MALLAM MALA GADZAMA & ANOR v. COLONEL GARBA ADAMU & ORS
(2014)LCN/7582(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of December, 2014
CA/J/71/2011
RATIO
EVIDENCE: ADMISSION; WHETHER WHAT IS ADMITTED NEEDS NO FURTHER PROOF
What is admitted needs no further proof. See Andony vs. Ayi II & Ors. (2004) All FWLR (Pt.227) 444 at 482 and Elendu vs. Ekwoaba (1999) 3 NWLR (Pt.386) 704 at 747. per. JOSEPH TINE TUR, J.C.A.
LAND LAW; THE POWER OF THE GOVERNOR; THE POWER OF THE GOVERNOR TO GRAN APPROVAL OR CONSENT TO VALIDATE A PURCHASE OR TRANSFER OF PROPERTY FROM ONE PARTY TO THE OTHER IN RESPECT OF LANDS GOVERNED BY THE ACT ACCORDING TO THE LAND USE ACT
Section 22 of the Land Use Act, 1978 which empowers the Governor to grant approval or consent to validate a purchase or transfer of property from one party to the other in respect of lands governed by the Act (supra) it seems to me is applicable to the facts of this case. The Section reads as follows:
“22(1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Government to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise however without the consent of the Governor first had and obtained:
Provided that the consent of the Governor:-
(a) shall not be required to the creation of a legal mortgage over a statutory right of occupancy in favour of a person in whose favour an equitable mortgage over the right of occupancy has already been created with the consent of the Governor;
(b) shall not be required to the reconveyance or release by a mortgage to a holder or occupier of a statutory right of occupancy which that holder or occupier has mortgage to that mortgage with the consent of the Governor.
(c) to the renewal of a sublease shall not be presumed by reason only of his having consented to the ground of a sublease containing as option to renew the same.
(2) The Governor when giving his consent to an assignment, mortgage or sub-lease may require the holder of a statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage or sub-lease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under subsection (1) may be signified by endorsement thereon.
23(1) A sub-lease of a statutory right of Occupancy may, with the prior consent of the Governor and with the approval of the holder of the statutory right of occupancy, demise by way of sub-lease to another person the land comprised in the sub-lease held by him on any portion of the land.
(2) The provisions of subsection (2) of Section 22 shall apply mutatis mutandis to any transaction effected under subsection (1) of this section as if it were a sub-lease granted under Section 22.” per. JOSEPH TINE TUR, J.C.A.
COURT: DUTY OF A COURT; THE DUTY OF A COURT ACTING AS A COURT OF CONSCIENCE TO PREVENT THE PLAINTIFF FROM SUFFERING PECUNIARY INJURY AGAINST THE DICTATES OF CONSCIENCE
In Trenco (Nig.) Ltd. vs. African Real Estate (1978) 1 LRN 146, Aniagolu, JSC held at page 154 would be yielding to constructive fraud. His Lordship held in that case not dissimilar to this appeal that:
“…It is a case in which this Court, acting as a Court of conscience, must prevent the plaintiffs (1st respondent) from suffering pecuniary injury against the dictates of conscience. At page 952, (Nocton vs. Lord Ashurton (1914) A.C. 932, Lord Haldane, in developing this doctrine of constructive fraud, stated:
“But in addition to this concurrent jurisdiction, the Court of Chancery exercised an exclusive jurisdiction in cases which, although classified in that Court as cases of fraud, yet did not necessarily impart the element of dolus malus. The Court took upon itself to prevent a man from acting against the dictates of his conscience as defined by the Court, and to grant injunctions in anticipation of injury, as well as relief where injury has been done.”
(Words in bracket are mine and for emphasis).
The learned trial Judge granted relief to the 1st respondent to prevent the Governor of Borno State from acting against the dictates of conscience having found that a breach of contract resulting in damages had been proved by the 1st respondent. In the same vein Graham Paul, J., held in Ashogbon vs. Odutan (1935) 12 NLR 7 at 10 that:
“…I regard this Court in its equity jurisdiction as in some measure… the keeper of the conscience of native communities in regard to the absolute enforcement of alleged native customs.”
See also Onyia vs. Oniah (1989) 2 SCNJ 120 at 134.
All Courts of law and equity are the keepers of the conscience of the society and will prevent any person or authority from acting against the dictates of conscience.
In Snell’s Principles of Equity, 26th edition, page 44 the learned author put the matter as follows:
“EQUITY LOOKS ON THAT AS DONE WHICH OUGHT TO BE DONE (Banks vs. Sutton (1732) 2 P.Wms 700 at 715): This maxim has its most frequent application in the case of contracts. Equity treats a contract to do a thing as if the thing were already done, but only in favour of persons entitled to enforce the contract specifically and not in favour of volunteers (Re Anstis (1186) 31 Ch.D. 596; Re Plumptre’s Marriage Settlement (1910) 1 Ch.609). Agreements for value are accordingly in many instances considered as performed as from the time when they ought to have been performed, and they have all the same consequences as if they had then been completely performed.” per. JOSEPH TINE TUR, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
1. MALLAM MALA GADZAMA
2. HAJIYA YAGANA ALKALI MUAZU Appellant(s)
AND
1. COLONEL GARBA ADAMU (RTD)
2. HON. COMM. FOR LAND & SURVEY BORNO STATE
3. ATTORNEY-GENERAL, BORNO STATE Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): Moh’d Mustapha, J., sitting in the High Court of Justice, Borno State holden at Maiduguri, delivered judgment in favour of Colonel Garba Adamu (Rtd) “the respondent” against (1) Mallam Mala A. Gadzama (2) Hajiya Yagana Alkali Muazu (3) the Honourable Commissioner for Lands and Survey, Borno State and (4) Hon. Attorney-General, Borno State as defendants, called “the appellants” in this appeal. The subject matter in dispute was a burnt down property No.F11 Bama G.R.A., Maiduguri, Borno State belonging to the Borno State Government. The respondent and the 1st appellant claimed they had at one time or the other, purchased the property from the Borno State Government. Each claimed to be entitled to a statutory Certificate of Occupancy from the Borno State Government. According to the respondent the transaction started in April, 1997 when he paid N2,000.00 for the processing of the documents relating to the purchase of the property. Paragraphs 17-23 of the Statement of Claim pleaded the genesis of the dispute that led to the institution of this suit at the lower Court to be as follows:
“17. The plaintiff contends that the grant of Certificate of Occupancy over the property now in dispute to the 1st defendant in BO/43583 is unlawful, ill advised, null and void and of no legal effect.
PARTICULARS:
(a) The plaintiff had already paid N60,000 for the land since 1998 following an earlier evaluation by Government.
(b) Plaintiff’s application has been processed for approval.
(c) Misinformation to Governor that property was undervalued for plaintiff.
(d) Undue influence on Governor that not granting land to 1st defendant will embarrass her.
(e) No Notice to plaintiff that land has been re-valued at N95,000 and should pay the balance of N35,000.
(f) No information to Governor by Secretary that BO/40246 is an earlier application than BO/43583.
(g) No notice to plaintiff that land has been granted to the 1st defendant.
(h) No refund of the N60,000 earlier paid by the plaintiff since 1998.
(i) No evidence that property was undervalued at N60,000 in 1997.
The plaintiff shall at the trial found on file No.BO/43583 and hereby gives the 3rd defendant notice to produce.
18. The plaintiff contends that having applied for and paid N60,000 in 1998 for No. F11 Bama Road G.R.A., Maiduguri and processed all documents ready for approval in BO/40246; he is earlier in time than the 1st defendant who merely applied for “residential plot in any government approved layout” on 15th December, 2000 in BO/43583 and paid N90,000 for the same property on 13th July, 2001.
19. The plaintiff shall at the trial contend that the property which 1st defendant paid for on 13th July, 2001 had already been approved for plaintiff by the 3rd defendant on 30th October, 1997 and paid for by plaintiff on 14th July, 1998.
20. The plaintiff visited the said land in dispute on 30th October, 2003 only to discover that someone is carrying on some renovation of the property and enquiries revealed that it is the 2nd defendant who purportedly bought land for N3.3 million.
21. The plaintiff avers that the said property is worth over N4 million now. Plaintiff may at the trial found on valuation report.
22. On or about 30th October, 2003 investigation carried out at the land registry revealed that there is no Deed of Assignment registered in the name of the 2nd defendant.
23. The plaintiff shall at the trial contend that he is entitled to the grant of Right of Occupancy over the property in dispute as shown in BO/40246 as the 1st defendant is a soldier of fortune and a land grabber.”
Paragraph 24 of the Statement of Claim sets out the reliefs sought against the appellants as follows:
“24. WHEREOF the plaintiff claims:
(i) A declaration that the purported sale/or grant of Certificate of Occupancy No.BO/43583 registered on 29th August, 2001 as No.791 at P.791 in volume 20 at the land registry, Maiduguri of all that property lying, situate and being at No.F11 Bama Road G.R.A., Maiduguri on BOTP 131 by the Borno State Government to the 1st defendant is unlawful, null and void and of no legal effect.
(ii) An order of Court setting aside the purported sale and/or grant of Certificate of Occupancy No.BO/43583 over the aforesaid property known as No.F11 Bama Road G.R.A., Maiduguri same having been earlier sold to the plaintiff by the same Borno State Government.
(iii) A declaration that the plaintiff is entitled to the grant of statutory Right of Occupancy over the said property known as F11 Bama Road G.R.A., Maiduguri on BOTP 131.
(iv) A perpetual injunction restraining the defendants by themselves, their servants, agents or others from dealing in the said property.
(v) In the alternative:
Against the defendants jointly and severally the sum of N4 million being the market value of the aforesaid property situate at No.F11 Bama Road G.R.A., Maiduguri on BOTP 131.”
The 1st and 2nd appellants denied liability in a joint statement of defence dated 21st May, 2004 and went further to plead as follows:
“3. The 1st and 2nd defendants deny paragraph 14 of the Statement of Claim and the 1st defendant avers that some times in December, 2000 she applied for a grant of Right of Occupancy over a burnt down property known as House No.F11 Bama Road G.R.A., Maiduguri. The 1st defendant will found and rely on the application letter dated 14th December, 2000 at the trial. The 3rd defendant is put on notice to produce the original, at the trial.
4. The 1st and 2nd defendants deny paragraph 15 of the statement of claim and the 1st defendant avers that her application was approved with a condition that she should pay the sum of N95,000.00 as residual value of the property. The 1st defendant will rely on the approval letter dated 26th June, 2001 and the receipt No.100572 dated 13th July, 2001 at the trial.
xxx
6. The 1st defendant further avers that pursuant to payments of all the Statutory fees she was granted Right of Occupancy No.BO/43583/15 and Certificate of Occupancy No.BO/43583 by the Executive Governor of Borno State. The 1st defendant will rely on the said Certificates and all the receipts/documents issued to her in respect of the said property.
7. The 1st and 2nd defendants deny paragraphs 17, 18 and 19 of the Statement of Claim and the 1st defendant avers that she exercised her Right and assigned the property to the 2nd defendant after paying all the necessary fees through Messrs Mussawa Chambers. The 1st defendant will rely on all receipts/document issued to her through Messrs Mussawa Chambers as her Solicitors during the transaction.
8. The 1st and 2nd defendants deny paragraphs 21, 22, 23 and 24 of the Statement of Claim and the 2nd defendant avers that he purchased the property from the 1st defendant and legal Deed of Assignment was duly registered between him and the 1st defendant. The 2nd defendant will rely on the registered Deed of Assignment and all other receipts/documents issued to him in course of registering the deed dated 20th day of August, 2003 at the trial.
9. The 1st and 2nd defendant will at the trial of this suit urge the Court to dismiss this suit in its entirety particularly the claims contained in paragraph 24 of the statement of claim as same is vexatious frivolous and lacks merit with substantial cost.”
Leave was granted the 3rd and 4th appellants in the Court below to also file a Joint Statement of Defence wherein they pleaded thus:
“4. The 3rd and 4th defendants deny paragraphs 7, 8, 9 and 10 of the plaintiff statement of claim and put the plaintiff to the strictest proof thereof.
5. In further reply to paragraph 7 of the plaintiff statement of claim the plaintiff was given specific period of time within which to pay the said sum.
6. In further reply to paragraph 8 of the plaintiff statement of claim, the payment was made after the expiration of the time given to him by the 3rd defendant to pay, the 3rd and 4th defendant will rely on the letter of the 3rd defendant reference No.BO/40246/15 dated 30th October, 1997 at the trial.
xxx
9. In further to (sic) reply to paragraph 13 of the plaintiff statement of claim, his application form, has not been processed by the 3rd and 4th defendants.
10. The 3rd and 4th defendants deny paragraphs 15, 16 and 17 of the plaintiff statement of claim and put the plaintiff to the strictest proof thereof.
11. In further reply to the aforesaid paragraphs 15, 16 and 17, the 3rd defendant only admits to the extent that the said landed property was duly allocated to the 1st defendant on the basis that all the necessary procedures to acquire land was complied with.
12. The 3rd and 4th defendants deny paragraphs 18, 19, 20, 21, 22 and 23 of the plaintiff statement of claim and put the plaintiff to strictest of proof thereof.
13. In further reply to paragraphs 18 and 19 of the plaintiff statement of claim. There was no approval made in his favour by 3rd and 4th defendants.
14. Whereof the 3rd and 4th defendants avers that the plaintiff is not entitled to any or all of the reliefs sought – under paragraphs 17 and 24 of the plaintiff statement of claim and the suit be dismissed with substantially cost for its being frivolous vexatious and misconceived.”
At the close of pleadings it became clear that the property in dispute belonged to Borno State Government therein by the Honourable Commissioner for Lands and Survey, Borno State. It was also not in dispute that the 1st respondent had applied to purchase the property in April, 1997 and paid N2,000.00 to the Borno State Government on 30th April, 1997 whether as processing fee or for the form as the case may be. Further payments were made as reflected in paragraph 17 of the 1st respondents’ Statement of Claim. 1st and 2nd appellants however pleaded in paragraph 3 of the Joint Statement of Defence that it was sometimes in December, 2000 that the 1st appellant applied for a right of occupancy over the disputed property by virtue of a letter dated 14th December, 2000. The approval letter is dated 26th June, 2001. The purchase price was N95,000.00. 1st appellant sold the property to the 2nd appellant. The matter proceeded to hearing and determination. Oral and documentary exhibits were tendered by both parties. The learned trial Judge considered the oral and documentary exhibits before entering judgment in favour of the 1st respondent as per his claim. Aggrieved with the judgment the appellants filed a Notice of Appeal on 22nd September, 2010 which was subsequently amended with leave of this Court on 22nd April, 2013. Appellants’ initial brief of argument was amended with leave of Court on 17th June, 2014 with a deeming order dated 6th May, 2014. 1st respondent filed a brief on 8th July, 2014. The 2nd and 3rd respondents did not file any brief. When the appeal came up for hearing on 23rd September, 2001 learned Counsel adopted their respective briefs of argument.
The appellants identified the following issues for determination:
“1. Whether there was a binding and enforceable contract that can create equitable interest on the land in dispute in favour of the 1st respondent. (Encompassing ground 2 of the Grounds of Appeal).
2. Did the learned trial Judge not depart from the case as disclosed in the pleadings and the evidence before him when he found that lack of Governor’s consent or approval cannot vitiate the tacit agreement between the plaintiff and the 3rd and 4th defendants? (Encompassing ground 4 of the Grounds of Appeal).
3. Whether the 1st respondent proved better title to the house in dispute so as to justify the setting aside of the Certificate of Occupancy and deed of assignment granted and executed in favour of the appellants? (Encompassing grounds 1, 3, 5, & 6 of the Grounds of Appeal).”
The 1st respondent formulated the same issues for determination hence I do not intend to reproduce them. See Attorney-General of the Federation & Ors. vs. Abubakar (2007) All FWLR (Pt.375) 405 at 454 paragraphs “D”-“H”. The 2nd and 3rd respondents filed brief of argument on 21st August, 2014. However, when the appeal came up for hearing on 23rd September, 2014 U.D. Yerima, Deputy Director of Civil Litigation, Ministry of Justice, Borno State withdrew the brief which was struckout.
Notice of preliminary objection filed by 1st respondent’s learned Counsel on 31st May, 2011 was not argued on 23rd September, 2014 when the appeal came up for hearing, hence is deemed abandoned, and is accordingly struckout.
I have considered the issues formulated for determination in the appellants’ brief. Having set out the pleadings of the parties and read the judgment of the learned trial Judge. The question is: What was the real issue in controversy derivable from the pleadings, oral and documentary exhibits put forward by the parties in the lower Court and in this Court?
In my humble view the learned trial judge captured the issue in controversy when he held at pages 79 lines 12 page 80 lines 1-11 of the printed record as follows:
“For the avoidance of doubt the plaintiff on the 30th of April, 1997 applied to the Borno State Government for grant of Right of Occupancy over a burnt down property known as F11 Bama Road G.R.A. Maiduguri, which happens to be the property in dispute. The property was valued by officers of the Ministry of Land and Survey, Borno State at N60,000.00. This much is not in dispute, and is supported by Exhibit F2. the 3rd defendant on the 30th of October, 1997 wrote a letter of offer to the plaintiff, for the sale of the property in dispute as per page 15 of Exhibit “F2”, this much is not also in dispute. The plaintiff claims the letter of 30th October, 1997 did not reach him until 1998; the said letter had requested the plaintiff among other things to pay the value of the property within two weeks, clearly then the two weeks had elapsed, long before he claimed to have gotten the letter. What is in dispute is whether or not he got the letter in time but failed to make the payment within the stipulated two weeks. Having said that the plaintiff when he got the letter in 1998 as he claimed proceeded to pay the N60,000.00, the Ministry of Land not only received the money in spite of the obvious fact that time had elapsed, but proceeded to issue the plaintiff a receipt, acknowledging payment.
In the interim, one Usman Mafa also applied for the same property on the 15th of August, 1997 as per page 13 of Exhibit “F2”; the Governor who is the approving authority directed that the land be sold to the plaintiff, and Usman Mafa be sold another property, also as per page 16 of “F2”. The process of final approval by the Governor though initiated was not completed, when the 1st defendant applied for the same property on the 14th of December, 2000 as per page 4 of Exhibit “F1″. It is important to note at this stage regimes had changed, as an entirely new Governor was in office. Government officials of the new regime, while not unaware of the previous application re-evaluated the property upwards and sold same to the 1st defendant, at the revised cost of N95,000.00. The new Governor signed and approved same after all formalities of process.
The question that now arises is who has better title?”
The learned trial Judge answered the above poser holding at page 80 lines 12 to page 81 lines 1-24 of the printed record as follows:
“It is much easier and a lot less controversial to come to the assumption and conclusion that since the 1st defendant had a Certificate of Occupancy she has a better title. It is equally easy to come to the conclusion that since the plaintiff did not pay within the two weeks required of him by the offer he has failed to satisfy a necessary condition. But the same government and its departments that made the offer inclusive of its conditions accepted the plaintiff’s payment years later with a receipt to boot. If that is not a waiver I don’t know what is. Besides, it is not pleaded anywhere nor was evidence led to suggest that the plaintiff’s failure to pay within the stipulated two weeks constituted a fundamental breach; the issue was raised almost as an after thought; most importantly the offer with its conditions to pay within two weeks, the plaintiff claims was not communicated to him until 1998; and there is no evidence from the defence to contradict that claim; and when he paid on receiving the offer as he claimed it was accepted.
Governance is about continuity. The fact which this Court like any other cannot help but take notice of is that government and its institutions are turned or better put run a lot of times like private businesses. How else can one explain a situation where one government does something, and another does the exact opposite, all in the interest of the people? Or need I say the interest of the well positioned few! A spade I must say should be called a spade.
Having said that it is important to point out that while the Governor has the final approval in this regard, leading to the grant of a Certificate of Occupancy; the offer to the plaintiff, the acceptance of his payment has in my opinion created an equitable interest, which not even the subsequent Governor’s approval of the Certificate of Occupancy can defeat. As held in Ejuetami vs. Olaiya (2001) 18 NWLR (Pt.746) “It is the general rule of equity that the person whose equity is attached to the property first will be entitled to priority over the other.” This is also the principle in Walsh vs. Lonsdale (1882) 21 Ch.D. 9, where it was held that an agreement for a lease though only an agreement it confers an equitable interest in the property in issue. But I am most fortified in this by the decision in Kachalla vs. Banki (2006) 8 NWLR (Pt.982) at 367, where the Supreme Court held, “Where a person pays for land and obtains a receipt for payment, followed by his going into possession, equitable interest is created for him in the land, such as would defeat the title of a subsequent legal estate purchaser with knowledge of the equitable interest in the land.”
It is important to point out that the 1st defendant had knowledge of the equitable interest from the onset, both Exhibits “F1” and “F2″ attest to that, as contemplated by the Supreme Court; and on the question whether possession is relevant in this case I venture to say yes it is, but it does not have to be actual possession, constructive possession suffices too. Banki (supra) is therefore on all fours with the case at hand.”
The learned trial Judge having examined the oral and documentary evidence concluded at page 82 lines 20 to 24 of the printed record as follows:
“The plaintiff I am satisfied discharged the burden placed on him, on a balance of probabilities; and that leads invariably to the conclusion that the property in dispute cannot therefore be transferred to anyone legally by the 1st defendant if she does not have the property herself, as you cannot give what you do not have.”
I am therefore of the humble opinion that issues 1, 2 and 3 having overlapped may be merged and argued together. See Anie vs. Uzorka (1993) 8 NWLR (Pt.309) 1 at 16 paragraph “G” and page 17 paragraph “G”. Proliferation of issues for determination is deprecated by the Supreme Court. See Ononuju vs. State (2014) 8 NWLR (Pt.1409) 345 at 378 paragraphs “A”- “D”; Omega vs. O.B.C Ltd. (2005) 8 NWLR (Pt.928) 547 and Mozie vs. Mbamalu (2006) 15 NWLR (Pt.1003) 466. The issues distilled for determination must take cognizance of the pleaded and contested facts as well as the ratio decidendi of the judgment of the Court. Issues are joined on the pleadings. See Atanda & Ors. vs. Akanji & Ors. (1989) 2 NSCC 511 at 526 and Idahosa vs. Oronsaye (1959) 4 FSC 166.
The combined argument of the appellants’ learned Counsel is that there was no valid and enforceable contract between the 1st respondent and the 2nd and 3rd respondents in this appeal, notwithstanding the payments made by 1st respondent to the Commissioner for Lands and Survey for the property in dispute since the Governor did not give his consent to the transaction. Counsel submitted that an enforceable agreement would have come into effect when the Governor had given consent to the transaction. Learned Counsel referred to Dankula vs. Shagamu (2008) All NWLR (Pt.413) 1289 at 1307 and B.F.G. vs. B.P.E (2008) All FWLR (Pt.416) 1915 at 1938. It was submitted that the 1st respondent ought to know he had to wait for the approval or consent of the Governor for an enforceable contract to come into existence. In the absence of the Governor’s consent or approval, there was no enforceable contract, hence no breach of contract occurred to warrant the Court to grant the reliefs claimed by the 1st respondent against the appellants, citing N.J Konye vs. MTN Nig. Com. Ltd. (2008) All FWLR (Pt.413) 1343 at 1464; Network Security Ltd. vs. Dahiru (2008) All FWLR (Pt.419) 475 at 499; Adole vs. Gwar (2008) All FWLR (Pt.4230 1217 at 1234.
The learned Counsel also referred to various sections of the Land Use Act, 1978 to buttress his argument, citing Mini Lodge vs. Ngei (2009) 12 SCNJ 93 at 116. However, Counsel drew attention to decided authorities such as Zakhem vs. Nneji (2006) 5 SCNJ 253 and Shell BP vs. Jammal Engineering (1974) 4 SC 33 at 72 as showing that the bundle of correspondences that exchanged between parties have to be construed to determine whether there was an enforceable contract. The trial Court should have examined the correspondences to see whether an enforceable contract has emerged, citing Nnanyelugo vs. Nnanyelugo (2008) All FWLR (Pt.401) 897 at 913. Counsel argued that the lack of consent of the Governor vitiated the transaction between the 1st respondent and the 3rd-4th respondents, citing Manfay Nig. Ltd vs. Mlsoi Ltd. (2007) 14 NWLR (Pt.1053) (without pagination) and International ile Industries (Nig) Ltd vs. Aderemi (1999) 8 NWLR (Pt.614) 268 at 298. Learned Counsel argued that the 1st respondent was not entitled to judgment; the appeal should be allowed and the 1st respondent’s claim should stand dismissed. Furthermore, that no order for specific performance could have been made in favour of the 1st respondent against the 3rd and 4th respondents in this circumstances, citing UBA vs. BTL (2006) 12 SCNJ 217 at 241; Olaniran vs. Adebayo (2008) All FWLR (Pt.416) 767 at 778 and Kachalla vs. Banki (2006) 8 NWLR (Pt.982) 39 and a host of other authorities.
Learned Counsel to the 1st respondent replied that on 30th April, 1997 the 1st respondent applied to the Borno State Government to purchase the property in dispute and paid processing fee of N2,000.00. This constituted an offer to purchase the property from the Government when the Government valued the property and issued a letter of acceptance and further directed that N60,000.00 be paid as compensation for the remaining structure within two weeks from the date of the letter, and the 1st respondent paid N60,000.00 as demanded on 14th July, 1998, there was a legally binding agreement. The payment of the purchase price and acceptance by the Borno State Government constituted an intention to enter into a legal relationship, citing The Council of Yaba College of Technology vs. Nigebec Contractors (1989) 1 NWLR (Pt.95) 99. Therefore the 1st respondent had an equitable interest in the disputed property.
A plethora of authorities were cited by learned Counsel to support his contention that there was nothing the 2nd and 3rd respondents in this Court could have transferred to the 1st appellant on the principle of nemo dat quod non habet, citing Olukoya vs. Ashiru (2006) All FWLR (Pt.322) 1479 at 1501. That equity regards as done that which ought to be done, citing Iraguniwu vs. Rivers State Housing Property Development Authority & Ors. (2003) 5 SCNJ 207; Ogundiani vs. Araba (1978) NSCC (Vol.2) 334; Section 169 of the Evidence Act, 2011; Joe Iga vs. Amakiri (1978) 4 SC 9 and Ashibagwu vs. Attorney-General Bendel State (1988) 1 NWLR (Pt.69) 138. It was also contended that it is not every error committed by a trial Court that will vitiate a judgment on appeal, citing Larmie vs. DPM & Service Ltd. (2006) All FWLR (Pt.296) 775 at 795-796; Ohuiabunwa vs. Duru (2009) All FWLR (Pt.450) 651 at 664 and Gbadamosi vs. Dairo (2007) 3 MJSC 1 at 20. The appellants must show how the error complained of led to a miscarriage of justice. Furthermore, it is not enough for the 1st appellant to dangle a statutory Certificate of Occupancy as evidence of title to a disputed property. All transactions leading to the issuance of the statutory Certificate of Occupancy must be above board and be transparent, citing Izeibigie vs. Olobor (2005) All FWLR (Pt.290) 1546; Adebiyi vs. Williams (1989) 1 NWLR (Pt.99) 611 at 619 paragraphs “G”-“H”.
The further contention of Counsel was that the 1st appellant had a spurious grant which conferred no title on her, citing Oniyale vs. Macaulay & Ors. (2009) 3 MJSC 29 at 58 and Jodi vs. Salami (2009) All FWLR (Pt.458) 385 at 412. Counsel also referred to Registered Trustees PPFN vs. Shogbola (2004) 11 NWLR (Pt.883) 10 at 22; NIPC Ltd. vs. Thompson Organization (1969) 1 NMLR 99 and Emmanuel Jiaza vs. Bamgbose (1999) 5 SCNJ 167 as authorities which shows that where the appellants did not plead they were bona fide purchasers of the property in dispute without notice of the equitable interests of the 1st respondent, the issue cannot be argued on appeal. Besides, equity insists on substance rather than form. Reference was made to Parkin vs. Thorold (1852) 16 Beav 59 at 66 per Romilly, M.R. Counsel urged that the appeal should be dismissed and the judgment of the Court below be affirmed.
I shall commence the determination of this appeal by reference to paragraph 4 of the 1st respondent’s Statement of Claim which reads as follows:
“4. The 3rd defendant is the Commissioner charged with the responsibility for land matters in Borno State whilst the 4th defendant is the Chief Law Officer of the Borno State Government.”
Paragraph 1 of the 1st and 2nd appellants’ pleading avers as follows:
“1. The 1st and 2nd defendants admit paragraphs 1, 2, 3, and 4 of the Statement of Claim.”
The 3rd and 4th respondents in the Court below also pleaded as follows:
“1. The 3rd and 4th defendants admit the averment in paragraphs 1, 2, 3 and 4 of the plaintiff (sic) statement of claim.”
What is admitted needs no further proof. See Andony vs. Ayi II & Ors. (2004) All FWLR (Pt.227) 444 at 482 and Elendu vs. Ekwoaba (1999) 3 NWLR (Pt.386) 704 at 747.
Thus the Honourable Commissioner for Lands and Survey was the authority assigned by the Governor with responsibility for land matters in Borno State.
Section 193(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered provides that:
“(1) The Governor of a State may, in his discretion, assign to the Deputy Governor or any Commissioner of the Government of the State responsibility for any business of the Government of that State, including the administration of any department of Government.
(2) The Governor of a State shall hold regular meetings with the Deputy Governor and all Commissioners of the Government of the State for the purposes of
(a) determining the general direction of the policies of the Government of the State;
(b) Co-ordinating the activities of the Governor, the Deputy Governor and the Commissioners of the Government of the State in the discharge of their executive responsibilities; and
(c) advising the Governor generally in the discharge of his executive functions; other than those functions with respect to which he is required by this Constitution to seek the advice or act on the recommendation of any other persons or body.”
There is presumption in law that when the 1st respondent offered to purchase the property in dispute and the offer was accepted by the Commissioner for Lands and Survey, Borno State and N60,000.00 was paid by 1st respondent and accepted by the Ministry of Lands and Survey as evidenced by oral and documentary exhibits, as pleaded and the information is contained in file No.BO/43583 since 30th October, 1997, in my humble view, the transaction had been concretized into a legally enforceable contract. It should be borne in mind that the transaction to sell the property was between the 1st respondent and the Commissioner for Land and Survey, at the behest of the Governor of Borno State. It was not a transaction between the 1st respondent and an individual for which, upon the conclusion of negotiation and the coming into existence of a legally enforceable agreement, the validity of the transaction could only be complete with the consent of the Governor.
The Governor is presumed to have authorized the sale of the disputed property by the Commissioner for Lands and Survey. Therefore, if it is the Governor that grants consent or approval for transfer of possession after the sale of property, that is subject to the Land Use Act, 1978, it is preposterous to argue that without the 1st respondent obtaining consent from the same Governor being the Vendor, there was no enforceable contract. How can it be rationally argued in law and conscience that the same Governor who authorized the sale of the property will withhold his consent upon the completion of the transaction between the 1st respondent and the Commissioner for Lands and Survey after an enforceable contract had come into existence since 30th October, 1997 with the payment and acceptance of the purchase sum of N60,000.00? There is just no rationale reason to support such an argument or contention. Paragraph 12 of the 1st respondent’s pleadings avers as follows:
“12. The plaintiff avers that by 1998/1999 his file was fully processed by the 3rd defendant and awaiting Governor’s approval.”
Paragraph 2 of the 1st and 2nd appellants’ plea is that:
“2. The 1st and 2nd defendants deny paragraphs 5, 6, 7, 8, 9, 10, 12, and 13 of the Statement of Claim and put the plaintiff to the strictest proof thereof.”
The 3rd and 4th respondents in the lower Court also pleaded that:
“8. The 3rd and 4th defendants deny paragraphs 12, 13, and 14 (sic) plaintiff (sic) statement of claim and put the plaintiff to the strictest proof thereof.”
The above pleadings constitute general traverse. The general traverse does not meet the specific facts pleaded in paragraph 12 of the 1st respondent’s statement of claim. In Atolagbe vs. Shorun (1985) 4 SC 250 at 253; Ajani vs. Okusaga (1976) 1 FWLR 188 at 193; Lewis & Peat vs. Akhimien (1976) 7 SC 157, the Supreme Court held that the plea that “defendant is not in a position to admit or deny” etc, material and essential facts in a statement of claim, is insufficient to meet important and specific allegations.
From the pleadings, oral and documentary exhibits, I find that by 1998/1999 the Commissioner for Lands and Survey, Borno State had fully processed the 1st respondent’s file and was awaiting consent or approval from the Governor. Unfortunately, the 1st appellant was granted a Right of Occupancy No.BO/4358/15 and Certificate of Occupancy No.BO/43583 by the Governor of Borno State on the pre, that the appellants had completed all the necessary procedure to acquire the land in dispute as pleaded in paragraph 11 of 2nd and 3rd respondents’ statement of defence. This is not supported by the oral and documentary evidence put forward at the trial and before this Court.
Section 22 of the Land Use Act, 1978 which empowers the Governor to grant approval or consent to validate a purchase or transfer of property from one party to the other in respect of lands governed by the Act (supra) it seems to me is applicable to the facts of this case. The Section reads as follows:
“22(1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Government to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise however without the consent of the Governor first had and obtained:
Provided that the consent of the Governor:-
(a) shall not be required to the creation of a legal mortgage over a statutory right of occupancy in favour of a person in whose favour an equitable mortgage over the right of occupancy has already been created with the consent of the Governor;
(b) shall not be required to the reconveyance or release by a mortgage to a holder or occupier of a statutory right of occupancy which that holder or occupier has mortgage to that mortgage with the consent of the Governor.
(c) to the renewal of a sublease shall not be presumed by reason only of his having consented to the ground of a sublease containing as option to renew the same.
(2) The Governor when giving his consent to an assignment, mortgage or sub-lease may require the holder of a statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage or sub-lease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under subsection (1) may be signified by endorsement thereon.
23(1) A sub-lease of a statutory right of Occupancy may, with the prior consent of the Governor and with the approval of the holder of the statutory right of occupancy, demise by way of sub-lease to another person the land comprised in the sub-lease held by him on any portion of the land.
(2) The provisions of subsection (2) of Section 22 shall apply mutatis mutandis to any transaction effected under subsection (1) of this section as if it were a sub-lease granted under Section 22.”
House No.F11 Bama G.R.A., Maiduguri, Borno State is the agreed property of Borno State Government. The 1st respondent was not and has never been “a holder of a statutory right of occupancy” over the property in dispute.
A “holder” is defined as, “in relation to a right of occupancy, means a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgage, sub-lessee or sub-underlessee.” See Section 51(1) of the Land Use Act No.6 of the 1978. The 1st respondent would only come within the holder of a statutory right of occupancy if the Governor of Borno State had granted him the right of Occupancy evidenced by a Certificate of Occupancy under Section 9(1)(a) and (c) of the Land Use Act (supra). For the moment the 1st respondent’s grievances are that upon completion of negotiation and the concretization of a legally binding contract, he is entitled to a statutory right of occupancy over the disputed property.
Furthermore, the 1st respondent did not seek, upon being granted a statutory right of occupancy alienate the property to an individual so as to require the consent of the Governor to be first had and obtained. Rather, it is the Governor who has the authority to give consent to an application for the transfer of possession of property who should grant the consent upon the negotiation having crystallized into a legally enforceable contract. In my humble view the transaction between the 1st respondent and the Commissioner for Lands and Survey, Borno State is not governed by the provisions of Section 22 to 23 of the Land Use Act, 1978. To hold otherwise is to allow the appellants and the Governor of Borno State to use the Act as an engine of fraud. For the Government of Borno State to sell the property to the 1st respondent, collect N60,000.00 and later claim the transaction was vitiated for lack of his consent is unconscionable.
There is nothing in the pleadings of the appellants or the 2nd and 3rd respondents showing that the Commissioner for Lands and Survey, Borno State have no authority from whoever was the then Governor between the years 1997-1999 to have put up the property in dispute for sale. The appellants and the 2nd and 3rd respondents in this appeal had not established any irregularity in the sale transaction. For the lower Court and this Court to allow the appellants and the Governor of Borno State to have their away will amount to injustice of the highest order.
In Trenco (Nig.) Ltd. vs. African Real Estate (1978) 1 LRN 146, Aniagolu, JSC held at page 154 would be yielding to constructive fraud. His Lordship held in that case not dissimilar to this appeal that:
“…It is a case in which this Court, acting as a Court of conscience, must prevent the plaintiffs (1st respondent) from suffering pecuniary injury against the dictates of conscience. At page 952, (Nocton vs. Lord Ashurton (1914) A.C. 932, Lord Haldane, in developing this doctrine of constructive fraud, stated:
“But in addition to this concurrent jurisdiction, the Court of Chancery exercised an exclusive jurisdiction in cases which, although classified in that Court as cases of fraud, yet did not necessarily impart the element of dolus malus. The Court took upon itself to prevent a man from acting against the dictates of his conscience as defined by the Court, and to grant injunctions in anticipation of injury, as well as relief where injury has been done.”
(Words in bracket are mine and for emphasis).
The learned trial Judge granted relief to the 1st respondent to prevent the Governor of Borno State from acting against the dictates of conscience having found that a breach of contract resulting in damages had been proved by the 1st respondent. In the same vein Graham Paul, J., held in Ashogbon vs. Odutan (1935) 12 NLR 7 at 10 that:
“…I regard this Court in its equity jurisdiction as in some measure… the keeper of the conscience of native communities in regard to the absolute enforcement of alleged native customs.”
See also Onyia vs. Oniah (1989) 2 SCNJ 120 at 134.
All Courts of law and equity are the keepers of the conscience of the society and will prevent any person or authority from acting against the dictates of conscience.
In Snell’s Principles of Equity, 26th edition, page 44 the learned author put the matter as follows:
“EQUITY LOOKS ON THAT AS DONE WHICH OUGHT TO BE DONE (Banks vs. Sutton (1732) 2 P.Wms 700 at 715): This maxim has its most frequent application in the case of contracts. Equity treats a contract to do a thing as if the thing were already done, but only in favour of persons entitled to enforce the contract specifically and not in favour of volunteers (Re Anstis (1186) 31 Ch.D. 596; Re Plumptre’s Marriage Settlement (1910) 1 Ch.609). Agreements for value are accordingly in many instances considered as performed as from the time when they ought to have been performed, and they have all the same consequences as if they had then been completely performed.”
In entering judgment in favour of the 1st respondent the learned trial Judge also took into consideration the fact that the 1st respondent’s application of 30th April, 1997 was accepted and by 1998/1999 his file had been fully processed and was awaiting the consent of the Governor whereas the 1st appellant’s application was only made on 14th December, 2000. The approval letter was 26th June, 2001. The N95,000.00 was paid by the 1st appellant on 13th July, 2001. This raised the issue of priority of the interests of the competing parties in respect of the property in dispute.
Again it has been held that: “At law, and in equity, the basic rule is that estates and interests primarily rank in the order of creation. Qui prior est tempore potior est jure: he who is earlier in time is stronger in law.” Writes R.E. Megurry in Snell’s Principles of Equity (supra) at page 50. This principle of law is supported by the judgment in Barclays Bank Ltd. vs. Bird (1954) Ch.274 at 280.
In my humble judgment, the Governor of Borno State had nothing to grant to the 1st appellant after the Commissioner for Lands and Survey, Borno State had concluded the agreement to sell, and had sold the property to the 1st respondent since 30th October, 1997. The learned trial Judge was right in relying on the Latin maxim of Nemo dat quod non habet to grant relief to the 1st respondent. See Olosunde vs. Oladele (1991) 713 at 726 and Osho & Anor. vs. Foreign Finance Governor of Mid-Western State (1974) 10 SC 57 at 288-289. The contractual rights of the 1st respondent, as rightly found by the learned trial Judge prevailed over those of the appellants.
In my judgment, there is no merit in this appeal. I uphold the judgment of the learned trial Judge and dismiss this appeal with costs assessed at N50,000.00 against the appellants.
CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A.: I have had a preview of the judgment of my learned brother, JOSEPH TINE TUR, JCA just delivered. I agree with his reasoning and the conclusion that the appeal lacks merit and ought to be dismissed. I also abide by the order as to costs.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, JOSEPH TINE TUR, JCA.
I am in agreement with the reasoning and conclusions. I therefore, hereby dismiss the appeal and abide by the orders made therein.
I make no order as to costs.
Appearances
P. A. Bello, Esq.For Appellant
AND
M. E. Oru, Esq. with Dr. B.A. Bukar, Esq. – for the 1st respondent.
U.D. Yerima, DDLC (Ministry of Justice, Borno State) – for the 2nd and 3rd respondents.For Respondent
