JOSEPH ONA & ANOR V. ALHAJI DIGA ROMANI ATENDA
(2000)LCN/0674(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of January, 2000
CA/A/54/97
JUSTICES
DAHIRU MUSDAPHER Justice of The Court of Appeal of Nigeria
SUNDAY AKINOLA AKINTAN Justice of The Court of Appeal of Nigeria
ZAINAB ALIYU BULKACHUWA Justice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMI Justice of The Court of Appeal of Nigeria
ISA ABUBAKAR MANGAJI Justice of The Court of Appeal of Nigeria
Between
- JOSEPH ONA
2. FESTUS ONA Appellant(s)
AND
ALHAJI DIGA ROMANI ATENDA Respondent(s)
RATIO
THE POSITION OF THE LAW ON THE FUNCTION OF A PREAMBLE
The proper function of a preamble is to explain certain facts which are necessary to be explained before the enactments contained in the Act can be understood. It is undoubtedly part of the Act and it is a legitimate aid in construing the enactment, particularly when there is an ambiguity or conflicting views as to the true meaning of the enactment in which case the view which fits the preamble ought to be preferred. See Salkeld v. Johnson (1848) 2 Ex. 256 at 283; Powell v. Kempton Park Racecourse Co. Ltd. (1999) A, C. 143; Turquand v. Board of Trade (1886) 11 App. Cas. 286; Odgers’ Construction of Deeds and Statutes. 12th ed pages 6-7; Ogbonna v. Attorney-General of Imo State & Ors. (1992) 1 NWLR (Pt.220) 6-17: and Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275 at 287-288. PER AKINTAN, J.C.A.
THE POSITION OF LAW ON THE CLAIM FOR COMPENSATION FOR LAND
It is also settled law that a claim for compensation for land compulsorily acquired should be made timeously and in accordance with the provisions of the enabling statute. It follows, therefore that where the prescribed time for making the claim had elapsed without any claim to ownership being made, the land would therefore be deemed to be free from claim: See Ajakaiye v. Lieut Governor Southern Provinces (1929) 9 NLR 1. There is even a presumption, made stronger by the lapse of time between the dates of acquisition and the institution of proceedings that everything was done regularly in pursuance of the statute: and that upon acquisition of the lands, reasonable compensation was paid to the persons entitled thereto: See Oloto v. Attorney-General, supra. PER AKINTAN, J.C.A.
AKINTAN, J.C.A.: (Delivering the Leading Ruling): The plaintiff/respondent, Alhaji Diga Romani Atenda, had instituted this action at the Abuja Judicial Division of the High Court of the Federal Capital Territory as Suit No. CV/315/96 against the two defendants/appellants, Joseph Ona and Festus Ona. The plaintiff’s claim against the two defendants, as set out in paragraph 28 of the Statement of Claim which was filed along with the writ of summons is as follows:-
“Whereof the plaintiff claims the following court reliefs:-
(a) One Million, Five Hundred Thousand Naira (N1,500.000.00) damages for trespass to property, harassment, humiliation, defamation, damage to reputation and good will.
(b) Perpetual injunction restraining the defendants by themselves, agents and privies from any further trespass to the property in dispute and the person of the plaintiff.”
The defendants filed a memorandum of appearance and thereafter their counsel raised a preliminary objection as to the jurisdiction of the court to entertain the action. The objection was premised on the ground that since the land which formed the subject-matter of the plaintiff’s claim is situated at opposite Karmo main-market central gate, a place not designated as urban area in the Federal Capital Territory, only the Area Courts could have jurisdiction over the subject-matter and not the High Court of the Federal Capital Territory where the plaintiff filed the claim.
The matter thereafter came up before Bukar, J. of the Abuja Division of the High Court of the Federal Capital Territory. After taking submissions from learned counsel for the parties as well as from counsel from the Federal Attorney-General’s Chambers, the learned Judge held inter alia, in his ruling delivered on 24th March, 1997:-
“The defendants in their reply admitted that the issue whether customary rights of occupancy exist or not in the Federal Capital Territory, Abuja has been decided before by the Appellate Division of the High Court of the Federal Capital Territory, presided over by two High Court Judges in Wodi v. Jeshy (1982) ABJLR Col. 1 page 75 at 80. In the light of the above decision and in order to avoid conflicting decisions from the same High Court, the matter be referred to the Court of Appeal by way of case stated under Section 259(2) of the Constitution of the Federal Republic of Nigeria 1979 as amended.”
The learned Judge then formulated the following four questions of law for the Court of Appeal to answer in the matter:
“1. Whether by the combined effect of Section 49(1) of the Land Use Act Section 1(3) of the Federal Capital Territory Act and Section 261(2) of the Constitution of the Federal Republic of Nigeria 1979 as amended, abolished customary right of occupancy in the Federal Capital Territory.
2. Whether there is need to designate specific areas within the Federal Capital Territory as rural or urban areas if answer to question one is positive.
3. What is the status of occupiers or holders of such lands by virtue of section 36(1) of the Land Use Act?
4. Who has jurisdiction over the lands within the Federal Capital Territory, is it the Area Courts or the High Courts having regards to the existing laws?”
The above is a brief summary of what transpired in the lower court before the matter came to this court. The defendants at the lower court filed applicants’ brief in this court. The plaintiff filed a respondent’s brief and a number of briefs were filed by some members of the legal profession as amici curiae; and representatives of some bodies considered to be interested parties. The three briefs filed by people considered as interested parties are one from the Honourable Attorney-General of the Federation’s Chambers; another from the Director of Legal Services of the Federal Capital Territory; and the third was filed on behalf of the Abuja Municipal Area Council. Among those filed by members of the Bar invited as amici curiae are respectively one each from Mr. Adetokunbo Kayode and Mr. A.A. lzinyon, S.A.N. At the hearing in this court, Mr. Karima Tunyan, learned counsel for the applicants, as well as Mr. Uye Ogedegbe, learned counsel for the respondent were present and presented the case for their respective clients. Also present to address the court are Mr. Izinyon, SAN, and Mrs. J. O. Adesina from Mr. Kayode’s chambers.
On question No. 1, Mr. Karima Tunyan, learned counsel for the applicants, referred to the provisions of section 1(3) of the Federal Capital Territory Act (Cap. 128, Laws of the Federation of Nigeria 1990) and section 261(1) of the 1979 Constitution in both the applicants’ brief filed by him and in his submission before us. He then contended that the two laws only abolished the “radical title” of the rights of the original inhabitants. He contended that the rights of possession and usage of the land previously held by the said original inhabitants still subsist “until adequate compensation is paid to them”. He further submitted that, the provisions of section 49(1) of the Land Use Act (Cap. 202, Laws of the Federation of Nigeria 1990) do not abolish the right of possession of the original inhabitants. He therefore urged us to answer the first question posed in the negative.
Mr. Izinyon, S.A.N. is one of the leading counsel who responded to the invitation of this court for an input as a friend of the court and he in fact filed a brief and made oral presentation before us. He contended both in his brief and in his presentation before us on the question No. 1, that which it appears superficially that section 49(1) of the Land Use Act, section 1(3) of the Federal Capital Territory Act and section 261 (2) of the 1979 Constitution vest the land exclusively in the Federal Government, they do not abrogate the customary rights of occupancy of the original
inhabitants. Although he concedes that by virtue of section 1(3) of the Federal Capital Territory Act all land in Abuja absolutely belongs to the Federal Government, he however submitted that, section 49(1) of the Land Use Act revives the remnant of the right of possession and usage of the original inhabitants.
Mr. C. T. Ushafa, learned counsel for the Abuja Municipal Area Counsel, submitted inter alia, in a brief filed on behalf of his said client, also on question No. 1, that only the “radical title” was divested from the original inhabitants of the land by the aforementioned laws and that the said original inhabitants retain the occupancy right. Reference is made to the provisions of sections 40(1) and 39(1)(a) of the 1979 Constitution relating to the conditions which must be met by government when compulsorily acquiring land and certain enshrined rights of citizens respectively, and it is submitted that the combined effect of those provisions is that, any attempt to construe the provisions of the three laws: viz: Section 49(1) of the Land Use Act, section 1(3) of the Federal Capital Territory Act and section 261(2) of the 1979 Constitution, as having divested the original inhabitants of their possessory or occupationary right when the compensation has not been paid, would run counter to the afore-mentioned provisions of sections 40(1) and 39(1) (a) of the 1979 Constitution. The decision of the Supreme Court in Abioye v. Yakubu (1991) 6 SCNJ 69: (1991) 5 NWLR (Pt. 190) 130 is cited in support of this submission.
Reference is also made to section 4(b) of the Land Use Act which, sets out provisions relating to interim management of land. It is submitted that the import of the provisions of the said section 4(b) is that, it is an enabling law which would justify the grant of “customary occupancy right to the original inhabitants”. This is said to be so because the Land Tenure Law (No. 25 of 1962, Laws of Northern Nigeria 1962) which was the existing law in force in the entire area from which the present Federal Capital Territory was carved out, makes provision for the consideration of the custom of a given locality and payment of compensation in appropriate circumstances in land administration.
Mr. Adetokunbo Kayode has also submitted in his brief on the same question No.1 that, the concept of right of occupancy was introduced by sections 5 and 6 of the Land Use Act. Reference is also made to the provisions of sections 1(2)(a) and 3 of the Local Government (Basic Constitutional and Transitional) Provisions Decree (No. 18 of 1989) as amended by Decree No. 38 of 1989 which provide as follows:
“1(2)(a) There shall be 4 Area Councils in the Mayoralty of the Federal Capital Territory, Abuja as named in second column of Schedule 1 to this Decree …
(3) The Local Government Area Council shall be the only unit in respect of which the Government of a State or the Mayoralty of the Federal Capital Territory, Abuja is empowered, to establish an authority for the purpose of Local Government or Area Council as the case may be.”
He then submitted that, by virtue of the above provisions, the Area Councils in the Federal Capital Territory have the same powers, authority and rights like the Local Government Councils in Nigeria.
Reference is also made to the provisions of section 261 (2) of the 1979 Constitution and it is submitted that the President, or his minister authorised in that regard, has all the powers of the Governor of a State pursuant to section 51 (2) of the Land Use Act and in view of Decree No. 15 of 1989 as amended by Decree No.7 of 1997 which re-established the Area Councils and Local Governments, the chairman of an Area Council and that of a Local Government Council have all the authority and power granted to him by law, including the Land Use Act.
Finally, reference is made to the provisions of sections 49(1) of the Land Use Act and section 1(3) of the Federal Capital Territory Act. It is submitted that the provisions on grant of customary rights of occupancy contained in section 6 of the Land Use Act could apply to the Federal Capital Territory in view of section 51(1) of the Land Use Act. The learned counsel therefore concluded that the answer to the question No. 1 should be in the negative.
The above is a summary of the submissions made on behalf of the applicants and those in support of the view that, the first question ought to be resolved in the negative. The stand of the respondent is as set out in the respondent’s brief and in the oral submission made by Mr. Uye Ogedegbe, learned counsel for the respondent. Similar conclusion is reached in the briefs filed by Mr. M. M. Alkali, learned Director of Legal Services, Federal Capital Territory.
Mr. Uye Ogedegbe submitted in both his brief and in his oral presentation before us that as from 4th February, 1976 when the Federal Capital Territory Act came into force, the ownership of the entire land in question “vest absolutely in the Government of the Federation” by virtue of section 1(3) of the Act. When therefore on 29th March, 1978 when the Land Use Act came into force, the entire land in the Federal Capital Territory was already vested in the Government of the Federation as all deemed customary and statutory rights were extinguished since 4th February, 1976 when the Federal Capital Territory Act came into force. Reference is also made to section 6(3) of the Federal Capital Territory Act which provides for the payment of compensation to the occupants of the land affected. It is submitted that those who failed to ask for compensation as prescribed in that section cannot later complain of failure of the Federal Government to pay them compensation.
It is further submitted that, since by the provision of section 49(1) of the Land Use Act all land held by the Federal Government is excluded from the provisions of the Act, it follows that there was no land in the Federal Capital for which the local government could exercise customary right of occupancy. Any occupier of any land in the Federal Capital Territory without a statutory right of occupancy is therefore said to be living there illegally. The issue of whether the land in the Federal Capital Territory should be designated as rural or urban, is therefore of no effect because section 3 of the Land Use Act does not apply to the Federal Capital Territory. It is finally submitted that, by section 236 of the 1979 Constitution the High Court of Abuja is conferred with jurisdiction in respect of land in Abuja.
The views expressed by Mr. Alkali, learned Director of Legal Services at the Federal Capital Territory, and in his brief are similar to those of Mr. Uye Ogedegbe as already set out above. Apart from emphasizing the provision of section 6(3) of the Federal Capital Territory Act which provides, inter alia, that “Any person who claims any right or interest in any land comprised in the Federal Capital Territory shall submit in writing, particulars of his claims to the Executive Secretary on or before the expiration of a period of twelve months from the date of commencement of the order made under Section 2 of this Act” reference is also made to section 7(1) of the Federal Capital Territory Act. That section provides that “As from the commencement of this Act, no person or body shall within the Federal Capital Territory, carry out any development within the meaning of this Act unless the written approval of the Authority has been obtained by such person or body”. That provision is said to have clearly ousted the powers of any body or Area Councilor person from carrying out any development unless approved by the Authority.
The main issue raised in question No. 1 involves the interpretation to be given to certain provisions of the Land Use Act, the Federal Capital Territory Act and the 1979 Constitution. The Land Use Act, according to its preamble, is:
“An Act to vest all land comprised in the territory of each state (except land vested in the Federal Government or its agencies) solely in the Governor of the State, who would hold such land in trust for the people…”
The Act came into force on 29th March, 1978. Section 1 of the Act provides, inter alia, that:
“…all land comprised in the territory of each state in the Federation are hereby vested in the Governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.”
Section 2(1) (a) of the Act gives exclusive “control and management” of all land in urban areas in the Governor of each state; while all other land is, in section 2(1) (b) of the Act, to be under the “control and management of the Local Government within the area of jurisdiction of which the land is situated”.
The designation of land as urban and non-urban area is a creation of section 3 of the Land Use Act. That section confers on the Governor of each state the power to “designate the parts of the area of the territory of the State constituting land in an urban area” Such designation is to be erected by publication to that effect in the state Gazette.
Section 49(1) of the same Land Use Act exempts land held by the Federal Government from the provisions of the Act. The section provides that:
“49(1) Nothing in this Act shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Act and, accordingly, any such land shall continue to vest in the Federal Government or the agency concerned.”
The Federal Capital Territory Act, on the other hand, is, according to its preamble, “an Act to establish for Nigeria, a Federal Capital Territory”. The Act came into force on 4th February, 1976. The territory is created in section 1(1) of the Act and its area is defined in section 1(2) of the same Act. Section 1(3) of the Act provides as follows:
“1(3) The area contained in the Capital Territory shall, as from the commencement of this Act, cease to be a portion of the States concerned and shall henceforth be governed and administered by or under the control of the Government of the Federation to the exclusion of any other person or authority whatsoever and the ownership of the lands comprised in the Federal Capital Territory shall likewise vest absolutely in the Government of the Federation.”
Provision is made in section 6(1) & (2) of the Act for the method to be followed in the assessment and computation of compensation payable to people dispossessed from the land acquired for the Federal Capital Territory by the Act. Section 6(3) and (4) of the Act provides as follows:
“6(3) Any person who claims any right or interest in any land comprised in the Federal Capital Territory shall submit in writing, particulars of his claims to the Executive Secretary on or before the expiration of a period of twelve months from the date of commencement of the order made under section 2 of this Act or such longer period as the President may, either generally or in relation to any particular claim or claims, prescribe by notice published in the Federal Gazette.
(4) No claim for compensation shall be entertained by the Authority unless a written notice of the claim in accordance with subsection (3) of this section is served on the Authority within the period specified in the said sub-section.”
Finally, section 7(1) of the Act prohibits any person or body from carrying out any development within the meaning of the Act unless the written approval of the Authority has been obtained by such person or body.
It is clear from both the preamble to the Land Use Act and the provisions of section 1 of the said Act that the provisions of the Act are meant to vest all land in the territory of each State, excluding land vested in the Federal Government or its agencies, in the Governor of the State who would hold such land in trust for the people of the State and administered for the use and common benefit of all Nigerians. The proper function of a preamble is to explain certain facts which are necessary to be explained before the enactments contained in the Act can be understood. It is undoubtedly part of the Act and it is a legitimate aid in construing the enactment, particularly when there is an ambiguity or conflicting views as to the true meaning of the enactment in which case the view which fits the preamble ought to be preferred. See Salkeld v. Johnson (1848) 2 Ex. 256 at 283; Powell v. Kempton Park Racecourse Co. Ltd. (1999) A, C. 143; Turquand v. Board of Trade (1886) 11 App. Cas. 286; Odgers’ Construction of Deeds and Statutes. 12th ed pages 6-7; Ogbonna v. Attorney-General of Imo State & Ors. (1992) 1 NWLR (Pt.220) 6-17: and Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275 at 287-288. In line with the view expressed in both the preamble and section 1 of the Land Use Act as set out above, section 49(1) of the same Act specifically excludes the application of the provisions of the Act to title to land held by the Federal Government or any agency of the Federal Government at the commencement of the Act and that such land “shall continue to vest in the Federal Government.”
In the same vein, it is very clear from both the preamble to the Federal Capital Territory Act and section 1(3) of the Act that the territory now known as the Federal Capital Territory was created by the Act as the Federal Capital Territory for Nigeria as from the commencement of the Act on 4th February, 1976. The area also ceased to be a portion of the States from which it was carved out and it would henceforth be governed and administered by or under the control of the Federal Government “to the exclusion of any other person or authority whatsoever”. The ownership of the land comprised therein was vested absolutely in the Federal Government.
The question therefore of the powers conferred on and exercised by the Governor of a State under the Land Use Act being applicable in the Federal Capital Territory will not arise, since it is clear from the objective of the Land Use Act as set out in its preamble and the specific provisions of section 49(1) of the same Act, the provisions of the said Act are not applicable to title to land held by the Federal Government or any agency of the Federal Government. It follows therefore that the provision of section 3 of the Land Use Act which gives the Governor of a State power to designate parts of the area of the territory of the state constituting land as urban area is also in applicable to the land in the Federal Capital Territory.
In line with the provision of section 1(3) of the Federal Capital Territory Act which provides that the area contained in the Federal Capital Territory shall, from 4th February, 1976 when the Act came into force, cease to be a portion of the States from which the entire area was carved out, section 26(1) and (2) of the 1979 Constitution (section 297)(1) & (2) of the 1999 Constitution) the Federal Capital Territory was established and the ownership of all land comprised therein is vested in the Government of the Federal Republic of Nigeria.
Also as already mentioned above, adequate statutory provision is made in section 6 of the Federal Capital Territory Act for the mode of assessing and computing compensation to be paid to those affected by the land acquired for the Federal Capital Territory, Section 6(3) of the Act specifically provides that “Any person who claims any right or interest in any land comprised in the Federal Capital Territory shall submit in writing, particulars of his claims to the Executive Secretary on or before the expiration of a period of twelve months from the date of commencement of the order made under section 2 of this Act”, Sub-section 4 of the section provides that:
“6-(4) No claim for compensation shall be entertained by the Authority unless a written notice of the claim in accordance with subsection (3) of this section is served on the Authority within the period specified in the said sub-section.”
In an effort to further stamp the authority of the Federal Government over the land within the territory, it is provided in section 7(1) of the said Federal Capital Territory Act that “… no person or body shall within the Federal Capital Territory, carry out any development within the meaning of this Act unless the written approval of the Authority has been obtained by such person or body”.
The blunt truth emanating from the various provisions of the Federal Capital Territory Act and section 261 of the 1979 Constitution is that, the land that now constitutes the Federal Capital Territory was compulsorily acquired by the Federal Government for public purposes viz: for the purpose of building a new capital. The law is settled that where land is acquired for public purposes under a statute, as in the instant case, the Government takes such land as of right and no implied contract by the Government to pay compensation can be inferred from the taking. Similarly, claims for compensation for lands acquired by the Government for public purposes under a statute are statutory, and no owner of land so expropriated by statute, is entitled to compensation unless he can establish a statutory right to such compensation: See Oloto v. Attorney-General (1961) All N.L.R. 893 (P.C.): and Sisters of Charity of Rockingham v. The King (1922) 2 A. C. 315.
It is also settled law that a claim for compensation for land compulsorily acquired should be made timeously and in accordance with the provisions of the enabling statute. It follows, therefore that where the prescribed time for making the claim had elapsed without any claim to ownership being made, the land would therefore be deemed to be free from claim: See Ajakaiye v. Lieut Governor Southern Provinces (1929) 9 NLR 1. There is even a presumption, made stronger by the lapse of time between the dates of acquisition and the institution of proceedings that everything was done regularly in pursuance of the statute: and that upon acquisition of the lands, reasonable compensation was paid to the persons entitled thereto: See Oloto v. Attorney-General, supra.
Applying the law as declared above to the facts of the present case, the land in question was acquired under the Federal Capital Territory Act which came into force on 4th February, 1976. It is specifically provided in section 6(3) of the said Act that claims for compensation by persons affected must be filed within 12 months from the date of commencement of the order made under section 2 of the Act. The Act is now over 24 years old and if any of the people, now described as indigenous occupiers, failed to file any claim for compensation within the time specified in accordance with the provisions of the Act, such a person could be presumed not to have any valid claim. I therefore have no doubt in holding that the Federal Government is entitled to hold that no further claimants, apart from those filed within the time prescribed in the Act, are in existence. Similarly, I also hold that all those occupying any portion of the land in the Federal Capital Territory without the consent of the Authority are squatters on such land. Similarly, I believe that whatever customary rights of occupancy the original occupiers of the lands had prior to the acquisition of the entire area ceased to exist as from 4th February, 1976 when the Federal Capital Territory Act came into force.
In conclusion, therefore and for the reasons I already set out above, my answer to question No. 1 is in the affirmative; that is, the customary right of occupancy of the original inhabitants of the lands that now constitute the Federal Capital Territory was abolished as from 4th February, 1976 when the Federal Capital Territory Act came into force.
The point raised in question No.2 is, whether there is need to designate specific areas of the Federal Capital Territory as urban or rural areas. Again as I have already shown above, the idea of designating portions of lands in a State as urban or rural areas is a creation of the Land Use Act. Since I have earlier above held that that provision is inapplicable in the Federal Capital Territory, there is therefore no legal backing at present for compelling the President or his Minister charged with the management of the Federal Capital Territory for making such designations.
What is to be answered in Question No.3 is, what is the status of occupiers or holders of such lands in the Federal Capital Territory by virtue of section 36(1) of the Land Use Act. Section 36 of the Act makes transitional provisions in respect of land not in urban area. Sub-section (1) of the section provides as follows:
“36-(1) The following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this Act held or occupied by any person.”
Again as I have said earlier above, the provision of the Land Use Act requiring that portions of lands in a State should be designated as urban area is not applicable in the Federal Capital Territory. It follows therefore that, the provisions of section 36 relating to transitional provisions in respect to lands not in urban areas are also inapplicable in the Federal Capital Territory.
Finally, the point raised in question No.4 is which court has jurisdiction over the lands within the Federal Capital Territory. The idea of seeking an answer to this question is premised on the division of jurisdiction between the High Court and the Area Court/Customary Court created respectively in sections 39 and 41 of the Land Use Act. Jurisdiction is conferred on the High Court in section 39 in respect of lands in urban areas while the Area Courts and Customary Courts are conferred with jurisdiction to entertain claims in respect of lands in non-urban areas. There have been numerous decisions of the Supreme Courts in which this decision of jurisdiction between the High Court and Area Court/Customary Court is affirmed. One of such decisions is Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130, (1991) 6 SC NJ 69, supra.
The point which must be made clear is that all the decisions in question are in respect of the interpretation to be given to the provisions of sections 39 and 41 of the Land Use Act, But since it has been clearly shown above that the provisions of the Land Use Act requiring the State Governor to delimitate portions of the lands in a State as urban as against non-urban areas are inapplicable in the Federal Capital Territory, the division of jurisdiction between the High Court and the Area Court/Customary Court in the Federal Capital Territory will therefore not arise. It follows therefore that the appropriate court having jurisdiction in land matters in the Federal Capital Territory is the High Court of the Federal Capital Territory by virtue of section 236 of the 1979 Constitution since it has been shown that there is no customary right of occupancy in the Federal Capital Territory and that section 41 of the Land Use Act is also inapplicable in the Territory. The jurisdiction of that court however, is subject to the provisions of section 230(1) (q) and (r) of Decree No. 107 of 1993 (now section 251 of the 1999 Constitution) whereby the Federal High Court would assume jurisdiction where the Government of the Federation or any of its agencies is a party to the action.
In final conclusion and for the reasons set out above, (1) My answer to question No. 1 is in the affirmative. (2) My answer to question No.2 is that there is no legal backing compelling the President or the Minister charged with the management of the Federal Capital Territory to designate any part of the Territory as urban area. (3) My answer to question No.3 is that the provisions of section 36 of the land use act relating to transitional provisions in respect to lands not in urban areas are inapplicable in the Federal Capital Territory; and (4) My answer to question No.4 is that the High Court of the Federal Capital Territory is the court conferred with jurisdiction to entertain claims in respect of lands in the Federal Capital Territory, subject, however to the provisions of sections 230(1)(q) & (r) of Decree No. 107 of 1993 (now section 251 of the 1999 constitution).
In view of the constitutional importance of this case, I consider it unnecessary to saddle any particular party with the burden of bearing the costs in this court. I therefore make no order on costs.
MUSDAPHER, J.C.A.: This is a reference on question of law under the provisions of section 259 (2) of the 1979 Constitution now section 295 (2) of the 1999 Constitution. My Lord Akintan JCA has meticulously, admirably and lucidly set out the facts in the leading judgment. He has similarly comprehensively and exhaustively dealt with all the issues and the posers presented to this court for determination. I only want to comment very briefly on one of the issues solely for the sake of emphasis.
There is no dispute whatever “all lands” within the Federal Capital Territory has been acquired by the Federal Government of Nigeria since the promulgation of the Federal Capital Territory Act in 1976. See also section 261(2) of 1979 Constitution and now section 297(2) of 1999 Constitution which provides:-
“The ownership of all lands comprised in the Federal Capital Territory shall vest in the Government of the Federal Republic of Nigeria.”
This can be contrasted with the provisions of the Land Use Act which vests all lands in the states in the Governor of that state “in trust” for the people.
All lands in the Federal Capital Territory are vested absolutely in the Government of the Federation.
It is also specifically stated by S. 49(1) of the Land Use Act that the Land Use Act shall not apply to land “held by the Federal Government”. Therefore the question of urban or non urban land could not apply and before Area Councils could have anything to do with the lands within the Federal Capital Territory an Act of the National Assembly must first be promulgated to define the administrative and the political structure of the Area Councils and this has not been done. In any event, the question of urban or non urban area is a creature of the Land Use Act and has no relevance or application to Federally held lands. The jurisdiction of the courts in relation to lands under the Land Use Act cannot also affect the lands within the Federal Capital Territory. The matter under reference is a dispute between individual citizens and in my view the High Court of the Federal Capital Territory has the jurisdiction to adjudicate on the dispute placed before it. See: Section 257(1) of the 1999 constitution.
It is for the above and the fuller reasons for the answers contained in the decision of my Lord Akintan J.C.A. that I too answer the question referred to this court as follows:-
Question (1) Yes.
Question (2) All land is absolutely vested in the Federal Government the question of urban and rural does not arise.
Question (3) The occupier of the lands are at best squatters or tenants at will.
Question (4) The High Courts have jurisdiction since the dispute is between private citizens.
I make no order as to costs.
BULKACHUWA, J.C.A.: I have had the privilege of reading in draft the lead ruling just delivered by my Lord Akintan, JCA. I agree with the reasons given by him in answering the questions posed by the Abuja High Court.
I wish by way of emphasis to add the following:
Section 1(3) of the Federal Capital Territory Act provides:
“The area contained in the Capital Territory shall, as from the commencement of this Act, cease to be a portion of the States concerned and shall henceforth be governed and administered by or under the control of the Government of the Federation to the exclusion of any other person or authority whatsoever and the ownership of the lands comprised in the Federal Capital Territory shall likewise vest absolutely in the Government of the Federation”.
It follows therefore that with the coming into being of the above Act i.e. on 4th February, 1976 all land within the Federal Capital Territory vests absolutely in the Federal Government to the exclusion of any other person or authority.
Provision was however made by the Act in Section 6(1) and (2) for the computation and assessment of compensation payable to people formerly occupying land acquired, for the Federal Capital Territory.
Section 6(1) of the Act requires any person claiming right or an interest in the land within the Federal Capital Territory to submit in writing particulars of his claims on or before the expiration of twelve months from the date of commencement of the Order.
The Land Use Act which came into effect on 29th March, 1978 has by its provision in Section 49(1) provided:
“Nothing in this Act shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Act …”
It follows from the above that the provisions of Land Use Act do not affect title to land held by the Federal Government or its agency before the coming into effect of the Land Use Act.
The provisions of Sections 51(2) of the Land Use Act vested all powers on any land held or vested in the Federal Government on the President or any Minister designated by him. No mention was made of any Local Government or Area Council.
The provisions of the 1979 Constitution as (amended) relevant to this case are Sections 261 and 262. Section 261(1) defined the boundaries of the Federal Capital Territory while section 261(2) vests the ownership of lands within the Federal Capital Territory on the Government of the Federation confirming the provisions of section 1 (b) of the Federal Capital Territory (FCT) Act. Section 262 stated that the Federal Capital Territory shall be the capital and the seal of Government of the Federation.
The combined effect of all the above provisions have exclusively vested all rights on land in the Federal Capital Territory on the Federal Government. The Land Use Act which designated Lands into Urban and Rural or non-Urban is not applicable to the land in the Federal Capital Territory.
The Area Council within the Federal Capital Territory cannot exercise jurisdiction in land which is not vested in them when they came into being.
For the above reasons and fuller reasons in the lead ruling of my Lord Akintan, JCA I will answer the four questions as follows:
Question 1;
The combined effect of the provisions of section 49(1) of the Land Use Act, section 1(3) of the Federal Capital Territory Act and section 261(2) of the 1979 Constitution as amended has abolished customary right of occupancy in the Federal Capital Territory.
Question 2;
All land within the Federal Capital Territory vests absolutely in the Federal Government. Issue of designating the land urban or non-urban therefore does not arise.
Question 3;
The Land Use Act does not apply to the Federal Capital Territory, so section 36 of the said Act is inapplicable.
Question 4;
The High Court of the Federal Capital Territory has jurisdiction in all land matters within the Federal Capital Territory where the parties are private individuals as in this case. Where one of the parties is the Federal Government or one of its agencies, the Federal High Court assumes jurisdiction by virtue of section 251 of the 1999 constitution.
I make no orders as to costs.
ODUYEMI, J .C.A.: I have had the privilege of a preview of the judgment just read by my learned Lord, Sunday Akinola Akintan, JCA.
I agree with the reasoning as well as the conclusions and answers which his Lordship has given in respect of each of the four questions referred to this court by the High Court of the Federal Capital Territory in the suit before it.
However, I wish to add the following comments:-
With regard to Issue No. 1 which seeks an answer as to whether the combined effect of section 49(1) of The Land Use Act, section 1(3) of The Federal Capital Territory Act and Section 261(2) of the Constitution of The Federal Republic of Nigeria 1979 as amended, abolished customary right of occupancy in the Federal Capital Territory.
Some of the briefs and oral arguments presented before this court suggest that until compensation has been paid by, or unless full compensation has been paid to every occupier of land comprised in the lands acquired for The Federal Capital Territory, the former occupiers of such lands cannot be divested of their proprietary rights of occupation. It is even suggested that the provisions of section 49(1) of The Land Use Decree and of S. 1(3) of the Federal Capital Territory Act which vest ownership of the Lands comprised in the Federal Capital Territory absolutely to the Government of the Federation are in breach of sections 39(1) and 40(1) of the Constitution of the Federal Republic of Nigeria.
It need be pointed out that section 49(1) of the Land Use Act saves the title to all land whether developed or undeveloped held by the Federal Government at the commencement of the Act i.e. 29th March, 1978 and expressly provides that any such land shall continue to vest in the Federal Government.
It is common knowledge that prior to the radical title to land introduced by the Land Use Act, generally the applicable law for the acquisition of land for use by the Federal Government has usually been under the relevant Public Laws Acquisition Law of the state in which the land is situate.
Each such law, like section 6 of The Federal Capital Territory Act has provision for the payment of compensation in respect of claims by owners or occupiers of such land, the subject of acquisition.
Therefore, in so far as section 49(1) covers title to all lands held by the Government of the Federation or any of its agencies wheresoever it may be in Nigeria, that provision cannot be said to be contrary to the provisions of section 39 of the 1979 Constitution which protects a citizen of Nigeria irrespective of his community, ethnic group, place of origin, sex, religion or political opinion from being subjected to discrimination in respect of any executive or administrative action of Government.
As to section 40 of that Constitution, it provides that no movable property or any interest in an immovable property shall be taken possession of compulsorily or acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that among other things requires the prompt payment of compensation therefore; and gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.
Surely, it cannot be said that the provisions of section 6 of the Federal Capital Territory Act, Cap 128 L.F.N. 1990 relating to payment in respect of claims for compensation have not satisfied the provisions of this section of the Constitution.
For these and the fuller reasons given by my learned brother in the lead judgment, I too would answer question No. 1 in the affirmative i.e. the customary right of occupancy of the original inhabitants of the lands that now constitute the Federal Capital Territory was abolished as from 4th February, 1976 when the Federal Capital Territory Act came into force.
The second question referred to this court is whether there is need to designate specific areas within the Federal Capital Territory as rural or urban areas.
Here, it is to be observed that section 49(1) of the Land Use Decree which saves title to land of any land held by the Federal Government distinguishes not between urban or non-urban land as contained in section 6 of the Act but between developed and undeveloped land.
If this is so, I am of the view that the issue whether there is need for Minister of Federal Capital Territory to whom the President has delegated executive powers vested in the President and the Governor of a State under the applicable laws to delineate any land as urban land under the provisions of section 3 of the Land Use Decree does not arise.
I am accordingly of the same view with that of my learned brother Akintan, JCA in the lead judgment that there is no legal backing for the making either by the President or the Minister of The Federal Capital Territory of an order for declaring any area of the Capital Territory or of any land elsewhere in Nigeria held or vested in the Federal Government as urban area.
Since in my answer to question 2, I have held that title to land held by the Federal Government or any of its agencies in any state of the Federation or the Federal Capital Territory is designated either developed or undeveloped and not as urban or non-urban, it must necessarily follow that section 36 of the Land Use Act which relates to land not in urban areas does not apply to the lands of the Federal Government whether in the Federal Capital Territory or elsewhere in the Federation. Accordingly, the answer to Issue No.3 in the reference to this court which asks the question – what is the status of occupiers or holders of such lands by virtue of section 36(1) of the Land Use Act must be that any occupier of land in the F.C.T who is not in occupation of the land by virtue of a certificate of occupancy issued by the Minister for the Federal Capital Territory is in illegal occupation.
Question No, 4 in the reference reads: Who has jurisdiction over the lands within the Federal Capital Territory, is it Area Courts or the High Courts having regards to the existing laws?
There is no doubt that all the lands in the Federal Capital Territory were at one time or the other before the coming into force on 4th February, 1976 of The Federal Capital Territory Act fall within states which were subject to the Land Tenure Law, Cap, 59 Laws of Northern Nigeria, 1963.
In Section 41 of the Law exclusive jurisdiction is given to the High Court in proceedings:-
(a) In which the right of the Governor or the Minister to grant a right of occupancy over any land is in dispute;
(b) Proceedings by way of petition of right; and
(c) Proceedings by the Attorney-General for recovery of possession under section 39(1) of the Law.
while a Native Court of competent jurisdiction is conferred with jurisdiction inter alia in respect of land the subject of a statutory right of occupancy granted by a Native Authority, and The High Court and District Court (within the respective limits of a District Court) have jurisdiction principally where statutory grants by native authorities or customary right of occupancy is involved.
It has been seen that by virtue of section 49(1) of the Land Use Decree, there is no question or a customary right of occupancy arising in respect of lands vested in the Federal Government or its agencies as Federal lands are designated developed or undeveloped under the Act and not urban or non-urban.
Similarly, the powers of the President or of a Governor under any applicable law are by section 13(3) (b) of the Federal Capital Territory Act vested in the Minister charged with-responsibility for The Federal Capital Territory, it must follow that there is no question of a Native Court, Area Court or District Court in the area of the Federal Capital Territory exercising jurisdiction under section 41 of the Land Tenure Law of the Former Northern Nigeria.
To this extent, I say with respect, that reliance placed by some learned counsel in their briefs submitted to this court on the authority of some Supreme Court cases on jurisdiction of Area Courts or Customary Courts in respect of land not in urban area such as:-
(a) Alhaji Abubakar Sadiku v. Alhaji Abba Dalori (1996) 5 NWLR (Pt.447) p. 151;
(b) Garuba Abioye & Ors v. Sa ‘adu Yakubu and Ors (1991) 5 NWLR (Pt. 190) p. 130, is misplaced. There is no land of either urban or non-urban nature in the area of the Federal Capital Territory.
What is more, since only the Minister for the Federal Capital Territory can grant Statutory Rights of Occupancy by virtue of section 18 of the F.C.T. Act over any land in the area in question, even under section 41 of the Land Tenure Law, proceedings under sub-section (1) must be before the High Court which by the combined operation of section 263 of the 1979 Constitution (applicable at the time of reference) and section 230(1) (q) & (r) of Decree No. 107 of 1993 (now S. 251 of the Constitution of The Federal Republic of Nigeria, 1999), depending upon the circumstances in the particular case, shall now be either The High Court of The Federal Capital Territory or The Federal High Court.
Accordingly, my answer to Question No.4 is that the High Court of the Federal Capital Territory, Abuja or the Federal High Court, depending upon the circumstances, has jurisdiction in respect of lands within the Federal Capital Territory but certainly not the Area Courts.
MANGAJI, J.C.A.: I have had the privilege of reading in draft, the lead reasons for the ruling of my learned Brother Akintan, J.C.A, and I entirely agree with his reasoning and conclusion for answering the questions referred to this Court for interpretation. I wish however to make the following contribution by way of emphasis.
This case is referred to this Court pursuant to S-259 (2) of the Constitution of the Federal Republic of Nigeria, 1979 (as variously amended) being substantial question of law referred for interpretation having arisen from the proceedings of the High Court, Abuja presided over by I.M. Bukar J. in suit No. FCT/HC/CV/315/96 Joseph Ona & 1 other v. Alhaji Diga Romani Atanda. Section 259(2) of the said 1979 Constitution which vests this Court with power to entertain such substantial questions of law that are referred to it for interpretation reads thus:-
“Where any question as to the interpretation or application of this Constitution arises in any proceedings in a High Court, and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.”
In the light of the above, the questions of law so referred shall accordingly be considered, but before I do that I need recapitulate the salient and relevant facts of the suit before the High Court of Abuja which gave rise to this referral matter. I should perhaps reemphasize in parenthesis that only those aspects of the suit which affect the questions of law referred shall be considered in resume.
On a date not indicated the plaintiff took out a writ of summons against the defendants claiming as follows:-
“1. One Million, Five Hundred Thousand Naira (N1,5000.000.00) (sic) damages for trespass to property, harassment (sic) humiliation, defamation, damages to reputation and good will.
2. Perpetual injunction restraining the defendants by themselves, agents, privies from further trespass to the property in dispute and the person of the plaintiff.
It does appear that along with the writ was filed a statement of claim which is equally undated setting forth the averments in support of the suit. Apparently, in response to the suit, Mr. Tunyan of counsel for the defendants filed a motion on notice challenging the competence of the suit on the grounds inter alia that, “a suit of trespass cannot be instituted against a person in possession of property without claiming a declaration of title at the same time”. In a reserved ruling delivered on 23rd October, 1996, the learned trial Judge dismissed the application wherein Mr. Tunyan further raised another preliminary objection based on the jurisdiction of the High Court, Abuja to entertain the suit. The objection was premised on the ruling of the learned trial Judge who held that by the very nature of the claim of the plaintiff the matter of title to the land in question was made an issue having regard to paragraphs 1 to 9 of the Statement of Claim.
Learned counsel’s objection is that, the land in dispute is situated in Karimu; a suburb of Abuja, the Federal Capital. Indeed Karimu is within the Federal Capital Territory. That the said suburb has not been designated as urban area and no legal instrument has been promulgated designating it as such in accordance with section 3 of the Land Use Act, 1990. That not having designated the place as such, it remains a non-urban area in respect of which the High Court has no jurisdiction. Learned counsel relied on the Supreme Court’ sdecision in Sadikwu v. Dalori (1996) 5 NWLR (Pt. 447) 151: (1996) 4 SCNJ 209 at 210 on that score.
Mr. Ogedegbe for the plaintiff contended the contrary and submitted that by virtue of section 1(3) of the Federal Capital Territory Act Cap. 128 of the Laws of the Federal Republic of Nigeria, 1990 read along with section 3 of the Land Use Act, 1978 the whole of the Federal Capital Territory is urban and in that respect only the High Court has jurisdiction to entertain land matters pertaining the parcels of land which comprised the Federal Capital Territory.
Having regard to the divergent opinions held by learned counsel and with their consent the Attorney-General of the Federation, the Director Legal Services of the Federal Capital Development Authority (FCDA) and the relevant Area Council in Abuja were invited. The office of the Federal Attorney-General responded and its representation was in accord with the views of learned counsel for the plaintiff. Mr, Tunyan for the defendants then moved that there are divergent views on the issue as a decision of the High Court, Abuja in Wodi v. Usehi (1992) ABJ L.R. Vol.1 P. 75 at 80 did hold that, a customary right of occupation is known and does exist in the Federal Capital Territory. He therefore reasoned that in order to avoid having conflicting decisions, three proposed questions of law be referred to the Court of Appeal for interpretation. Mr. Ogedegbe added fourth questions which were thus referred for interpretation. These questions are couched thus:-
“1. Whether by the combined effect of section 49(1) of the Land Use Act, section 1(3) of the Federal Capital Territory Act and section 261(2) of the Constitution of the Federal Republic of Nigeria (as amended) abolished Customary Right of Occupancy in the Federal Capital Territory.
2. Whether there is need to designate specific areas within the Federal Capital Territory as Rural or Urban Areas, if the answer to question one is positive.
What is the status of occupiers or holders of such land by virtue of section 36(1) of the Land Use Act?
4. Who has jurisdiction over land within the Federal Capital Territory, Is it the Area Court or the High Court, having regard to the existing laws?”
Following from the above, the plaintiff and the defendants filed their respective briefs of argument. A brief each was filed on behalf of the Attorney General of the Federation: the Federal Capital Development Authority and the Abuja Municipal Area Council with the consent of course of both parties as amici curiae. An A. A. Izinyon also filed a brief of argument as amici curiae on the invitation of this court. In any case from his brief, he appears to have strong interest in the subject matter in respect of which this reference was made. For ease of reference I shall henceforth refer to the defendants as “applicants” and the plaintiff as “respondent”. Be that as it may, each learned counsel adopted his brief of argument filed and proffered argument viva voce in amplification but effectively not improving on the brief. In the event I shall only give a resume of the submissions contained in the briefs of argument which I consider most comprehensive.
In his brief of argument learned counsel for the applicants, in arguing the first issue quoted sections 49(1) of the Land Use Act, 1978: section 1(3) of the Federal Capital Territory Act and section 261 (2) of the 1979 Constitution and submitted that the combined effect of the Constitution and the Acts is to divest citizens of the radical title they hitherto had as previous owners of parcels of land. He relied on Abioye v. Yakubu (1991) 5 NWLR (Pt.190) 130, (1991) 6 SCNJ 69 at 79. That land owners are now left with ‘right of occupancy’ with the inception of the Land Use Act. He said the customary ownership of land is therefore impliedly preserved. He finally submitted that question No. 1 must be answered in the negative.
On the second question, learned counsel submitted that by the operation of section 2(2) of the Local Government (Basic Constitutional and Transitional) Provisions Decree No.7 of 1997 the Area Councils within the Federal Capital Territory have the status and functions of Local Government Councils at the State Level. He pointed out that the powers conferred on the State Governor by section 51(2) of the Land Use Act, 1978 is equally vested on the president of the Federal Republic of Nigeria or a Minister assigned by him in respect of the Federal Capital Territory. That the Minister of the Federal Capital Territory had in fact been delegated by the President in respect of the land within the said territory by virtue of section 18 of the Federal Capital Territory Act, Cap. 128 of the Laws of the Federation, 1990. He submits that by reason of the above coupled with section 3 of the Land Use Act, the Minister of the Federal Capital Territory has the same power as the Governor of a State to designate parts of the area of the Territory as urban. He reasoned that the failure to declare some areas as urban has deprived the Area Councils of the right to exercise power conferred on them by sections 6 and 36 of the Land Use Act. He urged that the second question be answered in the positive.
On the third question learned counsel submitted that the previous owners of land within areas not designated as urban are deemed grantees of Customary Right of Occupancy by virtue of section 36 of the Land Use Act. He said that is the position also within the Federal Capital Territory.
On the fourth question, learned counsel submitted that having regard to the answer to the third question, title holders of land within the Federal Capital Territory who are deemed holders in non-urban area shall only have recourse to Area courts in the event of any dispute affecting land. He pointed out that the effect of section 41 of the Land Use Act, is similar to section 41 of the Land Tenure Law, Laws of Northern Nigeria 1963 and it confers jurisdiction on Area or Customary Courts in land matters involving customary right of occupancy issued by Local Government or Local Authority. He was positive that it is the Area Courts that have jurisdiction to entertain suits relating to customary title within the Federal Capital Territory.
In his brief of argument, Mr. Ogedegbe of counsel for respondent on the first question for interpretation stressed that the Federal Capital Territory Act came into force on 4th February, 1976 while the Land Use Act, 1978 became operational from 29th March, 1978. He pointed out that Mohammed Bello CJN in Abioye v. Yakubu (1991)5 NWLR (Pt.190) 130, (1991) 6 SCNJ 69 at 79 interpreted S.34(5) of the Land Use Act to mean that in the case of the Federal Capital Territory that section is only applicable on proof of the existence of a customary right on 29th March, 1978. He submitted that as at 29th March, 1978 the entire land that comprised the Federal Capital Territory became vested in the Government of the Federation and every deemed customary or statutory right issued became extinguished. He relied on S.1 (3) of the Federal Capital Territory Act, 1976. Learned counsel further submitted that section 36(1) of the Land Use Act, 1978 is inapplicable to land within the Federal Capital Territory as such land became vested in the Government of the Federation by virtue of section 1 (3) of the Federal Capital Territory Act which came into force before the said Land Use Act. That by S.4 of the Land Use Act which is transitional, the land within the Federal Capital Territory shall be administered through the existing law which is the Federal Capital Territory Act having regard to section 3 of the Land Use Act. He therefore answered the first question in the affirmative.
On the second question, learned counsel submitted that it will be unconstitutional for the Government to create areas in respect of which customary right of occupancy could be granted, since with the composition of the Federal Capital Territory the question of which custom would be applied will not be ascertainable.
That the Minister of the Federal Capital Territory being a delegate of the Government cannot legally sub-delegate a duty delegated to him as a delegated power cannot be sub-delegated. He therefore reasoned that, there could be no need to designate specific areas within the Federal Capital Territory either as urban or rural.
On the third question posed learned counsel submitted that S.36(1) of the Land Use Act is inapplicable to the Federal Capital Territory because at the time the Land Use Act became operational all land within the Federal Capital Territory had already become vested and was held by the Government of the Federation and any person occupying any parcel of land therein is either a squatter or a licensee of the Federal Government. He said the decision in Wadi v. Jeshi (1992) Abuja Law Report (Vol. 1) 75 was given per incuriam.
On the fourth question, learned counsel submitted that because there is no deemed right in the Federal Capital Territory, only the High Court has jurisdiction in land matters within the territory. He further submitted that any customary right of occupancy granted within the area of Federal Capital Territory by any Area Council is illegal, unconstitutional and null and void.
D. A. Muhammed, a legal officer in the chambers of the Attorney-General of the Federation forwarded a written brief of argument on behalf of the Attorney-General as amicus curiae.
On the first question raised and submitted for interpretation learned counsel, after considering all applicable laws submitted that the issuance of customary right of occupancy was not envisaged in the Federal Capital Territory. Further he submitted that recourse cannot be had to S.18 of the Federal Capital Territory Act as conferring on the Minister power to delegate to the Area Councils the responsibility of issuing customary certificates of occupancy because the Minister, who himself has been delegated by the President could not legally sub-delegate same except where, by instrument the President directly confers such power on the Area Councils.
Further in submissions learned counsel said the case of Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130, (1991) 6 SCNJ 69 101 is decided on the import of sections 36 and 50 of the Land Use Act in relation to States and does not, to that extent, affect or envisage the peculiar situation of the Federal Capital Territory. That in the event, the decision in that case does not apply to the Federal Capital Territory. He answered the first question in the affirmative.
On the second question, learned counsel submitted that all land within the Federal Capital Territory being Federal Land, there is no need for designating specific areas within it as rural. He conceded however, that the President has been conferred with power as it is with the Governor at the State level to designate areas as urban by section 3 of the Land Use Act. He maintained that it is not advisable to do so for the interest of the corporate existence of Abuja as Federal Capital and in keeping with section 261 of the 1979 Constitution read together with section 51(2) of the Land Use Act. That to so designate areas as urban within the Federal Capital Territory will create dichotomy in land administration therein. That the issuance of letters of grant by Area Councils is but only an administrative act designed to advance the course of convenience.
On the third question learned counsel submitted that all holders of land within the Federal Capital Territory hold same as allocations made to them in urban areas since S.36(1) of the Land Use Act is inapplicable.
On the last question for interpretation learned counsel submitted that both the High Court and the Area Courts share concurrent jurisdiction by virtue of S.39(1) and section 17 paragraph 5 of the schedule to the Land Use Act, 1978 respectively. The Federal Capital Territory, through its Director of legal Services also presented a brief of argument as amicus curiae. On the first question Mr. Alkali pointed out that the boundaries of the Federal Capital Territory are well defined in the first schedule to the Federal Capital Territory Act and as provided by section 2(1) of the Act. He submitted that S.1(3) of the Federal Capital Territory Act has empowered the Federal Government, to the exclusion of any other person or authority the governance or administration of the land within the Federal Capital Territory. He said ownership of the said land is also vested in the Federal Government absolutely. He argued that S.6(3) of the Federal Capital Territory Act reasserts the Federal Government’s ownership of the land and that any right or interest in land which any person had within the Territory shall be submitted to the said Federal Government within twelve months of the commencement of the order made under S.2 of the Act.
Further, learned counsel referred to section 7(1) of the Federal Capital Territory Act and submitted that only the Minister of the Federal Capital Territory has been empowered to issue written approval for development purposes within the Territory. He therefore submitted that, customary right of occupancy cannot be legally issued over any piece of land within the Federal Capital Territory. He further placed reliance on sections 261 and 262 of the 1979 Constitution which he said have same effect with S.1(3) of the Federal Capital Territory Act.
Continuing, learned counsel referred to S.49(1) of the Land Use Act and submitted that title held by the Federal Government over parcels of land including the Federal Capital Territory will not be affected adversely in any way and that at any rate the Area Councils were not in existence on the date the Land Use Act became operational. He finally answered the first question in the affirmative.
While submitting on the second question, learned counsel referred to section 3 of the Land Use Act relating to declaration of an area as urban as well as sections 6(1) and 51(2) thereof and reasoned that there could not be land other than urban in the Federal Capital Territory” Further learned counsel referred to sections 261(2) and 262 of the 1979 Constitution as well as section 3 of the Land Use Act and submitted that the provision of the latter Act being discretionary and all land within the Federal Capital Territory being under the control and management of the Government of the Federation there would not possibly be power sharing between the Federal Government and Area Councils in land matters more so, that Area Councils were a later creation. He therefore submitted that, land within the Federal Capital Territory is urban. He pointed out that the Certificate of Occupancy issued by the Minister of Federal Capital Territory is Statutory and not customary. On the above premises therefore, he answered the second question in the negative. On the third question concerning the status of occupiers or holders of land in the Federal Capital Territory, learned counsel submitted that section 36(1) of the Land Use Act is inapplicable to the Territory and for that reason the ratios in Abioye v. Yakubu and Wodi v. Jesehi (both cited supra) are inapplicable to the Federal Capital Territory. He said the phrase “deemed customary right of occupancy” adopted in the Abioye case must be read to mean, “deemed statutory right of occupancy”, in the case of title holders to land within the Federal Capital Territory.
On the fourth question, learned counsel referred to his submissions in this matter and arrived at the conclusion that only the High Court in the Federal Capital Territory has jurisdiction over land matters within the Territory.
Mr. Ushara, on behalf of the Abuja Municipal Area Council also submitted a written brief of argument. On the first question posed, learned counsel quoted sections 40(1) and 39(1) of the 1979 Constitution in that order and submitted that any attempt to construe the provisions of S.49(1) L.U.A.; S. 1(3) Federal Capital Territory Act; and S. 261(2) of the 1979 Constitution as having divested the original inhabitants of the Federal Capital Territory of their possessory or occupancy right when no compensation has been paid will run counter to the express provisions of the Constitution. He relied on the Abioye case to submit that any interpretation made to the provisions of the 1979 Constitution and the Acts quoted above which would adversely affect the basis of the survival of the original inhabitants of the Federal Capital Territory is unacceptable realising that not one person from the area of Kwara State that has been excised and incorporated in the Federal Capital Territory indicated his willingness to move out of the Territory. Learned counsel referred to Senator A. D. Rufai Presidential Ad-hoc Committee’s report which he said made movement out of Federal Capital Territory by the original inhabitants optional. That those who chose to remain within the Federal Capital Territory must necessarily be protected and their interests guarded by the Federal Government who hold land within the Territory in trust for the said inhabitants and other citizens.
Further in submission, learned counsel referred to section 4(6) of the L.U.A. and argued that the provisions of the Land Tenure Law are applicable to the Federal Capital Territory as existing law and the original inhabitants are therefore entitled to the grant of customary right of occupancy. He answered the first question in the negative.
In his response to the second question, learned counsel referred to the Senator A. D. Rufai Presidential Ad-hoc committee’s report which he said was accepted by Government in 1981 and submitted that designating specific areas within the Federal Capital Territory as rural and urban will enhance the territory’s unity in adversity and will in no way affect the functioning of Abuja as the Federal Capital Territory. Continuing learned counsel submitted that S.50(2) of the Land Use Act did confer on the Minister of the Federal Capital Territory powers exercisable by the Governor at the State level and being a specific provision, the exercise by the Minister of his powers will do no violence to the principle of delegatus potestas non potest delegari and delegatus non potest delegari. He finally answered the question posed in the affirmative.
On the third question, learned counsel submitted that occupiers and holders of land within the Federal Capital Territory hold same possessory title as those whose holding are deemed properly granted since at any rate only the radical title of land holders has been extinguished by the Land Use Act.
On the fourth question, learned counsel submitted that whereas the High Court has jurisdiction over land covered by statutory right of occupancy, the Area Courts have jurisdiction over lands covered by customary right of occupancy issued by the Area Councils.
At the invitation of this court, Izinyon Esq. submitted a written brief of argument Learned counsel while arguing the first question posed quoted sections 49(1) of the Land Use Act; section 1(3) of the Federal Capital Territory Act and S. 261(2) of the 1979 Constitution and submitted that there appeared to be a clear case of divesting all radical title to land within the Federal Capital Territory. Learned counsel referred to the definition of ownership in Black’s Law Dictionary 5th Edition and argued that by 1978 when the Land Use Act was promulgated the Federal Government had already taken over ownership of land within the Federal Capital Territory by the combined effect of S.1 (3) of the Federal Capital Territory Act and S.49(1) of the Land Use Act. That although neither S.261(2) of the 1979 Constitution nor S-1 (3) of the Federal Capital Territory Act made mention of land whether developed or undeveloped urban or non urban, there is no doubting that the Federal Government does own land within the Federal Capital Territory whether the land is developed or undeveloped, urban or non-urban. He therefore submitted that the exclusive control possession and management of land in the Federal Capital Territory vest in the Federal Government who holds same in trust for Nigerians. He referred to Nkwocha v. Government of Anambra State (1984) 1 SCNLR 634 at 637. He opined that although land in the Federal Capital Territory is vested in the Federal Government, the Minister of Federal Capital Territory and the respective Area Councils hold same and manage it on behalf of the Federal Government, the former having derived authority by virtue of S.51 (2) of the L.U.A. and S.8 of the Federal Capital Territory Act.
Learned counsel submitted that S.1(3) of the Federal Capital Territory Act does not specifically mention urban areas as being under the exclusive control and ownership of the Federal Government Area Councils are a creation of the Constitution (Suspension and Modification) Decree No. 107 of 1993 and that the functions of the Area Councils are spelt out in sections 26 & 27 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No.7 of 1997. He therefore submitted that Area Councils cannot be created in the Federal Capital Territory for administrative convenience only without the corollary function of control and management of land within their respective jurisdictions being such land not designated as urban.
Further in submission, learned counsel said the Minister is vested with power to grant statutory right of occupancy over land whether in urban area or not but that he cannot grant such title over land within the defined areas of the Area Councils. He therefore was of the firm view that customary right of occupancy in the Federal Capital Territory is very much lawful and can be validly issued by the Area Councils. He answered the first question in the negative.
On the second question, learned counsel submitted that there is no land in the Land Use Act described as “Rural Area”. Rather, the Act designates land as either “Urban” or non-Urban and that to that extent there is the need for the Minister of Federal Capital Territory to declare some areas as urban so that Area Councils can assume full control over non-urban areas. He answered the second question in the affirmative.
On the third question, learned counsel submitted that by virtue or S.6(1) of the Land Use Act applicable to Area Councils, the status of a holder or occupier of Land under S.36(1) of the Act is preserved as one deemed granted. He referred to Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130, (1991) 6 SCNJ 61; Savannah Bank of Nig. Ltd. v. Ajilo (1989) 1 NWLR (Pt. 97) 305, (1989) 1 SCNJ 169 at 187- 188 and Nkwocho v. Government of Anambra State (referred supra) at page 637. He then concluded that the right of the holder of land within the Federal Capital Territory is preserved.
On the fourth question, learned counsel submitted that by virtue of S.6(1) of the Land Use Act 1978 Area councils are empowered to grant customary right of occupancy. In the event he said, only Area Courts can adjudicate on land matters subject of customary grants including deemed grants. He referred to Salati v. Shehu (1986) 1 NWLR (Pt. 15) 198; Sadikwu v. Dalori (1996) 5 NWLR (Pt. 447) 15I, Oyeniran v. Egbetola (1997) 5 NWLR (Pt. 504) 122 at 131 and Nelson v. Ebanga (1998) 8 NWLR (Pt. 563) 701. He submitted further that in the case of the grant of statutory right of occupancy it is the High Court of the Federal Capital Territory that has exclusive jurisdiction by virtue of S.39 of the Land Use Act.
Let me begin by pointing out that, all the four questions referred for interpretation are predicated on the assumption that the provisions of the Land Use Act, Cap. 202 of the Laws of the Federation of Nigeria, 1990 (hereinafter to be referred to where the con so admits as “Cap 202) very much apply to the Federal Capital Territory. This is so because the first question refers to statutory right of occupancy and customary right of occupancy which are terms introduced in land matters throughout the Federation after the Land Use Act was promulgated and became operational. Before then, lands within the defunct Eastern region, Western region and the mid-Western region in particular were native lands owned exclusively by the various communities inhabiting the regions and were administered by and for the people depending on applicable native law and customs where the land is situate and in accordance with the regional laws governing land administration and control. The Land Tenure Law Cap. 59 of the Laws of Northern Nigeria, 1963 applicable to the defunct Northern Nigeria did introduce statutory right of occupancy and customary right of occupancy and vest the control and administration of native land in the North in the Minister charged with responsibility for land matters, see section 5 thereof. However, by and large real control and administration of land in the region remained that of the various Emirate/traditional councils and the Council of Elders of the various areas where the land is situated. Thus the terms statutory right of occupancy and customary right of occupancy only became terminologies applicable nationwide on 29th March, 1978 when the Land Use Act came into force.
The second question is postulated on the premise that, the answer to the first question may be positive. In which event, it is tied to the first question and therefore founded on the assumption that Cap. 202 apply to the Federal Capital Territory. The third question is indeed based on section 36(1) of the Land Use Act. It is the clearest situation showing that the whole questions are based on the application of Cap. 202 to the Federal Capital Territory.
The last question is posed on the premise of the application of “the existing law”. Obviously the existing law alluded to is the Land Use Act. It is therefore too obvious that the minds of the framers of the questions have yielded to the existence of the land Use Act and its practical application nationwide in respect of land the title of which is held whether by Local, State or Federal Government. The starting point therefore is to examine the first question first as I believe its answer will settle the other questions without much ado.
Even at the risk of repetition I shall reproduce the first question posed. It is framed thus:-
“Whether by the combined effect of section 49(1) of the Land Use Act, section 1(3) of the Federal Capital Territory Act and section 261(2) of the Constitution of the Federal Republic of Nigeria (as amended) customary right of occupancy has been abolished in the Federal Capital Territory”.
The above question calls for the interpretation of the constitutional provision referred to and an examination of the two Acts under reference. Section 49(1) of Cap. 202 under reference states as follows;-
“Nothing in this Act shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Act and, accordingly, any such land shall continue to vest in the Federal Government or the agency concerned”.
(Italics supplied by me for emphasis).
Section 1(3) of the Federal Capital Territory Act, Cap. 128 of the Laws of the Federation of Nigeria, 1990 (hereinafter to be referred to, where the con so admits, as “Cap. 128”) states as follows:-
“The area contained in the Capital Territory shall, as from the commencement of this Act, cease to be a portion of the States concerned and shall henceforth be governed and administered by or under the control of the Government of the Federation to the exclusion of any other person of authority whatsoever and the ownership of the lands comprised in the Federal Capital Territory shall likewise vest absolutely in the Government of the Federation.”
(Italics supplied for emphasis).
S-261 (2) of the Constitution of the Federal Republic of Nigeria, hereinafter to be called simply as “the Constitution”, on its part provides it pointedly thus:”
“The ownership of all lands comprised in the Federal Capital Territory shall vest in the Government of the Federal Republic”.
Whereas Cap. 128 vests ownership of all land within the Federal Capital Territory in the “Government of the Federation”, Cap. 202 “vests the ownership in the Federal Government”. Section 261(2) of the Constitution on its part passed complete dominion of land in the Federal Capital Territory, to “the Government of the Federal Republic of Nigeria”. The entities referred to in the Constitution and the Acts above are one and the same thing and the names are always used interchangeably. In the content they are used in the Constitution and the Acts under reference, there cannot be anything to be read into it other than a reference to the Government of the Federation. This has to be appreciated in order not to ascribe any other meaning where the terms are used interchangeably.
I have already summarised the submissions of learned counsel for the applicants and the respondent as well as counsel who represented briefs of argument as amici curiae. Mr. Tunyan for the applicants, Ushara for the respondent and Izinyon (SAN) as amicus curiae answered the first question in the negative. They are of the firm view that the efficacy and legality of the issuance of customary right of occupancy is very much extant in the Federal Capital Territory. That Customary right of occupancy is not abolished in the Federal Capital Territory, in spite of the provisions of section 49(1) and section 1(3) of Caps. 202 and 128 respectively and section 261(2) of the Constitution. The opposite view is held by learned counsel for the respondent, the Hon. Attorney-General of the Federation and the Director of Legal Services of the Federal Capital Development Authority (FCDA).
Section 261(2) of the Constitution as well as the two Acts under reference each refers to the “vesting” of land to the Government of the Federation or its agency wherever such lands exist in Nigeria. Section 1(3) of Cap. 128 provides for vesting such lands to the Government of the Federation, “absolutely.” Similarly, the same Act passes the “ownership” of the lands within the Federal Capital Territory to the Government of the Federation, “absolutely” and to the “exclusion” of any other person or authority. In the light of the above, it is expedient to consider the import of the words, “vest, exclusively, ownership and absolutely”. In that regard I shall consider the definition of the words as can be found in the Black’s Law Dictionary 6th Edition.
The word, “vest” is defined therein inter alia as follows:-
“To give an immediate fixed right of present of future enjoyment… to accrue to; to be fixed to take effect.
To clothe with possession; to deliver full possession of land or of an estate… ”
On the other hand, “exclusively”, is defined inter alia as “apart from all others; only; solely”
The word ownership is defined inter alia thus:-
“The complete dominion, title or proprietary right in a thing or claim …
The right of one or more persons to possess and use a thing to the exclusion of others.”
For the word, “absolutely, “the Dictionary defined it as follows:-
“Completely: wholly; without qualification; without reference or relation to or dependence upon, any other person, thing or event.”
From the above, a community reading of section 261(2) of the Constitution, section 49(1) of Cap. 202 and section 1(3) of Cap. 128 does show far reaching effects about the ownership, control and management of land within the Federal Capital Territory. It is beyond doubt that complete dominion or title or for that matter, proprietary right over all lands that comprised the Federal Capital Territory has become completely that of the Federal Government independent of any other person or authority. The Federal Government has thus become not only clothed with possessory right over land within the Federal Capital Territory but assumed exclusive right over it as its owner, not just holding it in trust for the people as in the case of the State Governors or Local Governments wholly and solely, devoid of any qualification or exception.
Let me consider S.49(1) of the Land Use Act being the first provision mentioned in question No. 1. This section appears to me to be clear and unambiguous. I do not need to employ any rule of interpretation in order to find what the legislature says. Clearly it provides that the provisions of the Land Use Act shall not have any effect on any parcel of land the title of which is held by the Government of the Federation or any of its agencies. The title so held by the Government of the Federation or its agency applies to lands whether developed or undeveloped. Thus land held by the Government of the Federation or any of its agencies prior to 29th of March, 1978 when the Land Use Act came into operation was not affected in any way by the provisions of the Act. Therefore Cap. 202 exempt lands held in title by the Government of the Federation or its agency from the operation of the Act. The provisions of the Act, in my view, do not apply to such lands in any way and that clearly is what the law provides and does express the intention of the legislature in clear and unambiguous terms.
Section 1(3) of the Federal Capital Territory Act can be summarised in four points thus:-
1. As from 4th February, 1976 all pieces of land within the Federal Capital Territory ceased to be a part of the States from where they were carved out.
2. The governance and administration or control of such lands shall now be the exclusive responsibility of the Government of the Federation.
3. The second point shall be to the exclusion of any other person or authority whatsoever.
4. Indeed the ownership of the land vests absolutely in the Government of the Federation.
Section 261(2) of the Constitution states in clearest terms that all land comprised in the Federal Capital Territory is owned by the Government of the Federation. Undoubtedly nothing will affect the ownership of the land in the Federal Capital Territory that is vested in the Government of the Federation. The language used in section 261(2) of the Constitution is clear and unambiguous and must in the circumstance be given its plain evident meaning. So also is the language used in section 49(1) of Cap. 202 and section 1(3) of Cap. 128. Taking both of them in their ordinary sense would show that all lands owned by the Government of the Federation before the promulgation of the Land Use Act, will not be affected in anyway by the provisions of the said Act. The provisions of the Land Use Act therefore do not apply to the Federal capital Territory. In the interpretation of Statutes, the words used in as much as they are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions in the statute, Ogundare JSC. in P.D.P. v. INEC. (1999) 11 NWLR (Pt. 626) 200 at pages 276 to 278 provided a well researched documentation of authorities on the interpretation of statutes and instruments as well as constitutions. It is a hard-researched exercise which highlighted applicable authorities which I need quote here verbatim ad literatim in order to underscore the approach of courts to the interpretation of statutes that are drafted in clear, unambiguous and unmistakable terms. Said he:
“Bell, in his work, Dictionary Law of Scotland under the title ‘Statute’ expressed the same view when he wrote that strictly speaking there is no place for interpretation or construction except where the words of the statute admit of two meanings. See also Sussex Peerage Case (1844) 65 RR 11; 8 E.R. 1034 “there the Judges declared:”
“If the words of the statute are of themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.”
In an Indian case cited by Basu in his commentary on the Indian Constitution 4th Edition Vol. 1 at page 27 – Ralla Raun v. East Punjab (1949) 12 FL.J 3.11 it was there declared:-
“But when the words of a statute are clear and unambiguous, and they are not unfamiliar or uncommon words as may aptly be described as “terms or an”, it is unnecessary to travel beyond the act for the purpose of construing them”
The position of this court is not different either. For in Attorney General of Bendel State v. Attorney General of the Federation and ors. (1982) 3 NCLR 1.77-78 this court, per Obaseki JSC laid down some principles to guide in the interpretation of the Constitution.
Among these is the principle that:-
“The language of the Constitution where clear and unambiguous must be given its plain evident meaning.”
Earlier, in Ogbuinyiya & Ors. v. Obi Okuda & ors. (supra) this court per Idigbe JSC, had declared:
One of the cardinal rules of construction of written instruments is that the words of a written instrument must in general be taken in their ordinary sense notwithstanding the fact that any such construction may not appear to carry out the purpose which it might otherwise be supposed was intended by the maker or makers of the instrument. The rule is that in construing all written instruments the grammatical and ordinary sense of the words should be adhered to, unless that would lead to some absurdity or some repugnancy or inconsistency with the rest of the instrument; the instrument has to be construed according to its literal import unless again there is something else in the con which shows that such a course would tend to derogate from the exact meaning of the words.
On the above principles on construction of written instruments, the contents of Exhibit SC(1) can have no other meaning than that the appointment of Nnaemeka-Agu J. as a Judge of the Federal Court of Appeal was intended to and did, take effect from the 15th day of June, 1977. An express provision in an instrument excludes any stipulation which would otherwise be implied with regard to the same subject matter expressum facit cessare tacitim. In the circumstances, there is no room for the view, in the face of the express language (of exhibit SC(1) that the appointment of Nnaemeka-Agu J, as Judge of the Federal Court of Appeal was intended to take effect at a date subsequent to the 15th June, 1977, or that as a measure of convenience the Judge was to continue to function as a High Court Judge until such time as may conveniently function in his new office in the Federal Court of Appeal’.
‘Again, in Ifezue v. Mbadughu (1984) 1 SCNLR 427; (1984) 5 SC. 79, 101 Bello JSC, (as he then was) said:
‘…where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution and effect must be given to those provisions without any recourse to any other consideration…’
In Oke v. Atoloye (1985) 2 NWLR 578 this Court again held that the provisions of section 4 of the Constitution (Amendment) (No.2) Decree 1976 are clear and unambiguous and they should be given their plain literal meaning. Obaseki JSC. at pages 590 – 591, declared:
“The provisions of section 4(1), (2), (3) and (4) of the Decree clearly provide the answer to the objection raised by the appellants. The provisions are formulated in clear, simple and unambiguous terms that any interpretation other than that provided by the plain literal meaning of the words used is unwarranted.”
In a recent case, Oviawe v. Integrated Rubber Products Nigeria Ltd. & anor. (1997) 3 NWLR 126 at 139, Mohammed JSC in the lead judgment of this Court said:
“The rule of construction of Acts of parliament is that they should be construed according to the intent of the parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in the natural and ordinary sense. The words themselves alone, do in such a case, best declare the intention of the law giver… per Tindal, C.J., when advising the House of Lords on the Sussex Peerage Claim (1844) CI & Fin 85 at 143”.
Lastly, in Braithwaite v. GDM & Ors. (supra), a case cited to us by Chief Chigbue, Ayoola, JCA (as he then was) in his lead judgment observed at p. 326 of the report:
‘If the words are plain and unambiguous recourse to interpretative aids by use of preamble, title, con and purpose will not be necessary.’
I have no doubt in my mind that section 261 (2) of the Constitution, section 49(1) of Cap. 202 and section 1(3) of Cap. 128 are clear and unambiguous. No absurdity would be occasioned by interpreting the provisions in their grammatical imports. I should think that sections 1 and 2 of the Land Use Act, laid a good foundation as basis for the inclusion of section 49(1) thereof. These sections read thus:-
1. “Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation are hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.
2(1) As from the commencement of this Act:-
(a) All land in urban areas shall be under the control and management of the Governor of each state; and
(b) All other land such subject to this Act,shall be under the control and management of the Local Government within the area of jurisdiction of which the land is situated.”
In the two sections quoted above, nothing is said about vesting, control and management of land on the Government of the Federation. Evidently, the Act is meant to apply and have effect on lands held by the Governor of a State or as the case may be, the Local Government in trust for the use and common benefit of Nigerians. Indeed the citation of the Act makes it even clearer. It runs thus:-
“An Act to vest all land comprised in the territory of each State (except land vested in the Federal Government or its agencies) solely in the Governor of the State, who would hold such land in trust for the people and would henceforth be responsible for allocation of land in all urban areas to individuals resident in the State and to organizations for residential, agricultural, commercial and other purposes while similar powers with respect to non-urban areas are conferred on Local Governments.”
I am not unaware of the fact that citations and marginal notes are not, generally speaking legitimate aid to construction of statutes. It is however advisable to consider the purpose of the law and the mischief it is aimed at with the magical notes (and of course the citation) in mind. See Yabugbe v. C.O.P. (1992) 4 NWLR (Pt. 234) 152,(1992) 4 SCNJ 116 at 129; Oloro v. Alegbe (1983) 2 SCNLR 35 at 57; Uwaifo v. A-G Bendel (1982) 7 SC 124 at 187- 188; Adewunmi v. A.G. Ondo State (1996) 8 NWLR (Pt.464) 73 at 117, It can be clearly seen that land vested in the Government of the Federation and that of its agencies are exempted from land matters provided for in the Act. Section 51(2) of the Land Use Act merely restated the obvious that the powers of a Governor under the Act shall be exercisable by the President in respect of the Federal Capital Territory.
Having found that the Land Use Act does not apply to the Federal Capital Territory, section 13(1) of the Federal Capital Territory Act did set out those laws that apply to the Federal Capital Territory in addition to any law having effect, or made applicable throughout the Federation. Schedule II of the Act listed out the applicable laws and the Land Use Act is not mentioned. In effect, by virtue of S.261(2) of the Constitution, the Federal Capital Territory Act and the Land Use Act itself, all lands owned by the Government of the Federation or its agencies will not be subjected to the provisions of the said Land Use Act. Consequently, the question of customary right of occupancy does not arise in respect of lands that comprised the Federal Capital Territory. The first question therefore is answered in the affirmative.
The second question is whether there is need to designate specific areas within Federal Capital Territory as rural or urban areas, if the answer to question one is positive. Just as I pointed out earlier on, the whole questions are framed on the understanding that the Land Use Act applies to the Federal Capital Territory. Evidently, it does not apply. Therefore designating areas within the Federal Capital Territory as rural or urban – whatever the term, “rural” means, does not arise. It is neither contemplated by the Federal Capital Territory Act nor is it feasible as I know of no Federal Capital Territory in the whole world that is regarded as non-urban.
Question three as I have said presupposes that the Land Use Act applies to the Federal Capital Territory. Since I arrived at a finding, that it does not apply it will’ be wrong for me to tinker even obliquely with question No.3. Section 36(1) of the Land Use Act being part of the Land Use Act Cap. 202 of the Laws of the Federation of Nigeria, 1990 does not apply to the Federal Capital Territory.
The fourth question also rests on a very weal wicket. By section 236 of the Constitution, the High Court has unlimited jurisdiction in civil and criminal proceedings including land matters. Sections 16 and 17 of the Federal Capital Territory Act have made provision relating to appeals from the Upper Area Court or Area Court Grades 1 and II to the High Court or the Sharia Court of Appeal depending on whether the matter involves a question of Islamic Law. Again section 17 refers to section 13 which made specific reference to schedule II of the Federal Capital Territory Act which lists out those Laws that are made applicable to the Federal Capital Territory. That schedule as I said earlier on did not mention the Land Use Act. Unless therefore by any law, the Area Court is conferred with specific jurisdiction in land causes within the Federal Capital Territory, it seems the Area Court is put in a hopeless situation since it appears to share no jurisdiction on land matters in the Federal Capital Territory with the High Court. In the result, the questions posed for interpretation are answered as follows:-
1. By the combined effect of section 49(1) of the Land Use Act, section 1(3) of the Federal Territory Act and section 261(2) of the Constitution of the Federal Republic of Nigeria, 1979 (as variously amended) customary right of occupancy does not exist in the Federal Capital Territory.
2. There is no need to designate specific areas within the Federal Capital Territory as rural or urban.
3. Since the Land Use Act does not apply to the Federal Capital Territory, section 36(1) thereof is equally inapplicable to the Territory.
4. The High Court Abuja has jurisdiction in land matters within the Federal Capital Territory.
It is for these reasons and fuller reasons in the leading ruling of my learned brother, Akintan, JCA that I answer the questions posed as is contained in the leading ruling and that shall be the answers returned to the Hon. Justice I.M. Bukar for the disposition of the case before him.
Main question answered in the affirmative.
Appearances
Karima Tunyan, Esq.For Appellant
AND
Uye Ogedegbe. Esq.
A A.A. Izinyon, SAN (with him, V.B. Inedia, Esq. F.A. Obatuyi. Esq. A.J Osanyende) – as amicus curiae
J.O. Adesina (Mrs) (holding Adetokunbo Kayode’s brief)- as amicus curiae
D.A. Muhammed (on behalf of the Attorney-General of the Federation) – as amicus curiae
M.M, Alkali, Esq, (Director of Legal Services in the Federal Capital Territory) – as amicus curiaeFor Respondent
