How Revocation of Right of Occupancy for Public Purpose may be Vitiated
IFacts n 1981, the Appellant purchased an abandoned property from the Rivers State Government. After the takeover by the Military Government, he was put in detention, whilst his properties were confiscated. After his release, he appeared before Justice Uwaifo Special Panel on Recovery of Public Properties in Lagos, which recommended that his properties be returned to him. The recommendation was approved by the Armed Forces Ruling Council (AFRC), the highest ruling body in the country at the time. Subsequently, the Rivers State Government appointed a Sanomi Commission to look into the allocation of plots and abandoned properties between 1st October, 1979 and 31st December, 1982. The Commission recommended that the disputed property be retained as Government quarters, and a gazette was published indicating that the Appellant’s right over the property, had been revoked. Nevertheless, after retaining the property for six months, the Government subsequently, sold the property to one Dr. Charles Dima.
Consequent upon the foregoing, the Appellant filed an action at the High Court of Rivers State, claiming against the Respondents, inter alia, a declaration that he is the person entitled to the Statutory Right of Occupancy over the land. Judgement was delivered in favour of the Appellant. Aggrieved, the Respondents successfully appealed the decision. Being unhappy with the decision of the Court of Appeal, the Appellant appealed to the Supreme Court.
Issues for Determination At the Supreme Court, Counsel for the 1st Respondent raised a Preliminary Objection to grounds 1 and 4 of the Appellant’s Grounds of Appeal and Issue No II purportedly distilled from the two (2) grounds. He further contended that the second issue for determination formulated from ground 4, was at variance with the said ground and therefore, urged the court to discountenance the issue.
The Court adopted the following as the main issues for determination of the appeal:
1. Whether the Appellant did prove that he is entitled to the declaration of title over the disputed property, and there is no feature that deprived him of his Right of Occupancy over the said property.
2. Whether the Appellant’s Right was validly revoked.
Arguments
Counsel for the Appellant submitted that the evidence before the trial Court, showed that the Appellant had an uninterrupted Right of Occupancy over the land, since the purported revocation was not carried out in accordance with the law, and that the Right of Occupancy remained valid and subsisting at all material times. The Appellant also submitted that the 1st and 2nd Respondents did not comply with the provisions of Section 28(1) and 44 of the Land Use Act, 1978 in their purported revocation of the Appellant’s right.
On the other hand, Counsel for the 1st Respondent submitted that the sale to the Appellant and the subsequent agreement between him and the Rivers State Government, did not constitute an interest that could confer a Right of Occupancy under the Land Use Act. Counsel for the 2nd Respondent submitted that, the Appellant did not have a Statutory Right of Occupancy capable of being revoked under the Land Use Act. Counsel for the 3rd and 4th Respondents argued that Exhibit P3 (Agreement to sell the property) was not granted under the Land Use Act and so, does not confer a legal title on the Appellant.
Court’s Judgement and Rationale
Deciding the Preliminary objection that was raised, the Supreme Court relied on the case of EGBE v ALHAJI
(1990) 1 NWLR (Pt. 128) 546 at 590 and concluded that the difference in language used, was a matter of semantics; the grounds did relate to the decision of the lower Court and as such, overruled the objection.
On the main appeal, the Court held that, the burden of proof in a claim for declaration of title to land rests on the Plaintiff who must rely on the strength of his own case and not the weakness of the Defendant’s case. The Court called in aid, the case of IDUNDUN v OKUMAGBA (1976) 1 NMLR 200 which highlighted the five ways of proving title to land which are: (1) by traditional evidence; (2) by production of document of title which must be duly authenticated; (3) by exercise of numerous and positive acts of ownership over sufficient length of time to warrant inference that the person is the true owner; (4) by acts of long possession and enjoyment of the land; and (5) proof of possession of adjacent land.
The Court, thereafter, noted that the Appellant furnished the following evidence at the trial Court - a letter offering the property for sale; receipt for N10,000.00 as initial deposit paid and a copy of the agreement between him and the Secretary to the Government, all marked as Exhibit P1, P2 and P3. These pieces of evidence were not challenged by the Respondents. The 1st and 2nd Respondents did not call any witness during trial but rather admitted some paragraphs of the Appellant’s Statement of Claim. Based on decided authorities, where
an averment in a Statement of Claim is not denied in a Statement of Defence, same is deemed admitted. Furthermore, with the admission of some averments in the Claim and the documents admitted in evidence, the Appellant acquired
ownership of the disputed property and was entitled to a Statutory Right of Occupancy.
The Supreme Court noted that the disputed property, was an abandoned property. Lands in the Southern part of Nigeria were governed by the Customary Law of the people as opposed to the Land Tenure of the North, before the advent of the Land Use Act 1978. When the Rivers State Government sold the property to the Appellant, the Right of Occupancy of the original owner passed to him and he was deemed to have received along with the property, the right which enured to the original owner who abandoned the property and same was deemed granted to him under Section 34(2) of the Land Use Act.
The Apex Court held further that, the Court of Appeal was wrong when it set up a case for the Respondents. An appellate Court is only concerned with matters that are properly placed before it, with no jurisdiction over a matter that was not adjudicated upon at the trial court. Relying on KYARI v GANARAN (1997) 2 NWLR (Pt. 488) 380, and the dictum of the Supreme Court, per Belgore JSC (as he then was) that “where there is a subsisting right of occupancy, it is good against any other right. The grant of another right of occupancy over the same piece of land will therefore be merely illusory and invalid…” the Supreme Court held that the Appellant successfully established his case that he was entitled to grant of Statutory Right of Occupancy.
On the second issue, the Court held that, Sections 5 and 6 of the Land Use Act identify different units of ownership, which are in turn recognised under Section 36 of the Act. Customary Right of Occupancy predated the Land Use Act and was not subject of a grant; therefore, the subsequent sale was invalid ab initio, in the absence of proper termination of agreement between the State Government and the Appellant.
More so, the burden to establish the facts of revocation rested on the Respondents, who failed to discharge this burden. In OSHO v FOREIGN FINANCE CORPORA
TION (1991) 4 NWLR (Pt. 184) 201, it was held that: “when public purpose is stated to be a ground for revocation of a right of occupancy, if the land is later discovered to be in use for other purposes, the revocation is vitiated and the order becomes unlawful.” The Court held further that the sole purpose of the acquisition of the property from the Appellant was for sale to Dr. Dima, who was hurriedly issued a Certificate of Occupancy, and the Sanomi Panel was a script meant to raise dust which blurred the vision of the lower Court. On the other sub-issue of whether the Appellant’s Right of Occupancy over the property was automatically extinguished under Section 5(2) of the Land Use Act by the purported grant to the 3rd and 4th Respondents, it was held that the statement was an admission that there was a right available to the Appellant which was supposedly extinguished. Relying on BELLO
v DIOCESAN SYNOD OF LAGOS (1973) 3 SC 131, the Court held that to revoke the Right of Occupancy for public purpose, the letter and spirit of the laws must be adhered to; that is, the terms of revocation in Section 28 and 44 of the Act. An equitable owner in possession cannot be overridden by a subsequent grantee of a legal estate. The Rivers State Government cannot determine a contract which it is a party to, and then take benefits arising therefrom, leaving the aggrieved party with no remedy. To allow such an injustice, is to allow those in authority to benefit from their wrong actions.
Appeal Allowed. Representation:
R.A. Anyawata with I. Utchay (Mrs) & 6 Others for the Appellant.
Mr. A. Omotoso with O. C. Eze and Mr. E. Igwurube for the 1st Respondent Wilcox Abereton for the 2nd Respondent Mr. J.T.O Ugboduma for the 3rd and 4th Respondents. Reported by Optimum Law Publishers Limited (Publishers of the Nigerian Monthly Law Reports (N.M.L.R))