MOHAMMED & ANOR v. BAKORI LGA
(2022)LCN/17112(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/K/639/2019
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
1. YARMAI AWO MOHAMMED 2. IBRAHIM ADO GUGA APPELANT(S)
And
BAKORI LOCAL GOVERNMENT AREA RESPONDENT(S)
RATIO
WHETHER OR NOT THE LOCAL GOVERNMENT CAN ENTER INTO A LAND FOR PUBLIC PURPOSE WITHIN ITS AREA OF JURISDICTION
It has been established that the land in dispute being a farmland is situate at Guga Village in Bakori Local Government Area. It is therefore not an Urban land. It has also been established through evidence that the said farmland belongs to the appellants having inherited same from their parents over three decades ago. It is not in dispute that the farmland was compulsory acquired by the respondent and it was allocated to individuals who built temporary market structures. The appellants were also allocated some part of the land to build market shops. There is no evidence to show that the appellants were issued with a notice of compulsory acquisition. And there is no evidence to show that the appellants were given compensation as required by Section 44(1) (a) & (b) of the 1999 Constitution and Section 6(3) of the Land Use Act. There is no dispute in the fact that the allocation of the farmland to individuals to build market shops, it falls within the purview of Section 6(3) of the Land Use Act which provides that:
“It shall be lawful for local government to enter upon, use and occupy for public purpose any land within the area of its jurisdiction.”
Section 6(5) of the Land Use Act provides:
“The holder and the occupier according to their respective interest of any customary right of occupancy revoked under Subsection (3) of the Act shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements.”
And Section 6(6) of the Land Use Act provides that:
“Where the land in respect of which a customary right of occupancy is revoked under this act was used for agricultural purposes by the holder, the local government shall allocate to such holder alternative land for use to the same purpose.” PER TALBA, J.C.A.
WHETHER OR NOT THE COURTS ARE BOUND TO ENFORECE THE MANDATORY PROVISIONS OF A SUBSTANTIVE LAW
In the case of CIL RISK & ASSET MANAGEMENT LIMITED V. EKITI STATE GOVERNMENT & 3 ORS (2020) 12 NWLR (PT 1738) 203, the Supreme Court held that the Courts are bound to enforce the mandatory provisions of a substantive law including the Constitution. The Apex Court held that:
“The jurisprudential basis for the requirement of strict compliance with the provisions of the Land Use Act relating to revocations is that expropriatory statutes such as the Land Use Act which encroaches on a person’s proprietary rights must be construed as penal laws, that is, strictly against the acquiring authority but liberally and sympathetically in favour of the citizen whose proprietary rights are being deprived. In other words, where a statute confers a power and particularly one that may be used to deprive a subject of his proprietary rights the Courts confine those exercising the power to the strict letter of the statute. (Nangibo v. Okafor (2003) 14 NWLR (Pt. 839) 78; Procter & Gamble Co v. Global Soap and Detergent Industries (2013)1 NWLR (Pt. 1336) 409; Okotie-Eboh v. Manager (2004) 18 NWLR (Pt. 905) 242; Provost Lagos State College of Education v. Edun (2004) 6 NWLR (Pt. 870) 476; Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130; Orianzi v. A. G. River State (2017) 6 NWLR (Pt. 1561) 224 referred to.) (P. 278 Para A-E).” PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Katsina State High Court Funtua Division, delivered on the 18th of October, 2018 in suit No. KTH/98/2014.
The appellants instituted an action against the respondent claiming the following reliefs as per the endorsement on the writ and statement of claim dated the 7th day of November, 2014.
A. A declaration that the defendant’s entry into the plaintiff’s land situate at Guga village of Bakori Local Government Area of Katsina State under a purported compulsory acquisition and subsequent allocation of same to individuals who started building temporary marked structures thereon without Notice of Compulsory Acquisition and Adequate Compensation first being made good to the plaintiffs, the rightful owners of the land as required by law constitutes willful trespass, unlawful, illegal, unconstitutional and a deliberate attempt to dives the plaintiffs the ownership and possession of their land.
B. An Order of perpetual injunction restraining the defendants, its agents, representatives, privies, or any other person or persons acting under its instructions as allottees or whatever they represent from further trespassing into the plaintiffs’ land situate at Guga village in Bakori Local Government Area of Katsina State
C. An Order on the defendants, its representatives, agents, privies or any person or persons acting under its instructions as allottees or whatever they represent to immediately remove and evacuate from the plaintiff’s land temporary structures being built thereon in the name of building a market for the community.
D. An Order on the defendant to pay the plaintiff the sum of N10,000,000:00 only being general damages, aggravated and exemplary damages for the defendants willful trespass into the plaintiff’s land situate at Guga village in Bakori Local Government Area of Katsina State.
OR ALTERNATIVELY TO PRAYERS B, C & D ABOVE
E. An Order on the defendant for payment of adequate compensation to the plaintiff in the sum of N20,000,000:00 as required by law.
F. The cost of filing this suit.
The respondents were granted extension of time to file their statement of defence. The appellants called four witnesses to prove their case while the respondent called two witnesses. After the adoption of final written address by both counsels, the learned trial Judge delivered his judgment wherein he refused to grant any of the reliefs sought by the appellants, hence this appeal. The appellants appealed against the decision of the lower Court vide a notice of appeal filed on the 18th January, 2019. It contains three (3) grounds of appeal.
At the hearing of the appeal on the 19th of May, 2022, A. U. Ajodo of counsel adopted the appellants’ brief of argument filed on 6th of August, 2021 and deemed properly filed on 28th of September, 2021. He urge the Court to allow the appeal. B. F. Abdullahi, Assistant Director, Department of Public Prosecution, Ministry of Justice Katsina State adopted the respondent’s brief of argument filed on 12th October, 2021. The respondent equally filed a respondent’s notice on 12th October, 2021 and deemed on 2nd December, 2021. He urge the Court to dismiss the appeal. From the three grounds of appeal, the appellants formulated two issues for determination, thus;
1. Whether the judgment of the lower Court declining the suit of the appellants is of any legal moment in view of the overwhelming positive evidence of the appellants’ ownership of the disputed land subject matter of the suit with no evidence of any compulsory acquisition of the land.
2. Whether from the totality of evidence adduced, the judgment of the lower Court can be supported.
The respondent adopted the two issues submitted by the appellants. Pursuant to Order 9 Rule 1 & 2 of the Court of Appeal Rules 2021. The respondent filed a respondent’s notice contending that the appeal can be sustained, supported or based on the following grounds other than or in addition to the ground the decision was based by the trial Court. The two grounds are thus:
GROUND ONE
The appellants’ case was statute barred.
GROUND TWO
The appellants’ suit was caught up by Estoppel.
Now the issue of limitation law touches on the jurisdiction of the trial Court to entertain the suit, and by extension the competence of this Court to entertain the appeal. The issue of jurisdiction is very fundamental. It is the live wire of a case which should be determined at the earliest opportunity. If a Court has no jurisdiction to determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. This is because a defect in competence is not only intrinsic but extrinsic to the entire process of adjudication. See Madukolu v. Nkemdilim (1962) SCNL 341 and Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508.
Consequently, I shall proceed to determine the issue touching on the jurisdiction of the trial Court to determine the subject matter of this appeal which is ground one of the respondent’s notice.
The respondent’s counsel submitted that the 2nd appellant while testifying as PW1 before the trial Court informed the Court that he was informed of the purported taking over of their farmland by the respondent sometimes in the year 2013 and the information was confirmed to him by the 1st appellant. He referred to page 12 of the records of appeal. The appellants’ writ of summons was filed at the trial Court on the 4th day of December, 2014, which date was clearly outside the three months provided by Section 2 (a) of the Public Officers Protection Act Cap 379 LFN 1990. The said Section provides:
“An action against public officer in pursuance of or execution of any law, public duty or authority must be brought before a Court within three months”
Learned counsel submitted that public Officer covers natural and artificial persons, public bodies or statutory body. He cited the case of Ibrahim v. Judicial Service Committee, Kaduna State (1998) 12 SCNJ 255 and Gyang v. NSC (2002) 15 NWLR (Pt. 791) 454.
Learned counsel submitted further that the operation of the limitation of a statute law is one of strict liability, one may have a cause of action but lose the right to enforce that cause of action by judicial process where the time laid down by the limitation law for initiating such action had elapse. See Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 549; Jallco Ltd v. Owoniboys Technical Services Ltd (1995) 4 NWLR (Pt. 391) 534; Texaco Panama Inc v. Shell PDCN Ltd (2002) 5 NWLR (Pt. 759) 209.
The appellants’ counsel did not respond to the respondent’s notice. However, without much ado it is settled law that the protection afforded public officers under the public officers (protection) Act does not apply in cases of recovery of land. It does not also apply to cases founded on contract or breach of contract. Therefore, Section 2 (a) of the Public Officers (Protection) Act was inapplicable to the instant case hence it is a matter pertained to land which is an exception to the applicability of that provision. See Mulima v. Usman (2014 16 NWLR (Pt. 1432) 160; A–G River State v. A–G Bayelsa State (2013) 3 NWLR (Pt. 1340) 123; Osun State Government v. Dalami (Nig.) Ltd (2007) 9 NWLR (Pt. 1038) 66; Salako v. LEDB (1953) 20 NLR 169; Energy Marine and Industrial Ltd v. Minister of the FCT (2010) LPELR–19774.
The respondent’s contention on this ground is dismissed, and the road is clear to proceed with the main appeal. Of course, the issue of Estoppel can be subsumed in the main appeal. However, a more precise and succinct issue for the determination of this appeal is thus:
“Whether from the totality of the evidence adduced before the trial Court the appellants are entitled to judgment”.
The appellants’ counsel submitted that for a valid compulsory acquisition of land as required by Section 44(1)(a) & (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), there has to be a valid written notice of acquisition issued to the owners of the land. The acquisition must be for overriding public interest and there must be adequate compensation paid to the owners of the land. And any breach of the Constitutional provision vitiates the compulsory acquisition. He relied on the case of Okeowo v. A. G. Ogun State (2010) 11 SCM 157.
Learned counsel submitted that no notice of compulsory acquisition was served on the appellants. And in law, the onus is on a defendant who admits that the plaintiffs are the owners of a land in dispute to prove that the plaintiffs as in this case have been divested of their land in compliance with the dictates of the law. The defendant must show credible evidence of service of the statutory notice of compulsory acquisition and evidence of payment of compensation to the plaintiffs. See Mulima & Anor v. Usman & Ors. (2014) 12 SCM (Pt. 2) 454.
The appellants’ counsel submitted further that the respondents have failed to establish this fact. And that the learned trial Judge misunderstood the issue of revocation of Customary Right of Occupancy by a local government under Section 6(3) of the Land Use Act for compulsory acquisition of land provided for under Section 44(1)(a) & (b) of the 1999 Constitution. And that assuming without conceding that the instant matter is one of revocation of Customary Right of Occupancy as per Section 6(3) of the Land Use Act, the fact that land has no development upon it does not ipso facto suggest that the owners are not entitled to compensation at all. See Akere v. Governor of Oyo State & Ors. (2012) 7 SCM 1.
The appellant submitted that the contention of the respondent that the appellants were compensated without any evidence is an attempt to misguide the Court. And it is illogical to take away the appellants’ vast land only to allocate to them some part of the land as market shop spaces, as compensation. It’s like taking away a bucket of water from a person and claim that giving him a cup of water from the same bucket serves as adequate compensation. The appellants’ counsel submitted that the lower Court not only misunderstand and misconstrue parties’ pleadings in substance especially the reliefs of the appellants, but also the lower Court adversely confused itself when it placed revocation of customary right to occupancy to which Section 6(3) of the Land Use Act applies in place of compensation for compulsory acquisition of land as provided by Section 44(1)(a) & (b) of the 1999 Constitution. The two statutory provisions are not the same on the matter before the lower Court.
In his response, the learned respondent’s counsel failed to address the crucial points. I do not find the submissions of the respondent’s counsel of any help in the determination of this appeal. Except that the respondent did not dispute the fact that the appellants own the land in dispute. Neither did the respondent’s counsel dispute the fact that the land was compulsorily acquired by the respondent. But the respondent’s counsel submitted that the law is trite that a party who asserts the existence of certain fact owes a corresponding duty to prove existence of such fact. That is no doubt the trite position of the law. But learned counsel submitted that it is more particularly on the face of presumption of regularity in favour of the purported acquisition of the appellants’ farmland in this case by the respondent. He submitted that the purported act of the respondent complained of by the appellants at the trial Court was an official act which had enjoyed presumption of regularity and he referred to Section 168(1) of the Evidence Act, 2011 to buttress his submission. The learned counsel further submitted that it is not for the respondent to prove compliance with the law or the Constitution as to the issuance of notice of acquisition of the appellants’ land for overriding public interest, assessment of appropriate compensation payable or otherwise. The learned counsel curiously submitted that there is no evidence of unexhausted improvements, economic trees or crops upon which compensation is payable to the appellants as rightly held by the trial Court. On the contention of the appellants that the learned trial Judge based his judgment on Section 6 of the Land Use Act, the learned counsel submitted that it is within the powers of the Court to raise a point of law even when it was not raised by either of the parties. The learned counsel is no doubt misconceived in his submission except if he deliberately wants to mislead the Court. It is trite that the Court can raise any point of law not raised by the parties but the parties must be given the opportunity to address the Court on the point of law so raised by the Court. The presumption of regularity of official act does not apply to the instant case.
It has been established that the land in dispute being a farmland is situate at Guga Village in Bakori Local Government Area. It is therefore not an Urban land. It has also been established through evidence that the said farmland belongs to the appellants having inherited same from their parents over three decades ago. It is not in dispute that the farmland was compulsory acquired by the respondent and it was allocated to individuals who built temporary market structures. The appellants were also allocated some part of the land to build market shops. There is no evidence to show that the appellants were issued with a notice of compulsory acquisition. And there is no evidence to show that the appellants were given compensation as required by Section 44(1) (a) & (b) of the 1999 Constitution and Section 6(3) of the Land Use Act. There is no dispute in the fact that the allocation of the farmland to individuals to build market shops, it falls within the purview of Section 6(3) of the Land Use Act which provides that:
“It shall be lawful for local government to enter upon, use and occupy for public purpose any land within the area of its jurisdiction.”
Section 6(5) of the Land Use Act provides:
“The holder and the occupier according to their respective interest of any customary right of occupancy revoked under Subsection (3) of the Act shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements.”
And Section 6(6) of the Land Use Act provides that:
“Where the land in respect of which a customary right of occupancy is revoked under this act was used for agricultural purposes by the holder, the local government shall allocate to such holder alternative land for use to the same purpose.”
The Land Use Act being part of the Constitution, it must be read along with Section 44(1)(a) & (b) of the 1999 Constitution. It provides:
“44(1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that among other things:
(a) Requires the prompt payment of compensation therefore and
(b) 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 in Nigeria.”
After having cited the above provisions of the Land Use Act and the Constitution, the learned trial Judge did what can best be described in the words of Fabiyi, JSC in the case of Alhaji Fatai Alani Matanmi & 2 Ors v. Victoria Dada & Anor (Unreported) SC 39/2004 delivered on 8th February, 2013, he stated thus:
“The trial Judge’s action has the semblance of comedy of errors.”
The learned trial Judge simply declined to apply the provisions of the law and left the appellants without any remedy. In the case of Ononuju & Anor. v. A. G. Anambra State & Ors. (2005-2009) 5 S.C.J.L P. 978-979, 991 which case is in all fours with the instant case, the Supreme Court held thus:
“Revocation of a right of occupancy can only be valid if notice of same has been issued and served on the owner or occupier of the property concerned. No one including the Government, can deprive a holder or occupier of a parcel of land unless the land is acquired compulsorily in accordance with the provisions of the Land Use Act for overriding public interest or for public purpose by the Local Government or State Government and appropriate compensation paid.
In this instant, the revocation of the rights of the Appellants on the land in question was invalid for reasons of non-service of the statutory required. Notice of Revocation/Acquisition and consequently null and void ab initio. It follows therefore and very clearly too that any subsequent step taken by the 1st and 2nd Respondents in consequence of the revocation/acquisition such as a grant of a portion of the purportedly acquired land to the 3rd Respondent for whatever purpose whether public or private is clearly null and void as you cannot put something on nothing and expect it to stand.”
For the sake of emphasis, the appellants’ farmland was compulsorily acquired by the respondent without a notice of acquisition issued and served on the appellants. And no compensation was paid to the appellants. The said acquisition is invalid and in breach of the provisions of the Constitution and the Land Use Act. In the case of CIL RISK & ASSET MANAGEMENT LIMITED V. EKITI STATE GOVERNMENT & 3 ORS (2020) 12 NWLR (PT 1738) 203, the Supreme Court held that the Courts are bound to enforce the mandatory provisions of a substantive law including the Constitution. The Apex Court held that:
“The jurisprudential basis for the requirement of strict compliance with the provisions of the Land Use Act relating to revocations is that expropriatory statutes such as the Land Use Act which encroaches on a person’s proprietary rights must be construed as penal laws, that is, strictly against the acquiring authority but liberally and sympathetically in favour of the citizen whose proprietary rights are being deprived. In other words, where a statute confers a power and particularly one that may be used to deprive a subject of his proprietary rights the Courts confine those exercising the power to the strict letter of the statute. (Nangibo v. Okafor (2003) 14 NWLR (Pt. 839) 78; Procter & Gamble Co v. Global Soap and Detergent Industries (2013)1 NWLR (Pt. 1336) 409; Okotie-Eboh v. Manager (2004) 18 NWLR (Pt. 905) 242; Provost Lagos State College of Education v. Edun (2004) 6 NWLR (Pt. 870) 476; Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130; Orianzi v. A. G. River State (2017) 6 NWLR (Pt. 1561) 224 referred to.) (P. 278 Para A-E).”
Relying on the above statutorily and constitutional provisions, and also the above judicial authorities, I hold that the decision of the lower Court was perverse and its liable to be set aside. I do not think it is necessary to waste one second in determining the issue of estoppel raised by the respondent’s counsel to the effect that the appellants were given ten market shops out of the acquired farmland and therefore they were compensated and they are estopped from raising the issue of compensation or denying the existence of such state of facts.
I am in agreement in toto with the submission of the appellants’ counsel that it is greatly illogical to take away a bucket of water from a person and claim that giving him a cup of water from it serves as adequate compensation.
The issue of land ownership most especially in Africa is the most precious possession with a strong attachment to individuals and communities. Attempts by government or individuals to deprive the owners of their land have led to clashes and even war. So many lives were lost as a result of land disputes. It is therefore necessary to handle issues of land dispute with caution especially where the land is a farmland which provides a source of livelihood from generation to generations yet unborn. That is the more reason why Section 6(6) of the Land Use Act provides that where the land in respect of which a customary right of occupancy is revoked, was used for agricultural, purposes by the holder, the local government shall allocate to such holder alternative land for use to the same purpose.
If a Court being the last hope of the common man fails to apply the law, justice becomes meaningless in the eyes of a common man. And the general public for whom the Courts are established to dispense justice, ends up with a negative opinion of the judiciary. Under the doctrine of ‘Ubi jus ibi Remedium where there is a proven right, there is a remedy the appellants cannot be allowed to go away empty hand without any remedy.
In conclusion the sole issue is resolved in favour of the appellants. The appeal is allowed. The judgment of the High Court of Katsina State delivered on the 18th of October, 2018 in Suit No: KTH/98/2014 is hereby set aside. The suit is restored back to the cause list of the trial Court to be heard and determined by a Judge of the said Court other than Lawal Garba Abdulkadir J. This order shall forthwith be served on the Chief Judge of Kastina State.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree
BITRUS GYARAZAMA SANGA, J.C.A.: I had the privilege of reading a draft of the judgment just delivered by my learned brother A.M. TALBA, JCA. My brother in the leading judgment dexterously waded through the labyrinth of provisions of the Land Use Act, 1978 particularly Sections 6(3), 6(5) and 6(6) vis-a-vis Section 44(1) (a) and (b) of the 1999 Constitution (as amended) as well as some judicial authorities as it pertains to compulsory acquisition of land by the government, be it Federal, State or Local Government. I agree with the decision by my learned brother in the leading judgment that the learned trial Judge that heard the appellants’ land suit did not consider the merits of the suit but summarily entered judgment for the respondent. It is only fair and just that this suit should be re-assigned to another Judge of the Katsina State High Court by the Hon. Chief Judge of Katsina State Judiciary to be heard on the merit. I also abide by the order as to cost.
Appearances:
A. U. Ajodo, Esq. For Appellant(s)
B. F. Abdullahi (Asst. Director DPP MOJ) Katsina State. For Respondent(s)
