ATIKU ADERONPE v. ALHAJA SOBALAJE ELERAN & ORS
(2018) LCN/4725(SC)
In The Supreme Court of Nigeria
On Friday, the 14th day of December, 2018
SC.182/2009
RATIO
EFFECT OF UNDISPUTED FACTS IN LAW
The 1st Defendant, filing no Statement of Defence, did not join issues with the Claimant on the foregone averments. She is deemed in law to have admitted those adverse facts. Facts not disputed are taken as admitted and established. They no longer require proof. PER EJEMBI EKO, J.S.C.
POSITION OF THE LAW WHERE ALL THE CONDITIONS DEMANDED BY THE LAND USE AND ALLOCATION COMMITTEE ON AN ALLOCATED LAND HAS BEEN SATISFIED
The question: what is this state of our land law that prevents us from protecting the Claimant from this frivolous highhandedness of the 2nd and 3rd Defendants That is the core question. The Lower Court appears to admit its inability to do justice to the claimant, as it was prevented from doing so by acre land law. In otherwords it found injustice done to the claimant by the 2nd and 3rd Defendants without remedy. But where lies Ubi Jus Ibi remedium in this case in a Court of Justice The claimant has further appealed to this Court, and has prayed that we restore the judgment of the trial Court. The Respondents in their brief made so much fuss of the grant to the Claimant/Appellant being an “allocation in principle”; that Exhibit 1 was not intended to be a title document, and that the claimant/Appellant’s mere payment of the statutory fees did not “accord him equitable interest” in the disputed plot. On whether Exhibit 1 vested in the claimant “equitable interest” in plot 9 TPS/MISC 168 the Lower Court had abundantly equivocated. As the parties, on authority of A. G. RIVERS STATE v. A. G. AKWA-IBOM STATE LPELR (2011) – 633 SC and FAKOREDE v. A. G. WESTERN STATE (1972) 1 ALL NLR (pt. 1) 175, are not allowed to approbate and reprobate on the same issue so also are Courts of law. The 2nd and 3rd Defendants/Respondents hold responsible positions in the Government of Kwara State. They are by that fact presumed to have, if not ascribed with, honour and good reputation. The Lower Court while construing Exhibit 1 opined at pages 316 – 320 of the Record that the grant or allocation of plot 9 TPS/MISC.168 to the Claimant/Appellant being only in principle conferred “no enforceable right” on him to claim title etc over it. Oxford Advanced Learners Dictionary New 8th Edition defines or illustrates the idiom “in principle” as (1) If something can be done in principle there is no reason why it should not be done although it has not yet been done and there may be some difficulties, and (2) it also means – in general, but not in details. The first illustration seems to suggest the principle of equity by which equity takes as done that which ought to be done. A grant or allocation in equity is, in the context of Exhibit 1, a grant subject to payment of the necessary consideration that would entitle the grantor to subsequently grant the Statutory Right of Occupancy. It vests an interest, which though not fully legal, is equitable in nature pending the formal grant of the Statutory Right of Occupancy for which the requisite fees had been paid by the grantee. The allocation made in Exhibit 1 by the 3rd Defendant, acting on behalf of the Governor (the 2nd Defendant), was pursuant to the powers statutorily vested in the Governor of Kwara State by Section 2(1)(a) and 5 (1) (a) of the Land Use Act, 1978. That is what gives the allocation to the Claimant in Exhibit 1, including the right to the allocation and the plot allocated, a statutory flavour. The interest of the Claimant accruing to him therefrom has statutory flavour. It is no doubt an interest in an immovable property. Section 44 (1) of the 1999 Constitution enjoins the 2nd and 3rd Defendant/Respondents thus – No movable property or any interest in any immovable property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things (a) requires prompt payment of compensation therefor; and (b) gives to any person claiming such compensation a right of access in the property and the amount of compensation to a Court of law or Tribunal or body having jurisdiction in that part of Nigeria. I have no doubt whatsoever that the grant or allocation of plot 9 TPS/MISC.168, in principle, to the Claimant/Respondent by the 2nd and 3rd Defendant/Respondent vide Exhibit 1 vests in him an interest in the said plot 9 TPS/MISC.168 that Section 44 (1) of the Constitution protects. At page 184 of the Record the trial Court, in its judgment, found as a fact (believing the CW.2) that the claimant was given a general approval for a grant of a Statutory Right of Occupancy. It also, at page 185 of the Record, believing the DW.2 that the Claimant, having paid all the fees required as consideration within the time stipulated; the Government owed him (the claimant) a duty to issue the Statutory Right of Occupancy the Claimant had paid for over Plot 9 TPS/MISC.168. The evidence of the DW.2 was an admission against interest. The substance of the DW.2 is that between the Claimant and the Defendants, particularly the 2nd Defendant, there is a done deal. The trial Court, rightly, found the DW.2 to be saying the sacrosanct truth against the interest of the 2nd and 3rd Defendants. That finding of fact was neither challenged by the Defendants, nor found to be perverse by the Lower Court. Coming back to the much hyped “allocation in principle”, its my firm stance on it is that it conveys the statement of the honour, an honest position, that can be trusted as self evident truth coming from responsible government officials that an interest has been vested in the allocatee or grantee of a plot, as the claimant. The noun: principle, as Geddes & Grosset: English Thesaurus, as well as Burton’s Legal Thesaurus, suggest is synonymous with equity, goodness, honesty, honour, incorruptibility, integrity, justice, probity, rectitude, righteousness, trustiness, etc. I should add, for emphasis, that once the Governor, pursuant to his power under Sections 2(1)(a) and 5(1)(a) of the Land Use Act, vests a possessory right in any person that interest, as vested, is right of occupancy: NKWOCHA v. GOVERNOR OF ANAMBRA STATE (1984) SCNLR 634. The Land Use Act empowers the Governor to vest right of occupancy in any person. The right of occupancy, which the Governor is statutorily empowered to vest in an individual, is a legally recognisable possessing right in land: SALAMI v. OKE (1987) NWLR (Pt. 63) 1; (1987) 2 NSCC 1167. All through the whole gamut of evidence there has been no sintilla of fact suggesting that the allocation or grant in Exhibit 1 has either been withdrawn or has been formally revoked for any reason. The 2nd and 3rd Defendants/Respondents, engaging themselves in unproductive prognitive resonance, flaunted an argument running thus; because the Claimant had entered the plot and erected perimeter fence round it without approval he had lost the allocation to him. Just like that Unfortunately, the Lower Court fell for it. There is no evidence that because of this alleged breach of a fundamental term, the 2nd and 3rd Defendants/Respondents revoked or withdrew the grant or the allocation conveyed by Exhibit 1. They have the right, under Section 28 of the Land Use Act, to revoke the allocation for breach of a fundamental term of the grant. The fact that they did not exercise their right of revocation suggests their acquiescence in the erection of the fence. That amounts to waiver, and that also is what makes it unconscionable, on grounds of estoppel by conduct on their part, to rely on the fact of the very act they condoned as justification for re-allocating the same plot 9 (or plot 6) on TPS/MISC. 168 to the 1st Defendant. The principle of estoppel by conduct was been codified as Section 151 of the Evidence Act, 1990 LFN (now Section 169 Evidence Act, 2011). The doctrine of this estoppel in CENTRAL LONDON PROPERTY TRUST LTD v. HIGH TREES HOUSE LTD (1947) KB 130 – THE HIGH TRESS CASE, and COMBE v. COMBE (1951) 1 ALL E. R. 767 operates thus – when one person has, either by virtue of an existing judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such persons representative in interest, to deny the truth of that thing.” The principle, apart being codified in the Evidence Act, has been applied by this Court in several cases including LADIPO AKANNI v. ADEDEJI MAKANJU (1978) 11 SC 13 at 26. By this principle, the 2nd and 3rd Defendant/Respondents having condoned the claimant’s act of fencing plot 9 TPS/MSC.168 are estopped from setting up that fact against him as alibi for their (in the words of Ogunwumiju, JCA) “frivolous highhandedness” that smacks of reckless impunity of peremptorily taking plot 9 (renumbered plot 6) TPS/MISC.168 from the Claimant and purportedly giving the same to the 1st Defendant/Respondent. A cardinal principle in our land law, guaranteed by Section 44 (1) of the Constitution and Section 28 of the Land Use Act, 1978, is that a vested interest in land, legal or equitable, cannot be extinguished whimsically or capriciously without the due process of the law. The Lower Court, at least, acknowledged this principle of law when, while alluding to the cases of HART v. GOVERNOR OF RIVERS STATE (supra), OJO v. GOVERNOR OF OYO STATE (1989) (supra), OBA OYEBADE LIPEDE & ORS v. CHIEF ADIO SONEKAN (1995) (supra), it restated the law correctly that the Courts have a duty to protect vested rights, otherwise a regime of lawlessness will flourish; and that rights or interests in land that have vested will not be affected by subsequent change in law or policy, and in this case, a change in the incumbency on the seat of the Commissioner for Lands. The trial Court, on these principles of Nigerian Land Law, had stated, at page 166 of the Record, that the right of an individual over or in a plot can only be extinguished by due process of the law for the revocation of the same, and that the revocation must be for public purpose and not for the benefit of another private individual. Section 28 of the Land Use Act read together with Section 44 (1) of the Constitution further reinforce these principles of our land law; that the revocation of a vested title or interest in or over a piece of land must be preceded by, or follow a due process of law and it must be for public purpose. These are principles laid down in FOREIGN FINANCE CORP v. LSPDC (1991) 5 SCNJ 52 (also reported as OSHO v. FOREIGN FINANCE CORP (1991) 4 NWLR (pt. 184) 157. The Lower Court was clearly in error when it held that this case and the principles it enunciated are not material and relevant precedent to follow in this case. It apparently misdirected itself when it found or assumed, perversely though, that in the instant case the grant to the claimant vide Exhibit 1 had been revoked for breach of a fundamental term. The grant in Exhibit 1 was/is subsisting. It was/is not a deemed grant. The grant in Exhibit 1 precedes the formality of the issuance of a certificate as evidence of the grant of a Statutory Right of Occupancy, all necessary prerequisites for the formal grant of Statutory Right of Occupancy have been fulfilled. In the circumstance, it is my firm view that the Lower Court was not right when it held, on authority of EMMANUEL ILONA v. SUNDAY IDAKWO (2003) 5 SCNJ 330, that where there is a statutory grant any other deemed grant would be invalid. The Counsel for the Claimant/Appellant made a point, and I agree, that the law makes no distinction in the treatment of an equitable interest against individuals or authorities who had notice of a subsisting interest before hurriedly, and in a bizarre manner, purportedly, vested a “legal title” on a third party inorder, ostensibly, to defeat or frustrate the earlier subsisting right or interest. On Exhibit 1, the Lower Court opined that on it the claimant could perhaps lay a claim for specific performance of a contract of sale but however doubted if specific performance avails him under the Land Use Act. I am not aware of any rule of law that precludes a Court, in the interest of justice, from making any order for specific performance against the government where the right facts or circumstances justifying such order exist. I have not seen any provision of the Constitution by which it can be construed that any government in Nigeria is immune to order specific performance. It appears to me that the misleading statement of facts presented to, and alluded to by the Lower Court at page 337 of the Record, that an alternative plot was offered to the claimant/Appellant which he refused to accept, had an enormous impact on the lower Court’s final decision. No pleadings or evidence to that effect exist anywhere in the proceeding supporting that misleading statement of fact. That statement, at page 337 of the Record, has no force of evidence. It was the 1st Defendant/Respondent who was offered plot 6 on TPS/MISC.182 in lieu of plot 5 on TPS/MISC.168 that she was originally allocated. On 15th August, 2005, Exhibit 7, she accepted plot 5 on TPS/MISC.182 in lieu of plot 6 on TPS/MISC.168. Between the Claimant and the Defendants/Respondents, particularly the 1st Defendant, there is no dispute that 1st Defendant had migrated from the layout, TPS/MISC.168, having accepted plot 5 on TPS/MISC.182. The purported issuance of Statutory Right of Occupancy over plot 6 (former plot 9) in the re-drawn layout TPS/MISC.168, on which the Defendants/Respondents argue that the issuance of the said Statutory Right of Occupancy had superceded the grant to the Claimant in Exhibit 1, was clearly an act very whimsical, arbitrary and capricious on the part of the 3rd Defendant, an agent of the 2nd Defendant. Notwithstanding the re-drawing of Layout TPS/MISC.168 the physical location of plot 9 remained fixed and constant. Plot 9 was though renumbered as plot 6. The beacons, as can be seen from Exhibits 6 and D10, demarcating or defining the said plot 9 or plot 6 remain beacons Nos. L9568, L9569, L9581 and L9585 on TPS/MISC.168. In view of Exhibits 1 and 7 and the facts pleaded in the Statement of Claim, which are deemed admitted by the 1st Defendant, I should think that the deponent of the affidavit, Exhibit D1, paragraph 11 thereof, told a blatant lie when he averred that “1st Defendant is the first allottee on (the disputed plot) and (it) was restored back to her.” Exhibit D3, the Statutory Right of Occupancy was in view of Exhibit 7 of 18th August, 2005, obviously backdated to 4th January, 2005 to give a holy face to the dubiously capricious and arbitrary antics of the 2nd and 3rd Defendants. For the records and for purposes of the doctrine of priority, the interest of the Claimant on plot 9 (or plot 6) on TPS/MISC.168 was first in time. On all the issues argued, I allow the appeal. The lower Court had no cause in law, facts and equity to disturb the decision of the trial Court. It found that the trial Court had painstakingly evaluated evidence and correctly appraised the evidence before it, and YET it reversed those findings painstakingly made by the trial Court without any concrete basis. The lower Court in the process made several findings of fact and holdens that are materially contradictory and perverse. I allow the appeal. The decision of the Court of Appeal dated 12th March, 2018 in the appeal No. CA/IL/43/2007 is hereby set aside. The decision and orders of the trial Court delivered on 30th November, 2006 in the suit No. KWS/206/2005 are hereby affirmed and restored. The Claimant/Appellant is entitled to the costs he had been made to throw away in this appeal. The 2nd and 3rd Defendants (particularly the 3rd Defendant), as observed by the Lower Court, had clearly abused their offices and powers in the frivolous and highhanded manner they peremptorily took away from the Claimant/Appellant the disputed plot which, in their reckless impunity, they unjustly gave to the 1st Defendant/Respondent. All these are antithetic to the rule of law. Appellant, having spent money, time and other resources to successfully fight this travesty of justice is hereby awarded costs assessed at N2,000,000.00 payable by the Respondents jointly and/or severally. PER EJEMBI EKO, J.S.C.
JUSTICES
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
PAUL ADAMU GALUMJE Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
ATIKU ADERONPE Appellant(s)
AND
1. ALHAJA SOBALAJE ELERAN
2. GOVERNOR, KWARA STATE
3. HONOURABLE COMMISSIONER, KWARA STATE MINISTRY OF LANDS AND HOUSING Respondent(s)
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The Appellant, the Claimant at the trial High Court of Kwara State (Comm: J.E. Gbadeyan, J), spelt out in paragraph 23 of the Statement of Claim the following claims:
23. WHEREOF the Claimant claims against the Defendants jointly and severally as are as follows –
1. A Declaration that with the offer, and acceptance coupled with the payment of consideration in full he acquires title to and a vested right in (the) commercial plot 9 TPS/MISC.168 along Ajase-Ipo Road, Ilorin.
2. A Declaration that the 1st Defendant’s act of going unto (the) commercial plot 9 TPS/MISC.168 Ajase-Ipo Road, Ilorin in a manner adverse to the Claimants title and vested Right is illegal and in trespass.
3. General damages of N5m for the trespass committed by the 1st Defendant on the Claimant’s land aided by the 2nd and 3rd Defendants.
4. A Declaration is entitled to (the) Statutory Right of Occupancy over plot 9, TPS/MISC.168 along Ajase-Ipo Road, Ilorin.
5. Perpetual injunction restraining the Defendants by themselves, agents, servants and privies from committing further
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acts of trespass on the Claimant’s land or going unto the land for any purpose whatever.
The 1st Defendant, against whom reliefs 1, 2, 3 & 5 in paragraph 23 of the Statement of Claim are pointedly directed, is a private citizen and a trader in Ilorin. She seemed to wield some political clout and influence. The 2nd Defendant, Governor of Kwara State, was the Chief Executive of the State Government. And the 3rd Defendant, a Commissioner incharge of the State’s Ministry of Lands and survey, was an appointee of the 2nd Defendant. The Claimant, like the 1st Defendant, is a citizen of Kwara State. He is a retired Director in Federal Civil Service.
The Appellant, herein called the “Claimant,” applied for a commercial plot on TPS/MlSC.168 along Ajase-lpo Road llorin. The approval was communicated to him through a letter, No:LAN/ARO/RES/28O45/Vo\. 1/5 of 17th April, 2005. The letter was signed by one S. A. Abdul, Secretary of the Land Use and Allocation Committee (LUAC) for and on behalf of the 3rd Defendant. This letter Exhibit 1, is herein below reproduced, to wit:
<br< p=””
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MINISTRY OF LANDS AND HOUSING
P.M.B 1425, ILORIN KWARA STATE
Ref. No. LAN/ARO/RES/28045/Vol. 1/5
Kwara State Land Use & Allocation Committee,
P.M.B. 1425,
Ilorin
Date: 17th April, 2005
Dear Sir/Madam,
APPLICATION FOR STATUTORY RIGHT OF OCCUPANCY FOR PLOT WITHIN ILORIN URBAN AREA
With reference to your applicationCOMMERCIAL plot I am happy to inform you that you have been allocated in principle. 9BlockTPS/MISC168
2. Meanwhile, you are requested to forward to this office the sum of N126,000andN20,000.00 being the sum for Premium and Layout fees respectively payable for the category of plot. This could be in cash or bank draft payable to the KWARA STATE “GOVERNMENT”.
You are also to pay a sum of N6,300.00for administrative charge in cash or Bank Draft payable to the MINISTRY OF LANDS AND HOUSING.”
In order to ensure that this offer does not lapse, relevant fees should be paid within NINETY (90) DAYS from the date of this letter, otherwise the plot may be reallocated to another person without prior notice.
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Please note that after the 90 days, the plot, earmarked for you may be reallocated to another person without further notice.
3. you should not occupy or develop the plot until: –
(i) The premium demanded above is paid in full
(ii) Approval for the grant of occupancy is formally conveyed to you and you have accepted it.
(iii) The Town Planning Authority approves the relevant building plan.
(iv) An authorized official of this Department has identified plot to you.
(v) Adequate compensation is paid where applicable.
4. Once condition 3(i) – (iv) have been fulfilled you may demarcate your plot by means of fencing, erection of name, lab signboards or by commencing an approved development.
5. Compensation fee of also payable to Ministry of Lands and Housing.
6. Thank you for co-operation.
S. A. Abdul
Secretary Kwara State Land Use and Allocation Committee
for
For HON. COMMISSIONER:
(Underlining supplied)
LUAC, I pause to state, is a statutory body established by Section 2(2) of the Land Use Act. Its duties and powers include rendering advisory services to the Governor of the State (the 2nd Defendant) and his appointees, including the
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3rd Defendant, on any matter connected with management of land, resettlement of persons affected by revocation of their titles; and resolution of disputes over compensation. It is a standing domestic tribunal with quasi-judicial functions.
The plot allocated to the Claimant is plot 9 on TPS/MISC.168. The 1st Defendant, who neither entered appearance to the suit of the Claimant nor filed any Statement of Defence, did not deny that the Claimant was allocated plot 9 on TPS/MISC.168 vide Exhibit 1. The 1st Defendant, not joining issues with the Claimant on her alleged brazen trespass to plot 9 on TPS/MISC.168, is deemed to admit the facts pleaded against her in the statement of Claim. The facts include her being allocated plot 6 on TPS/MISC.168 (quite distinct from plot 9 on TPS/MISC.168) which she rejected and she was relocated to plot 5 on TPS/MISC.182, which plot she accepted. It is specifically pleaded in paragraph 14 of the Statement of Claim that plots 6 and 9 on TPS/M|SC.168 (before the alleged redrawing) were distinct and separate; that 1st Defendant had problem with plot 5 on TPS/MlSC.L68 and she was re-located to plot 5 on TPS/MlSC.182 – a different
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layout from TPS/MlSC.168; and that the 1st Defendant accepted her re-location to plot 5 on TPS/M1SC.182. It is further averred in the Statement of Claim in paragraphs 17, 18, 19 & 20 thereof:
17. The Claimant avers that the 1st Defendant has no claim whatsoever over his said land (plot 9 TPS/M1SC.168) and the backing given to her by the 3rd Defendant who is responsible to the 2nd Defendant is a naked display of power in an unfair and illegal manner.
18. The 1st Defendant having been allocated plot 5 TPS/MISC.182 has no claim whatever to plot 9 TPS/MISC.168 with which she had never had any relationship.
19. The 1st Defendant has in brazen act of trespass gone to commence the digging of foundation on the Claimant’s land.
20. The Claimant avers that with the allocation of plot 5 TPS/MISC.182, the 1st Defendant was told in clear written terms that her earlier claim to plot 6 on the letter of 4th January, 2005 had determined.
The 1st Defendant, filing no Statement of Defence, did not join issues with the Claimant on the foregone averments. She is deemed in law to have admitted those adverse facts. Facts not disputed are taken as admitted and established. They no longer require proof.
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I find at page 147 of the Record the following facts said to have been admitted by all the parties at the pre-trial conference for the settlement of issues and facts. The facts are;
1. The Claimant was allocated plot 9 TPS/M1SC.168.
2. The Claimant, upon allocation of plot 9 TPS/MISC.9 vide Exhibit 1, paid all heads of consideration required by the said letter of allocation, Exhibit 1.
3. The 2nd and 3rd Defendants, purporting to discover an error in the original Layout Plan TPS/MISC.168, re-drew the layout plan and “the grant” – in Exhibit 1 was obliterated.
4. No plot, in the re-drawn layout plan, was allocated to the Claimant.
5. The 1st Defendant was originally allocated plot 6 TPS/M1SC.168. A problem arose and she was relocated to plot 5 on TPS/MISC.182 – an entirely new layout, which she accepted.
6. After 1st Defendant accepted her relocation from plot 6 on TPS/MISC.168 to plot 5 on TPS/MISC.182 and she accepted it. The 2nd and 3rd Defendants re-drew layout TPS/MISC.168 to accommodate the 1st Defendant (even though she had accepted plot 5
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TPS/MISC.182 on 15.8.2005). The 2nd and 3rd Defendants now brought 1st Defendant back to plot 6 on the re-drawn TPS/MISC.168 which totally dispossessed the Claimant of plot 9 (re-numbered plot) on TPS/MISC.168.
7. LUAC waded into the dispute between the Claimant and the 1st Defendant, heard the parties and had given a date for their verdict. Before LUAC could resolve and communicate their decision to the Claimant and the 1st Defendant, the 3rd Defendant issued statutory Rights of Occupancy to the 1st Defendant over the disputed plot 9 (renumbered as plot 6) on TPS/MISC.168 and claimed that the statutory Right of Occupancy had “foreclosed the right of the Claimant in the entire layout without either withdrawing or revoking “the grant to the claimant over the same plot in Exhibit 1.
On the state of the pleadings and evidence the trial Court, in its final judgment, found inter alia at page 167 of the Record
The Claimant having been shown the plot which he quickly demarcated to take possession after paying the necessary consideration in law and in equity, the Claimant became vested with an enforceable title over the plot.
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The totality of the credible evidence of the three witnesses in this case clearly establishes the Claimant’s vested title since April, 2005. Whereas the possession of the purported statutory Right of Occupancy, on its own, is only a prima facie evidence of title. Whereas in this case, there is a subsisting approval coupled with physical possession of the plot, the person in possession has a better title.
The name of the TPS or numbering the layout notwithstanding after allocating a plot to the Claimant and having taken all necessary steps to put him in (possession) and actually gave him physical possession in April, 2005, the Ministry of Land, had nothing left over that plot to pass to any other individual in November or December, 2005.
The right of an individual on a plot can only be extinguished by revocation not for the benefit of another private individual but for public use (purpose). See Section 28 of the Land Use Act, 1978.
It is trite law that in any situation, as in the instant case, where a Statutory Right of Occupancy is granted to another private individual over a plot of land held by another individual without his consent such
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a Statutory Right of Occupancy has been held illegal, invalid, a null and void.
In the same vein, I hold (that) the title purportedly conferred on the (1st) Defendant (is) invalid, null and void and, accordingly reliefs 1, 2, 4 and 5 (above) are hereby granted as prayed.
In this case, I believe that some Ministry Officials must have played somewhat misleading roles for reasons best known to them, –.
These findings of fact are not perverse. None of the parties has alleged that the findings of facts are perverse. Indeed, they are amply supported by evidence and in tandem with known basic principles of the Nigerian Land Law.
The 3 Defendants appealed. Upon hearing the parties on the appeal, the lower Court reversed the decision of the trial Court, even after holding on authority of OBA OYEBADE LIPEDE & ORS. v. CHIEF ADIO SONEKAN (1995) 1 SCNJ 184; CHIEF JOSEPH OYEYEMI v. COMMISSIONER FOR LOCAL GOVERNMENT KWARA STATE (1992) SCNJ 266 at 278; OJO v. GOVERNOR OF OYO (1989) NWLR (Pt. 95) 572; WILSON v. ATTORNEY-GENERAL OF BENDEL STATE (1985) 1 NWLR (Pt. 4) 572; HART v. MILITARY GOVERNOR OF RIVERS STATE (1976) 2 FNLR 215 at 226;
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that the Courts have a duty to protect a vested right, otherwise lawlessness will reign; and that rights which have vested will not be affected by subsequent change of policy, decision or even the law. This stance appears to be in tandem or in agreement with the trial Court.
The Lower Court, found in its judgment, at page 318 of the Record –
In this case, no legal estate that is statutory right had been conferred by the state on the Respondent (the Claimant). Thus, only an equitable interest was acquired by him.
However, at page 320 of the Record, in a manner appearing to be contradictory of its earlier finding that the Claimant had “only an equitable interest” by the grant to him in Exhibit 1, the Lower Court now found thus –
My humble view of the facts of this case is that at best the (Claimant) would have had an equitable interest in the land if the conditions of allocation under paragraph 3 had been fully implemented and he was in actual possession of the land.
And that by this latter finding it was “constrained to hold that no enforceable right to claim title, damages, trespass etc vests in the (claimant) by the mere allocation of land “in principle” as evidenced by Exhibit I”. The 2nd and 3rd Defendants filed no counter-claim wherein they could have been said to have invited us to hold that, by the Claimant’s alleged fencing of the plot, “the
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conditions of allocation under paragraph 3” of Exhibit 1 had not “been fully implemented” etc.
The Lower Court, not totally disengaged from its earlier finding that “only an equitable interest was acquired” by the Claimant or vested in him by Exhibit 1, States thus at page 322 of the Record-
Let us look at the layman justice of this case. If the plots were renumbered, could not the (claimant) still have the plot allocated to him but with a different number I have to say that the administrators who are to deal with citizens should be even handed and impartial. One Commissioner gave the (claimant) land and his successor peremptorily took it from him. There must be appearance of the rule of law not rule of whims and caprice in the management of human affairs. That is how civilised government should function.
It is unfortunate that the state of our land law prevents us from protecting the (claimant) from frivolous high-handed administrators who engage in reckless administrative decisions (sic: without) adherence to equitable principles.
The question: what is this state of our land law that prevents us from protecting the Claimant from
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this frivolous highhandedness of the 2nd and 3rd Defendants That is the core question.
The Lower Court appears to admit its inability to do justice to the claimant, as it was prevented from doing so by acre land law. In otherwords it found injustice done to the claimant by the 2nd and 3rd Defendants without remedy. But where lies Ubi Jus Ibi remedium in this case in a Court of Justice
The claimant has further appealed to this Court, and has prayed that we restore the judgment of the trial Court. The Respondents in their brief made so much fuss of the grant to the Claimant/Appellant being an “allocation in principle”; that Exhibit 1 was not intended to be a title document, and that the claimant/Appellant’s mere payment of the statutory fees did not “accord him equitable interest” in the disputed plot. On whether Exhibit 1 vested in the claimant “equitable interest” in plot 9 TPS/MISC 168 the Lower Court had abundantly equivocated. As the parties, on authority of A. G. RIVERS STATE v. A. G. AKWA-IBOM STATE (2011) LPELR – 633 SC and FAKOREDE v. A. G. WESTERN STATE (1972) 1 ALL NLR (pt. 1) 175, are not allowed to approbate and reprobate on the same
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issue so also are Courts of law. The 2nd and 3rd Defendants/Respondents hold responsible positions in the Government of Kwara State. They are by that fact presumed to have, if not ascribed with, honour and good reputation.
The Lower Court while construing Exhibit 1 opined at pages 316 – 320 of the Record that the grant or allocation of plot 9 TPS/MISC.168 to the Claimant/Appellant being only in principle conferred “no enforceable right” on him to claim title etc over it. Oxford Advanced Learners Dictionary New 8th Edition defines or illustrates the idiom “in principle” as (1) If something can be done in principle there is no reason why it should not be done although it has not yet been done and there may be some difficulties, and (2) it also means – in general, but not in details. The first illustration seems to suggest the principle of equity by which equity takes as done that which ought to be done.
A grant or allocation in equity is, in the con of Exhibit 1, a grant subject to payment of the necessary consideration that would entitle the grantor to subsequently grant the Statutory Right of Occupancy.
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It vests an interest, which though not fully legal, is equitable in nature pending the formal grant of the Statutory Right of Occupancy for which the requisite fees had been paid by the grantee.
The allocation made in Exhibit 1 by the 3rd Defendant, acting on behalf of the Governor (the 2nd Defendant), was pursuant to the powers statutorily vested in the Governor of Kwara State by Section 2(1)(a) and 5 (1) (a) of the Land Use Act, 1978. That is what gives the allocation to the Claimant in Exhibit 1, including the right to the allocation and the plot allocated, a statutory flavour. The interest of the Claimant accruing to him therefrom has statutory flavour. It is no doubt an interest in an immovable property. Section 44 (1) of the 1999 Constitution enjoins the 2nd and 3rd Defendant/Respondents thus –
No movable property or any interest in any immovable property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –
(a) requires prompt payment of compensation therefor; and
(b) gives to any person claiming such compensation a right of access in the
15
property and the amount of compensation to a Court of law or Tribunal or body having jurisdiction in that part of Nigeria.
I have no doubt whatsoever that the grant or allocation of plot 9 TPS/MISC.168, in principle, to the Claimant/Respondent by the 2nd and 3rd Defendant/Respondent vide Exhibit 1 vests in him an interest in the said plot 9 TPS/MISC.168 that Section 44 (1) of the Constitution protects.
At page 184 of the Record the trial Court, in its judgment, found as a fact (believing the CW.2) that the claimant was given a general approval for a grant of a Statutory Right of Occupancy. It also, at page 185 of the Record, believing the DW.2 that the Claimant, having paid all the fees required as consideration within the time stipulated; the Government owed him (the claimant) a duty to issue the Statutory Right of Occupancy the Claimant had paid for over Plot 9 TPS/MISC.168. The evidence of the DW.2 was an admission against interest. The substance of the DW.2 is that between the Claimant and the Defendants, particularly the 2nd Defendant, there is a done deal. The trial Court, rightly, found the DW.2 to be saying the sacrosanct truth against
16
the interest of the 2nd and 3rd Defendants. That finding of fact was neither challenged by the Defendants, nor found to be perverse by the Lower Court.
Coming back to the much hyped “allocation in principle”, its my firm stance on it is that it conveys the statement of the honour, an honest position, that can be trusted as self-evident truth coming from responsible government officials that an interest has been vested in the allocatee or grantee of a plot, as the claimant. The noun: principle, as Geddes & Grosset: English Thesaurus, as well as Burton’s Legal Thesaurus, suggest is synonymous with equity, goodness, honesty, honour, incorruptibility, integrity, justice, probity, rectitude, righteousness, trustiness, etc.
I should add, for emphasis, that once the Governor, pursuant to his power under Sections 2(1)(a) and 5(1)(a) of the Land Use Act, vests a possessory right in any person that interest, as vested, is right of occupancy: NKWOCHA v. GOVERNOR OF ANAMBRA STATE (1984) SCNLR 634. The Land Use Act empowers the Governor to vest right of occupancy in any person. The right of occupancy, which the Governor is statutorily empowered to vest
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in an individual, is a legally recognisable possessing right in land: SALAMI v. OKE (1987) NWLR (Pt. 63) 1; (1987) 2 NSCC 1167.
All through the whole gamut of evidence there has been no sintilla of fact suggesting that the allocation or grant in Exhibit 1 has either been withdrawn or has been formally revoked for any reason. The 2nd and 3rd Defendants/Respondents, engaging themselves in unproductive prognitive resonance, flaunted an argument running thus; because the Claimant had entered the plot and erected perimeter fence round it without approval he had lost the allocation to him. Just like that Unfortunately, the Lower Court fell for it. There is no evidence that because of this alleged breach of a fundamental term, the 2nd and 3rd Defendants/Respondents revoked or withdrew the grant or the allocation conveyed by Exhibit 1. They have the right, under Section 28 of the Land Use Act, to revoke the allocation for breach of a fundamental term of the grant. The fact that they did not exercise their right of revocation suggests their acquiescence in the erection of the fence. That amounts to waiver, and that also is what makes it unconscionable, on
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grounds of estoppel by conduct on their part, to rely on the fact of the very act they condoned as justification for re-allocating the same plot 9 (or plot 6) on TPS/MISC. 168 to the 1st Defendant. The principle of estoppel by conduct was been codified as Section 151 of the Evidence Act, 1990 LFN (now Section 169 Evidence Act, 2011).
The doctrine of this estoppel in CENTRAL LONDON PROPERTY TRUST LTD v. HIGH TREES HOUSE LTD (1947) KB 130 – THE HIGH TRESS CASE, and COMBE v. COMBE (1951) 1 ALL E. R. 767 operates thus – when one person has, either by virtue of an existing judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such persons representative in interest, to deny the truth of that thing.” The principle, apart being codified in the Evidence Act, has been applied by this Court in several cases including LADIPO AKANNI v. ADEDEJI MAKANJU (1978) 11 SC 13 at 26.
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By this principle, the 2nd and 3rd Defendant/Respondents having condoned the claimant’s act of fencing plot 9 TPS/MSC.168 are estopped from setting up that fact against him as alibi for their (in the words of Ogunwumiju, JCA) “frivolous highhandedness” that smacks of reckless impunity of peremptorily taking plot 9 (renumbered plot 6) TPS/MISC.168 from the Claimant and purportedly giving the same to the 1st Defendant/Respondent.
A cardinal principle in our land law, guaranteed by Section 44 (1) of the Constitution and Section 28 of the Land Use Act, 1978, is that a vested interest in land, legal or equitable, cannot be extinguished whimsically or capriciously without the due process of the law. The Lower Court, at least, acknowledged this principle of law when, while alluding to the cases of HART v. GOVERNOR OF RIVERS STATE (supra), OJO v. GOVERNOR OF OYO STATE (1989) (supra), OBA OYEBADE LIPEDE & ORS v. CHIEF ADIO SONEKAN (1995) (supra), it restated the law correctly that the Courts have a duty to protect vested rights, otherwise a regime of lawlessness will flourish; and that rights or interests in land that have vested will not be affected by subsequent change in law or policy,
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and in this case, a change in the incumbency on the seat of the Commissioner for Lands.
The trial Court, on these principles of Nigerian Land Law, had stated, at page 166 of the Record, that the right of an individual over or in a plot can only be extinguished by due process of the law for the revocation of the same, and that the revocation must be for public purpose and not for the benefit of another private individual. Section 28 of the Land Use Act read together with Section 44 (1) of the Constitution further reinforce these principles of our land law; that the revocation of a vested title or interest in or over a piece of land must be preceded by, or follow a due process of law and it must be for public purpose. These are principles laid down inFOREIGN FINANCE CORP v. LSPDC (1991) 5 SCNJ 52 (also reported as OSHO v. FOREIGN FINANCE CORP (1991) 4 NWLR (pt. 184) 157. The Lower Court was clearly in error when it held that this case and the principles it enunciated are not material and relevant precedent to follow in this case. It apparently misdirected itself when it found or assumed, perversely though, that in the instant case the grant to
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the claimant vide Exhibit 1 had been revoked for breach of a fundamental term.
The grant in Exhibit 1 was/is subsisting. It was/is not a deemed grant. The grant in Exhibit 1 precedes the formality of the issuance of a certificate as evidence of the grant of a Statutory Right of Occupancy, all necessary prerequisites for the formal grant of Statutory Right of Occupancy have been fulfilled. In the circumstance, it is my firm view that the Lower Court was not right when it held, on authority of EMMANUEL ILONA v. SUNDAY IDAKWO (2003) 5 SCNJ 330, that where there is a statutory grant any other deemed grant would be invalid.
The Counsel for the Claimant/Appellant made a point, and I agree, that the law makes no distinction in the treatment of an equitable interest against individuals or authorities who had notice of a subsisting interest before hurriedly, and in a bizarre manner, purportedly, vested a “legal title” on a third party inorder, ostensibly, to defeat or frustrate the earlier subsisting right or interest.
On Exhibit 1, the Lower Court opined that on it the claimant could perhaps lay a claim for specific performance of a
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contract of sale but however doubted if specific performance avails him under the Land Use Act. I am not aware of any rule of law that precludes a Court, in the interest of justice, from making any order for specific performance against the government where the right facts or circumstances justifying such order exist. I have not seen any provision of the Constitution by which it can be construed that any government in Nigeria is immune to order specific performance.
It appears to me that the misleading statement of facts presented to, and alluded to by the Lower Court at page 337 of the Record, that an alternative plot was offered to the claimant/Appellant which he refused to accept, had an enormous impact on the lower Court’s final decision. No pleadings or evidence to that effect exist anywhere in the proceeding supporting that misleading statement of fact. That statement, at page 337 of the Record, has no force of evidence.
It was the 1st Defendant/Respondent who was offered plot 6 on TPS/MISC.182 in lieu of plot 5 on TPS/MISC.168 that she was originally allocated. On 15th August, 2005, Exhibit 7, she accepted plot 5 on TPS/MISC.182 in lieu of plot 6
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on TPS/MISC.168. Between the Claimant and the Defendants/Respondents, particularly the 1st Defendant, there is no dispute that 1st Defendant had migrated from the layout, TPS/MISC.168, having accepted plot 5 on TPS/MISC.182. The purported issuance of Statutory Right of Occupancy over plot 6 (former plot 9) in the re-drawn layout TPS/MISC.168, on which the Defendants/Respondents argue that the issuance of the said Statutory Right of Occupancy had superceded the grant to the Claimant in Exhibit 1, was clearly an act very whimsical, arbitrary and capricious on the part of the 3rd Defendant, an agent of the 2nd Defendant.
Notwithstanding the re-drawing of Layout TPS/MISC.168 the physical location of plot 9 remained fixed and constant. Plot 9 was though renumbered as plot 6. The beacons, as can be seen from Exhibits 6 and D10, demarcating or defining the said plot 9 or plot 6 remain beacons Nos. L9568, L9569, L9581 and L9585 on TPS/MISC.168. In view of Exhibits 1 and 7 and the facts pleaded in the Statement of Claim, which are deemed admitted by the 1st Defendant, I should think that the deponent of the affidavit, Exhibit D1, paragraph 11 thereof, told a
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blatant lie when he averred that “1st Defendant is the first allottee on (the disputed plot) and (it) was restored back to her.” Exhibit D3, the Statutory Right of Occupancy was in view of Exhibit 7 of 18th August, 2005, obviously backdated to 4th January, 2005 to give a holy face to the dubiously capricious and arbitrary antics of the 2nd and 3rd Defendants. For the records and for purposes of the doctrine of priority, the interest of the Claimant on plot 9 (or plot 6) on TPS/MISC.168 was first in time.
On all the issues argued, I allow the appeal. The lower Court had no cause in law, facts and equity to disturb the decision of the trial Court. It found that the trial Court had painstakingly evaluated evidence and correctly appraised the evidence before it, and YET it reversed those findings painstakingly made by the trial Court without any concrete basis. The lower Court in the process made several findings of fact and holdens that are materially contradictory and perverse.
I allow the appeal. The decision of the Court of Appeal dated 12th March, 2008 in the appeal No. CA/IL/43/2007 is hereby set aside. The decision and orders of the trial
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Court delivered on 30th November, 2006 in the suit No. KWS/206/2005 are hereby affirmed and restored.
The Claimant/Appellant is entitled to the costs he had been made to throw away in this appeal. The 2nd and 3rd Defendants (particularly the 3rd Defendant), as observed by the Lower Court, had clearly abused their offices and powers in the frivolous and highhanded manner they peremptorily took away from the Claimant/Appellant the disputed plot which, in their reckless impunity, they unjustly gave to the 1st Defendant/Respondent. All these are antithetic to the rule of law. Appellant, having spent money, time and other resources to successfully fight this travesty of justice is hereby awarded costs assessed at N2,000,000.00 payable by the Respondents jointly and/or severally.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment of my learned brother, Eko, JSC.
I agree with his lordships reasoning and conclusions.
This appeal brings into focus how high Government Officials who are expected to be fair to all persons, instead act as they like, or on their whim and fancies.
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Such conduct makes the reasonable man have a bad impression of the workings of Government.
The appellant applied to the Kwara State Land Use Allocation Committee for a plot of land. His application was successful. He was allocated Plot No. 9 on TPS/MISC/168, and so informed in a letter ref No: LAN/ARO/RES/28045/Vol.115 dated 17 April, 2005. In that letter, he was informed of the conditions he was required to fulfill. All the conditions were fulfilled by the appellant, but in a strange turn of events, the appellants plot was given to the 1st Respondent.
Once the appellant fulfills all the conditions in the letter ref No: LAN/ARO/RES/28045/Vi1.115 dated 17 April 2005, he acquires an equitable interest, and a Right of Occupancy in the land.
The Right of Occupancy usually commences on the date of acceptance of the offer.
I am satisfied that upon fulfilling all the conditions demanded by the Land Use and Allocation Committee the appellant acquired an equitable interest, and a Statutory Right of Occupancy in Plot No.9.
The power to revoke or withdraw the appellant’s Right of Occupancy in Plot 9 accruing under the Land Use
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Act is not inherent in the Governor of the State, rather it flows from Section 28 of the Act, once any of the events therein occurs.
Revoking or Withdrawing the appellants right of occupancy in Plot 9 and allocating the same Plot to the 1st Respondent is an act clearly not done for overriding public interest as provided by Section 28 of the Land Use Act. It was a serious error that must be redressed.
For these brief reasons as well as those more fully given by my learned brother, Eko JSC, I would also allow the appeal and award costs as proposed.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother, Ejembi Eko, JSC and to register my support for the reasoning from which the decision emanated, shall make some comments.
This is an appeal against the judgment of the Court of Appeal or Court below or Lower Court, Ilorin Division, Coram H. M. Ogunwumiju, J. H. Sankey and I. I. Agube JJCA wherein the 1st respondent’s appeal consolidated with the 2nd and 3rd respondents’ appeal was allowed and the judgment of the trial High Court of Kwara State presided over by J. F. Gbadeyan J., set aside.
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On the 8th October, 2018 date of hearing, T.A.B. Oladipo Esq., of learned counsel for the appellant adopted the Further amended appellant’s brief of argument filed on 14/11/17 and deemed filed on 18/4/18 and the appellant’s reply brief to 1st respondent’s brief and another brief in answer to 2nd and 3rd respondents’ brief filed on 2/10/18 and deemed filed on 8/10/18. In the brief were distilled four issues for determination, viz: –
1. Whether the appellant who had paid all consideration for commercial Plot 9, TPS/MISC.168, who was given a plan clearly definitely identifying the plot and placed in physical possession did not acquire a vested equitable interest over the plot of land enforceable against all the respondents and indeed against all persons who had notice of his equitable interest.
2. Whether the failure of the Lower Court to consider and pronounce on crucial issues properly raised before it did not occasion a miscarriage of justice vitiating its judgment.
3. Whether the Lower Court haven held that the challenge to the evaluation and conclusion reached on evidence adduced as done by the trial Court
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was without merit, its reversal of the conclusion and judgment in another breath did not amount to approbation and reprobation at the same time and occasioned a miscarriage of justice.
4. Whether the judgment of the Lower Court is not against the weight of evidence.
Learned counsel for the 1st respondent, Akin Akintoye II adopted the brief of argument filed on 9/2/18 and deemed filed on 18/2/18. He adopted the issues as crafted by the appellant.
Oludare W. Akanbi Esq., learned counsel for 2nd and 3rd respondents adopted their amended brief of argument filed on 19/4/18 and he formulated four issues for determination which are as follows: –
1. Whether the Lower Court was right when it held that the appellant had no enforceable right to claim title to the plot in dispute.
2. Whether or not the Lower Court considered and pronounced on all issues raised before it
3. Whether the Lower Court’s holding that the trial High Court properly evaluated the evidence before it automatically meant that its conclusion cannot be perverse.
4. Whether or not the judgment of the Court is against the weight of evidence before it.
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I shall compress the four issues as crafted into a single one thus: –
SOLE ISSUE:
Whether the Court below was right when it held that appellant had no enforceable right to claim the title to the plot of land in dispute and in doing so had attended to all the issues before it.
Learned counsel for the appellant, T.A.B. Oladipo Esq., contended that appellant acquired an equitable interest over the land in dispute enforceable against the respondents who had notice of the interest. That the Lower Court in breach of the rule of fair hearing failed to consider crucial and substantial issues properly raised before it as strengthening the appellant’s case. That the Court below having found that the trial Court appraised the evidence led painstakingly and in accordance with the law should not have reversed the trial Court’s decision.
Learned counsel went on to state that the lower Court made several findings and conclusions materially contradictory and unsupported by evidence. He cited Walsh v Lonsdale (1882) 21 Ch. D.9; Savage v Sarrough (1937) 13 WLR 141; Okoye v Dumez (Nig.) Ltd (1985) 1 NWLR (Pt.4) 783 at 790; Obijuru v Ozims (1985) 2 NWLR
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(Pt. 6) 167 at 179-180; Ejuetami v Olaiya (2002) FWLR (Pt. 88) 955; Oba Oyebade Lipede & Ors v Chief Adio Sonekan (1995) 1 SCR) 184 at 203; John Bankole v Mojidi Pelu (1991) 8 NWLR (Pt. 211) 523 at 550; Jacob Oyerogba & Anor v Egbewole Olaopa (1998) 12 SCNJ 115 at 125; Katto v CBN (1991) 12 SCNJ 1 at 26 etc.
Learned counsel for the 1st respondent submitted that the appellant had no enforceable right to claim title to the land in dispute and the Court below had considered and pronounced on all issues raised before it. That the conclusion reached by the trial Court after the evaluation of evidence was perverse and unjustifiable and the Court of Appeal had right to reverse it. He referred to Matanmi v Dada (2013) 2 SCNJ 61G at 629; Ajibulu v Ajayi (2013) 12 SCNJ 413; I. T. I. v Aderemi (1999) 6 SCNJ 46 at 73; Nruamah v Ebuzoeme (2013) 1 SCNJ 128 at 146; Oke v Mimiko (2012) 12 SCNJ 77 at 123.
For the 2nd and 3rd respondents, Mr. Oludare Akanbi submitted that the Lower Court pronounced on all issues raised before it and no miscarriage of justice was occasioned and that the findings and conclusion of the lower Court were supported by evidence
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and law and substantial justice served. He cited Gbafe v Gbafe (1996) 6 NWLR (Pt. 455) 417 at 432; A.G. Kwara State v Adeyemo (2017) 1 NWLR (Pt. 1546) 210 at 253; Atolagbe v Awuni (1997) 9 NWLR (Pt. 522) 537 at 562; Chami v UBA Plc (2010) 6 NWLR (Pt. 1191) 474 at 493; Orlu v Gogo-Abite (2010) 98 NWLR (Pt. 1196) 307 at 340.
A reference to the background facts of this matter seems to me imperative to help chart a route of navigation in the dispute at hand. The 1st respondent herein had applied for a residential plot in the Government layout along Ajase-Ipo Road, Ilorin, designated as TPS/MISC/168 and by a letter dated 4th January, 2005 she was allocated Plot 6 in the said layout plots. Subsequently she was allocated Plot 5 by a letter dated 18th August, 2005 in the same layout plots which was immediately withdrawn by the 2nd and 3rd respondents.
The 1st respondent was then put in possession of plot 6 in the month of January 2005 by the 2nd and 3rd respondents after payment of all statutory fees to the 3rd respondent. It was then discovered that there existed an error in the numbering of the layout survey plan which had to be re-drawn with the approval
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of the Survey-General of Kwara State which renumbering effected Plot 9 allocated to the appellant becoming Plot 6 on the ground which fell into the 1st respondent’s plot. Of note is that the first allocation of Plot 6 was to the 1st respondent on the 4th January, 2005 after payment of the statutory fees.
The re-numbering of the survey plan layout caused a dispute between the appellant and the 1st respondent and so both parties were invited before the Secretary of Land Use and Allocation Committee where appellant was informed that the re- numbering affected his plot.
Again, to be noted is that the appellant was allocated Plot 9 by letter dated 17th April, 2005 after payment of all heads of consideration and the allocation subject to the issuance and acceptance of a certificate of Occupancy by the appellant, however, at no time did the 1st respondent renounce her claim to Plot 6 on TPS/MISC/168.
At the trial Court, it was held thus:-
“The Claimant having been shown the plot which he quickly demarcated to take possession after paying the necessary consideration in law and in equity, the claimant became vested with an enforceable title over the plot.
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The totality of the credible evidence of the three witnesses in this case clearly established the claimant’s vested title since April, 2005 whereas the possession of a purported Statutory Right of Occupancy on its own, is only a prima facie evidence of title. Whereas in this case, there is a subsisting approval coupled with physical possession of the plot, the person in possession has a better title.” See paragraphs 3 and 4 of page 166 of the Record.
The Court of Appeal rejecting the position of the trial Court held as can be seen at page 320 of the record thus:-
“My own humble view of the facts of this case is that at best, respondent would have had an equitable interest in the land if the condition of the allocation under paragraph 3 had been fully implemented and he was in actual possession of the land what existed between the parties was merely an agreement for the sale of land. The process of grant of any title be it equitable or legal was still at the inchoate state. This case is almost on all fours with the case of Kiari v Gamaram cited supra in which temporary right of occupancy was held to be mere
35
administrative licence, permit or privilege but does not confer on or vest the licencee any title interest or estate in such party. The Supreme Court held that a person with a power temporary right of occupancy who was in possession had no better title than a person later granted a statutory right of occupancy as former vest no right on the grantee.” (Underlining for emphasis).
I shall quote relevant excerpts of the said allocation letter, Exhibit ‘1’ thus: –
“With reference to your application for commercial Plot 1, am happy to inform you that you have been allocated in principle Plot 9 Block TPS/MISC/168.”
Paragraph 3 also states thus: –
“You should not occupy or develop the plot until –
(1) The premium demand above is paid in full;
(2) Approval for the grant of Right of Occupancy is formally conveyed to you and you have accepted it;
(3) The Town Planning Authority approves the relevant building plan.
(4) An authorized official of the Department has identified the plot to you.
(5) Adequate compensation is paid where applicable.”
The two Courts below in their findings found that the appellant was an
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allottee of government land who paid all heads of consideration demanded, who was given a plan specifically denoting his allotted plot and physically placed in possession of a clearly defined and certain plot allotted to him.
The effect of these unassailable facts below is that the appellant had acquired an equitable interest over the said plot of land which is enforceable against a legal title with notice of the equitable interest. This principle of law is from antiquity and restated in the English case of Walsh v Londsdale (1882) 21 Ch.D. 9 and followed in our Clime in the cases of Savage v Sarrough (1937) 13 NLR 141; Okoye v Dumez (Nig.) Ltd (1985) 1 NWLR (Pt.4) 783 at 790; Obijuru v Ozims (1985) 2 NWLR (Pt.6) 167 at 179-180.
It needs be said at this point that if the subsequent purchaser of a legal estate for valuable consideration had no notice of the prior equitable right that is entitled to priority in equity as well as in law. I rely on Ejuetami v Olaiya (2002) FWLR (Pt.88) 955.
Interestingly in the case at hand, the Court below found that appellant had acquired an equitable interest before the transaction with 1st respondent
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came to be, the ground on which the Court below concluded that the appellant’s equitable right was not enforceable was that being an equitable interest only, it had to bow to the superior title acquired by the 1st respondent.
A recall of the background facts shows that the appellant paid all the considerations on the 26/4/05 on which date he was given Exhibit 6 and physically put in possession with the promise to deliver all the documents on the part of the government as soon as possible. At this time, appellant was placed in possession of Plot 9, the respondent’s grant was for Plot 6 when the disputed resolved. 1st respondent was promised an alternative allocation which is Plot 5, later withdrawn and granted Plot 6 and seven months later the government through another Commissioner for Lands claimed to have renumbered the plot and had the appellant driven out of his plot for the 1st respondent to be put in place to the total disregard of the equitable interest that already enured to the appellant thereby going against the decision of this Court in Oba Oyebade Lipede & Ors v Chief Adio Sonekan (1995) 1 SCNI 184 at 203 in which the Supreme
38
Court had held that “rights which have vested will not be affected by subsequent change in policy, decision, or even the law.”
It has to be reiterated that the 2nd and 3rd respondents cannot by their wrongful default in the performance of a public duty defeat or deny the appellant of his right to Plot 9 in TPS/MISC.168. To encourage such conduct and the visitation of the fall out injury on a hapless citizen is to encourage impunity on the part of government functionaries to the detriment of the citizen who is asked not to cry out. See Ayo Solanke v Abraham Abed & Anor (1962) NNLR 92; Oyeyemi v Commissioner For Local Government, Kwara State (1992) 2 SCNJ 266 at 278.
In fact, the findings of the learned trial judge captures the facts and circumstances of this case in that the trial Court found that Plot 5 TPS/MISC.182 superseded Plot 6 TPS/MISC.168, leading to the conclusion that the right of occupancy to 1st respondent may have been improperly issued. In keeping with the provisions of Section 9 (1) (c) of the Land Use Act, 1978, there must have been an entitlement to a statutory right of occupancy before a certificate can be given as evidence of such right.
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Stated differently, when there is no right and a certificate is issued, such certificate as in the case in hand is not worth even the paper it is written on. I place reliance on the cases of Olohunde v Adeyoju (2000) 10 NWLR (Pt. 676) 562 at 587-588; Ogunleye v Oni (1990) 2 NWLR (Pt. 35) 745 at 780.
The conclusion is predicable and that is that the appellant having acquired an equitable interest over the land in dispute enforceable against the respondents who were well aware of the interest, the subsequent purported allocation to the 1st respondent by the 2nd and 3rd respondents remained a wishful thinking without value. There was no basis for the Court of Appeal setting aside the judgment of the trial Court which was in line with the weight of evidence. The appeal is meritorious and I allow it alongside the comprehensive reasoning in the lead judgment and so I set aside the decision of the Court of Appeal and restore the judgment and orders as made by the learned trial judge. Appeal allowed.
PAUL ADAMU GALINJE, J.S.C.: The judgment just delivered by my learned brother, Ejembi Eko, JSC was made available to me in draft and I had an opportunity to read through. I entirely agree with the reasoning contained therein and the conclusion arrived thereat. The facts of this case are ably crafted in the judgment
40
of my learned brother, and I do not need to repeat same in this judgment. It is sufficient to state that the Kwara State Land Use Allocation Committee approved the Appellant’s application for allocation of land and allocated to him Plot NO. 9 on TPS/MISC/168 and this approval was communicated to him through a letter reference no. LAN/ARO/RES/28045/Vol.115 of 17th April, 2005. Several conditions including heads of fees to be paid within 90 days, he was required to fulfil were set out in the letter which was admitted at the trial Court and marked Exhibit 1.
The Appellant fulfilled all the conditions within the prescribed period. Having so fulfilled the conditions as stipulated in Exhibit 1, the Appellant had fully accepted the terms of the contract and the terms of the allocation had become binding on the parties.
The lower Court at page 354 paragraph 2 of the record of this appeal held as follows: –
“My own humble view of the facts of this case is that at best the Respondents would have had an equitable interest in the land if the conditions of allocation under paragraphs 3 had been fully implemented and he was in actual physical possession of the land.
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What existed between the parties was merely an agreement for the sale of land. The process of grant of any title be it equitable or legal was still at the inchoate stage.”
The Respondents at the lower Court is the Appellant herein. The lower Court’s opinion as reproduced above is totally misplaced and it is not in accordance with the evidence before the trial Court and the law. The conditions enumerated at paragraph 3 of Exhibit 1, the letter of allocation of the disputed land to the appellant are as follows: –
“3. You should not occupy or develop the plot until:
(i) the premium demanded above is paid in full;
(ii) approval for the grant of Right of Occupancy is formerly conveyed to you and you have accepted it;
(iii) the town planning authority approves the relevant building plan;
(iv) an authorized official of this department has identified plot to you;
(v) adequate compensation is paid where applicable.
The parties are in agreement that the appellant did comply with the first condition within the stipulated period and that an authorized official of the department of land had identified the plot to the Appellant. This is reflected in the judgment of the lower Court at pages 348 – 349 thus:-
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“It is common ground that on the 26th April, 2005, the Respondents consequent on the allocation of plot 9 on TPS/MISC/168 along Ajase-Ipo Ilorin to him vide Exhibit 1 paid all head of consideration totaling N172,300.00. It is a further common ground that consequent on the payment he was given by the 2nd and 3rd Appellants Exhibit 6 a plan denoting all the plots with his plot 9 marked in black ink. Subsequently on the instruction of the commissioner in the Ministry of Lands and Housing, Officers of the Ministry went unto the land with the Respondent and definitively identified his Commercial Plot 9 on TPS/MISC/168 and placed him on it.”
By this finding, actual grant of plot 9 on TPS/MISC/168 had been made to the Appellant. The issue of approval of building plan by the Town Planning Authority has no bearing on this case as it is only when the Appellant desires to put up a building that he will seek for such approval. Also none of the parties raised the issue of compensation with respect to the disputed plot.
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The only condition which the lower Court in its opinion was not fulfilled is the second condition which stipulates that the Appellant should not occupy or develop the plot until approval for the grant of occupancy is formerly conveyed to him and he has accepted it. This provision does make sense to me.
The letter of allocation was clearly an offer and the Land Use Allocation Committee clearly stated at paragraph 2(3) of its letter dated 17th April, 2005 as follows: –
“In order to ensure that this offer does not lapse, relevant fees should be paid within NINETY (90) DAYS from the date of this letter, otherwise the plot may be relocated to another person without prior notice.”
By prompt payment of these fees within the prescribed period, the Appellant had accepted the offer. There was no more acceptance of offer in the transaction as the agreement had been crystallized into a binding contract.
The right of occupancy, in my view is the approval of the Appellant’s application which was duly convey to him. What was left for the Governor of Kwara State, (1st Respondent) to do was to issue a certificate of occupancy. This Court in a number of cases has held that a certificate of
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statutory or customary right of occupancy issued under the Land Use Act 1978, cannot be said to be conclusive evidence of any right, interest or valid title to land in favour of grantee. It is at best, only a prima facie evidence of such right, interest or title without more, and may in appropriate cases be effectively challenged and rendered invalid, null and void. See Lababedi vs Lagos Metal Industries (Nig) Ltd (1973) NSCC1 at 6; Kyari vs Alkali and Ors (2001) 5 SCNJ 421; Sunmonu Olohunde & Anor vs Adeyoju (2000) 79 LRCN 2297.
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. The Land Use Allocation Committee is a statutory body established by Section 2(2) of the Land Use Act and the appointment of members of the committee is made by the Governor. The beneficiary of allocation of land by this body is a holder of statutory right of occupancy under Section 5 of the Land Use Act. It follows then that no other person can
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be granted a right of occupation in respect of the same land unless Section 28 of the Land Use Act is fully complied with. Any other right of occupancy purportedly granted is null and void.
There was no evidence before the trial Court that the right of occupancy granted to the Appellant herein was revoked before a certificate of occupancy was issued to the 1st Respondent. Clearly the issuance of certificate to the 1st Respondent was carried out in violation of the provisions of Section 28 of the Land Use Act and it is therefore a nullity.
At the trial Court, the 1st Respondent neither entered appearance nor did she file a statement of defence. The law is settled that where the evidence given by a party to any proceeding was not challenged by the adverse party who had the opportunity to do so, it is always open to the Court seized of the case to act on such unchallenged evidence before it. See Isaac Omoregbe vs Daniel Lawani (1980) 3 – 4 SC 108 at 117; Odulaja vs Haddad (1973) 11 SC 35; Nigerian Maritime Services Ltd vs Alhaji Bello Afolabi (1978) 2 S 79 at 81; Abel Boshoti vs Allied Commercial Exporters Ltd (1961) ALL NLR 917.
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The evidence before the trial Court clearly admitted that Plot 5 on TPS/MISC 182 which was allocated to and accepted by the 1st Respondent is different from Plot 9 on TPS/MISC.168 which was allocated to the Appellant. It was also in evidence that the drawings were adjusted and Plot 9 on TPS/MISC/168, became Plot 6 on the same TPS. Having so admitted these facts, the 1st Respondent clearly admitted that her entrance into Plot 6 TPS/MISC/168 was an act of trespass.
My learned brother Ejembi Eko JSC has commented extensively on the conduct of the 2nd and 3rd Respondents. I do not need to say more, except to state that justice is the bedrock of any civilized and descent society. Where officials of Government act with brazen impunity, without consideration of the rule of law, peace and human satisfaction will disappear and chaos and jungle justice will become the norm.
With these few words and the more detailed reasoning in the judgment of Ejembi Eko JSC which I adopt as mine, this appeal shall be and it is hereby allowed. I endorse all the consequential orders made in that judgment including order as to costs.
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SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Ejembi Eko, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal has merit, and it is accordingly allowed by me.
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Appearances:
T.A.B. Oladipo, Esq. with him, D. D. Enikanolaiye, Esq.For Appellant(s)
Akin Akintoye II, Esq. with him, Gbenga Oyewole, Esq. for the 1st Respondent.
Oludare Akanbi, Esq. for the 2nd & 3rd RespondentsFor Respondent(s)
Appearances
T.A.B. Oladipo, Esq. with him, D. D. Enikanolaiye, Esq.For Appellant
AND
Akin Akintoye II, Esq. with him, Gbenga Oyewole, Esq. for the 1st Respondent.
Oludare Akanbi, Esq. for the 2nd & 3rd RespondentsFor Respondent
