➥ CASE SUMMARY OF:
C.S.S. Bookshops Ltd. V. The Registered Trustees of Muslim Community in Rivers State & Ors. (2006) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – SC.307/2001
➥ JUDGEMENT DELIVERED ON:
Friday, the 28th day of April, 2006
➥ AREA(S) OF LAW
➥ PRINCIPLES OF LAW
⦿ ISSUE RAISED MUST BE RELATED TO A COMPETENT GROUND OF APPEAL
Issues arising for determination of an appeal are determined by the number of competent grounds of appeal filed by the appellant challenging the decision of the court being appealed against. The law is that neither a party nor a court is permitted to raise or deal with any issue which is not related to or does not arise from any ground or grounds of appeal. See Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514; Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188 and Mark v. Eke (2004) 5 NWLR (Pt.865) 54 at 82. Therefore since the two issues formulated in the 1st respondent’s brief have the backing of the grounds of appeal filed by the appellants, they are relevant for the determination of this appeal. The remaining four issues in the appellants’ brief are equally potent having regard to the grounds of appeal in their support. — Mohammed, JSC.
⦿ ARGUMENT IN SUPPORT OF ISSUES MUST BE TRACED TO THE ISSUES
It must be emphasised that issues for determination in an appeal must arise from the grounds of appeal filed by the appellant. Equally arising from this statement of the law is that the arguments in support of the issues must be traced to the issues and the grounds of appeal from which such issues were framed. I say no more. — Mohammed, JSC.
⦿ REVOCATION OF LAND MUST BE IN COMPLIANCE WITH SECTION 28 OF THE LAND USE ACT
It is not at all in doubt that the provisions of section 28 of the Act contains comprehensive provisions to guide the Governor of a State in the exercise of his vast powers of control of land within the territorial areas of his State particularly the power of revocation of a right of occupancy. One of the preconditions for the exercise of this power of revocation is that it must be shown clearly to be for overriding public interest. In order not to leave the Governor in any doubt as to the conditions for the exercise of his powers, the law went further to provide adequate guidance by defining in clear terms what overriding public interest means in the case of a statutory right of occupancy under the Act in subsection (2) of section 28. What this means of course is obvious. Any revocation of a right of occupancy by the Governor in exercise of powers under the Act must be within the confine of the provisions of section 28 of the Act. Consequently, any exercise of this power of revocation for purposes outside those outlined or enumerated by section 28 of the Act or not carried out in compliance with provisions of the section, can be regarded as being against the policy and intention of the Land Use Act resulting in the exercise of the power being declared invalid, null and void by a competent court in exercise of its jurisdiction on a complaint by an aggrieved party. — Mohammed, JSC.
⦿ REVOCATION MUST BE FOR OVERRIDING PUBLIC INTEREST; HOLDER MUST BE NOTIFIED
Furthermore, the Act itself provides some checks and balances which must be observed before making any grant, the conditions under which such grants can be revoked and what follows after such revocation. It provides under S. 28 that the Governor can only revoke a right of occupancy for overriding public interest’ which has been defined both in respect of statutory and customary rights of occupancy. If such powers of revocation are to be exercised, the holder of the right of occupancy must be notified in advance. 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. Therefore, since revocation of the grant involves the deprivation of the proprietary rights and obligations of a grantee, all the terms and conditions laid down by the Act must be strictly adhered to and complied with. And so for a revocation of a right of occupancy to be valid in Nigeria, it must be made strictly in compliance with S. 28 of the Land Use Act. — Mohammed, JSC.
⦿ PROVISION ON COMPULSORY ACQUISITION OF A PERSON’S LAND MUST BE CONSTRUED STRICTLY
Any provision of the law which gives or governs compulsory acquisition of a person’s property must be construed by the court fortissimo contra preferentes. Such a statute should be construed by the court strictly against the acquiring authority and sympathetically in favour of the complainant or the owner or possessor of the property against any irregularity in the procedure for acquisition as laid down by the enabling statute. See Peenock Investments Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR 122 at 115; Alhaji Bello v. Diocesan Synod of Lagos (1973) 1 All NLR (Pt. 1) 247 at 268; Nigerian Telecommunications Ltd. v. Chief Ogunbiyi (1992) 7 NWLR (Pt 255) 543; Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157. — Niki Tobi, JSC.
⦿ REASON FOR REVOCATION OF A PERSON’S LAND MUST BE SPELT IN THE REVOCATION NOTICE
Where right of occupancy is stated to be revoked for public purpose, there is the need to spell out the public purpose in the notice of revocation. See Osho v. Foreign Finance Corporation, supra; Ereku v. Military Governor of Midwestern State (1974) 10 SC 59; Adukwu v. Commissioner for Works, Lands and Transport, Enugu State (1997) 2 NWLR (Pt. 489) 588. The reason for revoking a person’s right of occupancy must be stated in the notice of revocation notwithstanding that the Act did not expressly state that the specific ground of the revocation must be stated in the notice. See Adukwu v. Commissioner for Works, Lands and Transport, Enugu State, supra; Nigeria Engineering Works Ltd. v. Denap Limited (1997) 10 NWLR (Pt. 525) 481. — Niki Tobi, JSC.
⦿ PURPOSE OF GIVING A NOTICE OF REVOCATION OF LAND
The purpose of giving notice of revocation of a right of occupancy is to duly inform the holder thereof of the steps being taken to extinguish his right of occupancy. In the absence of notice of revocation of right of occupancy, it follows that the purported revocation of the right of occupancy by the officer duly authorised by the Governor is ineffectual. See Nigerian Telecommunications Ltd. v. Chief Ogunbiyi, supra; A.-G., Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Nigeria Engineering Works Limited v. Denap Limited (1997) 10 NWLR (Pt. 525) 481. — Niki Tobi, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Rob Iweka, SAN.
⦿ FOR THE RESPONDENT
Mahmud Gafar, Esq.
➥ CASE FACT/HISTORY
This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division which on 26-4-2001, allowed an appeal by the 1st defendant from the decision of Manuel, J. of the High Court of Justice of Rivers State sitting at Port Harcourt delivered on 3-3-1997.
The Court of Appeal in its decision allowed the appeal, set aside the judgment of the trial court and dismissed the plaintiffs’ claim. The appellants which were the plaintiffs at the trial High Court had sued the respondents and claimed against them as defendants thus, inter alia: “A declaration that the purported publication in the Rivers State Government’s Notice No. 235 of 27th April, 1985, purportedly revoking the alleged rights of occupancy of the plaintiffs in and over Plots A-F Block 77 in Port Harcourt Township Layout does not constitute a valid notice to the plaintiffs as envisaged by the Land Use Act, 1978 and consequently the said revocation is illegal, null and void and of no effect whatsoever and does not extinguish the rights of occupancy of the plaintiffs.”
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: SUSTAINED]
I. Whether or not Grounds 4 and 14 are of mixed law and facts which require that the leave of Court be sought before filing the said grounds?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE GROUNDS 4 & 14 ARE OF MIXED LAW & FACTS AND REQUIRES THE LEAVE OF COURT.
“Ground 4 is complaining on the finding of the court below that the land in dispute was undeveloped. The evidence on record is that while the appellants were saying that the land was developed, the respondents were claiming that it was not. Therefore since the ground of appeal is not predicated on accepted, undisputed or admitted facts between the parties, the ground at best is one of mixed law and fact. Ground 14 on the other hand is an omnibus ground whose status as a ground of fact alone is obvious. Therefore, the two grounds of appeal 4 and 14 being grounds of mixed law and fact and fact alone, could only have been filed with the leave of the court below or of this court as required by section 233(3) of the 1999 Constitution. In the absence of the leave sought and granted before filing the two grounds, the grounds remain incompetent and are accordingly hereby struck out. Consequently, issue No.5 in the appellants’ brief arising from these grounds of appeal is hereby struck out. See Ferodo Ltd. v. Ibeto Industries Ltd. (2004) 5 NWLR (Pt.866) 317 at 344.”
I. Whether the appellants were persons in whom the land or property in dispute was vested immediately before the commencement of the Land Use Act in March 1978 entitling them to be deemed holders of statutory right of occupancy?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE APPELLANT WAS IMMEDIATELY OCCUPYING LAND BEFORE THE PROMULGATION OF THE LAND USE ACT
“Applying the provisions of the Act quoted above to the undisputed facts of this case that the land in dispute located in the Urban Area of Port Harcourt Township was vested in the appellants immediately before the commencement of the Act in 1978, the same land in dispute shall continue to be held by the appellants as if the appellants were holders of statutory right of occupancy issued by the Governor under the Act. See Ogunleye v. Oni (1990) 2 NWLR (Pt.l35) 745 at 780; Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) 116 at 164 and Ilolla v. Idakwo (2003) 11 NWLR (Pt.830) 53 at 83. In view of the location of the land in dispute in the Urban Area of Port Harcourt Township, the argument of the 1st respondent that the appellants were only occupiers of the land in dispute under the Act immediately before the commencement of the Land Use Act is baseless because under the Act, the term occupier means a person lawfully occupying land under customary law. See Ogunleye v. Oni (supra) at page 783.”
II. Whether the revocation of the right of occupancy of the appellants was in accordance with the Land Use Act?
RULING: IN APPELLANT’S FAVOUR.
A. THAT PERSONAL NOTICE OF THE REVOCATION WAS NOT SERVED ON THE APPELLANT, HENCE THE REVOCATION WAS INVALID
“In the present case, one of the complaints of the appellants against the revocation of their right of occupancy was the failure of the 2nd respondent to issue and serve adequate notice of the intended revocation on them in advance. On this question of notice, the trial court in its judgment at page 134 of the record found as follows on the evidence: ‘From the above it is clear that the notice of revocation published in the said Rivers State Government Notice No. 235 dated 27th April, 1985 and published in Volume 17, No. 27 of the Official Gazette was not a valid mode of service in accordance with the Land Use Act. This is because the mode fell short of the requirement in the Act. There was no personal service or in this case which is a registered company, there was no service on the secretary or clerk of the company as provided for. The mode of service is therefore null and void and of no effect.’ I entirely agree with the trial court on this finding on the question of notice particularly when the 2nd respondent whose powers were being challenged made no attempt to throw light on the question. The effect of the failure of the 2nd respondent to serve adequate notice on the appellants as required by the Land Use Act prior to the revocation of the right of occupancy means the power of revocation was not exercised in compliance with the provisions of the Act.”
III. Whether the grant of the right of occupancy to the 1st respondent by the 2nd respondent in the circumstances of this case was in accordance of the Land Use Act?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THERE WAS NO VALID GRANT OF RIGHT OF OCCUPANCY OF THE SAME LAND TO THE 1ST RESPONDENT
“The answer is obviously in the negative. This is because having resolved the issue that the revocation of the appellants right of occupancy was invalid, the question of whether there was a valid grant of right of occupancy in respect of the same property of the 1st respondent had been definitely laid to rest. The reason is of course quite clear. This court has held in several decisions that the mere grant of a right of occupancy over an existing right of occupancy or interest, does not amount to the revocation of such existing interest as was being suggested in various arguments behind section 5(2) of the Land Use Act.”
IV. Whether or not the 1st respondent had any locus standi in the court below?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE 1ST RESPONDENT HAS LOCUS STANDI
“In other words, until the final determination of the dispute between the 1st respondent and the appellants on which of the parties is the rightful holder of the right of occupancy in respect of Plots (A-F) 16 Block 77 in Port Harcourt Township Layout by this court it cannot be said that the 1st respondent has no locus standi. The 1st respondent therefore had locus standi in the court below as an appellant whose interest in the land in dispute was the subject of litigation before that court.”
V. Whether or not the revocation was for public purpose?
RULING: IN APPELLANT’S FAVOUR.
“It is also the case of the appellant that the revocation was not for public purpose. This is clear from the facts of the case. The revocation of the land for the purpose of granting same to build a mosque is certainly not a public purpose within the meaning of section 50 of the Land Use Act. It is a private purpose, not contemplated by the Act.”
“In the final analysis and for all the reasons I have given in this judgment, I find myself agreeing with the learned senior counsel for the appellants that this appeal has merit. Accordingly, the appeal is hereby allowed. The judgment of the court below delivered on 26-4-2001 is set aside. In place of that judgment set aside, I restore and affirm the judgment of the High Court of Justice of Rivers State Port Harcourt delivered on 3-3-1997.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Sections 28, 34, Land Use Act.
➥ REFERENCED (CASE)
⦿ ILLEGAL REVOCATION OF A STATUTORY RIGHT OF OCCUPANCY
See Ibrahim v. Mohammed (2003) 6 NWLR (Pt.817) 615 at 645 where Kalgo, JSC put the position of the law thus – “It is not in dispute that in the instant appeal, the respondent was not notified by the Governor of the intended revocation of his earlier grant exhibit 1 before granting exhibit A8 (AI3) to the appellant. This is in clear contravention of section 28(6) of the Act, it was also not shown by evidence that the respondent’s land was required for public purposes or interest. The respondent was not heard before the grant of his land was made to the appellant and no compensation was offered or given to the respondent as required by the Act. It is my respective view therefore, that under these circumstances the grant of the statutory right of occupancy over the same piece or parcel of land to which the respondent had earlier been granted certificate of occupancy, was invalid, null and void.”
➥ REFERENCED (OTHERS)