Joseph Ona & Anor V. Alhaji Diga Romani Atenda (2000)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

The plaintiff/respondent, Alhaji Diga Romani Atenda, had instituted this action at the Abuja Judicial Division of the High Court of the Federal Capital Territory as Suit No. CV/315/96 against the two defendants/appellants, Joseph Ona and Festus Ona. The plaintiff’s claim against the two defendants, as set out in paragraph 28 of the Statement of Claim which was filed along with the writ of summons is as follows:-

“Whereof the plaintiff claims the following court reliefs:-

(a) One Million, Five Hundred Thousand Naira (N1,500.000.00) damages for trespass to property, harassment, humiliation, defamation, damage to reputation and good will.

(b) Perpetual injunction restraining the defendants by themselves, agents and privies from any further trespass to the property in dispute and the person of the plaintiff.”

The defendants filed a memorandum of appearance and thereafter their counsel raised a preliminary objection as to the jurisdiction of the court to entertain the action. The objection was premised on the ground that since the land which formed the subject-matter of the plaintiff’s claim is situated at opposite Karmo main-market central gate, a place not designated as urban area in the Federal Capital Territory, only the Area Courts could have jurisdiction over the subject-matter and not the High Court of the Federal Capital Territory where the plaintiff filed the claim.

The matter thereafter came up before Bukar, J. of the Abuja Division of the High Court of the Federal Capital Territory. After taking submissions from learned counsel for the parties as well as from counsel from the Federal Attorney-General’s Chambers, the learned Judge held inter alia, in his ruling delivered on 24th March, 1997:-

“The defendants in their reply admitted that the issue whether customary rights of occupancy exist or not in the Federal Capital Territory, Abuja has been decided before by the Appellate Division of the High Court of the Federal Capital Territory, presided over by two High Court Judges in Wodi v. Jeshy (1982) ABJLR Col. 1 page 75 at 80. In the light of the above decision and in order to avoid conflicting decisions from the same High Court, the matter be referred to the Court of Appeal by way of case stated under Section 259(2) of the Constitution of the Federal Republic of Nigeria 1979 as amended.”

The learned Judge then formulated the following four questions of law for the Court of Appeal to answer in the matter:

“1. Whether by the combined effect of Section 49(1) of the Land Use Act Section 1(3) of the Federal Capital Territory Act and Section 261(2) of the Constitution of the Federal Republic of Nigeria 1979 as amended, abolished customary right of occupancy in the Federal Capital Territory.

2. Whether there is need to designate specific areas within the Federal Capital Territory as rural or urban areas if answer to question one is positive.
3. What is the status of occupiers or holders of such lands by virtue of section 36(1) of the Land Use Act?
4. Who has jurisdiction over the lands within the Federal Capital Territory, is it the Area Courts or the High Courts having regards to the existing laws?”

The above is a brief summary of what transpired in the lower court before the matter came to this court. The defendants at the lower court filed applicants’ brief in this court. The plaintiff filed a respondent’s brief and a number of briefs were filed by some members of the legal profession as amici curiae; and representatives of some bodies considered to be interested parties. The three briefs filed by people considered as interested parties are one from the Honourable Attorney-General of the Federation’s Chambers; another from the Director of Legal Services of the Federal Capital Territory; and the third was filed on behalf of the Abuja Municipal Area Council. Among those filed by members of the Bar invited as amici curiae are respectively one each from Mr. Adetokunbo Kayode and Mr. A.A. lzinyon, S.A.N. At the hearing in this court, Mr. Karima Tunyan, learned counsel for the applicants, as well as Mr. Uye Ogedegbe, learned counsel for the respondent were present and presented the case for their respective clients. Also present to address the court are Mr. Izinyon, SAN, and Mrs. J. O. Adesina from Mr. Kayode’s chambers.

On question No. 1, Mr. Karima Tunyan, learned counsel for the applicants, referred to the provisions of section 1(3) of the Federal Capital Territory Act (Cap. 128, Laws of the Federation of Nigeria 1990) and section 261(1) of the 1979 Constitution in both the applicants’ brief filed by him and in his submission before us. He then contended that the two laws only abolished the “radical title” of the rights of the original inhabitants. He contended that the rights of possession and usage of the land previously held by the said original inhabitants still subsist “until adequate compensation is paid to them”. He further submitted that, the provisions of section 49(1) of the Land Use Act (Cap. 202, Laws of the Federation of Nigeria 1990) do not abolish the right of possession of the original inhabitants. He therefore urged us to answer the first question posed in the negative.

Mr. Izinyon, S.A.N. is one of the leading counsel who responded to the invitation of this court for an input as a friend of the court and he in fact filed a brief and made oral presentation before us. He contended both in his brief and in his presentation before us on the question No. 1, that which it appears superficially that section 49(1) of the Land Use Act, section 1(3) of the Federal Capital Territory Act and section 261 (2) of the 1979 Constitution vest the land exclusively in the Federal Government, they do not abrogate the customary rights of occupancy of the original

inhabitants. Although he concedes that by virtue of section 1(3) of the Federal Capital Territory Act all land in Abuja absolutely belongs to the Federal Government, he however submitted that, section 49(1) of the Land Use Act revives the remnant of the right of possession and usage of the original inhabitants.

Mr. C. T. Ushafa, learned counsel for the Abuja Municipal Area Counsel, submitted inter alia, in a brief filed on behalf of his said client, also on question No. 1, that only the “radical title” was divested from the original inhabitants of the land by the aforementioned laws and that the said original inhabitants retain the occupancy right. Reference is made to the provisions of sections 40(1) and 39(1)(a) of the 1979 Constitution relating to the conditions which must be met by government when compulsorily acquiring land and certain enshrined rights of citizens respectively, and it is submitted that the combined effect of those provisions is that, any attempt to construe the provisions of the three laws: viz: Section 49(1) of the Land Use Act, section 1(3) of the Federal Capital Territory Act and section 261(2) of the 1979 Constitution, as having divested the original inhabitants of their possessory or occupationary right when the compensation has not been paid, would run counter to the afore-mentioned provisions of sections 40(1) and 39(1) (a) of the 1979 Constitution. The decision of the Supreme Court in Abioye v. Yakubu (1991) 6 SCNJ 69: (1991) 5 NWLR (Pt. 190) 130 is cited in support of this submission.

Reference is also made to section 4(b) of the Land Use Act which, sets out provisions relating to interim management of land. It is submitted that the import of the provisions of the said section 4(b) is that, it is an enabling law which would justify the grant of “customary occupancy right to the original inhabitants”. This is said to be so because the Land Tenure Law (No. 25 of 1962, Laws of Northern Nigeria 1962) which was the existing law in force in the entire area from which the present Federal Capital Territory was carved out, makes provision for the consideration of the custom of a given locality and payment of compensation in appropriate circumstances in land administration.

Mr. Adetokunbo Kayode has also submitted in his brief on the same question No.1 that, the concept of right of occupancy was introduced by sections 5 and 6 of the Land Use Act. Reference is also made to the provisions of sections 1(2)(a) and 3 of the Local Government (Basic Constitutional and Transitional) Provisions Decree (No. 18 of 1989) as amended by Decree No. 38 of 1989 which provide as follows:

“1(2)(a) There shall be 4 Area Councils in the Mayoralty of the Federal Capital Territory, Abuja as named in second column of Schedule 1 to this Decree …

(3) The Local Government Area Council shall be the only unit in respect of which the Government of a State or the Mayoralty of the Federal Capital Territory, Abuja is empowered, to establish an authority for the purpose of Local Government or Area Council as the case may be.”

He then submitted that, by virtue of the above provisions, the Area Councils in the Federal Capital Territory have the same powers, authority and rights like the Local Government Councils in Nigeria.

Reference is also made to the provisions of section 261 (2) of the 1979 Constitution and it is submitted that the President, or his minister authorised in that regard, has all the powers of the Governor of a State pursuant to section 51 (2) of the Land Use Act and in view of Decree No. 15 of 1989 as amended by Decree No.7 of 1997 which re-established the Area Councils and Local Governments, the chairman of an Area Council and that of a Local Government Council have all the authority and power granted to him by law, including the Land Use Act.

Finally, reference is made to the provisions of sections 49(1) of the Land Use Act and section 1(3) of the Federal Capital Territory Act. It is submitted that the provisions on grant of customary rights of occupancy contained in section 6 of the Land Use Act could apply to the Federal Capital Territory in view of section 51(1) of the Land Use Act. The learned counsel therefore concluded that the answer to the question No. 1 should be in the negative.

The above is a summary of the submissions made on behalf of the applicants and those in support of the view that, the first question ought to be resolved in the negative. The stand of the respondent is as set out in the respondent’s brief and in the oral submission made by Mr. Uye Ogedegbe, learned counsel for the respondent. Similar conclusion is reached in the briefs filed by Mr. M. M. Alkali, learned Director of Legal Services, Federal Capital Territory.

Mr. Uye Ogedegbe submitted in both his brief and in his oral presentation before us that as from 4th February, 1976 when the Federal Capital Territory Act came into force, the ownership of the entire land in question “vest absolutely in the Government of the Federation” by virtue of section 1(3) of the Act. When therefore on 29th March, 1978 when the Land Use Act came into force, the entire land in the Federal Capital Territory was already vested in the Government of the Federation as all deemed customary and statutory rights were extinguished since 4th February, 1976 when the Federal Capital Territory Act came into force. Reference is also made to section 6(3) of the Federal Capital Territory Act which provides for the payment of compensation to the occupants of the land affected. It is submitted that those who failed to ask for compensation as prescribed in that section cannot later complain of failure of the Federal Government to pay them compensation.

It is further submitted that, since by the provision of section 49(1) of the Land Use Act all land held by the Federal Government is excluded from the provisions of the Act, it follows that there was no land in the Federal Capital for which the local government could exercise customary right of occupancy. Any occupier of any land in the Federal Capital Territory without a statutory right of occupancy is therefore said to be living there illegally. The issue of whether the land in the Federal Capital Territory should be designated as rural or urban, is therefore of no effect because section 3 of the Land Use Act does not apply to the Federal Capital Territory. It is finally submitted that, by section 236 of the 1979 Constitution the High Court of Abuja is conferred with jurisdiction in respect of land in Abuja.

The views expressed by Mr. Alkali, learned Director of Legal Services at the Federal Capital Territory, and in his brief are similar to those of Mr. Uye Ogedegbe as already set out above. Apart from emphasizing the provision of section 6(3) of the Federal Capital Territory Act which provides, inter alia, that “Any person who claims any right or interest in any land comprised in the Federal Capital Territory shall submit in writing, particulars of his claims to the Executive Secretary on or before the expiration of a period of twelve months from the date of commencement of the order made under Section 2 of this Act” reference is also made to section 7(1) of the Federal Capital Territory Act. That section provides that “As from the commencement of this Act, no person or body shall within the Federal Capital Territory, carry out any development within the meaning of this Act unless the written approval of the Authority has been obtained by such person or body”. That provision is said to have clearly ousted the powers of any body or Area Councilor person from carrying out any development unless approved by the Authority.

The main issue raised in question No. 1 involves the interpretation to be given to certain provisions of the Land Use Act, the Federal Capital Territory Act and the 1979 Constitution. The Land Use Act, according to its preamble, is:

“An Act to vest all land comprised in the territory of each state (except land vested in the Federal Government or its agencies) solely in the Governor of the State, who would hold such land in trust for the people…”

The Act came into force on 29th March, 1978. Section 1 of the Act provides, inter alia, that:

“…all land comprised in the territory of each state in the Federation are hereby vested in the Governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.”

Section 2(1) (a) of the Act gives exclusive “control and management” of all land in urban areas in the Governor of each state; while all other land is, in section 2(1) (b) of the Act, to be under the “control and management of the Local Government within the area of jurisdiction of which the land is situated”.

The designation of land as urban and non-urban area is a creation of section 3 of the Land Use Act. That section confers on the Governor of each state the power to “designate the parts of the area of the territory of the State constituting land in an urban area” Such designation is to be erected by publication to that effect in the state Gazette.

Section 49(1) of the same Land Use Act exempts land held by the Federal Government from the provisions of the Act. The section provides that:

“49(1) Nothing in this Act shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Act and, accordingly, any such land shall continue to vest in the Federal Government or the agency concerned.”

The Federal Capital Territory Act, on the other hand, is, according to its preamble, “an Act to establish for Nigeria, a Federal Capital Territory”. The Act came into force on 4th February, 1976. The territory is created in section 1(1) of the Act and its area is defined in section 1(2) of the same Act. Section 1(3) of the Act provides as follows:

“1(3) The area contained in the Capital Territory shall, as from the commencement of this Act, cease to be a portion of the States concerned and shall henceforth be governed and administered by or under the control of the Government of the Federation to the exclusion of any other person or authority whatsoever and the ownership of the lands comprised in the Federal Capital Territory shall likewise vest absolutely in the Government of the Federation.”

Provision is made in section 6(1) & (2) of the Act for the method to be followed in the assessment and computation of compensation payable to people dispossessed from the land acquired for the Federal Capital Territory by the Act. Section 6(3) and (4) of the Act provides as follows:

“6(3) Any person who claims any right or interest in any land comprised in the Federal Capital Territory shall submit in writing, particulars of his claims to the Executive Secretary on or before the expiration of a period of twelve months from the date of commencement of the order made under section 2 of this Act or such longer period as the President may, either generally or in relation to any particular claim or claims, prescribe by notice published in the Federal Gazette.

(4) No claim for compensation shall be entertained by the Authority unless a written notice of the claim in accordance with subsection (3) of this section is served on the Authority within the period specified in the said sub-section.”

Finally, section 7(1) of the Act prohibits any person or body from carrying out any development within the meaning of the Act unless the written approval of the Authority has been obtained by such person or body.

It is clear from both the preamble to the Land Use Act and the provisions of section 1 of the said Act that the provisions of the Act are meant to vest all land in the territory of each State, excluding land vested in the Federal Government or its agencies, in the Governor of the State who would hold such land in trust for the people of the State and administered for the use and common benefit of all Nigerians. The proper function of a preamble is to explain certain facts which are necessary to be explained before the enactments contained in the Act can be understood. It is undoubtedly part of the Act and it is a legitimate aid in construing the enactment, particularly when there is an ambiguity or conflicting views as to the true meaning of the enactment in which case the view which fits the preamble ought to be preferred. See Salkeld v. Johnson (1848) 2 Ex. 256 at 283; Powell v. Kempton Park Racecourse Co. Ltd. (1999) A, C. 143; Turquand v. Board of Trade (1886) 11 App. Cas. 286; Odgers’ Construction of Deeds and Statutes. 12th ed pages 6-7; Ogbonna v. Attorney-General of Imo State & Ors. (1992) 1 NWLR (Pt.220) 6-17: and Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275 at 287-288. In line with the view expressed in both the preamble and section 1 of the Land Use Act as set out above, section 49(1) of the same Act specifically excludes the application of the provisions of the Act to title to land held by the Federal Government or any agency of the Federal Government at the commencement of the Act and that such land “shall continue to vest in the Federal Government.”

In the same vein, it is very clear from both the preamble to the Federal Capital Territory Act and section 1(3) of the Act that the territory now known as the Federal Capital Territory was created by the Act as the Federal Capital Territory for Nigeria as from the commencement of the Act on 4th February, 1976. The area also ceased to be a portion of the States from which it was carved out and it would henceforth be governed and administered by or under the control of the Federal Government “to the exclusion of any other person or authority whatsoever”. The ownership of the land comprised therein was vested absolutely in the Federal Government.

The question therefore of the powers conferred on and exercised by the Governor of a State under the Land Use Act being applicable in the Federal Capital Territory will not arise, since it is clear from the objective of the Land Use Act as set out in its preamble and the specific provisions of section 49(1) of the same Act, the provisions of the said Act are not applicable to title to land held by the Federal Government or any agency of the Federal Government. It follows therefore that the provision of section 3 of the Land Use Act which gives the Governor of a State power to designate parts of the area of the territory of the state constituting land as urban area is also in applicable to the land in the Federal Capital Territory.

In line with the provision of section 1(3) of the Federal Capital Territory Act which provides that the area contained in the Federal Capital Territory shall, from 4th February, 1976 when the Act came into force, cease to be a portion of the States from which the entire area was carved out, section 26(1) and (2) of the 1979 Constitution (section 297)(1) & (2) of the 1999 Constitution) the Federal Capital Territory was established and the ownership of all land comprised therein is vested in the Government of the Federal Republic of Nigeria.

Also as already mentioned above, adequate statutory provision is made in section 6 of the Federal Capital Territory Act for the mode of assessing and computing compensation to be paid to those affected by the land acquired for the Federal Capital Territory, Section 6(3) of the Act specifically provides that “Any person who claims any right or interest in any land comprised in the Federal Capital Territory shall submit in writing, particulars of his claims to the Executive Secretary on or before the expiration of a period of twelve months from the date of commencement of the order made under section 2 of this Act”, Sub-section 4 of the section provides that:

“6-(4) No claim for compensation shall be entertained by the Authority unless a written notice of the claim in accordance with subsection (3) of this section is served on the Authority within the period specified in the said sub-section.”

In an effort to further stamp the authority of the Federal Government over the land within the territory, it is provided in section 7(1) of the said Federal Capital Territory Act that “… no person or body shall within the Federal Capital Territory, carry out any development within the meaning of this Act unless the written approval of the Authority has been obtained by such person or body”.

The blunt truth emanating from the various provisions of the Federal Capital Territory Act and section 261 of the 1979 Constitution is that, the land that now constitutes the Federal Capital Territory was compulsorily acquired by the Federal Government for public purposes viz: for the purpose of building a new capital. The law is settled that where land is acquired for public purposes under a statute, as in the instant case, the Government takes such land as of right and no implied contract by the Government to pay compensation can be inferred from the taking. Similarly, claims for compensation for lands acquired by the Government for public purposes under a statute are statutory, and no owner of land so expropriated by statute, is entitled to compensation unless he can establish a statutory right to such compensation: See Oloto v. Attorney-General (1961) All N.L.R. 893 (P.C.): and Sisters of Charity of Rockingham v. The King (1922) 2 A. C. 315.

It is also settled law that a claim for compensation for land compulsorily acquired should be made timeously and in accordance with the provisions of the enabling statute. It follows, therefore that where the prescribed time for making the claim had elapsed without any claim to ownership being made, the land would therefore be deemed to be free from claim: See Ajakaiye v. Lieut Governor Southern Provinces (1929) 9 NLR 1. There is even a presumption, made stronger by the lapse of time between the dates of acquisition and the institution of proceedings that everything was done regularly in pursuance of the statute: and that upon acquisition of the lands, reasonable compensation was paid to the persons entitled thereto: See Oloto v. Attorney-General, supra.

Applying the law as declared above to the facts of the present case, the land in question was acquired under the Federal Capital Territory Act which came into force on 4th February, 1976. It is specifically provided in section 6(3) of the said Act that claims for compensation by persons affected must be filed within 12 months from the date of commencement of the order made under section 2 of the Act. The Act is now over 24 years old and if any of the people, now described as indigenous occupiers, failed to file any claim for compensation within the time specified in accordance with the provisions of the Act, such a person could be presumed not to have any valid claim. I therefore have no doubt in holding that the Federal Government is entitled to hold that no further claimants, apart from those filed within the time prescribed in the Act, are in existence. Similarly, I also hold that all those occupying any portion of the land in the Federal Capital Territory without the consent of the Authority are squatters on such land. Similarly, I believe that whatever customary rights of occupancy the original occupiers of the lands had prior to the acquisition of the entire area ceased to exist as from 4th February, 1976 when the Federal Capital Territory Act came into force.

In conclusion, therefore and for the reasons I already set out above, my answer to question No. 1 is in the affirmative; that is, the customary right of occupancy of the original inhabitants of the lands that now constitute the Federal Capital Territory was abolished as from 4th February, 1976 when the Federal Capital Territory Act came into force.

The point raised in question No.2 is, whether there is need to designate specific areas of the Federal Capital Territory as urban or rural areas. Again as I have already shown above, the idea of designating portions of lands in a State as urban or rural areas is a creation of the Land Use Act. Since I have earlier above held that that provision is inapplicable in the Federal Capital Territory, there is therefore no legal backing at present for compelling the President or his Minister charged with the management of the Federal Capital Territory for making such designations.

What is to be answered in Question No.3 is, what is the status of occupiers or holders of such lands in the Federal Capital Territory by virtue of section 36(1) of the Land Use Act. Section 36 of the Act makes transitional provisions in respect of land not in urban area. Sub-section (1) of the section provides as follows:

“36-(1) The following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this Act held or occupied by any person.”

Again as I have said earlier above, the provision of the Land Use Act requiring that portions of lands in a State should be designated as urban area is not applicable in the Federal Capital Territory. It follows therefore that, the provisions of section 36 relating to transitional provisions in respect to lands not in urban areas are also inapplicable in the Federal Capital Territory.

Finally, the point raised in question No.4 is which court has jurisdiction over the lands within the Federal Capital Territory. The idea of seeking an answer to this question is premised on the division of jurisdiction between the High Court and the Area Court/Customary Court created respectively in sections 39 and 41 of the Land Use Act. Jurisdiction is conferred on the High Court in section 39 in respect of lands in urban areas while the Area Courts and Customary Courts are conferred with jurisdiction to entertain claims in respect of lands in non-urban areas. There have been numerous decisions of the Supreme Courts in which this decision of jurisdiction between the High Court and Area Court/Customary Court is affirmed. One of such decisions is Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130, (1991) 6 SC NJ 69, supra.

The point which must be made clear is that all the decisions in question are in respect of the interpretation to be given to the provisions of sections 39 and 41 of the Land Use Act, But since it has been clearly shown above that the provisions of the Land Use Act requiring the State Governor to delimitate portions of the lands in a State as urban as against non-urban areas are inapplicable in the Federal Capital Territory, the division of jurisdiction between the High Court and the Area Court/Customary Court in the Federal Capital Territory will therefore not arise. It follows therefore that the appropriate court having jurisdiction in land matters in the Federal Capital Territory is the High Court of the Federal Capital Territory by virtue of section 236 of the 1979 Constitution since it has been shown that there is no customary right of occupancy in the Federal Capital Territory and that section 41 of the Land Use Act is also inapplicable in the Territory. The jurisdiction of that court however, is subject to the provisions of section 230(1) (q) and (r) of Decree No. 107 of 1993 (now section 251 of the 1999 Constitution) whereby the Federal High Court would assume jurisdiction where the Government of the Federation or any of its agencies is a party to the action.

In final conclusion and for the reasons set out above, (1) My answer to question No. 1 is in the affirmative. (2) My answer to question No.2 is that there is no legal backing compelling the President or the Minister charged with the management of the Federal Capital Territory to designate any part of the Territory as urban area. (3) My answer to question No.3 is that the provisions of section 36 of the land use act relating to transitional provisions in respect to lands not in urban areas are inapplicable in the Federal Capital Territory; and (4) My answer to question No.4 is that the High Court of the Federal Capital Territory is the court conferred with jurisdiction to entertain claims in respect of lands in the Federal Capital Territory, subject, however to the provisions of sections 230(1)(q) & (r) of Decree No. 107 of 1993 (now section 251 of the 1999 constitution).

In view of the constitutional importance of this case, I consider it unnecessary to saddle any particular party with the burden of bearing the costs in this court. I therefore make no order on costs.

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Other Citations: (2000)LCN/0674(CA)