NIGERIA CUSTOMS SERVICE BOARD &ANOR V INNOSON NIGERIA LIMITED & ORS
March 28, 2025DAEWOO (NIG) LTD v. MR. MITSHEL ALAMINA & ANOR
March 28, 2025Legalpedia Citation: (2022-01) Legalpedia 70910 (SC)
In the Supreme Court of Nigeria
Abuja
Fri Jan 7, 2022
Suit Number: SC.109/2016
CORAM
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
PARTIES
DR. SHETTIMA BUKAR ABBA
APPELLANTS
1. ALHAJI MUSA ABBA AJI
2. MINISTRY OF LAND AND SURVEY BORNO STATE
3. GOVERNMENT OF BORNO STATE
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, JUDGMENT AND ORDER, LAND LAW, LANDLORD AND TENANT, LAW OF CONTRACT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES
SUMMARY OF FACTS
The appellant herein as plaintiff before the trial High Court Maiduguri filed Suit No. M/76/2005 against the 2nd and 3rd Respondents herein as 1st and 2nd defendants. The 1st Respondent herein was joined as a 3rd defendant at the trial and as a result, the Appellant had to amend his statement of claim and the 2nd and 3rd Respondents equally amended their statement of defence. The 1st respondent filed his statement of defence and counter-claim against the appellant.
The appellant in his amended statement of claim sought the following reliefs:-
1. A declaration that the purported revocation of the plaintiff’s certificate of occupancy No: BO/41496 over the property (Government Quarters) known as No: 24 Benue Road, Old GRA, Maiduguri as contained in the letter reference BO/41496 of 7/7/2005 is a violation of the plaintiff’s right which is enshrined under Section 44 of the Constitution of the Federal Republic of Nigeria, and same is null and void and of no legal effect.
2. A declaration that the plaintiff is still the holder of the certificate of occupancy No: BO/41496 over all that Government Quarters known as No. 24 Benue Road, old GRA Maiduguri granted on 23rd October, 2002 and registered on 7th November, 2002 as No. 679 at page 679 in Volume 21 at the Lands registry Maiduguri.
3. A declaration that the purported sale of house No. 24 Benue Road, Old GRA, Maiduguri to the 3rd defendant by the 1st and 2nd defendants and their representatives vide a letter of 7/7/2005 and Deed of Assignment of 20th July, 2005 is null, void, ultra vires and of no legal effect.
4. An order of injunction restraining the 1st, 2nd and 3rd defendants jointly and severally by themselves, agents, servants, privies, representatives and/or assigns from removing and/or evicting the plaintiff from the Government Quarters known as No. 24 Benue Road, Old GRA, Maiduguri, covered by the certificate of occupancy No: BO/41496 registered as No. 679 at page 679 in Volume 21 at the Land Registry, Maiduguri.
5. The cost of this suit.
After the exchange of pleadings and a full trial, the learned trial judge delivered his judgment on 6/11/2021 and granted all the reliefs sought by the appellant herein and dismissed the 1st respondent’s counter-claim.
The facts leading to this appeal are thus:-
The 3rd Respondent owned a landed property known as government quarters situated at No. 24 Benue Road, Old GRA Maiduguri, which is the property in dispute.
The Borno State Government which is the 3rd Respondent herein allocated to 1st Respondent the said government quarters in 1983 being a civil servant of the 3rd respondent and the 1st respondent continued to be in occupation up to 2003 as his rent was being deducted from his salary up to 2003.
Much earlier than the year, 2002, the 3rd respondent introduced a policy though not formally, whereby Civil Servants occupying various government quarters in the GRA and other places in Maiduguri were given the right to apply for the purchase of the Government Quarters. The policy is known as OWNER OCCUPIER. This is strictly on owner-occupier basis. In other words, anyone who is not in occupation of government quarters is not eligible to benefit under the policy.
This policy was received with great joy by the civil servants in the state since the policy is aimed at making them own the houses occupied by them, but to some their joy was short lived because the policy was not formally introduced rather it was a sort of experiment which was hijacked and abused by some influential citizens of the state. Those influential citizens benefited from the policy even though they were not occupants of the quarters thereby depriving those eligible to benefit in accordance with the policy.
The side of the story of the 1st respondent is that he was one of those who happened to be the victim of the policy that was hijacked as he was denied the opportunity to buy the quarters he was in occupation since 1983 up to 2003, until 2005 when the government intervened and revoked the sale of the houses to those influential citizens and sold same to those legally to benefit in accordance with the owner-occupier policy.
The way 1st respondent was deprived from buying the house in accordance with the policy of the owner-occupier in 2002 are as follows:
(a) The 1st respondent who was in occupation of the quarters situated at No. 24 Benue Road old GRA, Maiduguri, since 1983, and having heard of the Government policy on disposing of its quarters to its civil servant, known as owner-occupier, applied to 3rd respondent for the purchase of the quarters on 20/5/2002.
(b) Pursuant to this policy the appellant who was the Secretary to the State Government, also applied on 10/9/2002 to the 3rd respondent for the purchase of the Government Quarters No. 24 Benue Road, old GRA, Maiduguri, despite the fact that 1st respondent was still in occupation of the house as a civil servant of Borno State Government at the time.
(C) Appellant’s application was processed and approved on 11/9/2002 by the Governor and as such the said government quarter was sold to him by the 3rd respondent. Consequent to which a grant and/or a statutory right of occupancy No: BO/41496 was issued to him by the 3rd respondent, thereby making him the holder of the certificate of occupancy No: BO/41496 over the said government quarters No: 24 Benue Road, Old GRA, Maiduguri,
(d) In spite of the fact the 1st Respondent’s application was on 20/5/2002, his application was first in time and much earlier than that of the appellant which was dated 10/9/2002, the 1st respondent’s application was ignored and received no attention, instead the Appellant being the Secretary to the State Government (SSG) his application was treated and approved even though, appellant never occupied the house at any given time as a precondition for applying for the house.
(e) In order for the Appellant to get his application processed and approved, he misrepresented facts concerning the state of the house to the approving authority, the Governor, and based on these misrepresented facts that the house was vacant and that 1st Respondent did not apply for the purchase of the house, the Governor approved the sale of the house to the Appellant who was not entitled to same based on government policy of selling its house to only occupant.
This mistake of selling an occupied government quarters by civil servants to non-occupants due to abuse of the policy which was hijacked by influential individuals in government did not affect only the 1st respondent as there were many other civil servants occupying government quarters who were denied the right to buy the quarters being occupied by them.
Consequent to the above, several complaints were received by the 3rd respondent from those who were denied the right to purchase the house they were in occupation of based on the policy of government.
A committee was set up by the government known as Transition Committee and part of the committee’s mandate was to look into the complaints concerning the manner in which the government quarters were sold and to make appropriate recommendation to the 3rd respondent. The committee discovered that the complaints were genuine and appropriate. The committee recommended to the 3rd Respondent that all those who benefited
under the policy of the owner-occupier but were not entitled to, because they were not in occupation of the houses at the time the houses were sold, the sale of such houses be revoked.
Government accepted the recommendation and revoked the sale of the property to the appellant, and sold same to the 1st respondent who is entitled to buy the house because he was the occupant of the house in accordance with the government policy.
Appellant was aggrieved that his right of occupancy was revoked not in accordance with the law or for just cause even though the revocation was to correct the mistake made in selling the property to him which he was not entitled to.
Thus appellant filed the suit at the High Court of Justice, Maiduguri to challenge the revocation as being null and void for non-compliance with the law. The 1st respondent aggrieved with the decision appealed to the Court below which set aside the judgment of the trial Court and dissatisfied, the appellant has come before the Supreme Court.
At the hearing on the 11/10/2021, learned counsel for the appellant, M.E. Oru Esq., adopted the brief of argument filed on 20/5/2020 and deemed filed on 17/11/2020. In the brief were identified five issues for determination, viz:-
(i) Whether the lower Court was right to hold that he 1st Respondent having been in occupation/possession of the property in dispute at the behest of the Borno State Government since 1983, it was deemed as if a statutory right of occupancy had been issued by the Governor under Section 34 (2) (3) and (4) of the Land Use Act 1978. (distilled from Ground 2).
(ii) Whether or not the lower Court was right to hold that the revocation of the appellant’s certificate of occupancy over No.24 Benue Road Old G.R.A Maiduguri on 7/7/2005 and re-allocation of same to the 1st Respondent on the same 7/7/2005 was lawful and governed by Section 9 (1) (a) (3) of the Land Use Act, 1978 and not under Sections 28, 44 and 51 (1) of the said Act and the said revocation does not require notice under Section 44 of the said Land Use Act (distilled from Grounds numbers 4 and 5).
(iii) Whether the lower Court was right to hold that the statutory right of occupancy granted to the 1st Respondent by the Governor of Borno State automatically extinguished the Appellant’s Certificate of
Occupancy No. BO/4149 earlier granted to Appellant in 2002 in respect of No. 24 Benue Road, Old G.R.A Maiduguri Borno State under Section 5 (1) of the Land Use Act, 1978. (distilled from Ground No. 6).
(iv) Whether from the evidence on the printed record, the lower Court was right when it held that there was misrepresentation by the Appellant that the property in dispute was vacant and that the said property was sold to the Appellant under the Borno State owner-occupier policy. (distilled from Grounds 1 and 3).
(v) Whether or not from the evidence on printed record, the 1st Respondent proved his counter-claim to be entitled to the invocation by the lower Court of its powers under Section 15 of the Court of Appeal Act, 2004 as amended to grant the relief in the 1st Respondent’s counter-claim. (distilled from Ground No. 7).
1st respondent’s brief, learned counsel P.A. Bello Esq., contended along the following lines:
1. The Borno State Government introduced a policy to sell its quarters to civil servants in 2002. The quarters were to be sold only to occupants who were officially allocated same for residential purpose.
2. The 1st respondent was the person that occupied house No, 24, Benue Street, Old G.R.A, Maiduguri, the house in dispute in this case. He was allocated same in 1983 as his official quarters and he was paying rents thereon until 2002.
3. The appellant had never occupied the said quarters and was therefore not entitled to apply to purchase the quarters. But in 2003, the quarters was irregularly sold to him on a false representation that the house was vacant and no one applied to buy same. He was thereafter issued with a Certificate of Occupancy.
4. Based on a series of petitions to the Government over irregularities in the sale of the quarters to some persons other than the occupants, the Borno State Government set up a committee to investigate the allegations after which the committee recommended that all the quarters sold to non-occupants be revoked
5. 1st respondent has shown that the said revocation was validly carried out based on the irregularities in the sale of the house to the appellant.
6. 1st respondent has shown that the revocation of the certificate of occupancy was not the type contemplated by Section 28 of the Land Use Act, 1978 and
therefore no strict compliance with the procedure was necessary.
7. We have submitted that the findings of the lower Court on the evidence in record to sustain its judgment were unassailable as the trial Court failed to either make any findings on issues legitimately raised by the parties, or did not make correct findings at all.
He relied on many judicial authorities and I shall cite a few:
1. Ajaokuta Steel Company Ltd v. Greenbay Investment and Security Ltd (2020) All FWLR (pt. 1035) 152
2 Mogaji v. Odofin (1978) 4 SC 19
3. CBN v. Aribo (2018) All FWRL (pt. 925) 93 at 124
4. Edosomwan v. Ogbeyfun (1996) 4 SCNJ 21 at 36
5. Afegbai v. A.G. Edo State (2001) 7 SCNJ 438 at 447
6. Ontario Oil & Gas Ltd v FRN (2018) All FWLR (pt. 963) 1743 at 1779
7. Bankole v. Pelu (1991) 8 NWLR (pt. 211) 523
8. Saude v. Abdullahi (1989) 7 SCNJ 216
9. Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 688 at 718-719
10. Galadima v. State (2018) FWLR (pt.944) 663 at 701.
Learned counsel for the 2nd and 3rd respondents, G.M. Chibok Esq., who is also the Director Civil Litigation of the Ministry of Justice, Borno State, adopted the brief of argument prepared by K.S. Lawan Esq., the Attorney General, Borno State and filed on 18/1/2021 and deemed filed on 11/10/2021. He equally adopted the issues framed by the appellant.
I shall utilize the five issues donated by the appellant for convenience and ease of reference.
Learned counsel for the appellant contended along the following lines:
1. One Governor (Alhaji Mala Kachallah) granted a statutory right of occupancy to the Appellant in 2002 before the coming into existence of the owner-occupier policy by the same Government. Another Governor (Senator Ali Modu Sheriff) comes in thereafter and without initial notice to revoke and without fair hearing purports to revoke the Appellant’s title albeit on the premise that it was based on the recommendations of the transition committee on disposal of Government Quarters to civil servants on owner – occupier policy of Government which came into being on 11/1/2003. That policy cannot and did not affect the earlier grant of certificate of occupancy to the appellant in 2002.
2. No right of occupancy can be revoked except in accordance with Section 28 of the Land Use Act 1978 and any such revocation, such as the one in this case is unlawful, invalid, null and void. The revocation was not for public purpose or any purpose cognizable under the Act.
3. In the hurry to revoke the appellant’s title, 2nd and 3rd Respondents threw caution to the winds – they refused to give the appellant notice of intention to revoke his title, they failed to accord him fair hearing and further still, the same day of the issuance of the letter of revocation, the same property was purportedly sold to the 1st Respondent.
4. There was no reason in law for the Court below to hold that the revocation need not be under Section 28 of the Land Use Act and that there was no need to give proper notice or accord the appellant a fair hearing or a hearing at all before the revocation.
5. The trial Court made correct and proper findings and conclusions based on proved facts and the position of the law (See pages 147-158 of the Record).
6. There was no basis in law and on proved facts on the printed record for the Court below to make inferences and conclusions that led to setting aside
the judgment of the trial Court and holding that the revocation of the appellant’s statutory right of occupancy was proper.
7. Furthermore, there was no basis in law and on the proved facts as shown in the record for the Court below to hold that the 1st Respondent proved his counter-claim and the subsequent invocation of Section 15 of the Court of Appeal Act, 2004 to grant the reliefs in the counter-claim.
8. Learned counsel submitted that the inferences, findings and conclusions of the Court below are not supported by the admitted facts on the printed records and the solid and established position of the substantive and adjectival law. The judgment of the Court below would have been different had these issues been properly considered. These, he submitted have occasioned grave and substantial miscarriage of justice against the Appellant and this Court is in a position to interfere with same and set aside the inferences, conclusions, and decisions of the Court below.
9. On the above premises, learned counsel urged the Court to allow the appeal, set aside the judgment of the Court below and affirm the judgment of the trial Court.
He referred to numerous judicial authorities such as the following:-
1. The Appraiser v. Nigerian Railway Corporation (1964) 3 NSVV 45 at 50-51.
2. S.O. Adole v. Boniface B. Gwar (2008) 11 NWLR (pt. 1099) 562 at 586 – 587.
3. First Bank of Nigeria Plc v. Maiwada (2013) 6 NWLR (pt. 1348) 444 at 483.
4. Ibrahim v. Barde (1996) 9 NWLR (pt. 474) 513 at 577.
5. Joshua Oto & Ors v. J.M. Adojo (2003) 7 NWLR (pt.820) 636 at 668.
6. Salu v. Egeibon (1994)6 NWLR (pt.348) 34 at 44.
7. Agbabiaka v. Saibu (1998) 10 NWLR (pt. 571) 534 at 546.
8. Chief Frank Ebba v. Chief Warri Ogodo (1984) 1 SC NLR 372 at 388.
9. Micheal Sunday Oroja & Ors v. Ebenzer Adeniyi & Ors (2017) 6 NWLR (pt. 1560) 138 at 158 etc
Learned counsel for the 2nd and 3rd respondents submitted on opposite directions to those of the appellant, thus:-
1. Government of Borno State (3rd respondent) much earlier than the year, 2003 introduced in an informal way, as an experiment, a policy of selling its houses occupied by the civil servant. However, in the year, 2003, it was formally introduced, when a committee was formally set up to carry on with the full implementation of the policy.
2. The 1st respondent was allocated the house in dispute since 1983 as a civil servant of Borno State Government. He was paying his rent up to the year 2003 to the 3td respondent the owner of the house.
3. Pursuant to the policy stated above, being an occupant of the house he applied to the 3rd respondent for the house to be sold to him. While his application was pending, the appellant also applied for the same house.
4. Appellant being the Secretary to the State Government his application was considered and approved and the house was sold to him. The 1st Respondent’s application was sidelined.
5. Not only was the 1st respondent denied the right of buying the house, he was in occupation of but other civil servants were affected and these civil servants complained on this injustice meted out to them by some influential citizens of the state who hijacked the policy to their own benefit.
6. Their complaints had merits and were treated by the committee set up by the 3rd respondent. The committee recommended to the 3rd respondent that all sales of government quarters to non-occupants be
revoked and the occupant be given the option to buy based on the policy of government in selling of its houses to only the occupants.
7. This recommendation affected the appellant in that his right of occupancy granted him by mistake was revoked. Thus the revocation of appellant’s right of occupancy was not based on Section 28 of the Land Use Act.
8. Thus the findings and conclusion reached by the Court below in its judgment that the revocation was proper and it stands that there was no need to be interfered with for it was based on the facts of this case that the grant to the appellant was made under mistake. The granting of the counter-claim of the 1st respondent was also proper.
9. Finally, not all slips or errors in a judgment can lead to setting aside the judgment on appeal. The Court is urged to dismiss the appeal and uphold the decision of the Court below.
He referred to the cases of:
1. Kari v. Ganaram (1997) 2 NWLR (pt. 488) 380 at 400.
2. Saude v. Abdullahi (1989)7 SCNJ 216.
3. Chukwuma v. Federal Republic of Nigeria (2011) 5 MJSC (pt. 11) 1 at 37-38.
4. Akomolafe v. Guardian Newspaper Ltd (2010) 1 MJSC (pt. 1) 93 at 105.
The 1st respondent had raised and argued a Preliminary Objection challenging the competence of grounds 1, 3 and 7 of the grounds of appeal and issues nos (i), (iii) and (iv) distilled from the said grounds in the appellant’s brief of argument.
Its argument stemmed from the provisions of Section 233 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as the said grounds 1, 3 and 7 are grounds of fact or mixed law and facts and appellant did not first seek leave and obtain the leave of the lower Court or the Supreme Court before filing them and so should be struck out. He cited judicial authorities in support of the position.
Learned counsel for the appellant disagreed, contending that the said grounds were of law and there was no need seeking and obtaining leave before filing of the grounds of appeal.
Clearly, what is in contention in this Preliminary Objection are with regard to grounds 1, 3 and 7 and issues iv and v formulated therefrom. The effect on the face of it is that whatever comes out of the determination of the objection would sustain the appeal. In the situation that the position above has brought up, this Court has currently been with the policy that it would not waste the time of Court piece meal entering and determining the competence of individual grounds of appeal where the remaining grounds would support the appeal. Therefore I would strike out this objection so as to go into the meat of the matter, which is the very competent appeal on which disputes have arisen. Therefore this objection is hereby struck out.
HELD
Appeal dismissed
ISSUES
ISSUES FOR DETERMINATION ON THE MAIN APPEAL
1. Having regard to the facts pleaded and the established evidence on the printed record, can the Court of Appeal be faulted in its findings that the policy of the government of Borno State was to sell government quarters to Civil Servants including the 1st respondent on “owner Occupier” bases?
2. From the facts pleaded and the evidence led thereon, can the Court of Appeal be faulted when it found that the Certificate of Occupancy granted to the appellant was vitiated by misrepresentation of facts?
3. Whether or not the Court of Appeal can be faulted in its findings that the revocation of the appellant’s Certificate of Occupancy over house No. 24, Benue Road, Old G.R.A, Maiduguri and the re-allocation of same to the 1st respondent was lawful for the fact that the provisions of Sections 28, 44 and 51(1) of the Land Use Act 1978 were inapplicable to the facts of this case?
4. Whether the findings of the lower Court to the effect that the 1st respondent was deemed to have been granted a statutory right of occupancy by the Governor of Borno State, which automatically extinguishes the appellant’s Certificate of Occupancy, occasioned a miscarriage of justice that is capable of upturning its entire judgment.
5. Whether having regard to the facts and circumstances of this case, the Court of Appeal was in error when it granted the relief claimed by the 1st respondent in his counter-claim.
RATIONES DECIDENDI
APPEAL, COURT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
FINDINGS OF COURT – WHETHER AN APPELLATE COURT HAS UNFETTERED POWERS TO MAKE ITS FINDINGS ON AN ISSUE WHERE THE TRIAL COURT FAILS TO CONSIDER THE EVIDENCE AND MAKE PROPER FINDINGS
“It is difficult to fault the findings of the Court below as they were based on available evidence on record which the learned trial Judge failed to take into consideration and attach the requisite probative value thereto. It is to be said that when a trial Court fails in its duty to consider evidence on material issue and make proper resolution, an Appellate Court always have the unfettered power to rise to the occasion and make its findings on the issue. See CBN V. Aribo (2018) ALL FWLR (PT. 925) 93 at 124, Yesufu V. Adama (2010) ALL FWLR (PT. 524) 69, Teriba Vs. Adeyemo (2010) ALL FWLR (PT.533) 1868 AT 1880, Akintola Vs. Balogun (2000) 1 NWLR (PT. 642) 532, Begha Vs. Tiza (2000) 4 NWLR (PT. 652) 193 and Akpule V. Agbeotu (1999) 9 NWLR (PT.621) 107”. PER M. U. PETER-ODILI, JSC
LAW OF EVIDENCE, COURT, PRACTICE AND PROCEDURE
ADMISSION AGAINST INTEREST – WHETHER AN ADMISSION AGAINST INTEREST CAN BE RELIED ON BY THE COURT
“Those pieces of evidence are crucial because they were adduced by the witnesses called by the appellant himself which can be regarded as admission against interest and which the learned Justices of the Court of Appeal relied on in finding against the appellant. Edosomwan V. Ogbeyfun (1996) 4 SCNJ 21 AT 36. In the case of Odi V. Iyala (2004) 4 SCNJ 35 AT PAGE 53, Niki Tobi JSC stated thus:
“I cannot see better evidence against a party than one from a witness called by him who gave evidence contrary to the case of that party. This is because the party is calling the witness to testify in favour of his case as pleaded in his pleading. If the party knows these the witness will not give evidence in his favour he will never call him …” – PER M. U. PETER-ODILI, JSC
WORDS AND PHRASES
MISREPRESENTATION -DEFINITION OF MISREPRESENTATION
“The definition of misrepresentation would be of assistance here that is from Black’s Law Dictionary 9th Edition at page 1091 thus:
“The act of making a false or misleading assertion about something usually with the intent to deceive, the words denotes not just written or spoken words but also any other conducts that amounts to a false assertion. (2) The assertion so made; an assertion that does not accord with the facts – also termed false representation …” – PER M. U. PETER-ODILI, JSC
LAW OF CONTRACT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
MISREPRESENTATION – WAYS OF PROVING MISREPRESENTATION
“Going by the above definition, a person is said to make a misrepresentation, if he makes an assertion which is false or misleading about something. In the case of Afegbai V. A.G. Edo State (2001) 7 SCNJ Page 438 AT 447, this Court held that whether there is misrepresentation, it is a question of fact and that misrepresentation can be proved in the following manner:- “First, the representation must be a statement of existing fact. Secondly, the representation must be material and unambiguous. Thirdly, the representee must show that he has acted in reliance on the misrepresentation.”
– PER M. U. PETER-ODILI, JSC
LAW OF EVIDENCE
UNCHALLENGED EVIDENCE – STATUS OF UNCHALLENGED EVIDENCE
“Those pieces of evidence were not challenged nor contradicted under cross-examination. The lower Court was entitled to rely on the evidence as the correct version of what the witness said. See American Cyanamid v. Vitality Pharm Ltd (1991) 2 NWLR (pt. 171) 15 at 28 and Bua v. Dauda (2003) 6 SCNJ 219 at 242. PER M. U. PETER-ODILI, JSC
APPEAL, PRACTICE AND PROCEDURE
APPEAL – WHETHER AN APPEAL CAN BE AGAINST AN OBITER DICTUM
“An appeal cannot be against an obiter dictum or a passing remark or opinion of the Court neither can there be an appeal on a finding made by a Court which does not have any bearing on the final order made by the Court. See Ontario Oil Gas Ltd V. FRN (2018) ALL FWLR (PT.963) 1743 at 1779, Sylva V. INEC (2017) ALL FWLR (PT. 875) 1988 AT 2019 – 2020, Metal Construction (Wa.) Ltd V. Migliore (1990) 1 NWLR (PT.126) 299, Egbe V. Adefarasin (1987) 1 NWLR (PT. 47) and Atoyebi V. Governor Oyo State (1994) 5 NWLR (PT. 344) 290. PER M. U. PETER-ODILI, JSC
JUDGMENT AND ORDER
ERROR IN A JUDGMENT – WHETHER EVERY ERROR IN A JUDGMENT WARRANTS THE SETTING ASIDE OF SAME
“It is not every error in a judgment, if any, that leads to that judgment being set aside when no injustice has been meted out. Bankole V. Pelu (1991) 8 NWLR (PT. 211) 523, Amayo V. Erinmwingbovo (2006) all FWLR (pt. 318) 612, (2006) 11 NWLR (PT.992) 699, Ontario Oil and Gas Ltd V. FRN (supra) at P. 1779. PER M. U. PETER-ODILI, JSC
LAW OF EVIDENCE
PLEADINGS – PARTIES ARE BOUND BY THEIR PLEADINGS
“The law is trite that parties are bound by their pleadings, the appellant cannot turn round and allege on appeal that there is no evidence that the house in dispute was granted to the 1st respondent, when that was the case he set out from the onset. The appellant cannot be allowed to set out a case at the trial Court and change course on appeal. He cannot approbate and reprobate at the same time. See Alhassan V. Ishaku (2017) ALL FWLR (PT. 866) 209 AT 300, Okpala & Sons v. Nig. Breweries Ltd (2018) All FWLR (pt. 928) 1 at 15, Nwokoro v. Nwogu (2009) All FWLR (pt. 476) 1868 and Osuji v. Ekeocha (2009) All FWLR (pt. 490) 614. PER M. U. PETER-ODILI, JSC
LAW OF CONTRACT
MISREPRESENTATION – EFFECT OF MISREPRESENTATION
“The effect of misrepresentation on the sale of the house to the appellant was to render same voidable at the election of the 1st and 2nd respondents. In other words they were entitled to rescind the sale agreement and terminate same forthwith. Afegbai V. A.G. Edo State (SUPRA) At Page 447. PER M. U. PETER-ODILI, JSC
LAND LAW
CERTIFICATE OF OCCUPANCY – GRANT OF A CERTIFICATE OF OCCUPANCY – WHETHER A GOVERNOR HAS INHERENT POWERS TO REVOKE OR CANCEL A CERTIFICATE OF OCCUPANCY
“Section 9(1) (a) provides as follows:-
“9(1) It shall be lawful for the Governor
(a) When granting a statutory right of occupancy to any person, or
(b) …
(c) …
To issue a certificate under his hand in evidence of such right of occupancy.
(2) Such certificate shall be termed a Certificate of Occupancy …”
By Section 1 of the Land Use Act, all land in the territory of the state are vested in the Governor of the State. He held the land in trust for the common benefit of all Nigerian. Section 5(1) of the Act makes it lawful for the Governor to grant statutory right of occupancy to any person.
In the exercise of the statutory powers mentioned above, occasions may arise where the Governor is misled into granting the right of occupancy and issuance of a Certificate of Occupancy to a wrong person or the Governor may discover that the Certificate of Occupancy issued were carried out irregularly through inducement, fraud, concealment or misrepresentation as in this case, the Governor cannot fold its arms and allow these vitiating vices to be perpetrated over the land he holds in trust for the benefit of all Nigerians and allow the certificate to stand.
I have to say at this point that even though there is no specific provision in the Land Use Act for a happening such as presented in the case at hand, it has to be stated that the Governor has the inherent power to revisit the grant and the issuance of the Certificate of Occupancy with a view to correcting the anomaly, this would include revocation or cancellation of the Certificate of Occupancy. I say so as it is sequel to the inherent powers of the Governor in keeping with the very nature by the powers vested on him by Sections 1(1), 5 (1) and 9 of the Land Use Act for the purpose of sustaining the spirit and intendment of the Act. . PER M. U. PETER-ODILI, JSC
WORDS AND PHRASES, LAND LAW
“HOLDER” – DEFINITION OF “HOLDER” UNDER THE LAND USE ACT
Section 51(1) of the Land Use Act defines “holder” as:
“In relation to a right of occupancy means a person entitled to right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgage, sub-lessee or sub-under lessees. ” (Underlining mine)
PER M. U. PETER-ODILI, JSC
LAW OF EVIDENCE
FACT IN ISSUE – WHEN CAN A PARTICULAR FACT BE SAID TO BE IN ISSUE?
“This Court held in the case of Galadima V. State (2018) ALL FWLR (PT.944) 663 AT 701 that: “A particular fact can only be said to be in issue when its assertion by a party is denied by the other and it becomes a fact in dispute. So, an issue is said to be joined on a particular fact making its proof necessary when it is (sic) assertion is disputed by the opposing party. See Mohammed & Anor V. State (2007) ALL FWLR (PT. 366) 668 …” PER M. U. PETER-ODILI, JSC
LAW OF EVIDENCE
PLEADINGS – IMPORTANCE OF PLEADINGS
“In a civil case, pleadings play a very important role in circumscribing and defining the issues in controversy between the parties. In the case of Okpala & Sons V. Nig. Breweries Ltd. (2018) ALL FWLR (PT. 928) 1 AT 15, this Court held that:-
“Pleading is formal document in which a party to a legal proceeding, especially in a civil lawsuit, sets forth or responds to allegations, claims, denials, or defence. It consists of the plaintiff’s complaint and the defendant’s answer. The essence of pleading is to compel the parties to define accurately and precisely the issues upon which the case is to be contested to avoid elements of surprise by either party. Parties are not allowed to adduce evidence which goes outside the facts pleaded.”
– PER M. U. PETER-ODILI, JSC
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
PROOF – WHETHER FACTS NOT IN ISSUE REQUIRES FURTHER PROOF
“The law is well settled with due respect that what is not in issue needs no further proof. See F.U.T. Minna V. Olutayo (2018) ALL FWLR (PT. 935) 1255 AT 12 79. To this effect therefore there was no legal obligation for the 1st respondent to tender the Deed of Assignment executed between him and the Government of Borno State to prove his counter-claim, what he needed to prove was the validity of the sale and the execution of the Deed of Assignment in his favour and that was the purpose of relief No.3 (2) of his counter-claim”. PER M. U. PETER-ODILI, JSC
LANDLORD AND TENANT
TITLE TO A PROPERTY – WHETHER TWO VALID TITLES CAN CO-EXIST SIMULTANEOUSLY OVER THE SAME PROPERTY
“The law is trite that two valid titles cannot co-exist simultaneously over the same property. PER E. EKO, J.S.C
CASES CITED
1. Ajaokuta Steel Company Ltd v. Greenbay Investment and Security Ltd (2020) All FWLR (pt. 1035) 152
2 Mogaji v. Odofin (1978) 4 SC 19
3. CBN v. Aribo (2018) All FWRL (pt. 925) 93 at 124
4. Edosomwan v. Ogbeyfun (1996) 4 SCNJ 21 at 36
5. Afegbai v. A.G. Edo State (2001) 7 SCNJ 438 at 447
6. Ontario Oil & Gas Ltd v FRN (2018) All FWLR (pt. 963) 1743 at 1779
7. Bankole v. Pelu (1991) 8 NWLR (pt. 211) 523
8. Saude v. Abdullahi (1989) 7 SCNJ 216
9. Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 688 at 718-719
10. Galadima v. State (2018) FWLR (pt.944) 663 at 701.
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 (as amended)
Land Use Act, 1978
