Judgment
MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal Jos Division or lower Court or Court below, Coram: Tine Tur, Ibrahim Shata Bdliya and Elfrieda O. Williams- Dawodu JJCA, delivered on 3/12/2014 wherein the Court below overturned the judgment of the trial Court of 6th November, 2012 and allowed the appeal, entering judgment in favour of the 1st respondent as per his counter-claim.
The decision of the Court below was a declaration that the sale to the 1st respondent of house No. 24, Benue Road, Old GRA, Maiduguri was proper and lawful and thus set aside the earlier grant to the appellant of the Certificate of Occupancy No. BO/41496 of 18th September, 2002 over the same property.
BACKGROUND 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 1 st 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.
MAIN APPEAL I shall utilised the issues distilled by the appellant in the determination of this appeal.
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.
A rehash of the background to the dispute leading to this appeal might be helpful.
In their respective statements of defence, the respondents pleaded that in year 2002, the Government of Borno State introduced a policy to sell its official quarters to Civil Servants who were in occupation thereof on owner/occupier basis and that by this policy, it was the 1st respondent, who has been occupying the house in dispute since 1983 as his official quarters, that was entitled to apply for and purchase same.
The 1st respondent maintained that he has been occupying the house in dispute as his official quarters, since 1983 and paying rent up to 2003 and that he applied to purchase the house vide his application contained at page 42 of exhibit but that the house was purportedly sold to the appellant who had never occupied the house. The appellant on the other hand claimed that the house was sold to him before the owner/occupier policy was formally introduced and that it was introduced in 2003 after the house was sold to him. The learned trial Judge failed to make specific findings on this issue.
What he said at page 149 line 31 to page 150 lines 1 to 4 was that: “Both sides made extensive submissions on owner/occupier policy of the State Government and when it came into existence, the evidence before this Court is that the plaintiff was not granted the right of occupancy because of that policy, the policy itself evidence suggests started formally in 2003, the plaintiff having been granted his right in 2002, so the issue of Owner/Occupier policy with regard particularly to the grant of the right of occupancy to the plaintiff is to say the least, neither here nor there…”
The Court of Appeal saw the scenario differently hence it held thus: “There is no evidence on record or in the pleading that the 1st respondent was a Civil Servant of the Borno State Government and had purchased the disputed property in that capacity prior to its annexation and issuance of a Supplemental Certificate of Occupancy on 5th January, 2001 to cover the previous and the property in dispute.
As far as the Government of Borno State (3rd respondent) and the Ministry of Lands and Survey (2nd respondent) are concerned, the appellant was and is still in possession of No. 24, Benue Road, Old GRA, Maiduguri, Borno State up to the time the dispute arose and culminated into the institution of his suit in the Court below on 18th July, 2005. In the eyes of Borno State Government and the Ministry of Lands and Survey, the policy of the Government was to sell government quarters only to Civil Servants on owner/occupier basis.
Had the 1st respondent not misrepresented facts to the Government that the property was vacant, the Government would not have sold and granted the 1st respondent the Certificate of Occupancy over the land.”
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.
The appellant had submitted that the findings of the Court below were outside the pleadings and evidence led. The record belies that assertion as I would show anor. In paragraph 3(a) of their amended statement of defence, the 1st and 2nd defendant averred that the policy of selling Government properties on owner-occupier basis started as far back as 2002.
That the policy initially was in respect of few Government properties and that it was pursuant to this policy that the 1st respondent applied for the house in dispute being the occupant of the said house, that the policy became fully implemented to cover all Government properties in 2003.
The evidence elicited from the appellant and his witnesses fully supported the above pleadings and the findings of the lower Court. PW3 Paul Ngadda introduced himself at page 49 line 7 to 9 of the record thus: “I was a member of the house disposal committee. One is to treat all those occupying Government quarters and process them for occupation on Owner/Occupier basis across the state excluding institutional quarters …”
Under cross-examination at page 50 line 7, the witness admitted that:- “If a house is occupied by someone else people cannot apply for the house and even if they do we do not consider them.” And at page 55 line 1: “It is wrong that the 3rd defendant’s application was pending when the plaintiff got approval. ” Pw5 is the appellant, at Page 58 line 11 of the record, he also admitted that: “If indeed he (1st respondent) applied for the house and I know I would not apply for it …”
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 …”
DW1 in his evidence at page 63 line 4 gave evidence to the effect that: “The policy on owner-occupier started in 2002”. The overwhelming evidence on record is to the effect that as at the time the 1st respondent applied for the house in 2002, the Government of Borno State had started its policy of selling its properties on owner-occupier basis, even though the policy was formalized in January, 2003 and it was sequel to this that proper investigation had to be made to ensure that it was the occupier that applied for the house and not a stranger.
Furthermore, it was in recognition of the existence of this policy that the Government of Borno State had to set up a committee to investigate the allegations of improprieties in the sale of these houses under the policy and the appellant was affected thus necessitating the revocation of the Certificate of Occupancy over the house in dispute, which was convened to him through Exhibit ‘F’
The Appellant further contended at pages 27 and 28 of his brief of arguments that the lower Court was wrong when it found that the revocation of the certificate granted to the appellant was based on misrepresentation because there is no evidence to support the findings and that misrepresentation was not pleaded and particularized by the respondent.
The appellant’s arguments and submissions are misplaced, as the learned Justices of the Court of Appeal found at page 347 line 10: “As far as the Government of Borno State … and the Ministry of Land and Survey … are concerned, the appellant was and is still in possession of No.24, Benue Road, Old G.R.A., Maiduguri, up to the time the dispute arose and cumulated into the institution of this suit… In the eyes of Borno State Government and the Ministry of Lands and Survey, the policy of the Government was to sell Government quarters only to Civil Servants on Owner/Occupier basis.
Had the respondent not misrepresent facts to the Government that the property was vacant, the Government would not have sold and granted the 1st respondent the Certificate of Occupancy over the land.”
The Court below had alluded to a misrepresentation of facts and 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 …” 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.” In their amended statement of defence of the 1st and 2nd defendants contained at pages 27 to 31 of the record, they averred in paragraph 3 thereof as follows:- “3 Further to paragraphs 4, 5 and 6 of the amended statement of claim, the 1st and 2nd defendants aver that the grant and extension made to the plaintiff was done on misrepresentation.
The policy of the Government is to sell off its properties on owner/occupier basis but the plaintiff misrepresented these facts and claimed that no person is in occupation of the property while the property was occupied by Alh. Musa Abba Aji since 17th November, 1983.”
In his statement of defence contained at pages 275 to 278 of the record of appeal, 3rd respondent (now 1st respondent in this appeal) pleaded the facts which constituted acts of misrepresentation in paragraphs 10, 11, 12, 13, 14, 15, 16 and 17 thereof which in summary are to the effect; (a) Government of Borno State introduce a policy whereby it commenced selling of its official quarters to occupants. (b) That he was the person, occupying the house in dispute and paying rents thereon since 1983 and is the person who is entitled under the Scheme to buy the house, and that he indeed applied to buy the house, (c) That the appellant who had never occupied the house, equally applied for the house (d) That instead of processing his application and sending same to the Governor of Borno State for approval, the Permanent Secretary who treated the appellant’s application misled the Governor that there was no pending application over the house and that the appellant only applied for empty space in front of the house.
A plea of misrepresentation had been made out contrary to the appellant’s submissions at pages 27 and 28 of his brief of arguments under issue no. 4. The appellant testified as PW5. His evidence is contained at Pages 55 to 58 of the record. At page 57 from line 9 to page 8, the appellant gave false assertions concerning the house as follows:- A. That at a point in time, the appellant was occupying the house, but later moved out. B. That before he applied for the house he inquired and was told that the 3rd respondent applied for vacant land after he moved out of the house. C.
That the 3rd defendant applied for vacant land and not for the house in dispute.
A look at paragraphs 9 and 10 of the statement of claim at page 5 of the record, would show that these are false and misleading assertions concerning the house in dispute. PW2 was the Permanent Secretary who acted on behalf of the appellant and treated his application for approval. At page 44 from lines 13 to 23, this witness, like the appellant also asserted that the 3rd defendant (1st respondent) did not apply for the house in dispute.
That he only applied for an empty plot of land in front of the house and that was the memo he made to the Governor to show that the house in question was vacant and not occupied by anybody on the basis of which the appellant’s application was granted. Under cross-examination at page 47 line 5 PW2 said:- “As at the time 1 put up the memo on page 46 and 47 of Exhibit 1B’, I was not aware and the Ministry was not aware that the 3rd defendant had applied for the main house.”
To show that the witnesses referred to above made false and misleading assertions that the 1st respondent was not in occupation of the house in dispute as at the time, it was sold to the appellant, PW3 Paul Ngadda who testified as the officer who valued the house in dispute in September, 2002 before it was sold to the appellant, gave evidence under cross-examination at page 50 line 1 that:- “The 3rd defendant was in occupation of the property as at the time it was sold … It was sold to the plaintiff when he was the Secretary to the State Government.”
This piece of evidence supports the claim of the respondents particularly the 3 rd respondent who gave evidence as DW2 at page 65 from line 14 to 15 and page 66 from line 1 to 6, that he had been occupying the house since November, 1983, paying his rent on the property up till the time the house was sold to the appellant vide Exhibits 1 and 2.
To further show that the appellant and his witnesses made false and misleading assertions that the 1st respondent did not apply for the house in dispute, but only applied for the empty plot of land in front of the house, I refer to page 42 of Exhibit ‘B’ which contains the 1st respondent’s application dated 20th day of May, 2002. This exhibit was produced and tendered in evidence by the appellant.
This document supports the 1st respondent’s assertion at page 66 from lines 1 to 7 that:- “I have never defaulted in payment of my rent as a tenant … I applied for the house in question on the 20th May, 2002 in writing. The said application is contained in Exhibit B’ temporary at 42. When I applied for the house and was waiting for response from Govt. and was informed that the house has been sold to somebody who has never enjoyed occupancy of the house.” 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.
In support of the contention of the respondents that it was because of the misrepresentations that the house was sold to the appellant as found by the Court below as the appellant himself contended under cross-examination that the 3rd respondent did not apply for the house, thus:- “If indeed he applied for the house and I know I would not apply for it.
I conducted a search and he did not apply before I applied.” PW4 on his own part said at page 54 line 14 that:- “If a house is occupied by someone else, people cannot apply for the house and even if they do, we do not consider same …” At page 55 lines 1 and 2, he concluded that: “It is wrong that the 3rd defendant application was pending when the Plaintiff got approval.”
Appellant and PW2 claimed ignorance of the pendency of the 3rd respondent’s application at page 42 of Exhibit ‘B’ and that was why they did not refer the application to the Government. Appellant and the PW2 did not have sufficient time to carry out proper investigations, what they did was to bulldoze their way by side tracking all protocols and procedure in favour of the appellant.
Evidence on record shows that appellant’s application at page 43 of Exhibit ‘B’ was made on the 10th of September, 2002 while the application was treated and granted on the 11th September, 2002 that is within 24 hours. PW3 at Page 50 lines 6, 7 and 8 of the record said: “Issues of land from experience are not sorted in a day…” While PW4 at page 54 lines 23 to 24 said:- “Yes we have to verify the (sic) before the deal is concluded. It could take a week or even three.”
There was indeed a clear case of misrepresentation which induced the former Governor of Borno State to grant the application in favour of the appellant and that was specified in Exhibit ‘G’. The Governor would not have granted the approval for the sale of the house in dispute if he had known that the 1st respondent was in possession of the house and paying his rents as and at when due and also had his application pending from the 10th September, 2002 as the Court below found.
The fact which informed the Borno State Government to issue Exhibit F, the revocation notice on the ground is that:- “The recommendation of the transition committee on disposal of Government quarters that Government should with immediate effect revoke all houses sold to non-occupants under the Owner Occupier Scheme.”
I find it difficult to fathom the perversity which the appellant alludes to the finding of the Court below and so clearly the conclusion would not have been favourable to him. See Igago The State (1999) 12 SCNJ 140 at 160- 161.
From the state of pleadings, issues were joined by the parties, on whether or not the 1st respondent was in possession and occupation of the house in dispute before it was sold to the appellant. Issues were also joined on whether there was misrepresentation of facts that led to the revocation of the Certificate of Occupancy granted to the appellant and whether the Governor of Borno State had the power to revoke or cancel a Certificate of Occupancy issued by him on grounds other than those specified in Section 28 of the Land Use Act.
In the course of resolving these issues that the lower Court made reference to several provisions of the Land Use Act which had no direct bearing on the issues under consideration. The Court also made the following remarks:- “The appellant was “entitled to a right of occupancy” since he was validly in occupation/possession at the behest of the original owners from 17th November, 1983 till the dispute arose.
Section 34(2) of the Land Use Act, 1978 recognizes the appellant to have continued to hold No. 24 Benue Road, Old GRA, Maiduguri, Borno State as “the person in whom it was vested… as if… a statutory right of occupancy had been issued by the Governor under this Act.”
The learned counsel for the appellant had made allusions to the remarks of the Court below as uncalled for. There is nothing wrong with the Court below making clarifying comments on the findings it had made as they were tangential to the issues before the Court. That a Court should not be hampered on what it can say or not say in the course of its judgment so long as it is not perverse or leading to a miscarriage of justice. There should be room for the judex to express its opinion on areas related to what is before it.
It may not be within the ratio decidendi but as an obiter dictum which is allowed.
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.
Clearly, with or without the said remarks, the judgment of the lower Court will still stand as there is no miscarriage of justice that has been occasioned that is capable of upturning the judgment. Furthermore, the lower Court found at page 381 lines 12 to 15 as follows:- “The statutory right of occupancy granted the appellant by the Governor of Borno State automatically extinguished Certificate No. BO/41496 earlier granted the 1st respondent in respect of Government Quarters No.24, Benue Road, Old G.R.A., Maiduguri, Borno State.”
At page 23 para 6.2 and page 24 para 6.5 of the appellant’s brief, counsel referred to the above finding and submitted that there is no evidence before the lower Court to show that a right of occupancy was granted to the 1st respondent and that even if there is, such cannot extinguish the earlier one granted to the appellant relying on the case of S.O. Adole v. Boniface B. Gwar (2008) 11 NWLR (pt. 109) 1099) 562 at 587.
I agree with learned counsel for 1st respondent that even if the findings objected to by the appellant are expunged from the record, the judgment of the lower Court will still remain the same. In other words, there is no miscarriage of justice that has been occasioned. 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.
The case put forward by the appellant in paragraph 16 of his amended statement of claim is to the effect that his right of occupancy was revoked and same was granted to the 1st respondent and that it was illegal. 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.
It needs be stated that whether what was granted to the 1st respondent was a right of occupancy or a Deed of Assignment, what is important is that the appellant’s Certificate of Occupancy was effectively revoked before the house was sold to the 1st respondent. Since there cannot be two subsisting rights of occupancy over the same property, the appellant’s Right of Occupancy stands revoked and ceases to exist while the 1st respondent’s right takes precedence. That was the basis of the judgment of the lower Court.
There is no miscarriage of justice that has been occasioned by the lower Court’s pronouncement.
Having established under issues no. 1 and 2 that the transactions leading to the issuance of the Certificate of Occupancy were vitiated by misrepresentation on the deed of assignment executed over the land in dispute and the issuance of the Certificate of Occupancy to the appellant? 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.
This was exactly what the 2nd and 3rd respondents did in this case by issuing Exhibit ‘F’. Exhibit ‘F’ was a notice to the appellant of the decision of the Governor of Borno State to rescind the sale transaction over the house in dispute due to the fact that it was improperly sold to him and the decision to cancel or revoke the Certificate of Occupancy issued to him.
It is immaterial whether the word “revoked” or “cancelled” was used in the letter, the most important thing was that the decision of the Governor to rescind the contract of sale leading to the issuance of the certificate was effectively communicated to the appellant through Exhibit ‘F’.
The case of the appellant was founded upon a misconception that Exhibit ‘F’ was issued pursuant to the exercise of the power of revocation stipulated in Section 28 of the Land Use Act. This misconception eventuated the submissions that Exhibit ‘F’ did not comply with the conditions laid down for a valid revocation of land under Section 28 of the Land Use Act, 1978.
The learned trial Judge agreed with him in his judgment at page 371 of the record on the basis of which he gave judgment for the appellant and dismissed the 1st respondent’s counter-claim.
In setting aside the judgment, the learned justices of the Court of Appeal found at page 365 from the 23 to page 366 line 1 that: “Where his Lordship erred is the fact that the Government did not revoke the Certificate of Occupancy for overriding public interest under Section 28(1), 2(a) – (c) 44, or 51(1) of the Land Use Act, 1978.” The above findings cannot be faulted because the Governor of Borno State did not revoke the said Certificate of Occupancy pursuant to Section 28 of the Land Use Act and was therefore not bound to comply with the strict conditions stipulated under that Section.
The appellant’s counsel submitted that the revocation of the appellant’s Certificate of Occupancy based on Exhibit ‘G’ is not public purpose known to the Land Use Act, 1978 and also not within the contemplation of the Act. Counsel also submitted that the only recognised manner of extinguishing a vested right is by revoking same in any of the grounds specified under Section 28 of the Land Use Act.
There is nothing in Exhibits’ ‘G’ and ‘F’ to suggest that the Governor revoked the appellant’s Certificate of Occupancy for public interest, the reason for the revocation was expressly stated in Exhibit ‘F’, which was because of:- “The recommendation of the transition committee on disposal of Government quarters that Government should with immediate effect revoke all houses sold to non-occupants under Owner Occupier Scheme.” The appellant was also wrong in law when he submitted that the exhibits did not strictly comply with the requirements for a valid revocation of the house under Section 28 of the Act.
The appellant clearly misconceived the law when he submitted that a valid revocation can only be carried out in accordance with the provisions of Sections 28, 44 and 51 of the Act.
The Court of Appeal was correct when it stated as follows: “It seems to me that apart from cancelling or revoking a Certificate of Occupancy under Sections 44 and 51(1) of the Act for “overriding public interest” or “public purpose” occasions may arise when the Governor may exercise his powers to revoke or cancel a Certificate of Occupancy under Section 9(1) (a), (3) of the Act (supra) depending on the circumstances of each case ” 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. The lower Court correctly relied on the decision of the honourable Court in the case of SAUDE V.
ABDULLAHI (1989)7 SCNJ 216 OR (1989)4 NWLR (PT.116) 387 AT PG. 415 where Obaseki JSC had this to say:- “It does not require an express provision of the law or act to give power to the Governor to correct errors made by him arising from a misunderstanding of the facts.
If A applies for plot x and B applies plot y and plot z and approval for the allocation of the plot applied for is given, if plot y is mistakenly given to A by the Governor and the mistake is subsequently discovered, the law gives the Governor inherent power to rectify the grant.” I posit, humbly I say, that apart from the right under the sale agreement to rescind the contract due to misrepresentation, the Governor also exercised his inherent power to cancel the Certificate of Occupancy issued pursuant to the defective sale agreement and this was the purpose of Exhibits ‘G’ and ‘F’.
Appellant argued at page 18 of his brief of arguments that there was no valid revocation of the house in dispute because:- “There was no issuance and service of notice of intention to revoke the appellants statutory right of occupancy before the notice revocation of 7/7/2005.”
He also argued at page 19 that the appellant was not given any hearing at all talkless of fair hearing. He referred to several judicial decisions to buttress his arguments. The arguments and legal authorities are inapplicable to the facts of the present case on appeal. They would have been relevant if Exhibits ‘G’ and ‘F’ were purportedly issued pursuant to Sections 28, 44 and 51(1) of the Land Use Act.
The learned Justices of the Court of Appeal were right in law when they found at pages 43 and 44 of the record that such notices are mandatory if the revocations were carried out for overriding public interest under Section 28 of the Act. The Court of Appeal found at Page 375 line 1 that: “But no notice is required under Section 9(1) (a) and (3) of the Act (supra) for the Governor to cancel or revoke a Certificate of Occupancy. ” And that Section 9(1) (a) and (3) of the Act is not subject to the provision of Section 28, 44, and 52(1) of the Act.
Appellant also argued at page 20(IV) that “Exhibit ‘F’ was signed by DW1 for the Permanent Secretary of the 2nd respondent and submitted that under Section 28(6) and (7) of the Act, the revocation ought to be signed by a public officer duly authorised by the Governor and therefore the notice contemplated under Section 28(6) and (7) of the Act.
It is my considered view that the purpose of Exhibit ‘F’ was to notify the appellant that the purported sale and subsequent issuance of the Certificate Occupancy to him was cancelled and the information can be conveyed by the Governor himself, the Commissioner, Permanent Secretary or any officer in the service of the State Government.
Section 5 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:- (2) Subject to the provision of this section of this Constitution, the Executive Powers of a State: “(a) Shall be vested in the Governor of that State and may, subject to as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the State …”
It was pursuant to the provision of the above Section that Exhibit ‘E3′ was issued. Exhibit ‘E3′ is the letter of approval granted by the Governor of Borno State to the appellant duly signed by the same Acting Chief Land Officer that signed Exhibit ‘F’ under consideration.
The way Exhibit ‘E3′ conveyed to the appellant the notice of grant of his application for the house in dispute by the Governor of Borno State, was the same way Exhibit ‘F’ conveyed the cancellation or revocation of the same house. They were all acts of the State Governor effectively communicated to the appellant, qui facit per alum, facit per. See NWOSU V.
IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT.135) 688 AT 718-719. For the appellant to successfully maintain, an action, against invalid revocation of his right of occupancy, he has the burden to prove a valid and subsisting right of occupancy leading to a valid issuance of a Certificate of Occupancy. The Court of Appeal found on the evidence on record at Page 361 lines 7-9 that:- “The 1st respondent’s evidence did not establish the validity of the Certificate of Occupancy since it was obtained by misrepresentation …”
The appellant failed to dislodge this finding. It is when the appellant can prove a valid and subsisting right of occupancy over the house in dispute that he can lawfully claim that he is a holder of a right of occupancy and that his interest on that land cannot be legally revoked except and until Section 28 of the Land Use Act are strictly complied with.
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) In this case, the appellant did not have any vested interest in the property before it was irregularly sold to him in 2002.
The house was only assigned to him pursuant to the sale of the house and thereafter a certificate of occupancy was issued to him. Having shown that he obtained the house in dispute through misrepresentation, the consequent result is that the Deed of Assignment was not validly executed in his favour and therefore appellant does not have any valid Certificate of Occupancy and would therefore not be regarded as a holder of a right of occupancy as contemplated by the above provision.
A revisit to the judgment of the Court below would throw more light on what is on ground.
The learned Justices of the Court of Appeal rightly found at page 347 line 10 to page 348 line 1 as follows:- “As far as the Government of Borno State (3rd respondent) and the Ministry of Lands and Survey (2nd respondent) are concerned, the Appellant was and is still in possession of No. 24, Benue Road, Old G.R.A, Maiduguri, Borno State up to the time the dispute arose and culminated into the institution of this suit in the Court below on 18th July, in the eyes of Borno State Government and the Ministry of Lands and Survey, the policy of the Government was to sell Government quarters only to Civil Servants on Owner/Occupier basis …”
At page 32 paragraph (x) of the appellant’s brief of Argument, appellant submitted that:- “(x) The relief in paragraph 3 of the 1st respondent’s counter-claim at page 278 of the Record that:- “Declaration that the Deed of Assignment executed in favour of the 3rd Respondent is valid and subsisting” was not proved by the 1st respondent before the trial Court as the document in proof of same was challenged and marked “rejected” by the trial Court … Thus the Court below erred when it granted the relief that was not proved.”
That stance is out of line to the present discourse as parties did not join issues in their pleadings on whether the land in dispute was sold to the 1st respondent and on whether there was a Deed of Assignment issued to him pursuant to the sale of the land to him by the Government of Borno State.
In paragraph 16 and 17 of the amended statement of claim contained at page 6 of the Record, appellant averred as follows:- “16 The plaintiff avers that the purported revocation of the plaintiff’s Right of Occupancy No: BO/41496 without notifying him and the same time granting it to the 3rd defendant is null and void and indeed illegal as 1st and 2nd the defendants did not comply with the law i.e. the Land Use Act.” (Underlining mine).
In paragraph 24 of the 1st respondent statement of defence contained at page 277 of the record, he pleaded that:- “24 The 3rd defendant avers that after the revocation of the defendants proceeded to process his earlier application and granted the quarters to him, which he duly paid for and a Deed of Assignment was executed in his favour on the 20th day of July, 2005.”
In his reply, the appellant pleaded in paragraph 3 thereof at page 39 of the record that:- “3 The plaintiff shall at the trial contend that the purported approval on 7/7/2005 of the property in dispute and subsequent sale by Deed of Assignment on or about 12/7/2005 to the 3rd defendant/counter-claim on Owner/Occupier basis was wrongful, unlawful, malafide, null and void and of no legal effect. (Underlining mine).
I agree with counsel for the respondents that from the state of the pleadings exchanged by the parties on the claim and counter-claim, it is crystal clear that there is no dispute between the parties that the house in dispute was sold to the 1st respondent after the appellant’s Certificate of Occupancy was revoked. 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 …”
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.”
In the instant case, the issues upon which the suit was contested were defined by the parties themselves, and as far as the sale of the house in dispute to the 1st respondent and the issuance to him of a Deed of Assignment are concerned, parties did not join issues thereon as there was no dispute between them. 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.
There is abundant evidence to support the 1st respondent’s counter-claim as found by the lower Court in their judgment PW2 at page 49 line 10 to 13 that:- “There was a policy to reverse sale of quarters were not bought by the occupiers. The later governor reversed the sale of the quarters to occupiers and that is why the house was sold to the 3rd defendant.”
The appellant himself as PW5 gave evidence at page 56 line 14 to 16 that:- “Yes I was served with a letter on the 7th July, 2005, revoking my Certificate of Occupancy over the property in dispute and the Borno State Government gave the same house 3rd defendant on the same 7th July. ”
I have gone to great length albeit copious to underscore the brilliant work done by the Justices of Court below which did not go outside what was before them hence there is no fault on which an interference at this level can be made on the findings and decision reached thereon.
Therefore all the issues are resolved against the appellant whose appeal is dismissed as lacking in merit. I affirm the decision and orders made by the Court below.
Appeal dismissed. Costs of N1,000,000 to be paid by the appellant to the respondents.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have read in draft, the judgment of my learned brother, Mary Ukaego Peter-Odili, JSC, just delivered. All the issues in contention have been comprehensively considered and ably resolved in a manner that accords with my own views in this appeal. I adopt the reasoning and conclusion as mine.
I would also dismiss the appeal for lacking in merit. I abide by the consequential order made in the lead judgment, including the order as to costs.
EJEMBI EKO, J.S.C.: The Appellant, at all times material to this dispute, was the Secretary to State Government (SSG) of Borno State. He was a principal officer in the Government of Borno State that formulated and implemented the civil servants friendly policy of owner- occupier in which houses occupied by serving civil servants were sold to the occupiers of the properties built/owned by the Government. The Appellant, as the Secretary to the State Government (SSG), was not a civil servant so called.
The 1st Respondent, sued as the 3rd Defendant, at all the times material to the dispute was a civil servant. He held the office of Permanent Secretary entitled to be allocated an official quarters for his residence. Between the Appellant and the 1st Respondent/3rd Defendant the owner-occupier favoured the 1st Respondent more than the Plaintiff/Appellant.
The 2nd and 3rd Respondents sued by the Appellant were respectively the 1st and 2nd Defendants in the suit of the Appellant. The trial Court gave judgment in favour of the Appellant. Dissatisfied, the 3rd Defendant, now 1st Respondent, appealed. The lower Court reversed the decision of the trial Court. The crucial facts/points on which the lower Court predicated its decision are – 1. That the Appellant at the time he applied for the disputed property was not a civil servant.
The Governor satisfied that the Appellant was guilty of material non-disclosure and/or the fraudulent misrepresentation by the Appellant cancelled the sale to the Appellant and the Certificate of Occupancy (C of O) issued to him. These facts as found at pages 333, 334 and 345 – 350 of the records of appeal, were held by the lower Court as entitling the Governor, on behalf of the Government of Borno State (2nd Defendant/3rd Respondent) to invoke Section 9(1) of the Land Use Act to cancel the purported sale to the Appellant. 2.
That the Plaintiff/Appellant’s evidence at pages 361 – 365 of the record did not establish the validity of the Certificate of Occupancy (C of O) issued to him since the said C of O was obtained by fraudulent misrepresentation. The lower Court, on this finding fact, held correctly that the C of O was not revoked for overriding public interest under Sections 28(1) & (2)(a) – (c), 44 and 51(1) of the Land Use Act but for Appellant’s fraud in the manner he caused the C of O to be issued to him. Fraudulent misrepresentation is a legitimate ground for cancelling a C of O under the Land Use Act. 3.
That the 1st Respondent, as the 3rd Defendant/Appellant, was entitled to take advantage of the Appellant’s admission against interest in paragraphs 12 – 17 of the Amended Statement of Claim to the effect that the Governor’s revocation/cancellation of the C of O issued to the Appellant and he was duly notified of the fact. The notice to that effect was served on him on 7th July, 2005.
The lower Court further found and held at pages 371, 375 – 376 of the Record that no prior notice was required for the Governor, under Section 9 of the Land Use Act, the provisions not being subject to Sections 28, 44 and 55(1) of the same Land Use Act and that the Governor is empowered to cancel an allocation or grant of C of O upon discovering that in the process of processing the application mistakes, errors etc were committed which, for instance resulted in double – allocation per SAUDE v. ABDULLAHI (1989) 7 SCNJ 216 at 236 – 237.
A deliberately fraudulent misrepresentation as contrived by the Appellant should be one of such circumstances entitling the Governor to cancel a C of O mistakenly issued.
I find the decision appealed stoutly unassailable. The Appellant, as the SSG when he applied for the purchase of the disputed property under the owner-occupier policy was not only not qualified, in the first place, to benefit under the policy, he had fraudulently misled the authorities in the Borno State Government to sell the disputed property to him. At all material times, the 1st Respondent was a rent paying civil servant/tenant of the Borno State Government. The Appellant was not. The property was occupied by the 1st Respondent.
The Appellant, not a rent paying tenant in occupation as a Civil Servant, had falsely in his application claimed that the property was vacant. The fraudulent misrepresentation had actively influenced the purported sale of the property and the issuance of the C of O to the Appellant.
I notice that the findings of fact that the 1st Respondent’s application for the disputed property was first in time, that the 1st Respondent was in occupation, and that the Appellant was guilty of fraudulent misrepresentation were not appealed or challenged. These material findings of fact formed the crux of the decision appealed. It is trite that specific findings of fact neither challenged nor appealed are taken as admitted and/or accepted. They remain binding as between the parties.
This appeal is a clear exercise by the Appellant of his right of appeal to abuse the due process of the Court. It appears only issues 2 and 3 are the only valid issues formulated for the determination of the appeal. I will come anon to their merits. The appeal was brought as of right on 7 grounds of appeal, out of which grounds 1, 2, 3 and 7 are incompetent – being grounds of either pure fact or mixed law and fact, which require leave first sought and obtained to be valid. Grounds 1 and 3 raise issues of pure fact. Grounds 2 and 7 raise issue of mixed law and fact.
Out of these incompetent grounds, Issues 1, 4 and 5 have been formulated respectively from the incompetent grounds 2, 1 and 3, and 7. The three issues are merely vanity upon vanity.
Appellant’s issue 2 is misleading from the facts governing the decision appealed, the issue at the trial Court was not about revocation of a valid right of occupancy for overriding public interest or purpose, and subsequently re-allocation to a private interest or person. Both the Appellant and the 1st Respondent competed before the common grantor for the right to purchase, and the conveyance of the grantor interest in the disputed property.
In the process, the Appellant committed fraudulent misrepresentation of the basic facts in order to out-smart the 1st Respondent in the bid even though in the first place he was not qualified. At pages 333 – 334, 345 – 350 and 361 – 365, the lower Court found specifically that the 1st Respondent was a Civil Servant tenant in occupation; that his application was first in time, and further that the Appellant, in his latter application, was guilty of fraudulent misrepresentation. Curiously, these adverse findings of fact forming the bases for invocation of the principle in SAUDE v.
ABDULLAHI (supra) that the fraudulent misrepresentation justified the cancellation of the Appellant’s C of O were neither appealed nor challenged.
The law is trite that two valid titles cannot co-exist simultaneously over the same property. The misrepresentation in Exhibit F by the Appellant led to the cancellation on 7th July, 2005 of the C of O issued by the Governor in his favour. Appellant did not contest the crucially adverse finding of fact that he was guilty of fraudulent misrepresentation in his application. This adverse fact led to the cancellation of the C of O earlier issued to him.
It was subsequent to this cancellation that allocation to the 1st Respondent, a better qualified applicant Civil Servant and rent paying tenant in occupation, was made. It is not per se, as Appellant’s complaint in issue 3 seems to erroneously convey, that allocation to the 1st Respondent had automatically extinguished the grant to the plaintiff/Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>It is true equity follows the law. It is also true that equity acts in personam and that he who comes to equity must come with clean hands. In the instant case, the equities in the Appellant and 1st Respondent are not equal. The Appellant was soiled in the ignoble ignominy of his fraudulent misrepresentation to enable him qualify to bid for the disputed property which in the first he was not qualified to bid for. He had approached equity with dirty hands.
The totality of all I have been saying is that I agree with the lead judgment, just delivered by my learned brother, MARY UKAEGO PETER-ODILI, JSC that this appeal be, and is hereby dismissed for lacking in substance. All consequential orders contained in the said lead judgment are hereby endorsed and adopted by me. Appealed dismissed.
MOHAMMED LAWAL GARBA, J.S.C.: After reading a draft of the lead judgment written by my learned brother M. U. Peter-Odili, JSC, I find that all my views on the issues raised in the appeal have been comprehensively considered and rightly resolved in line with the extant principles of the law, stated and restated by this Court in the cases cited therein. I do not wish to say more than that I agree that the appeal, for all the sound reasons set out in the lead judgment, is devoid of merit and deserves to be dismissed.
It is dismissed by me too in the terms set out therein.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: Having read before now, the judgment just delivered by my learned brother, the Hon. Justice Mary Ukaego Peter- Odili, JSC, I cannot but concur with the reasoning reached therein, to the conclusive effect that the instant appeal lacks merits.
Hence, I too hereby dismiss the appeal and abide by the consequential orders made in the judgment in question.