Savannah Bank Of Nigeria Ltd & Anor V. Ammel O. Ajilo & Anor (1989) LLJR-SC

Savannah Bank Of Nigeria Ltd & Anor V. Ammel O. Ajilo & Anor (1989)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

This appeal deals with the interpretation and application of some of the provisions of the Land Use Act 1978. Since the promulgation of the Act by the Military Administration of General Obasanjo in 1978, the vast majority of Nigerians have been unaware of its revolutionary effect.

They have been unaware that the Act swept away all the unlimited rights and interest they had in their lands and substituted them with very limited rights and rigid control of the use of their limited rights by the Military Governors and Local Governments.

This appeal is probably one of the earliest of contested matters that will bring the revolutionary effect of the Act to the deep and painful awareness of many. The experience of disbelief and the ultra sensitivity to the irritating thoughts of loss of freedom to use one’s property without exploitative government control exhibited by the appellants’ counsel notwithstanding the fact remains that we must all appreciate the true legal position and bring it to the knowledge of the beneficiaries of rights and interest in land in each State of the Nigerian Federation.

This will enable the steps necessary to bring the law in line with the wishes of Nigerians to be taken. Section 1 of the Act has made no secret of the intention and purpose of the law. It declared that land in each state of the Federation shall be vested in the Military Governor of each state to be held in trust for the use and common benefit of all Nigerians.

The principal question for determination in the appeal before this Court has been well formulated by the appellants. The formulation of the question for determination by the Respondents, though in line with the argument in the briefs filed by the appellants, is not expansive enough to accommodate a broad view of the question. I will therefore, in reference, adopt the question formulated by the appellants for the purpose of this judgment. It reads:

“Whether a person, who is deemed to be a holder of a right of occupancy pursuant to section 34 of the Land Use Act, requires, solely by virtue of that fact, the consent of the Military Governor before he can transfer, mortgage, or otherwise dispose of his interest in the right of occupancy. More specifically, do the provisions of section 22 of the Land Use Act apply to a person who is deemed to be the holder of a right of occupancy pursuant to section 34 of the Act solely by virtue of his being deemed such a holder.” (Italics mine)

Before embarking on an examination of this question, a brief narration of the course of this matter since the initiation of the proceedings in the High Court is desirable. Also, a brief resume of the facts as found by the two courts below and their judgments will be given to enable the complaints of the appellants to be appreciated.

The proceedings leading to this appeal were initiated in the High Court of Lagos State by the Respondents, Ammel O. Ajilo and Ammels Photo Industries Ltd. as plaintiffs claiming against the appellants as Defendants:

“1. A declaration that the 1st Defendant by itself, its servants or agents (including the 2nd Defendant) or acting in any other manner, howsoever, is not entitled to sell, auction, or deal in any other manner with, dispose of, any right, title or interest of the 1st plaintiff in the property situate, lying, and being at No.1 Oyekanmi Street (off Itire Road), Mushin, Lagos, in exercise or purported exercise of a power of sale under a Deed of Mortgage dated the 5th day of September, 1980 and registered as No. 52 at page 52 in volume 1807 of the Lagos State Land Registry, in the office at Lagos (which property is hereinafter called “The Mortgaged Property”) without the prior written consent of the Governor of Lagos State under section 22 of the Land Use Act, 1978, having been first sought and obtained and as no such consent has been sought and obtained.

2. A declaration that the purported mortgage or transfer of the said mortgaged property to the 1st Defendant by the 1st plaintiff is ineffective, null and void and as no power to mortgage the said mortgaged property can be exercised or exercisable by any of the parties thereto as the power to mortgage is subject to the written prior consent of the Governor of Lagos State under section 22 of the Land Use Act, 1978 and no consent has been sought or obtained by either the plaintiff or the 1st Defendant or at all.
3. A declaration that the Public Notice entitled “Auction Notice” dated 24th May, 1985 whereby the 2nd Defendant as agent of the 1st Defendant advertised that the mortgaged property shall be sold by public auction on Friday, 14th June, 1985 on the instruction of the 1st Defendant in exercise or purported exercise of the power of sale of the 1st Defendant under the mortgage deed aforesaid, is invalid, null, and void because no power of sale under that mortgage deed can be exercised or is exercisable on 14th June, 1985 without the prior written consent of the Governor of Lagos State under section 22 of the Land Use Act, 1978 and no such consent had been sought or obtained by the 1st Defendant or at all.
4. An order of perpetual injunction restraining the 1st Defendant by itself, its servants or agents (including the 2nd Defendant) or otherwise however, from auctioning, selling, disposing or otherwise dealing with any rights, title or interest of the 1st plaintiff in the mortgaged property in exercise or purported exercise of a power of sale under the said mortgage deed.”

Pleadings were filed and exchanged and the issues joined were listed for hearing and determination before Hotonu, J. At the hearing, no witnesses were called but two documents, the Deed of Legal Mortgage and the title deed were admitted by consent and marked Exhibits ‘A’ and ‘B’ respectively. Counsel then closed their clients’ cases and addressed the court.

At this juncture, it is necessary to refer to the pleadings to ascertain the issues joined. The statement of claim contains only 10 paragraphs and the statement of defence 5 paragraphs. As evidence was not heard in this matter, I think it necessary for the purpose of this judgment to set the pleadings (the statement of claim and the statement of defence) out in full. The statement of claim reads:

“1. The 1st plaintiff is the managing director of the 2nd plaintiff company;

2. The 2nd plaintiff is a company incorporated in Nigeria under the Companies Act, 1968 with its registered office at 43 Bamgbose Street, Lagos, Lagos State and is a customer of the 1st Defendant Bank.
3. The 1st Defendant is a Bank incorporated as a limited liability company with its registered office at 9/11 Catholic Mission Street, Lagos and having branches throughout Nigeria.
4. The 2nd Defendant is a licensed auctioneer and has been engaged as an auction agent of the 1st defendant to carry out the sale of the mortgaged property mentioned in paragraph 5 infra.
5. By a deed of Legal mortgage dated 5th day of September, 1980, and registered as No. 52 at page 52 in Volume 1807 of the Lagos State Land Registry, in the office at Lagos, the 1st plaintiff as surety mortgaged all his rights, title and interest in the property situate, lying and being at No.1 Oyekanmi Street (off Itire Road), Mushin, Lagos (hereinafter called “the Mortgaged Property”) to the 1st Defendant, the sums secured by that deed of mortgage in respect of Credit Facilities or Advances made by the 1st Defendant to the 2nd plaintiff.
6. The plaintiffs aver that in the Public Notice entitled “Auction Notice” dated 24th May, 1985, the 2nd Defendant as agent of the 1st Defendant! Bank advertised that the mortgaged property shall be sold by public auction on Friday, 14th June, 1985 by 2 p.m. on the instruction of the 1st Defendant in the exercise or purported exercise of a power of sale of the 1st Defendant under the said mortgage deed.
7. The plaintiffs further aver that by and under section 22 of the Land Use Act, 1978, the purported mortgage/transfer of the mortgaged property to the 1st Defendant by the 1st plaintiffs is ineffectual without prior written consent of the Governor of Lagos State, and at all material times no such consent has been sought and obtained by the 1st Defendant;
8. By and under section 22 of the Land Use Act, 1978, the statutory power of sale contained in the said mortgage deed is not exercisable without the prior written consent of the Governor of Lagos State, and at all material times no such consent has been sought or obtained by the Defendants or at all.
9. The plaintiffs aver that in breach of the requirements of section 22 of the Land Use Act, the 1st and 2nd Defendants are planning and are taking steps to sell, auction, assign or dispose of the rights, title and interest of the 1st plaintiff in the mortgaged property and would do so unless restrained by this Honourable Court.
10. The plaintiffs shall found on the following documents at the trial of this case namely:

(a) auction notice dated 24th May, 1985;

(b) copy of Deed of Mortgage mentioned in paragraph 5 supra whereof the plaintiffs claim as per their writ of summons.”

The statement of defence as I said earlier, is comparatively shorter than the statement of claim. It consists of only five paragraphs and reads:

“1. Save and except as are hereinafter specifically admitted, the Defendant deny each and every allegation of fact contained in the Statement of Claim as if each and every such allegation were set out seriatim and separately denied;

2. The Defendants admit paragraphs 1-6 of the Statement of Claim; 3. The Defendants state that

(a) the property at No.1, Oyekanmi Street mentioned in paragraph 5 of the statement of claim was vested in the 1st plaintiff for an estate in fee simple under and by virtue of a deed of conveyance dated the 23rd of December, 1965 and registered as No. 31 at page 31 in Volume 896 of the Land Registry in Ibadan (now in Lagos);

(b) by the operation of the provision of section 34(2) of the Land Use Act 1978 No.6, the said property continued to be held by the said 1st plaintiff as if he was the holder of a statutory right of occupancy issued by the Military Governor of Lagos State with effect from 29/3/78;

4. The Defendants will contend at the trial of this action that the provisions of section 22 of the Land Use Act apply only to rights of occupancy granted by the Military Governor and the said provisions do not apply to rights of occupancy deemed to be granted by the Military Governor.
5. In the premises the contentions of law contained in paragraphs 7, 8 and 9 of the statement of claim are misconceived; Whereupon the Defendants say that the action is frivolous, vexatious and an abuse of the process of the court and ought to be dismissed.”

From the pleadings, the issue is clear. While it is the contention of the plaintiffs/Respondents that the consent of the Military Governor in writing is a prerequisite to any valid transaction pertaining to the mortgaged property, the appellants contend that such requirement pertain to statutory right of occupancy granted by the Military Governor and not to (land vested in the holder of) a statutory right of occupancy deemed issued to him by the Military Governor by virtue of the title to the land and vested in him prior to the commencement of the Land Use Act and section 34(2) of the Land Use Act.

Learned Counsel to the Defendants/appellants made copious references to section 39, section 39(1)(a), section 22, section 34(5) and section 34(2) to throw light on his contention. Learned Counsel for the plaintiffs/Respondents rejected the appellants’ contention. He submitted that the key to the proper interpretation of section 22 is not to be found in section 39 of the Act but can be discovered by reading the Act as a whole against the general intention of the policy behind the promulgation of the Act and the purposes and objectives for which the Act was designed. According to him, the broad interpretation is that section 22 applies both to holder of certificate of occupancy actually granted by the Military Governor and deemed holders of certificates by virtue of section 34(2) of the Act. The narrower interpretation of section 22 limits its application to holders of statutory right of occupancy actually granted whereas the broad interpretation extends its application to the holders of deemed statutory right of occupancy. He made copious references to sections 1, 2, 34(2), 36(4), 40, 5(1)(a) and 41 of the Act. He also referred to sections 39(a) and 21(b), 45, 48 and 34(4) of the Act.

The learned trial Judge gave detailed consideration to all the submissions of counsel made to him in his well considered judgment wherein he granted all the declarations and reliefs claimed. In the penultimate paragraph of his judgment, he said:

“Having considered the Act as a whole, I think I should be bound by the case of Nahman v. Odutola and also Supreme Court decisions in the case of Labaran Nakyauta v. Ibrahim Maikima (supra). I am of the opinion that failure to obtain the required consent of the Military Governor under Section 22 of the Act has rendered the deed of mortgage Exhibit A null and void ab initio and the mortgage transaction illegal. Accordingly, the power of sale under the mortgage cannot be exercised.”

He then proceeded to make the declaration and grant the order of injunction claimed.

The Defendants were dissatisfied with the decision and they appealed to the Court of Appeal on two grounds. The grounds were:

“1. The learned trial Judge erred in law in holding as follows:

‘I am of the opinion that failure to obtain the required consent of the Military Governor under section 22 of the Act renders the deed of mortgage null and void ab initio and the mortgage transaction illegal’

Particulars of Errors

(a) The provisions of section 22 of the Act do not apply to land such as the one involved in this case where the holder is a deemed holder of a statutory right of occupancy under section 34 of the Act;

(b) In the premises the deed of mortgage in this case is not null and void.

2. The learned trial Judge erred in law in failing to observe that statutory provisions are not to be construed as displacing or abolishing vested rights save only to the extent to which their provisions clearly displace or abolish such rights. ”

The Court of Appeal heard the written and oral submissions of counsel to the parties and considered them in a well considered judgment which it delivered when dismissing the appeal.

In dismissing the appeal, Kolawole, J.C.A., said in the penultimate paragraph of his lead judgment:

“The logical conclusion following from this view is that every rights holder whether under section 34 or section 36 of the Land Use Act requires the consent of the Military Governor before it can transfer, mortgage or otherwise dispose of his interest in the right of occupancy. In other words, section 22 or 21 of the Act applies to every rights holder pursuant to section 34 or 36 of the Act.

The result of all that I have discussed is that the judgment of Hotonu, J. dated 12th February, 1986 is unassailable.”

Concurring with Kolawole, J.C.A., Ademola, J.C.A said:

“The transaction here is a mortgage deed. It comes within the provision of section 26 of the Act which says thus:

‘Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provision of this Decree is null and void.”

In effect it requires that the deed of mortgage Exhibit A must show on its face that the approval under section 22 has been sought and granted otherwise it is void of no effect.”

Also concurring, Nnaemeka-Agu, J .C.A. (as he then was) said:

“That the Governor has authority over deemed right is just beyond question by section 38 of the Act.”

The Defendants were still dissatisfied. They were not satisfied with the decision of the Court of Appeal. They then brought this appeal against that decision on the same grounds as those they set out against the decision of the trial Judge, Hotonu, J. They read:

“1. The Court of Appeal erred in law in holding that the failure to obtain the consent of the Military Governor under section 22 of the Act rendered the deed of mortgage null and void and the mortgage transaction illegal.

Particulars Of Error

(a) The provisions of section 22 of the Act do not apply to land such as the one involved in this case where the holder is a deemed holder of a statutory right of occupancy under section 34 of the Act;

(b) In the premises the deed of mortgage in this case is not null and void.

2. The Court of Appeal erred in law in failing to observe that statutory provisions are not to be construed as displacing or abolishing vested rights save only to the extent to which their provisions clearly displace or abolish such rights. Accordingly deemed grants of statutory right of occupancy under section 34 of the Land Use Act do not require the consent of the Military Governor.

Naturally arising from these grounds of appeal, the issue formulated by the appellants is only one and it reads:

“Whether a person who is deemed to be the holder of a right of occupancy pursuant to section 34 of the Land Use Act, requires, solely by virtue of that fact, the consent of the Military Governor before he can transfer, mortgage or otherwise dispose of his interest in the right of occupancy. More specifically, do the provisions of section 22 of the Land Use Act apply to a person who is deemed to be the holder of a right of occupancy pursuant to section 34 of the Act solely by virtue of his being deemed to be such a holder”

The Respondents formulated the question for determination differently.

They identified what they termed the “Real Question for Determination.”

This, they stated in their brief as follows:

“Whether the provisions of section 22 of the Land Use Act should not be read to include a holder of a right of occupancy in whom any land was vested prior to the commencement of the Act as envisaged by sections 34(2) and 36(2); or a holder whose holding is “deemed to be granted by the Military Governor” as contained under section 39(1)( a) of the Act in order to reflect the clear intention of the Act; in other words, whether the Land Use Act 1978 was enacted to create two types of interest in land ‘which may be obtained by citizens viz: A right of occupancy expressly granted by Military Governors or their agents, local government authorities, which interest is subject to the provisions of the Land Use Act, 1978 as opposed to a right of occupancy deemed granted by the respective Military Governors or their agents- the Local Government authorities, which interest exists outside the Land Use Act, 1978 and is not subject to its provisions.”

While the question formulated by the Respondents arises for consideration, the real question for determination is the question formulated by the appellants.

Put in another way, the question is whether the 1st Respondent required the written consent or consent in writing previously obtained to mortgage his property called the mortgaged property to the 1st appellant having regard to the fact that the property was vested in the 1st Respondent before the commencement of the Land Use Act, 1978 and by virtue of section 34(2) of the Act the 1st Respondent continues to hold the land as if he is the holder of a statutory right of occupancy issued by the Military Governor under the Land Use Act.

Learned Counsel to the appellants, Chief F. R. A. Williams, S.A.N. in amplification of his brief of arguments addressed the court extensively on this question.

Dr. Kusamotu, learned Counsel to the Respondents in reply also addressed the court at length in amplification of his brief.

Professor A. B. Kasunmu, S.A.N., as an amicus curiae on his application addressed the court briefly on the question, pitching his tent on the side of the Respondents’ counsel.

In the course of the address of counsel, the court’s attention was drawn to various sections of the Land Use Act but emphasis was laid on sections 1, 2, 5, 22, 34, 36, 39, and 40. I intend to examine the submissions of counsel separately in dealing with the question of determination.

Chief F. R. A. Williams, in his submission, referred to section 1 of the Land Use Act and placed emphasis on the phrase “subject to the provisions of this Decree.” He then referred to the state of land in the country before the Land Use Act. Before the Land Use Act, land was held either under common law, statute law or customary law. Learned Counsel then urged the court not to presume that there is implied repeal of these laws unless there is an express provision in the Land Use Act which is inconsistent with the old law. He then referred to the book titled Vennion Statutory Interpretation 1st Ed. p. 317. The book emphasised according to him that laws should not be subject to casual change. By analogy he cited the Minerals Act of 1916 which vested the property in Waters of the country in the Crown then. But he contended that still it was held that the law did not destroy the right of the public to fish in the waters. He cited Amachree v. Kallio 2 N.L.R. 108 at 111 per Ross, J. He cited the case of Chief Dick Harry Braide V. Chief Adoki 10 N.L.R. 15 and Adeshina V. Lemonu (1965) 1 All N.L.R. 233 at 235 & 236. He then referred to: Maxwell on Interpretation of Statutes 10th Ed. He conceded that when there is a vesting provision, there is an intention to take away the vested rights or interest formerly held such as interests in fee simple, for life or for a term of years. He contended that the pragmatic approach of this court is to preserve the existing right of customary tenants. He then submitted that section 1 of the Act is subject to the provisions of sections 34 and 36 of the Act. He conceded that the administrative powers in respect of all land are vested in the Governor and contended that there are different schools of thought as to whom the ultimate title to land is vested – the governor or the people.

On vesting he cited the case of Uyovwukerhi V. Afonughe (1976) 5 SC. 84 at 91 per Obaseki where the cases cited above were approved.

Learned Counsel then examined section 34 of the Act subsection by subsection and then drew the court’s attention to subsection 7 which expressly requires the prior consent in writing of the Military Governor to any further sub-division of the land or any transfer of the land. The penal provision in subsection 8 of section 34 is also significant.

Learned Counsel also examined section 36 subsection by subsection and drew attention of the court to the absolute prohibition of any transfer of land to which the section relates. He then asked what the need was to promulgate subsection (5) of section 36 if section 22 applies to deemed grant.

Learned Counsel then submitted that since there are special provisions in section 34 and section 36, the sections should not be governed by the general provisions in section 22 of the Act.

Concluding his oral submissions, learned Counsel adopted all the submissions in his brief.

It is however significant to note the concession made by learned Counsel in his brief on the import of section 38 of the Land Use Act. At page 10 of the brief, learned Senior Advocate and counsel to the appellants submitted thus:

“With respect, the argument regarding the correct interpretation of section 22 of the Land Use Act is not based upon the suggestion that section 34(2) of the Act is to be read as not being subject to the powers of the governor in general. The argument is that a deemed grant under section 34(2) does not come within the scope of the expression “statutory right of occupancy granted by the Military Governor” as used in section 22 of the Act and in other parts of the Act. The provisions contained in section 38 of the Act was put there to ensure that no argument will be advanced to the effect that the powers of revocation conferred on the Military Governor by section 28 of the Act are inapplicable to deemed grants arising under the transitional provisions contained in sections 34 and 37. It is accordingly submitted that the correct inferrence to be drawn is that but for the provisions of section 38 of the Act, it may have been arguable that deemed grants are not subject to the powers of revocation conferred on the Governor by section 28 of the Act. In short, section 38, far from showing that there is no distinction between deemed grants and actual grants, confirms the distinction by providing that for the purposes of section 28, the distinction shall make no difference expresso unius est exclusio alterius. The distinction without difference is however confined to section 28 and not the rest of the Act.”

I shall, in the course of the judgment show that this concession determines the appeal against the appellant.

That there is a distinction between a deemed grant and an actual grant goes without saying. That the same incidence flows from both grants also goes without saying.

In origin, a deemed grant is different from an actual grant. A deemed grant under the Land Use Act is a grant by operation of law. An actual grant is a grant made by the activities of the Military Governor under the Land Use Act.

Both the actual and the deemed grants being grants the deemed grants being regarded by the law as if made by the Military Governor also become subject to legal controls as if granted by the Military Governor. Having made this short interim observation, I proceed to the submissions of Dr. Kusamotu.

Dr. Kusamotu submitted that a deemed grantee is like an actual holder of a grant of a statutory right of occupancy and is subject to the provision of section 22 of the Land Use Act. Failure to obtain the prior consent in writing of the Military Governor to any transaction, transfer, mortgage etc. renders the transaction null and void. He then cited:

(1) Paul Dickson & anor. v. Solicitor-General of Benue – Plateau State (1974) 5 S.C. 21

(2) Alhaji Labaran Nakyauta v. Alhaji Maikima (1977) 6 SC. 51.

He referred to and dealt with the provisions of sections 1, 2, 5, 15, 21, 26, 34, 36,39,41,40 and 50 of the Land Use Act. He considered the policy and intention of the Act and observed that the Act is a revolutionary legislation, its main aim being to change the land tenure law of Nigeria. It did not provide a half way house or create two parallel land holding systems.

Professor A. B. Kasunmu, in his contribution asks the Court to examine the scheme of the entire legislation. He submitted that sections 1 to 33 tend to unify the land law of both the north and south. It did not leave any room for one system to operate in the north and another to operate in the south as is claimed by the appellants.

This case has once more highlighted the unnecessary difficulties created by lack of precision and inelegant drafting of statutes. The Land Use Act as a major legislation affecting the fortunes of every Nigerian leaves a lot to be desired in its drafting. The Land Use Act is an existing law and, as I declared in another forum earlier on last year, has come to stay with us. Laudable as the intention of the Act declared in the provisions of section 1 is, it is my opinion that it cannot be realised as long as the administrative provisions which deprive all Nigerians of the use and benefit of the land vested in the Military Governor remains. It is for Nigerians through their representatives (elected and non elected) to give detailed examinations to these provisions and make the necessary amendments to enable the Act achieve its laudable purpose.

The question for determination in this appeal can only find an answer in the correct interpretation of section 34(2), section 22 and section 26. This however cannot be achieved by taking these sections in isolation and interpreting them without regard to other sections of the Act.

Although the 1st plaintiff/Respondent by the tenor of the Land Use Act committed the initial wrong by alienating his statutory right of occupancy without prior consent in writing of the Governor, the express provisions of the Land Use Act makes it undesirable to invoke the maxim ‘ex turpi causa non oritur actio’ and the equitable principle enshrined in the case of Bucknor-v. Inlaks Ltd. (1980) 8-11 S.C. 1.

I will start the further consideration of this question by examining the meaning of ‘deemed’ grant of statutory right of occupancy in section 34(2). The section did not use the term ‘deemed’. The words are ‘as if and quite appropriately describe the nature of the interest. In full, section 34(1) and (2) of the Land Use Act reads:

1. Part VI. Transitional and other related provisions. The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Decree;
2. Where the land is developed, the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor.” (Italics mine)

The words “as if” are clear enough to equate deemed grant with actual grant.

It is conceded that the 1st Respondent is the holder of a statutory right of occupancy in respect of the mortgaged property by virtue of section 34(2) of the Land Use Act. The 1st Respondent is therefore deemed to be the holder of a statutory right of occupancy issued or granted by the Military Governor. The word “deemed” freely used by the parties to describe and qualify the interest held by the 1st Respondent in the mortgaged property has many meanings but the meaning that is most appropriate in the circumstances, in my view, is one of the definitions in Stroud’s Judicial Dictionary 4th Edition Vol. 2 page 716. It reads:

“(4) When a thing is to be “deemed” something else, it is to be treated as that something else with the attendant consequences but it is not that something else (per Cave, J. R. v. Norfolk County Court 60 L.J. Q.B. 380); therefore, an ATTORNMENT, within s.6 of the Bills of Sale Act 1878 (c.31) and which thereby “shall be deemed to be a BILL OF SALE” requires registration to perfect its validity as though it were a bill of sale, it is not a bill of sale, and therefore, need not be (indeed it could not be). In accordance with the form prescribed by s.9 of the Bills of Sale Act 1882″

It is therefore my opinion that “deemed grant” is to be treated as a grant by the Military Governor with all the attendant consequences and subject to the provisions in the Act for the control by the Governor of the use and transfer of the right.

The words of section 34(2) of the Act are clear and unambiguous and so should be given their ordinary meaning. The discovery of the intention of the law maker as conveyed by the words of the statute is what the search is all about when the court embarks on statutory interpretation. Thus, the deemed grant of statutory right of occupancy so declared by section 34(2) of the Land Use Act is totally different from the grant of statutory right of occupancy made or issued by the Military Governor under section 5(1) of the Act. Section 5(1) of the Act reads:

“It shall be lawful for the Military Governor in respect of land whether or not in an urban area

(a) to grant statutory right of occupancy to any person for all purposes.”

Holders of statutory right of occupancy granted by the Military Governor are subject to the provisions of section 22 of the Act which read:

“It shall not be lawful for the holder of a statutory right of occupancy granted by the Military Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sub-lease or otherwise howsoever without the consent of the Military Governor first had and obtained.”

These are provisions which are of great import in the instant appeal.

The contention of the appellants is that this section has no binding effect on holders of deemed grant under section 34(2) primarily because that section did not expressly say so and also because that section imposed restriction on alienation of land to which subsection (5)( a) or ( 6)

(a) applies without the prior consent in writing of the Military Governor.

To ascertain the correct interpretation of the provision of section 34(2) vis that of section 22 of the Act, the Land Use Act is to be read as a whole.

Every clause of a statute is to be construed with reference to the con of other clauses of the Act so as far as possible to make a consistent enactment of the whole statute. [See the case of Lincoln Collete (1595) 3 Co. Rep 586 at p. 596 Canada Sugar Refining Co. Ltd. v. R. (1898) A.C. 735 per Lord Davey at p. 741.] In this connection, if section 34(2) is read together with sections 38, 22,28,20 and 15, the construction that will emerge will in my view be that section 22 applies to any alienation by the holder of a deemed grant of a statutory right of occupancy.

A statute should not be given a construction that will defeat its purpose. To exclude a holder of a deemed grant of statutory right of occupancy, the interpretation would defeat the purpose of the Act particularly the provision of section 22. The construction ut res magis valeat quam perat must be given. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we shall avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that the legislature would legislate only for the purpose of bringing about an effective result [Nokes v. Doncaster Amalgamated Collieries Ltd. (1940) A.C. 1014 per Viscount Simon, L.c. at 1022].

Where alternate constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system [Shannon Realities Ltd. v. Ville de St. Michel (1924) A.C. 185 per Lord Shaw at pp. 192 and 193].

The holder under the provision in section 34(2) of the Act does not come either under the restriction of subsection (8) of section 34 or be made to suffer the penalty under subsection (9) of section 34. These are special provisions.

If the Military Governor can revoke the right of occupancy held by virtue of section 34(2) in exercise of his powers under section 38 and section 28, it follows that section 22 of the Act a breach of which attracts revocation under section 28 applies to a deemed grant.

It is necessary at this juncture to refer to the provisions of section 38 and section 28 of the Act. Section 38 reads:

“Nothing in this part shall be construed as precluding the exercise of the Military Governor or as the case may be the Local Government concerned of the powers to revoke, in accordance with the applicable provisions of this Decree the rights of occupancy, whether statutory or customary in respect of any land to which this part relates.”

It is my opinion that the rights of occupancy to which the provisions of section 38 of the Act refers are those deemed to have been granted by the Military Governor under sections 34(2), (5)(a) and (6)(a) of the Act and those deemed to have been granted by section 36(2) of the Act. The provisions of sub-sections (1) and (2)(a) of section 28 read:

1. It shall be lawful for the Military Governor to revoke a right of occupancy for overriding public interest;
2. Overriding public interest in the case of statutory right of occupancy means

(a) the alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease or otherwise of any right of occupation or part thereof contrary to the provisions of this Decree or of any regulations made thereunder. ”

The consequence of a breach of section 22 of the Act is therefore expressly stated or stipulated as a revocation. Section 20 of the Act, however provides an alternative in the form of penal rent without prejudice to the power of revocation. Subsection 1 of section 20 reads:

“If there has been a breach of section 22 or 23 the Military Governor may in lieu of revoking the statutory right of occupancy concerned demand that the holder shall pay an additional and penal rent for and in respect of each day during which the land the subject of a statutory right of occupancy or any portion thereof or any buildings or other works erected thereon shall be or remain in the possession, control or occupation of any person whomsoever other than the holder.”

It should be observed that these penal provisions are directed at the holder principally to emphasise that his action of alienating the property is unlawful. Sections 26, 34(8) and 36(5) and (6) of the Act however seriously affect the right and interest of the transferee. Section 26 reads:

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

It is my opinion that all these restrictive and penal provisions are designed to emphasize and reinforce the superior position in which the Decree or Act has placed the Military Governor in respect of Land matters in each State of the Federation. Although section 1 vested, subject to the provisions of the Act, all lands comprised in the territory of each state in the Federation in the Military Governor of that state and made him a trustee to hold the land in trust and to administer it for the use and common benefit of all Nigerians in accordance with provisions of the Land Use Act and section 2(1)(a) placed all land in urban areas under his control and management, the penal provisions were designed to strengthen his hand in carrying out his duties of control and management. Section 1 makes it clear that it is all land comprised in the territory of each state with the exception of land vested in the (Head of the Federal Military Government) President to which section 49 refers is vested in the Military Governor of each State. Section 1 reads:

“Subject to the provisions of this Decree all land comprised in the territory of each State in the Federation are hereby vested in the Military 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 Decree.”

Chief Williams observed quite rightly that the Military Governor is only a trustee and does not become the beneficial owner of the land. He contended and I agree with him that section 2 of the Act vests in the Military Governor no more than administrative or management powers over land in urban areas. It is clear that in view of the wordings of section 1 of the Act, the powers of control and management vested in the Military Governor and Local Governor by section 2 of the Act are not outside but as set out in the Act. While the interest vested in the Military Governor is unstated in the Act, the interest a Nigerian can lawfully acquire from the Military Governor is scaled down to statutory right of occupancy. In terms of known interests in land, the quantum of a statutory right of occupancy remains unclear. To the extent that it can only be granted for a specific term (see section 8 of the Act) it has the semblance of a lease. Also to the extent that a holder has the sole right to and absolute possession of all the improvements on the land during the term of a statutory right of occupancy, a holder does not enjoy more rights than a lessee under common law. When therefore section 34(2) of the Act converted the interest held by an owner to a statutory right of occupancy the Act reduces him to the position of a tenant subject to the control of the state through the governor. As a tenant, he is bound by the implied and express terms of the tenancy. As one of the terms stated in the Act is that a holder requires prior consent in writing of the Military Governor to any alienation, I would answer the question for determination in the affirmative.

It is observed and rightly pointed out by learned Counsel to the appellants that section 39(1) of the Act in conferring jurisdiction on the High Court in respect of certain proceedings conferred jurisdiction in respect of:

“proceedings in respect of any land the subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted by him under this Act and for the purpose of this paragraph proceedings include proceedings for a declaration of title to a statutory right of occupancy. ”

But having regard to section 38 of the Act the non-mention of deemed grant in section 22 of the Act does not affect the application of the section to deemed grant. In view of section 40 of the Act, the emphasis on the jurisdiction of the High Court over deemed grants of statutory right of occupancy in section 39(1) was necessary. Section 40 reads:

“Where on the commencement of this Act proceedings had been commenced or were pending in any court or tribunal (whether at first instance or on appeal) in respect of any questions concerning or pertaining to title to any land or interest therein such proceedings may be continued and be finally disposed of by the court concerned but any order or decisions of the court shall only be as respects the entitlement of either of the parties to the proceedings to a right of occupancy, whether statutory or customary, in respect of such land as provided in this Decree. ”

It is important to observe that the Military Governor has the control and management of land in urban areas. Sub-section 1(a) and (b) of section 2 reads:

“as from the commencement of this Act:

(a) all land in urban areas shall be under the control and management of the Military Governor of each State; and

(b) all other land shall subject to this Act, be under the control and management of the local Government within the area of jurisdiction of which the land is situated.”

The control and management of all land in the state, apart from the land vested in the President, Commander-in-Chief of the Armed Forces, is therefore vested either in the Military Governor or the Local Government and while the Military Governor has power to grant statutory right of occupancy in respect of any land [see section 5(1)(a)] the Local Government has power to grant customary right of occupancy in respect of land not in an urban area [see section 6(1)(a) and (b)].

Chief Williams laid great emphasis on the Rule of Statutory Interpretation that tautology should not as a rule be attributed to the legislature. I entirely agree with the Rule. The words of Viscount Simon in Hill v. William Hill (Park Lane) Ltd. (1949) A.C. 530 at 546-577 and the advice of Lewis, J.S.C. in Nasr v. Bouari (1969) 1 All N.L.R. 35 at p. 41 needs to be recalled.

Viscount Simon said:

“Though a parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in the case of an Act of Parliament is not to be assumed. When the legislature enacts a particular phrase in a statute, the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out.” [See Hill v. William Hill (Park Lane) Ltd. (supra)]

In a forthright manner, Lewis, J.S.C. said:

“we must lean against treating the words as surplusage or tautologous and give effect to all the words of the section if that is possible.”

A careful reading of the Land Use Act as a whole and relating the various sections to one another in appropriate cases will disclose no tautology. Likewise, section 34(2) of the Act cannot be read in isolation to relieve the holder of a statutory right of occupancy the consequences of a breach of certain provisions of the Decree including section 22 and section 28 in particular.

In my view and I agree with Chief Williams’ expression of anxiety over the implementation or consequences of the implementation of the consent clauses in the Decree; it is bound to have a suffocating effect on the commercial life of the land and house owning class of society who use their properties to raise loans and advances from the banks. I have no doubt that it will take the whole working hours of a State Military Governor to sign consent papers (without going half way) if these clauses are to be implemented.

These areas of the Land Use Act need urgent review to remove their problem nature. This appeal fails.

I would dismiss it and I hereby dismiss it with N500.00 costs to the respondents.

SC.188/1987