Nigeria Engineering Works Ltd V. Denap Limited (2001)
LAWGLOBAL HUB Lead Judgment Report
KALGO, J.S.C.
This appeal is from the decision of the Court of Appeal Port Harcourt, delivered on 17th July, 1997. Originally, there were two separate suits filed in the High Court Port Harcourt which were later consolidated into one. In the first Suit No. PHC/121/86, the 1st respondent as plaintiff claimed against the appellant for:
(1) “A declaration of the plaintiff’s statutory right of occupancy to the piece or parcel of land lying and situate at Trans-Amadi Industrial Layout 1, Port Harcourt, and known as plot 51B Trans-Amadi Industrial Layout 1, Port Harcourt.
(2) N100,000.00 (one hundred thousand Naira) being general damages for trespass.
(3) A perpetual injunction restraining the defendant by itself, its servants, agents or otherwise howsoever from entering the plaintiff’s said property or ever interfering with the plaintiff in its possession, occupation, use and enjoyment of its said property”
The 1st respondent as plaintiff then filed a statement of claim which was served on the appellant as defendant. In the statement of defence to the 1st respondent’s action the appellant in paragraph 5 (f) and (g) averred as follows:-
(f) “That the interest, estate and claim of the plaintiff having been determined by operation of law by their failure to develop within two (2) years was given legal clothing vide the Rivers State of Nigeria Official Gazette No.17 in vol.18 of 29th May, 1986.
(g) That after the determination of the plaintiff’s interest in plot 51 Trans-Amadi Industrial Layout, Port Harcourt by operation of law, the Rivers State Government issued in the favour of the defendant and in respect of Plot 51 (hereinafter referred to as the “plot in dispute”) a certificate of Occupancy No. 61 Ref: RSG 003555 of 21st September, 1985. This Certificate of occupancy shall be relied upon at the hearing of this case.”
It is apparent therefore that the appellant’s defence to the 1st suit was that the 1st respondent’s Certificate of Occupancy was revoked by the Rivers State Government and a new one was issued to the appellant in respect of the land in dispute. The 1st respondent thereafter got a copy of the Official Gazette where the revocation was published and thereafter filed the 2nd suit No. PHC/326/86 in which the 2nd respondent, the Attorney-General of Rivers State alone was made a defendant. In that suit, the 1st respondent as plaintiff claimed per the writ of summons for:
(i) “A declaration that the purported revocation of the plaintiff’s right of occupancy existing in plot 51B Trans-Amadi Industrial Layout Port Harcourt (as evidenced by certificate of occupancy dated 23rd March, 1982 and registered as No.23 at page 23 in volume 99 of the Lands Registry in the office at Port Harcourt) as contained in Government Notice No.86 dated 30th April1986 and published in No. 17, volume 18 of the Official Gazette of Rivers State of Nigeria dated 29th May, 1986 is null and void; and
(ii) A declaration that the plaintiff’s certificate of occupancy of the aforesaid Plot 51B Trans-Amadi Industrial Layout 1, Port Harcourt dated 23rd March, 1982 and registered as No. 23 at page 23 in volume 99 of the Lands Registry in the office at Port Harcourt is still valid and subsisting and has been so valid and subsisting at all times material to this suit.”
From the above, it is very clear that the 1st respondent was the only plaintiff in both suits and the two suits are inter alia dealing with the validity or otherwise of the two certificates of occupancy; the first granted to the 1st respondent in 1982 and the second granted to the appellant in 1986. They were therefore properly consolidated. The case proceeded to trial and at the end of it, the learned trial Judge Tabai, J. (as he then was) found for the plaintiff (now the 1st respondent) in the following terms:-
(a) “A declaration that the purported revocation of the plaintiff’s right of occupancy existing in Plot 51B Trans-Amadi Industrial Layout 1, Port Harcourt as contained in Government Notice No. 86 dated 30th April, 1986 and published as No. 17 vol. 18 of the Official Gazette of Rivers State of Nigeria dated 29th May, 1986 is null and void
(b) A declaration that the plaintiff has the statutory right of occupancy to plot 51B Trans-Amadi Industrial Layout 1, Port Harcourt;
(c) A declaration that the plaintiff’s certificate of occupancy of the aforesaid plot 51B Trans-Amadi Layout 1, Port (sic) dated 23rd March, 1982 and registered as No. 23 at page 23 in volume 99 of the Lands Registry Port Harcourt is still valid and subsisting;
(d) A perpetual injunction restraining the defendants by themselves, their servants agents or otherwise howsoever from entering the plaintiffs’ said property or ever interfering with the plaintiff’s possession, occupation, use and enjoyment of its property; and
(c) N10,000.00 general damages against the 2nd defendant for trespass.”
The appellant was the 2nd defendant in the consolidated suits. The appellant appealed to the Court of Appeal against this order. The Court of Appeal heard the appeal, dismissed it and affirmed the decision of Tabai J. The appellant again appealed to this court.
In this court, the appellant and the 1st respondent filed their respective written briefs and exchanged them between themselves. The 2nd respondent did not file any brief at all and did not take part in the appeal before us.
The learned counsel for the appellant raised, in his notice of appeal, four grounds of appeal touching on fair hearing and jurisdiction which have not been canvassed in the lower courts. He sought leave of this court to argue the grounds and leave to do so was accordingly granted. He filed a brief in which the following issues were formulated for the determination of this court thus:
“1. Whether the Court of Appeal was not in error for affirming the judgment of the Rivers State High Court which adjudicated over the instant proceedings in which the Hon. Attorney-General of Rivers State was not properly party to be sued and in which the proper party is Governor of Rivers State was omitted and if answered in the appellant’s favour, what is the consequence for determining such a serious dispute without the inclusion of the proper and necessary party
- Having regard to the provisions of section 1(2)(a)&(b) of Cap. 137 LFN 1990 i.e Federal Military Government (Supremacy and Enforcement of Powers) Act. Whether the High Court and indeed the Court of Appeal had any jurisdiction to inquire into the act of revocation of plaintiff’s certificate of occupancy done pursuant to an Act of National Assembly to wit: the Land Use Act Cap 202 LFN 1990”
- Having regard to the foregoing i.e. the non-joinder of proper and indeed necessary parties and the ouster of jurisdiction of the High Court by Cap. 137 LFN, could it be said, regard being had to section 5(2) of the Land Use Act, that the revocation of plaintiff’s title was illegal, null and void and the title in appellant’s name invalid
The 1st respondent also set out three issues in his brief which read:-
(i) Whether the Federal Military Government (Supremacy and Enforcement of Powers) Act Cap. 137 Law of Nigeria 1990 ousted the jurisdiction of both the High Court and the Court of Appeal to adjudicate on the 1st respondent’s claim against the appellant under the Land Use Act 1978.
(ii) Whether the Court of Appeal was right in confirming and affirming judgment of the trial High Court that the purported revocation of the 1st respondent’s right of occupancy was null and void. (iii) whether despite the appearance of the Attorney-General of Rivers State as a party, the non-joinder of the Military Governor of Rivers State per se vitiated the proceedings in the trial High Court and the Court of Appeal.
It is very clear to me that the three issues formulated by the appellant in his brief of argument are very similar in contents to those three issues set out by the pt respondent in his brief. I shall therefore adopt the issues formulated by the appellant for the determination of this appeal.
Before discussing the issues in this appeal, it appears to me reasonable in the circumstances to set out briefly the antecedents of the whole case. The facts of the case are simple and straight forward. Before 1981, Plot 51 Trans-Amadi Industrial Layout, Port-Harcourt, was in the possession and control of Raleigh Industries Limited which held the Certificate of Occupancy No.278 granted to it by the Rivers State Government in respect of the plot. On the 11th of June 1981, the then Government of Rivers State, acting under s. 28 of the Land Use Decree (now Act) revoked the said certificate of occupancy and divided the said plot 51 into two – plot 51A and plot 51 B. Plot 51 A was re-granted to Raleigh Industries Nigeria Limited and plot 51 B granted to the 1st respondent Denap Limited, on application for the grant. The 1st respondent was subsequently given a statutory certificate of occupancy dated 26th March 1982 and registered as No. 23 at page 23 in volume 99 of the Land Registry in the office at Port-Harcourt in respect of the plot. The 1st respondent did not make any improvement in the land up to 1985. On the 21st September, 1985, the appellant was granted a Certificate of Occupancy No. 61 by the Rivers State Government in respect of the original plot 51 Trans-Amadi layout, Port-Harcourt which included the 1st respondent’s plot 51 B. Consequently, the 1st respondent could not continue his fencing works on his plot 51 B and the appellant’s staff drove away all the 1st respondent’s workers from the site. The 1st respondent as plaintiff filed the first action No. PHC/121/86 against the appellant.
Parties filed their pleadings and in the statement of defence of the appellant, the 1st respondent discovered that the then Military Governor of the Rivers State has revoked its certificate of occupancy for plot 51 B. As a result of this discovery the 1st respondent instituted the second action No. PHC1328/86 in which the Attorney-General of the Rivers State was the only defendant. The two cases were then consolidated and the appellant (defendant in the first case) and the Attorney-General of Rivers State (defendant in second case) were made defendants. This briefly is the background to this case.
I shall now proceed to consider the issues raised by the appellant in the appeal ad seriatim.
ISSUE 1:
This issue raised the question of whether the Attorney-General of Rivers State sued as a defendant in the consolidated suit is a proper party to this case pursuant to the provisions of the Land Use Act Cap. 202 Laws of the Federation of Nigeria 1990.
The learned Senior Advocate of Nigeria for the appellant submitted in his brief that since the 1st respondent was complaining about the revocation of his certificate of occupancy in respect of plot 51 B, he is bound to sue the appropriate authority which actually revoked the certificate. It was wrong, he argued, to assume in this case that the deed or misdeed of the “Governor” is attributable to the Attorney-General of Rivers State. Learned counsel contended that under the Land Use Act S. 28, the “Governor” or “Military Governor” is the only repository of the statutory power of revoking a certificate of occupancy and since the office of the “Governor” or “Military Governor” is a corporation Sole created by statute, there was nothing which stopped the 1st respondent from suing him. The office of the Military Governor of Rivers State or its successor in office actually revoked the 1st respondent’s certificate of occupancy. The learned Senior Advocate of Nigeria further argued in his brief that though the Attorney-General is the Chief Law Officer of the State and has statutory and constitutional powers to represent the Government or any of its departments or agency in any suit before the courts, he cannot be sued as a defendant where the act complained of is the exclusive responsibility of the officer concerned not being the Attorney-General. Therefore, learned counsel submits, the only person to be sued in this case was the Military Governor of Rivers State who was the transgressor in the revocation of the certificate of occupancy concerned and not the Attorney-General as was done in this case. He cited in support the cases of Aromire v. Awoyemi (1972) All NLR 101 (Reprint) 105 at 111; Fawehinmi v. NBA (No.1) (1989) 2 NWLR (Pt. 105) 494 at 550; Green v. Green (1987) 3 NWLR (Pt. 61) 480 at 493.
Before completing his argument on this issue in his brief learned counsel referred to five decided cases dealing with revocation of certificates of occupancy by State Governors and in which (the Governors of the States concerned were sued as the proper and necessary defendants since the statutory responsibility to revoke a right of occupancy under the Land Use Act was vested in them and not any body else. These cases are:- Chief R. Q. Nkwocha v. Governor of Anambra State (1984) 1 SCNLR 634; Governor of Kaduna State v. Dada (1986) 4 NWLR (Pt. 38) 687; Kanada v. Governor of Kaduna State (1986) 4 NWLR (pt. 35) 361 and Titiloye v. Olupo ( 1991) 7 NWLR (Pt. 205) 519.
He finally submitted that the Attorney-General of Rivers State was not a proper party to this case as he had no interest in the claims therein and would not be affected by the result.
The learned counsel for the 1st respondent submitted in this issue, in his brief, that the Attorney-General of Rivers State was properly sued as defendant at the trial of this case and that the non-joinder of the Military Governor of Rivers State as a party did not occasion any miscarriage of justice. He further contended that the Attorney -General as the Chief Legal Officer of the State can be sued for any action or mis-action of the State by any person aggrieved and is in addition to his powers under the Constitution to represent any government officer including the Governor of a State involved in any civil proceedings before a court of law. He cited the cases of Paul Erokoro v. Government of Cross River State and Anr (1991) 2 NWLR (pt.185) 322 at 336; Governor of Gongola State v. Tukur (No. 2) (1987) 2 NWLR (Pt.56) 308.
Learned counsel also submitted in the brief that the powers granted to the Military Governor under s. 28 of the Land Use Act are part of the executive powers of the State and in exercising the powers, he is considered to be acting for and on behalf of the State in its official capacity. He cited the case of Adigun v. A-G. Oyo State (1987) 1 NWLR (Pt.53) 678 at 705 and submitted that since powers can be delegated by the Governor to any other public officer in the State, they are not private or personal powers only attached to or exercisable only by, the Military Governor. He pointed out that s. 28 (6) of the Land Use Act shows clearly that these powers can be delegated by the Military Governor to any public officer in the State. Therefore, learned counsel submitted, the powers of the Military Governor to revoke the Certificate of Occupancy of any person in a State under the Land Use Act, as in this case, are public and not private powers and are exercised by virtue of the office of the Military Governor. He cited in support the cases of A.G. of Ogun State v. A. G. of the Federation (1982) 1- 2 SC 13 at P. 86; Umesi v A.G. of Imo State (1995) 4 NWLR (Pt.391) 552. Counsel further contended that the act of revocation of the appellant’s certificate of occupancy even though carried out by the Military Governor of Rivers State pursuant to s. 28 of the Land Use Act was done in his official capacity and is regarded as the Act of the Rivers State Government for which the Attorney-General may properly be sued in court. Counsel therefore submitted that although the Military Governor of Rivers State may be a desirable party in this case, it was not necessary to make him one, as the case can effectually be determined without him. He cited in support the cases of Opara v. Dowell S. (Nigeria) Limited (1995) 4 NWLR (pt. 390) 440; Peenok Investments Ltd v. Hotel Presidential Ltd. (1982) 12 SC 1; L.S.P.D.C. v. Foreign Finance Corporation (1987) 1 NWLR (Pt. 50) 413 at 438. Learned counsel also pointed out in his brief that since the appellant’s contention was that his certificate of occupancy was valid but was alleged to have been revoked by the Military Governor, it was incumbent upon him to join the Military Governor as a defendant or as a witness in the case. He referred to the case of Osho v. Foreign Finance Corporation & Anor (1991) 4 NWLR (pt. 184) 157. Finally, the learned counsel submitted in the brief that the Attorney-General of Rivers State was a proper party in this case and that even if the Military Governor was a desirable party failure to join him as a defendant, was an irregularity which does not vitiate the proceedings. And therefore, counsel submitted, the proceedings of the trial court and the Court of Appeal in this case were properly conducted as they both had jurisdiction to do so.
The substance of issue one in the appellant’s brief is that the Court of Appeal was wrong in affirming the decision of the trial court, in which the Attorney-General alone was sued as a defendant instead of the Governor of Rivers State and what then is the consequence of determining the case without including the Governor as a party to the suit.
Let me start by observing that this was a consolidated suit in which the parties were: Denap Limited (Plaintiff) v. Attorney-General of Rivers State and Nigeria Engineering Works Limited and the (defendant). This means that the Attorney-General was the 1st defendant in the suit. The 2nd defendant was the holder of the original certificate of occupancy in respect of plot 51 Trans-Amadi Industrial Layout 1, Port-Harcourt which was the land in dispute. The only relief claimed against the Attorney-General as 1st defendant was in respect of the revocation of the certificate of occupancy for plot 51B Trans-Amadi Industrial Layout granted to the plaintiff/1st respondent. The main contention of the learned counsel for the appellant is that the power to revoke the statutory right of occupancy or any holder of land under the Land Use Act is that of the Governor of the State concerned and that any complaint against the exercise of that power must be made directly against the Governor and not Attorney-General or anyone else. Learned counsel cited many decided cases in support to which I shall refer later in this judgment.
Section 1 of the Land Use Act Cap. 202 of Laws of the Federation 1990 (hereinafter referred to as the Act) provides:-
“1. Subject to the provisions of this Act, 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 accordant with the provisions of this Act”
(Italics mine)
Under s. 5(1) (a) of the Act, the Governor has the power to grant a statutory right of occupancy to any person in respect of any land in the State. Under s. 28 of the said Act, the Governor has the power to revoke any right of occupancy, granted to any person for overriding public interest, which interest is defined under that section. Where the revocation was not in accordance with the provisions of the Act, such revocation can be set aside as invalid, null and void. See Osho & Anor v. Foreign Finance Corporation & Anor (1991) 4 NWLR (Pt. 184) 157.
From the provisions of s. 1 of the Act set out above, it is very clear that all land in the State is “vested in the Governor” who shall hold it “in trust and for the use and common benefit of all Nigerians” . From this, it is very clear to me that the powers vested in the Governor by the Act in dealing with the land entrusted to him is a public and not private power, which he must exercise for the use and common benefit of the Nigerian public. The Governor is no doubt the chief Executive of the State and all powers exercisable by him under any law for and on behalf of the people are necessarily by virtue of his office and are, as such, public acts. In the consolidated suit of Attorney-General of Ogun, Bendel and Borno States v. Attorney-General of the Federation and 2 Ors, (1982) 1-2 SC 13 at 86 this court in considering the provisions of the Public Order Act 1981, and the powers of the Military Administrator thereunder, held per Idigbe JSC that:-
“Power which is another form of legal right is either public or private. Public powers” are those vested in a person as an agent or instrument of the functions of the State ….. and private powers, on the other hand, “are those which are vested in persons to be exercised for their own purposes and not as agent of the State (see Salmon: JURISPRUDENCE 12th Edition pages 229 – 230 Chapter 42). When a statute confers a power to the holder of an office it is a public power; and then unless the contrary intention appears from or in the statute, the power may be exercised only virtute officii (i.e. by the holder of the office and by his successor-in-office or the holder of the office for the time being).
I entirely agree with and accept this interpretation and find it applicable and apt to the situation in this case. The power to revoke any statutory right of occupancy under s. 28 of the Act was granted to the Governor in his official capacity and it is therefore a public right the exercise of which constitutes a public act in the public interest. It is not and cannot be a private act in the interest of the person of the Governor himself.
In the exercise of the powers by the Governor under the Act, the Governor was acting for and on behalf of Nigerians directly under his administration and therefore on behalf of his State Government. His act is therefore the public act of his government for which he can properly be sued in his official capacity. I am not in complete agreement with the learned counsel for the appellant when he submitted in his brief on page 13 that:-
“the statutory responsibility placed upon the Governor, makes him suable in his official capacity thereby displacing or completely removing the necessity for suing the Attorney-General who generally acts or is sued on behalf of the State Government”
(Italics mine)
I agree that the Governor can be sued in his official capacity but I do not agree that, that completely removes the necessity of suing the Attorney-General. It is however clear from the above submission of learned counsel that he is not disputing that the Attorney-General acts for and is generally sued on behalf of the State Government. Therefore if, as I held earlier, that the exercise of power by the Governor of Rivers State under S.28 of the Act is a public act of the Government of the Rivers State, the Attorney- General of Rivers State was a proper party in the case under consideration. He is the Chief Law Officer of the State and is as much interested in the outcome of the plaintiff/1st respondent claim. I also agree with the opinion of Tobi JCA which he expressed in Erokoro v. Govt. of Cross River State (supra) at page 336 where he said:-
“I turn to 2nd respondent the Attorney-General of the State. He is not only the head of the Ministry of Justice but also the Chief Legal Adviser of the Government. He is basically responsible in Law for Government actions and inactions. He is the mouth piece of the Government as far as the law is concerned. He is Government’s Chief spokesman on the law … In civil matters affecting Government; the Attorney-General plays a controlling role in the prosecution process. See Governor of Gongola State v. Tukur (No.2) (1987) 2 NWLR (pt.56) 308.”
I entirely agree with the learned counsel for the respondent when he said in his brief at pages 29-30 that:-
“The act of revocation can quite legitimately be regarded as an act of the State just as the act of the Military Governor can also be considered as the act of the State being the Chief Executive Officer of the State. The non-inclusion of the Military Governor in any proceedings challenging the validity of such an act cannot therefore render such proceedings null and void or make the courts incompetent to completely adjudicate on the matters in question, particularly if the Attorney-General was made a party in such proceeding.”
In Green v. Green (supra) this court held that:-
“The non-joinder of a desirable party either by failure of the parties or the court to join suo motu will not be taken as a ground for defeating an action nor does it rob the court of jurisdiction to entertain the action. See Oloriode v. Oyebi (1984) 1 SCNLR 390; Ekpere & 1 .ors v. Iyiegbu & Ors (1972) 1 All NLR 220.”
I have carefully studied all the decided cases cited by learned counsel for the appellant on the issue including the five cases he has listed in his final submission and found that none of those cases is on all fours with the instant case and none of them has decided the issue of the necessity of making the “Military Governor” or the Governor of the State concerned, a necessary party in the revocation of a right of occupancy case like the one under consideration. And sections 176, 191, 251 and 267 of the 1979 Constitution which were mentioned by the learned counsel for the appellant in his argument here, do not appear to me to be relevant to this issue. But it is now well settled and as decided by this court in Ransome Kuti v. A.-G. of the Federation (1985) 7 NWLR (pt.6) 221; Ezomo v. A.-G. Bendel State (1986) 4 NWLR (Pt.36) 448 at 459, that the Attorney-General is a defendant or a nominal defendant in civil cases in which the Government is sued. In this case, the action of the Governor Virtute officii as a public officer, which makes it a government act, was being challenged in court. This makes the Attorney-General a proper defendant to the action.
For all what I said above, I shall answer this issue in the affirmative. This makes it unnecessary for me to consider the second limb of the issue and I say nothing about it.
ISSUE 2:
The only question raised by this issue is whether the provisions of section 1(2)(a) and (b) of the Federal Military Government (Supremacy and Enforcement of Powers) Act (Cap. 137 Laws of the Federation 1990) (hereinafter called Decree No. 13 of 1984), ousted the jurisdiction of the trial court, and the Court of Appeal in entertaining the subject matter of this case.
The relevant provisions read:-
“1(2) It is hereby declared also that –
(a) for the efficacy and stability of the government of the Federal Republic of Nigeria; and
(b) with a view to assuring the effective maintenance of the territorial integrity of Nigeria and the peace, order and good government of the Federal Republic of Nigeria-
(i) No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to any Act or Law and if any such proceedings are instituted before, on or after the commencement of this Act the proceedings shall abate, be discharged and made void,
(ii) the question whether any provision of Chapter IV of the Constitution has been, is being or would be contravened by anything done or proposed to be done in pursuance of any Act or Law shall not be inquired into in any court of law and accordingly, no provision of this Constitution shall apply in respect of any such question.”
(Italics mine)
This Act, was in fact called Decree No 13 of 1984 and was no doubt intended to oust the Jurisdiction of Nigerian courts in entertaining any complaints against any action of the Military Government which took over the administration of the country on the 31st of December, 1983. The Decree took effect from the 17th of May 1984, and the Constitution referred to therein was the 1979 Constitution. In the preamble to the Act, the Federal “Military Government” re-affirmed its supremacy by reference to the Constitution (Suspension and Modification Decree) (now Act) No.1 of 1984 in which it suspended parts of that Constitution and rendered null and void the jurisdiction of courts to entertain any challenge to their actions and stated that the provisions of a Decree shall prevail over the Constitution.
Learned counsel for the appellant in his brief referred to s. 1 of Decree No. 55 of 1992, and submitted that the provisions of the Act are still subsisting and valid and that the ouster of the court’s jurisdiction under the Act is still effective. He therefore contended that since the act complained of in this case, is the exercise of the powers by the Military Governor under s 28 of the Land Use Act, the ouster provision applies and the trial court and the Court of Appeal had no jurisdiction to inquire into it.
Learned counsel for the respondent on the other hand submitted in his brief that both the trial court and the Court of Appeal had jurisdiction to entertain the matter as they did, and there was no provision in any statute which expressly ousted their jurisdiction in this matter. Counsel further pointed out that in fact s. 39 of the Land Use Act expressly confers on the High Court the jurisdiction to deal with any question concerning land, the subject of a statutory right of occupancy under the Act, and that s. 236 of the 1979 Constitution confers unlimited jurisdiction to the High Court to inquire into the civil rights and obligations of any person. He went through a series of decided cases of this court and the Court of Appeal to support his submission.
As this is the first time, this issue of ouster of jurisdiction was being raised in this case, I consider it reasonable to state the legal position in this matter as perceived by the courts. It is well settled that the courts jealously guard their jurisdiction and any signal of ouster of jurisdiction in any statute must be scrupulously examined and would not be construed, without any express provision, to extend beyond its ordinary meaning. This is the general attitude of superior courts on ouster provisions. See Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt. 82)280 at 294-295; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 688. Agwuna v. A.G. of the Federation (1995) 5 NWLR (pt. 396) 418 at433; lmasuen v. Justice Amissah & Ors. (1996) 8 NWLR (Pt. 467) 452.
For the sake of clarity, let me again repeat the relevant provisions of Decree 13 of 1984 now under consideration. It states in s. 1(2)(b)(i) “With a view to assuring the effective maintenance of the territorial integrity of Nigeria and the peace, order and good government of the Federal Republic of Nigeria:-
(j) No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to any Decree or Edict and if any such proceedings are instituted before, on or after the commencement of this Decree, the proceedings shall abate, be discharged and made void”
(Italics mine)
As I said earlier, the purport of this Decree is to prevent, restrict or control the courts from exercising any jurisdiction or inquiring into anything done under any Decree or Edict of the Federal or State Military Government. Therefore it is very essential for the courts to determine whether the act complained of comes within the provisions of the Decree or Edict before the ouster of jurisdiction can apply in any particular case. See A.G. of the Federation v. Sode (1990) 1 NWLR (Pt. 128) 500. This is also true even where the validity of the ouster provision is not in dispute because the court has the jurisdiction to determine whether the action complained of is one that the ouster provision was intended to protect. See A.G. Bendel State v. Agbofodor (1999) 2 NWLR (pt. 592) 476. N.F.A v. Panalpina World Transport (Nig.) Ltd & Ors. (1973) 8 NSCC 282.
The general principle of law on the construction of statutes ousting the jurisdiction of court is that the ordinary meaning of the provisions of the statute must be applied so long as such provisions are clear, plain, unambiguous and unequivocal. The language of the statute must also be carefully and critically examined and scrutinized in such a way as not to be extended beyond its least onerous meaning unless there are express words to justify such extension. See A.G. Bendel State v. Agbofodoh (supra), Salami v. Chairman L.E.D.B (1989) 5 NWLR (Pt.123) 539.
I have carefully read the provisions of s. 1(2) (b) (i) of the Decree 13 of 1984, and it appears to me that the provisions are clear and unambiguous, and given the ordinary meaning, they will have the effect of ousting the jurisdiction of the courts once the act complained of was done pursuant to any Decree or Edict of the then Military Government. There is no doubt that the act complained of in this case was made pursuant to the provisions of S. 28 of the Land Use Decree (now Act) of 1978. But it must be admitted that the said Land Use Decree or Act was promulgated in 1978 by the then Federal Military Government under the Obasanjo regime. It is common ground that, that regime came to an end on the 1st of October, 1979 when the civilian regime under President Shagari took over.
Land Use Act, which was Decree No. 6 of 1978, commenced operation on the 29th of March, 1978. The Federal Military Government (Supremacy and Enforcement of Powers) Act, which was Decree No. 13 of 1984 came into operation on the 17th of May, 1984. There was nothing in the 1984 Decree (now Act) to show that the Decree or any part of it, was to have come into operation on a date earlier than the commencement date stated therein. If it is intended that any part of the Decree should come into operation on a date earlier than the date of commencement of the Decree itself, provision to that effect would have been made in clear terms. In the absence of any such provision in the said Decree, any contention that the exercise of a power under s. 28 of the Land Use Act (Decree No.6 of 1978) is directly affected by the provisions of S.1(2)(b) (i) of Decree No 13 of 1984, is a great misconception and utterly wrong. In my view, such way as to extend them beyond its onerous meaning, when there is no specific provision to that effect. It is also my respectful view that since the Land Use Act was promulgated by the then Federal Military Government and took effect in 1978, and the Federal Military Government (Supremacy and Enforcement of Powers) Act was promulgated by another Military Government in 1984, and there was no provision in the latter expressly making its provisions applicable to the former, Section 1(2)(b) (i) of Decree 13 of 1984 cannot apply to the Land Use Act. In other words what I am saying is that except where the Federal Military Government (Supremacy and Enforcement of Powers) Act says so expressly, its provisions cannot apply to any Act or Law which was passed before 1984. It did not say so here and so its application must be restricted to all Acts or laws passed in or after 1984. And so any reference to any “Decree or Edict in s. 1(2)(b) (i) of the Act or Decree 13 of 1984, must mean only “Decrees or Edict’ Act or Law promulgated by the Federal Military Government which took effect on 3lst December, 1983 and no more. The Land Use Act cannot in my judgment be any such Decree or Act and so the provisions of s. 1(2) (b) (i) or Decree 13 of 1984 cannot apply to it. I therefore find that the provisions of S. 1(2) (b) (i) of the Federal Military Government (Supremacy and Enforcement of Powers) Act (Cap.137 Laws of the Federation of Nigeria 1990) did not apply to the Land Use Act (Cap. 202 of Laws of the Federation of Nigeria 1990) and that the trial High Court and the Court of Appeal had jurisdiction to hear this case as they did. This issue therefore fails and is answered in the affirmative.
ISSUE 3:
This issue depends to a large extent on issues 1 and 2 above. It talks about the joinder or non-joinder of proper party to the case, the ouster of jurisdiction and the effect of the provisions of s. 5 (2) of the Land Use Act on revocation of appellant’s right of occupancy.
I have already found in issue 1 that the Attorney-General of Rivers State was properly sued as defendant to this suit. But I also found that the Military Governor of Rivers State may be desirable though not a necessary party to this action since he only acted in his official capacity. I have also found in issue 2 that the jurisdiction of the trial High Court and the Court of Appeal which heard and determined this case was not ousted by Decree 13 of 1984. What remains of issue 3, is the effect of S. 5 of the Land Use Act on the appellant’s right of occupancy.
S. 5 (2) of the Land Use Act provides:-
“Upon the grant of a statutory right of occupancy under the provisions of subsection (1) of this section, all existing rights to the use and occupancy of the land which is the subject of the statutory right of occupancy shall be extinguished”.
This subsection is very clear and unambiguous. The only reasonable interpretation which can be given to it is that a grant of statutory right of occupancy by the Governor extinguishes all rights existing on the land, the subject of the right of Occupancy at the time of the grant. This court has said so in many decided Cases. See Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 416; Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 255 at 279, Titiloye v. Olupo (1991) 1 NWLR (Pt. 205) 579. But this statement is not automatic in all cases and cannot be swallowed hook, line and sinker. This is particularly so where there was an earlier grant as in the present case. Where there is an existing earlier grant, any later grant inconsequence of the exercise of the power of revocation under s. 28 of the Land Use Act, must be done properly and in accordance with the provisions of the Act. The powers of the Governor to revoke any right of occupancy must be exercised in the overriding interest of the public and more importantly the holder of the right of occupancy being revoked must be notified in advance of the revocation. The notice to the holder must state the reason or reasons for the revocation and this will give the holder the opportunity to make any representation he or she wishes to make. Where the notice was not given or notice given was inadequate or not given in compliance with the provisions of the Act, the act of the exercise of revocation under s. 28 of the Act will be null and void. See Osho v. Foreign Finance Corporation (supra), where Obaseki JSC in considering the validity of the exercise of revocation of right of occupancy by a Military Governor under s. 28 of the Land Use Act had this to say an page 187 of the report:
The purpose for which the power of revocation of a right of occupancy was conferred on the Military Governor of a State has been clearly set out in the Land Use Act. Any revocation for purposes outside the ones prescribed even though ostensively for purposes prescribed by the Land Use Act is against the policy and intention of the Land Use Act and can be declared invalid and null and void by a competent court of law. The Court of Appeal having found on the evidence that the Military Governor revokes the plaintiff’s right of occupancy not in the manner and for the purposes prescribed by the Land Use Act was perfectly justified to have declared the revocation invalid, and null and void”.
This fully applies to the situation in this case and I adopt it accordingly. Where proper and adequate notice was given to the holder as required by the Act, his right of occupancy shall be extinguished on receipt of such notice. See s. 28 (6) and (7) of the Land Use Act. By the provisions of S. 28 (6) and (7) of the Land Use Act, notice must be given to the holder before the revocation of his right of occupancy and the service of the notice must be in accordance with the provisions of section 44 of the said Act. Both the trial court and the Court of Appeal have found on the pleadings and evidence that no such notice was given to the 1st respondent in this case, before the revocation of its right of occupancy and that was why they decided in this case, to set aside the grant of the statutory right of occupancy to the appellant. I entirely agree with them and find that the provisions of s. 5(2) of the Land Use Act is not applicable to the situation of this case. This issue must also fail and I also answer it in the affirmative.
Finally I find no merit in this appeal and that no special circumstances were shown why the concurrent findings of the trial court and the Court of Appeal will be interfered with. I according dismiss the appeal in its entirety with N10,000.00 cost to the 1st respondent.
SC.163/1997