MAJOR SHEHU IBRAHIM V. DR. JUNAID SALIK MOHAMMED(2003)

MAJOR SHEHU IBRAHIM V. DR. JUNAID SALIK MOHAMMED

In The Supreme Court of Nigeria

On Friday, the 21st day of February, 2003

SC.59/1997

RATIO

LAND LAW: INTERPRETATION OF STATUTE IN REGARDS TO STATUTORY RIGHT OF OCCUPANCY

The meaning of this subsection will appear to be clear and unambiguous. It simply means that whenever the appropriate authority grants a statutory right of occupancy to any person in respect of a piece or parcel of land, all rights earlier existing over the same piece or parcel of land shall be extinguished. PER A. KALGO, J.S.C.

LAND LAW: INTERPRETATION OF SECTION 28 OF THE LAND USE ACT ON REVOKING A RIGHT OF OCCUPANCY

It provides under S. 28 that the Governor can only revoke a right of occupancy for “overriding public interest”, which has been defined both in respect of statutory and customary rights of occupancy. If such powers of revocation are to be exercised, the holder of the right of occupancy must be notified in advance. Revocation of a right of occupancy for public purpose or in the public interest does not include the revocation of the right of a grantee for the purpose of vesting it in another. Therefore, since revocation of the grant involves the deprivation of the proprietary right and obligations of a grantee, all the terms and conditions laid down by the Act must be strictly adhered to and complied with. And so for a revocation of a right of occupancy to be valid in Nigeria, it must be made strictly in compliance with s. 28 of the Land Use Act. Also even where the revocation is valid, the grantee is fully entitled to compensation under s. 29(1) of the Act. The above are in my view the necessary safeguards which must be observed in the revocation of a right of occupancy under the Act. Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562. PER A. KALGO, J.S.C.

INTERPRETATION OF STATUTE: RULES IN REGARDS TO THE WORDS OF STATUTE

It has been well established that where the words of a statute are plain, clear, and unambiguous, it is not necessary to read anything into them other than to apply their ordinary meaning. See Nabhan v. Nabhan (1967) 1 All NLR 47; Ogunmade v. Fadayiro (1972) 8 – 9 SC 1. PER A. KALGO, J.S.C.

JUSTICES

SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria

MICHAEL EKUNDAYO OGUNDARE Justice of The Supreme Court of Nigeria

UTHMAN MOHAMMED Justice of The Supreme Court of Nigeria

ALOYSIUS IYORGYER KATSINA-ALU Justice of The Supreme Court of Nigeria

UMARU ATU KALGO Justice of The Supreme Court of Nigeria

SAMSON ODEMWINGIE UWAIFO Justice of The Supreme Court of Nigeria

EMMANUEL OLAYINKA AYOOLA Justice of The Supreme Court of Nigeria

Between

MAJOR SHEHU IBRAHIM Appellant(s)

AND

JUNAID SALIK MOHAMMED Respondent(s)

A. KALGO, J.S.C. (Delivering the Leading Judgment): The respondent in this appeal was the plaintiff in the High Court of Kaduna State Holden at Kaduna, where he sued the appellant and one Hajiya Bahajatu Katsina claiming against them jointly and severally for:-
“1.  A declaration that the plaintiff is entitled to a right of occupancy in and over all the piece or parcel of land measuring approximately 0.688 of an acre situate, lying and being at plot No.7, Road ‘D’, Malali, Kaduna North in the Kaduna State of Nigeria which land is more particularly described and delineated on plan No. NC. LP. 106 attached to the Certificate of Occupancy No. NC.4303 and thereon verged RED and registered as No. NCR 52 at page 52 in volume 10 (Certificate of Occupancy) at the Lands Registry in the office at Kaduna.
2. N20,000.00 damages against the defendants for trespass committed on the said parcel of land.
3. Perpetual injunction restraining the defendants, their agents, servants and/or privies or otherwise howsoever from committing further acts of trespass on the said land.”
Pleadings were filed and exchanged. Parties called witnesses in proof of their respective cases and then filed written addresses at the end of the trial. The learned trial Judge Donli, J. (as she then was) in a considered judgment found for the plaintiff/respondent against the defendants and ordered as follows:-
“1.  The plaintiff is entitled to the right of occupancy in and over all that parcel of land measuring approximately 0.688 of an acre situate, lying and being at plot No.7, Road ‘D’, Malali, Kaduna North, Kaduna State of Nigeria which land is particularly described and delineated on plan No. NC. LP. 106 attached to the Certificate of Occupancy No. 52 at page 52 in Volume 10 (Certificate of Occupancy) at Lands Registry in the office at Kaduna.
2.(a)     N5,000.00 as damages against the 1st defendant for trespass committed on the said land by the construction of a wall.
(b) N10,000.00 as damages against the 2nd defendant for the acts of entering on the said land.
3.    Perpetual injunction restraining both 1st and 2nd defendants, their agents, servants, and for privies or otherwise howsoever from committing further acts of trespass on the land.”
Dissatisfied with this order, the defendants separately appealed to the Court of Appeal. The 1st defendant Hajiya Bahajatu Katsina, abandoned her appeal which was dismissed pursuant to Order 6 rule 10 of the Court of Appeal Rules, 1981. The appeal of the respondent as 2nd defendant was considered by the Court of Appeal and was also dismissed with costs. He then appealed to this court. Here, the parties filed their respective written briefs and exchanged them  between themselves. In the appellant’s brief, the following issues were formulated for the consideration of this court:-
“1.     Whether the Court of Appeal was right when they struck out issue No.2 of appellant’s brief dealing with the application or otherwise of s. 5(2) of the Land Use Act, 1978 to exhibit 1 and exhibit A8 (exhibit A13).
2.     Whether the issue of priority and validity or otherwise of the two Certificates of Occupancy exhibits 1 plaintiff’s title and exhibit A8 (exhibit A13) 2nd defendant’s title over the same piece of land arose for determination in the High Court.
3.     Whether the Court of Appeal was not obliged to determine the validity and priority of the plaintiff’s title exhibit 1 (Certificate of Occupancy issued on 2nd November, 1977 under the Land Tenure Law, Cap. 59) and defendant’s title exhibit A8 Certificate of Occupancy issued on 23rd March, 1988 and exhibit A13 Certificates issued on 29th March, 1988, before determining which of the two parties has a better title to the land in dispute.
4.     Whether the Court of Appeal was right when they held that the plaintiff proved a better title to the plot in dispute No.7, Road ‘D’, Malali Kaduna through exhibit “I” than the 2nd defendant who relied on exhibits “A8” and “A13″.
5.     Whether the Court of Appeal was right when they struck out suo motu ground 4 of the ground of appeal.
6.     Whether the failure of the Court of Appeal to consider defences of standing by, laches and acquiescence raised by the 2nd defendant was a serious misdirection in law and occasioned a miscarriage of justice.
7.     Whether the decision of the Court of Appeal to confirm the award of N10,000.00 damages for trespass against the 2nd defendant was excessive.”
The respondent maintained in his brief that the only (four) issues for the determination of this court in this appeal are:-
“(a)     Whether or not the courts had to consider issues which the appellant had not raised or pressed when he should have done so particularly s.5(2) of the Land Use Act;
(b)     Whether or not the respondent’s first-in-time status in principle entitles the respondent to victory;
(c)     Whether or not the damages awarded were excessive;
(d)     Whether or not the appellant’s equitable defences (particularly “standing by”) were tenable.”
Before considering the issues arising in this appeal, let me briefly state here the facts of the case as disclosed in the pleadings and evidence at the trial. In 1977, the respondent applied for and was granted a statutory right of occupancy by the then Military Governor of Kaduna State in respect of plot No.7, Road ‘D’, Malali Kaduna. A Certificate of Occupancy No. NC.4303, dated 2nd  November, 1977 and registered as No. NCR.52 at page 52, volume 10 at the Land Registry Kaduna was issued to him. It was tendered at the trial and admitted as exhibit 1. The respondent took possession of the plot in 1977 and in 1985, and 1988, he noticed that the appellant and Hajiya Bahajatu Katsina were constructing a building on the  plot. He immediately warned them separately through his counsel to stop but they refused to do so. The respondent filed this action against both of them in the trial court.
At the trial, Hajiya Bahajatu Katsina virtually admitted building a wall on the respondent’s plot but the appellant while denying any  act of trespass, claimed that he bought the land or plot in dispute from one Alhaji Mohammed Ahmed Adam with a partially completed building on the plot at the cost of N500,000.00. He also stated that the plot in dispute was originally allocated to the said Alhaji Mohammed Ahmed Adam in 1976 and that after he (appellant) purchased the plot with the consent of the Military Governor as required by the land Tenure Law, the latter issued him with a Certificate of Occupancy in his own name in respect of the said plot. He rendered his documents of title to the land and they were admitted as exhibits A5 to A13.
Exhibit A8 was a Certificate of Occupancy in the name of the appellant’s vendor, Alhaji Mohammed Ahmed Adam dated 8th March, 1987 and exhibit A13 was a Certificate of Occupancy in the name of the appellant dated 22nd March, 1988 both issued by the Military Governor of Kaduna State in respect of the same plot of  land No.7, Road ‘D’, Malali, Kaduna. I will now consider the appellant’s issues having regard to the grounds of appeal he filed in this appeal.

Issue 1.
This issue is asking whether the Court of Appeal was right to strike out issue No.2 in the appellant’s brief filed before it pertaining to the application of s. 5(2) of the Land Use Act in relation to exhibits 1, A8 and A13. The issue which is on page 319 of vol. 11 of the record of appeal reads:-
“2.     Whether the title of the plaintiff as per exhibit 1 a Certificate of Occupancy under the Land Tenure Law, Cap. 59 was not extinguished with the issuance of a subsequent Certificate of Occupancy on 8th March under the Land Use Act, 1978 (exhibit A8) and later exhibit A13.”
Earlier, on the 22nd June, 1994 (page 325 of record) the Court of Appeal granted the appellant’s application to file an additional ground of appeal which reads:-
“the learned trial Judge erred in law when she held that the plaintiff had a better title to the land in dispute plot 7, Road ‘D’, Malali, Kaduna, because exhibit 1 is first in time to exhibit A8 and A13.
PARTICULARS OF ERROR
(i)     Exhibit 1 is a Certificate of Occupancy issued on 2nd November, 1977 under the Land     Tenure Law, Cap. 59.
(ii)     Exhibit 13 is a Certificate of Occupancy issued on 23rd March, 1988 in favour of 2nd defendant under the Land Use Act, 1978.
(iii)     Exhibit A8 was issued on 8th March, 1978.
(iv)     By the provisions of s. 5(2) of the Land Use Act the title of the plaintiff by exhibit 1 was extinguished with issuance of exhibits A8 and later A13 over the same piece or parcel of land.”
The learned counsel for the appellant submitted that the additional ground of appeal with its particulars fully support the distillation of issue No.2 in the brief before the Court of Appeal. It clearly speaks of exhibit 1 being first in time to exhibits A8 and A13 and that by S. 5(2) of Land Use Act, 1978, the subsequent issuance of exhibit A8 and A13 extinguished the rights created by exhibit 1. Therefore, counsel submitted, the said issue 2 was properly before the Court of Appeal for consideration in the appeal, and the court of appeal was clearly wrong to strike it out as it did.
I have carefully examined the appellant’s additional ground set out above, and it appears to me clearly that although the main ground speaks of the plaintiff having a better title, that is properly tied up with item (iv) of the particulars of error which speaks of extinguishing that title by virtue of the provisions of s. 5(2) of the Land Use Act, 1978. And since the ground of appeal contains some particulars, that ground must be read together with the particulars to make it a complete ground, and must be based on issue in controversy between the parties. See Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt. 67) 787. The issue in controversy here is whether the plaintiff/respondent had a better title by exhibit 1 or whether exhibits A8 and A13 extinguished that title. In this regard, I am of the view that the additional ground of appeal contained all what was required to challenge the title of the plaintiff/respondent and to invoke the interpretation of the provisions of s.5(2) of the Land Use Act, 1978. I therefore find that the issue is very much related to the ground of appeal and that the Court of Appeal was wrong in striking out issue No.2 in the appellant’s brief filed before it in this matter. I answer issue 1 in the negative.

Issue 2
This issue also asks the question whether the issue of the priority and validity or otherwise of the Certificate of Occupancy granted to the appellant and the respondent at different dates over the same piece of land arose for determination in the High court. Looking at the state of the pleadings filed by the parties and the evidence called at the trial, there is no doubt that the fundamental issue before the trial High Court was who between the parties had a better title to the land in dispute. It is evident that the dispute was over one piece or parcel of land, the Certificate of Occupancy granted to the appellant (exhibits A8 and A13) and to the respondent (exhibit 1), were all granted by the same authority and were authenticated documents. Therefore, in order to determine which of the Certificates of Occupancy conferred better title to the holder thereof in respect of the land in dispute, the question of priority or validity as between the Certificates of Occupancy must have arisen at the trial. This was considered by the learned trial Judge in her judgment on pages 231-232 of the record of appeal (vol. 1). I answer issue 2 in the affirmative.

Issue 3
This issue is more or less repeating what was said in issue 2 but applicable to the Court of Appeal has a duty to determine the priority and validity of the parties’ Certificates of Occupancy before deciding which of the parties had a better title to the land in dispute, having regard particularly to the grounds of appeal filed before it challenging the findings of the learned trial Judge to the effect that the respondent had a better title to the land in dispute than the appellant. This duty was discharged when, after reviewing the evidence on record before the learned trial Judge, the Court of Appeal said:
“Therefore from the pleadings and the evidence on record, the finding of the learned trial Judge that the respondent had proved better title through exhibit 1 than the 1st appellant whose title was supported by exhibits A5, A8 and A13 is quite in order.”
I also answer this issue in the affirmative.

Issue 4
This issue now asks this court to determine whether the respondent proved a better title to the plot in dispute than the appellant having regard to exhibits 1, A8 and A13. The court of appeal found that the respondent had proved better title through exhibit 1 than the appellant claiming through exhibits A8 and A13. It is pertinent to observe that this issue is very much connected and related to the issue N0.2 of the appellant in his brief in the Court of Appeal which I earlier found was wrongly struck out by the Court of Appeal. The issue reads:-
“2.     Whether the title of the plaintiff as per exhibit 1 a Certificate of Occupancy under the Land Tenure Law, Cap. 59 was not extinguished with the issuance of a subsequent Certificate of Occupancy on 8th March under the Land Use Act, 1978 (exhibit A8) and later exhibit A13.”
(Italics mine)
This issue raised a question of law. The Court of Appeal came to the decision mentioned above without considering issue 2 above which it struck out as not being supported by any ground of appeal before it. I have earlier found that the Court of Appeal was wrong in striking out the said issue 2. And although Court of Appeal made no pronouncement on it, this court can, notwithstanding, consider the question of law raised in that issue. See Katto v. C.B.N. (1999) 6 NWLR (Pt. 607) 390 at 407; Ukwunnenyi v. The State (1989) 4 NWLR (Pt. 114) 31 at 144.
I have no doubt in my mind that from the argument advanced in the appellant’s brief in issue 4 and the way the issue 2 struck out by the Court of Appeal but now revived was couched, an issue of law was predicated on the application of the provisions of s. 5(2) of the Land Use Act, 1978 (hereafter referred to as the Act). Section 5(2) of the Act provides:-
“Upon the grant of a statutory right of occupancy under the provisions of sub-section (1) of this section, all existing rights to the use and occupation of the land  which is the subject of the statutory right of occupancy shall be extinguished.”
(Italics mine).
The meaning of this subsection will appear to be clear and unambiguous. It simply means that whenever the appropriate authority grants a statutory right of occupancy to any person in respect of a piece or parcel of land, all rights earlier existing over the same piece or parcel of land shall be extinguished. But the nature of such rights must be carefully understood. Learned counsel for the appellant submitted in his argument on this issue in his brief, that the appellant’s grants in exhibits A8 and A13, over the land in dispute were later in time to that of the respondent (exhibit 1) and therefore the rights of the respondent over the same land were thereby extinguished. He relied in support on the decisions of this court in Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 416; Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519 at 530; Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254 at 277, and submitted that in all these cases it was held that the grant of statutory right of occupancy automatically extinguishes all existing rights in respect of the piece of land over which it is granted. He also pointed out that in case of Saude v. Abdullahi (supra) the court went further to say that in order to save the earlier grant the later grant must be expressly set aside. I have carefully studied these cases, and it is abundantly clear to me that the submission of the learned counsel was not quite correct but it must be pointed out that the interpretation of that section in those decisions was obiter dicta which does not bind this court. In Saude v. Abdullahi (supra) the only relevant issue was whether or not the Governor of Kaduna State could have validly revoked the Certificate of Occupancy of a grantee under s. 34(2)(c) of the Land Tenure Law of Northern Nigeria. It was not whether one Certificate of Occupancy had priority over another on the same parcel of land and so the interpretation of S. 5(2) of the Land Use Act did not come into play at all. In the cases of Dabup v. Kolo and Titiloye v. Olupo (supra) although the question of priority of grants was in issue and was considered and  decided, it was only as between a customary right of occupancy granted by a Local Government as against a statutory right of occupancy granted by a State Governor. It is not a decision on the priority of grants of two or more certificates of occupancy granted under the Act in respect of one parcel of land as in this case. The issue was on the powers of the governor to issue a statutory right of occupancy in respect of a piece or parcel of land over which a customary right of occupancy had earlier been granted. In both cases, the decision was that the Governor could validly grant a statutory right of occupancy over a piece of land the subject of a customary right of occupancy without first revoking the customary grant. Section 9(1) and 28(1) of the Act were considered. The question of competing rights of two or more statutory rights of occupancy as in this case did not arise there and although s. 5(2) of the Act was mentioned in the decisions that part of the decisions, must be regarded as obiter dictum. With this distinction therefore, it is my respectful view that all the 3 cases cited by the learned counsel for the appellant in his brief in respect of this issue are not relevant to the circumstances of this case.
The learned counsel for the respondent on the other hand submitted that the respondent’s right of occupancy over the land came earlier in time than that of the appellants and since the former’s grant was not revoked before the latter’s grant, the former (the respondent) had a better title to the land in dispute. This, he said, was on the basic common law principle of first in time and the general legal principle of nemo dat quod non habet. On the last principle, he relied on the cases of Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 528; Olohunde v.Adeyoju (2000) 10 NWLR (Pt. 676) 562; Ogunleye v. Oni (1990) 2 NWLR (pt. 135) 745. Learned counsel also referred to the recent decision of this court in Teniola v. Olohunkun (1999) 5 NWLR (Pt. 602) 280 and finally submitted that under the Land Use Act, the Governor has no powers to grant a Certificate of Occupancy in respect of a piece of land for which there was an existing right of occupancy before such grant over the same land except where such earlier right was revoked under s. 28 of the same Act. Any such grant, counsel further submitted, is invalid, null and void and need not be specifically set aside. Let me now at the expense of repeating myself recount the provisions of section 5(2) of the Act. They read:-
“Upon the grant of a statutory right of occupancy under the provisions of sub-section (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.”
Sub-section (1)(a) of section 5 of the Act, provides that the Governor can grant a statutory right of occupancy to any person for all purposes. And sub-section (2) proceeded to say that if such a statutory right is granted in respect of a piece of land, all rights existing to the use and occupation of the said land, shall be extinguished. It is my respectful view that if this subsection is interpreted literally, it will no doubt go against the grains and the pith and substance of the Land Use Act. The Land Use Act was promulgated as a whole with a view to making land available to all Nigerians irrespective of where they live. It was intended by its provisions to preserve the existing land holdings or ownership created by the existing laws before its commencement of operation. The Act recognises the rights and obligations of the land holdings before it came into operation whether they constituted grant by communities, Local Governments or State Governments (see s. 4 of the Act). That was why the Act gives the whole land in the hands and under  the control of the State Governors for the benefit of the people. It is not the intendment or the intention of the Act that the Governor shall use his powers to grant the land arbitrarily without regard to the existing ownership or holdings granted before the operation of the Act. Furthermore, the Act itself provides some checks and balances which must be observed  before making any grant, the conditions under which such grants can be revoked and what follows after such revocation. It provides under S. 28 that the Governor can only revoke a right of occupancy for “overriding public interest”, which has been defined both in respect of statutory and customary rights of occupancy. If such powers of revocation are to be exercised, the holder of the right of occupancy must be notified in advance. Revocation of a right of occupancy for public purpose or in the public interest does not include the revocation of the right of a grantee for the purpose of vesting it in another. Therefore, since  revocation of the grant involves the deprivation of the proprietary right and obligations of a grantee, all the terms and conditions laid down by the Act must be strictly adhered to and complied with. And so for a revocation of a right of occupancy to be valid in Nigeria, it must be made strictly in compliance with s. 28 of the Land  Use Act. Also even where the revocation is valid, the grantee is fully entitled to compensation under s. 29(1) of the Act. The above are in my view the necessary safeguards which must be observed in the revocation of a right of occupancy under the Act. Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562.
It has been well established that where the words of a statute are plain, clear, and unambiguous, it is not necessary to read anything into them other than to apply their ordinary meaning. See Nabhan v. Nabhan (1967) 1 All NLR 47; Ogunmade v. Fadayiro (1972) 8 – 9 SC 1. But the rules of construction and interpretation of statutes also counsel and in particular cases dictate, that all related provisions of a statute as well as the statute as a whole must be read together. See Matari v. Dangaladima (1993) 3 NWLR (Pt.281) 266; Mobil Oil (Nig.) Ltd. v. F.B.I.R (1977) 3 SC 53; University of Ibadan v. Adamolekun (1967) 1 All NLR 213. It is my view therefore that s. 5(2) of the Act cannot be read in isolation but it must be read together with all related provisions of the Act in order to achieve the intention of law makers.
It is not in dispute that in the instant appeal, the respondent was not notified by the Governor of the intended revocation of his earlier grant exhibit 1 before granting exhibit A8 (A13) to the appellant. This is in clear contravention of section 28(6) of the Act, it was also not shown by evidence that the respondent’s land was required for public purposes or interest. The respondent was not heard before the grant of his land was made to the appellant and no compensation was offered or given to the respondent as required by the Act. It is my respectful view therefore, that under these circumstances the grant of the statutory right of occupancy over the same piece or parcel of land to which the respondent had earlier been granted Certificate of  Occupancy, was invalid, null and void. For a Certificate of Occupancy under the Act to be valid therefore, there must not be in existence at the time the certificate was issued a statutory owner of the land in dispute who was not divested of the existing legal interest to the land prior to that grant. See Olohunde v. Adeyoju (supra).
I have said earlier in this judgment that Saude v. Abdullahi (supra)  has no application or relevance to the issues in this case as far as the interpretation of S. 5(2) of the Act was given in that case; because all what was said there was obita dicta. In Teniola v. Olohunkun (1999) 5 NWLR (Pt. 602) 280, Ayoola, JSC merely reiterated what Obaseki, JSC said in Saude v. Abdullahi and only agreed that where a Governor realises that he made a mistake in the grant or where the grant was obtained by fraud or deceit, the Governor can suo motu correct it. The learned Justice also examined the Native Rights Ordinance, Cap. 105 of Law of Nigeria, 1948, and section 6(3) of the Land Tenure Law of Former Northern Nigeria and agreed with the principle enunciated by Kawu, JSC in Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519 that where statutory right of occupancy was granted over the same land the subject of an existing customary right, the latter is automatically revoked. This same principle was affirmed and accepted in case of Dabup v. Kola (supra) where Olatawura, JSC also agreed with Saude v. Abdullahi that a Governor can at any time correct any error detected in the grant of a right of occupancy. And although the issue of the construction of S. 5(2) of the Act arose in Dabup v. Kola (supra) it was not fully considered in the leading judgment of Olatawura, JSC because according to him:-
“Consequently, to consider the construction placed on S. 5(2) of the Land Use Act by either party at this stage will, in my view, tie the hands of the Judge that will hear the case de novo.”
And although the other learned Justices who sat with him in the panel that heard the appeal gave some interpretation of the section relying on Saude v. Abdullahi (supra) that was not, in my view, a determinant issue in that appeal since a retrial of the case was ordered as there was no conclusive proof that the competing rights of occupancy covered the same area. Therefore that construction does not bind this court.
From all what I have said above, I am firmly of the view that the decision of this court in Saude v.Abdullahi (supra) and the other cases I have considered along with it are not and will not be affected by the decision in this appeal. In this appeal, the Court of Appeal found, and I agree with them, that the respondent having produced his duly authenticated and properly executed document of title exhibit 1, and with the evidence in support, has discharged the duty placed on him as claimant to the plot in dispute, No.7, Road “D’, Malali, Kaduna. For the construction I placed on the provisions of S. 5(2) of the Act above, I find that the latter rights of occupancy exhibits AS and AI3 granted to the appellant were valueless and not worth the papers on which they were written. I answer this issue in the negative.

Issue 5, 6 and 7
I shall briefly deal with issues 5, 6, and 7 together. It is my respectful view, that these issues are of no consequence to the outcome of this appeal, because the resolution of any or all of them does not and will not affect the result of this appeal in any way.
Issue 5 questions whether the appellant’s ground 4 of his grounds of appeal was properly struck out by the court of appeal. It was alleging possible loss of memory on the part of the trial Judge at the time the judgment was delivered – five months after the address of parties. It was very clear that in the brier in the Court of Appeal no argument was advanced on this ground and no issue was distilled from it. The Court of Appeal found this to be the case, and I agree with them. It is settled that, any ground of appeal on which no issue was raised in a party’s brief and is not related to any issue is deemed to be abandoned by the party concerned. It cannot be argued in the appeal unless it is related to an issue formulated in the brief. This is not the case here. See Eholor v. Osayande (1992) 6 NWLR (Pt. 249) 524 at 534. I therefore find that the Court of Appeal was right in striking out the ground of appeal No.4 before it.
Issue 6 raised the question of standing-by, laches and acquiescence on the part of the respondent and raised by the appellant as defences not being considered by the Court of Appeal. On the contrary, the Court of Appeal in its judgment considered the defences as raised by the appellant in pages 364 – 366 of the record, and came to the conclusion with which I agree that the defences are not available to the appellant at the trial court. This was because there was undisputed and unchallenged evidence on record that the respondent acted immediately on receiving news of the trespass to the land by the appellant in May, 1988. This issue also fails and is answered in the negative.
Issue 7, deals with whether the damages of N 10,000.00 awarded by the trial court and affirmed by the Court of Appeal was not excessive. The respondent claimed N20,000.00 as damages at the trial court but was only awarded N10,000.00. There was clear and undisputed evidence of trespass by the appellant on the respondent’s land. And the respondent having been in possession of the land in dispute, is entitled to damages for trespass. The appellant did not on record show either here, or in the Court of Appeal that the award of N10,000.00 was made on wrong principle of law or that there was any injustice in making the award. There is therefore no reason why the Court of Appeal or this court will interfere with the award. See Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623. In the circumstances, I find that the Court of Appeal was right in confirming the award of N 10,000.00 to the respondent. The award is not excessive. This issue also fails and I answer it in the negative.
In the final analysis, I find that the decision of the Court of Appeal, confirming that of the trial court is correct and I affirm it. I dismiss the appeal of the appellant and award N10,000.00costs in favour of the respondent and against the appellant.

S. M. A. BELGORE, J.S.C.: I agree that this appeal has no merit and for the reasons in the judgment of Kalgo, JSC. I also dismiss it with costs of N10,000.00.

M. E. OGUNDARE, J.S.C.: I have the advantage of reading in advance the judgment of my learned brother Kalgo, JSC just delivered. I agree with the conclusions reached by him and the reasoning leading thereto. I also agree with the judgment of my learned brother Uwaifo, JSC in this matter, a preview of which I had eer now. In view of the number of appeals that have recently come before us in which the provisions of section 5(2) of the Land Use Act, Cap. 202, Laws of the Federation of Nigeria, 1990 have come for consideration and other views expressed in previous cases on the issue, I think I need to say a few words of mine.
Section 5(2) of the Act provides:
“(2)     Upon the grant of a statutory right of occupancy under the provisions of sub-section (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished. ”
(Italics mine).
Many a holder of statutory right of occupancy have argued that upon being granted a statutory right of occupancy by the governor, all existing rights, including the rights of a previous holder of a right of occupancy, statutory or customary, to the use and occupation of the land are extinguished. That is the argument of the appellant in this case. The plaintiff (who is respondent in this appeal) relied on a  Certificate of Occupancy issued to him by the Governor under the Land Tenure Law of Northern Nigeria. The said Certificate of Occupancy, exhibit 1 was dated November 2, 1977 and was registered at Kaduna Registry in 1977. While exhibit 1 was still subsisting, the Military Governor granted a right of occupancy evidenced by a Certificate of Occupancy dated March 8, 1987 (exhibit A8) in favour of Alhaji Mohammed Ahmed Adam, in respect of the same land. Alhaji Adam assigned his right to the land to the appellant who then got another Certificate of Occupancy from the Military Governor over the same land and dated March 23, 1988 (exhibit 13). The contention of the appellant is that Alhaji Adam’s Right of Occupancy extinguished, by virtue of section 5(2) of Land Use Act, the right of occupancy granted to the plaintiff by the Governor in 1977 under the Land Tenure Law of Northern Nigeria, and that by the Certificate of Occupancy issued to him, he now has title to the land.
The plaintiff/respondent on the other hand maintained that as his Right of Occupancy was not revoked by the Governor (Military Governor), the title to the land remains in him and that the Right of Occupancy granted in 1987 to Alhaji Adam and another subsequently to the defendant/appellant are void.
The appellant has relied on 3 earlier decisions of this court on the matter. These are Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387; Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519 and Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254. I shall consider these three decisions now.
In Saude’s case, the respondent applied for 2 plots of land in the industrial area of Katsina Town. His application was subsequently approved and a Certificate of Occupancy over the two plots of land were issued to him in March and July, 1979. The respondent subsequently commenced development of one of the plots. In respect of the plot under development, the appellant was issued a Certificate of Occupancy in November, 1980. His building plan was approved by the Town Planning Authority. Thereafter the appellant discovered that the respondent had been in possession of the plot (plot 9) and had commenced development on it. This case of double allocation was later discovered by the Ministry of Lands and Survey which, by a letter dated 31st October, 1980, asked the respondent to stop the development of the land in dispute and by another letter dated 22nd December, 1980 the Ministry informed the respondent that his right of occupancy over plot 9 had been revoked by the Governor pursuant to section 34(2)(c) of the Land Tenure Law, Cap. 59, Laws of Northern Nigeria. The deed of revocation was dated 28th November, 1980. The respondent commenced an action against the Governor as 1st defendant, the Attorney-General as 2nd defendant and the appellant as the 3rd defendant for the enforcement of his fundamental rights. After the grant of his application ex-parte under Order 1 rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules 1979, he issued out an originating summons signed by his counsel, claiming a declaration that the purported revocation  by the 1st defendant of his statutory right of occupancy was null and void; a declaration that section 34(2)(c) of the Land Tenure Law under which the 1st defendant revoked his said Certificate of Occupancy did not confer on the 1st defendant the power to effect such a revocation; a declaration that the purported  revocation without compensation was contrary to section 40(1)(a)(b) of the 1979 Constitution; an order restraining the defendants from taking possession or doing any act inconsistent with the respondent’s right and interest over the land in dispute or alternatively N50,000.00 compensation for the compulsory acquisition. At the  hearing of the summons which was based solely on the affidavit evidence before the court, the counsel for the Governor and the Attorney-General (that is 1st and 2nd defendants) conceded that the revocation of the right of occupancy over plot No.9 was illegal, null and void since the revocation was not in accordance with the  provisions of section 34(2)(b) of the Land Tenure Law of Northern Nigeria. Judgment was, therefore, entered for the respondent as per his claims. The appellant appealed to the Court of Appeal; the other defendants did not. The Court of Appeal granted the appellant’s application for leave to file and argue an additional ground of appeal and leave to raise the issue of competence and jurisdiction of the trial court which was not taken at the trial. The additional ground of appeal complained that the originating summons was signed by the counsel to the respondent and not by trial Judge, therefore, the suit was incompetent and not properly before the court. The Court  of Appeal dismissed the appeal. On further appeal to the Supreme Court by the appellant, it was argued, inter alia, on his behalf that the signing of the originating summons by the counsel to the respondent and not the trial Judge was a fundamental defect which rendered the originating summons and all subsequent proceedings based on it null and void. The appeal was dismissed. In dismissing the appeal Uwais, JSC (as he then was), in his lead Judgment, gave 3 issues as arising for consideration in the appeal as follows:-
“(a)     Whether or not the signing of the originating summons in this suit by the respondent’s counsel was a mere procedural error or irregularity which could be waived by the appellant or whether it was a fundamental defect that affects the competence of the suit and consequently the jurisdiction of the court to entertain it.
(b)     Whether or not the issues as itemised in the grounds of appeal and canvassed by both parties before the Court of Appeal were those actually adjudicated and pronounced upon by the said court or the said court suo motu formulated its own issues, canvassed them and based its decision on them without calling upon parties to address them (sic) on those issues so raised suo motu
(c)     Whether or not section 28 of the Land Use Act has impliedly or expressly repealed the provisions of section 34 of the Land Tenure Law, in which case the Governor cannot any more act under the said section of the Land Tenure Law but under the Land Use Act, 1978.”
And it was on these 3 issues that the case was decided. No consideration of section 5(2) of the Land Use Act came up for determination. Obaseki, JSC however, in his concurring judgment, observed at page 416 of the report, as follows:-
“It is unfortunate that the briefs filed by the parties failed to deal with the power of revocation to rectify mistakes. The express power of revocation a Military Governor has under the Land Use Act, 1978 is confined to revocation for overriding public interest as spelt out in sections 28(2) and (3) of the Act and for requirement by the Federal Government for public purposes. There is no provision for revocation for any other grounds in the Act. However, section 5(2) of the Land Use Act creates a statutory revocation of all existing right on the grant of a statutory right of occupancy. It states:
‘Upon the grant of a statutory right of occupancy under the provisions of sub-section (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.’
It cannot, therefore, be a correct statement of the law that the statutory right of occupancy granted to the appellant falls to the ground and became void as held by Ogundere, JCA, because the revocation of the statutory right of occupancy granted to the respondent was set aside. Upon a proper interpretation of sub-section (2) of section 5 of the Land Use Act, a later statutory right of occupancy extinguishes all rights created by an earlier grant. To save an earlier grant of a statutory  right of occupancy, the later right of occupancy must be expressly set aside.”
(Italics mine).
It is this observation particularly the italicised words, that is taken by the appellant in this appeal as authority for saying that Alhaji Adam’s Certificate of Occupancy exhibit AS extinguished the right of occupancy granted to the respondent and evidenced by exhibit 1. I agree entirely with my learned brother that the observation of Obaseki, JSC is no more than an obiter dictum which does not bind this court. It is not the reason for dismissing the appeal in Saude but  an observation by one of the Justices that sat on the appeal.
I now turn to Titiloye v. Olupo. Here the appellants as plaintiffs sued the respondent as defendant, in the High Court for declaration that the plaintiffs were persons deemed to be holders or occupiers to whom the customary right of occupancy to a parcel of land  measuring about 500 hectares and that the issuance of customary and statutory right of occupancy 6322 in favour of the 2nd defendant by the 4th and 5th defendant, that is the Governor of Kwara State and the State Commissioner for Works, Lands and Survey, over the said land be nullified and set aside an injunction. The case for the principal parties were based on traditional evidence. At the conclusion of the trial, the trial Judge dismissed the plaintiffs’ case. They appealed unsuccessfully to the Court of Appeal and further appealed to the Supreme Court. The further appeal was dismissed by this court. Kawu, JSC in his lead judgment in the case in considering the 6th issue placed before the court, that is, whether it is the contemplation of the Land Use Decree (Act) that the Governor can grant Certificate of Occupancy to another party when the Local Government had granted customary right of occupancy on the same land, without first revoking the latter, had this to say:-
“As to whether a Governor can grant a Certificate of Occupancy to another party when the Local Government had granted customary right of occupancy on the same land without first revoking the latter, raised in issue No.6, I think the answer can be found in s. 9(1) of the Land Use Act which says:-
‘(1)     It shall be lawful for the Military Governor-
(a)     when granting a statutory right of occupancy to any person, or
(b)     when any person is in occupation of Land under a customary right of occupancy
and applies in the prescribed manner; or
(c)     When any person is entitled to a statutory right of occupancy, to issue a Certificate under his hand in evidence of such right of occupancy.’
It is clear that paragraph (b) of s. 9(1) empowers a Military Governor to issue a statutory right of occupancy to a person who is already in occupation of land under customary right of occupancy. In my view it is not the law that the customary right of occupancy enjoyed by such a person must be first revoked before he can be granted a statutory right of occupancy, and this is because upon such a grant all existing rights on that parcel of land are automatically extinguished. This is the provision of S. 5(2) of the Act.”
(Second set of italics are mine).
It will be seen from the facts of this case that it is the same persons to whom a statutory right of occupancy was granted by the Local Government that the Governor also granted the statutory right of occupancy over the same land. That is not the position in the case on hand and I do not see this case being relevant in the determination of the case now on hand.
The 3rd and last case relied upon by the appellant in this case is Dabup v. Kolo. The facts here are that sometime in February, 1982 the respondent applied to the Governor for an industrial plot. The respondent was granted a piece or parcel of land situated along Jos Bukuru Road in Jos Local Government Area. Following the grant of this right of occupancy the respondent went into possession and employed workers to erect a fence around the land. The respondent was on the site on 27th October, 1982 inspecting the progress of work being done to the fence when the appellant came claiming ownership of the land. There was an incident leading to the arrest, detention and prosecution of the respondent; subsequently the respondent instituted this action. The appellant and one Alhaji Musa Gombe had on 21/8/78 been granted a statutory right of occupancy as evidenced by Local Government Certificate of Occupancy No. 251 issued by the Jos Local Government and in respect of a piece of land in the vicinity of the area granted to the respondent. From the evidence at the trial the two pieces of land overlapped hence the contradictory claim made by each party to the land in dispute. After a review of the evidence, the trial court gave judgment in favour of the respondent but excised a portion of the land claimed by the appellant from the land claimed by the respondent. Upon appeal to the Court of Appeal, that court set aside the declaratory judgment in favour of each party. It found that the appellant did not relate the land he is claiming to the one claimed by the respondent; that the parties did not relate the land in dispute to the Certificate of Occupancy they relied upon and that having not proved their identity of the land in dispute neither of the parties is entitled to judgment. Section 5(2) Land Use Act was irrelevant. It was further held that even if the provision of section 5(2) is relevant the title of the appellant had been extinguished by the grant of statutory right of occupancy by the Governor in favour of respondent. The Court of Appeal sent the claims and counter-claims back for retrial. The appellant was dissatisfied with this judgment and appealed to the Supreme Court. This court dismissed the appeal. In the lead judgment of Olatawura, JSC two issues arose for consideration in the appeal  to wit:-
1.    “Whether the learned Justices of the Court of Appeal were right in their interpretation of section 5(2) of the Land Use Act which postulates that 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 occupation shall be extinguished, even in this instance when it is common ground that the appellant, with one Alhaji Musa Gombe already were entitled to the use and occupation of part of the land covered by the statutory right of occupancy aforesaid,     the same not having been revoked or otherwise extinguished.
2.    Were their Lordship of the Court of Appeal right in failing to enter judgment for the appellant when the respondent did not file a defence to the counter-claim in the circumstances of his case”
On the first issue Olatawura, JSC page 269 observed:-
“All the cases relied on by the both parties on issue of s. 5(2) of the Land Use Act are predicated on a definite and specific area of land covered by the Certificate of Occupancy. It is for each party to prove conclusively the area of land covered by the Certificate of Occupancy more so when each party relied on a valid Certificate. As at the moment, suffice it to say that the decision of this court in Titiloye v. Olupo (supra) has stated the correct position of the law with regard to section 5(2) of the Land Use Act. See also Saude v. Abdullahi  (supra). The presumption that a holder of a Certificate of Occupancy is prima facie evidence to title and its exclusive possession is rebuttable, hence the pertinent observation of the lower court per Agbaje, JCA:-
‘It appears from the averments in the defence and the counter-claim that the land subject-matter of the counter-claim is a portion of the land claimed by the plaintiff.
So a decision of the plaintiff’s claim could not really be divorced from a decision having regard to the  averments in the defence and counter-claim as I have just stated.’
Consequently to consider the construction placed on s.5(2) of the Land Use Act by either party at this stage will, in my view, tie the hands of the Judge that will hear the case de novo. ”
In my concurring judgment in that case at pages 273-274, I observed:”
“The plaintiff appealed against the interpretation given by the learned trial Judge to s. 5(2) of the Land Use Act, 1978. The issue on it before the Court of Appeal was formulated as follows:-
‘(a)     Having regard to the fact that the Governor of Plateau State granted the statutory right of occupancy No. PL 5399 to appellant under s. 6(1) of the Land Use Act.
Whether respondent’s right to occupation and use of any part of the land covered by the Governor’s grant still subsisted or was extinguished’
The court below per Agbaje, JCA (as he then was) in deciding this issue observed as follows:-
“Section 5 subsection 2 of the Land Use Act provides as follows:-
‘Upon the grant of a statutory right of occupancy under the provisions of sub-section(1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right to occupancy shall be extinguished.’
Added to this is section 15 of the same Act which says:
‘During the term of a statutory right to occupancy the holders:-
(a)     shall have the sole right to and absolute possession of all the improvement on the land; (b) may, subject to the prior consent of the Military Governor, transfer, assign or mortgage any improvements on the land which have been effected pursuant to the terms and conditions of the Certificate of Occupancy relating to the land.’
Having regard to the above statutory provisions, the irresistible conclusion I reach is that counsel for the plaintiff is right in his submission to us in his brief and in his oral argument to us to the following effect:-
‘The effect of grant of a statutory title under section 6(1)(a) of the Land Tenure Law which is identical in terms with section 5(1)(a) of the Land Use Act is that all other rights to the use and possession of the land, the subject of the grant extinguished. Where there are two conflicting titles granted under the same section, the first in time may be stronger in law.’
It is the conclusion reached in the above passage that is on attack in the appeal before us.”
After considering the submissions of learned counsel on the issue, I concluded at page 279 of the report thus:-
“In view of the authorities with which I am in full agreement, it is my view that the court below is right in approving the submission in the plaintiff/appellant’s brief as regards the interpretation of s. 5(2) and that is that a grant of a statutory right of occupancy extinguishes all rights existing on the land at the time of the grant. The subsection is clear and unambiguous. In my respectful view, that is the only reasonable interpretation that can be given to it. As Obaseki, JSC observed in Saude v. Abdullahi (supra) at p. 415, the power of revocation contained in section 28(1) of the Land Use Act is not meant to be used in the case of a grant induced by mistake of fact as would seem to be the defendant’s case in the matter on hand. If the Governor had made a mistake in the grant of statutory right of occupancy over the land in dispute to the plaintiff, he could correct that mistake not by his resorting to the power of revocation given him by section 28(1) of the Act but by exercising his inherent power to rectify the grant. The Governor has an inherent power to correct errors made by him arising from a misunderstanding of the facts. I do not therefore accept the submission of learned counsel for the defendant that it was necessary for the Governor to first revoke the customary right of occupancy earlier granted by Jos Local Government to the defendant and his friend before granting a statutory right of occupancy over the land in dispute to the plaintiff.”
(Italics mine).
Mohammed, JSC in his own concurring judgment at pages 284-285 also observed:-
“Following the opinion of my Lord Obaseki, JSC, in the case of Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 416, it has been made plainly clear that a later grant of right of occupancy shall extinguish all rights, customary or statutory, earlier granted on the same piece of land. Mr. Fashola, learned counsel who made oral submissions for the appellant cannot be correct to say that as the appellant had prior right of occupancy over the land in dispute, the Governor could not grant statutory right over the same land without first revoking the earlier grant. I see no dispute in this issue because in the case of Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519. Kawu, JSC, while interpreting the provision of section 9(1)(b) of the Land Use Act held that the grant of a statutory right of occupancy automatically extinguishes all existing rights in respect of the parcel of land over which it is granted.”
(Italics mine).
Adio, JSC who also expressed an opinion on the issue at page 285 had this to say:-
“One of the issues for determination raised in this appeal was the interpretation of section 5(2) of the Land  Use Act. The provision of the section is as follows:-
‘5(2)     Upon the grant of a statutory right of occupation under the provisions of sub-section (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.’
In my view, the words used in the provision of section 5(2) of the Act are plain and unambiguous. In the circumstance, they should be given their plain meaning. A court interpreting  the provisions of the section will consequently limit itself to interpreting the said provision and should not concern itself with what the law ought to be. See Abioye v.Yakubu (1991) 5 NWLR (Pt. 190) 130. Applying the foregoing principles in the interpretation of section 5(2) of the Land Use Act, the legal position is that a grant of statutory right of occupancy automatically extinguishes all existing rights in respect of the parcel of land over which it is granted. My view is in line with the view expressed by this court  in Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519 at 530, cited in the lead judgment in the same connection.
In other words, the Land Use Act does not contemplate or permit a situation in which one person will hold a valid Certificate of Occupancy issued by a Local Government and another person will hold a Certificate of Occupancy issued by the governor in respect of the same parcel of land at or during the same time or period. The question whether the statutory provision, as properly interpreted, is rational, good or bad is completely irrelevant. The court has to give effect  to it because it is not the court’s business to try to avoid the consequence of a statutory provision which is plain and/or unambiguous. See Aya & Anor v. Henshaw (1972) 5 SC 87 at 95.”
(Italics mine).
Thus on the 1st issue that arose for consideration in Dabup v. Kolo and which issue related to the interpretation of section 5(2) of the Land Use Act, four of the Justices, including my humble self, that sat on the appeal appear to hold the view following Saude and Titiloye that by section 5(2) of the Act a later statutory right of occupancy extinguishes all previous rights and interests in respect of the land. But the five Justices that sat on the appeal agreed that the Court of Appeal was right in sending the case back for retrial as neither party proved the identity of the land to which it laid claim. To the extent, therefore, that the views expressed by the four Justices on the effect of section 5(2) did not form the ratio decidendi in the case, that case will not bind this court in the consideration of the main issue that calls for determination in the appeal now on hand. The operation of section 5(2) came also for consideration in a recent decision of this court in Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562. Iguh, JSC in his lead judgment in that case, and with which I am in full agreement, had this to say at page 588:
“For a Certificate of Occupancy under the Land Use Act, 1978 to be therefore valid, there must not be in existence at the time the certificate was issued, a statutory or customary owner of the land in issue who was not divested of his legal interest to the land prior to the grant.”
Uwaifo, JSC who expressed direct view on section 5(2) observed at page 597:-
“It is not in doubt that s.1 of the Land Use Act vests in the Governor of a State the land in that State to be held in trust and administered accordingly. All lands in urban areas are under his control and management. All other lands are under the control and management of the respective Local Governments subject to certain aspects of intervention and determination of the Governor. It is also not in doubt that under s. 5(1)(a) of the Act, it shall be lawful for the Governor to grant statutory rights of occupancy to any persons in respect of  land, whether or not in an urban area. Under s. 5(2), when such a grant is made, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.  But these provisions so far referred to are certainly not to be applied to defeat vested rights recognised under the Act itself. They may admittedly, defeat ‘existing rights to the use and occupation of the land’ but not vested rights unless such vested rights are first revoked  under s. 28 of the Act as appropriate. This may be (a) for overriding public interest, (b) by notice on behalf of the President for public purposes, (c) for breach of the provisions imposed by s. 10 of the Act, (d) for breach of any term envisaged by s. 8 of the Act, (e) for refusal  or neglect to comply with the requirements specified as per s. 9(3) of the Act. In all these cases, the revocation shall be signified by notice duly issued and shall become valid when received by the person with such vested right: See s. 28(6) and (7) of the Act. It is an  accepted legal principle that vested rights are not lightly taken away. Under the Land Use Act it must be in accordance with s. 28 and in addition, compensation is payable by virtue of s. 29.”
and at page 598 he summarised the law thus:-
“The land in dispute being developed land before the Land Use Act came into force, whoever had it vested in him then was deemed to have continued to hold the land after the commencement of the Act as if he was the holder of a statutory right of occupancy issued by  the Governor under s. 5 of the Act. It then follows that no other person can be granted a right of occupancy unless s. 28 of the Act is complied with. Any right of occupancy otherwise purportedly granted is contrary to the provisions of the Act and will be of no validity.  See Teniola v. Olohunkun (1999) 5 NWLR (Pt. 602) 280. It will be set aside by the court in an appropriate case, or be discountenanced when relied on as against a subsisting holder or deemed holder of a right of occupancy.”
Only very recently, this court again had cause to revisit section 5(2) of Land Use Act in Nigeria Engineering Works Ltd. v. Denap Ltd. & Anor. (2001) 18 NWLR (Pt. 746) 726. It was held in that case that a later statutory right of occupancy would not extinguish the title vested in a holder of an earlier right of occupancy which had not been validly revoked pursuant to section 28 of the Act. There Kutigi, JSC observed at page 758:-
“I only wish to add that on the issue of the effect of section 5(2) of the Land Use Act on the appellant’s statutory right of occupancy, the subsection which is clear and unambiguous must be read and understand to have only extinguished ‘all existing rights to the use and occupation of the land at the time the grant of the statutory right of occupancy was made. And in a situation where there is more than one grant of the same piece of land as in the case it can only be referable to the statutory right of occupancy first granted. I do not think one statutory right of occupancy can just on its face ‘extinguish’ another statutory right of occupancy as learned counsel for the appellant would want us to believe. A statutory right of occupancy must first be properly revoked or nullified before another one can be issued in its place.”
I also said at page 769:-
“It is submitted on behalf of the appellant that by section 5(2) of the Land Use Act, the grant, by the Military Governor, of a right of occupancy to the appellant in respect of the land in dispute extinguished all previous rights, including that of the plaintiffs, over the land. Section 5(2) reads:-
‘(2)     Upon the grant of a statutory right of occupancy under the provisions of sub-section (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.’
Support for this submission is placed on the decision of this court in Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387, 416 per Obaseki, JSC and Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254, 277 per Ogundare, JSC. It is pointed out that there was no claim to set aside the right of occupancy granted to the appellant. There would have been some force in this argument if appellant’s right of occupancy had been validly granted. Having held, and rightly too, in my respectful view, that the revocation of plaintiff’s right of occupancy was invalid, null and void, the Military Governor could not validly grant a right of occupancy to another person over the same land; the second grant, while the first subsists, must be invalid. An invalid Certificate of Occupancy would not have the effect of extinguishing all previous rights over the land as envisaged in section 5(2).”
Upon a calm view of the views expressed in all the cases above, I have come to accept the construction put on section 5(2) of the Land Use Act by Uwaifo, JSC as representing the correct view. I am satisfied that the correct view is that where there is an existing right held or deemed to be held by a person over a piece of land, the Governor cannot, without first revoking that right under section 28 and paying compensation under section 29 of the Act, validly issue  a right of occupancy over the same land pursuant to his powers under  section 5(1) to any other person.

U. MOHAMMED, J.S.C.: I have gone through the draft judgment of my learned brother in this appeal. My learned brother Kalgo, JSC, considered the application of section 5(2) of the Land Use Act, 1978 to issues argued in this appeal and resolved the issues in favour of the respondent. I entirely agree with him. I agree that the appellant was in trespass in the land in dispute. I also affirm the N10,000.00 damages for trespass which the trial court awarded the respondent and which the Court of Appeal affirmed. I therefore dismiss this appeal and affirm the decision of the court of appeal. I also award N10,000.00 costs in favour of the respondent.

A. I. KATSINA-ALU, J.S.C.: I have had the advantage of reading in draft the judgment of my learned brother Kalgo, JSC in this appeal. I agree with it and for the reasons which he has given, I too dismiss the appeal with N10,000.00 costs to the respondent.

S. O. UWAIFO, J.S.C.: I agree with the judgment of my learned brother Kalgo, JSC that the appeal lacks merit and must be dismissed.
With regard to issue 4 which essentially deals with section 5(2) of the Land Use Act, I have made my views known in SC. 51/1996: Alhaji Aminu Dantsoho v. Alhaji Abubakar Mohammed (2003) 6 NWLR (Pt. 817) 457 delivered today. In a nutshell, section 5(2) is not concerned with the extinguishment of legally vested rights. The meaning of “all existing rights” as used there is limited. It is the rights to the use and occupation of land which are far less than and inferior to property rights. They may just be mere licence or usufruct, but are never rights which are capable in law of being alienated.
The position taken by the appellant that his later grant extinguished that of the respondent which was earlier in time is untenable. Legally vested rights cannot simply be extinguished. I too dismiss the appeal with N10,000.00 costs to the respondent.

E. O. AYOOLA, J.S.C.: I agree with the leading judgment delivered by my learned brother, Kalgo, JSC, and the concurring judgment delivered by my learned brother Ogundare, J.S.C. which I have read in draft. I am in agreement with their opinion and that of Dr, Gbolahan Elias, counsel for the respondent, that there is need to ‘rein in’ the dicta in some of the decisions of this court, which my learned brothers Kalgo and Ogundare, JJSC, have amply analysed and discussed, and which suggest that rights of occupancy, though not revoked, are extinguished by virtue of sub-section 2 of section 5 merely by a subsequent grant of statutory right of occupancy over the same land to another person. In Teniola v. Olohunkun (1999) 5 NWLR (Pt. 602) 280, I have, rather uncritically, followed such dicta, even though they were not material to the determination of the decisive issue in that case.
This appeal concerns the correct interpretation of sub-section (2) of section 5 of the Land Use Act (“the Act”) which provides as follows:-
“Upon the grant of a statutory right of occupancy under the provisions of sub-section (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.”
The problem of interpretation is in relation to the ambit of the phrase ‘all existing rights to the use and occupation of the land’.
The right to the use and occupation of the land which is subject of a statutory right of occupancy is essentially one of the incidents of a statutory right of occupancy. The question is whether the phrase ‘all existing rights to the use and occupation of the land’ should be interpreted so as to include such rights attaching to the earlier of two statutory rights of occupancy severally granted to different persons over the same land. There is no doubt that should it be so interpreted, in regard to such concurrent grants of statutory rights of occupancy, the principle of priority will not apply and a later grant will operate to extinguish, in terms of sub-section (2) of section 5, the rights to the use and occupation of the land which may have accrued to the holder of a prior grant ‘existing’ at the time of the subsequent grant. If an interpretation that would lead to such result is not to be adopted, it is necessary that the phrase should be read, not in the con of section 5(2) alone, but in the overall con of the Act and, particularly, of its provisions in the sections which will, presently, be adverted to. The sections referred to in this judgment, except otherwise stated, are sections of the Act.
Sub-section (1) of section 5 empowers the Governor, among other things, “to grant statutory rights of occupancy to any person for all purposes.” By virtue of subsection (1)(a) of section 9, when granting a statutory right of occupancy to any person it shall be lawful for the Governor to issue a certificate under his hand in evidence of such right of occupancy. Such certificate shall be termed a Certificate of Occupancy: section 9(2). The Governor has the power to revoke a statutory right of occupancy in the circumstances specified in section 28, namely: by virtue of subsection (I) of section 28, by reason of ‘overriding public interest’ and, by virtue of subsection (5) of section 28, on the ground of (a) a breach of any of the provisions which a Certificate of Occupancy is by section 10 of this Act deemed to contain; (b) a breach of any term contained in the Certificate of Occupancy or in any special contract made under section 8 of the Act and, (c) a refusal to accept but has been cancelled by the Governor under subsection (3) of section 9 of the Act.
Revocation of a right of occupancy is signified under the hand of a public officer duly authorised in that behalf by the Governor and is effective upon notice of revocation given to the holder of the right of occupancy: section 28(6). Subsection (7) of section 28 provides that:
“The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under sub-section (6) of this section or on such later date as may be stated in the notice.”
(Italics mine).
Sub-sections (6) and (7) of section 28 do not seem to leave any room for implied revocation of a prior right of occupancy by another grant of a statutory right of occupancy to a second person over the same land.
Notwithstanding the use of ‘occupier’ in section 14 and ‘holder’ in section 15, the bundle of rights that comprise the interest of the holder of a statutory right of occupancy is stated in sections 14 and 15. Section 14 provides that:
“Subject to the other provisions of this Act and of any laws relating to way leaves, to prospecting for minerals or mineral oil or to mining or to oil pipelines and subject to terms and conditions of any contract made under section 8 of this Act, the occupier shall have exclusive rights to the land the subject of the statutory right of occupancy against all persons other than the Governor.”
Section 15(a) provides that:
“During the term of a statutory right of occupancy the holder –
(a)     shall have the sole right to and absolute possession of all the improvements on the land.”
It is evident that the holder of a statutory right of occupancy has (a) a title which by virtue of sections 14 and 15 confers on him “exclusive rights to the land “and” sole right to and absolute possession of “all the improvements thereon and, (b) a title which is only liable to be extinguished upon revocation of the right pursuant to the Act. The exclusive right of the holder of a statutory right of occupancy to the land which is subject of a statutory right of occupancy, no doubt, includes the right to the use and occupation of the land and the right to deal with it, howsoever he would, subject to the provisions of the Act, any condition of the grant and, as always, to the rights of others.
Whereas the title of the holder of a right of occupancy can only be extinguished as provided for in section 28, subsection (2) of section 5 does not mention anything about the extinguishing of title of a holder but the extinguishing of ‘existing’ rights to the use and occupation of the land. Notwithstanding that, sometimes, ‘title’ and ‘rights’ can be used interchangeably, in the con in which phrase ‘rights to the use and occupation’ is used in the Act and in the overall con of the scheme of the Act, it is expedient to acknowledge  a distinction. The title of the holder of a statutory right of occupancy embraces several rights of which right to the use and occupation of land is just one. The title holder, or to be more exact, the
right-holder, has, apart from the right to the use and occupation of the land, the right to exclusive possession and disposition. The title holder thus has proprietary interest which the mere user and occupier of land does not have. In Belfast Corporation v. O. D. Cars Ltd. (1960) AC 490, it was held that anyone of those rights which in the aggregate constituted ownership of property could not itself aptly be called ‘property’. The right to use land is one of the components  of a proprietary interest, but it could not alone be sufficient to form that interest. Whatever effect sub-section (2) of section 5 may have, it does not, therefore, include that of extinguishing the title of the holder of a right of occupancy. It will be incongruous and absurd to hold that notwithstanding that there is a title holder whose title had  not been extinguished, the effect of sub-section (2) of section 5 is to extinguish such title holder’s right to the use and occupation of the land subject of his title, while his title to a statutory right of occupancy remains intact. The sub-section cannot be interpreted to lead to such incongruity and absurdity.
In interpreting a statute which is unique for its lack of precise language and is riddled with apparent inconsistencies, while it is easy to say what rights are not extinguished by operation of subsection (2) of section 5, it is not as easy to say what the nature of ‘existing’ rights to the use and occupation of the land extinguished  consists of. Dr. Elias has argued that such rights are rights less than rights of occupancy and he is right in that view. He further argued that those rights must be less than rights of occupancy (e.g. seasonal rights to graze cattle; temporary rights of occupancy). It must be conceded that that argument also sounds plausible.
Another perspective worthy of consideration, however, is that the rights to the use and occupation of the land that is extinguished pursuant to sub-section (2) of section 5 must be that of someone who does not exercise those rights by virtue of his being a holder of a right of occupancy, either by direct grant or by virtue of his being a ‘deemed holder’ under section 34 or section 36. Such person will be a person who by virtue of sub-sections (5)(b) and (6)(b) of section 34 is not a ‘deemed holder’ under section 34 or who by virtue of subsection (2) of section 36, where the land was on the commencement of the Act not being used for agricultural purposes, is not a ‘deemed holder’ under section 36. The ambit of subsection (2) of section 5 is essentially curtailed by the scheme and intent of the Act itself. It seems evident that reference to ‘existing rights to the use and occupation of the land’ is to such rights as may have existed at the commencement of the Act, that is to say on 29 March, 1978, but are unsaved by the transitional provisions in Part VI of the Act, and not to rights which owe their origin to a deemed statutory right of occupancy or a granted statutory right of occupancy under the Act. It is the former type of existing rights that were extinguished by virtue of the sub-section. The view may not be farfetched that ‘existing’ in the sub-section means ‘existing at the commencement of the Act’ and that sub-section (2) of section 5 merely puts it beyond doubt that the title to a statutory right of occupancy granted under the Act cannot in anyway be encumbered by any rights to use and occupation that may have existed at the commencement of the Act and not preserved by any provision of the transitional provisions.
Be that as it may, it is sufficient to hold that the ‘existing rights’ extinguished by operation of sub-section (2) of section 5 do not include the rights of a holder of a statutory right of occupancy. In a situation in which the jurisprudence of the Land Use Act is still of a painfully slow and uncertain growth it is not expedient to express opinion on matters which have not been fully argued in this appeal, such as the aptness of the application of the principle of nemo dat quod non habet to a subsequent grant and the description of a later grant as void rather than voidable. About these, I reserve my opinion.
Be that as it may, I too would dismiss this appeal with costs of N10,000.00 to the respondent.