IBUNGEWARI v. ALAMINA & ORS (2020)

IBUNGEWARI v. ALAMINA & ORS

(2020)LCN/13952(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Tuesday, February 18, 2020

CA/PH/270/2012

Before Our Lordships:

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

1. BELEMA IBUNGEWARI APPELANT(S)

And

1. MR. IBIENELAME MARK ALAMINA 2 THE MILITARY GOVERNOR OF RIVERS STATE 3. THE ATTORNEY-GENERAL OF RIVERS STATE 4. THE COMMISSIONER FOR LANDS AND HOUSING RIVERS STATE 5.RIVERS STATE HOUSING AND PROPERTY DEVELOPMENT AUTHORITY. RESPONDENT(S)

RATIO

WHETHER OR NOT CERTIFICATE OF OCCUPANCY ENTITLES TO THE HOLDER TE IRGHT TO HOLD THE HOLD TO THE EXCLUSION OF ANY OTHER PERSON

In GRACE MADU V DR. BETRAM MADU (2008) LPELR-1806 (SC) the Apex Court held thus:
“Once a person is granted a certificate of occupancy over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and until the certificate of occupancy is set aside. See GANKON V. UGOCHUKWU CHEM. IND LTD. (1993) 6 NWLR (PT.297) 55….“ per ADEREMI JSC. PER SANGA, J.C.A.

WHETHER OR NOT THE COURT HAS PWER TO MAKE AN ORDER WHOCH WAS NOT ASKED FOR

The law is trite that a Court of law has no power to make an order which has not been asked for and which the person against whom it is made had no opportunity of defending. See A-G FEDERATION V A. I.C. LTD (Supra). PER SANGA, J.C.A.

NEMO DAT QUOD NON HABET

NEMO DAT QUOD NON HABET (No one can give what he does not have) is applicable in this suit. See ALHAJI SANNI SHUAIBU V J.O. BAKARE (1984) 12 SC 187 at 201; IBRAHIM V OSUNDE (2009) 6 NWLR (PT.1137) 382 at 404; ADELAJA V FANOIKI (1990) 2 NWLR (PT. 131) 137 at 151; FAMUROTI V AGBEKE (1991) 5 NWLR (PT. 189) 1 at 15 and EGBUTA V ONUNA (2007) 10 NWLR (PT.1042) 298 at 316. PER SANGA, J.C.A.

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The 1st Respondent instituted this Suit No. PHC/2467/1986, before the High Court of Justice Rivers State of Nigeria, Port Harcourt Judicial Division, J. N. AKPUGHUNUM J., presiding via a 2nd Further Amended Statement of Claim dated 4th April, 2006 claiming against the 2nd, 3rd, 4th, 5th (Respondents) and the Appellant (as 5th Defendant who substituted his father DEREFAKA S. IBUNGEWARI by order of this Court made on 30/10/2018) seeking for the following reliefs: –
1. A Declaration that the purported revocation or cancellation of the Certificate of Occupancy granted Plaintiff in respect of his property at No. 17 Enugu Street, Port Harcourt otherwise known as Block 183 ‘J’ Creek Road Extension Layout and the building situate on it or the purported acquisition of the said property as published in the Rivers State Official Gazette No. 9 of 27th March, 1986 is illegal, unconstitutional, wrongful and of no effect.
2. An order setting aside legal notice No. 3 of 1986 as published in Rivers State Official Gazette No. 9 of 27th March, 1986 purports to revoke and

cancel the right and certificate of occupancy of Plaintiff in respect of Block 183, Plot ‘J’ Creek Road Extension Layout Port Harcourt.
3. A Declaration that the statutory right of occupancy granted to plaintiff by virtue of the Certificate in respect of the said property – Block 183 Plot ‘J’ Creek Road Extension Layout Port Harcourt dated 12th November, 1983 and registered as No. 217 at page 217 in Volume 107 in the Lands Registry in the office at Port Harcourt still subsists.
4. A Declaration that the purported sale of the said property by the 4th Defendant to the 5th Defendant during the pendency of this action is null and void.
5. An injunction restraining the Defendants, their agents and servants from selling the said property as advertised in the Nigerian Tide publication of 28th March, 1986 or treating the said property in any manner as property validly acquired by the Rivers State Government. (Pages 39 – 40 of the Records of Appeal).

Pursuant to an Order made by the trial Court on 15/06/1992, the Claimant filed his statement of claim on 17/6/92. Following the joinder of the 5th Defendant (now

Appellant) he filed an Amended Statement of Defence and Counter Claim on 13/9/2003. The 5th Defendant counter claimed as follows: –
a. A declaration that the sale of the property in dispute to me on the 15th Sept., 1986 and evidenced by the Sale Agreement executed between me and the 4th defendant on the 31st Oct., 1986 and Registered as No. 66 at page 66 in Volume 121 of the Lands Registry in the office of the 4th defendant Port Harcourt is Valid and Subsisting.
b. A declaration that by virtue of the Rivers State Official Gazette of 27th March,1986 No. 9 Vol. 18 at page 13 S/No 194 the Revocation of Registry and Certificate of Occupancy Order 1986 is valid and subsisting.
c. A declaration that the Cancellation and Revocation of the Certificate of Occupancy irregularly granted to the claimant in respect of No. 17 Enugu Street Port Harcourt is proper and should be ratified by the Court.
d. A declaration that the suit which is an indirect challenge to the powers of the 1st defendant to promulgate the Revocation of the Rights and Certificate of Occupancy Order 1986 is incompetent and ought to be struck out.
e. A declaration that it is

unfair unjust and an act of greediness on the part of the Claimant to retain PLOT 3 GRA 1 Extension AND No. 15 Ihiala/Kolokuma Street Port Harcourt granted to him by the Senomi Panel and still contest to take away the only property granted to me by the same panel.
f. An order dismissing the claimant’s suit for being frivolous, vexatious, tainted with greed and abuse of political office and power. It is incompetent and ought to be dismissed with substantial cost for lacking merit.
g. An order directing 1st – 4th defendants to facilitate the processing and issuance of a Certificate of Occupancy in my favour.
h. An order that the claimant pays the sum of N10,000,000.00 Ten Million Naira to me as general damages.
i. A perpetual injunction restraining the claimant his servants, agents and privies from further laying any claims on the property and/or interfering with the peaceable possession and/or occupation of the property by me. (page 64 of the record of appeal).

Hearing of the suit commenced de-novo on 4th February, 2004. The original Claimant on record gave evidence in proof of his case and was cross-examined by learned

counsel to the Defendants before his death in 2005. He tendered thirteen (13) documents in evidence which were marked as Exhibits: A, B, C, C1, D, E, F, G, H, J, K, L and M respectively. (pages 146 – 169 of the record of appeal).

The 1st – 4th Defendants (2nd to 5th Respondents) called one witness Sunday Ahusi Onigwe a Principal Technical Officer (Estate) with the 5th Respondent. He was cross-examined by learned counsel to the Claimant. The witness tendered a Certified True Copy of Rivers State of Nigeria Official Gazette No. 39 Vol. 4 of 1/8/1972 in evidence and it was admitted and marked as Exhibit ‘N’. (pages 182 – 190 of the record of appeal).

D.W. 2 is the father of the Appellant, Defefako Samuel Ibugewari (now deceased). He commenced his testimony on 11/05/2009. He tendered several documents in evidence which were marked as Exhibits O, P, Q, R and S respectively. (pages 191 to 199 of the records).

At the close of evidence by the parties, final addresses were ordered by the Trial Court. Final addresses were adopted by learned counsel on 10/2/2012 and the matter was adjourned to 27th April, 2012 for judgment.

The learned trial Judge delivered his judgment on that date (pages 110 – 135 of the record of appeal).

Judgment was entered in favour of the Claimant and the trial Court ordered as follows: –
1. It is hereby declared that the revocation or cancellation of the Certificate of Occupancy granted the Claimant in respect of his property at No. 17 Enugu Street, Port Harcourt, otherwise known as Block 183 ‘J’ Creek road Extension Layout and the building situate on it, or the purported acquisition of the said property as published in the Rivers State Official Gazette No. 9 of 27th March, 1986 is wrongful, null and void and of no effect.
2. The Revocation or cancellation of the rights and Certificate of Occupancy of Claimant in respect of Block 183 Plot ‘J’ Creek Road Extension Layout, Port Harcourt, as contained in Rivers State Legal Notice No. 3 of 1986, as published in Rivers State Official Gazette No. 9 of 27th March, 1986, is hereby set aside.
3. It is hereby declared that the Statutory Right of Occupancy granted to the Claimant by virtue of the Certificate of Occupancy in respect of the said property – Block

183 ‘J’ Creek road Layout Extension Layout, Port Harcourt dated 12th November, 1983 and registered as No. 217 at page 217 in Volume 107 in the Lands Registry Office at Port Harcourt is till subsisting.
4. It is hereby declared that the sale of the property by the 4th Defendant to the 5th Defendant is null and void.
5. An injunction is hereby granted restraining the Defendants, their agents and servants from treating the said property in any manner as property validly acquired by the Rivers State Government. (pages 134 – 135 of the Records).

The 5th Defendant/Appellant’s counter claim was dismissed by the learned trial Judge.

The decision by the Trial Court aggrieved the 5th Defendant. He filed a Notice of Appeal containing 4 grounds of appeal. (pages 136 – 138 of the records).

Appellant’s brief of argument was filed on 02/07/2019 pursuant to an order by this Court on 19th June, 2019. It was settled by NEMI EREMA ESQ. Learned counsel formulated two issues out of the four grounds of appeal as follows: –
1. Whether the Hon. Court was right in not holding that the Certificate of Occupancy issued to

the 1st Respondent was irregular, null and void (Grounds 1, 3 and 4)
2. As between the 1st Respondent and the Appellant who has a better title to be entitled to a right of occupancy over the land in dispute? (Ground 2)

The 1st Respondent’s Amended Brief was filed on 22/01/2020. It was prepared by K. C. EZE Esq. Learned counsel formulated three issues as follows: –
1. Whether the Trial Court was right to hold that the Claimant’s Certificate of Occupancy was regularly issued?
2. Was the revocation of the Certificate of Occupancy of Claimant/1st Respondent valid within the contemplation of the law?
3. Whether the Appellant acquired valid title over the property in dispute and from the totality of evidence lead, at the Lower Court, was entitled to judgment on his counter claim.

The brief of argument of the 2nd, 3rd, 4th and 5th Respondents was prepared by EGERTON NDUMADUME ESQ., a Director in the Rivers State Ministry of Justice. It was filed on 06/08/2019, learned counsel adopted the two issues canvassed by the Appellant. The Appellant also filed a Reply Brief on 24/01/2020.

In determining this appeal, I will adopt the

two issues formulated by the Appellant.

Issue 1 is: –
Whether the Hon. Court was right in not holding that the Certificate of Occupancy issued to the 1st Respondent was irregular, null and void.

In his submission on this issue, learned counsel to the Appellant stated the trite position of the law that a Certificate of Occupancy is not a conclusive proof of title where it is shown that as at the time of the issuance of the said Certificate of Occupancy, a subsisting right in another person which has been revoked. That such a Certificate of Occupancy if issued is invalid, null and void and liable to be set aside. Cited OGUNLEYE V ONI (1990) 2 NWLR {Pt. 135} and this Court’s holding in OLOHUNDE V ADEYOJU (2000) 10 NWLR {Pt. 676} 562 at 588.

That in this suit, is not in dispute that Mr. James N. Ikemefuna leased the property in dispute from the Rivers State Government on 18/1/1950 for a period of 20 years (Exhibit M). That the said property was released to Mr. Ikemefuna in 1972 via Exhibit ‘N’, an Official Gazette of the Rivers State Government. In 1979, Mr. Ikemefuna sold the property to the Appellant and received a part

payment as evidenced by Exhibit ‘P’. On the other hand, the 1st Respondent is alleging that he came into possession of the land in 1981 when he applied for the purchases of the property and was issued a Certificate of Occupancy. That by a mathematical calculation, it is clear that the interest of the original owner Mr. Ikemefuna was earlier in time to that of the 1st Respondent. That the rights of Mr. Ikemefuna (and by extension that of the Appellant), were not revoke by the Rivers State Government before it issued another Certificate of Occupancy to the 1st Respondent.

Learned counsel quoted the holding by the learned trial Judge in his judgment particularly where he held thus: –
“Exhibit M is a Non-European Occupation Lease, dated 30/4/51 and the Lessee is James Nwanazia Ikemefuna. The period of the lease is twenty (20) years from January, 1950.
By mathematical calculation, it is very evident that the lease period had expired on 18th January, 1970 before the release of the said property on 28th day of July, 1972 Vide exhibit N.
It is therefore not correct for the D.W.2 to state that J.N. Ikemefuna still owned the

disputed property as at 12th November, 1983, when the Claimant’s Certificate of Occupancy was granted as same was regularly issued.”

Learned counsel to the Appellant faulted this reasoning by the learned trial Judge that it is “not in line with the law as stated in decided authorities”. That in UDE V NWARA (1993) 2 NWLR {Pt. 278} 638, the lease was for seven (7) years and expired on 31st December while the property was released on the 19th February, 1973. That in that case the instrument of release was marked as Exhibit C. That the Rivers State Government sold the property to a third party in 1983. The Supreme Court nullified the sale and held, inter alia, that: –
“On this ground alone, the Court below should have found that the appellant’s possession continued. The Court below was therefore in error to have held that Exhibit C was a useless document”.
That the Apex Court made the following pronouncements: –
1. That the Lessee has the right to remain in possession of the property until the Rivers State Government formally files an action in the High Court to recover possession and until possession

is so recovered the property cannot be sold to a trial party.
2. That even if possession is recovered it can only be taken away from an individual for public purposes.
That the Apex Court, for these reasons set aside the sale to a third party. That the learned trial Judge erred in his decision.

That there is no evidence that the Rivers State Government recovered possession from the original lessee, Mr. Ikemefuna, before selling the property to the 1st Respondent. That rather the 2nd, 3rd, 4th and 5th Respondents maintained that the Certificate of Occupancy issued to the 1st Respondent was in error and had revoked same after discovering the irregularities surrounding the issuance of the said Certificate of Occupancy. That the 1st Respondent and Appellant appeared before the Senomi Panel in defence of their respective claims and the panel found that the Appellant was the person entitled to a Certificate of Occupancy. The findings by the Panel was tendered in evidence and marked as Exhibit E. Thus the issuance of Exhibit D in favour of the 1st Respondent was irregular and thus unlawful.

That the legal principle of NEMO DAT QUOD NON HABET is

very appropriate in the instant suit since in 1983, Rivers State Government was not vested with the title to the property and thus it is not in a position to alienate it to the 1st Respondent. That it would have been otherwise if the Rivers State Government had revoked the subsisting titles on the land before it issued Exhibit D to the 1st Respondent. Cited: MADU V MADU (2008) All FWLR {Pt. 414} at 1607. He urged on the Court to hold that the Certificate of Occupancy issued to the 1st Respondent (Exhibit D) is irregular, null and void and of no effect and to resolve this issue in favour of the Appellant.

In his submission on this issue, learned counsel to the 1st Respondent gave a summary of the facts that led to his client being issued the Certificate of Occupancy (Exhibit D) for a term of 99 years. That the 1st Respondent had acquired a legal right over the property in dispute which said right can only be extinguished by a valid revocation by the 2nd Respondent or his agents, pursuant to Section 28 of the Land Use Act, 1978. In other words, the 1st Respondent holds the legal right to the exclusion of any other person unless and until the Certificate of

Occupancy is set aside. Cited: MADU V MADU (2008) All FWLR {Pt. 414} 1604 at 1607 ratio 2.

That before the Trial Court, the Appellant pleaded that the issuance of the Certificate of Occupancy to the 1st Respondent by the 2nd Respondent was irregular for the following reasons: –
1. That the 1st Respondent used his political connection to secure the Certificate of Occupancy.
2. That the Appellant had a prior equitable interest and ought to have been accorded priority over the 1st Respondent in the sale of the property in dispute.

Learned counsel to the 1st Respondent submits that the evidence led by the Appellant to confirm the first allegation of irregularity in the issuance of the Certificate of Occupancy to the 1st Respondent lacks substance as the Appellant could not substantiate same. On the second allegations the Appellant contended that he bought the property in dispute from the original government lessee, one Mr. Ikemefuna in 1979. He made a part payment of N10,000.00 out of the purchase price of N36,000.00. He did not made the full payment when he discovered that the lease had expired. That the original government lessee Mr.

Ikemefuna was granted a 20 years lease (1950 – 1970). He was however given the instrument of release (Exhibit N) in 1972 after the expiration of the lease. Thus the said Mr. Ikemefuna had nothing to grant to the Appellant. That the Appellant, did not acquire any legal or equitable interest when he purportedly purchased the expired lease from Mr. Ikemefuna.

On the Supreme Court authority of UDE V NWARA (Supra) cited and relied upon by the Appellant, learned counsel to the 1st Respondent submitted that the Apex Court’s authority relied upon by the Appellant did not support his case. That the facts in UDE V NWARA (Supra) and of the instant suit are distinguishable. Learned counsel listed the areas of divergence between the facts in the two suits. That in his submission, the Appellant, while interpreting the Supreme Court decision in UDE V NWARA painted a wrong picture that a person whose lease expired can turn round to sell the expired lease and recover possession. Learned counsel submitted that, that is not the spirit of the law and it was not the reasoning of the Supreme Court in UDE V NWARA (Supra).

Another area of the submission

by the learned counsel to the 1st Respondent is that the Appellant did not seek for a relief before the lower Court to set aside the Certificate of Occupancy granted the 1st Respondent in his Counter-Claim. That it is trite law that a Court of law has no power to make an order which has not been asked for and which the person against whom it is made had no opportunity to counter. Cited: A. G. FEDERATION V A. I. C. LTD (2000) (SC) {Pt. 1} at 175; DYKTRADE LTD V OMNIA NIGERIA LTD (2000) 7 S C {Pt. 11}.

Learned counsel urged the Court to hold that there was no irregularity in granting the Certificate of Occupancy to the 1st Respondent and urged the Court to resolve this issue against the Appellant.

I have considered the submission by learned counsel to the 2nd, 3rd, 4th and 5th Respondents in their brief of argument wherein they adopted the entire submission by learned counsel to the Appellant and urged this Court to resolve this issue in favour of the said Appellant. I also carefully considered the submission by learned counsel to the Appellant in their Reply Brief and will refer to it in the course of this judgment if the need arise.

FINDING ON ISSUE 1
Issue 1 as couched by the Appellant is: –
Whether the Hon. Court was right in not holding that the Certificate of Occupancy issued to the 1st Respondent was irregular, null and void.

I have carefully considered the submission by learned counsel on this issue. To answer the poser raised in the issue, I will have to consider how the 1st Respondent was issued with the Certificate of Occupancy in order to determine whether there is any legal impediment that nullified the issuance of the said Certificate of Occupancy to the 1st Respondent or that made such issuance irregular.

It is the contention by the 1st Respondent that he applied to purchase the property in dispute from the 5th Respondent when it was called Ministry of Housing and Environment (Exhibit ‘A’). A Valuation Letter was given to the 1st Respondent (Exhibit B) who paid the cumulative sum of Seven Thousand Nine Hundred and Eighty Naira (N7980.00). The Certificate of Occupancy in dispute was then issued to him for a term of 99 years (Exhibit D). The property in dispute is located at No. 17, Enugu Street, Port Harcourt or Block 183 J Creek Road Extension Layout.

1st Respondent took possession of the property and put in tenants, who were paying rents, including the appellant. When the military came to power in the country, the Sanomi Panel was set up to inquire into allocation of plots and sale of Abandoned Houses in Port Harcourt. The Appellant wrote a petition to the Sanomi Panel against the 1st Respondent alleging that the (1st Respondent) owned more than one developed property and thus should forfeit the property in dispute. The Sanomi Panel invited the 1st Respondent who explained to it that the only developed property approved for him was the one in dispute. However the Sanomi Panel in its white paper (Exhibit E) recommended for the revocation of the certificate of occupancy issued to the 1st Respondent. The 2nd 3rd and 4th Respondent accepted the recommendation (Exhibit F). The 1st Respondents wrote two letters protesting against the recommendation by the Sanomi Panel (Exhibits G and H), but the 2nd to 5th Respondents went ahead to advertise the property in dispute for sale in March, 1986. The 1st Respondent was not served any letter of revocation. This prompted the tenants of the 1st Respondent residing in the

property, including the Appellant, to stop paying their house rents to the 1st Respondent. He filed a suit at the Rent Tribunal and obtained judgment against the recalcitrant tenants (Exhibit K).

The 1st Respondent also instituted this suit against the 2nd to 5th Respondent at the Lower Court. On 22/9/1986, the said Court granted in favour of the 1st Respondent an Order of Injunction restraining the 2nd to 5th Respondents from selling the property in dispute (Exhibit L). The 2nd to 5th Respondent ignored the order of the Lower Court and went ahead to sell the property in dispute to the Appellant on 31/10/1986. Thus the appellant applied for and was joined in this suit on 21/1/1987 as the 5th Defendant.

The facts as contended by the Appellant are that the property in dispute was originally leased to one James Nwanzia Ikemefuna for 20 years from 18/1/1950 to 18/1/1970. However the property was released to Mr. Ikemefuna on 18/7/1972. (Exhibit N). The Appellant made part payment to Mr. Ikemefuna in 1979 (Exhibit P.). The Appellant there after made efforts to get a Deed of Assignment from the Rivers State Government in 1982. That the Appellant petitioned

the Rivers State Government that the property in dispute did not belong to the 1st Respondent. Both parties appeared before the Sanomi Panel. The Panel adjudged the Appellant as the rightful owner. Consequently, the certificate of occupancy issued to the 1st Respondent was cancelled/revoked. That consequent upon the recommendation of the Sanomi Panel the Appellant applied to the Rivers State Government for the purchase of the property which was approved.

It is based upon these facts that the Lower Court after evaluating the evidence placed before it granted the reliefs sought by the 1st Respondent and dismissed the counter claim of the appellant.

One fact that is beyond dispute is that the certificate of occupancy in respect of the property in dispute was issued to the 1st Respondent. Thus the said 1st Respondent holds the legal right to the exclusion of any other person until the said certificate of occupancy is revoked or set aside.
In GRACE MADU V DR. BETRAM MADU (2008) LPELR-1806 (SC) the Apex Court held thus:
“Once a person is granted a certificate of occupancy over a parcel of land, he is entitled to hold same to the exclusion

of any other person unless and until the certificate of occupancy is set aside. See GANKON V. UGOCHUKWU CHEM. IND LTD. (1993) 6 NWLR (PT.297) 55….“ per ADEREMI JSC.
The evidence of who sold the property in dispute to the 1st Respondent is not in dispute. The 1st Respondent stated that he bought the property from the 5th Respondent. Even D.W.1 a staff of the 5th Respondent confirmed this assertion during his testimony under cross-examination at page 188 of the Records. The main grouse of the Appellant while challenging the issuance of certificate of occupancy (hereinafter to be referred to as Exhibit D) to the 1st Respondent is that he had a prior equitable interest and ought to have been accorded propriety right over the 1st Respondent in the sale of the property in dispute. That he bought the property in dispute from the original government lessee Mr. Ikemefuna in 1979. He made a part payment of N10,000 out of the agreed purchase price of N36,000.00. The learned trial Judge in my view was on FIRMA TERRA when he held that the Exhibit D issued to 1st Respondent was not irregular. Rather, it is Mr. Ikemefuna, the original lessee who was granted

a 20 years lease (1950-1970) that was holding a lease which was irregular despite the fact that he was given an instrument of Release in 1972, (after the expiration of the lease). I agree with the finding by the learned trial Judge that by 1979 when Mr. Ikemefuna purportedly sold the property in dispute to the Appellant, he had nothing to transfer since the lease granted to him had expired. Thus the Appellant did not acquired any legal or equitable interest when he purportedly purchase the expired lease from Mr. Ikemefuna.
Learned counsel to the Appellant in trying to fault the finding by the learned trial Judge cited and quoted the Supreme Court authority of UDE V NWARA (Supra) where the apex court while pronouncing on the legal effect of the expiration of a lease with a subsequent issuance of an instrument (as in this suit) held that the instrument of Release (Exhibit C) is still valid and binding even after the expiration of the lease. That:
“On this ground alone, the Court below should have found that the appellants possession continued. The Court below was therefore, in error to have held that Exhibit C was a useless document.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It is the submission by learned counsel to the Appellant that the Apex Court made the following pronouncements in UDE V NWARA (Supra):
1. That the lessee has the right to remain in possession of the property until the Rivers State Government formally filed an action in the High Court to recover possession, and until possession is so recovered the property cannot be sold to a third party.
2. That even if possession is recovered, it can only be taken away from an individual for public purposes.
I have carefully and painstakingly considered the facts of the suit in GREGORY OBI UDE V CLEMENT NWARA & ANOR (1903) LPELR – 3289 (SC) which was heavily relied upon by the Appellant in his submission. It is my finding that the facts in UDE V NWARA are not on all fours with this suit. In UDE V NWARA (Supra), the Appellant as Plaintiff instituted an action against the respondents as defendants at the Port Harcourt High Court claiming a declaration that he is the owner of the lease hold property situate at No. 2 Ekpeye Street Diobu, Port Harcourt. A declaration that the sale of the said property by the Rivers State Government to the 1st

Respondent is null and void and of no effect, general damages for trespass and perpetual injunction restraining the respondents, their servants or agents from further acts of trespass to the premises. The trial Judge dismissed the appellant’s claim for declaration of title but found for him in his claims for trespass and injunction. The respondent appealed to this Court which allowed the appeal and dismissed the appellant’s claim in its entirety. Dissatisfied with that decision the appellant appealed to the Apex Court.
In its decision, the Supreme Court considered the facts of the appellant/claimant’s case as revealed by his Statement of Claim. That before the Nigeria Civil War, the claimant was granted a lease of a plot of land at No. 2 Umuoji Street, Port Harcourt by the Rivers State Government. The claimant developed the plot through his attorney, one Mr. S. E. Anusionwu, by erecting a story building on it. During the Civil War, the property was treated as abandoned property by the Rivers State Government and managed by the Rivers State Abandoned Property Authority. But after the Civil War, the property was released to him. Through his

Attorney, the appellant managed the property and paid all necessary rates. The original lease was for 7 years. It expired on 31/12/1971. The Rivers State Government promised the Claimant, through his attorney that it will renew the lease. Based on this promise the Claimant developed the property and paid all dues to the Rivers State Government. However in 1983, the 1st defendant came to the premises of the plot in dispute and interfered with the claimant’s possession of the property by harassing the claimant’s tenants, claiming that the Rivers State Government sold the property to him. The Supreme Court in deciding for the claimant deplored the action by the Rivers State Government which gave the claimant the impression that it will renew his 7 years lease, based on which he further developed the property. The Apex Court in allowing the appeal by the claimant based its decision principally on the rule of estoppel by conduct. It held, inter alia, thus:
“By operation of the rule of estoppel a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or, as it is said to approbate and reprobate. He cannot be

allowed to mislead another person into believing in a state of affairs and then turning round to say to that person’s disadvantage that the state of affairs which he had represented does not exist at all or as represented by him…..” Per NNAEMEKA-AGU, JSC at pages 27 – 28.
Upon considering the facts and circumstances in UDE V NWARA (Supra) and the facts and circumstances of the instant suit, it is clear as crystal that the authority of UDE V NWARA (Supra) is not and cannot be binding in this suit. I hereby distinguished same. In UDE V NWARA (Supra), the Supreme Court pronounced that the appellant was paying for utilities like rates and other bills with the full knowledge and consent of the Rivers State Government after the expiration of the lease. In the instant suit, after the expiry of the lease in 1972 neither the original lessee, Mr. Ikemefuna, nor the Appellant paid to the Rivers State Government anything to show they are in possession of the property in dispute neither did they attempt to renew the expired lease rather evidence abound that it is the 1st Respondent that was in possession of the property.

In his submission, the appellant is contending that the Supreme Court decision in UDE V NWARA (Supra) is to the effect that a person whose lease has expired can turn round to sell the expired lease and recover possession. That is not the reasoning of the Apex Court neither is it the spirit of the law.
I also noted that in his counter claim, the appellant did not seek for the setting aside of the 1st Respondent Certificate of Occupancy. Since the Lower Court held that the 1st Respondent Certificate of Occupancy was regularly issued, there is no way it could have turned round to hold same to be irregularly issued since no such relief was sought by the appellant in his counter claim. The law is trite that a Court of law has no power to make an order which has not been asked for and which the person against whom it is made had no opportunity of defending. See A-G FEDERATION V A. I.C. LTD (Supra).
It is my finding that the Lower Court was right by holding that the appellant did not acquire any legal or equitable interest in the property in dispute since the lease had expired when he purchased same. Mr. Ikemefuna purportedly sold to the appellant what he did

not have thus the latin maxim: NEMO DAT QUOD NON HABET (No one can give what he does not have) is applicable in this suit. See ALHAJI SANNI SHUAIBU V J.O. BAKARE (1984) 12 SC 187 at 201; IBRAHIM V OSUNDE (2009) 6 NWLR (PT.1137) 382 at 404; ADELAJA V FANOIKI (1990) 2 NWLR (PT. 131) 137 at 151; FAMUROTI V AGBEKE (1991) 5 NWLR (PT. 189) 1 at 15 and EGBUTA V ONUNA (2007) 10 NWLR (PT.1042) 298 at 316.
It is also my finding that the 1st Respondent adduced evidence during hearing before the Trial Court that he was not given notice of revocation of the certificate of occupancy issued to him by the 5th Respondent. Even D.W.1 under cross-examination stated as follows:
“In the course of my investigation, I found that there was no notice of acquisition by the 3rd Defendant in the file.” (page 189 of the Records).
The 2nd to 5th Respondents did not deny that 1st Respondent was not served with any notice of revocation or acquisition of the property in dispute. The assertion by learned counsel to the 2nd – 5th Respondent in his address that the appearance by the 1st Respondent before the Sanomi panel is enough notice to him that his

certificate of occupancy was revoked flies in the face of the provision of Section 28 (6) and (7) and 44 of the Land Use Act, 1978 which provides specific modes of service of all process.
In NIGERIA ENGINEERING WORKS LIMITED V DENAP LIMITED & ANOR (2001) LPELR – 2002 (SC)the Supreme Court held thus:
The powers of the Governor to revoke any right of occupancy must be exercised in the overriding interest of the public and more importantly the holder of the right of occupancy being revoked must be notified in advance of the revocation. The notice to the holder must state the reason or reasons for the revocation and this will give the holder the opportunity to make any representation he or she wishes to make. Where the notice was not given or notice given was inadequate or not given in compliance with the provisions of the Act, the act of the exercise of revocation under Section 28 of the Act will be null and void…..”
The Apex Court held further that:
“Where proper and adequate notice was given to the holder as required by the Act, his right of occupancy shall be extinguished on receipt of such notice.

See Section 28 (6) and (7) of the Land Use Act. By the provisions of Section 28(6) and (7) of the Land Use Act, notice must be given to the holder before the revocation of his right of occupancy and the service of the notice must be in accordance with the provisions of Section 44 of the said Act.” Per KALGO, JSC pages 30 – 32.
It is my holding that the failure by the 2nd to 5th Respondent to comply with the provisions of Sections 28 (6) and (7) and 44 of the Land Use Act, 1978 renders the revocation of the certificate of occupancy of the 1st Respondent null and void and of no effect. See ODOGWU V ILOMBU (2007) 52 WRN 190 at 194.
This issue is answered in the positive, to wit; the learned trial Judge was right in not holding that the certificate of occupancy issued to the 1st Respondent was irregular, null and void. I resolve the issue against the Appellant.

The second issue formulated by the Appellant is:
As between the 1st Respondent and the Appellant who has a better title to be entitled to a right of occupancy over the land in dispute?

The answer to this issue is contained in my holding in issue 1 above. I held that the

learned trial Judge was right in holding that the certificate of occupancy issued to the 1st Respondent was regular. It logically follow as day follows the night, that the 1st Respondent has a better title to be entitled to a right of occupation over the land in dispute than the appellant. I also held that Mr. Ikemefuna who the appellant claimed transferred title to him had no title to transfer ab initio. The purported purchase of the property in dispute by the appellant from Mr. Ikemefuna is flawed and without foundation since Mr. Ikemefuna’s lease had expired on 18/1/1970. What Mr. Ikemefuna sold to the appellant was what he did not have and the rule is NEMO DAT QUOD NON HABET. Under cross-examination, the appellant confessed that when he bought the property in dispute, he did not know that the lease had expired. He said:
“I know one J.N. Ikemefuna, he also sold the property in dispute to me. By the time the property was sold to me, the lease on the property had expired but I did not know.” (page 199 of the Record).
I agree with learned counsel to the 1st Respondent that a diligent search by the Appellant could have helped him not

to throw away his money. The Apex Court aptly captured the picture when it held in UDE V NWARA (Supra) at page 664 that:
“It must be noted that all interest in land, whether legal or equitable are carved out as it were on a plane of time. Any holder of a particular interest or estate who attempts to sell more than the quantum of his estate will be caught by the maxim “nemo dat quod non habet” (no one can sell what he has not).”
As I stated above, the lease forming the basis of the alleged equitable interest of the Appellant had expired and he derived no interest there unto. I therefore answer issue 2 by stating that as between the 1st Respondent and the Appellant the former has a better title to be entitled to a right of occupancy over the land in dispute. I resolve this issue in favour of the 1st Respondent. It is my finding therefore that this appeal is bereft of merit, it is hereby dismissed. The judgment of the Trial Court delivered on 27th April, 2012 in suit No. PHC/2467/1986 is affirmed. I make no order as to cost.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have had the benefit of reading in draft

the judgment just delivered by my learned brother, Bitrus Gyarazama Sanga, JCA
I agree with his reasoning and conclusion that this appeal is devoid of merit and is accordingly dismissed by me. The judgment of the Trial Court delivered on 27th April, 2012 in suit No. PHC/2467/1986 is also affirmed by me.
I make no order as to costs.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I agree.

Appearances: