GENERAL COTTON MILL LIMITED VS TRAVELLERS PALACE HOTEL (2018)

 

GENERAL COTTON MILL LIMITED v. TRAVELLERS PALACE HOTEL

In The Supreme Court of Nigeria

On Friday, the 14th day of December, 2018

SC.297/2006

 

JUSTICES

MARY UKAEGO PETER-ODILI    Justice of The Supreme Court of Nigeria

OLUKAYODE ARIWOOLA    Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN    Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE    Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE    Justice of The Supreme Court of Nigeria

Between

 

GENERAL COTTON MILL LIMITED  Appellant(s)

AND

TRAVELLERS PALACE HOTEL  Respondent(s)

AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): This Appeal arose from a dispute over a plot of land “situate and lying between Plots 16 and 18 Ridge Road, GRA Onitsha”, and turns on the proper interpretation and application of Section 5 (2) of the Land Use Act, which provides as follows
Upon a grant of a statutory right of occupancy under the provisions of sub-section one of this Section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.

The case for the Respondent, who was Plaintiff at the Anambra State High Court, is that in 1990, the Anambra State Government allocated the land in dispute that is known as “Plot X”, and which is situated between Plots 16 and 18, Ridge Road, to it; and that the said allocation was confirmed by the issuance of a Certificate of Occupancy dated 27/8/1991, which is registered at the Lands Registry, in Awka.

The Appellant, as Defendant, insisted that there was nothing like “Plot X” between the said Plots 16 and 18; that it was

 

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vested with the same plot at No.18 before the commencement of the Land Use Act, 1978; hence the provisions of its Section 34 are relevant for a proper interpretation of Section 5(2) of the said Act.

The Parties had called one Witness each at the trial, and in his Judgment delivered on 25/2/1997, the learned trial Judge, Nwofor, J., concluded as follows:
I have gone through the evidence of the parties and submission of learned Counsel for both sides and I find as a fact that Plot X granted to the Plaintiff was carved out of Plot 18 for which the Defendant are by virtue of Section 34(2) of the Land Use Act 1978 deemed to be occupiers under statutory grant, Onitsha being an urban area having been in possession since 1973 before the coming into effect of the Land Use Act 1978 – – By virtue of Section 5 (1) – – a Military Governor has power to issue a statutory right of occupancy to a person on application whether the person is already in possession of the land or not. Under Section 5 (2) – -a grant of such a right extinguishes all existing rights – – – Under Section 28 of the Land Use Act, [a] Governor can revoke a grant. Where, however, the grant was made under a mistake of

 

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fact, the Governor has inherent power to rectify the grant – – – Exhibit D6 reproduced in this Judgment, even though not written by the Governor nor on his authority, admitted that the grant was erroneous and done under a mistaken belief, asked the Defendant to allow the grant to stay. Exhibit D6 did not revoke Plaintiff’s grant. This, in my view, affirms the grant to the Plaintiff and since the rights of the Defendant are deemed to have been extinguished by this grant to the Plaintiff, they no longer have possession or claim over Plot X. The case cited by G.E. Ezeuko, SAN, is no longer the law. I find and so hold that the Plaintiff is entitled by proof to Judgment and I declare:
(a) That the Plaintiff is the holder of the Certificate of Statutory Right of Occupancy in respect of that piece and parcel of land described and more particularly delineated in Survey Plan No. AA/D14/95 and in Survey Plan No. CAI(A) 336, attached to the said Certificate of Statutory Right of Occupancy registered as No. 47 at Page 47 in Volume 1337 at the Lands Registry now at Awka and situate between Plots 16 and 18 Ridge Road, Onitsha.

 

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(b) That N10, 000.00 damages be awarded against the Defendant – –
(c) Perpetual Injunction restraining the Defendants, its servant, agents, privies- – from trespassing or further entry into the land now in dispute or to disturb the Plaintiff’s possessory rights is hereby granted against the Defendant.

The Appellant then appealed to the Court of Appeal, wherein the Respondent was granted leave to raise and incorporate its Preliminary Objection to the hearing of the Appeal in its Amended Brief. The first Ground of the Preliminary Objection is:
1. The Appeal has been overtaken by events and the Honourable Court is presented with fait accompli –
A. The subject matter of this appeal is the Judgment of Onitsha High Court in 1997 declaring the Respondent “Holder of the Certificate of Statutory Right of Occupancy in respect of that piece and parcel of Land described and more particular delineated Survey Plan No. AND14/95 and in Survey Plan No. 0A(A)336 attached to the said Certificate of Statutory – – “.
B. That from the above paragraph it is clear beyond any iota of doubt that the object of the Judgment is the statutory grant and consequent certificate of occupancy made

 

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by the Governor of Anambra State in 1990 to the Respondent – –
C. That while this appeal was pending, the Appellant took this matter to the issuing authority, Anambra State Government through a petition to the Director General of Bureau of Lands Survey and Town Planning Anambra State. The 1990 grant to the Respondent was cancelled and the certificate registered as No. 47 at 47 in the land registry was revoked by a letter dated 10/6/1997 by one J. N. Oguejiofor acting Director General of the Bureau of lands survey and Town Planning Anambra State.
D. That by the said revocation of the Respondent’s 1990 grant and certificate of Occupancy, the object of the 1997 Judgment by Nwofor, J., ceased to exist and the appeal over the Judgment remained only as a mere academic exercise —
E. That the basis upon which the Honourable Judge of the trial Court decided the right of the Parties over the disputed plot was the 1990 grant and certificate of occupancy of the Respondent, which no longer exist, as both have been revoked.
F. The decision of the Hon. Court would be a mere academic exercise and in vain as it will not in any way affect the rights

 

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of the Parties most especially the right of the Respondent respecting the disputed plot as the right of the respondent over the plot is no longer based on the 1990 grant but on the new grant of 23/7/2001.
G. It is, therefore, clear that the Appeal is overtaken by the event of the revocation of the 1990 grant and certificate, the object of the Judgment of this Appeal on 10/6/1997 by the Anambra State of Government.
H. That the Appellant appreciates this position and that is the reason for taken (sic) out a new action – – against the same Respondent over the same subject matter, Plot X Ridge Road, GRA Onitsha when on 23/7/2001 the Governor of Anambra State re-granted same plot of land to the Respondent, the Appellant took out new action to challenge this new grant at the Onitsha High Court in Suit No: 0/498/2001
I. The Appellant took out this action with the full knowledge that the basis of this appeal no longer exists as the subsisting right of the Respondent over the disputed Plot of Land is not based on the 1990 grant and certificate, the object and basis of the 1997 Judgment subject matter of

 

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this Appeal, but the new grant of 23/7/2001.
J. The new grant of 23/7/2001 is not in issue in the present appeal so if the Hon. Court engages in the difficult task of deciding the Appeal, its decision would be met with a fait accompli, which the Honourable Court would not engage in such proceedings, for it would amount to waste of material and human resources.

The other Grounds of the Preliminary Objection, without their particulars, are that:
– The proceeding is an abuse of Court Process;
– The acts of the Appellant and this process of Appeal is overreaching;
– Estoppel by election; and
– Estoppel by conduct.

The Preliminary Objection was argued with the main Appeal, and in its Judgment delivered on 16/3/2006, the Court of Appeal held as follows on the said Objection:
I have gone through the Preliminary Objection and I am convinced that both Parties from the facts of this case, elected to submit themselves to the jurisdiction of the Administrative Authority and the Parties are, therefore, guilty of the same thing, and none of them is, therefore, innocent. I, therefore, hold that the Preliminary

 

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Objection is misconceived and cannot stop this Court from hearing this Appeal.

In dismissing the Appeal, the Court of Appeal agreed with the trial Court. It held:
It is manifest from the record that Plot X granted to the Respondent was carved out of Plot 18 for which the Appellant by virtue of Section 34(2) of Land Use Act is deemed to be occupier under statutory grant, Onitsha, being an Urban Area having been in possession since 1973 – – I must also say that by virtue of Section 5(1) of the Land Use Act – -a Governor has the power to issue a statutory right of occupancy to a person on application whether the person was already in possession of the land or not – – – Under Section 5(2) of the Land Use Act, a grant of such a right extinguishes all existing rights – – – From all that I have said herein before, I hold the strong view that the learned trial Judge was not in error when he found for the Respondent in his Judgment — I hold that this Appeal is devoid of merit and it is hereby dismissed.

Dissatisfied with the “Whole Decision” of the Court of Appeal, the Appellant filed a Notice of Appeal containing a Ground of Appeal in this Court. The Respondent, dissatisfied

 

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with that – “Part of the Decision refusing to accede to the Preliminary Objection challenging the Appeal’, cross-appealed with a Notice of Cross-Appeal, which contains two Grounds of Appeal.

In the main Appeal, the Appellant distilled an Issue for Determination in its Brief of Argument from the Ground of Appeal, i.e.
Whether the interpretation and application of Section 5(2) of the Land Use Act by the Court below was correct, in view of the fact that Appellant was vested with an earlier grant of statutory right of occupancy over the land in dispute by virtue of Section 34(1) & (2) of the Land Use Act; and if the answer is in the negative, whether upon a proper interpretation and application of Section 5(2) the lower Court would not have held that the subsequent grant of a statutory right of occupancy over the same plot of land to the Respondent was invalid, null and void and of no effect whatsoever.

The Respondent, however, contends that the Issue that calls for Determination is:
Whether the Appellant has made a substantial case for the reversal of the concurrent findings of the two lower Courts’ interpretation of Section 5(2) and Section 34 of the Land Use Act.

 

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Obviously, the Issue formulated by the Appellant lacks the three characteristics of an issue for determination in a Brief, which are  “precision, brevity and clarity’  Management Ent. Ltd. V. ABC Merchant Bank (1996) 6 NWLR (Pt. 453) 249. The Respondent’s Issue is more to the point, however, it is my view that the Issue for determination in this Appeal is simply whether the provisions of Section 5(2) of the Land Use Act, 1978, operates to extinguish a statutory right of occupancy, deemed granted under Section 34 of the same Land Use Act, which provides –
1. The following provisions of this Section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act.
2. Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act.

The Appellant contends that the lower Courts interpreted Section 5(2) literally and erroneously concluded that an

 

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express grant of a statutory right of occupancy over a plot of land by a Governor under Section 5(1) extinguishes all the existing rights, thereby going against the intentions and intendment of the Legislature; and it cited Ibrahim V. Mohammed (2003) FWLR (Pt. 156) 902, wherein Uwaifo, JSC, said:
In a nutshell, Section 5(2) is not concerned with the extinguishment of legally vested rights. The meaning of “all existing rights” as used there is limited. It is rights to the use and occupation of land, which are far less and inferior to property rights. Legally vested rights cannot simply be extinguished.

It submitted that the Act provides for two categories of grant of right of occupancy, the actual grant, which is expressly made under Section 5(1)(a) or 6(1) (a) of the Land Use Act, and the deemed grant, which is the one that is made pursuant to Section 34(2) of the said Act; that a deemed grant is as valid as an express grant; that it is clear that it was the title holder and occupier of the Plot since 1973 and at the commencement of the Land Use Act, 1978, and by Section 34(2), it became the deemed holder of a statutory right of occupancy granted by the Governor, and it

 

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was therefore, a holder of statutory right of occupancy granted by the Governor, citing Provost, L.S.C.E. & Ors. V. Edun & Ors. (2004) All FWLR (Pt. 201) 1641.

It also argued that the Court of Appeal wrongly applied the literal cannon of interpretation in construing the said Section 5(2); that it is not at all times and in all the circumstances, where words of a statute are plain, clear and unambiguous that a Court will apply their ordinary meanings without reading anything into them; and that if applying the literal rule of interpretation will go against the grain and the pith and substance of a Statute or go against the intentions of the legislature then, certainly, the said literal rule will not apply, citing Ibrahim v. Mohammed (supra).

It submitted, citing Ibrahim v. Mohammed (supra), Agundo V. Gberbo (1999) 9 NWLR (Pt. 617) 71, CSS Bookshops Ltd. V. RTMC Rivers State (2006) FWLR (Pt.319) 855 and Gwar V. Adole (2003) All FWLR (Pt.176) 747 at 771, that there was an absolute failure of the checks and balances provided by the Act, in that safeguards provided for under Sections 28, 51, 44 had not been complied with by the State Government;

 

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and that this is further highlighted by the following:
– No notice of the revocation of the plot of land was given to the Appellant;
– The revocation was not for public purpose as stated in Section 51 of the Land Use Act;
– There was no revocation as stipulated under Section 28 of the Land Use Act and,
– No compensation was paid to the Appellant despite the finding of the High Court and Court of Appeal that Plot X is part of Plot 18, which both Parties agreed belongs to it.

Furthermore, that such clear failure to comply with the relevant sections of the Act will definitely lead to arbitrary exercise of the powers, as conferred by Section 5(2) on the part of the State Governor; and that it is this arbitrariness as exercised in this case that Sections 28, 29, 44 and 51 of the Land Use Act is designed to check.

It also argued that it is trite that expropriatory statutes, which encroach on a person’s proprietary rights, must be construed fortissime contra proferentes, that is strictly against the acquiring authority but sympathetically in favour of the citizen being deprived of his proprietary rights, so there

 

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must be a strict adherence to the formalities prescribed for its acquisition, citing Provost, L.S.C.E. V. Edun (supra). CSS Bookshops V. RTMC Rivers State (supra), Nangibo V. Okafor (2003) All FWLR (Pt.171) 1529; and that Section 5(2) of the Act cannot be read in isolation, but must be read together with all the related provisions of the Act, which includes Sections 28, 29, 44 & 51, for a proper and meaningful construction of Section 5(2) of the said Land Use Act, and in order to achieve the intention of the lawmakers.

The Respondent also submitted, citing Mobil V. F.B.I.R. (1997) 3 SC 53, Ibrahim v. Mohammed (supra) and Katto V. CBN (1999) 6 NWLR (Pt. 607) 390, that relevant provisions, and the statute as a whole, must be read together; and that the full import of the said Section 5(2) cannot be grasped without reference to other Sections of the Land Use Act, particularly Section 34 (1), (2), (3) and (5),

It, however, argued that the exercise of the power of the Governor to “plot the excess of the undeveloped portion of land of the Appellant’ and grant of same to it was proper and done in furtherance of Section 34 (5) (b) of the Land Use Act,

 

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which provides that “all the rights formerly vested in the holder in respect of the land shall on the commencement of the Land Use Act be extinguished”; which is exactly what the Governor did when Plot X was carved or plotted out as an excess of Appellant’s undeveloped land under Section 34(5)(a), and acting in accordance with Section 34(5)(b), granted same to it by virtue of Section 5(1) of the said Act.

Furthermore, that since the Governor exercised his powers as provided for by Section 34(5) and Section 5(1) of the Act, the Court of Appeal was right when it held that upon the grant of statutory right of occupancy to it under Section 5(1), the lawful effect will be Section 5(2) of the said Act, which extinguishes all existing rights to the use and occupation of the land, subject of the right of occupancy.

It also argued that even if the carving out of Plot X was wrong and unlawful, jurisprudence envisages that an error could be committed by the Executive, thus, provides that an application shall be made to the authority by the offended party complaining about the error and requesting the Governor to set it aside or nullify the erroneous act, citing

 

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Saude  V. Abdullahi (1989) 4 NWLR (Pt. 116) 387.

It then submitted that in appreciation of the inherent power of the Governor to rectify the error in the grant of the statutory right of occupancy, the Appellant
After the Judgment of the trial Court, made an application to the Governor to set aside the grant of Plot X made to the Respondent in 1990, the basis of the Judgment of Nwofor, J., now subject of this Appeal. The Governor on 10/6/1997, acceded to the application of the Appellant and set aside the grant of Plot X made to the Respondent. The Judgement of Nwofor, J., became useless and eroded the basis of this Appeal Subsequently, when new facts of un-development of the land and the fact that the Governor acted lawfully and properly under Section 34(5) and (b) in granting the plot to the Respondent in 1990 emerged, the Governor granted the plot to the Respondent and issued it with a new Certificate of occupancy – – – The Appellant challenged this new grant of Right of Occupancy to the Respondent in a new Suit No. 014982001 – –
– The Appellant lost the Suit based on the new facts of un-development and did not appeal against the

 

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decision rather the Appellant chose to prosecute this Appeal, which has been overtaken by the event of the cancellation of the grant, which was the basis of the Judgment, subject matter of this Appeal. This Appeal is now a mere academic exercise as it will in no way affect the rights of the Parties, which has been taken care of by the cancellation of the 1990 Right of Occupancy to the Respondent.

It seems to me that in arguing as it did above, the Respondent appears to have lost sight of the fact that whatever transpired “after the Judgment of the trial Court”, is of no concern whatsoever to this Court, which is being called upon to determine whether the Court of Appeal was right to affirm the “Judgment of the trial Court”.
The Appellant’s right of appeal is circumscribed within the parameters of a decision appealed against because an appeal is an invitation to a higher Court to review the decision of a lower Court to find out whether on proper consideration of facts placed before it and applicable laws that Court arrived at a correct decision  see Oredoyin V. Arowolo (1989) 3 NWLR (Pt. 114) 172. Thus, it is the

 

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opinion of a lower Court appealed against that is affirmed or reversed by a higher Court  see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430. In this case, the issue of whether the said grant was revoked and later re-issued is outside the ambit of this Appeal.

The decision that the Appellant is asking this Court to review in this Appeal is the decision of the Court of Appeal affirming the Judgment of the trial Court that “since the rights of the [Appellant] are deemed to have been extinguished by this grant to the [Respondent], they no longer have possession or claim over Plot X”. Can the concurrent findings of the lower Courts on this Issue stand in the light of the applicable law when viewed against the peculiar circumstances of this case

The answer to this question lies in the proper interpretation of Section 5(2) of the Land Use Act vis-a-vis the other relevant Sections of the said Land Use Act. As both Parties rightly submitted, it is well settled that statutory terms must not be interpreted in isolation but must be interpreted in the con of the whole statute in a manner, most harmonious with its scheme, and general purpose  see

 

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Nobis-Elendu V. INEC (2015) LPELR-25127-(SC), and Mobil Oil Plc. V. IAL 36 Inc. US (2000) 6 NWLR (Pt. 659) 146 at 168, wherein Karibi-Whyte, JSC, explained that:
It is an elementary principle and fundamental to the construction of the provisions of any statute to read the sections as a whole to enable the interpreter to gather the collective sense of the provisions. Where the subject matter construed concerns other sections of the same statute, all the related provisions must be read, considered and construed together as forming a composite whole. It is imperative – – to read together all the sections and paragraphs. This is so, because the sub-sections or sub-paragraphs may be and are necessarily complimentary to and explain the meaning and scope of the main section or paragraph. The meaning of a section may be controlled by other individual sections or sub-sections of the same Act.
There are also three basic rules of statutory interpretation  the Literal Rule is the first Rule applied by Judges. Here, Judges rely on the exact wording of a statute for the case. They will be read literally and the Judges will take the ordinary and natural meaning of a word and apply it,

 

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even if doing so, creates an absurd result.
The next Rule is the Golden Rule, which is a modification of the Literal Rule, to be used to avoid an absurd outcome. It is used where the Literal Rule produces a result, where lawmakers’ intention would be circumvented, rather than applied. This Rule was defined by Lord Wensleydale in Grey v. Pearson’s Case (1857) as:
The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the Instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but no farther.
The last Rule is the Mischief Rule, which gives Judges the most discretion of all, and it is intended to rectify “mischief’ in the statute and interprete the statute justly. The four principles to follow were expressed in Heydon’s Case (1584) as follows:
1. What was the common law before the making of the Act
2. What was the mischief and defect for which the common law did not provide
3. What remedy Parliament hath resolved and

 

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appointed to cure the disease of the commonwealth
4. The true reason of the remedy; and then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy.
In addition to these three rules of statutory interpretation, there are other rules that are held to apply when determining the meaning of a statute, and these include:
1. The statute is presumed not to bind the Constitution;
2. Statutes do not operate retrospectively in respect to substantive law (as opposed to procedural law);  see translecial.com.
3. They do not interfere with legal rights already vested:
4. They do not oust the jurisdiction of the Counts; and
5. They do not detract from constitutional law or international law  see translegal.com. In this case, it is clear that the Appellant is right; the two lower Courts applied the Literal Rule of interpretation in construing Section 5(2) of the Land Use Act without taking into account its adverse effect on the statutory right of occupancy deemed to have been granted to the Appellant pursuant to Section 34(2) of the said Act.
As Appellant submitted, there are different rights

 

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of occupancy introduced by the Land Use Act 1978 – the statutory right of occupancy granted by the State Government and Customary right of Occupancy granted by the Local Government  see Provost, L.S.C.E. V. Edun (supra), wherein lguh, JSC, stated as follows –
There is firstly the statutory right of occupancy granted by a State Governor pursuant to Section 5(1)(a) of the Act and the customary right of occupancy granted by a Local Government under Section 6(1)(a) of the Act. The second classification is the statutory right of occupancy deemed to have been granted by a State Governor pursuant to Section 34(2) of the Act as against the customary right of occupancy deemed to have been granted by a Local Government under Section 36(2). There, therefore, exist in both cases of statutory and customary rights of occupancy, actual grant as well as deemed grant. An actual grant is naturally a grant expressly made by the Governor of a State or by a Local Government whilst a deemed grant came into existence automatically by the operation of law.
The Land Use Act makes specific provisions with regard to land in an urban area, land in a non-urban area,

 

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land that is developed, and land that is undeveloped. Section 34 of the Land Use Act dealing with land in an urban area, provides thus:
1. The following provisions of this Section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act.
2. Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act.
3. In respect of land to which Subsection (2) of this section applies there shall be issued by the Governor on application to him in the prescribed form a certificate of occupancy if the Governor is satisfied that the land was, immediately before the commencement of this Act, vested in that person.
4. Where the land to which Subsection (2) of this Section applies was subject to any mortgage, legal or equitable, or any encumbrance or interest valid in law such land shall continue to be so subject and the certificate of occupancy issued, shall indicate that the land is so subject,

 

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unless the continued operation of the encumbrance or interest would in the opinion of the Governor be inconsistent with the provisions, or general intendment of this Act.
5. Where on the commencement of this Act the land is undeveloped, then –
(a) One plot or portion of the land not exceeding half hectare in area shall subject to Subsection (6) below, continue to be held by the person in whom the land was so vested as if the holder of the land was the holder of a statutory right of occupancy granted by the Governor in respect of the plot or portion as aforesaid under this Act; and
(b) All the rights formerly vested in the holder in respect of the excess of the land shall in the commencement of this Act be extinguished and the excess of the land shall be taken over by the Governor and administered as provided in this Act.
6. Paragraph (a) of Subsection (5) above shall not apply in the case of any person who on the commencement of this Act also the holder of any undeveloped land elsewhere in any urban area in the State and in respect of such a person all his holdings of undeveloped land in any urban area in State shall be considered together –

 

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(a) One plot or portion not exceeding  hectare in area shall continue to be held by such a person as if a right of occupancy had been granted to him by the Governor in respect of that plot or portion; and
(b) The remainder of the land (so considered together) in excess of  hectare shall be taken over by the Governor and administered in accordance with this Act and the rights formerly vested in the holder in respect of such land shall be extinguished.
7. No land to which Subsection (5) (a) or (6) of this Section applies held by any person shall be further subdivided or laid out in plots and no such land shall be transferred to any person except with prior consent of the Governor.
8. Any instrument purporting to transfer any undeveloped land – – shall be void and of no effect whatsoever in law and any party to such instrument shall be guilty of an offence and liable on conviction to imprisonment for one year or a fine of N5, 000.
9. In respect of land to which Subsection (5) (a) or (6) (a) of this section applies there shall be issued by the Governor on application to him in the prescribed form a certificate of

 

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occupancy if the Governor is satisfied that the land was, immediately before the commencement of this Act, vested in that person.
Thus, by virtue of Section 34(2) of the Land Use Act, where the land is developed, it shall continue to be held by the person in whom it was vested immediately before the commencement of the Land Use Act as if the holder of the land was the holder of a Statutory right of occupancy issued by the Governor under the Land Use Act  see Orianzi V. Att.-Gen., Rivers State (2017) 6 NWLR (Pt. 1561) 224 SC.
In this case, the lower Courts found as a fact that the said Plot X was carved out of Plot 18 for which Appellant by virtue of Section 34(2) of the Land Use Act “is deemed to be occupier under statutory grant, Onitsha being an urban area, having been in possession since 1973” before the commencement of the said Act. The position of the law on the subject is that where a person owns a deemed right of occupancy over a parcel of land by virtue of Section 34 (2) of the Land Use Act, he is entitled to same rights available to a holder of a statutory right of occupancy.  see Provost, L.S.C.E. V. Edun (supra), wherein this Court held as follows-

 

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The Respondents in the present case were in exclusive physical possession of the land in dispute and were using the same for agricultural purposes in a non-urban area – – immediately before the commencement of the Land Use Act, 1978. They are, therefore, deemed holders of customary right of occupancy in respect of the land in dispute by operation of law at the commencement of the Land Use Act, 1978 on the 29th March, 1978. Their deemed grant is no less effective than a customary right of occupancy expressly granted by the appropriate Local Government. Deemed grants, whether of statutory or customary right of occupancy are as valid as express grants and may not be defeated by any unlawful subsequent dealing in respect of such land by the original owners thereof. This is because after a party has divested himself of interest in land or any res, no right vests in him to deal with such property any further.
So, a statutory right of occupancy deemed to have been granted by the Governor of a State pursuant to Section 34(2) of the Land Use Act, is as valid as a statutory right of occupancy expressly granted by the Governor by virtue of

 

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Section  5(1)(a). As I mentioned earlier, statutes do not interfere with legal rights already vested, and from the decision of this Court in Provost, L.S.C.E. V. Edun (supra) and the provisions of Section 34(1), (2) & (3) of the Act, it can easily be deduced that the said Section 5(2) of the Land Use Act does not extinguish the right of a land owner, who has a deemed right of occupancy. The said rights, definitely, rank pari passu.
But that is not the end of it. There is another dimension to this case because Section 34(2) applies where the land in question is developed and Section 34(5) applies where the land is undeveloped; in which case, one plot not exceeding half hectare shall continue to be held by a person in whom the land was so vested as if he was the holder of a statutory right of occupancy granted by the Governor  Section 34(5) (a); and all the rights formerly vested in the holder in respect of the excess of the land shall be extinguished and the excess of the land shall be taken over by the Governor and administered as provided in the Act  Section 34(5) (b).
In this case, the Respondent argued that Plot X was carved

 

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out of excess of the Appellant’s undeveloped land under Section 34(5) (a) of the Act, therefore, the interpretation of Section 5(2) by the lower Courts of the exercise of the powers of the Governor by granting same to it, was lawful, correct and cannot be faulted. It reproduced the following testimony of Appellant’s witness, Famakinwa Rotimi:
The Defendant erected buildings on the land. In addition, the plot was fenced with wire mesh. Plaintiff broke a wire mesh, entered the land and started to erect a building.
And submitted that this clearly establishes that the land claimed by the Appellant, at all times relevant to this Suit, was not developed by the Appellant; and that the Appellant did not plead nor tender any building Plan, but it tendered its own Plan.
There are two things wrong with the Respondent’s submissions. First of all, one of its claims, as Plaintiff at the trial Court, was for a declaration of title to land, and it is trite law that in a claim for declaration of title to the land that is in dispute, a Plaintiff has the onerous task of establishing his title on the strength of his case and not on the weakness of

 

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the defence  Kodilinye V. Odu (1935) 2 WACA 336. So, the Respondent cannot point fingers at what the Appellant said or did not say.
Secondly, the question of whether Plot X was developed or not was not an issue at the trial Court, and this is confirmed by the Respondent in his brief that
“When new facts of un-development of the land and the fact that the Governor acted lawfully and properly under Section 34(5) and (b) in granting the plot to the Respondent in 1990 emerged, the Governor granted the plot to the Respondent and issued it with a new Certificate of occupancy – – – The Appellant challenged this new grant of Right of Occupancy – – in a new Suit No. O/4982001 – – – The Appellant lost the Suit based on the new facts of un-development and did not appeal against the decision rather the Appellant chose to prosecute this Appeal, which has been overtaken by the event of the cancellation of the grant, which was the basis of the Judgment, subject matter of this Appeal.”
There it is straight from the Horse’s mouth. The issue of un-development of the land in dispute was raised in a completely different Suit that was instituted after the

 

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Judgment of the trial Court, and as far as the Appeal in this Court is concerned, it is the concurrent findings of the two lower Courts that Plot X was carved out of Plot 18 for which the Appellant was by virtue of Section 34(2) of the Land Use Act “deemed to be occupiers under statutory grant”, that must hold sway; nothing else.
In other words, the trial Court and the Court of Appeal applied the provisions of Section 34(2) of the Land Use Act, which covers “where the land is developed” and not Section 34(5) thereof, which deals with where “the land is undeveloped”. So, the issue of whether Plot X was undeveloped cannot be raised in this Appeal.
Be that as it may, the Appellant also submitted that there is nowhere in the Records that its Statutory Right of Occupancy over Plot 18 or any part thereof was revoked before the Respondent’s Certificate of Occupancy was issued. Thus, the Court of Appeal erred when it held that a grant of a statutory right of occupancy by the Governor extinguishes all existing rights, without taking into consideration the fact that it had a subsisting statutory right of occupancy over the said land.
Once again, the Appellant is right. The Land Use

 

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Act makes provision for revocation of a right of occupancy by a Governor. Section 28 of the Act provides:
(1) It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
(2) Overriding public interest in the case of a statutory right of occupancy means –
(a) The alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made thereunder;
(b) The requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes with the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation;
(c) The requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.
The Governor can only revoke a right of occupancy for “overriding public interest’, and it is settled that the revocation of a right of occupancy for public purpose or in the public interest does not include the revocation of the right of

 

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a grantee for the purpose of vesting it in another  see Ibrahim V. Mohammed (supra) cited by both Parties, and Orianzi V. A.G. Rivers State (supra), wherein this Court held:
The Act [Land Use Act] provides checks and balances, which must be observed before making any grant, the conditions under which such grants can be revoked and what follows after revocation. If such powers of revocation are to be exercised, the holder of the right of occupancy must be notified in advance. The revocation of the right of occupancy for public purpose or in the public interest does not include the revocation of the right of a grantee for the purpose of vesting it in another. Since revocation of the grant involves the deprivation of the proprietary right and obligations of a grantee, all the terms and conditions laid down by the Act must be strictly adhered to and complied with. Therefore, for a revocation of a right of occupancy to be valid, it must be made strictly in compliance with Section 28 of the Land Use Act. Even where the revocation is valid, the grantee is fully entitled to compensation under Section 29(1) of the Act. In the instant case, there was no evidence before

 

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the trial Court that the Appellant’s right was lawfully revoked. He stated that he was not given any notice or any notice in advance that the property was up for revocation. He also stated that he was not paid compensation after it was revoked.
In this case, there is no evidence that the Appellant’s right of occupancy was ever revoked before the issuance of the Certificate of Occupancy to the Respondent. The trial Court focused on the Respondent and not the Appellant when it held that:
Exhibit D6 – – though not written by the Governor nor on his authority, admitted that the grant was erroneous and done under a mistaken belief, asked the Defendant to allow the grant to stay. Exhibit D6 did not revoke Plaintiff’s grant.
The Court of Appeal also reproduced Exhibit D6 in its Judgment, and concluded:
I hasten to say that Exhibit D6 did not revoke the Respondent’s grant.
Obviously, the question is not whether the grant to the Respondent was revoked, but whether the statutory right of occupancy deemed to have been granted to the Appellant by operation of law was revoked before the grant to the

 

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Respondent; and the answer is in the negative. Exhibit D6, which the trial Court acknowledged was not written by the Governor nor on his authority, is of no moment in this case.
From what has been said, it goes without saying that the concurrent findings of the two lower Courts stand no chance in this Appeal, as they are based on the wrong premise that the provision of Section 5(2) of the Land Use Act extinguishes the deemed right of occupancy granted the Appellant under Section 34 of the Act. This is not so; a deemed right of occupancy under Section 34 of the Land Use Act ranks pari passu with the statutory right of occupancy under Section 5 of the Act, and where the Government wants to revoke a deemed right of occupancy it would have to revoke same in accordance with the provisions of Section 28 of the Act.
So, anything done outside the Land Use Act would be a violation of the right of the holder of the deemed right of occupancy, which is the situation in this case. In the peculiar circumstances of this case, this Appeal would have to be allowed.

As for the Cross-Appeal, which is hinged on events that occurred after the Judgment of the trial Court, when the

 

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Appeal was pending at the Court of Appeal, I will simply say that Court of Appeal had no jurisdiction to entertain the Objection that is the subject matter of the Cross-Appeal, and this Court has no jurisdiction to look into whether the Court of Appeal was right or wrong in its decision thereon.

In the final analysis, the Appeal itself succeeds and is allowed. The decision of the Court of Appeal affirming the Judgment of the trial Court is hereby set aside. The Cross-Appeal filed by the Respondent is, however, struck out in its entirety.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in agreement with the judgment just delivered by my learned brother, Amina Adamu Augie JSC and to underscore that support, I shall make some remarks.

By a writ of summons dated the 9th day of February, 1994, the plaintiff/respondent claimed against the defendant/appellant as follows: –
1. A declaration that the plaintiff is the holder of the statutory right of occupancy in respect of that piece and parcel of land described and more particularly

 

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delineated in survey plan No. OA(A)336 attached to the said certificate and thereon bordered or verged red and situate and lying between plots 16 and 18 Ridge Road, G.R.A. Onitsha duly registered as No. 47 at page 47 in Volume 337 of the Lands Registry in the office at Enugu.
2. N500,000.00 (Five hundred thousand naira) damages for trespass.
3. Perpetual Injunction restraining the defendant, its agents, servants, privies, workmen or assigns howsoever from further trespassing into the said land.

The facts leading to this appeal are well set out in the leading judgment and no useful purpose would be achieved in repeating them unless the occasion warrants a reference to any part thereof. It needs be said that the respondent cross-appealed.

On the 2nd October, 2018 date of hearing, learned counsel, G. I. Ezeuko Esq. for the appellant adopted its brief of argument filed on 11/6/2007 and he raised a sole issue which is thus: –
Whether the interpretation and application of Section 5 (2) of the Land Use Act by the Court below was correct, in view of the fact that the appellant was vested with

 

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an earlier grant of statutory right of occupancy over the land in dispute by virtue of Section 34 (1) & (2) of the Land Use Act; and if the answer is in the negative, whether upon a proper interpretation and application of Section 5(2) the Lower Court would not have held that the subsequent grant of a statutory right of occupancy over the same plot of land to the respondent was invalid, null and void and of no effect whatsoever.

Learned counsel for the respondent, Uju Ikeazor (Mrs.) adopted the respondent’s brief of argument filed on 26/4/18 and deemed filed on the 2/10/2018 and in it was crafted a sole issue, thus:-
Whether the appellant has made a substantial case for the reversal of the concurrent findings of the two lower Court’s interpretation of Section 5 (2) and Section 34 of the Land Use Act.

The issue as formulated by the respondent is apt and convenient for use in the determination of this appeal.

SINGLE ISSUE:
Whether the appellant has made a substantial case for the reversal of the concurrent findings of the two Lower Court’s interpretation of Section 5 (2) and Section 34 of the Land Use Act.

 

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Learned counsel for the appellant, G. I. Ezeuko Esq. submitted that the interpretation and application of Section 5 (2) of the Land Use Act to this case by both the trial Court and the Court below was wrong and does not represent the law. He cited Ibrahim v Mohammed (2003) FWLR (Pt.156) 902 at 038.

That generally, the Land Use Act 1978 provides for two categories of grant of right of occupancy, the actual grant and the deemed grant. That while the actual grant is the one expressly made under Section 5 (1) (a) or 6 (1) (a) of the Land Use Act, while the deemed grant is the one that is made pursuant to Section 34 (2) or 36 (2) of the Land Use Act. That the two grants rank equally in value and so a deemed grant is as valid as an express grant. He cited Provost, Lagos State College of Education & Ors v Dr. Kolawole Edun & Ors (2004) All FWLR (Pt.201) 1641-1642.

For the appellant, it was further submitted that by virtue of Sections 14 and 15 of the Land Use Act, it is evident that the holder of a statutory right of occupancy has (a) title which confers on him “exclusive rights to the land” and sole right to and absolute possession of “all the improvement

 

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thereon” and (b) a title which is only liable to be extinguished upon revocation of the right pursuant to the Act.

That it is further submitted that the exclusive right of the holder of a statutory right of occupancy to the land which is subject of a statutory right of occupancy which include the right to the use and occupation of the land and the right to deal with it subject to the provisions of the Act, any condition of the grant and, as always to the right of others. He referred to Ibrahim v Mohammed (supra) pages 940-941; Agundo v Gberbo (1999) 9 NWLR (Pt.617) 98; Nigeria Engineering Works Ltd v Denap Limited (2002) FWLR (Pt.89).

Mr. Ezeuko of counsel for the appellant contended that Section 5 (2) of the Land Use Act cannot be read in isolation but read together with all the related provisions of the Act in order to achieve the intention of the law makers. He relied on Gwar v Adole (2003) FWLR (Pt.176) 747 at 771; Agundo v Gberbo (1999) 9 NWLR (Pt.617) 71 at 98.

Mrs. Uju Ikeazor, learned counsel for the respondent submitted that the Land Use Act made saving provisions for rights that were in existence prior to the

 

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commencement of the Act and a proper appreciation of Section 5 (2) cannot be achieved without recourse, to the other relevant sections of the Act such as Section 34 (1), (2), (3) and (5) where the class of rights existing prior to the commencement of the Act are secured in clear and unambiguous terms. That the interpretation of Section 5 (2) by the two Courts below of the exercise of the powers of the governor by granting plot “X” to the respondent was lawful, correct and cannot be faulted.

For the respondent it was submitted that what the appellant is pressing forward which is the revocation of the right of occupancy over plot “X” granted to the respondent is outside the claim before the Court and in the absence of a counter – claim by the respondent who was defendant at the trial Court, such a posture is not sustainable as parties are bound by their pleadings and the Court lacks jurisdiction to entertain a claim not before it. She relied on NNPC v Idoniboye – Obu (1996) 4 NWLR (Pt.247) 655 at 682.

That this is one of the instances where the appellate Court should not interfere with concurrent findings, the conditions

 

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for such an intervention being absent. She referred to Ojengbede v Esan (2001) 18 NWLR (Pt.746) 771 at 788-789; Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt.966) 205 at 226.

The long and short of this appeal is a call by the appellant to interfere with the concurrent findings of two Lower Courts but in dealing with this call the Court is mindful that such an interference is not done in a whimsical manner or as the fancy takes the appellate Court but rather as a result of some exceptional or special circumstances which are summarised as follows:-
1. That the findings are found to be perverse; or
2. Not supported by evidence;
3. Reached as a result of a wrong approach to evidence;
4. A result of a miscarriage of justice or a violation of some principles of substantive or procedural law.
In fact, this Court has in plain language reiterated those guiding principles and I shall call in aid a few of those cases of this Court.
In the case of Ojengbede v Esan (2001) 18 NWLR (Pt.746) SC 771 at 788-789 paras H-A per Iguh JSC.
“It is trite law that this Court will not disturb concurrent findings of facts of both the trial Court and the Court of

 

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Appeal unless a substantial error apparent on the face of the record of proceedings is shown or when such findings are perverse or not supported by evidence or reached as a result of a wrong approach to the evidence or a wrong application of a principle of law or procedure”.
See also Olatunde v Abidogun (2001) 18 NWLR (Pt.746) 712 SC in Ogoejeofo v Ogoejeofo (2006) 3 NWLR (pt.966) 205 at 226 paras C-H, this Court per Onnoghen JSC (as he then was) stated thus:-
“The attitude of the Supreme Court to concurrent findings of fact of lower Courts is that it will not interfere with such findings where the findings are reasonably justified and supported by evidence, and where no special circumstances why the Supreme Court should interfere with the findings is shown by the substantial error apparent on the record of proceedings, such as miscarriage of justice, or violation of some principles of law or procedure. However, where the findings are shown to be perverse or patently erroneous or where, for example conclusions from accepted credible evidence adduced before it are wrong and a miscarriage will result if they are allowed to remain, the Supreme Court has a duty to interfere”.

 

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To relate those principles above to the facts of this case in a way as to see if the call by the appellant to interfere with those concurrent findings in justified, I shall refer to the background facts leading to where we are now.

The respondent was granted a portion of land designated as Plot “X” situate and lying between Plots 16 and 18 Ridge Road, Onitsha, Anambra State by the Governor of the State. At the base of the contest between the parties is the interpretation and application of Sections 5 and 34 of the Land Use Act. The stance of the appellant is that the two Courts below wrongly interpreted those Sections of the Act which the respondent disagrees with on the ground that Section 5 (2) thereof should not be interpreted in isolation but taken along with other related sections of the Act in order to bring out the intendment of the lawgiver. Indeed, the position taken by the appellant on how a particular section of a given law is to be given effect is the correct stand of the law. I rely on the cases of Mobil v FBIR (1997) 3 SC page 53; Ibrahim v Mohammed (2003) FWLR (Pt.156) 923;

 

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Katto v CBN (1999) 6 NWLR (Pt.607) 390 at 407.

To underscore the point I shall quote Section 5 (2) and the connected Section 34 hereunder, viz:-
Section 5 (2) of the Act provides as follows:
“Upon a grant of a statutory right of occupancy under the provisions of sub-section one of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished”.
Section 34 (1):
“The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act”.
Section 34 (2):
“Where the land is developed, the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of the statutory right of occupancy issued by the governor under this Act”.
34 (3):
In respect of land to which sub-section two of this section applies there shall be issued by the governor on application to him in prescribed form, a certificate of occupancy if the governor is satisfied that the land

 

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was immediately before the commencement of this Act vested in that person”.
34 (5):
“Where on the commencement of this Act the land is undeveloped, then-
a) one plot or portion of the land not exceeding half of one hectare in area shall subject to sub-section six of this section continue to be held by the person in whom the land was vested as if the holder of the land was the holder of a statutory right of occupancy granted by the governor in respect of the plot or portion as aforesaid under this Act, and
b) all the rights formerly vested in the holder in respect of the excess of the land shall on the commencement of this Act be extinguished and the excess of the land shall be taken over by the governor and administered as provided in this Act”. (Underlining mine).
Section 34 (5) (b) of the Act provides as follows:-
“all the rights formerly vested in the holder in respect of the excess of the land shall on the commencement of the Land Use Act be extinguished”.

The Court of trial in its findings had stated as follows:-
“I have gone through the evidence of the parties and submission of learned counsel for both sides and I find

 

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as a fact that Plot “X” granted to the plaintiff was carved out of Plot 18 for which the defendant (sic) are by virtue of Section 34 (2) of the Land Use Act 1978 deemed to be occupiers under statutory grant Onitsha being an Urban Area having been in possession since 1973 before the coming into effect of the Land Use Act 1978″.

The Court of Appeal also in its judgment at page 236 lines 15 to 18 of the Record stated thus:-
“It is manifest from the record that Plot “X” granted to the respondent was carved out of Plot 18 for which the appellant by virtue of Section 34 (2) of Land Use Act 1978 is deemed to be occupier under statutory grant, Onitsha being an urban area having been in possession since 1973″. (Emphasis mine).

The Court below went further to hold that by Section 5 (1) of the Land Use Act 1978, a Governor has the power to issue a statutory right of occupancy to a person on application whether the person was already in possession of the land or not. See page 236 line 25 to 28 last paragraph of the Record.
The Court stated further:-
“From all that I have said hereinbefore, I hold the strong view that the learned trial Judge was not

 

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in error when he found for the plaintiff/respondent in his judgment. After this finding of mine, I do not consider it necessary again to go into issue two in both briefs as that will amount to a barren exercise”. (page 237 lines 12 of the Record).

What the two Courts below did was to hold that the Governor in exercise of his powers to plot the excess of the undeveloped portion of the land of the appellant and grant same to the respondent within the provisions of Section 34 (5) (b) of the Act and Section 5 (1) of the same Act.

It needs be stated that under the Land Use Act the rights of individuals to land are limited to only the use and occupation of the land and by virtue of Section 1 of the Land Use Act all title and proprietary rights of all lands in a state are vested with the Governor, the control and determination of the use are also vested in the Governor, no person has proprietary right over any land in the state. This situation is well clarified by this Court in the case of Saude v Abdullahi (1989) 4 NWLR (Pt.116) 387 at 416 per Obaseki JSC thus:-
“There is no provision fof revocation for any other grant in the Act.

 

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However Section 5 (2) of the Act creates A STATUTORY REVOCATION of all existing rights on the grant of a statutory right of occupancy. It states: Upon a grant of a statutory right of occupancy under the provisions of sub-section 1 of this section all existing right to the use and occupation of the land which is the subject of statutory right of occupancy shall be extinguished.
It cannot therefore be a correct statement of law that the statutory right of occupancy granted to the appellant and falls to the ground and become void as held by Ogundele JCA as he then was because the revocation the statutory right of occupancy granted to the respondent was set aside. Upon a proper interpretation of Sub-section 2 of Section 5 of the Land Use Act, a latter statutory right of occupancy extinguishes all rights created by earlier grant. To save an earlier grant of a statutory right of occupancy the latter right of occupancy must be expressly set side”.
To refresh the memory on the relevant statutory provisions, I would requote thus:-
Section 34 (1):
“The following provisions of this section shall have effect in respect of land in an urban area vested in any

 

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person immediately before the commencement of this Act”.
34(2):
“Where the land is developed, the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of the statutory right of occupancy issued by the governor under this Act”.
34(3):
“In respect of land to which sub-section two of this section applies there shall be issued by the governor on application to him in prescribed form, a certificate of occupancy if the governor is satisfied that the land was immediately before the commencement of this Act vested in that person”.
34(5):
“Where on the commencement of this Act the land is underdeveloped, then.”
A foray in time would take us to 1973 before the coming into operation of the Land Use Act and it was in that year, 1973 that the appellant acquired the land described as Plot 18 from the ile Printers of Nigeria sequel to the Instrument tendered and admitted in evidence as Exhibit D3.
The history of the acquisition of said land in dispute are well set out in the appellant’s statement of defence and

 

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supported in evidence and the relevant documents and Exhibits D, D2 and D3. It is not controverted that from the time of acquisition the appellant had been in undisturbed and continuous possession and in furtherance thereof he erected buildings in the land and had it fenced round with wire mesh.
The plan attached to Exhibit D1, the original grant to the appellant’s predecessor-in-title shows Plot 12, 14, 16, 18,20,22, 24 and 26 and there was no plot between plots 16 and 18 and so the plot allegedly designated as Plot X claimed by the respondent has no support.
This Court in Ibrahim v Mohammed (2003) FWLR (Pt.156) 902 at 938 per Uwaifo, JSC stated:
“In a nutshell, Section 5 (2) is not concerned with the extinguishment of legally vested rights. The meaning of “all existing rights” as used there is limited. It is rights to the use and occupation of land which are far less and inferior to property rights. Legally vested rights cannot simply be extinguished”.
What has been thrown up is that it is not every existing right that can be extinguished by the mere grant of a statutory right of occupancy over a plot of land nor is it the right of

 

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every holder that will be extinguished. What this translated to is that every right has to be interrogated to see if it can be extinguished by a later grant of a statutory right of occupancy since the nature of the grant of the holder are the determining factors.
Taking the above in con to the facts on ground where appellant was already a title holder and occupier of the said plot from 1973 and before the commencement of the Land Use Act 1978 which made him a deemed holder of statutory right of occupancy granted by the Governor under the said Act.
Also, to be said is that generally the Land Use Act 1978 provides for two categories of grant of right of occupancy, the actual grant which is that at the commencement of the Act and deemed grant which is that where the right was in existence before the Act. The actual grant is the one expressly provided for under Section 5(1) (a) or 6(1) (a) of the Land Use Act, while the deemed grant is the one that is made pursuant to Section 34 (2) or 36 (2) of the Land Use Act and it needs be stated that the two categories rank in equal value and each valid. I rely on Provost, Lagos State

52

College of Education & Ors v. Dr, Kolawole Edun & Ors (2004) All FWLR (ft.201) 1641-1642.
A follow up is that by virtue of Sections 14 and 15 of the Land Use Act, the holder of a statutory right of occupancy has (a) a title which confers on him “exclusive rights to the land” and sole right to an absolute possession of “all the improvements thereon” and, (b) a title which is only liable to be extinguished upon revocation of the right pursuant to the Act
To further expatiate, the exclusive right of this holder of a statutory right of occupancy to the land which is subject of a statutory right of occupancy includes the right to the use and occupation of the land and the right to deal with it however he would only subject to the provisions of the Act and any condition that came with the grant and any other right of others within a given circumstance. It is in the light of the right explained above that the appellant was entitled to and was exercising all the above rights over the whole of Plot 18 within which is contained the carved out portion so named Plot X, the subject matter of this appeal. I relied on the case of Ibrahim v Mohammed (supra) 940 to 941.

 

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The position is well explained in the case of Ibrahim v Mohammed (supra) at 941-942.
AYOOLA JSC, describing the nature or class of rights to the use and occupation of the land which may be extinguished under Section 5(2), said that such right:
“must be that of someone who does not exercise those rights by virtue of his being a holder of a right of occupancy either by direct grant or by virtue of his being a “deemed holder” under Section 34 or Section 36. Such person will be a person who by virtue of sub-section (5) (b) and (6) (b) of Section 34 is not a deemed holder under Section 34 or who by virtue of sub-section (2) of Section 36, where the land was on the commencement of the Act not being used for agricultural purposes, is not a deemed holder under section 36″.
It is to be noted as the Supreme Court has severally espoused that the ambit of Section 5 (2) of the Land Use Act curtailed by the scheme and intendment of the Act so as to show that any inference to “existing rights to the use and occupation of the land is a reference to such rights as may have existed at the commencement of the Act but were not saved by the transitional provisions in Part VI of the

54

Act. Therefore, it is not a reference to those rights which originated from a deemed statutory right of occupancy because the transitional provisions saved those deemed rights. The effect is that the “existing rights” extinguished by operation of Section 5 (2) of the Land Use Act 1978 do not include the rights of a holder of a statutory right of occupancy. See Ibrahim v Mohammed (supra) at 942; Agundo v Gberbo (1999) 9 NWLR (Pt.617) 98; Nigeria Engineering Works Limited v Denap Limited (2002) FWLR (Pt.89).
The long and short of what I am grappling to communicate is that the appellant’s status is in the realm of holders whose rights are not extinguishable by operation of Section 5 (2) of the Act being rights protected by Section 5 (1) of the same Act.
The Court had even gone on to state the limitation to the powers of the governor under Section 28 of the Land Use Act in the same case of Ibrahim v Mohammed (supra) at page 938 when Ogundare opined without twisting of the words and thus:-
“Where there is an existing right held or deemed to be held by a person over a piece of land, the Governor

 

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cannot, without first revoking that right under Section 28 and paying compensation under Section 29 of the Act, validly issue a right of occupancy over the same land pursuant to his powers under Section 5 (1) to any other person”.
See also NIGERIA ENGINEERING WORKS LIMITED v DENAP LIMITED (2002) FWLR (Pt.89) at 1092 paras A-C.
I agree with learned counsel for the appellant when he submitted that, the only instance whereby revocation under the Land Use Act can affect the existing rights of any holder of a right of occupancy is if the governor strictly follows the procedures for the Governor’s exercise of his power under Section 5 (1) as stipulated in the Land Use Act for the revocation of a holder’s right of occupancy. Section 28 of the Land Use Act 1978 makes very clear, elaborate and unambiguous provisions for the procedure and conditions for the revocation of a holder’s statutory right of occupancy whether express or deemed under the Act. Section 28 (1) of the Act provides that the Governor can revoke a right of occupancy for overriding public interest. Sub-section (2) of Section 28 goes further to clearly and strictly define “overriding public interest” in the case of a statutory right of occupancy.

 

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Section 28 (6) provides that the revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized in that behalf and that notice thereof shall be given to the holder.
It is my humble view as stated by the appellants that the provisions of Section 28 (6) are mandatory procedural provisions which must be strictly complied with. The import of Section 28 (7) is that it is only on his receipt of a notice given under Sub-section (6) or on such other date as may be stated in the notice that the right of occupancy of a holder shall be extinguished, such a right cannot be extinguished otherwise than through this clearly spelt-out procedure, as anything to the contrary is null and void.
I place reliance on the cases of CSS Bookshops Limited v R. T. M. C. Rivers State (2006) All FWLR (Pt.319) 819 at 861; Nigeria Engineering Works Limited v Denap Limited (supra) P.1093.
From the foregoing, the appellant was a person in whom the land in dispute was vested before the commencement of the Land Use Act 1978 which right of occupancy was not revoked at all before the respondent was

 

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granted another statutory right of occupancy over the same plot of plot of land which later grant was in clear violation of the same Act and therefore remains invalid. In the prevailing circumstance the conditions upon which an appellate Court such as the present can intervene and disturb concurrent finding of fact of two lower Courts are glaringly evident in this case since those Courts took a wrong turn in the interpretation of Section 5 (2) of the Land Use Act which section they did not construe in conjunction with other related sections of the Act to wit: Sections 28, 29, 44 and 51. The two lower Courts fell into the error of tackling Section 5 (2) in isolation and it is the reason for the wrong conclusion arrived at.

In the end there is no getting away from the fact that there is a lot of merit in this appeal as well reasoned in the lead judgment has shown and so I too allow the appeal as I set aside the decision of the Court of Appeal which had upheld the decision of the trial High Court.
I abide by the consequential orders as made.

CROSS-APPEAL:
The Notice of Cross-Appeal is set out hereunder, viz: –

 

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  1. PART OF THE DECISION OF THE LOWER COURT COMPLANED OF:
    PART OF THE DECISION REFUSING TO ACCEDE TO THE PRELIMINARY OBJECTON CHALLENGING THE APPEAL.
    3. GROUNDS OF APPEAL:
    The learned Justices erred in law in dismissing the preliminary objection raised by the respondent without considering all the legal issues and authorities therein contained.
    PARTIULARS:
    a) Every Court of Law has a duty to consider all issues raised in a matter.
    b) The respondent in the Court below raised 5 issues of law in its preliminary objection to the hearing of the appeal in the Court of Appeal.
    c) The learned Justices of the Court of Appeal in the judgment made reference to only two issues of law in passing and were silent in respect of the other issues.
    d) The two legal issues so referred to by the learned Justices in the judgment, only one of the legal issues was given consideration.
    e) The learned Justices did not in any way consider any of the relevant legal authorities cited in support of the legal issues raised in the preliminary objection.
    f) The learned Justices went ahead to dismiss the

 

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preliminary objection without consideration of the legal issues so raised therein.
g) The failure of the Court below to appraise and consider the said issues was wrong which occasioned a grave miscarriage of justice.
GROUND 2:
The learned Court below was wrong when in the instant matter it held that estoppel by election does not apply to render the appellant appeal incompetent for the reason that the respondent also elected to appeal before the administrative body.
PARTICULARS:
i. Both parties having elected to appear before the administrative body are bound by the outcome of the proceedings before the body, the appeal having thereby been compromised.
ii. Both parties are in consequence disentitled from reviving and/or prosecuting this appeal.
iii. The refusal to hold that the appellant appeal has thereby been rendered incompetent was wrong which occasioned grave miscarriage of justice.
RELIEF SOUGHT FROM THE COURT:
(a) To set aside the decision dismissing the preliminary objection to the appeal.
(b) Uphold the preliminary objection to the hearing of the appeal.

Learned counsel for the cross-appellant, Mrs. Uju Ikeazor

 

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adopted its brief of argument filed on 26/4/18 and deemed filed on 2/10/18 and in it crafted a single issue as follows: –
Whether the Court of Appeal was right in not resolving all the issues raised in the Preliminary Objection by the respondent/Cross appellant.

For the cross-respondent, G. I. Ezeuko Esq. adopted its brief of argument filed on 13/6/13 and deemed filed on 13/6/18 and in it was identified a sole issue which is thus:-
Whether the Court of Appeal resolved the issues raised by the respondent/Cross appellant in the preliminary objection which was incorporated in the respondent’s brief of argument.

Learned counsel for the Cross-appellant called the Court’s attention to the fact that what is in issue herein in the cross appeal is whether the Court of Appeal was right not to have pronounced on all the issues raised before it by a party as was the case with the Preliminary Objection. That the failure to deal with all the issues raised before it occasioned a miscarriage of justice on the cross-appellant as its right to fair hearing was imperiled. She cited Uka v Irolo (1996) 4 NWLR (Pt.441) 218 at 236; Brawal Shipping Ltd v F. I. Onwadike Co. Ltd (2000) 11 NWLR (Pt.678) 387 at 403.

 

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That the Supreme Court should act on Section 22 of the Supreme Court Act to correct what the Court below failed to do.

Learned counsel for the cross – respondent contended that all the issues raised in the Court below were duly addressed by the Court. He cited pages 232-233 of the Record of Appeal. That there was no necessity to pronounce separately on each issue since those issues were submitted into the major issue. He cited Adebayo v A. G. Ogun State (2008) All FWLR (Pt.412) 1196.

I shall quote the part of the judgment upon which this Cross-Appeal is based and it is found at pages 232-233 of the Records thus:-
“At page 7 of the respondent’s brief of argument, the respondent incorporated a preliminary objection to the hearing of this appeal. In the main, the preliminary objection is to the effect that the appeal has been overtaken by events and this Court is presented with a fait accompli. That the appeal is caught by estoppel by election in that it went to settle the matter before an Administrative Authority in Onitsha – Anambra State, and when it failed it came back to this Court to pursue its appeal”.

 

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The judgment further continues:
“I have gone through the preliminary objection and I am convinced that both parties from the facts of this case elected to submit themselves to the jurisdiction of the Administrative Authority and the parties are therefore guilty of the same thing and none of them is therefore innocent. I therefore hold that the preliminary objection is misconceived and cannot stop this Court from hearing this appeal. Having said that, I now go into the consideration of the merit of this appeal”.

Clearly, the preliminary objection raised at the Court below was well considered and decided upon. Again, to be said is that some of the areas the Cross-appellant is hanging to invoke the principle that all issues raised in a Court must be considered, failure to do so would produce fatal consequences on the suit or appeal. That is the general rule but that comes with a rider to the effect that where an issue or issues are subsumed in the major issue then that takes care of the need to independently or distinctively deal with the said issue or issues. That was the thrust in the Supreme

 

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Court case of Adebayo v A. G. Ogun State (2008) All FWLR (Pt.412) page 1195.
The fall out situation where the non-consideration of the said question raised and not attended is that the issue having dovetailed into the main issues considered and decided upon the Court a miscarriage of justice cannot be said to have taken place.
In this case at hand, what is being floated as unattended was the preliminary objection which the Court below handled properly and if the standard of the Ruling falls below, what the cross-appellant had decided to be what a ruling should be then that would remain only in the recesses of the mind of the party which he cannot hold over the head of this Court as what should obtain when considering either a Preliminary Objection or issues which had been over taken by the events in the main Ruling or judgment. See Ojoh v Kamalu (2006) All FWLR (pt.297) 978 per Onu JSC.

In the main this Cross-appeal has no leg to stand and as shown fully and properly in the lead judgment, I too dismiss it as lacking in merit.
As I earlier stated, the main appeal succeeds and is allowed and the Cross-appeal is dismissed.
I abide by the consequential order made.<br< p=””

</br<

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OLUKAYODE ARIWOOLA, J.S.C.: I read in draft the lead judgment of my learned brother Amina Adamu Augie, JSC just delivered. The correct interpretation of Sections 5 (2), 28, 29 and 34 of the Land Use Act were well captured in the said lead judgment and I agree entirely with the reasoning therein and the conclusion arrived thereat. There is no doubt that the Court below was wrong in affirming the judgment of the trial Court. Same is liable to being set aside. Accordingly, it is set aside by me for the same reasons given in the lead judgment. In the circumstance, the cross appeal becomes unnecessary and cannot be countenanced. Accordingly, the Cross appeal is liable to being struck out and it is struck out by me.
Appeal allowed.
Cross appeal struck out.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, AMINA ADAMU AUGIE, JSC just delivered. I agree entirely with the reasoning and conclusion that this appeal is meritorious and should be allowed.

 

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I agree with my learned brother that the trial High Court and the lower Court erred in applying the literal rule of interpretation of statutes to the construction of Section 5(2) of the Land Use Act.

The appellant’s contention, in a nutshell, was that Plot X granted to the respondent (as plaintiff in the trial Court), fell within Plot 18 assigned to it (appellant) in 1973 by ile Printers of Nigeria for a term of 99 years. That the assignment having been made before the coming into effect of the LAND USE ACT in 1978, it was a deemed holder of a Statutory Right of Occupancy pursuant to Section 34(2) of the Act and that the grant made to the respondent in 1991 by the Government of Anambra State is invalid having regard to its existing rights over the Land.

Both the trial Court and the Court below found as a fact that indeed Plot X granted to the respondent was carved out of Plot 18 which, according to the trial Court at page 53 of the record, “the defendants are, by virtue of S.34 (2) of the Land Use Act, deemed to be the occupiers under Statutory grant, Onitsha being an Urban Area having been in possession

 

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since 1973 before the coming into effect of the Land Use Act 1978.”

The Court below however, agreed with the trial Court that by virtue of Section 5 (2) of the Land Use Act, the grant of a Statutory Right of Occupancy in favour of the respondent by the Governor of Anambra State completely extinguished the existing rights of the appellant.

The said Section 5(2) of the Act provides:
“5(2) upon the grant of a Statutory right of Occupancy under the provisions of Sub Section (1) of this Section, all existing rights to the use and occupation of the land, which is subject of the Statutory Right of Occupancy, shall be extinguished.”
It is true that Section 5 (1) of the Act empowers the Governor of a State to grant a Statutory Right of Occupancy in respect of Land, whether or not in an urban area, among other powers conferred under Section 5 (1) (b)  (h).
The issue that arises in this appeal is whether a deemed Statutory Right of Occupancy as provided for in Section 34(2) of the Act is inferior to a grant made pursuant to Section 5 (1) of the Act, such that by a mere stroke of the pen, the deemed Statutory Right of Occupancy can be extinguished.

 

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This would be the effect (and indeed was the effect in this case) of a literal interpretation of Section 5 (2) of the Act.
It was held in Ibrahim Vs Barde (1996) 9 NWLR (Pt.474) 513 @ 577 C, that a certain amount of common sense must be applied in construing statutes and the object of the statute has to be considered. It is also a basic principle of statutory interpretation that provisions of a statute ought not to be considered in isolation. In order of the lawmakers the provision of the statute must be considered as a whole.
See: Obi Vs INEC (2007)11 NWLR (Pt.1046) 565; Akpamgbo  Okadigbo & ORS. Vs CHIDI & ORS. (2015) LPELR  24564 (SC) @ 28 D-F; Nobis Elendu Vs. INEC (2015) LPELR  25127 (SC).
Sections 28, 29 and 44 of the Act provide conditions for the exercise of the Governor’s power to revoke a right of occupancy. It is evident therefore, that it is not the intention of the legislature that the Governor should exercise his power arbitrarily. As noted in lead judgment, Section 28 of the Act provides for the revocation of a right of Occupancy for “overriding public interest” and Sub-section (2) (a) to (c)

 

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explain what constitutes “overriding public interest” in the case of a Statutory Right of Occupancy. Section 29 makes provision for the payment of compensation, while Section 44 provides for service of any notices required under the Act, such as notice of revocation under Section 28 (6) thereof.
The decision of a full panel of this Court in Ibrahim Vs Mohammed (2003) FWLR (Pt. 156) 902, relied upon by learned counsel for the respondent, in fact supports the position of the appellant. Firstly, at page 922  923 G-E, his Lordship Kalgo, ]SC stated thus:
“The Land Use Act was promulgated as a whole with a view to making land available to all Nigerians irrespective of where they live. It was intended, by its provision to preserve the existing land holdings or ownership created by the existing laws before its commencement of operation. The Act recognises the rights and obligations of the land holdings before it came into operation whether they constituted grant by communities, local governments or state governments (See Section 4 of the Act). That was why the Act gives the whole land in the hands and under the control of the State Governors for the benefit

 

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of the people. It is not the intendment or the intention of the Act that the Governor shall use his powers to grant the land arbitrarily without regard to the existing ownership or holdings granted before the operation of the Act.
Furthermore, the Act itself provides some checks and balances which must be observed before making any grant, the conditions under which such grants can be revoked and what follows after such revocation. It provides under Section 28 that the Governor can only revoke a Right of Occupancy for “overriding public interest”, which has been defined both in respect of Statutory and Customary Rights of Occupancy. If such powers of revocation are to be exercised, the holder of the Right of Occupancy must be notified in advance.
for a revocation of a Right of Occupancy to be valid in Nigeria, it must be made strictly in accordance with Section 28 of the Land Use Act. Also, even where the revocation is valid, the grantee is fully entitled to compensation under Section 29(1) of the Act.” (Underlining mine)
While emphasizing that Section 5 (2) of the Act cannot be

 

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read in isolation of other provisions of the Act, His Lordship Ayoola, JSC, in his concurring judgment stated at pages 941  942 H  C.
“the rights to the use and occupation of the land that is extinguished pursuant to Subsection (2) of Section 5 must be that of someone who does not exercise those rights by virtue of his being a holder of a Right of Occupancy, either by a direct grant or by virtue of his being a “deemed” holder under Section 34 or Section 36. Such person will be a person who by virtue of Subsection 5 (b) and 6 (b) of Section 34 is not a “deemed holder” under Section 34 or who, by virtue of Subsection (2) of Section 36, where the land was on the commencement of the Act not being used for agricultural purposes, is not a “deemed holder” under Section 36. The ambit of Subsection (2) of Section 5 is essentially curtailed by the scheme and intent of the Act itself. It seems evident that reference to “existing rights to the use and occupation of the land” is to such rights as may have existed at the commencement of the Act, that is to say on 29 March 1978, but are unsaved by the transitional provisions in Part VI of the Act and not to rights that owe

 

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their origin to a deemed statutory right of occupancy or a granted right of occupancy under the Act. It is the former type of existing rights that were extinguished by virtue of the subsection.” (Underlining mine)
See also per Uwaifo, JSC at 938 G-H (supra) thus:
“In a nutshell, Section 5 (2) is not concerned with the extinguishment of legally vested rights. The meaning of “all existing rights” as used there is limited. It is the rights to the use and occupation of land which are far less and inferior to proprietary rights. They may just be mere licence or usufruct, but are never rights which are capable in law of being alienated.
The position taken by the appellant that his later grant extinguished that of the respondent which was earlier in time is untenable.
Legally vested rights cannot simply be extinguished” (Underlining mine)
I am fully guided by the above authority. The appellant’s legally vested right in its deemed statutory right of occupancy cannot be extinguished by the later grant of Exhibit D6 to the respondent without all the conditions for the revocation of its deemed grant as provided under the Act being complied with.

 

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There was no evidence before the trial Court that this was done. The grant (Exhibit D6) made in favour of the respondent is in no way superior to the appellant’s deemed grant.

For these and the more detailed reasons ably advanced in the lead judgment that I find merit in this appeal. It is hereby allowed. The decision of the lower Court affirming the judgment of the trial Court, is hereby set aside.
I also agree with the lead judgment that the cross-appeal is incompetent. It is accordingly struck out.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Amina Adamu Augie, 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:

lfeanyi Ezeuko, Esq. with him, E.C. Attama, Esq. For  Appellant(s)

Mrs. Uju lkeazor with her, Alex Ikeazor, Esq. For  Respondent(s)

 

Appearances

lfeanyi Ezeuko, Esq. with him, E.C. Attama, Esq. For Appellant

 

AND

Mrs. Uju lkeazor with her, Alex Ikeazor, Esq. For Respondent

 

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