➥ CASE SUMMARY OF:
Vidah C. Ohochukwu V. Attorney-General of Rivers State & Ors. (SC.207/2004 • 17 February 2012)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Revocation of land;
Pleadings.
➥ CASE FACT/HISTORY
The history of the property is that the plaintiff applied for allocation of the plot in controversy from the Rivers State Government, and he was allocated the plot vide letters, and after complying with the conditions of allocation i.e payment, the plaintiff was issued with a Certificate of Occupancy. The plaintiff erected a building on the plot, and he has since been paying ground rents in respect of the said property. A commission named the Sanomi’s commission was set up by the Rivers State Government to look into sales of landed properties in the state. In its report the property was listed among plots that had reverted to the Government of Rivers State, and it was agreed that the land in controversy be assigned to his common law wife (the appellant) to enable him raise money to defray the bank loan used in erecting the building on it, and a deed of assignment was prepared and executed, and forwarded to the Secretary to the Government requesting for consent of the Military Governor. When the property was included in the list of properties seized, the plaintiff lodged a protest and when the plaintiff applied for assignment, the Commissioner of land, replied that the property had reverted to the Rivers State Government, hence the application for assignment could not be processed. The plaintiff pleaded that the Rivers State Government is estopped from revoking the Right of Occupancy after they had expended so much money on erecting a building on it, and any such revocation is ultra vires null and void. The defendants in their various statements of defence denied most of the allegations in the plaintiffs’ statement of claim, stating that the revocation was justified as the plaintiff was in breach of the covenant contained in the certificate of occupancy for non-payment of ground rent. The 1st defendant denied that the proposed deed of assignment between the plaintiff and the appellant sent to the Secretary to the Government was not approved. The 3rd defendant in his statement of defence contended that he is a bona fide purchaser for value without notice of the property in dispute, and that the plaintiffs have no cause of action against the 3rd defendant. The action is frivolous, speculative, incompetent and must be dismissed. The name of the 2nd plaintiff was struck out, but on the demise of the 1st plaintiff, the 2nd plaintiff was substituted as an appellant. At the close of pleadings parties adduced evidence which was appraised by the learned trial judge, who at the end of the proceedings gave judgment in favour of the plaintiff and granted all the reliefs sought.
Dissatisfied with the judgment, the defendants appealed to the court of Appeal, Port Harcourt Division.
The Court of Appeal, allowed the appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the decision of the court of Appeal that the trial court did not appreciate and consider the issues raised in the suit is right and supported by the evidence on Record?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[NOTHING SHOWS ALLOCATION OF LAND TO THE APPELLANT/PLAINTIFF
‘With due respect; I have looked at the bottom of the two letters, and I fail to see where the Military Governor gave directive/authority to assign the said property. All I can see thereon is the stamp of the principal Secretary to the Military Governor and his office written in ink. Then at the top of Exhibit 12A are the words “SMG P1 process this appeal to me along with the attached one”. Have the letters added value to the case of the plaintiff? I think not, for it does not say much about the Governor’s reaction/response or action authorized or directed to be taken by the Military Governor. Secondly, Exhibit ‘ 13′ dated September 16, 1985, forwarding the deed of assignment was written and sent inspite of no response or permission to do so by, the Military Governor. Nevertheless Exhibit ’14’ emanated from the Military Governors office demanding the payment of some amount before action can be taken. I believe this letter is what the plaintiffs are strongly holding on to, but the fact remains that the plaintiff was aware that his right to the property had been extinguished by the Government vide the report of the Sanomi Commission, which he admitted affected his property, since he owned two properties, and had agreed to hold on to the property he was earlier allocated and in which he resides. His attempt to establish that the property was financed by the appellant failed because the relevant documents related to the property bear the name of the plaintiff. Of particular importance is the Certificate of Occupancy Exhibit 4 which bears the name of the plaintiff. If, (and I emphasise the word if) the plaintiff had been able to show the court the directive of the then Military Governor to assign to the appellant, perhaps, the case of the plaintiff would have taken another dimension, but there is nothing to prove and establish that fact. The fact that the plaintiffs attempt to assign the property is an admission of the fact that he was not entitled to the plot and an acceptance of the Sanomi report that it be relinquished and the certificate of occupancy be revoked. Having been revoked the Rivers State Government was at liberty to dispose of the property, as vested in it by the Land Use Act Cap 202 Laws of the Federation of Nigeria 1990.’
THE TRIAL COURT DELVED INTO MATTERS THAT WERE NEVER AN ISSUE
‘In this event, the lower court was right when it found inter alia in the excerpt of its judgment that the learned trial judge dabbled into extraneous matters that were not before him. Perhaps I should at this juncture reiterate the elementary principle of law that courts are bound by pleadings before them and should confine themselves to the case presented by parties. They are not allowed to go on a wild goose chase. See Continental Seaways v. N.D.R.G, 1977 5 SC.235, and Orizu v. Anyaegbunam 1978 5 SC. 21. In this wise, the court below was right when it held as follows:- “Strangely however, the court did not make any pronouncement on the issue of surrender whether or not proper and effective. It merely busied itself with lack of atonement, which was never made an issue, and which the counsel for the Plaintiff/Respondent conceded was uncalled for. It also held that no notice was served on the Plaintiff/Respondent before the Certificate of Occupancy was revoked. The point was never made an issue at the trial and did not in fact arise going by the facts of the case”.’
THE ISSUE OF NOTICE OF REVOCATION WAS NEVER RAISED AT THE TRIAL COURT
‘I will repeat here again, that the plaintiff did not complain of lack of notice in compliance with the provision of Section 28 of the Land Use Act, in making his case in the court of first instance, and so he couldn’t have been allowed to do so on appeal, for it was like attempting to improve his case at a higher level, which is unfair on his opponents. The plaintiff understood very well the reason for the revocation of the certificate of occupancy, for by the singular act of opting to assign the property covered by the certificate of occupancy, he admitted he had no right to it, in view of the policy of the Rivers State Government at that time. It is in this light that I subscribe to the observation of the court below which reads:- “This is a situation in which the Plaintiff/Respondent surrendered the plot. The Government accepted the surrender and went on to reallocate the property. Going by all the above one could see that the issues were patent and cogent enough to warrant pronouncement on that aspect of the case but strangely enough the lower court simply glossed over them”.’]
.
.
↪️ II. Whether the Court of Appeal was right when it dismissed the Plaintiff ‘s claim instead of ordering a retrial?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[‘In the light of all the facts contained in the printed record of proceedings and the treatment of the issues above, I am not convinced that the plaintiff proved his case against any of the defendants, and in the words of the court below, ‘the claim of the plaintiff/respondent in suit No.PHC/557/86 in the lower court fails’. This is not a case that calls for retrial, and the Court of Appeal was right not to have ordered a retrial, and this court is also not inclined to do so. This is not a case where an order of retrial can be made. See Anyaoke v. Adi 1986 3 NWLR part 31 page 731, Elias v. Disu 1962 1 SCNLR 361, and Okeowo v. Migilore 1979 11 SC. 138.’]
.
.
.
✓ DECISION:
‘In the final analysis this appeal fails in its totality and it is hereby dismissed. Cost is ordered at N50,000.00 in favour of each respondent against the appellant.’
➥ FURTHER DICTA:
⦿ WHAT WAS NOT AN ISSUE AT TRIAL CANNOT BE AN ISSUE ON APPEAL
The law is trite that a point that is not made an issue in the course of trial cannot be so raised in an appellate court unless with the leave of the trial court or the appellate court. See Oshatoba v. Olujitan 2000 5 NWLR part 655 page 159, Obioha v. Duru 1994 8 NWLR part 365 page 631, and Akpene v. Barclays Bank of Nigeria Ltd 1977 1 SC 47. — A.M. Mukhtar JSC.
⦿ FOR DECLARATION TO LAND, PARTY CANNOT RELY WEAKNESS OF DEFENDANT’S CASE
A plethora of authorities abound that a party in a suit for declaration of title to land cannot depend on the weakness of an opponent’s case to succeed. See Kodilinye v. Odu 1935 2 WACA 336, Akinola v. Olowu 1962 1 SCNLR 352, and Ibeziako v. Nwegbogu 1970 1 NMLR 113. — A.M. Mukhtar JSC.
⦿ THEORY OF SURRENDER
I am guided by the authors of Halsbury’s Laws of England fourth Edition Reissue page 496 paragraph 524 in which the theory of surrender was propounded thus:- “A surrender is a voluntary act of the parties whereby, with the landlord’s consent, the tenant surrenders his lease to the landlord so that the lease merges with the reversion and is thus brought to an end. It is defined as being the yielding up of the term to the person who has the immediate estate in reversion in order that, by mutual agreement, the term may merge in the reversion. The surrender may be either express, that is by an act of the parties having the expressed intention of effecting a surrender, or by operation of law, that is as an inference from the acts of the parties. The parties to the surrender must be the owner of the term and the owner of the immediate reversion expectant on the term. Consequently an undertenant cannot surrender his underlease to the head landlord. A surrender must be of the entire term in the premises; hence a tenancy held jointly cannot be surrendered by one of two joint tenants. A part only of the demised premises may, however, be surrendered”. — A.M. Mukhtar JSC.
⦿ ANY MATTER OUTSIDE THE STATEMENT OF CLAIM GOES TO NO ISSUE
What it means is that his cause of action and his grievances must be contained in statement of claim, with which he is bound, for any matter outside the periphery of the statement of claim i.e. pleadings vide evidence goes to no issue and are bound to be ignored. See Emegokwe v. Okadigbo 1973 4 SC. 113, Shell P. B. v. Abedi 1974 1 SC 23, and Umuoffia v. Ndem 1973 2 SC 69. Another important aspect of an action is proof of the content of the pleading. In this respect, the law is trite that actions are proved on preponderance of evidence and balance of probabilities. See Elias v. Omo-Bare 1982 5 SC. 25, Woluchem v. Gudi 1981 5 SC. 291, and Akinlemibola v. C.O.P. 1976 6 SC. 205. — A.M. Mukhtar JSC.
⦿ SURRENDERING PROPERTY
Generally, every express surrender is void unless it is made by deed or in writing. But “the use of the word ‘surrender’ is not necessary. Any form of words which shows the intention of the parties to effect a surrender will be sufficient and the words will be construed so as to give effect to that intention.” See; Halsbury’s Laws of England, 4th Edition page 499 paragraph 526. However, delivery of possession by the tenant to the landlord and acceptance of possession by landlord effect a surrender by operation of law. In this case, the law gives effect to the intention of the parties as appearing from their acts, and cures the informality of the surrender. It is said that where the elements of surrender are satisfied, the subsequent assertion by the tenant that he had no intention of leaving permanently is irrelevant. See; Halsbury’s Law (supra) at pages 500-501 paragraph 527. — O. Ariwoola JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Aloma Mariam Mukhtar, J.S.C
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
Director of Civil Litigation department, Rivers State, Mrs. Minakiri.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
