PROFESSOR OLAJIDE A. OGUNBIYI & ANOR v. THE OYO STATE GOVERNMENT & ORS
(2013)LCN/6330(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of June, 2013
CA/I/159/2005
JUSTICES
MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
1. PROFESSOR OLAJIDE A. OGUNBIYI
2. DR. (MRS.) OLUFUNKE O. OGUNBIYI Appellant(s)
AND
1. THE OYO STATE GOVERNMENT
2. ATTORNEY GENERAL OF OYO STATE
3. OYO STATE HOUSING CORPORATION Respondent(s)
RATIO
THE PRINCIPE OF FORTISSIMO CONTRA PREFENTES
Counsel for the Appellant submits that it is settled law that any provision of the law, which governs compulsory acquisition of a person’s property, must be construed fortissimo contra prefentes. It must be construe strictly against the acquiring authority and sympathetically in favour of the property owner by adhering to the enabling law that compensation arises only after it has been first determined that the authority acted in conformity with the law. (Refer Bello Diocesan Synod of Lagos (1971) 1 All NLR (Pt. 1) 247, Peemok Investment Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR 122, Obikoya & Sons Ltd. v. Governor of Lagos State (1987) 1 NWLR (Pt. 50) 385, Onagoruwa v. IGP (1991) 5 NWLR (Pt. 193) 593). PER DONGBAN-MENSEM, J.C.A.
CONSEQUENCE OF NON-COMPLIANCE WITH THE REQUIREMENT OF SECTION 22 OF THE LAND USE ACT, 1978
The ugly consequence of non-compliance with the requirement of section 22 of the Land use Act, 1978 is contained in section 26 of the same Act… In effect, exhibit OC9 vide which the 1st Applicant claimed to have constitutional and legal rights over plot A, along Ekiti Street, Bodija, Ibadan is a worthless document. It confers no legal rights…”
Section 26 of the Land Use Act provides the consequence of noncompliance with section 22 of the same Act. It provides thus:-
“any transaction or any instrument which purports to confer or vest in any interest or right over land other than in accordance with the provisions of this Act shall be null and void.” PER DONGBAN-MENSEM, J.C.A.
MONICA B. DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): On 27th March, 2003 Hon. Justice S. O. Akinola of the High Court of Oyo State, in Suit No. 1/772/2002 delivered a Ruling against the Applicants/Appellants and in favour of the Respondents.
The brief facts which culminated into this appeal are as stated in the brief of the Appellants with some modification are as follows:-
The Appellants commenced proceedings in the High Court by way of an application for Judicial Review made pursuant to Order 43 of the Oyo State High Court (Civil Procedure) Rules 1988. They prayed for the following reliefs:-
(i) Declaration that the recommendation of the panel of Enquiry constituted by Oyo State Government contained in the Government White Paper published as Oyo State Notice No. 39 in the Oyo State of Nigeria Gazette No. 13 vol.
27 of 10th June, 2002 concerning plot A, along Ekiti Street, Bodija, Ibadan subleased to Professor Olajide A. Ogunbiyi by the Oyo State Housing Corporation is unconstitutional, ultra vires and contrary to the rules of natural justice.
(ii) Declaration that the acceptance of the said recommendations of the said panel of Enquiry by the Government of Oyo State contained in the Government White Paper published as Oyo State Notice No. 39 in the Oyo State of Nigeria Gazette No. 13 Vol. 27 of 10th June, 2002 to the effect that the building constructed by Professor Olajide A. Ogunbiyi on plot & along Ekiti Street, Bodija, Ibadan be compulsorily acquired by the government in the interest of the public is unconstitutional, illegal, null and void.
(iii) Declaration that the purported compulsory acquisition of the building constructed on Plot A, along Ekiti Street, Bodija Ibadan in the interest of public is illegal, unconstitutional, discriminatory and mala fide.
(iv) Injunction restraining the Respondents, their servants, agents and/or privies from interfering in anyway whatsoever with Professor Olajide A. Ogunbiyi’s quiet enjoyment and possession of Plot & along Ekiti Street, Bodija, Ibadan and the building constructed thereon.
The application was supported by an affidavit to which 15 Exhibits were attached together with a statement and verifying affidavit as required by law.
The learned trial Judge delivered a considered Ruling and dismissed the Appellants’ application in its entirety.
Flustered by the said Ruling, the Appellants filed this, appeal by their Notice of appeal dated 4th April, 2003.
The learned Counsel for the Appellants Oluseye Chukura Esq., formulated four issues as follows:-
1. Whether the trial court was right in law to hold that the 1st Appellant has no interest or legal or constitutional right in or over the plot he subleased from the 3rd Respondent because he did not first obtain Governor’s consent before executing the deed of sublease. (Grounds 1, 2, 5 and 7).
2. Whether the trial court was right in holding that the administrative Panel of Enquiry constituted by the 1st Respondent did not act ultra vires and acted in accordance with the rules of natural justice when it recommended that the property of the 1st Appellant be compulsorily acquired by the 1st Respondent in the interest of the public, (Grounds 3, 4 & 6)
3. Whether in the circumstances of this case the compulsory acquisition of the to Appellant’s property by the 1st Respondent on the recommendation of the Administrative Panel, of Enquiry into the activities of the 3rd Respondent is constitutional and in accordance with the Public Lands Acquisition Law of Oyo State. (Ground 8).
4. Whether in the circumstances of this case, where the deposition of the Appellants were not specifically controverted by the Respondents, the trial court exercised its discretion judiciously and judicially in refusing to grant the reliefs sought by the Appellants. (Grounds 9 & 10).
Counsel for the Respondents, Adetunji W. Gbadegesin Esq., Director, Legal Drafting and Ministerial Counseling, Oyo State Ministry of Justice also formulated four issues as follows:-
1. Whether the deed of sublease between the 1st Appellant and the 3rd Respondent (Exhibit OC9) conferred a legal right on the 1st Appellant and thus makes the compulsory acquisition of the 1st Appellant property unconstitutional (Grounds 1, 5, 2 & 7 of the Amended Grounds of Appeal)
2. Whether the Panel of Enquiry constituted by the 1st Respondent went outside its terms of reference or failed to observe the rule of natural justice and thus makes its recommendation on the compulsory acquisition of the to Appellant’s property ultra vires (Grounds 3, 4 & 6 of the Amended grounds of appeal)
3. Whether the compulsory acquisition of the 1st Appellant’s property is in conformity with section 3 of the Public Lands Acquisition Law, Cap, 105, Laws of Oyo State, 1978. (Ground 8 of the Amended Grounds of Appeal).
4. Whether the Appellants have discharged the onus of proof placed on them by section 36 of the Evidence Act. (Ground 9 of the Amended Grounds of Appeal)
Issue One
Both the Appellant and Respondent in their various briefs brought out the terms of reference of the panel of enquiry as follows:-
In the White Paper of its Report, published as Oyo State Notice No. 39 in Oyo State of Nigeria Gazzette No. 13 Vol. 27 of 10th June, 2002 its terms of reference were as listed as follows:-
i. To determine the circumstances leading to the Alterations/Modification of the Master plans.
ii. To look into the allocations of plots to the applicants by the corporation.
iii. To determine the level of involvement of the officials responsible for (i) & (ii) above;
iv. To recommend appropriate disciplinary actions for those involved; and
v. To recommend ways of preventing such occurrences in future.
The learned Counsel for the Appellants submits that the provisions of section 22 of the Land Use Act upon which the trial, court relied are clear and unambiguous. It is his submission that it is the duty of the grantor and holder of the right of occupancy, in this case the 3rd Respondent, who is the sub-leassor and a deemed holder of the right of occupancy to first obtain Governor’s consent before granting the sublease thereof. Counsel placed reliance on section 22 & 34 of the Land Use Act and the cases of Union Bank of Nigeria Plc v. F. E. Orharhuge (2000) 2 NWLR (Pt. 645) A95, Dr. Samuel N. Amadi v. Mr. Ozurumba Nsirim (2004) 45 WRN 142/156.
Counsel also submits that the 3rd Respondent is an agency of the 1st Respondent, is the holder of statutory right of occupancy, who ought to have obtained consent before granting the subtease to the 1st Appellant, which he did not and that party in delict should not be allowed to profit by his fraud. That it is fraudulent and unconscionable for the Respondents to assert that the Appellant has no legal or constitutional right to the plot of land which the 3rd Respondent subleased to him for valuable consideration, because no Governor’s consent was obtained. (Refer Ugochukwu v. Cooperation Bank Ltd. (1996) 6 NWLR (Pt. 456) 524 @ 542, Amadi v. Nsirun (Supra), Solanke v. Obed (1962) 1 All NLR Vol. 1 (Pt. 2) 230-233)
Counsel further submits that, the erroneous interpretation and application of sections 22 and 26 of the Land Use Act, 1978 by the trial court led to its conclusion that the 1st Appellant has failed to discharge the onus of proof and that the justice of this case did not merit the declaratory and injunctive orders sought. Refer section 44 of the Constitution of the FRN, 1999 and Section 22 & 26 of the Land Use Act, 1978.
Counsel for the Respondent submits that the holder of statutory right of occupancy (3rd Respondent) is not prohibited by section 22 of the Land Use Act, 1978 from entering into some form of negotiation which may end up into written agreement for presentation to the Governor for his consent, like in this case, issuing of Exhibit OC9 which is a mere escrow, did not and cannot transfer title till the consent of the Governor is first had and obtained. (Counsel refer this court to the six paragraph of the Counter Affidavit of the Respondent, Section 22 & 26 of the Land Use Act, 1978 and the cases of Anambra State Housing Development Corporation v. Emekwe (1996) 1 SCNJ 98 @ 132-133, B.M.L. v. Ola Hemobola Ltd. (2007) ALL FWLR (Pt. 379) page 1340 @ p.1362-1364)
Counsel also submits that there is no limit to obtaining Governor’s consent in alienation of land but for such alienation to be valid and confer right on the party intended to benefit therefrom, Governor’s consent of the state concerned must be obtained. That the failure to obtain the consent of the Governor was not a deliberate act of the 3rd Respondent as the Appellant claimed, Calabar v. Ekpo (2008) 2 SCNJ page 307 @ pages 328-329.
Counsel further submits that all the Appellant can claim is an equitable right which had not been perfected.
Counsel submits that the cases of Union Bank of Nigeria Plc v. F. E. v. Orharhuge (2000) 2 NWLR (Pt. 645) A95, Dr. Samuel N. Amadi v. Mr. Ozurumba Nsirim (2004) 45 WRN 142/156 are not on all fours with the instant case.
That a status of a land instrument over a land in an urban area is determined by the provisions of sections 22 & 26 of the Land Use Act, Cap. 202 Laws of the Federation of Nigeria, 1978. Section 22 provides as follows:-
“it shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained…”
It appears a to be a common ground between the parties that the land in contention which is plot A along Ekiti Street, Bodija Ibadan is situate in Ibadan the capital city of Oyo State which is an urban area. It is reasonable to conclude that exhibit OC9 issued in favour of the 1st Appellant being a sublease by the 3rd Respondent is situate in an urban area. It is the case of the Appellant that it is not the duty of the grantee of the right of occupancy or any part thereof to first obtain consent of the Governor before executing the instrument of grant therefore that it most fraudulent and unconscionable for the 1st Respondent to divest the Appellant of his propriety right over the said plot because no Governor’s consent was obtained.
The learned Counsel for the Respondent Adetunji W. Gbadegesin (Director, Legal Drafting and Ministerial Counseling, Oyo State Ministry of Justice) rightly in my humble view responds that the holder of a statutory right of occupancy is certainly not prohibited by section 22(1) of the Land Use Act, 1978 from entering into, some form of negotiation which may end with a written agreement for presentation to the Governor for his necessary consent, The 3rd Respondent therefore (as the holder of the statutory right of occupancy) has the power to enter into negotiation with the 1st Appellant by issuing Exhibit OC9 in favour of the 1st Appellant.
However, maintains the learned legal Director, until the Governor’s consent is obtained Exhibit OC9 confers a mere escrow and could not possibly have transferred legal title of the land to the 1st Appellant. (Refers Anambra State Housing Development Corporation v. Emekwue (supra)).
The Appellant alleges a fraudulent omission or failure by the 3rd Respondent to obtain the Governor’s consent, however the Respondent cited para. 6 of his counter affidavit which explains the failure to secure the Governor’s consent.
“…Governor’s consent was not obtained by the Appellants since the parcel of land in question became a subject matter before the Administrative Panel of Enquiry into the allegation of making alteration/modification to the master plans and allocation of plots in the scheme of the 3rd Respondent”.
This fact was not controverted by the Appellant and not being incredible is qualifies to be accepted and acted upon by the court; fraud cannot therefore be imputed in the circumstance of this appeal.
The argument of the 1st Appellant that he was in possession and carrying on development of the plot of land by virtue of the transaction between him and the 3rd Respondent and with the 3rd Respondent’s permission and therefore had constitutional right to the said plot by the provision of section 44 of the Constitution of the FRN, 1999 is untenable. It is the Appellant who has a duty to secure his possession by complying with the law; a buyer must satisfy himself of the quality, condition and fitness for the purpose of what he is buying. The contention of the Appellant that the 3rd Respondent an agency of the 1st Respondent ought to have obtained Governor’s consent before granting a sublease to the 1st Appellant is fantastical and without legal flavour. The Respondents maintains the Appellant must not be allowed to profit from its fraud wherein lies the fraud? The question is in the eyes of the law, did the 1st Respondent possess what they purport to sell to the Appellant? (See Ogochukwu & Amadi’s case (supra)). A seller subject to statutory exceptions is not responsible, the maxim is caveat emptor.
The learned trial Judge was well guided in law when at page 98 the court held that:-
“…in the case on hand, no evidence has been adduced to establish that the consent of the Governor of Oyo state had first been obtained before making of Exhibit OC9. Also, the Applicants have done nothing to deny the consents of paragraph 6 of the counter affidavit of the Respondents which says the 1st Applicant failed to obtain the Governor’s consent before executing Exhibit OC9.
The ugly consequence of non-compliance with the requirement of section 22 of the Land use Act, 1978 is contained in section 26 of the same Act… In effect, exhibit OC9 vide which the 1st Applicant claimed to have constitutional and legal rights over plot A, along Ekiti Street, Bodija, Ibadan is a worthless document. It confers no legal rights…”
Section 26 of the Land Use Act provides the consequence of noncompliance with section 22 of the same Act. It provides thus:-
“any transaction or any instrument which purports to confer or vest in any interest or right over land other than in accordance with the provisions of this Act shall be null and void.”
The case of Anambra State Housing Development Corporation v. Emekwue (supra) gives the end result of a land transaction without the prior consent of the Governor. The Apex court declared that:-
“Being a mere escrow, therefore the deed of lease passed no interest in the property to the defendant. It follows therefore that whatever view one takes of Exhibit 3, they did not pass any interest in the property here concerned to the defendant and he consequently acquired no legal title to the property.”
On this issue I find that the 1st Appellant has at best an unenforceable equitable interest in the land in question. The 3rd Respondent had no proper title in law to transfer to the Appellant by the transaction. The 3rd Respondent whom the 1st Appellant holds tenaciously as having sold the land to him in fact had no proper title in law. He could not have transferred that which he did not possess. The legal maxim is memo dat quod non habet. The contract 1st Appellant claims he has with 3rd Respondent is a void contract. (Refer: Mohammed v. Klargester (Nig.) Ltd (2002) 7 SCNJ p.433)
Issue two
Counsel submits that a Panel of Enquiry which was constituted to investigate facts already stated in its terms of reference must keep strictly to its terms of reference and not make recommendations not within the terms of reference. As in this case, the terms of reference is limited to the 3rd Respondent and its officers as provided in the 3rd & 4th terms of reference which the Appellant is not a member, while the 1st & 2nd terms of reference cannot by any methods of interpretation confer such wide powers on the panel. That the Appellant’s right to the plot was already vested before the panel was constituted more so that the right is founded on contract. (Aiyetan v. The Nigerian Institute of Oil Research (1987) 3 NWLR (Pt. 59) 48)
Counsel submits that even if the panel acted within their powers, it did not observe the rules of natural justice. (Refer Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 @ 618, Aiyetan v. Nifor (supra), Oyeyemi v. Commissioner for Local Government (1992) 2 NWLR (Pt. 226) 661).
Counsel also submits that the proceedings of the panel was recorded by the Respondent electronically though it is in the exclusive possession of the Respondent but was not tendered for the trial court to see that the Appellant was not confronted with an allegation of wrong doing and that the trial court ought to have relied on section 148 (d) of the Evidence Act, Cap. 112 LFN 1990 to presume that the record of the panel’s proceedings was unfavourable to the Respondents, Counsel therefore urge this court to hold that the Administrative panel of Enquiry constituted by the 1st Respondent acted ultra vires its terms of reference and did not act in accordance with the rule of natural justice in the circumstances of this case. (Refer Ephraim & Ors. v. Okon (1996) 2 NWLR (Pt. 432) 595.
Conversely, the Respondent submits that the 1st and 2nd terms of reference confer wide powers on the panel, that the 1st term of reference presupposes that the master plans of plots of land had already been altered/modified, while the 2nd term of reference is for the panel to look into the circumstances leading to such alteration/modification and the beneficiaries of such alteration/modifications.
Counsel also submits that the 3rd and 4th terms of reference deal directly only with the staff of the 3rd Respondent while the 5th terms of reference affect all parties. That buyers should be aware of transaction they involve in because the Appellant bought a land earmarked for public purpose (Bodija Recreational Field). Counsel urges this court to hold that the Panel of Enquiry did not go outside its terms of reference.
Counsel submits that contrary to the Appellant’s submission, the requirements of fair hearing was satisfied, that the Appellant was invited by the Panel and a solicitor attended on his behalf/to defend the Appellant and made a submissions before the panel. See Exhibit OC15, OC12 and Supporting Affidavit of the Respondent. (Refer Aiyetan v. Nifor (1987) 3 NWLR (Pt. 59) page 48 @ 50)
Counsel further submits that the rule of fair hearing is not a technical doctrine, it is one of substance. The question is not whether injustice had been done because of lack of hearing but it is whether a party entitled to be heard before had in fact been given the opportunity of a hearing. That the panel passed a vital test of one of the rules of natural justice-Audi Alterem Partem. (Refer Kotoye v. C.B.N (1989) NWLR (Pt. 98) page 419 @ 448)
Counsel posits that the Appellant misconceived the law to contend that they were not given fair hearing and that the trial Judge ought to have invoked the provisions of section 149 (d) of the Evidence Act, Cap 112, LFN, 1990 to presume that the record of the panel’s proceeding which is in the custody of the Respondent if produced would be unfavourable to the Respondent. Rather, the reverse is the case.
Counsel submits that the applicant brought their application under section 43 Rule 5 of the Oyo state High Court (Civil Procedure) Rules 1988. They sought for orders of Declaration and Injunction to challenge the act of the Panel of Enquiry. That a declaration is used to challenge an administrative act, while a certiorari is applied to challenge a judicial or quasi-judicial act. Further submits that the applicant has a duty to establish all the facts necessary to justify the grant of an order and they failed to procure the proceedings of the panel before the lower court. That the onus lies on the Appellant to produce the record of proceeding of the panel but they never applied for it.
(Refer Onyekwuluje v. Benue State Govt. (2005) ALL FWLR (Pt. 280) 1615 @ 1633, Lakwot v. Judicial tribunal (1997) NWLR (Pt. 515) page 22 @ 25)
Did the Administrative Panel of Enquiry constituted by the 1st Respondent act ultra vires its terms of reference and not in accordance with the rules of natural justice in the circumstances of this case?
The terms of reference of the said panel were:
i. To determine the circumstances leading to the Alterations/Modification of the Master plans.
ii. To look into the allocations of plots to the applicants by the corporation.
iii. To determine the level of involvement of the officials responsible for (i) & (ii) above;
iv. To recommend appropriate disciplinary actions for those involved; and
v. To recommend ways of preventing such occurrences in future. Did the panel exceed its terms of reference by making ultra vires orders detrimental to the interest of the Appellant and undermining the Appellant’s right to fair hearing?
Upon the case of Aiyetan v. The Nigerian Institute of Oil Palm Research (supra) & Garba v. University of Maiduguri (supra) the Appellant contends that the learned trial Judge was in error to have found and hold that the 1st & 2nd terms of reference of the panel were of a general nature encompassing the recommendation as the forfeiture or the compulsory acquisition of the property of the Appellant. The Respondent submits that the 1st and 2nd terms presuppose that while the 1st term of reference presupposes that the master plan of the plot of land subject matter of this appeal had being modified or altered. That the 2nd term was to the effect that the Panel of Enquiry is to look into the circumstances leading to the allocation of the altered plot and the beneficiaries of such unlawful alterations and that those terms confers wide powers on the panel. That the said terms are indicative of the wrongful allocation to beneficiaries and the wrong allocation by the 3rd Respondent to unwearied beneficiaries.
The learned Counsel for the Respondent faults the complain of the Appellant of non-confrontation with allegation and denial of fair hearing because indeed both were done. The learned trial judge so found at page 100 of the records, which goes thus:-
“…that the panel recommendations are contrary to the rule of natural justice, it is recorded that the learned counsel to the applicants made the following submissions:
“on 5/3/2002, the 1st Respondent set up a panel of Enquiry-See exhibit OC15.
The 1st applicant was invited to attend the sitting of the Panel of Enquiry. See paragraph 5(ix) of our supporting affidavit. The 1st applicant not being in the country, caused his solicitor to attend the sitting of the Panel-See paragraph 5 (ix) of our supporting affidavit.
The solicitor attended the sitting of the panel on 20-3-2002. The said proceedings were recorded electronically and by a stenographer. See paragraph 6 (ii) of our supporting affidavit.
The solicitor made recommendation and submission before the panel. He also submitted a Memorandum i.e. exhibit OC12″.
Without any shadow of doubt, the above quoted submission of the learned counsel for the Applicants shows that members of the panel of Enquiry have passed a vital test of one of the rules of natural justice-audi alteram partem-that required that a party be heard in his own case.”
We find in the record that the Appellant, contrary to its assertion, was put on notice of the Panel’s work, served with the notice of suspension of construction work and withdrawal of approval of plot A Ekiti Street, Bodija, Ibadan. That in reply the Appellant submitted a Memo Exhibit OC12 and was duly represented by a learned Counsel to articulate the argument or issues raised in its Memo.
As rightly submitted to by the 1st Respondent’s Counsel, the 1st Appellant strenuously canvassed argument on the following points:
1. Whether the existing modifications and alterations of the original Master plan can be reversed.
2. Whether policy changes should be prospective or retroactive.
3. Whether policy changes in this respect can be implemented without cognizance of existing vested rights, and
4. Whether policy changes should be discriminatory.
It was thus clear, that the unlawful sale to the Appellant of a land earmarked for public use was put in issue. The finding of the panel confirms the illegal nature of the transaction and rendered any binding contract null and void. The Appellant did not place before the trial court facts which shows that the said plot of land unlawfully sold to it did not form part of the parcel of land earmarked for public purpose, i.e. the Bodija recreational purpose. The recommendation of the panel is part of the ways of preventing gullible purchasers from seeking after unavailable choice of plots in the hands of overzealous officials of the 1st Respondent.
That the 1st Appellant having appeared before the panel of enquiry to defend the purchase of the plot of land earmark for public use unlawfully sold to him was indeed given opportunity to be heard. No breach of fair hearing has therefore been established, section 36 of the constitution was competently complied with by the panel of enquiry.
He who alleges has the burden of prove. The 1st Appellant took out an application under Order 43 Rule 5 of the Oyo state high court civil procedure rule of 1988, he therefore had the duty to establish all requisite facts to move the hands of the court in equity. It was rather the 1st Appellant who failed to produce or took refuge under the provisions of section 148 (d) of the evidence Act Cap. 112 LFN 1990 by failing to place before the court the proceeding of the panel of enquiry in support of his application. In justifying this failure, the learned Counsel for the Appellant submitted that the proceedings of the panel of Enquiry dealt with matters other than the complains of the Applicants and proceeding of the executive council of the 1st Respondent dealt with matters relating to good governance of the state. The learned Counsel said to “…Bring the proceedings of the two bodies will not… our applications”. In other words, it was the deliberate election of the 1st Appellant to keep the proceedings away from the court. This was a clear admission that placing the proceeding before the court will not support the case of the Appellant or to be detrimental to the interest of the Appellant.
I find no fault in the recommendation of the panel which was within the terms of reference. The panel also observe the rule of natural justice by hearing the Appellant. (See Sokwo v. Epongbo (2003) 2 NWLR (Pt. 803) page 111 @ page 159, Ephraim v. Okon (1996) 2 NWLR (Pt. 432) 595
Issue three
Counsel for the Appellant submits that it is settled law that any provision of the law, which governs compulsory acquisition of a person’s property, must be construed fortissimo contra prefentes. It must be construe strictly against the acquiring authority and sympathetically in favour of the property owner by adhering to the enabling law that compensation arises only after it has been first determined that the authority acted in conformity with the law. (Refer Bello Diocesan Synod of Lagos (1971) 1 All NLR (Pt. 1) 247, Peemok Investment Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR 122, Obikoya & Sons Ltd. v. Governor of Lagos State (1987) 1 NWLR (Pt. 50) 385, Onagoruwa v. IGP (1991) 5 NWLR (Pt. 193) 593).
Counsel further submits that the 1st Respondent acted outside the prescription of the enabling law, the Public Lands Acquisition Law, therefore violated the provision of section 44 of the Constitution of the FRN, 1999.
Counsel for the Respondent on this issue submits that the Respondents complied with (particularly section 3) the Public Land Acquisition Law, Cap. 705, Laws of Oyo State of Nigeria, 1978 and that the Appellant never raised the issue of non-compliance with the said law in both his application/motion and the supporting affidavit before the lower court. That the Appellate court cannot grant a party a relief which that party had not sought from the court of trial. (Refer pages 32-40 62, 82 & 101 of the records of proceeding and the cases of Garuba v. Kwara Investment Limited (2005) All R.W.A. (Pt. 252) page 469 @ 483, Odesanya v. Ewedemi (1962) 1 ALL NLR 320 @ 323).
Counsel also submits that the Respondents also complied with the provisions of section 44 (1)(a) & (b) of the Constitution of the Federal Republic of Nigeria, 1999. Ordering that a compensation be given to the 1st Appellant and also that plot 2, Block T.25 at Ajoda New Town be re-allocated to the 1st Appellant.
Counsel further submits that in a contract for the sale of land, there are two stages the contract must pass through and they are,
a. The contract stage ending with the formation of a binding contract for sale.
b. The conveyance stage culminating in the vesting in the purchaser by means of the appropriate instrument under seal.
That it is only after the above stages has been fulfilled for alienation to be valid. That in this case the Appellant has an equitable interest in the plot of land in dispute by virtue of the money paid to the 3rd Respondent and is entitled for compensation for the unlawful leased to him by the staff of the 3rd Respondent. (Refer Atute v. Oghomienor (2004) ALL FWLR (Pt. 224) page 2016 @ 2078)
Counsel submits that the letter written to the Appellant and the White Paper published in respect of the acquisition constitute adequate notice of acquisition to the Appellant and compliance with section 3, 4, 5, 8 & 9 of the Public Lands Acquisition Law. (Refer page 10, of the record, section 113 (r)(i) Evidence Act, Ogbunyiya v. Okudo (1979) ANLR 105 @ 113b)
Issue four
Counsel submits that in civil cases, the court, in deciding which set of facts presented by opposing parties is preferable, must put the two sets of facts in an imaginary scale and advert to admission made by one party in order to add weight to the other party’s evidence. (Refer Mogaji & Ors v. Odofin & Ors. (1978) 4 SC 91 @ 93-94)
Counsel further submits that in cases tried on affidavit evidence, paragraphs of affidavit not specifically denied are deemed admitted and must be acted upon by the court. (Refer Nwosu v. Imo State Environment Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 @ 721, Exparte Ejide (1990) 3 NWLR (Pt. 141 758 @ 162).
The Respondent submits that section 136 Evidence Act placed burden of proof on that person who will fail if no evidence at all were given on either side. (Refer Are v. Adisa (1967) ANLR 158 @ pp. 162-2, Maximum Insurance Co. Ltd. v. Owoniyi (1994) 3 NWLR (Pt. 331) 178 @ 192).
Counsel also submits that the Appellant did not dispute the fact that the land in question has been earmarked for Public purpose (Bodija Recreational Field) (pages 35-40 & 62 of the record, Nwosu v. Imo State Environment Sanitation Authority (1990) 2 NWLR (Pt. 135) page 668 @ 121)
Counsel further submits that the Appellant through his counsel appeared and filed a memorandum before the administrative panel of inquiry investigating the unlawful sale of the plot of land in question to the Appellant and never raised any issue of non-compliance with sections 4, 5, 8 & 9 of the Public Lands Acquisition Law, Cap, 105 Laws of Oyo State of Nigeria, 1978.
Counsel adds that the Appellant sought the intervention of the lower court of the findings of the Panel of Enquiry set up by the 1st Respondent but did not place any material for the court to use in considering the legality or otherwise of the Panel of Enquiry. (Refer Oduwole v. Famakinwa (1990) 4 HELR (Pt. 143) @ page 239, Bamaiyi v. Bamaiyi (2005) All FWLR (Pt. 288) page 1142 @ page 1162)
Issues three and four are taken together.
I find as misplaced the argument advanced and countered in issues numbers three and four in view of my finding in issues one and two that no legal right was conferred on the 1st Appellant, it appears anathetical to speak of unlawful possession and compulsory acquisition.
That the situations in the facts of the instant appeal are totally alien to the issue of compulsory acquisition which entails the taking over by government of property legally reposed in a party. It has been consistently the argument of the 1st Respondent that the land in question fall within the Old Bodija recreational field, that the plot of land was earmarked for that purpose. (Refer paragraph 10 of the Respondent’s Affidavit) this fact has not been effectively controverted by the 1st Appellant. Thus, the land has not been compulsorily acquired but has been reverted to its original use with due compensation offered to the 1st Appellant.
Indeed the fact of compensation offered to the Appellant shows a construction of acquisition fortissime contra preferentes. I find no breach of the provision of section 44 of the Constitution in the conduct of the 1st Respondent.
That the case of the 1st Appellant was not one of compulsory acquisition and therefore the provisions of the Public Land Acquisition Law is inapplicable and no rights nor the said law have been violated.
The learned trial Judge was properly guided by the principles of law argued before it and rightly declined the grant of the declaration sort by the 1st Appellant who has established no enforceable right.
Like the learned trial Judge, I find it irresistible to observe that the 1st Respondent was magnanimous by not only re-allocating another land to the 1st Appellant but also making an offer of compensation. This is what is termed toning down the hard facts of the law with a blend of human milk of kindness which is strictly within the exclusive jurisdiction of the 1st Respondent to do. Indeed, that is how it should be. Thus, while the 1st Respondent takes possession and protects public property in the interest of the generality of the people, the individuals who congregate to form the community are not totally neglected. My lord Rhodes Vivour, JSC terms this approach of Government as justice for all, the hallmark of a democratic Government. (See Dr. Adewunmi v. L.S.D.P.C. (2013) 3 NWLR (Pt. 1356) p. 238 @ 294).
This appeal is without merit and is hereby dismissed.
ADAMU JAURO, J.C.A.: I had the opportunity of reading in advance the lead judgment of my learned brother, M.B. Dongban-Mensem, JCA, just delivered.
I am in complete agreement with the reasoning and conclusion, to the effect that the appeal is lacking in merit. I adopt the said judgment as mine, and hereby dismiss the appeal. The ruling of the lower court delivered on 27th March, 2003 in suit No. I/772/2002 is hereby affirmed.
OBIETONBARA DANIEIL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my lord M. B. Dongban-Mensem J.C.A. I agree with the conclusion reached.
Appearances
Oluseye ChukwuraFor Appellant
AND
M. O. Adebayo (AG) Oyo State MOJ with L. A. Ganiyu DLASFor Respondent
