ST. PETER PARISH MAKURDI v. REGISTEREDTRUSTEES OF DEEPER LIFE BIBLE CHURCH &

ORS

CITATION: (2018) LPELR-45892(CA)

In the Court of AppealIn the Makurdi Judicial Division

Holden at Makurdi

ON THURSDAY, 1ST NOVEMBER, 2018Suit No: CA/MK/25/2012

Before Their Lordships:

JUMMAI HANNATU SANKEY Justice, Court of AppealONYEKACHI AJA OTISI Justice, Court of AppealJOSEPH EYO EKANEM Justice, Court of Appeal

BetweenST. PETER PARISH MAKURDI - Appellant(s)

And1. THE REGISTERED TRUSTEES OF DEEPER LIFEBIBLECHURCH2. HON. COMMISSIONER,MINISTRY OF LANDS & SURVEY, MAKURDI3. HON. ATTORNEY GENERAL OF BENUE STATE

- Respondent(s)

RATIO DECIDENDI1. APPEAL - DUTY/ROLE OF A RESPONDENT: Role of a respondent to an appeal

"The 2nd and 3rd Respondents filed a joint Brief on 3/6/2015 but deemed properly filed and served on 4/3/2015. M. A. Agber, Esq., Director, P.R., Ministry of Justice, Benue State,adopted their Brief and urged the Court to allow the appeal. The Court notes that this submission is by no means in consonance with the accepted role of a respondent, which is todefend the judgment appealed against, except where he has filed a cross appeal, Adefulu v Oyesile (1989) 12 SC 43, (1989) LPELR - 91(SC); Cameroon Airlines v Otutuizu (2011)LPELR - 827(SC); Emeka v Okadigbo (2012) LPELR-9338(SC)."Per OTISI, J.C.A. (P. 4, Paras. B-E) - read in context

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2. APPEAL - DUTY/ROLE OF A RESPONDENT: Role of a respondent to an appeal"The 2nd and 3rd Respondents, in their Brief, which was adopted by Mr. Agber, had argued in favour of the issues formulated by the Appellant. Learned Counsel urged the Court toallow the appeal and set aside the judgment of the lower Court. I already made note of the fact that this position is incongruous and not in tandem with the established role of arespondent. The 2nd and 3rd Respondents filed no cross appeal. They also filed no respondent's brief. The settled traditional duty of a respondent in an appeal is to defend ajudgment;Adefulu v Oyesile (supra); Cameroon Airlines v Otutuizu (supra); Emeka v Okadigbo (supra). This role is played out either by filing a respondent's notice or by filing a crossappeal. These are distinct processes. As well expounded by the Law Lord, Nnaemeka Agu, JSC in Ogunbadejo v Owoyemi (1993) 1 SCNJ 148, (1993) 1 NWLR (PT. 271) 517; (1993)LPELR-2321(SC) at page 23 of the E-Report:"In order to properly invoke the powers of the higher Court or Tribunal, the aggrieved party files a notice of appeal or, where permitted by the rules in appropriate cases, applies fora review. Where the aggrieved party is a respondent after the other party has appealed, then he may file a notice of a cross-appeal which to all intents and purposes is like anappeal. Or he may file a respondent's notice, if he desires to retain the judgment appealed against but desires that it should be varied or affirmed on grounds other than those reliedupon by the lower Court."(Emphasis mine)See also: Eze v Obiefuna (1995) 6 NWLR (PT 404) 639; Okpa v Irek (2011) LPELR-4249(CA). The 2nd and 3rd Respondents neither filed a cross appeal nor did they file a respondent'snotice. By settled law, a respondent that has neither filed a respondent's notice nor filed a cross appeal, is compelled to respond only to the questions raised by the appellant. Hecannot in his response support the judgment on appeal and urge the appellate Court to allow the appeal.The submissions of Counsel for the 2nd and 3rd Respondents are therefore incompetent. I cannot in this circumstance countenance these said submissions for the 2nd and 3rdRespondents."Per OTISI, J.C.A. (Pp. 10-12, Paras. B-A) - read in context

3. EVIDENCE - DOCUMENTARY EVIDENCE: Instance(s) where it cannot be said that a document was dumped on the Court"Exhibit 2, which was tendered from the Bar by learned counsel for the 1 respondent, was the file opened in the name of the 1 respondent by the 2nd respondent in respect of hisapplication for change of ownership of the land in dispute. Counsel for the appellant and 2nd and 3rd respondents made use of some of the documents therein contained to cross-examine the PW1. The DW1 was also cross-examined on some of the documents. It does not therefore lie in the mouth of the appellant to complain that the document was dumpedon the Court. The essence of the position of the law against the dumping of documents on the Court is to avoid the doing of "cloistered justice" by the Court engaging ininvestigation and to ensure a public demonstration and testing before the Court of the cases of the contending parties. SeeDuruminiya V Commissioner of Police (1961) NRNLR 70,referred to with approval in Queen V Wilcox (1961) All NLR 658.Since appellant's counsel made use of Exhibit 2 to cross-examine PW1 (as did 1st respondent's counsel in cross-examining DW1) there was a public demonstration and testing of theparties' cases. There can therefore be no genuine complaint that the exhibit was dumped on the Court."Per EKANEM, J.C.A. (P. 40, Paras. A-F) - read in context

4. EVIDENCE - DOCUMENTARY EVIDENCE: Instance(s) where it cannot be said that a document was dumped on the Court"DW1 was cross-examined by Counsel to the 1st Respondent on pages 34, 36 and 51 of Exhibit 2. DW1 also admitted that the land referred to in Exhibit 2 was the same landreferred to Exhibit 6, the file No BND 8743 in the name of the Appellant. In other words, the parties were ad idem on the identity of the land in issue.It cannot be said, in this circumstance that Exhibit 2, which was tendered from the Bar, was merely dumped on the trial Court. In view of the copious cross examination on Exhibit 2,the trial Court could not have turned its eyes away from such aspects of the said file as were relevant to the evidence adduced at the hearing before it. Therefore, unlike the caseinSa'eed & Anor v Patrick Ibrahim Yakowa & Anor (supra), relied upon by Mr. Okpale, the case herein was not that of the learned trial Judge simply sifting through or sorting outexhibits on private investigation in chambers, without input by a witness to demonstrate the value of the document. See also Omisore v Aregbesola (2015) LPELR-24803 (SC); CPC vINEC (2012) LPELR-15522 (SC); Ikpeazu v Ogah (2016) LPELR-4084(CA). The trial Court therefore was right to have relied on documents in the said Exhibit 2."Per OTISI, J.C.A. (P. 15,Paras. A-F) - read in context

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5. LAND LAW - REVOCATION OF RIGHT OF OCCUPANCY: Position of the law where there is no valid notice of revocation of right of occupancy"There is absolutely no doubt that by the provisions of Section 28 of the Land Use Act, the Governor of a State may revoke the grant of a Right of Occupancy for overriding publicinterest; CSS Bookshop Ltd v The Registered Trustees of Muslim Community Rivers State (supra); Kyari v Alkali (2001) LPELR-1728(SC). Notice of revocation is by Section 28 to beserved on a holder of the right of occupancy. Section 51 thereof defines a holder of the right of occupancy as:A person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has been validly passed on the death of a holder butdoes not include any person to whom a right of occupancy has been sold or transferred without a valid assignment, not a mortgagee, sub-lessee or sub-under lessee. The 1stRespondent was claiming title from Mr. Ati. There was in existence an application for the Governor's consent to assign and a conversion of the Right of Occupancy to their name. It isimportant to note that the 2nd and 3rd Respondents abandoned their pleadings as they called no witness. However, a pertinent question that arises from the issues as joined by theparties is whether the 1st Respondent was entitled to be given a notice of revocation of the title of Mr. Michael Bisibi Ati, in whose name the original title to the land in disputeresided and when no consent to the assignment by Mr. Ati to the 1st Respondent had been obtained, although application thereof had been properly made.By virtue of Section 22 of the Land Use Act, the holder of a right of occupancy may assign his interest in land in an area designated as urban area only with the consent of theGovernor of the State. It is now well settled that, where there has been such assignment, the responsibility of applying for and obtaining the Governor's consent rests on the holderof the right of occupancy; Ugochukwu v. CCB (Nig) Ltd (2002) NLLC Vol. 1 365 at 384 Owoniboys Tech Services Ltd v UBN Ltd (2003) LPELR-2854(SC). Judicial pronouncements onthe interpretation of the provisions of Section 22 of the Land Use Act, 2004 are legion. I shall rely on a few of these pronouncements. In Brossette Manufacturing (Nig.) Ltd v. M/S OlaIlemobola Ltd & Ors (2007) LPELR-809(SC), the Supreme Court, per Katsina Alu, JSC (as he then was) said, page 16 of the E-Report:"The law in this regard is now settled. Section 22(1) of the Land Use Act 1978 reads: -"22(1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage,transfer of possession, sublease or otherwise howsoever, without the consent of the Governor first had and obtained."Section 22(1) quoted above is clear and unambiguous. The section clearly prohibits the holder of a statutory right of occupancy from alienating his right of occupancy or any partthereof by assignment, mortgage, transfer of possession, sublease or otherwise without the consent of the Governor first had and obtained. But the holder of a statutory right ofoccupancy is certainly not prohibited, by Section 22(1) of the Land Use Act, 1978 from entering into some form of negotiation which may end with a written agreement forpresentation to the Governor for his necessary consent. I think this is good sense because the Governor when giving his consent may require the holder of the statutory right ofoccupancy to submit an instrument executed in evidence of the assignment, mortgage sublease in order that his consent under Subsection (1) may be signified by endorsementthereto: See Awojugbagbe Light Ind Ltd. v. Chinukwe (1995) 4 NWLR (Pt. 390) 379 where Section 22(1) of the Land Use Act was exhaustively dealt with."Contributing to the decision in Awojugbagbe Light Industries Ltd v P.N. Chinukwe & Anor. (1995) LPELR-650(SC), (1995) 5 NWLR (PT 390) 409, Iguh, JSC, said, pages 93 - 94 of the E-Report:"I think it ought to be stressed that the holder of a statutory right of occupancy is certainly not prohibited by Section 22(1) of the Act from entering into some form of negotiationswhich may end with a written agreement for presentation to the Governor for his necessary consent or approval. This is because the Land Use Act does not prohibit a writtenagreement to transfer or alienate land. So long as such a written agreement is understood and entered into subject to the consent of the Governor, there will be no contravention ofSection 22(1) of the Land Use Act by the mere fact that such a written agreement is executed before it is forwarded to the Governor for his consent."His Lordship further said, pages 100 - 101 of the E-Report:"A close study of Section 22(2) of the Land Use Act clearly confirms that it does recognise cases where some form of written agreement or instrument executed in evidence of therelevant transaction is submitted to the Governor in order that the necessary consent under Section 22(1) may be signified by endorsement thereon. This being so, I do not conceiveit can be argued with any degree of seriousness that there was anything unlawful in the entering into or execution of Exhibit E before the Governor's consent was obtained as thisprocedure is expressly covered by Section 22(2) of the Land Use Act. The legal consequence that arises in such a situation is that no interest in land passes under the agreementuntil the necessary consent is obtained. Such an agreement so executed becomes inchoate until the consent of the Governor is obtained after which it can be said to be completeand fully effective. I am therefore of the firm view that Section 22(1) of the Land Use Act prohibits the alienation of a right of occupancy without the consent of the governor first hadand obtained but docs(sic) not prohibit agreement to alienate or in respect of terms and conditions for the purpose of effecting such alienation if and when the Governor gives hisconsent to the transaction in issue."Again, in Iragunima v Rivers State House and Property Development Authority (2003) LPELR-1533(SC), (2003) 5 SC 179, the Supreme Court, per Ogundare, JSC succinctly said, page11 of the E-Report:"I think it is a misconception to argue that as the prior consent of the Governor was not sought, nor obtained, before the Deed of Assignment was executed, the assignment was nulland void. That cannot be correct - see Awojugbagbe Light Industries Ltd v P.N. Chinukwe & Anor. (1995) 4 NWLR (Pt. 390) 379."See also Owoniboys Tech Services Ltd v UBN Ltd (supra); Calabar Central Co-Operative Thrift & Credit Society Ltd v Ekpo (2008) LPELR-825(SC) 22; Mbanefo v Agbu (2014)LPELR-22147(SC). Still on the provisions of Section 22 of the Land Use Act, this Court, per Yakubu, JCA in Nekpenekpen v. Egbemhonkhaye (2014) LPELR-22335(CA) succinctlyrestated the established position of the law thus:" The authorities of the Supreme Court are not lacking with respect to the interpretation of Section 22(1) of the Land Use Act, 1978. Both learned counsel herein, each relied onOwoniboys Services Ltd. v. Union Bank of Nigeria Ltd. (2003) MJSC 136; (2003) 15 NWLR (pt. 844) 1 at 22 - 23 where Ejiwunmi, JSC., stated: "The holder of a statutory right ofoccupancy is certainly not prohibited by Section 22(1) of the Act from entering into some forms of negotiations which may end with a written agreement for presentation to theGovernor for his necessary consent or approval. This is because the Land Use Act does not prevent a written agreement to transfer or alienate land. So long as such writtenagreement is understood and entered into subject to the consent of the Governor, there will be no contravention of the provisions of Section 22(1) of the Land Use Act by the merefact that such a written agreement is executed before it is forwarded to the Governor for his consent. Section 22(1) prohibits transaction or instruments whereby the holder of aStatutory Right of occupancy purports to alienate as a complete action, by assignment, mortgage, transfer of possession, sublease, or otherwise, the absence of the Governor firsthad and obtained notwithstanding." My understanding of the decision of the apex Court reproduced above is that: (1) Section 22(1) of the Land Use Act does not prohibit the makingof a written agreement which is intended to transfer or alienate land by the holder of a statutory right of occupancy, to another person; (2) Section 22(1) of the Land Use Act is notcontravened by the mere fact that such a written agreement was executed before it is forwarded to the Governor for his consent; (3) Section 22(1) of the Land Use Act prohibits thetransfer or alienation as a complete action, whereby the holder of a statutory right of occupancy, through assignment, mortgage, transfer of possession, sublease, or otherwise,without first having had and obtained the Governor's consent." I believe I need say no more. These pronouncements establish that the consent of the Governor to the transaction, asrequired by Section 22(1) completes and validates the alienation of interest in the right of occupancy. However, by Section 22(2), there must first be a written agreement in placebetween the parties which will be submitted for the endorsement of the Governor's consent. An agreement that has been executed before the consent of the Governor is actuallyobtained is not ipso facto invalid. Rather, the document is invalid as a document upon which any rights are enforceable until the consent of the Governor is obtained. Thereafter, itbecomes a document with enforceable terms to all intents and purposes.By the provisions of Section 26 of the Land Use Act, non-compliance with the provisions of the Land Use Act renders the transaction or instrument purporting to confer interest orright over land null and void. In this case however, there was compliance with the provisions of the Land Use Act. Mr. Michael Ati had executed a Deed of Assignment in favour of the1st Respondent. A copy of the said Deed had been submitted for Governor's consent.The 2nd Respondent had inspected and, in its report, had recommended that the said consent be given, pages 15 and 16 of Exhibit 2. The actual issuance of the consent was notwithin the power of either Mr. Ati or of the 1st Respondent. I agree with the learned trial Judge who said, page 371 of the Record of Appeal:" It is the further submission of counsel to the 1st defendant that no consent was sought and obtained so the agreement of 25/6/97 is null and void. Counsel is relying on Section 26of the Land Use Act. As stated earlier. The plaintiff is not relying on the agreement as his title. He is relying on the title of Mr. Ati. Page 3 of Exhibit 2 shows that Mr. Ati in whosename Local Government C of O Nos 1407 and 1408 were issued applied for consent to assign the said property to the plaintiff. His application is dated 11.11.97. The fact that thisapplication was made by Mr. Ati after the agreement of 25/6/97 shows that the plaintiff was relying more on the title of Mr. Ati on the property. It is therefore not correct as assertedby the 1st defendant that consent of the Governor was not sought. Application for consent was recommended. See page 16 of Exhibit 2. Neither the plaintiff nor Mr. Ati is responsiblefor the issuance of the consent. All that is expected of the title holder is to apply and where such consent is refused, the applicant should be informed. There is nothing in Exhibit 2 toshow that Mr. Ati was informed that his application for consent was refused."I endorse the view and findings of the learned trial Judge. Although application for the Governor's consent had been not obtained, the Deed of Assignment which was in the face ofthe 2nd Respondent, could not simply be ignored.The well-worn position of the law is that where a purchaser of land has paid the purchase price for the land to the vendor, he acquires an equitable interest in the land and this is asgood as a legal estate. The equitable interest so acquired can only be defeated by a purchaser for value who had no notice of the existing equity;Obijuru v Ozims (1985)LPELR-2173(SC); Gbadamosi v Akinloye (2013) LPELR-20937(SC); Goldmark (Nig) Ltd v Ibafon Co. Ltd (2012) LPELR-9349(SC). The 1st Respondent who had acquired interest in theland in dispute to the knowledge of the 2nd Respondent, and who had a Deed of Assignment executed by Mr. Ati, the holder of the Right of Occupancy, and which assignment hadbeen recommended by the 2nd Respondent for Governor's consent, was therefore entitled to be served with a notice of revocation of the right of occupancy. But, it is not in issuethat the 1st Respondent was not served with any notice of revocation.I note that there is nothing on record to show that Mr. Ati was actually served with the notice of revocation. The 2nd Respondent, from which this evidence ought to be elicited, didnot testify. I observe, as did the learned trial Judge, page 374 of the Record of Appeal, that the Notice of Revocation in the file Exhibit 2 is stamped ORIGINAL. The interestingquestion is: what then was Mr. Ati served with, if he was served at all? The 2nd Respondent that could have proffered an answer to this query did not testify.As earlier noted, by the provisions of Section 28 of the Land Use Act, the Governor of a State may revoke the grant of a Right of Occupancy for overriding public interest; CSSBookshop Ltd v The Registered Trustees of Muslim Community Rivers State (supra); Kyari v Alkali (supra). Although the learned trial Judge made comments on this point, strictlyspeaking, it is not in issue in this appeal. Be that as it may, I must observe that a right of occupancy over a certain piece of land cannot be revoked for the public purpose ofconstructing a Nursery School and a Hospital and only for the same piece of land to be re-allocated to a private organization or a Church for the purpose of constructing a ParishRefectory. That act was completely against the spirit and letter of the Land Use Act and cannot be upheld. However, this point is not in issue herein.The learned trial Judge had concluded, pages 374 - 375 of the Record of Appeal:"For the above reasons, I hold that there is no valid revocation of the title of Mr. Bisibi Ati in the plot in issue. And since title still resides in Mr. Ati, the plaintiff, who is claimingthrough him acquired a valid title. Since the title of Mr. Ati was not validly revoked the title document given to the 1st defendant over the same piece of land cannot be allowed tostand."I endorse completely the findings and conclusions of the learned trial Judge and see no reason to disturb same. Issues 1, 2 and 4 are thus resolved against the Appellant."Per OTISI,J.C.A. (Pp. 26-38, Paras. B-F) - read in context

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ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading

Judgment): This is an appeal against the Judgment of the

Benue State High Court sitting at Makurdi delivered on July

30, 2010 in Suit No MHC/184/2006 Coram E.N. Kpojime, J.,

granting the claims of the 1st Respondent against the

Appellant.

The facts leading to the appeal are, in brief, as follows: The

case of the 1st Respondent as plaintiff in the lower Court

was that the parcel of land, the subject matter of this suit,

initially belonged to one Mr. Michael Bisibi Ati, in whose

favour were issued Makurdi Local Government Certificate

of Occupancy Nos. 1407 and 1408 in respect of the land in

dispute. The 1st Respondent had on 25/6/1997 acquired the

land in dispute from one Pastor Joseph Ichul, who had

acquired same from one Malam Malaraba. The said Malam

Malaraba had acquired the same land in dispute from Mr.

Bisibi Ati. The 1st Respondent averred that while it was in

the process of validating the documents in respect of the

said land in dispute, the Certificate of Occupancy in the

names of Mr. Bisibi Ati was revoked and the title in the

land granted to the Appellant by Certificate of

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Occupancy No BND 8743, leading to the institution of

present suit, subject matter of this appeal.

The Appellant and the 2nd and 3rd Respondents in their

respective Statements of Defence denied the claims of the

1st Respondent. The case for the Appellant was that the

title document in respect of the disputed land was validly

issued to her as there was no subsisting title over the land

at the material time. That the purchase pleaded by the 1st

Respondent, was not in compliance with the law and

therefore was invalid and incapable of vesting title on her.

The 2nd and 3rd Respondents, on their part, did not proffer

any evidence in line with their pleading as their only

witness was alleged to be incapacitated. Their said

pleadings were deemed to have been abandoned. At the

conclusion of hearing, the trial Court found in favour of the

1st Respondent, and made the following orders:

1. It is hereby declared that there is no valid revocation of

the right of Mr. Bisibi Ati in the plot in dispute. The

purported revocation is hereby declared null and void.

2. It is also declared that the plaintiff acquired a valid title

to the plot in dispute through

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Mr. Ati, and should be granted statutory right thereto.

3. It is hereby declared that the plaintiff is validly on the

plot in dispute and was already in possession thereof as at

the time title thereto was issued to the 1st defendant.

4. Right of Occupancy No. BND 8743 granted to the 1st

defendant over the disputed plot is hereby declared null

and void.

5. An order of perpetual injunction is hereby made

restraining the defendants, by themselves, servants, agents

and through whosoever, from further acts of trespass on

the disputed plot.

6. General damages of N100, 000.00 is hereby awarded in

favour of the plaintiff against the defendants jointly and

severally.

Dissatisfied by the decision of the lower Court, the

Appellant lodged this appeal by Notice of Appeal filed on

26/10/2010 on seven grounds of appeal. The Appellant

seeks an order setting aside the judgment of the lower

Court and restoring the Appellant’s Right of Occupancy No

BND 8743.

The parties exchanged Briefs of Argument. At the hearing

of the appeal on 20/9/2018, the Appellant’s Brief, filed on

15/8/2013, was adopted by S.O. Okpale, Esq. for the

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Appellant, who urged the Court to allow the appeal. The 1st

Respondent’s Brief, which was settled by Amuwa Olasoji

Olatunde, Esq., and filed on 6/5/2015 but deemed properly

filed and served on 30/6/2016, was adopted by Olufunke

Shankyura, Mrs., who urged the Court to dismiss the

appeal. The 2nd and 3rd Respondents filed a joint Brief on

3/6/2015 but deemed properly filed and served on

4/3/2015. M. A. Agber, Esq., Director, P.R., Ministry of

Justice, Benue State, adopted their Brief and urged the

Court to allow the appeal. The Court notes that this

submission is by no means in consonance with the accepted

role of a respondent, which is to defend the judgment

appealed against, except where he has filed a cross appeal,

Adefulu v Oyesile (1989) 12 SC 43, (1989) LPELR –

91(SC); Cameroon Airlines v Otutuizu (2011) LPELR –

827(SC); Emeka v Okadigbo (2012) LPELR-9338(SC). I

shall return to this point.

Out of seven grounds of appeal, learned Counsel for the

Appellant distilled four issues for determination as follows:

1. Whether the Learned Trial Judge had properly evaluated

the evidence of the parties vis- a- vis their pleadings the

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case of the 1st Respondent would have seen(sic) dismissed

instead of granting same. (Ground One).

2. Whether the Learned Trial Judge was right to have set

aside the revocation of the title of Mr. Bisibi Ati for not

been validly done, when the said Mr. Bisibi Ati in whom the

said title resides was not made a party to the suit, nor was

shown to have complain (sic) about same, nor was any

issued(sic) raised by the 1st Respondent as to the

procedure leading up to the revocation of the title of Mr.

Bisibi Ati. (Grounds 2 and 3).

3. Whether the Learned Trial Judge was right to have relied

on documents in Exhibit 2 which were merely dumped on

the Court and never referred to by the PW1 during his

examination-in- chief, to arrive at the decision that there

was no valid revocation of the title of Mr. Bisibi Ati in the

subject land. Ground 4.

4. Whether the Learned Trial Judge was right in law to have

set aside the right of occupancy granted to the Appellant

when the 1st Respondent was unable to show a better title

in the disputed land (Grounds 5, 6 and 7).

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For the 1st Respondent, the following issues were

formulated:

1. Whether the learned trial Judge could look at the

contents of Exhibit 2 which was tendered and admitted in

evidence without objection which all counsel made use of at

the trial? Ground 3.

2. Whether the title of Mr. Bisibi At was validly revoked by

the 2nd and 3rd Respondents? Grounds 4 and 5.

3. Whether the learned trial Judge was right to have

annulled the Right of Occupancy No: BND 8743 granted to

the Appellant and ordered a Right of Occupancy to be

granted to the 1st Respondent? Ground 6

4. Whether the learned trial Judge properly evaluated the

evidence of the parties and ascribed probative value to

them? Ground 1.

The 2nd and 3rd Respondents adopted the issues as

formulated by the Appellant. The issues as distilled by the

Appellant and the 1st Respondent address the same

contentions. For convenience, I shall adopt the issues as

distilled by the Appellant. The Issues for determination of

this appeal shall be considered in this manner: Issue 3;

then Issues 1, 2 and 4, which are interwoven and shall be

considered together.

Issue 3

The trial Court had relied on the contents of Exhibit 2 in

finding that Mr. Michael Bisibi Ati was

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not issued with the revocation notice and that the

revocation was therefore null and void, not being in

conformity with the Land Use Act. Upon this finding that

the lower Court set aside the issuance of the Right of

Occupancy to the Appellant. It was contended for the

Appellant that the said reliance on the contents of Exhibit 2

by the trial Court was wrong. It was argued that issues

were not joined as to the service of the revocation notice on

Mr. Michael Bisibi Ati and that the lower Court ought not to

have determined the matter on that point. Exhibit 2 was

tendered by the 1st Respondent from the Bar. The witness

for the 1st Respondent, PW1, did not identify Exhibit 2 or

refer to it. It was submitted that Exhibit 2 was merely

dumped on the lower Court. It was posited that by perusing

the contents of Exhibit 2 on the issues that were not joined

by the parties at the trial and upon which the attention of

the Court was not drawn to at the trial, the trial Court

carried out a private investigation, which is not the duty of

the trial Court and which occasioned a miscarriage of

justice for the Appellant by not being accorded fair

hearing.

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Learned Counsel reasoned that the Appellant was entitled

to an order setting aside the judgment of the lower Court

on this ground. Reliance was placed on the decisions in

Haruna Yunusa Sa'eed & Anor v Patrick Ibrahim

Yakowa & Anor (2012) 49 NSCQR (Pt. 1) 453 at 493;

Chief Great Ovedze Ogboru & Anor Vs Emmanuel

Uduaghan (2011) ALL FWLR 650 at 690. The Court was

urged to set aside the judgment of the lower Court on this

basis.

For the 1st Respondent, it was argued that the learned trial

Judge was right to have held that the title of Mr. Bisibi Ati

was not validly revoked by 2nd and 3rd Respondents. In the

Amended Statement of Claim, particularly paragraphs 7 –

15 thereof, the 1st Respondent challenged the revocation of

the titles of Mr. Bisibi Ati through whom the 1st

Respondent derived the root of her title. The 1st

Respondent tendered Exhibit 2, which was the file of the

1st Respondent with the 2nd Respondent, as well as Exhibit

1, which was the file of Mr. Bisibi Ati being used for the

processing of consent to assign and conversion of the title

of plots No. 1407 – 1408 in the name of Mr. Bisibi Ati to

that of the 1st Respondent.

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The learned trial Judge had reviewed the pleadings and

evidence to make his findings. It was argued, contrary to

the contention that the lower Court was wrong to have

looked at the contents of Exhibit 2 in arriving at its

conclusion, that when a document is tendered and admitted

in evidence as an exhibit without objection and is not

inadmissible per se, the trial Judge is at liberty to look at

the contents of the document in the course of his judgment

to arrive at the justice of the matter. A Court is entitled to

look at the contents of its file or records and refer to it in

consideration of any matter before it, relying inter alia on

Chief S.O. Agbareh & Ors v. Dr. Anthony Mimra & Ors

(2008) NWLR (pt. 1071) 378 at 385; West African

Provincial Insurance Co. Ltd v. Nigerian Tobacco Co.,

Ltd (1987) 2 NWLR (Pt. 56) 299. It was argued that the

learned trial Judge was right to look at the contents of

Exhibit 2 in order to do justice in the matter; this being

because when a document is admitted, it is admitted for all

purposes; citing Idigbe, JSC in the case ofSalau Jagun

Okulade V. Abolade Agboola Alade (1976) 1 A.N.L.R

pages 56 – 62. It was further submitted that Counsel to

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the Appellant as well as Counsel to the 2nd and 3rd

Respondents made use of Exhibit 2 extensively during

cross-examination and their respective final addresses.

They cannot approbate and reprobate at the same time.

The Court was urged to resolve this issue in favour of the

1st Respondent.

The 2nd and 3rd Respondents, in their Brief, which was

adopted by Mr. Agber, had argued in favour of the issues

formulated by the Appellant. Learned Counsel urged the

Court to allow the appeal and set aside the judgment of the

lower Court. I already made note of the fact that this

position is incongruous and not in tandem with the

established role of a respondent. The 2nd and 3rd

Respondents filed no cross appeal. They also filed no

respondent’s brief. The settled traditional duty of a

respondent in an appeal is to defend a judgment;Adefulu v

Oyesile (supra); Cameroon Airlines v Otutuizu

(supra); Emeka v Okadigbo (supra). This role is played

out either by filing a respondent’s notice or by filing a cross

appeal. These are distinct processes. As well expounded by

the Law Lord, Nnaemeka Agu, JSC in Ogunbadejo v

Owoyemi (1993) 1 SCNJ 148, (1993) 1

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NWLR (PT. 271) 517; (1993) LPELR-2321(SC) at page

23 of the E-Report:

“In order to properly invoke the powers of the higher Court

or Tribunal, the aggrieved party files a notice of appeal or,

where permitted by the rules in appropriate cases, applies

for a review . Where the aggrieved party is a

respondent after the other party has appealed, then

he may file a notice of a cross-appeal which to all

intents and purposes is like an appeal. Or he may file

a respondent’s notice, if he desires to retain the

judgment appealed against but desires that it should

be varied or affirmed on grounds other than those

relied upon by the lower Court.”

(Emphasis mine)

See also: Eze v Obiefuna (1995) 6 NWLR (PT 404) 639;

Okpa v Irek (2011) LPELR-4249(CA). The 2nd and 3rd

Respondents neither filed a cross appeal nor did they file a

respondent’s notice. By settled law, a respondent that has

neither filed a respondent’s notice nor filed a cross appeal,

is compelled to respond only to the questions raised by the

appellant. He cannot in his response support the judgment

on appeal and urge the appellate Court to allow the

appeal.

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The submissions of Counsel for the 2nd and 3rd

Respondents are therefore incompetent. I cannot in this

circumstance countenance these said submissions for the

2nd and 3rd Respondents.

Resolution

Exhibit 2 was the File No. BNB 9170 Vol. I, which was in

the name of the 1st Respondent. It was opened by the 2nd

Respondent in respect of the 1st Respondent’s application

for change of ownership of the land in dispute, Plots 1407

and 1408, and issuance of certificate of occupancy over the

said land, which originally belonged to Mr. Michael Bisibi

Ati. It was produced by the 2nd and 3rd Respondents and

tendered from the Bar by learned Counsel for the 1st

Respondent. At the tendering of the said exhibit, the

Appellant’s Counsel took this objection, page 325 of the

Record of Appeal:

“In file No. BNB 9170, most of the documents therein are

uncertified photocopies. We are not opposing to (sic) those

that are not original. There is another file marked

“Temporary “No BMNB 9170. Most of the documents,

excepting the first two documents are not certified. We

urge the Court not to admit these photocopies in evidence.”

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Counsel to the 2nd and 3rd Respondents had aligned

himself with this objection. In reply, the trial Court was

urged by the 1st Respondent to discountenance the

objection as going to weight. Counsel to the 1st Respondent

also reasoned that the 2nd and 3rd Respondents ought not

to be objecting to a document they had produced. The

learned trial Judge ruled that the objection should be taken

at address stage or when the plaintiff therein, 1st

Respondent herein, is seeking to rely on a particular

document. As an aside, Exhibit 2 was the actual official file

produced by the 2nd Respondent in whose office the said

file was domiciled. Any certification required would be

premised on contents of that same file. Therefore, seeking

the Court to discountenance documents in the same file on

the complaint that the documents were not certified sounds

superfluous. But this is not the issue now.

Counsel for the Appellant as well as Counsel for the 2nd

and 3rd Respondents respectively cross-examined the 1st

Respondent’s witness, PW1, on some of the contents of

Exhibit 2, pages 333 – 334 of the Record of Appeal. Counsel

for the 1st Respondent in turn cross examined DW1, the

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Appellant’s witness on some of the contents of Exhibit 2,

page 342 of the Record of Appeal. In the final address,

respective Counsel addressed the lower Court on the

contents of Exhibit 2. The Appellant’s Counsel raised

queries on the admissibility of some of the documents in

the file, Exhibit 2 and other Exhibits. The learned trial

Judge held:

“Since several documents are contained in these files, I

shall deal with the admissibility or otherwise of an

individual document contained therein as it becomes

appropriate and relevant.

Contents of the file were thus in evidence. PW1 and DW1

were cross-examined on aspects of the file and the trial

Court had been addressed thereon. Specifically, PW1 had

testified that the original owner of the plots of land in issue

was Michael Bisibi Ati. But he had purchased the land and

was in possession, and that 2nd Respondent was aware. He

was not served with any revocation notice. He was cross

examined in this regard on pages 54 - 57 of Exhibit 2 by

Mr. Okpale. He was also cross examined on pages 10 – 13

of Exhibit 2 by Counsel for the 2nd and 3rd Respondents.

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DW1 was cross-examined by Counsel to the 1st Respondent

on pages 34, 36 and 51 of Exhibit 2. DW1 also admitted

that the land referred to in Exhibit 2 was the same land

referred to Exhibit 6, the file No BND 8743 in the name of

the Appellant. In other words, the parties were ad idem on

the identity of the land in issue.

It cannot be said, in this circumstance that Exhibit 2, which

was tendered from the Bar, was merely dumped on the trial

Court. In view of the copious cross examination on Exhibit

2, the trial Court could not have turned its eyes away from

such aspects of the said file as were relevant to the

evidence adduced at the hearing before it. Therefore,

unlike the case inSa'eed & Anor v Patrick Ibrahim

Yakowa & Anor (supra), relied upon by Mr. Okpale, the

case herein was not that of the learned trial Judge simply

sifting through or sorting out exhibits on private

investigation in chambers, without input by a witness to

demonstrate the value of the document. See also Omisore

v Aregbesola (2015) LPELR-24803 (SC); CPC v INEC

(2012) LPELR-15522 (SC); Ikpeazu v Ogah (2016)

LPELR-4084(CA). The trial Court therefore was right to

have relied on documents in the said Exhibit 2. I therefore

resolve Issue 3 against the Appellant.

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Issues 1, 2 and 4

It was contended for the Appellant that the trial Court had

failed to properly evaluate the evidence. Relying onMini

Lodge Limited & Anor v Oluka Olaka Ngei & Anor

(2010) 41 NSCQR (Pt. 1) 1 at 20-21, it was submitted

that where the trial Court fails to properly evaluated the

evidence or applies the law wrongly to the evidence

adduced before her, and the evaluation does not depend on

the demeanor of the witnesses, the appellate Court was in

position to so evaluate the evidence. It was further

submitted that in the evaluation of the evidence of the

parties and ascription of probative value to the same, the

Court was bound by the pleadings and the evidence

adduced in support. A matter may not be determined upon

facts not pleaded. Issues are not joined at the trial are not

to be considered, relying on Emeka Odiari v Francisca N.

Odiari & Anor (2009) ALL FWLR (Pt. 489) 510 at 518.

Learned Counsel reviewed the evidence adduced and urged

the Court to hold that if there was a proper evaluation of

the pleadings and probative value attached to the evidence

with all placed on

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the imaginary scale, there would no evidence upon which

the Court could rely upon to enter judgment for the 1st

Respondent. The case of the 1st Respondent would merit

an outright dismissal.

The 1st Respondent had challenged the revocation of title

to the land on two grounds. First, that the land was subject

matter of a subsisting judgment and could not be revoked

by the 2nd and 3rd Respondents. This was debunked by the

lower Court in a ruling at pre-trial stage and affirmed in the

final judgment. The second ground was that he was not

served with a revocation notice. It was not contended that

there was no revocation notice served on the holder of the

title, Mr. Michael Bisibi Ati. The Appellant contended that

issues were not joined on this point. Revocation notice, by

virtue of the Land Use Act is served on the title holder and

on no other, relying on Sections 28(6) and 51 of the Land

Use Act; and on Garuba Abioye & Ors v Sa’adu Yakubu

& Ors (2000) NLLC I at 99. That by this definition and

having admitted that original title was vested in Mr.

Michael Bisibi Ati, the 1st Respondent was not entitled to

notice of revocation of his title.

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It was submitted that the pleading and averment of the 1st

Respondent in this regard was not helpful. It was further

submitted that the 1st Respondent did not tender a valid

assignment of title to him by Mr. Michael Bisibi Ati. It was

argued that the service or non-service of the revocation

notice on Mr. Michael Bisibi Ati not having been made part

of its case by the 1st Respondent and issues not having

been joined thereon, the trial Court was wrong to have set

aside the revocation to Mr. Michael Bisibi Ati and

consequently annulling the issuance of the Right of

Occupancy to the 2nd and 3rd Respondents. Parties are

bound by their pleadings and the Court is only to decide the

case on issues that are validly presented by the parties, not

on issues that are not canvassed or submitted to her by the

parties. Reliance was placed on Mrs. Vidah Ohochukwu v

Attorney General of Rivers State & Ors (2012) 49

NSCQR 864 at 894-896 and 904. Title resided in Mr.

Michael Bisibi Ati before it was revoked and granted to the

Appellant. It was submitted that the only person who could

challenge the revocation was Mr. Ati but he did not and

was not made a party to the instant suit.

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The Court was urged to set aside the judgment of the lower

Court on this count. It was further submitted that of the

five ways of proving title to land which were pronounced in

Okumagba v Idundun (1976) 9-10 SC 227, the 1st

Respondent had predicated her title on documents. But,

that the 1st Respondent failed to tender any document to

establish her claim. Title to a disputed piece of land can

only be defeated by person with a better title, relying on

Madu v Madu (2008) 33 NSCQR (PT 11) 931 at 954 –

956. The 1st Respondent was unable to establish a better

title than that of the Appellants over the disputed land. It

was therefore submitted that the case of the 1st

Respondent ought to have been dismissed.

In reply, the 1st Respondent argued that the trial Court was

right to have held that the title of Mr. Michael Bisibi Ati

was not validly revoked. Exhibit 2 was the file of the 1st

Respondent with the 2nd Respondent. Exhibit 1 was the file

of Mr. Michael Bisibi Ati which was being used for

processing of consent to assign and conversion of the titles

of Plots 1407 – 1408 in the name of Mr. Bisibi Ati to that of

the 1st Respondent.

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The documents revealed that the 2nd Respondent was

aware that the 1st Respondent was processing consent for

the assignment from the name of Mr. Ati to her name and

any information regarding the plots for Mr. Ati ought to

have been passed through the 1st Respondent, who is

impliedly the owner of the property having an equitable

interest therein. There was no evidence that the notice of

revocation was served at all. The purported revocation was

for the purpose of constructing a Nursery and a Hospital.

But, the land in dispute was then allocated to the Appellant

for purpose of constructing a Parish refectory. The trial

Court found that the purported revocation was in bad faith

and not for public purpose. The decisions in CSS

Bookshop Ltd v The Registered Trustees of Muslim

Community Rivers State (2006) All FWLR (PT. 319)

819 at 843, 844; Governor of Ogun State v Mr.

Adegboyega Adebola Coker (2008) All FWLR (PT. 408)

1900 at 1913, among others were relied upon. Sections 28

and 44 of the Land Use Act were also relied upon. It was

further argued that the lower Court had adequately

evaluated the evidence of the parties and ascribed

probative value thereon.

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The findings of the trial Court demonstrated an

understanding of the case before him and the issues raised

by the parties as supported by the pleadings. The Court

was urged to hold that the conclusion reached by the

learned trial Judge was legally sound in the light of the

facts and evidence adduced before the trial Court. The

Court was urged to affirm the said findings and dismiss the

appeal.

Resolution.

From the pleadings and evidence adduced before the trial

Court, it was not in issue that title to the land in dispute

originally belonged to Mr. Michael Bisibi Ati. Mr. Ati sold

the land to one Alhaji Mararaba who later sold to Rev.

Joseph Ichull in the name of his sister Margaret Ichull. The

said plots were later sold to the 1st Respondent. The

deposition of PW1 is found at pages 327 – 332 of the

Record of Appeal. PW1, who in line with the pleadings of

the 1st Respondent, had stated:

“After the Purchase of the aforesaid plots, as evidenced by

the agreement dated 25th June, 1997, Plaintiff took

immediate possession thereof and also applied to the

ministry of the 4th Defendant for the issuance of Right of

Occupancy in her name and submitted the original copy

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of her said purchase agreement for the said process for

which the 4th Defendant ministry opened a file and gave

new plot No. BNB 9170 to the Plaintiff in the name of the

Plaintiff upon payment of requisite fees by the Plaintiff. The

4th Defendant later wrote a letter dated 3rd September,

1999 to the Plaintiff to report to the Ministry of the 4th

Defendant for site identification and data collection which

the plaintiff obliged. We rely on the photocopy of the

agreement of purchase thereof dated 25/6/1997 and the

letter of invitation of the Plaintiff to the office of the

4th Defendant dated 3rd September 1999. The 4th

Defendant should produce file No. BNB 9170/1407 and

1408 containing the original copies thereof…

Records further show that while Plaintiff’s application for

conversion was pending with the 4th defendant, 3rd

Defendant on the 19th December, 2005, applied for the

same piece of land and filed the application at the Land

Registry of the 4th Defendant on 21st December, 2005,

paid and was issued receipt No. 0743918 of 21st

December, 2005 on application Form 1A No. BND 8743.”

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His testimony on these facts was not controverted. The

letter of 3/9/1999 written by the 2nd Respondent to the 1st

Respondent requesting that the 1st Respondent report for

site identification and data collection for further processing

of the application for right of occupancy is found at page 18

of Exhibit 2. In other words, the land variously identified as

Plots 1407 – 1408 in the name of Mr. Michael Bisibi Ati,

was re-numbered BNB 9170 in favour of the 1st

Respondent upon her application for Right of Occupancy in

her name, following her purchase of the land in dispute.

The same land was also numbered as BNB 8743 in favour

of the Appellant, upon their application.

Also evident from the foregoing evidence of PW1 is that the

2nd Respondent was well aware of the fact that the 1st

Respondent had purchased the land in dispute and was in

possession thereof. PW1 had further testified that the 1st

Respondent was summoned for a meeting upon the

complaint of the Appellant to the 2nd Respondent to the

effect that the 1st Respondent was building a Church next

to their premises. PW1 stated in evidence:

“The 1st – 3rd Defendants then complained against the

building of a church by

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the Plaintiff close to their own to the 4th Defendant who

write a stop notice against the Plaintiff on the premises of

the complaint by the 1st-3rd Defendants and further wrote

a letter of invitation of the Plaintiff to appear before the 4th

Defendant for a meeting wherein the 1st - 3rd defendants

were represented. We rely on the photocopy of the quite

(sic) notice and invitation letter severally dated 7/8/200(sic)

and 15/8/2000. The 4th Defendant has the original copies

thereof in the files of the plots…

The Plaintiff also obliged the 4th Defendant by stopping

further development on the land and answered the

invitation during which the issue of title of the Plaintiff was

discussed with the 4th Defendant and cleared with the 4th

Defendant promising to process Plaintiff's application for

conversion to completion. The plaintiff decided to await the

completion of the conversion before embarking on the

further development of the land.”

The complaint letter to the 2nd Respondent from the

Appellant is at page 34 of Exhibit 2. The letter to stop work

of 7/8/2000 and the Invitation letter to the 1st Respondent

are found at pages 36 and 37 of

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Exhibit 2. This piece of evidence was not challenged in

cross examination.

I also find it revealing that the 2nd Respondent wrote a

Survey Report and a Planning Report regarding the 1st

Respondent’s application for right of occupancy, in which

the 2nd Respondent, inter alia, noted as follows: That the

purpose the land was required was for a Church; that the

land was under construction; that the proposed site was

compatible with those of existing land uses and that there

were no planning hitches. Both Reports then recommended

the plots for the grant of right of occupancy to the 1st

Respondent. See pages 26 and 27 of Exhibit 2. These

reports were written prior to the complaint from the

Appellant. It then means that the report by the 2nd

Respondent regarding the application of the Appellant for

allocation of the same piece of land to the effect that the

land in issue was vacant, with no one in actual occupation

was patently false. See pages 4 and 7 of Exhibit 6.

Similarly, the evidence of DW1 to the effect that at the time

the Appellant applied for the Right of Occupancy over the

same piece of land, the said land was then unoccupied and

empty

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cannot be correct; see depositions of DW1 at pages 339 –

340 of the Record of Appeal. The uncontroverted evidence

therefore demonstrates that both the Appellant as well as

the 2nd Respondent were well aware of the presence and

interest of the 1st Respondent in the land in dispute.

There is absolutely no doubt that by the provisions of

Section 28 of the Land Use Act, the Governor of a State

may revoke the grant of a Right of Occupancy for

overriding public interest; CSS Bookshop Ltd v The

Registered Trustees of Muslim Community Rivers

State (supra); Kyari v Alkali (2001) LPELR-1728(SC).

Notice of revocation is by Section 28 to be served on a

holder of the right of occupancy. Section 51 thereof defines

a holder of the right of occupancy as:

A person entitled to a right of occupancy and includes any

person to whom a right of occupancy has been validly

assigned or has been 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, not a mortgagee, sub-lessee or sub-under

lessee.

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The 1st Respondent was claiming title from Mr. Ati. There

was in existence an application for the Governor’s consent

to assign and a conversion of the Right of Occupancy to

their name. It is important to note that the 2nd and 3rd

Respondents abandoned their pleadings as they called no

witness. However, a pertinent question that arises from the

issues as joined by the parties is whether the 1st

Respondent was entitled to be given a notice of revocation

of the title of Mr. Michael Bisibi Ati, in whose name the

original title to the land in dispute resided and when no

consent to the assignment by Mr. Ati to the 1st Respondent

had been obtained, although application thereof had been

properly made.

By virtue of Section 22 of the Land Use Act, the holder of a

right of occupancy may assign his interest in land in an

area designated as urban area only with the consent of the

Governor of the State. It is now well settled that, where

there has been such assignment, the responsibility of

applying for and obtaining the Governor’s consent rests on

the holder of the right of occupancy; Ugochukwu v. CCB

(Nig) Ltd (2002) NLLC Vol. 1 365 at 384 Owoniboys

T e c h S e r v i c e s L t d v U B N L t d ( 2 0 0 3 )

LPELR-2854(SC).

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Judicial pronouncements on the interpretation of the

provisions of Section 22 of the Land Use Act, 2004 are

legion. I shall rely on a few of these pronouncements. In

Brossette Manufacturing (Nig.) Ltd v. M/S Ola

Ilemobola Ltd & Ors (2007) LPELR-809(SC), the

Supreme Court, per Katsina Alu, JSC (as he then was) said,

page 16 of the E-Report:

"The law in this regard is now settled. Section 22(1) of the

Land Use Act 1978 reads: -

"22(1) It shall not be lawful for the holder of a statutory

right of occupancy granted by the Governor to alienate his

right of occupancy or any part thereof by assignment,

mortgage, transfer of possession, sublease or otherwise

howsoever, without the consent of the Governor first had

and obtained."

Section 22(1) quoted above is clear and unambiguous. The

section clearly prohibits the holder of a statutory right of

occupancy from alienating his right of occupancy or any

part thereof by assignment, mortgage, transfer of

possession, sublease or otherwise without the consent of

the Governor first had and obtained. But the holder of a

statutory right of occupancy is certainly not prohibited, by

Section 22(1) of the Land Use Act,

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1978 from entering into some form of negotiation which

may end with a written agreement for presentation to the

Governor for his necessary consent. I think this is good

sense because the Governor when giving his consent may

require the holder of the statutory right of occupancy to

submit an instrument executed in evidence of the

assignment, mortgage sublease in order that his consent

under Subsection (1) may be signified by endorsement

thereto: See Awojugbagbe Light Ind Ltd. v. Chinukwe

(1995) 4 NWLR (Pt. 390) 379 where Section 22(1) of the

Land Use Act was exhaustively dealt with."

Contributing to the decision in Awojugbagbe Light

Industries Ltd v P.N. Chinukwe & Anor. (1995)

LPELR-650(SC), (1995) 5 NWLR (PT 390) 409, Iguh,

JSC, said, pages 93 – 94 of the E-Report:

“I think it ought to be stressed that the holder of a

statutory right of occupancy is certainly not prohibited by

Section 22(1) of the Act from entering into some form of

negotiations which may end with a written agreement for

presentation to the Governor for his necessary consent or

approval. This is because the Land Use Act does not

prohibit a written agreement to

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transfer or alienate land. So long as such a written

agreement is understood and entered into subject to the

consent of the Governor, there will be no contravention of

Section 22(1) of the Land Use Act by the mere fact that

such a written agreement is executed before it is forwarded

to the Governor for his consent.”

His Lordship further said, pages 100 – 101 of the E-Report:

“A close study of Section 22(2) of the Land Use Act clearly

confirms that it does recognise cases where some form of

written agreement or instrument executed in evidence of

the relevant transaction is submitted to the Governor in

order that the necessary consent under Section 22(1) may

be signified by endorsement thereon. This being so, I do

not conceive it can be argued with any degree of

seriousness that there was anything unlawful in the

entering into or execution of Exhibit E before the

Governor’s consent was obtained as this procedure is

expressly covered by Section 22(2) of the Land Use Act.

The legal consequence that arises in such a situation is that

no interest in land passes under the agreement until the

necessary consent is obtained.

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Such an agreement so executed becomes inchoate until the

consent of the Governor is obtained after which it can be

said to be complete and fully effective. I am therefore of the

firm view that Section 22(1) of the Land Use Act prohibits

the alienation of a right of occupancy without the consent

of the governor first had and obtained but docs(sic) not

prohibit agreement to alienate or in respect of terms and

conditions for the purpose of effecting such alienation if

and when the Governor gives his consent to the transaction

in issue.”

Again, in Iragunima v Rivers State House and Property

Development Authority (2003) LPELR-1533(SC),

(2003) 5 SC 179, the Supreme Court, per Ogundare, JSC

succinctly said, page 11 of the E-Report:

“I think it is a misconception to argue that as the prior

consent of the Governor was not sought, nor obtained,

before the Deed of Assignment was executed, the

assignment was null and void. That cannot be correct – see

Awojugbagbe Light Industries Ltd v P.N. Chinukwe &

Anor. (1995) 4 NWLR (Pt. 390) 379.”

See also Owoniboys Tech Services Ltd v UBN Ltd

(supra); Calabar Central Co-Operative Thrift &

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Credit Society Ltd v Ekpo (2008) LPELR-825(SC) 22;

Mbanefo v Agbu (2014) LPELR-22147(SC). Still on the

provisions of Section 22 of the Land Use Act, this Court,

per Yakubu, JCA in Nekpenekpen v. Egbemhonkhaye

(2014) LPELR-22335(CA) succinctly restated the

established position of the law thus:

" The authorities of the Supreme Court are not lacking with

respect to the interpretation of Section 22(1) of the Land

Use Act, 1978. Both learned counsel herein, each relied on

Owoniboys Services Ltd. v. Union Bank of Nigeria Ltd.

(2003) MJSC 136; (2003) 15 NWLR (pt. 844) 1 at 22 -

23 where Ejiwunmi, JSC., stated: "The holder of a statutory

right of occupancy is certainly not prohibited by Section

22(1) of the Act from entering into some forms of

negotiations which may end with a written agreement for

presentation to the Governor for his necessary consent or

approval. This is because the Land Use Act does not

prevent a written agreement to transfer or alienate land. So

long as such written agreement is understood and entered

into subject to the consent of the Governor, there will be no

contravention of the provisions of Section 22(1) of the Land

Use Act by the mere

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fact that such a written agreement is executed before it is

forwarded to the Governor for his consent. Section 22(1)

prohibits transaction or instruments whereby the holder of

a Statutory Right of occupancy purports to alienate as a

complete action, by assignment, mortgage, transfer of

possession, sublease, or otherwise, the absence of the

Governor first had and obtained notwithstanding." My

understanding of the decision of the apex Court reproduced

above is that: (1) Section 22(1) of the Land Use Act does

not prohibit the making of a written agreement which is

intended to transfer or alienate land by the holder of a

statutory right of occupancy, to another person; (2) Section

22(1) of the Land Use Act is not contravened by the mere

fact that such a written agreement was executed before it

is forwarded to the Governor for his consent; (3) Section

22(1) of the Land Use Act prohibits the transfer or

alienation as a complete action, whereby the holder of a

statutory right of occupancy, through assignment,

mortgage, transfer of possession, sublease, or otherwise,

without first having had and obtained the Governor's

consent."

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I believe I need say no more. These pronouncements

establish that the consent of the Governor to the

transaction, as required by Section 22(1) completes and

validates the alienation of interest in the right of

occupancy. However, by Section 22(2), there must first be a

written agreement in place between the parties which will

be submitted for the endorsement of the Governor’s

consent. An agreement that has been executed before the

consent of the Governor is actually obtained is not ipso

facto invalid. Rather, the document is invalid as a document

upon which any rights are enforceable until the consent of

the Governor is obtained. Thereafter, it becomes a

document with enforceable terms to all intents and

purposes.

By the provisions of Section 26 of the Land Use Act, non-

compliance with the provisions of the Land Use Act renders

the transaction or instrument purporting to confer interest

or right over land null and void. In this case however, there

was compliance with the provisions of the Land Use Act.

Mr. Michael Ati had executed a Deed of Assignment in

favour of the 1st Respondent. A copy of the said Deed had

been submitted for Governor’s consent.

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The 2nd Respondent had inspected and, in its report, had

recommended that the said consent be given, pages 15 and

16 of Exhibit 2. The actual issuance of the consent was not

within the power of either Mr. Ati or of the 1st Respondent.

I agree with the learned trial Judge who said, page 371 of

the Record of Appeal:

“ It is the further submission of counsel to the 1st

defendant that no consent was sought and obtained so the

agreement of 25/6/97 is null and void. Counsel is relying on

Section 26 of the Land Use Act. As stated earlier. The

plaintiff is not relying on the agreement as his title. He is

relying on the title of Mr. Ati. Page 3 of Exhibit 2 shows

that Mr. Ati in whose name Local Government C of O Nos

1407 and 1408 were issued applied for consent to assign

the said property to the plaintiff. His application is dated

11.11.97. The fact that this application was made by Mr. Ati

after the agreement of 25/6/97 shows that the plaintiff was

relying more on the title of Mr. Ati on the property. It is

therefore not correct as asserted by the 1st defendant that

consent of the Governor was not sought. Application for

consent was recommended.

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See page 16 of Exhibit 2. Neither the plaintiff nor Mr. Ati is

responsible for the issuance of the consent. All that is

expected of the title holder is to apply and where such

consent is refused, the applicant should be informed. There

is nothing in Exhibit 2 to show that Mr. Ati was informed

that his application for consent was refused.”

I endorse the view and findings of the learned trial Judge.

Although application for the Governor’s consent had been

not obtained, the Deed of Assignment which was in the face

of the 2nd Respondent, could not simply be ignored.

The well-worn position of the law is that where a purchaser

of land has paid the purchase price for the land to the

vendor, he acquires an equitable interest in the land and

this is as good as a legal estate. The equitable interest so

acquired can only be defeated by a purchaser for value who

had no notice of the existing equity;Obijuru v Ozims

(1985) LPELR-2173(SC); Gbadamosi v Akinloye

(2013) LPELR-20937(SC); Goldmark (Nig) Ltd v

Ibafon Co. Ltd (2012) LPELR-9349(SC). The 1st

Respondent who had acquired interest in the land in

dispute to the knowledge of the 2nd Respondent, and who

had a Deed of Assignment

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executed by Mr. Ati, the holder of the Right of Occupancy,

and which assignment had been recommended by the 2nd

Respondent for Governor’s consent, was therefore entitled

to be served with a notice of revocation of the right of

occupancy. But, it is not in issue that the 1st Respondent

was not served with any notice of revocation.

I note that there is nothing on record to show that Mr. Ati

was actually served with the notice of revocation. The 2nd

Respondent, from which this evidence ought to be elicited,

did not testify. I observe, as did the learned trial Judge,

page 374 of the Record of Appeal, that the Notice of

Revocation in the file Exhibit 2 is stamped ORIGINAL. The

interesting question is: what then was Mr. Ati served with,

if he was served at all? The 2nd Respondent that could

have proffered an answer to this query did not testify.

As earlier noted, by the provisions of Section 28 of the Land

Use Act, the Governor of a State may revoke the grant of a

Right of Occupancy for overriding public interest; CSS

Bookshop Ltd v The Registered Trustees of Muslim

Community Rivers State (supra); Kyari v Alkali

(supra).

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Although the learned trial Judge made comments on this

point, strictly speaking, it is not in issue in this appeal. Be

that as it may, I must observe that a right of occupancy

over a certain piece of land cannot be revoked for the

public purpose of constructing a Nursery School and a

Hospital and only for the same piece of land to be re-

allocated to a private organization or a Church for the

purpose of constructing a Parish Refectory. That act was

completely against the spirit and letter of the Land Use Act

and cannot be upheld. However, this point is not in issue

herein.

The learned trial Judge had concluded, pages 374 – 375 of

the Record of Appeal:

“For the above reasons, I hold that there is no valid

revocation of the title of Mr. Bisibi Ati in the plot in issue.

And since title still resides in Mr. Ati, the plaintiff, who is

claiming through him acquired a valid title. Since the title

of Mr. Ati was not validly revoked the title document given

to the 1st defendant over the same piece of land cannot be

allowed to stand.”

I endorse completely the findings and conclusions of the

learned trial Judge and see no reason to disturb

same. Issues 1, 2 and 4 are thus resolved against the

Appellant.

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Finally, this appeal is completely without merit. The appeal

fails and is hereby dismissed. The judgment of the High

Court of Benue State delivered on July 30, 2010 in Suit No

MHC/184/2006 is hereby affirmed.

The 1st Respondent is entitled to costs which are assessed

at N 100, 000.00 against the Appellant.

JUMMAI HANNATU SANKEY, J.C.A.: I had the privilege

of reading in draft form the Judgment just delivered by my

learned brother, Otisi, JCA. My Lord’s reasoning and

conclusions are in tandem with my consideration of the

issues arising therein.

Thus, for the reasons meticulously articulated in the

Judgment, I also find the Appeal wholly without merit. I

therefore dismiss same and abide by the consequential

orders made.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead

judgment of my learned brother, Otisi, JCA, which has just

been delivered. I agree with my learned brother that the

appeal is completely without merit.

However, let me put in a word or two for purpose of

emphasis.

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Exhibit 2, which was tendered from the Bar by

learned counsel for the 1 respondent, was the file opened

in the name of the 1 respondent by the 2nd respondent in

respect of his application for change of ownership of the

land in dispute. Counsel for the appellant and 2nd and

3rd respondents made use of some of the documents

therein contained to cross-examine the PW1. The DW1 was

also cross-examined on some of the documents. It does not

therefore lie in the mouth of the appellant to complain that

the document was dumped on the Court. The essence of the

position of the law against the dumping of documents on

the Court is to avoid the doing of “cloistered justice” by the

Court engaging in investigation and to ensure a public

demonstration and testing before the Court of the cases of

the contending parties. SeeDuruminiya V Commissioner

of Police (1961) NRNLR 70, referred to with approval in

Queen V Wilcox (1961) All NLR 658.

Since appellant’s counsel made use of Exhibit 2 to cross-

examine PW1 (as did 1st respondent’s counsel in cross-

examining DW1) there was a public demonstration and

testing of the parties’ cases. There can therefore be no

genuine complaint that the exhibit was dumped on the

Court.

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The right of occupancy of the original assignee of the land

in dispute (Michael Bisibi Ati) was not validly revoked. This

is because the right of occupancy was purportedly revoked

for the specified public purpose of construction of a nursery

school and hospital but the same piece of land was re-

allocated to the appellant for the purpose of constructing a

Parish refectory. That can not be public purpose, not to talk

of over-riding public purpose within the contemplation of

Section 28 of the Land Use Act. Thus as rightly held by the

trial judge;

“And since title still resides in Mr. Ati, the plaintiff,

who is claiming through him acquired a valid title.

Since the title of Mr. Ati was not validly revoked the

title document given to the 1st defendant over the

same piece of land can not be allowed to stand.”

It is for those reasons and the more comprehensive reasons

stated in the lead Judgment of my learned brother, that I

also find no merit in the appeal. I accordingly dismiss the

same and abide by the consequential orders made in the

lead judgment.

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Appearances:

S.O. Okpak, Esq. with him, O.M. Iyiokpo, Esq. ForAppellant(s)

Olufunke Shankyura (Mrs.) with him, E.C.Onuoha. Esq. -for 1st Respondent.M. A. Agber, Esq., Director, P.R., Ministry ofJustice, Benue State with him, S.T. Sokpo, Esq.and E. l . Nyityo, Esq. - for 2nd and 3rdRespondents.For Respondent(s)

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