sub-section 6(6)(d) means that the validity of a Decree cannot be challenged on the ground of the competence of the law maker to make the law (which really means, on ground of his authority or want of it to make such law), “it ought not to be construed as saying that the court has no jurisdiction to pronounce on its validity”. Again, with much respect to learned counsel for the appellant, to accede to this view is, indeed, to give a considerably narrow interpretation to the word “competence” in the relevant sub-paragraph of the sub-section under consideration. When one questions the validity of a law, one questions its competence on any accepted principle or rule of law.”
It ought to be emphasized here, that what section 6(6)(d) of the 1979 Constitution was meant to do or achieve was to oust the jurisdiction of the courts in determining any issue or question as to the legislative competence of any authority or person to promulgate any law. The section had not the effect of prohibiting any court from determining any issue or question as to the validity of any such law. Indeed, nowhere in section 6(6)(d) ibid was the prohibition extended to the question of determining the validity of any law. The prohibition was only as to issue or question of the competence of the lawmaker to make the law in question.
See University of Ibadan v. Adamolekun (1967) 1 All NLR 213.
See also the decision of Nnamani, JSC in the Peenok’s case (supra) in (1982) 8 NSCC 477 at page 521; (1982) 12 SC 1 at page
137 [(1983) 4 NCLR 122] where His lordship said:
“this court has held that the courts are merely precluded from inquiring as to the legislative capacity to make a Decree or an Edict but can inquire into whether an edict is inconsistent with the provisions of the Constitution of the Federation. (See University of Ibadan v. Adamolekun (1967) 1 All NLR 213 at 234)”
It is further submitted that for the sake of emphasis, section 31 of the 1963 Constitution of Nigeria had clearly made provision against the compulsory acquisition of land in Nigeria when it more specifically provided that:
“No property, moveable or immovable, shall be taken possession of compulsorily, and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except by or under the provisions of a law that:
(a) requires the payment of adequate compensation therefor; and
(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation, to the High Court having jurisdiction in that part of Nigeria.”
It should be more specifically pointed out that the Constitution (Suspension and Modification) Decree, 1966 otherwise known as Decree No.1 of 1966 retained after the Military take-over of the government of the country in January, 1966, all the provisions of the said section 31 of the 1963 Constitution of Nigeria. Hence, the position, up to the time that the Rivers State Government purported to have cancelled the respondents’ lease, was that no property moveable or immovable could be taken possession of compulsorily in any part of Nigeria without payment of adequate compensation and under a law that gave the affected person right to the High Court for the determination of his interest in the property and the amount of compensation payable to him. For this purpose, it is pertinent to highlight the fact that the Constitution (Suspension and Modification) Decree No. 1 of 1966 provides under sub-sections (3) and (4) of section 3 as follows:-
“3(3) Subject to sub-section (2) above and to the Constitution of the Federation, the Military Governor of a Region shall have power to make laws for the peace, order and good government of that Region.
(4) If any law –
(a) enacted before 16th January, 1996 by the legislature of a Region, or having effect as if so enacted, or
(b) made after that date by the Military Governor of a Region is inconsistent with any law –
(i) validly made by Parliament before that date, or having effect as if so made,
(ii) made by the Federal military Government on or after that date the law as mentioned in paragraph (i) or (ii) above shall prevail and the Regional law shall, to the extent of the inconsistency, be void.”
In effect therefore, a court has jurisdiction to pronounce any Edict or Law of the State Government, which is inconsistent with a law made by the Federal Military Government, as void to the extent of its inconsistency with a law made by Parliament or the Federal Military Government.
Albeit, the Rivers State Government proceeded to promulgate Edict No. 15 of 1972 on October, 16th 1972 under which it purported (or rather claimed) to have cancelled the respondents’ leasehold interest in the disputed property under Gazette Notice No. 452 of November, 1972 or more specifically section 3(1) of the State Lands (Cancellation of Leases) Edict No. 15 of 1972 which states as follows:
“Notwithstanding the provisions of the State Lands Law or any other law in force in the State and subject to the succeeding provisions of this Edict, the Military Governor may by notice published in the Gazette cancel the lease of any plot of State Land required for public purpose and upon the publication of such notice, such plot shall therefore revert to the State.”
It is under this Edict the Rivers State Government purported to have made the Gazette Notice No. 452 canceling the respondents’ leasehold interest in the disputed property. Without doubt, this Edict is in conflict with the provisions of section 31(1) and (2)(a) and (b) of the 1963 Constitution of Nigeria as was rightly held by this court in the Peenok’s case (supra).
It is significant to note that the appellant did not argue in his brief that the cancellation of leases Edict no. 15 is not in conflict with the Constitution of 1963. Rather, he submitted quite erroneously in my view, that section 6(6)(d) of the 1979 Constitution of Nigeria ousted the jurisdiction on the High Court to entertain the claim. He rather made the following submission at page 13 of his brief:
“Now Edict No. 15 of 1972 was declared void by the Supreme Court on 3rd December, 1982 for being inconsistent with certain provisions of the 1963 Republican Constitution. However, between 1972 and December 3rd 1982 when it was declared null and void by the Supreme Court, it is submission of the appellant that the Rivers State High Court was without jurisdiction to void same by reason of the provisions of the 1979 Constitution earlier on referred to. If the above submission is accepted by the Supreme Court, it follows that since the lease of the respondents was cancelled by Edict No. 15, the cancellation cannot be challenged, as the respondents did in the proceedings leading to this appeal. And it follows that the Rivers State High Court was without Jurisdiction to entertain the claim of the respondents, it being a challenge to Edict no. 15 of 1972. This must necessarily be so because of the ouster of jurisdiction which is contained in section 6(6)(d) of the 1979 Constitution of the Federation.”
Pertinently, it had earlier been submitted in the appellant’s brief that section 6(6)(d) of the 1979 Constitution only ousted the jurisdiction of the courts in determining any issue or question as to the competence of any authority or person to make any law after January 15, 1966, when the Military Government took over power. It neither ousted the jurisdiction of the courts in determining any question or issue as to the validity of any edict that is in conflict with the Constitution, nor of any law made by Parliament nor made by a decree. Afortiori, it must also be said that the appellant merely attempted in his brief to mis-interpret the opinion of Idigbe, J.S.C. in the Uwaifo’s case (supra). Going through the said opinion of Idigbe, J.S.C. earlier set out herein from appellant’s brief, there is no passage therein from where one could get the faintest idea that Idigbe, J.S.C. had put up the suggestion that section 6(6)(d) of the 1979 Constitution of Nigeria had ousted the jurisdiction of the courts in determining any issue or question as to the validity of any law that had been shown to be in conflict with the Constitution. Be it noted that the judgment in the Uwaifo’s case (supra) was delivered on 6th July, 1982.
Incidentally, Idigbe, J.S.C. was one of the seven justices in the full court of this court in the Peenok’s case (supra), the judgment of which was delivered on 3rd December, 1982. In that case (Peenok) Idigbe, JS.C. page 67 [153 NCLR] had this to say among others:
“There is no doubt whatsoever that such exercise as was carried out in the said Edict No. 15 of 1972 and the amendment carried out in Edict no. 17 of 1972 are clearly in conflict with the provisions of sub-paragraphs (a) and (b) of sub-section (2) of section 31 of the 1963 Constitution of the Federation, Act No. 20 of 1963 as modified by Decree No.1 of 1966. In the event, both Edicts (that is Nos. 15 and 17 of 1972, and the Legal Notice No. 412 of 26th of September, 1972 thereon) are unconstitutional and invalid each being null and void.”
(italics is for emphasis)
Surely, if Idigbe, J.S.C. had stated in the Uwaifo’s case on 16th July, 1982 that section 6(6)(d) of the 1979 Constitution of Nigeria had ousted the jurisdiction of the courts in determining any issue or question as to the validity of an edict, he would not have come on 3rd December, of the same year (1982) to hold a contrary view in Peenok’s case without saying that he had since changed his view on the subject-matter.
What the appellant had done was to quote out of con a portion of Idigbe, J.S.C’s opinion whilst developing his very forceful opinion without reference to his conclusion; for so soon after the portion cited by counsel in his brief, the learned Justice was shown as proceeding to hold:
“It seems to me that while the Constitution empowers the courts to inquire into the validity of any existing law, it clearly intends that the courts should not inquire into proceedings which seek to determine issues or questions as to the competence of any authority or person that is the legal authority or person to make any existing law promulgated between 15th January, 1966, and 1st October, 1979; in other words, the courts are precluded from inquiring into the validity of any such laws. Indubitably, the provisions of section 6(6)(d) aforesaid are aimed at proceedings which seek to detract from the binding force and or authority of any unrepealed law made by the Military regime between 15th January, 1966 and 1st October, 1979, when the new Constitution came into force.”
Rounding up his opinion, Idigbe, J.S.C. in the Uwaifo’s case referred to what Ademola, C.J.N. had said in the case of University of Ibadan v. Adamolekun (1967) 1 All NLR 213 at 224, to wit:-
“Reading the Decree as a whole we are in no doubt that section 6 does not preclude the courts from inquiring into any inconsistency that may arise, but merely bars the courts from questioning the validity of the making of a Decree or an Edict on the ground that there is no valid legislative authority to make one. In other words, the court is not inquiring into whether the Military governor of a Region could legislate by Edict, but only whether section 36 of the Edict is inconsistent with the Constitution of the Federation.”
Indeed, the issue or question as to whether the Military Government had the legislative competence to promulgate the State lands (Cancellation of Leases) Edict No. 15 of 1972 never arose in this case now before this court. The issue or question that arose in this case is the determination of the inconsistency of the edict with the Constitution of Nigeria. No one ever questioned the competence of the Military Governor of Rivers State to promulgate Edict No. 15 of 1972.
In the result, Issue No.1 be and is accordingly resolved against the appellant and so answered in the positive. The appeal is therefore dismissed.
The matter does not terminate there as I intend to consider issues No.2 and 3 hereafter to give the appeal the cap of finality and conclusiveness it deserves.
ISSUE NO. 2
This issue which inquires whether the Court of Appeal was correct in holding that the agreement to sell the property in dispute by the Government of Rivers State to the appellant was concluded on 29th December, 1982 and not on 1st November, 1982 as pleaded by the plaintiffs as found by the learned trial Judge is to be treated next.
On this issue, which covered the appellants’ issue no. 2 as well as the original grounds of appeal 1 and 4 and grounds 2 and 3 of the additional grounds of appeal, the point being canvassed goes thus:
“That the learned justices of the Court of Appeal were perfectly right in coming to the decision that the Rivers State Government had not been able to cancel the respondents’ lease by virtue of exhibit H, that is Notice No. 452 published under the State lands (cancellation of Leases) Edict No. 15 of 1972 and therefore, that the appellant could not have acquired any valid title to the disputed land.”
It has been admitted on all sides that by a deed of lease dated the 25th of March, 1960 and registered as No. 22 at page 22 in volume 233 of the Land Registry at Enugu, and now kept at Port Harcourt, the Governor of Eastern Nigeria demised the disputed property to one Marcus Ezeuba Nwaokenta for a term of 99 years. It was also admitted that by a deed of assignment dated the 5th day of August, 1963, and registered as No. 44 at page 44 in Volume 366 in the Lands Registry at Enugu, and now kept in Port Harcourt that Marcus Ezeuba Nwaokenta assigned, with the consent of the Governor, the residue of the lease to the respondents. This deed of assignment
was admitted in evidence as exhibit B but in the Notice No. 452 published on the 1st of November, 1972 – State lands (Cancellation of Leases) Edict No. 15 of 1972 in the extra-ordinary gazette No. 56 Volume 14 and received in evidence as exhibit H – the name of the leasee, whose lease was being cancelled, was stated to be Marcus E. Nwaokenta and not the respondents, the assignees in the deed of assignment. Then again, under the column of the “date and registration number of lease” in the said Gazette publication would be seen “44/44/366 dated 5/8/63.”
As the instrument registered as No. 44 at page 44 in volume 366 of the Land Registry at Enugu, now kept at Port Harcourt, is the deed of assignment (exhibit B) made between Marcus E. Nwaokenta and the respondents, this is a mere private agreement between Marcus E. Nwaokenta and the respondents which only required the Governor’s consent for purposes of registration. In the light of the foregoing, I agree with the respondents’ submission that the cancellation of the deed of assignment, as that was what had ostensibly been done by the Gazette publication, had nothing to do with the head lease that was registered as no. 22 at page 22 in volume 233 of the Land Registry at Enugu, now at Port Harcourt which remained uncancelled. Indeed, the deed of assignment could not exist without the head lease; whilst the head lease did not need any deed of assignment to operate in law.
Furthermore, I agree with the respondents’ submission that it is not competent for the Rivers State Government to cancel the deed of assignment of which it was not a party – the parties thereto being Marcus E. Nwaokenta and the respondents (Uche Okafor, Obi Eze, Okeke Ozoemena and Okonkwo Nsedinma). Thus, while the Governor of Eastern Nigeria was a party to the deed of assignment, his consent only was what was needed as mere formality for purposes of registration. It needs to be stressed in this respect that one cardinal principle of the law of contract is that it is only a party to a contract that can sue for cancellation of it for one cause or the other. See Savannah Bank Plc v. Ibrahim (2000) 6 NWLR (Pt. 662) 585 at page 601 though of persuasive authority, being the decision of the Court of Appeal. See also Negbenebor v. Negbenbor (1971) 1 All NLR 210 at 270 – 271 and Ikpeazu v. ACB Ltd. (1965) NMLR 374. A non party to a contract cannot ask for its cancellation or abrogation.
In the case under consideration, all that the Governor could do as far as a deed of assignment is concerned, if it is possible so to do, is to withdraw his consent once he had assented to the assignment of the lease. He could certainly do no more than the withdrawal of his consent, if that is possible, with respect to the deed of assignment. Indeed, it is elementary that only the parties to a deed of assignment can go to court for a cancellation of the deed. The grantor’s rights under the lease are not derived from a deed of assignment of which he is not a party, but from the head lease. Thus, it is not competent for the Governor to cancel the deed of assignment as was attempted in the instant case. Only the courts have competence in law to do so and this, after hearing the parties to the deed of assignment. The position is well put by Uwaifo, J.C.A. in his leading judgment when he said:
“The question is, how does Marcus E. Nwaokenta move out of the divesting Government Notice under the Edict and where do the appellants come in Marcus E. Nwaokenta is stated as the lessee in the said Edict and paragraph 2 of the said Government Notice states:-
Lessees whose leases have been cancelled are entitled to compensation and any person claiming a right to compensation may within six weeks from the date of this notice file his claim with the Chief Land Officer, Ministry of Lands and Housing, Port Harcourt, as required by section 4(1) and (2) of this Edict.”
(italics mine).
The question then may be asked, how would the respondents claim any right to such compensation when the Government notice had not shown them to be the lessees Would they have to obtain written authority from Marcus E. Nwaokenta, who had been shown as the lessee before claiming the compensation It may be further asked how the respondents would be expected to put their claim to such compensation within six weeks from the date of the Government notice as required by section 4(1) and (2) when no notice whatsoever had been directed to them No one could surmise whether Marcus E. Nwaokenta did indeed survive the civil war. It may be further asked, how would notice to Marcus E. Nwaokenta be notice to the
respondents
Uwaifo, JC.A. then went on to elucidate how the Government notice could not have been said to be directed at the respondents when he observed thus:-
“It is not merely matter of argument that there is difficulty in ascertaining what exhibit H was really aimed at achieving. It appears to be the lease granted to Marcus E. Nwaokenta by the Government that was intended to be cancelled. That lease was registered as No. 22 at page 22 in volume 233. There Marcus E. Nwaokenta was stated as the lessee. But a different instrument registered as no 44 at page 44 in volume 366 was named. However, the appellants are therein known as the purchasers. They purchased the residue of the lease. Another name they can possibly be called is Assignees. Their names were not stated in the Government notice in question.”
A recognised and acceptable canon of interpretation of statutes is that statutes, which purport to deprive citizens of their proprietary interest as well as acquired rights, are always interpreted strictly. In effect, such statutes are construed fortissime contra proferentes. See Maxwell on Interpretation of Statutes, 12th Edition page 258 where it was said:-
“Where a statute confers a power, and particularly one which may be used to deprive the subject of proprietary rights, the courts confine those exercising the power to the strict letter of the statute.”
See also Bello v. Diocesan Synod of Lagos & Ors. (1973) 3 SC 103 at 130; (1973) 8 NSCC 137 at page 149 where Coker, JS.C. held:
“The principle on which the courts have acted from time immemorial is to construe fortissime contra proferentes any provision of the law which gives them extraordinary powers of compulsory acquisition of the properties of citizens.”
Continuing, Coker, J.S.C. referred to the case of In re Bowman South Shields (Thames Street) Clearance Order (1932) 2 KB 621 where Swift, J. was quoted as saying at page 633:
“When an owner of property against whom an order has been made under the Act comes into this court and complains that there has been some irregularity in the proceedings and that he is not liable to have his property taken away, it is right, I think, that his case should be entertained and that a statute under which he is being deprived of his rights to property should be construed strictly against the local authority and favourably towards the interest of the applicant, in-as-much as he for the benefit of the community is undoubtedly suffering a substantial loss, which in my view must not be inflicted upon him unless it is quite clear that parliament has intended that it shall.”
See also A.-G. Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646 at 675-676; Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130 at 205; Din v. A.-G. Federation (1988) 4 NWLR (Pt. 87) 147; Peenok Investments Ltd. v. Hotel Presidential Ltd. (supra) at pages 25 – 26.
The court below per Uwaifo, J.C.A. agreed as much that the principle of fortissime contra proferentes should have been applied by the learned trial Judge in this case. This accounts for the reason why I firmly endorse and confirm the decision of that court wherein Uwaifo, J.C.A. concluded his judgment on the point by saying:
“What I see is that certain citizens (the appellants) are alleged to have been deprived of their property by the Government which issued a notice in a Gazette that the property was required for a public purpose. No public purpose of any kind was thereafter known for that deprivation. Rather another private citizen is in possession of the property claiming to be the owner. What was alleged to have been cancelled by the said notice was a lease but the registration number indicated is that of an assignment. The name of the owner (given as the lessee) is one other than the appellants supposed to be beneficiaries of the assignment. The said citizens are not only deprived of their way of getting compensation since the compensation will be paid to the lessee within six weeks upon an ambiguous notice tucked away in an extra-ordinary gazette – nothing at all to indicate that the appellants were sent any relevant notice, or any posted on the premises in question. I cannot in good conscience accept that the proper procedure capable of leading to the expropriation was followed. Therefore, I must hold that exhibit A did not and could not achieve its aim.”
While the appellant accepted the fortissime contra proferentes rule, for which see page 25 of his brief – at the same page 25, he added:
“that expropriatory legislations are construed strictly against the acquiring authority, person or body. Such construction will only arise if there is an ambiguity in the legislation”
At page 26 of his brief the appellant said:
“This is the case now under the appeal, it is patently clear that the lease which was sought to be cancelled was that registered as No. 44/44/366. The situation it is submitted would have been completely different if exhibit H had purported to cancel the lease agreement as 22/22/233, in which case the principle would have applied.”
But one may ask, what should have been cancelled, if the intention was to cancel the lease in respect of the disputed property. What ought to have been cancelled, in my view, was the head lease which was registered as 22/22/233, and not the deed of assignment registered as 44/44/366 which did not contain the terms and conditions of the lease but was merely an agreement to assign the residue of the terms of years to the respondents. However, the court below considered the question of ambiguity as a condition for the rule to apply by saying:
“The 1st respondent concedes the rule that expropriatory statutes should be construed fortissime contra proferentes but argued that that can only arise when there is ambiguity, citing Din v. A-G., Federation (1988) 4 NWLR (Pt. 87) 147 at 184; Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130 at 205. I do not know if one can run away from the fact that, if ambiguity is a condition for the rule in question to be applicable, that there is ambiguity in the government notice No. 452 which purported to expropriate the premises in question having regard to what I have pointed out above. It seems to me, this is an appropriate case for applying the authority of A-G. Bendel State v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 648 where Nnaemeka-Agu, J.S.C. said at pages 675 – 676:
‘I believe that the law is still as stated in the case of Bello v. Diocesan Synod of Lagos & Ors. (1973) 1 All NLR (Pt. 1) 247 at page 268; and re-iterated in Peenok Investments Ltd v. Hotel Presidential Ltd. (1983) 4 NCLR 122 at page 165. It is that such expropriatory statutes which encroach on a person’s proprietary rights must be construed fortissime contra proferentes, that is strictly against the acquiring authority but sympathetically in favour of the citizen whose property rights are being deprived. As against the acquiring authority there must be strict adherence to formalities prescribed for the acquisition.’”
In consequence, I agree with the respondents’ submission that if there had been an effective cancellation of the lease, the question as to whether the sale of the disputed property to the appellant is valid would not arise, as the maxim is “nemo dat quod non habet.” Certainly, as the ownership had remained with the respondents, the Rivers State Government could not have made a valid disposition of the property to the appellant; this the moreso, notwithstanding the point being canvassed that the sale transaction was concluded on 26th November, 1982, before the judgment in Peenok’s case on 3rd December, 1982.
In respect of the issue of the sale of State Land, this was considered in the identical case of Gregory Ude v. Clement Nwara & Anor. (1993) 2 NWLR (Pt. 278) 638 where Nnaemeka-Agu, J.S.C. said at page 664 of the report:
“State lands in Nigeria invariably originate from compulsory acquisition of such lands from individuals or communities for public purposes. Such lands are held in trust by the acquiring government for use for the public purpose for which the land was acquired and in accordance with the public policy of the state as enshrined in the laws of the state. Now it has been conceded that there is no law which authorises the reconversion of such lands into private lands nor any to support the selling of such lands as fee simple absolute in possession such as the respondents tried to do by exhibit M… it is also a necessary implication of the rule of law that excepting where the law gives a discretion to a public functionary he can only act in accordance with law, as to do otherwise may enthrone arbitrariness. I am of the clear view that the 2nd respondent required express authorisation from a statute before they could have sold any State land as fee simple absolute in possession to the 1st respondent. As there was no such authorization, the purported sale by exhibit M is invalid.”
See also the Court of Appeal decisions of Erastus Obioha v. Iyibo Kio Dafe (1994) 2 NWLR (Pt. 325) 157 at 172 – 176 and Savannah Bank v. Ibrahim (supra). The State Lands (Cancellation of Leases) Edict. 1972 did not give the State Government any such power. The sale of the disputed property could not even be said to be an action rightly taken under the Edict before the decision in Peenok’s case (supra), as was said in the Abaye’s case (supra), so that the sale could then be said to have remained valid after the Edict had been declared to be unconstitutional, as was erroneously argued by the appellant. The said outright sale of the disputed property to the appellant should also be declared to be null and void as well as invalid and I so hold.
Issue no. 2 ought to and it is hereby accordingly resolved by me in favour of the respondents.
Following my earlier treatment of issues 1 and 2 above, I do not consider it expedient or necessary to delve into issue 3 which, in my view, becomes otiose. This is the moreso, that I had earlier held that the said out-right sale of the disputed property to the appellant should be declared null and void.
I wish to add in conclusion, that this court not having been invited to overrule our decision in Abaye v. Ofili (supra), I deem it unnecessary to pronounce on that case. It remains binding on us until set aside or overruled. Accordingly, I dismiss this appeal with costs assessed at Nl0,000.00 to the respondents.
M. E. OGUNDARE, J.S.C.: I have read in advance the judgment of my learned brother Onu, JS.C. just delivered. I agree with him that the appeal lacks merit. I too have no hesitation in dismissing it. I, however, wish to add a few comments of my own.
The facts are not in dispute: that a deed of lease made on the 25th of March, 1960 and registered as No. 22 at page 22 in volume 233 at the Land Registry Enugu (now kept at Port Harcourt) by which the piece of parcel of land the subject matter of this case was granted by the Ministry of Town Planning Eastern Nigeria to one Marcus Ezeuba Nwaokenta for a term of 99 years. The latter by a deed of assignment dated 5th day of August, 1963 and registered as No. 44 at page 44 in Volume 366 of the Lands Registry, Enugu (now kept at Port Harcourt) assigned, with the consent of the Governor of Eastern Nigeria, the residue of his lease to the plaintiffs who are respondents in this appeal. Both the original deed of lease and the subsequent deed of assignment were tendered in argument at the hearing of this case in the trial High Court. The land originally known as No.4 J.N. Kanu Street was later renamed 4 Rex Lawson Street and was fully developed before the outbreak of the civil war in 1967. It is plaintiffs’ case that at the end of the civil war they continued to deal with the property as owners and let same to tenants. In May 1983. Messers Knight, Frank and Rutley who were estate agents to the Rivers State Government sent to the plaintiffs a demand notice for payment of property rates in respect of the property in dispute for the period 1970 to 1983. It was when they went to pay the sum demanded that they learnt for the first time that the property had been sold to one Golden Victor Nangibo. The plaintiffs later sued the said Nangibo and the A.-G., Rivers State claiming as per paragraph 10 of their further, further amended statement of claim as hereunder:
“(i) A declaration that the purported sale of the plaintiffs’ buildings situate at plot 99 in Gborokiri Layout, Port Harcourt, Rivers State and registered at No. 44 at page 44 in volume 366 at the Land Registry, Enugu now kept at Port Harcourt, Rivers State by the Rivers State Government (1st defendant) to the second defendant is unconstitutional and null and void.
(ii) A declaration that the plaintiffs are entitled to the grant of statutory right of occupancy of the said premises.
(iii) A perpetual injunction restraining the defendants by themselves, their servants, and or agents from dealing in the said property.
(iv) An order of court setting aside the agreement dated the 26th day of November, 1982 between the Secretary to the Government (on behalf of the Government of Rivers State) as vendor and the second defendant as purchaser registered as number 86 at page 86 in volume 95 of the Land Registry in the office at Port Harcourt.
OR IN THE ALTERNATIVE
(v) Against the defendants jointly and severally the sum of Two hundred and fifty thousand naira (N250,000.00) being the market value of the property situate at plot 99 in Gborokiri Layout, Port Harcourt, Rivers State popularly called 4 Rex Lawson Street, Port Harcourt and registered as No. 44 at page 44 in volume 366 at the Land Registry, Enugu now kept at Port Harcourt, Rivers State.”
The alternative claim (v) was withdrawn in the course of the proceedings.
On completion of pleadings, the case went to trial at which evidence was led on both sides. The case of the 2nd defendant was that the said property became an abandoned property during the period of the civil war within the meaning of Abandoned Property (Management and Custody) Edict 1969 and that the plaintiffs have been divested of whatever interest they might have had in the property. The Rivers State Government sold the property to him on November 26, 1982. The 1st defendant’s case however, was that the Rivers State Government had by an instrument dated October 29, 1972 and published in the extra-ordinary gazette No. 56 volume 4 Notice No. 452, cancelled the lease in respect of the property and had sold the same to the 2nd defendant.
The learned trial Judge after a review of the evidence adduced at the trial and addresses of learned counsel for the parties, held that the Abandoned Property (Management and Custody) Edict 1969 did not divest the plaintiffs of their interest in the property in dispute. He however, found that the Rivers State Governor had by virtue of the extra-ordinary gazette No. 56 volume 4 cancelled the lease of the property and purportedly relying on Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134 and Peenok Investment Ltd v. Hotel Presidential Ltd. (1982) 12 SC 1; (1982) 13 NSCC 477, (1983) 4 NCLR 122 dismissed plaintiffs’ case. The plaintiffs being dissatisfied with this judgment appealed to the Court of Appeal which latter court allowed the appeal, holding that the extra-ordinary gazette could have cancelled the lease of the property and had not the effect of divesting the plaintiffs of their interest in the property.
It is against this latter judgment that the 1st defendant had appealed to this court. The plaintiff also cross appealed against that part of the judgment in the Court of Appeal which stated that there is no conflict between the decision in Peenok Investment Ltd v. Hotel Presidential Ltd. (supra) and Abaye v. Ofili (supra). The cross-appeal was, however, abandoned at the trial before us and was dismissed on the 1st of April, 2003.
As regards the appeal of the 2nd defendant, three questions have been raised for determination. These three questions are:
“1. If the agreement between the appellant and the Government of Rivers State was made on 26th November, 1982 as shown on exhibit G, was the Court of Appeal correct in holding that the validity of Edict No. 15 of 1972 of the Rivers State Government could be challenged by the plaintiffs/respondents
- Was the Court of Appeal correct in holding that the agreement to sell the property in dispute, by the Government of Rivers State, to the appellant was concluded on 9th December, 1982 and not on 26th November, 1982 as pleaded, and found by the learned trial Judge
- If, and only if, the answers to the above questions are in the affirmative, was the Court of Appeal correct in holding that the appellant herein did not acquire a good title to the property in question, having regard to the proved facts before the learned trial Judge”
Question 1
The thrust of the argument of learned counsel for the 2nd defendant on this issue is that having regard to section 6(6)(d) of the 1979 Constitution of the Federal Republic of Nigeria the Court of Appeal had no jurisdiction to pronounce on the validity of Edict No. 15 of 1972 of Rivers State titled “State lands (Cancellation of Leases) Edict 1972”. The validity or otherwise of this edict is crucial to the case before the courts below. Uwaifo, JC.A. (as he then was) in his lead judgment in the Court of Appeal had this to say:
“Added to this, if I may say at this stage, is the fact that the validity of the Edict in question was directly in issue in this case. So that, in any event, the validity in law of the agreement to sell the premises of the appellants concluded on 9 December, 1982 in reliance upon a purported instrument of cancellation of which instrument was declared void by the Supreme Court on 3 December, 1982, is open to contest for a decision in this present case.”
Section 6(6)(d) of the 1979 Constitution provided:
“Judicial powers vested in accordance with the foregoing provisions of this section –
(d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.”
The contention of the learned counsel for the 2nd defendant is that this provision of the Constitution ousted the jurisdiction of the court to pronounce on the validity or otherwise of a decree as well as an edict made between 1966 and 1979 which will include Edict No. 15 of 1972 of Rivers State. Learned counsel relied on the dictum of Idigbe, J.S.C. in Uwaifo v. A.-G., Bendel State & Ors (1982) 7 SC 124, 206 – 211. As it is a long dictum I do not intend to set it out in this judgment but suffice it to say that after a careful consideration of what Idigbe, J.S.C. said in the passage I do not think it supports the submission of learned counsel in this case. The court has always had jurisdiction to pronounce not on the power of a Military Governor to make an Edict, but on whether an Edict so made is inconsistent with a Decree, the unsuspended provisions of the Constitution of 1963 and any Act of the National Parliament. See University of Ibadan v. Adamolekun (1967) 1 ANLR 213 at 223-224 where this court, per Sir Ademola, C.J.N., laid the law down as follows:-
“Dr. Ajayi (Attorney-General, Western State) has submitted that even if this section is void the Supreme Court cannot make any pronouncement that it is void. For this proposition Dr. Ajayi sought the aid of section 6 of Decree No.1 of 1966 which states that ‘no question as to the validity of this or any other Decree or of any Edict shall be entertained by any court of law in Nigeria’.
We feel unable to accept this submission. This submission creates the situation that the Supreme Court cannot decide on an application before it whether an appeal lies to the court or not and whether or not the court can entertain the application before it. In effect the court is reduced to the position that if an Edict is itself inconsistent with a decree or with the Decree No. 1 of 1966 the court cannot make a pronouncement. This, in our view, will not be giving effect to section 3(4) of Decree No.1 of 1966 and it becomes a dead letter. We feel that Dr. Ajayi’s reference to section 6 is inept and the flaw in Dr. Ajayi’s argument lies in the fact that he has read section 6 in isolation. Reading the Decree as a whole we are not in doubt that section 6 does not preclude the courts from enquiring into any inconsistency that may arise, but merely bars the courts from questioning the validity of the making of a Decree or an Edict on the ground that there is no valid legislative authority to make one. In other words, the court is not enquiring into whether the Military Governor of a Region could legislate by Edict, but only whether section 35 of the Edict is inconsistent with the Constitution of the Federation.”
What in effect Idigbe, J.S.C. was saying in the passage relied upon by learned counsel for the 2nd defendant is that the court could not question the power of a military governor to make an edict but, on the state of the authorities the court could pronounce on whether an edict or a provision thereof is inconsistent with either the unsuspended provisions of the Constitution, a decree or an act of the National Assembly. It is significant to note that Idigbe, J.S.C. was a member of the panel of this court that nullified Edict No. 15 of 1972 of Rivers State in question in Peenok Investments Ltd. v. Hotel Presidential Ltd (supra).
I, therefore, see no substance in the submission of learned counsel and resolve question 1, in the affirmative.
Question 2:
Having held that Edict No. 15 of 1972 of Rivers State was inconsistent with the un suspended provisions of the 1963 Constitution the question when the agreement between the Rivers State Government and the 2nd defendant was made peters into insignificance. The Legal Notice No. 452 made by the Rivers State Military Governor under the edict would be void and of no effect since the enabling law itself was void. Consequently the plaintiffs still retain their interest in the property in dispute.
We have not been invited in this case to overrule our decision in Abaye v. Ofili (supra). Consequently, I do not consider it necessary to make a pronouncement on this case, it remain binding on this court until set aside or overrule. However, I do not see how that case applies to the fact of the case on hand. Legal Notice 452 under which the lease affecting the property in dispute was purportedly cancelled having been made under a void law is itself void as one cannot build something on nothing. So whether the agreement between the 1st defendant and the 2nd defendant was made on the 26th of November, 1982 and/or concluded on the 9th December, 1982 would make no difference to this case.
The finding of the Court of Appeal that the agreement between the defendants was concluded on the 9th of December, 1982 is a finding based on the evidence adduced at the trial court. I have no reason to disturb it as I am not satisfied that the finding was wrong. That court did not say that the agreement was made on 9th December, 1982 but that it was concluded on that date.
In view of my comments on issues 1 and 2 I consider it unnecessary to go indepth into question 3. Edict No. 15 of 1972 of Rivers State allowed for compulsory acquisition of leasehold titles of various citizens for public purpose. The plaintiffs were never served with any notice of the acquisition of their interest nor could the subsequent sale of the property to the 1st defendant be described as public purpose. Thus apart from the invalidity of Edict 15 of 1972, there are other factors in the case that rendered the purported sale to the 2nd defendant invalid.
It is for the reasons in the lead judgment of my learned brother Onu, J.S.C. that I too dismiss this appeal. I abide by the order for costs made by my learned brother.
SC.139/1999