Legalpedia Electronic Citation: LER [2018]SC. 297/200

AREAS OF LAW:

Appeal, Court, Interpretation Of Statutes, Land Law, Practice And Procedure

SUMMARY OF FACTS

The Plaintiff/Respondent instituted an action at the Anambra State High Court, contending that in 1990, the Anambra State Government allocated the land in dispute known as “Plot X”, situate between Plots 16 and 18 Ridge Road, to it and same was confirmed by the issuance of a Certificate of Occupancy dated 27/8/1991, registered at the Lands Registry, in Awka. The Defendant/Appellant also claimed that it was vested with the same plot at No. 18 before the commencement of the Land Use Act, 1978; hence the provisions of its Section 34 are relevant for the proper interpretation of Section 5(2) of the said Act which provides thus; “Upon a grant of a statutory right of occupancy under the provisions of sub-section one of this Section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished” . The learned trial judge in its considered judgment held that Plot X granted to the Plaintiff was carved out of Plot 18 for which the Defendant are by virtue of Section 34(2) of the Land Use Act 1978, deemed to be occupiers under statutory grant, being an urban area and having been in possession since 1973, before the coming into effect of the Land Use Act. Hence, the grant to the Plaintiff extinguished the rights of the Defendant. The Defendant/Appellant appealed to the Court of Appeal, while the Respondent was granted leave to raise and incorporate its preliminary Objection to the hearing of the appeal. The grounds upon which the preliminary objection was raised are that; the appeal has been overtaken by events and the court is presented with fait accompli, that the proceeding is an abuse of court process; the acts of the Appellant and the process of appeal is overreaching, estoppel by election and estoppel by conduct. The lower court dismissed the preliminary objection and the appeal. Dissatisfied with the decision of the Court of appeal, the Appellant filed a Notice of Appeal while the Respondent filed a cross appeal with respect to the part of the decision refusing to accede to the preliminary objection challenging the appeal.

 

 

HELD

Appeal Allowed, Cross Appeal Struck Out

ISSUE FOR DETERMINATION

Whether the provisions of Section 5(2) of the Land Use Act, 1978, operates to extinguish a statutory right of occupancy, deemed granted under Section 34 of the same Land Use Act, which provides –

1. The following provisions of this Section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act.
2. Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act

 

RATIONES

RIGHT OF APPEAL – NATURE OF THE RIGHT OF APPEAL OF AN APPELLANT

“The Appellant’s right of appeal is circumscribed within the parameters of a decision appealed against because an appeal is an invitation to a higher Court to review the decision of a lower Court to find out whether on proper consideration of facts placed before it and applicable laws that Court arrived at a correct decision – see Oredoyin V. Arowolo (1987) 3 NWLR (Pt 114) 171. Thus, it is the opinion of a lower Court appealed against that is affirmed or reversed by a higher Court -see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430”. PER A.A.AUGIE, J.S.C

 STATUTORY PROVISIONS – PRINCIPLES GOVERNING THE INTERPRETATION OF STATUTORY PROVISIONS

“As both Parties rightly submitted, it is well settled that statutory terms must not be interpreted in isolation but must be interpreted in the context of the whole statute in a manner, most harmonious with its scheme, and general purpose – see Nobis-Elendu V. INEC (2015)LPELR-25?27-(SC), and Mobil Oil Plc. V. IAL 36 Inc. US (2000) 6 NWLR (Pt. 659) 146 at 168, wherein Karibi-Whyte, JSC, explained that:

It is an elementary principle and fundamental to the construction of the provisions of any statute to read the sections as a whole to enable the interpreter to gather the collective sense of the provisions. Where the subject matter construed concerns other sections of the same statute, all the related provisions must be read, considered and construed together as forming a composite whole. It is imperative – – to read together all the sections and paragraphs. This is so, because the sub-sections or sub-paragraphs may be and are necessarily complimentary to and explain the meaning and scope of the main section or paragraph. The meaning of a section may be controlled by other individual sections or sub-sections of the same Act.

• PER A.A.AUGIE, J.S.C

STATUTORY INTERPRETATION – BASIC RULES OF STATUTORY INTERPRETATION

“There are also three basic rules of statutory interpretation – the Literal Rule is the first Rule applied by Judges. Here, Judges rely on the exact wording of a statute for the case. They will be read literally and the Judges will take the ordinary and natural meaning of a word and apply it, even if doing so, creates an absurd result.

The next Rule is the Golden Rule, which is a modification of the Literal Rule, to be used to avoid an absurd outcome. It is used where the Literal Rule produces a result, where lawmakers’ intention would be circumvented, rather than applied. This Rule was defined by Lord Wensleydale in Grey v. Pearson’s Case (1857) as:

The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the Instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but no farther.

The last Rule is the Mischief Rule, which gives Judges the most discretion of all, and it is intended to rectify “mischief in the statute and interprete the statute justly.

The four principles to follow were expressed in Heydon’s Case (1584) as follows:

1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth?
4. The true reason of the remedy; and then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy

In addition to these three rules of statutory interpretation, there are other rules that are held to apply when determining the meaning of a statute, and these include:

1. The statute is presumed not to bind the Constitution;
2. Statutes do not operate retrospectively in respect to substantive law (as opposed to procedural law); – see transleoal.com.
3. They do not interfere with legal rights already vested;
4. They do not oust the jurisdiction of the Courts; and
5. They do not detract from constitutional law or international law- see transleoal.com. PER A.A.AUGIE, J.S.C

RIGHTS OF OCCUPANCY – CLASSIFICATION OF RIGHTS OF OCCUPANCY UNDER THE LAND USE ACT

“As Appellant submitted, there are different rights of occupancy introduced by the Land Use Act1978 – the statutory right of occupancy granted by the State Government and Customary right of Occupancy granted by the Local Government

– see Provost, L.S.C.E. V. Edun (supra), wherein Iguh, JSC, stated as follows –

There is firstly the statutory right of occupancy granted by a State Governor pursuant to Section 5(1)(a) of the Act and the customary right of occupancy granted by a Local Government under section 6(1)(a) of the Act. The second classification is the statutory right of occupancy deemed to have been granted by a State Governor pursuant to Section 34(2) of the Act as against the customary right of occupancy deemed to have been granted by a Local Government under section 36(2). There, therefore, exist in both cases of statutory and customary rights of occupancy, actual grant as well as deemed grant. An actual grant is naturally a grant expressly made by the Governor of a State or by a Local Government whilst a deemed grant came into existence automatically by the operation of law.

• PER A.A.AUGIE, J.S.C

LAND USE ACT – MODE OF ADMINISTRATION OF DEVELOPED AND UNDEVELOPED LAND IN URBAN AREAS UNDER THE LAND USE ACT

“The Land Use Act makes specific provisions with regard to land in an urban area, land in a non-urban area, land that is developed, and land that is undeveloped.

Section 34 of the Land Use Act dealing with land in an urban area, provides thus:

1. The following provisions of this Section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act.
2. Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act.
3. In respect of land to which subsection (2) of this section applies there shall be issued by the Governor on application to him in the prescribed form a certificate of occupancy if the Governor is satisfied that the land was, immediately before the commencement of this Act, vested in that person.
4. Where the land to which subsection (2) of this Section applies was subject to any mortgage, legal or equitable, or any encumbrance or interest valid in law such land shall continue to be so subject and the certificate of occupancy issued, shall indicate that the land is so subject, unless the continued operation of the encumbrance or interest would in the opinion of the Governor be inconsistent with the provisions or general intendment of this Act.
5. Where on the commencement of this Act the land is undeveloped, then –

(a)  One plot or portion of the land not exceeding half hectare in area shall subject to subsection (6) below, continue to be held by the person in whom the land was so vested as if the holder of the land was the holder of a statutory right of occupancy granted by the Governor in respect of the plot or portion as aforesaid under this Act; and

(b)   All the rights formerly vested in the holder in respect of the excess of the land shall in the commencement of this Act be extinguished and the excess of the land shall be taken over by the Governor and administered as provided in this Act

6. Paragraph (a) of subsection (5) above shall not apply in the case of any person who on the commencement of this Act also the holder of any undeveloped land elsewhere in any urban area in the State and in respect of such a person all his holdings of undeveloped land in any urban area in State shall be considered together –

(a)  One plot or portion not exceeding 1/2 hectare in area shall continue to be held by such a person as if a right of occupancy had been granted to him by the Governor in respect of that plot or portion; and

(b)  The remainder of the land (so considered together) in excess of 1/2 hectare shall be taken over by the Governor and administered in accordance with this Act and the rights formerly vested in the holder in respect of such land shall be extinguished.

7. No land to which subsection (5) (a) or (6) of this Section applies held by any person shall be further subdivided or laid out in plots and no such land shell be transferred to any person except with prior consent of the Governor.
8. Any instrument purporting to transfer any undeveloped land – -shall be void and of no effect whatsoever in law and any party to such instrument shall be guilty of an offence and liable on conviction to imprisonment for one year or a fine of N5, 000.
9. In respect of land to which subsection (5) (a) or (6) (a) of this section applies there shall be issued by the Governor on application to him in the prescribed form a certificate of occupancy if the Governor is satisfied that the land was, immediately before the commencement of this Act, vested in that person.

Thus, by virtue of Section 34(2) of the Land Use Act, where the land is developed, it shall continue to be held by the person in whom it was vested immediately before the commencement of the land Use Act as if the holder of the land was the holder of a Statutory right of occupancy issued by the Governor under the Land Use Act – see Orianzi V. Att.-Gen., Rivers State (2017) 6 NWLR (Pt. 1561) 224 SC”. PER A.A.AUGIE, J.S.C

RIGHT OF OCCUPANCY – WHETHER THE GRANT OF A DEEMED RIGHT OF OCCUPANCY REMAINS VALID UPON A SUBSEQUENT EXPRESS GRANT OF A RIGHT OF OCCUPANCY OVER A PARCEL OF LAND 

“The position of the law on the subject is that where a person owns a deemed right of occupancy over a parcel of land by virtue of Section 34 (2) of the Land Use Act, he is entitled to same rights available to a holder of a statutory right of occupancy.

– see Provost, L.S.C.E. V. Edun (supra), wherein this Court held as follows –

The Respondents in the present case were in exclusive physical possession of the land in dispute and were using the same for agricultural purposes in a non-urban area – – immediately before the commencement of the Land Use Act, 1978. They are, therefore, deemed holders of customary right of occupancy in respect of the land in dispute by operation of law at the commencement of the Land Use Act, 1978 on the 29th March, 1978. Their deemed grant is no less effective than a customary right of occupancy expressly granted by the appropriate Local Government Deemed grants, whether of statutory or customary right of occupancy are as valid as express grants and may not be defeated by any unlawful subsequent dealing in respect of such land by the original owners thereof. This is because after a party has divested himself of interest in land or any res, no right vests in him to deal with such property any further.

So, a statutory right of occupancy deemed to have been granted by the Governor of a State pursuant to Section 34(2) of the Land Use Act, is as valid as a statutory right of occupancy expressly granted by the Governor by virtue of Section 5(1)(a)”. PER A.A.AUGIE, J.S.C

DECLARATION OF TITLE TO LAND – NEED FOR THE PLAINTIFF TO ESTABLISH HIS TITLE ON THE STRENGTH OF HIS CASE IN AN ACTION FOR DECLARATION OF TITLE TO LAND

“It is trite law that in a claim for declaration of title to the land that is in dispute, a Plaintiff has the onerous task of establishing his title on the strength of his case and not on the weakness of the defence – Kodilinye V. Odu (1935) 2 WACA 336”. PER A.A.AUGIE, J.S.C

 

 

REVOCATION OF RIGHT OF OCCUPANCY- RATIONALE FOR THE REVOCATION OF RIGHT OF OCCUPANCY

“The Land Use Act makes provision for revocation of a right of occupancy by a Governor. Section 28 of the Act provides:

(1)        It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest

(2)        Overriding public interest in the case of a statutory right of occupancy means –

(a) The alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made thereunder;

(b) The requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes with the State, or the requirement of the land by the Government of the Federation, for public purposes of the Federation;

(c) The requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.

The Governor can only revoke a right of occupancy for “overriding public interest’, and it is settled that the revocation of a right of occupancy for public purpose or in the public interest does not include the revocation of the right of a grantee for the purpose of vesting it in another – see Ibrahim V. Mohammed (supra) cited by both Parties, and Orianzi V. A.G. Rivers State (supra), wherein this Court held:

The Act [Land Use Act] provides checks and balances, which must be observed before making any grant, the conditions under which such grants can be revoked and what follows after revocation. If such powers of revocation are to be exercised, the holder of the right of occupancy must be notified in advance.

The revocation of the right of occupancy for public purpose or in the public interest does not include the revocation of the right of a grantee for the purpose of vesting it in another. Since revocation of the grant involves the deprivation of the proprietary right and obligations of a grantee, all the terms and conditions laid down by the Act must be strictly adhered to and complied with. Therefore, for a revocation of aright of occupancy to be valid, it must be made strictly in compliance with Section 28 of the Land Use Act Even where the revocation is valid, the grantee is fully entitled to compensation under Section 29(1) of the Act. In the instant case, there was no evidence before the trial Court that the Appellant’s right was lawfully revoked. He stated that he was not given any notice or any notice in advance that the property was up for revocation. He also stated that he was not paid compensation after it was revoked.

• PER A.A.AUGIE, J.S.C

CONCURRENT FINDINGS OF FACTS BY LOWER COURTS – GUIDING PRINCIPLES ON THE CONCURRENT FINDINGS OF FACTS BY LOWER COURTS

“In fact this court has in plain, language reiterated those guiding principles and I shall call in aid a few of those cases of this court.

In the case of Ojengbede v Esan (2001) 18 NWLR (Pt.746) SC 771 at 788-789 paras H-A per Iguh JSC.

“It is trite law that this Court will not disturb concurrent findings of facts of both the trial Court and the Court of Appeal unless a substantial error apparent on the face of the record of proceedings is shown or when such findings are perverse or not supported by evidence or reached as a result of a wrong approach to the evidence or a wrong application of a principle of law or procedure”. See also Olatunde v Abidogu (2001) 1.8 NWLR (Pt.746) 712 SC

In Ogoejeofo v Ogoejeofo (2006) 3 NWLR (Pt.966) 205 at 226 paras C-H, this court per Onnoghen JSC (as he then was) stated thus:-

“The attitude of the Supreme Court to concurrent findings of fact of lower courts is that it will not interfere with such findings where the findings are reasonably justified and supported by evidence, and where no special circumstances why the Supreme * Court should interfere with the findings is shown by the substantial error apparent on the record of proceedings, such as miscarriage of justice, or violation of some principles of law or procedure. However, where the findings are shown to be perverse or patently erroneous or where, for example conclusions from accepted credible evidence adduced before it are wrong and a miscarriage will result if they are allowed to remain, the Supreme Court has a duty to interfere”.

• PER M.U.PETER-ODILI, J.S.C

STATUTE REFERRED TO:

Land Use Act, 1978