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In The Supreme Court of Nigeria

On Friday, the 27th day of January 1989

 

 

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Salihu Modigbo Alfa Belgore

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Ebenezer Babasaanya Graig

......

Justice, Supreme Court

 

 

S.C. 188/1987

 

 

Between

 

 

Savannah Bank of Nigeria Ltd

David B. Oni-Orisan

.......

Appellants

 

And

 

 

Ammel O. Ajilo

Ammels Photo Industries Ltd

.......

Respondents

 

 

 

Judgement of the Court

Delivered by

Andrews Otutu Obaseki. JSC

 

This appeal deals with the interpretation and application of some of the provisions of the Land Use Act 1978. Since the promulgation of the Act by the Military Administration of General Obasanjo in 1978, the vast majority of Nigerians have been unaware of its revolutionary effect. They have been unaware that the Act swept away all the unlimited rights and interest they had in their lands and substituted them with very limited rights and rigid control of the use of their limited rights by the Military Governors and Local Governments.

 

This appeal is probably one of the earliest of contested matters that will bring the revolutionary effect of the Act to the deep and painful awareness of many. The experience of disbelief and the ultra sensitivity to the irritating thoughts of 1055 of freedom to use one's property without exploitative government control exhibited by the appellants' counsel notwithstanding the fact remains that we must all appreciate the true legal position and bring it to the knowledge of the beneficiaries of rights and interest in land in each State of the Nigerian Federation. This will enable the steps necessary to bring the law in line with the wishes of Nigerians to be taken. Section 1 of the Act has made no secret of the intention and purpose of the law. It declared that land in each state of the Federation shall be vested in the Military Governor of each state to be held in trust for the use and common benefit of all Nigerians.

 

The principal question for determination in the appeal before this court has been well formulated by the appellants. The formulation of the question for determination by the Respondents, though in line with the argument in the briefs filed by the appellants, is not expansive enough to accommodate a broad view of the question. I Will therefore, in reference, adopt the question formulated by the appellants for the purpose of this judgment. It reads:

 

Whether a person, who is deemed to be a holder of a right of occupancy pursuant to section 34 of the Land Use Act, requires, solely by virtue of that fact, the consent of the Military Governor before he can transfer, mortgage, or otherwise dispose of his interest in the right of occupancy. More specifically, do the provisions of section 22 of the Land Use Act apply to a person who is deemed to be the holder of a right of occupancy pursuant to section 34 of the Act solely by virtue of his being deemed such a holder." (Italics mine)

 

Before embarking on an examination of this question, a brief narration of the course of this matter since the initiation of the proceedings in the High Court is desirable. Also, a brief resume of the facts as found by the two courts below and their judgments will be given to enable the complaints of the appellants to be appreciated.

 

The proceedings leading to this appeal were initiated in the High Court of Lagos State by the Respondents, Ammel 0. Ajilo and Ammels Photo Industries Ltd. as plaintiffs claiming against the Defendant

 

1.    A declaration that the 1st Defendant by itself, its servants or agents (including the 2nd any other manner with, dispose of, any right, title or interest of the 1st plaintiff in the property situate, lying, and being at No.1 Oyekanmi Street (off Itire Road), Mushin, Lagos, in exercise or purported exercise of a power of sale under a Deed of Mortgage dated the 5th day of September, 1980 and registered as No.52 at page 52 in volume 1807 of the Lagos State Land Registry, in the office at Lagos (which property is hereinafter called "The Mortgaged Property") without the prior written consent of the Governor of Lagos State under section 22 of the Land Use Act, 1978, having been first sought and obtained and as no such consent has been sought and obtained.

 

2.    A declaration that the purported mortgage or transfer of the said mortgaged property to the 1st Defendant by the 1st plaintiff is ineffective, null and void and as no power to mortgage the said mortgaged property can be exercised or exercisable by any of the parties thereto as the power to mortgage is subject to the written prior consent of the Governor of Lagos State under section 22 of the Land Use Act, 1978 and no consent has been sought or obtained by either the plaintiff or the 1st Defendant or at all.

 

3.    A declaration that the Public Notice entitled "Auction Notice" dated 24th May, 1985 whereby the 2nd Defendant as agent of the 1st Defendant advertised that the mortgaged property shall be sold by public auction on Friday, 14th June, 1985 on the instruction of the 1st Defendant in exercise or purported exercise of the power of sale of the 1st Defendant under the mortgage deed aforesaid, is invalid, null, and void because no power of sale under that mortgage deed can be exercised or is exercisable on 14th June, 1985 without the prior written consent of the Governor of Lagos State under section 22 of the Land Use Act, 1978 and no such consent had been sought or obtained by the 1st Defendant or at all.

 

4.    An order of perpetual injunction restraining the 1st Defendant by itself, its servants or agents (including the 2nd Defendant) or otherwise however, from auctioning, selling, disposing or otherwise dealing with any rights, title or interest of the 1st plaintiff in the mortgaged property in exercise or purported exercise of a power of sale under the said mortgage deed.

 

Pleadings were filed and exchanged and the issues joined were listed for hearing and determination before Hotonu, J. At the hearing, no witnesses were called but two documents, the Deed of Legal Mortgage and the title deed were admitted by consent and marked Exhibits 'A' and 'B' respectively. Counsel then closed their clients' cases and addressed the court.

 

At this juncture, it is necessary to refer to the pleadings to ascertain the issue joined. The statement of claim contains only 10 paragraphs and the statement of defence 5 paragraphs. As evidence was not heard in this matter, I think it necessary for the purpose of this judgment to set the pleadings (the statement of claim and the statement of defence) out in full. The statement of claim reads:

 

1.    The 1st plaintiff is the managing director of the 2nd plaintiff company;

 

2.    The 2nd plaintiff is a company incorporated in Nigeria under the Companies Act, 1968 with its registered office at 43 Bamgbose Street, Lagos, Lagos State and is a customer of the 1st Defendant Bank.

 

3.    The 1st Defendant is a Bank incorporated as a limited liability company with its registered office at 9/11 Catholic Mission Street, Lagos and having branches throughout Nigeria.

 

4.    The 2nd Defendant is a licensed auctioneer and has been engaged as an auction agent of the 1st defendant to carry out the sale of the mortgaged property mentioned in paragraph 5 infra.

 

5.    By a deed of Legal mortgage dated 5th day of September, 1980, and registered as No.52 at page 52 in Volume 1807 of the Lagos State Land. Registry, in the office at Lagos, the 1st plaintiff as surety mortgaged all his rights, title and interest in the property situate, lying and being at No.1 Oyekanmi Street (off Itire Road), Mushin, Lagos (hereinafter called the Mortgaged Property") to the 1st Defendant, the sums secured by that deed of mortgage in respect of Credit Facilities or Advances made by the 1st Defendant to the 2nd plaintiff.

 

6.    The plaintiffs aver that in the Public Notice entitled ~Auction Notice" dated 24th May, 1985,the 2nd Defendant as agent of the 1st Defendant/Bank advertised that the mortgaged property shall be sold by public auction on Friday, 14th June, 1985 by 2p.m. on the instruction of the 1st Defendant in the exercise or purported exercise of a power of sale of the 1st Defendant under the said mortgage deed.

 

7.    The plaintiffs further aver that by and under section 22 of the Land Use Act, 1978, the purported mortgage/transfer of the mortgaged property to the 1st Defendant by the 1st plaintiffs is ineffectual without prior written consent of the Governor of Lagos State, and at all martial times no such consent has been sought and obtained by the 1st Defendant;

 

8.    By and under section 22 of the Land Use Act, 1978, the statutory power of sale contained in the said mortgage deed is not exercisable without the prior written consent of the Governor of Lagos State, and at all material times no such consent has been sought or obtained by the Defendants or at all.

 

9.    The plaintiffs aver that in breach of the requirements of section 22 of the Land Use Act, the 1st and 2nd Defendants are planning and are taking steps to sell, auction, assign or dispose of the rights, title and interest of the 1st plaintiff in the mortgaged property and would do so unless restrained by this Honourable Court.

 

10.  The plaintiffs shall found on the following documents at the trial of this case namely:

 

(a)  auction notice dated 24th May, 1985,

 

(b)  copy of Deed of Mortgage mentioned in paragraph 5 supra whereof the plaintiffs claim as per their writ of summons.

 

The statement of defence as I said earlier, is comparatively shorter than the statement of claim. It consists of only five paragraphs and reads:

 

1.    Save and except as are hereinafter specifically admitted, the Defendants deny each and every allegation of fact contained in the Statement of Claim as if each and every such allegation were set out seriatim and separately denied;

 

2.    The Defendants admit paragraphs 1-6 of the Statement of Claim;

 

3.    The Defendants state that -

 

(a)  the property at No. 1, Oyekanmi Street mentioned in paragraph 5 of the statement of claim was vested in the 1st plaintiff for an estate in fee simple under and by virtue of a deed of conveyance dated the 23rd of December, 1965 and registered as No.31 at page 3~ in Volume 896 of the Land Registry in Ibadan (now in Lagos);

 

(b)  by the operation of the provision of section 34(2) of the Land Use Act 1978 No.6, the said property continued to be held by the said 1st plaintiff as if he was the holder of a statutory right of occupancy issued by the Military Governor of Lagos State with effect from 29/3/78;

 

4.    The Defendants will contend at the trial of this action that the provisions of section 22 of the Land Use Act apply only to rights of occupancy granted by the Military Governor and the said provisions do not apply to rights of occupancy deemed to be granted by the Military Governor.

 

5.    In the premises the contentions of law contained in paragraphs 7, 8 and 9 of the statement of claim are misconceived; Whereupon the Defendants say that the action is frivolous, vexatious and an abuse of the process of the court and ought to be dismissed."

 

From the pleadings, the issue is clear. While it is the contention of the plaintiffs/Respondents that the consent of the Military Governor in writing is a pre-requisite to any valid transaction pertaining to the mortgaged property, the appellants contend that such requirement pertain to statutory right of occupancy granted by the Military Governor and not to (land vested in the holder of) a statutory right of occupancy deemed issued to him by the Military Governor by virtue of the title to the land and vested in him prior to the commencement of the Land Use Act and section 34(2) of the Land Use Act.

 

Learned Counsel to the Defendants/appellants made copious references to section 39, section 39(1)(a), section 22, section 34(5) and section 34(2) to throw light on his contention. Learned Counsel for the plaintiffs/Respondents rejected the appellants' contention. He submitted that the key to the proper interpretation of section 22 is not to be found in section 39 of the Act but can be discovered by reading the Act as a whole against the general intention of the policy behind the promulgation of the Act and the purposes and objectives for which the Act was designed. According to him, the broad interpretation is that section 22 applies both to holder of certificate of occupancy actually granted by the Military Governor and deemed holders of certificates by virtue of section 34(2) of the Act. The narrower interpretation of section 22 limits its application to holders of statutory right of occupancy actually granted whereas the broad interpretation extends its application to the holders of deemed statutory right of occupancy. He made copious references to sections 1, 2, 34(2), 36(4), 40, 5(1)(a) and 41 of the Act. He also referred to sections 39(a) and 21(b), 45, 48 and 34(4) of the Act.

 

The learned trial Judge gave detailed consideration to all the submissions of counsel made to him in his well considered judgment wherein he granted all the declarations and reliefs claimed. In the penultimate paragraph of his judgment, he said:

 

      "Having considered the Act as a whole, I think I should be bound by the case of Nahman V. Odutola and also Supreme Court decisions in the case of Labaran Nakyauta V. Ibrahim Maikima (supra). I am of the opinion that failure to obtain the required consent of the Military Governor under Section 22 of the Act has rendered the deed of mortgage Exhibit A null and void ab initio and the mortgage transaction illegal. Accordingly, the power of sale under the mortgage cannot be exercised."

 

He then proceeded to make the declaration and grant the order of injunction claimed.

 

The Defendants were dissatisfied with the decision and they appealed to the Court of Appeal on two grounds. The grounds were:

 

                1.     The learned trial Judge erred in law in holding as follows:

       I am of the opinion that failure to obtain the required consent of the Military Governor under section 22 of the Act renders the deed of mortgage null and void ab initio and the mortgage transaction illegal.

 

Particulars of Errors

 

      (a) The provisions of section 22 of the Act do not apply to land such as the one involved in this case where the holder is a deemed holder of a statutory right of occupancy under section 34 of the Act;

 

      (b) In the premises the deed of mortgage in this case is not null and void.

 

   2. The learned trial Judge erred in law in failing to observe that statutory provisions are not to be construed as displacing or abolishing vested rights save only to the extent to which their provisions clearly displace or abolish such rights.

 

The Court of Appeal heard the written and oral submissions of counsel to the parties and considered them in a well considered judgment which it delivered when dismissing the appeal.

In dismissing the appeal, Kolawole, J.C.A., said in the penultimate paragraph of his lead judgment:

 

The logical conclusion following from this view is that every rights holder whether under section 34 or section 36 of the Land Use Act requires the consent of the Military Governor before it can transfer, mortgage or otherwise dispose of his interest in the right of occupancy. In other words, section 22 or 21 of the Act applies to every rights holder pursuant to section 34 or 36 of the Act.

  The result of all that I have discussed is that the judgment of Hotonu, J. dated 12th February, 1986 is unassailable.

 

Concurring with Kolawole, J .C.A., Ademola, J . C.A. said:

 

 The transaction here is a mortgage deed. It comes within the provision of section 26 of the Act which says thus:

 

      Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provision of this Decree is null and void.

       In effect it requires that the deed of mortgage Exhibit A must show on its face that the approval under section 22 has been sought and granted otherwise it is void of no effect.

 

Also concurring, Nnaemeka-Agu, J.C.A. (as he then was) said:

 

 That the Governor has authority over deemed right is just beyond question by section 38 of the Act.

 

  The Defendants were still dissatisfied. They were not satisfied with the decision of the Court of then

brought this appeal against that decision on the same grounds as those they set out against the decision of the trial Judge, Hotonu, J. They read:

 

  1. The Court of Appeal erred in law in holding that the failure to obtain the consent of the Military Governor under section 22 of the Act rendered the deed of mortgage null and void and the mortgage transaction illegal.

 

Particulars of Error

 

(a) The provisions of section 22 of the Act do not apply to land such as the one involved in this case where the holder is a deemed holder of a statutory right of occupancy under section 34 of the Act;

 

(b) In the premises the deed of mortgage in this case is not null and void.

 

2.    The Court of Appeal erred in law in failing to observe that statutory provisions are not to be construed as displacing or abolishing vested rights save only to the extent to which their provisions clearly displace or abolish such rights. Accordingly deemed grants of statutory right of occupancy under section 34 of the Land Use Act do not require the consent of the Military Governor.

 

Naturally arising from these grounds of appeal, the issue formulated by the appellants is only one and it reads:

 

      Whether a person who is deemed to be the holder of a right of occupancy pursuant to section 34 of the Land Use Act, requires, solely by virtue of that fact, the consent of the Military Governor before he can transfer, mortgage or otherwise dispose of his interest in the right of occupancy. More specifically, do the provisions of section 22 of the Land Use Act apply to a person who is deemed to be the holder of a right of occupancy pursuant to section 34 of the Act solely by virtue of his being deemed to be such a holder?

 

The Respondents formulated the question for determination differently. They identified what they termed the "Real Question For Determination." This, they stated in their brief as follows:

 

      Whether the provisions of section 22 of the Land Use Act should not be read to include a holder of a right of occupancy in whom any land was vested prior to the commencement of the Act as envisaged by sections 34(2) and 36(2); or a holder whose holding is "deemed to be granted by the Military Governor" as contained under section 39(1)(a) of the Act in order to reflect the clear intention of the Act; in other words, whether the Land Use Act 1978 was enacted to create two types of interest in land which may be obtained by citizens viz: A right of occupancy expressly granted by Military Governors or their agents, local government authorities, which interest is subject to the provisions of the Land Use Act, 1978 as opposed to a right of occupancy deemed granted by the respective Military Governors or their agents- the Local Government authorities, which interest exists outside the Land Use Act, 1978 and is not subject to its provisions.

 

      While the question formulated by the Respondents arises for consideration, the real question for determination is the question formulated by the appellants.

 

       Put in another way, the question is whether the 1st Respondent required the written consent or consent in writing previously obtained to mortgage his property called the mortgaged property to the 1st appellant having regard to the fact that the property was vested in the 1st Respondent before the commencement of the Land Use Act, 1978 and by virtue of section 34(2) of the Act the 1st Respondent continues to hold the land as if he is the holder of a statutory right of occupancy issued by the Military Governor under the Land Use Act.

 

Learned Counsel to the appellants, Chief F. R. A. Williams, S.A.N. in amplification of his brief of arguments addressed the court extensively on this question.

 

Dr. Kusamotu, learned Counsel to the Respondents in reply also addressed the court at length in amplification of his brief.

 

Professor A. B. Kasunmu, S.A.N., as an amicus curiae on his application addressed the court briefly on the question, pitching his tent on the side of the Respondents' counsel.

In the course of the address of counsel, the court's attention was drawn to various sections of the Land Use Act but emphasis was laid on sections 1,2, 5, 22, 34, 36, 39, and 40. I intend to examine the submissions of counsel separately in dealing with the question of determination.

 

Chief F. R. A. Williams, in his submission, referred to section 1 of the Land Use Act and placed emphasis on the phrase "subject to the provisions of this Decree." He then referred to the state of land in the country before the Land Use Act. Before the Land Use Act, land was held either under common law, statute law or customary law. Learned Counsel then urged the court not to presume that there is implied repeal of these laws unless there is an express provision in the Land Use Act which is inconsistent with the old law. He then referred to the book titled Vennion Statutory Interpretation 1st Ed. p.317. The book emphasised according to him that laws should not be subject to casual change. By analogy he cited the Minerals Act of 1916 which vested the property in Waters of the country in the Crown then. But he contended that still it was held that the law did not destroy the right of the public to fish in the waters. He cited Amachree V. Kalijo 2 N.L.R. 108 at 111 per Ross, J. He cited the case of Chief Dick Harry Braide v. Chief Adoki 10 N.L.R. 15 and Adeshina V. Lemonu (1965)1 All N.L.R. 233 at 235 & 236. He then referred to: Maxwell on Interpretation of Statutes 10th Ed. He conceded that when there is a vesting provision, there is an intention to take away the vested rights or interest formerly held such as interests in fee simple, for life or for a term of years. He contended that the pragmatic approach of this court is to preserve the existing right of customary tenants. He then submitted that section 1 of the Act is subject to the provisions of sections 34 and 36 of the Act. He conceded that the administrative powers in respect of all land are vested in the Governor and contended that there are different schools of thought as to whom the ultimate title to land is vested - the governor or the people.

 

On vesting he cited the case of Uyovwukerhi V. Afonughe (1976)5 S.C. 84 at 91 per Obaseki where the cases cited above were approved.

 

Learned Counsel then examined section 34 of the Act subsection by subsection and then drew the court's attention to subsection 7 which expressly requires the prior consent in writing of the Military Governor to any further sub-division of the land or any transfer of the land. The penal provision in subsection 8 of section 34 is also significant.

 

Learned Counsel also examined section 36 subsection by subsection and drew attention of the court to the absolute prohibition of any transfer of land to which the section relates. He then asked what the need was to promulgate subsection (5) of section 36 if section 22 applies to deemed grant.

 

Learned Counsel then submitted that since there are special provisions in section 34 and section 36, the sections should not be governed by the general provisions in section 22 of the Act.

 

Concluding his oral submissions, learned Counsel adopted all the submissions in his brief.

 

It is however significant to note the concession made by learned Counsel in his brief on the import of section 38 of the Land Use Act. At page 10 of the brief, learned Senior Advocate and counsel to the appellants submitted thus:

 

      With respect, the argument regarding the correct interpretation of section 22 of the Land Use Act is not based upon the suggestion that section 34(2) of the Act is to be read as not being subject to the powers of the governor in general. The argument is that a deemed grant under section 34(2) does not come within the scope of the expression "statutory right of occupancy granted by the Military Governor" as used in section 22 of the Act and in other parts of the Act. The provisions contained in section 38 of the Act was put there to ensure that no argument will be advanced to the effect that the powers of revocation conferred on the Military Governor by section 28 of the Act are inapplicable to deemed grants arising under the transitional provisions contained in sections 34 and 37. It is accordingly submitted that the correct inference to be drawn is that but for the provisions of section 38 of the Act, it may have been arguable that deemed grants are not subject to the powers of revocation conferred on the Governor by section 28 of the Act. In short, section 38, far from showing that there is no distinction between deemed grants and actual grants, confirms the distinction by providing that for the purposes of section 28, the distinction shall make no difference expresso unius est exclusio alterius. The distinction without difference is however confined to section 28 and not the rest of the Act.

 

I shall, in the course of the judgment show that this concession determines the appeal against the appellant.

 

That there is a distinction between a deemed grant and an actual grant goes without saying. That the same incidence flows from both grants also goes without saying.

 

In origin, a deemed grant is different from an actual grant. A deemed grant under the Land Use Act is a grant by operation of law. An actual grant is a grant made by the activities of the Military Governor under the Land Use Act.

 

Both the actual and the deemed grants being grants the deemed grants being regarded by the law as if made by the Military Governor also become subject to legal controls as if granted by the Military Governor. Having made this short interim observation, I proceed to the submissions of Dr. Kusamotu.

 

Dr. Kusamotu submitted that a deemed grantee is like an actual holder of a grant of a statutory right of occupancy and is subject to the provision of section 22 of the Land Use Act. Failure to obtain the prior consent in writing of the Military Governor to any transaction, transfer, mortgage etc. renders the transaction null and void. He then cited:

 

(1) Paul Dickson & anor. V. Solicitor-General of Benue - Plateau State (1974) 5 S.C. 21

 

(2) Alhaji Labaran Nakyauta V. AIhaji Maikima (1977) 6 S.C. 51.

 

He referred to and dealt with the provisions of sections 1,2,5, 15,21,26,34, 36, 39, 41, 40 and 50 of the Land Use Act. He considered the policy and intention of the Act and observed that the Act is a revolutionary legislation, its main aim being to change the land tenure law of Nigeria. It did not provide a half way house or create two parallel land holding systems.

 

Professor A. B. Kasunmu, in his contribution asks the Court to examine the scheme of the entire legislation. He submitted that sections 1 to 33 tend to unify the land law of both the north and south. It did not leave any room for one system to operate in the north and another to operate in the south as is claimed by the appellants.

 

This case has once more highlighted the unnecessary difficulties created by lack of precision and inelegant drafting of statutes. The Land Use Act as a major legislation affecting the fortunes of every Nigerian leaves a lot to be desired in its drafting. The Land Use Act is an existing law and, as I declared in another forum earlier on last year, has come to stay with us. Laudable as the intention of the Act declared in the provisions of section 1 is, it is my opinion that it cannot be realised as long as the administrative provisions which deprive all Nigerians of the use and benefit of the land vested in the Military Governor remains. It is for Nigerians through their representatives (elected and non elected) to give detailed examinations to these provisions and make the necessary amendments to enable the Act achieve its laudable purpose.

 

The question for determination in this appeal can only find an answer in the correct interpretation of section 34(2), section 22 and section 26. This however cannot be achieved by taking these sections in isolation and interpreting them without regard to other sections of the Act.

 

Although the 1st plaintiff/Respondent by the tenor of the Land Use Act committed the initial wrong by alienating his statutory right of occupancy without prior consent in writing of the Governor, the express provisions of the Land Use Act makes it undesirable to invoke the maxim 'ex turpi causa non oritur actio' and the equitable principle enshrined in the case of Bucknor-Maclean V. Inlaks Ltd. (1980)8-11 S.C. 1.

 

I will start the further consideration of this question by examining the meaning of 'deemed' grant of statutory right of occupancy in section 34(2). The section did not use the term 'deemed'. The words are 'as if' and quite appropriately describe the nature of the interest. In full, section 34(1) and (2) of the Land Use Act reads:

 

1.    Part VI. Transitional and other related provisions. The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Decree;

 

2.   Where the land is developed, the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor." (Italics mine)

 

The words "as if" are clear enough to equate deemed grant with actual grant.

 

It is conceded that the 1st Respondent is the holder of a statutory right of occupancy in respect of the mortgaged property by virtue of section 34(2) of the Land Use Act. The 1st Respondent is therefore deemed to be the holder of a statutory right of occupancy issued or granted by the Military Governor. The word "deemed" freely used by the parties to describe and qualify the interest held by the 1st Respondent in the mortgaged property has many meanings but the meaning that is most appropriate in the circumstances, in my view, is one of the definitions in Stroud's Judicial Dictionary 4th Edition Vol.2 page 716. It reads:

 

"(4) When a thing is to be "deemed" something else, it is to be treated as that something else with the attendant consequences but it is not that something else (per Cave, J., R. V. Norfolk County Court 60 L.J. Q.B. 380); therefore, an ATTORNMENT, within s.6 of the Bills of Sale Act 1878 (c.31) and which thereby "shall be deemed to be a BILL OF SALE" requires registration to perfect its validity as though it were a bill of sale, it is not a bill of sale, and therefore, need not be (indeed it could not be). In accordance with the form prescribed by s.9 of the Bills of Sale Act 1882"

 

It is therefore my opinion that "deemed grant" is to be treated as a grant by the Military Governor with all the attendant consequences and subject to the provisions in the Act for the control by the Governor of the use and transfer of the right.

 

The words of section 34(2) of the Act are clear and unambiguous and so should be given their ordinary meaning. The discovery of the intention of the law maker as conveyed by the words of the statute is what the search is all about when the court embarks on statutory interpretation. Thus, the deemed grant of statutory right of occupancy so declared by section 34(2) of the Land Use Act is totally different from the grant of statutory right of occupancy made or issued by the Military Governor under section 5(l) of the Act. Section 5(1) of the Act reads:

 

It shall be lawful for the Military Governor in respect of land whether or not in an urban area -

 

(a) to grant statutory right of occupancy to any person for all purposes.

 

Holders of statutory right of occupancy granted by the Military Governor are subject to the provisions of section 22 of the Act which read:

 

       It shall not be lawful for the holder of a statutory right of occupancy granted by the Military Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sub-lease or otherwise howsoever without the consent of the Military Governor first had and obtained.

 

These are provisions which are of great import in the instant appeal.

 

The contention of the appellants is that this section has no binding effect on holders of deemed grant under section 34(2) primarily because that section did not expressly say so and also because that section imposed restriction on alienation of land to which subsection (5)(a) or (6)(a) applies without the prior consent in writing of the Military Governor.

 

To ascertain the correct interpretation of the provision of section 34(2) vis--vis that of section 22 of the Act, the Land Use Act is to be read as a whole. Every clause of a statute is to be construed with reference to the context of other clauses of the Act so as far as possible to make a consistent enactment of the whole statute. [See the case of Lincoln College (1595) 3 Co. Rep 586 at p.596 Canada Sugar Refining Co. Ltd. v. R. (1898) A.C. 735 per Lord Davey at p. 741 .] In this connection, if section 34(2) is read together with sections 38, 22, 28, 20 and 15, the construction that will emerge will in my view be that section 22 applies to any alienation by the holder of a deemed grant of a statutory right of occupancy.

 

A statute should not be given a construction that will defeat its purpose. To exclude a holder of a deemed grant of statutory right of occupancy, the interpretation would defeat the purpose of the Act particularly the provision of section 22. The construction ut res magis valeat quam perat must be given. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we shall avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that the legislature would legislate only for the purpose of bringing about an effective result [Nokes v. Doucaster Amalgamated Collieries Ltd. (1940) A.C. 1014 per Yiscount Simon L.C. at 1022]

 

Where alternate constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating and that alternative is to be rejected which will introduce uncertainty, fiction or confusion into the working of the system [ Shannou Reahties Ltd. v. Ville de St. Michel (1924) A.C. 185 per Lord at pp.192 and 193.]

 

The holder under the provision in section 34(2) of the Act does not come either under the restriction of subsection (8) of section 34 or be made to suffer the penalty under subsection (9) of section 34. These are special provisions.

 

If The Military Governor can revoke the right of occupancy~ held by virtue of section 34(2) in exercise of his powers under section 38 and section 28,  it follows that section 22 of the Act a breach of which attracts revocation under section 28 applies to a deemed grant.

 

It is necessary at this juncture to refer to the provisions of section 38 and section 28 of the Act. Section 38 reads:

 

       "Nothing in this part shall be construed as precluding the exercise of the Military Governor or as the case may be the Local Government concerned of the powers to revoke in accordance with the applicable provision of this Decree the right of occupancy, whether statutory or customary in respect of any land to which this part relates."

 

It is my opinion that the rights of occupancy to which the provisions of section 38 of the Act refers are those deemed to ha\e been granted by the Military Governor under sections 34(2). (5)(a) and (6)(a) of the Act and those deemed to have been granted by section 36(2) of  the Act. The provisions of sub-sections (1) and (2)(a) of section 28 read:

 

I . It shall be lawful for the Military Governor to revoke a ri2ht of occupancy for overriding public interest:

 

2. Overriding public interest in the case of statutory right of occupancy means

 

(a) the alienation by the occupier by assignment. mortgage transfer of possession sub-lease or otherwise of any right of occupation  or part thereof contrary to the provisions of this Decree or of any regulations made thereunder.

 

The consequence of a breach of section 22 of the Act is therefore expressly stated or stipulated as a revocation. Section 20 of the Act. however provides an alternative in the form of penal rent without prejudice to the power of revocation. Subsection 1 of section 20 reads:

 

       If there has been a breach of section 22 or 23 the Military Governor may in lieu of revoking the statutory right of occupancy concerned demand that the holder shall pay an additional and penal rent for and in respect of each day during which the land the subject of a statutory right of occupancy or any portion thereof or any buildings or other works erected thereon shall be or remain in the possession control or occupation of any person whomsoever other than the holder.

 

It should be observed that these penal provisions are directed at the holder principally to emphasise that his action of alienating the property is unlawful. Sections 26, 34(8) and 36(5) and (6) of the Act however seriously affect the right and interest of the transferee. Section 26 reads:

 

      Any transaction or any instrument which purports to confer on or vests in any person any interest or right over land other than in accordance with the provision of this Decree shall be null and void.

 

It is my opinion that all these restrictive and penal provisions are designed to emphasise and reinforce the superior position in which the Decree or Act has placed the Military Governor in respect of Land matters in each State of the Federation Although section 1 vested, subject to the provisions of the Act, all lands comprised in the territory of each state in the Federation in the Military Governor of that state and made him a trustee to hold the land in trust and to administer it for the use and common benefit of all Nigerians in accordance with provisions of the Land Use Act and section 2(1)(a) placed all land in urban areas under his control and management the penal provisions were designed to strengthen his hand in carrying out his duties of control and management. Section 1 makes it clear that it is all land comprised in the territory of each state with the exception of land vested in the (Head of the Federal Military Government) President to which section 49 refers is vested in the Military Governor of each State. Section 1 reads:

 

      Subject to the provisions of this Decree all land comprised in the territory of each State in the Federation are hereby vested in the Military Governor of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree.

 

Chief Williams observed quite rightly that the Military Governor is only a trustee and does not become the beneficial owner of the land. He contended and I agree with him that section 2 of the Act vests in the Military Governor no more than administrative or management powers over land in urban areas. It is clear that in view of the wordings of section 1 of the Act, the powers of control and management vested in the Military Governor and Local Governor by section 2 of the Act are not outside but as set out in the Act. While the interest vested in the Military Governor is unstated in the Act, the interest a Nigerian can lawfully acquire from the Military Governor is scaled down to statutory right of occupancy. In terms of known interests in land, the quantum of a statutory right of occupancy remains unclear. To the extent that it can only be granted for a specific term (see section 8 of the Act) it has the semblance of a lease. Also to the extent that a holder has the sole right to and absolute possession of all the improvements on the land during the term of a statutory right of occupancy, a holder does not enjoy more rights than a lessee under common law. When therefore section 34(2) of the Act converted the interest held by an owner to a statutory right of occupancy the Act reduces him to the position of a tenant subject to the control of the state through the governor. As a tenant, he is bound by the implied and express terms of the tenancy. As one of the terms stated in the Act is that a holder requires prior consent in writing of the Military Governor to any alienation, I would answer the question for determination in the affirmative.

 

It is observed and rightly pointed out by learned Counsel to the appellants that section 39(1) of the Act in conferring jurisdiction on the High Court in respect of certain proceedings conferred jurisdiction in respect of:

 

       proceedings in respect of any land the subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted by him under this Act and for the purpose of this paragraph proceedings include proceedings for a declaration of title to a statutory right of occupancy."

 

but having regard to section 38 of the Act the non-mention of deemed grant in section 22 of the Act does not affect the application of the section to deemed grant. In view of section 40 of the Act, the emphasis on the jurisdiction of the High Court over deemed grants of statutory right of occupancy in section 39(1) was necessary. Section 40 reads:

 

      Where on the commencement of this Act proceedings had been commenced or were pending in any court or tribunal (whether at first instance or on appeal) in respect of any questions concerning or pertaining to title to any land or interest therein such proceedings may be continued and be finally disposed of by the court concerned but any order or decisions of the court shall only be as respects the entitlement of either of the parties to the proceedings to a right of occupancy, whether statutory or customary, in respect of such land as provided in this Decree."

 

It is important to observe that the Military Governor has the control and management of land in urban areas. Sub-section 1(a) and (b) of section 2 reads:

 

as from the commencement of this Act:

 

    (a) all land in urban areas shall be under the control and management of the Military Governor of each State; and

 

    (b) all other land shall subject to this Act, be under the control and management of the local Government within the area of jurisdiction of which the land is situated.

 

The control and management of all land in the state, apart from the land vested in the President, Commander-in-Chief of the Armed Forces, is therefore vested either in the Military Governor or the Local Government and while the Military Governor has power to grant statutory right of occupancy in respect of any land ~see section 5(1)(a)] the Local Government has power to grant customary right of occupancy in respect of land not in an urban area ~see section 6(1)(a) and (b)].

 

Chief Williams laid great emphasis on the Rule of Statutory Interpretation that tautology should not as a rule be attributed to the legislature. I entirely agree with the Rule. The words of Viscount Simon in Hill v. William Hill (Park Lane) Ltd. (1949) A.C. 530 at 54~577 and the advice of Lewis, J.S.C. in Nasr v. Bouari (1969)1 All N.L.R. 35 at p.41 needs to be recalled.

Viscount Simon said:

 

      Though a parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in the case of an Act of Parliament is not to be assumed. When the legislature enacts a particular phrase in a statute, the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out." ISee Hill v. William Hill (Park Lane) Ltd. (supra)

 

In a forthright manner, Lewis, J.S.C. said:

 

       we must lean against treating the words as surplusage or tautologous and give effect to all the words of the section if that is possible.

 

A careful reading of the Land Use Act as a whole and relating the various sections to one another in appropriate cases will disclose no tautology. Likewise, section 34(2) of the Act cannot be read in isolation to relieve the holder of a statutory right of occupancy the consequences of a breach of certain provisions of the Decree including section 22 and section 28 in particular.

 

In my view and I agree with Chief Williams' expression of anxiety over the implementation or consequences of the implementation of the consent clauses in the Decree; it is bound to have a suffocating effect on the commercial life of the land and house owning class of society who use their properties to raise loans and advances from the banks. I have no doubt that it will take the whole working hours of a State Military Governor to sign consent papers (without going half way) if these clauses are to be implemented.

 

These areas of the Land Use Act need urgent review to remove their problem nature. This appeal fails.

 

I would dismiss it and I hereby dismiss it with N500.00 costs to the Respondents.

 

 

Judgment delivered by

Augustine Nnamani. J.S.C.

 

 

I had a preview of the judgment just delivered by my learned brother, Obaseki, J.S.C. and I agree with his reasoning and conclusions. I would also dismiss this appeal. This is however such an important case that some comment is necessarily called for.

 

The facts of this case have been adequately and admirably set down in my learned brother's judgment and I do not find it necessary to repeat them.

 

What I have to set down, however, are the issues for determination as set down by both the appellants and the Respondents. In their respective briefs of argument these were set down as follows:-

 

As seen by the appellants, the issue was:

 

      Whether a person who is deemed to be a holder of a right of occupancy pursuant to Section 34 of the Land Use Act, requires, solely by virtue of that fact, the consent of the Military Governor before he can transfer, mortgage, or otherwise dispose of his interest in the right of occupancy. More specifically, do the provisions of Section 22 of the Land Use Act apply to a person who is deemed to be the holder of a right of occupancy pursuant to Section 34 of the Act solely by virtue of his being deemed to be such a holder.

 

The formulation of the issues by the Respondents in their own brief is a little more detailed and, in my view. highlights more the matters which arise for resolution in this appeal. At page 3 of their brief of argument the issue is stated thus:-

 

      Whether the provisions of Section 22 of the Land Use Act should be read not to include a holder of a right occupancy in whom any land was vested prior to the commencement of the Act as envisaged by Sections 34(2) and 36(2) or a holder whose holding is "deemed to be granted by the Military Governor" as contained under Section 39(1)(a) of the Act in order to reflect the clear intention of the Act: in other words, whether the Land Use Act, 1978 was enacted to create two types of interests in land which may be obtained by citizens viz: A right of occupancy expressly granted by Military Governors or their agents, The Local Government Authorities, which interest is subject to the provisions of the Land Use Act, 1978 as opposed to a right of occupancy deemed granted by the respective Military Governors or their agents - The Local Government Authorities, which interest exists outside the Land Use Act, 1978 and is not subject to its provisions.

 

The three Sections of the Act more directly involved in this Suit are Sections 22, 26 and 34. It is relevant to set them down at the beginning. These sections read as follows:

 

22. It shall not be lawful for the holder of a Statutory right of occupancy granted by the Military 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 Military Governor first had and obtained.

 

26. Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Decree shall be null and void."

 

34. (1) The following provisions of this Section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Decree.

 

(2) Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor under this Decree.

 

(3) In respect of land to which subsection (2) of this Section applies there shall be issued by the Military Governor on application to him in the prescribed form a certificate of occupancy if the Military Governor is satisfied that the land was immediately before the commencement of this Decree vested in that person."

 

Before embarking on this interpretation of these Sections and other Sections, of the Land Use Act such as 1, 2, 9, 15, 36, 39, 41, 49 and 50, to which our attention has been drawn, I think there are a few matters that one should call to mind. The most important, and this is among the matters urged on this Court by Dr. Kusamotu and Professor Kasunmu, S.A.N., learned Counsel to the Respondents and amicus curiae respectively, is a clear understanding and appreciation of the objectives of the Land Use Act. No interpretation of the Act in my view can be meaningful without due recognition of the revolutionary intention of the Act - an intention to drastically alter the pattern of ownership, control and management of land in the Southern part of this country. Before the Land Use Act came into force in 1978, it is not in dispute that there were broadly two different and distinct land systems in North and South Nigeria. In the North, they had a Tenurial system which in effect left the ownership and management of land with the Local Authorities and State Governments. The system of issue of certificate of occupancy was already in existence. In the South, on the other hand there were various patterns of ownership and control of land. Under the Public Lands Acquisition Ordinances and laws, land was compulsorily acquired from individuals or communities and eventually used for some public purpose - either for building of an institution or for the development of layouts for residential purposes. The various State Land laws followed in this direction - acquiring land and using same for public purposes. Often this involved laying such land into layout plots and allocating same to individuals. In either of these cases, the freehold interest remained with Government and the individuals to which plots were allocated got leasehold interests. Alongside this, there was private ownership of land in which land was owned by individuals or communities freehold, such land having come either by inheritance, outright purchase, or gift.

 

The preamble to the Land Use Act puts the objectives of the Act clearly:

 

      Whereas it is in the public interest that the rights of Nigerians to the land of Nigeria be asserted and preserved by law:

       AND whereas it is also in the public interest that the rights of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families should be assured, protected and preserved.

 

Section 1 of the Land Use Act reads:

 

      Subject to the provisions of this Decree, all land comprised in the territory of each State in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree.

 

It seems to me that when one takes this Section together with such portions of the preamble as say that "the rights of all Nigerians to the Land of Nigeria be asserted and preserved by Law", there is a clear intention to take over what is referred to as the land of Nigeria and to hold it in trust in the interest of all Nigerians whatever may have been the prior individual or group interests therein. Provisions of the Act which give the Governor powers of control and management of the land and which involve the issue of certificates of occupancy, provisions for consent of the Governor before dealing with the land, as well as such provisions as even limit the amount of undeveloped land each individual can hold suggest that this was the intention of the Act. I would not of course subscribe to the view that the Act nationalised land in Nigeria for there are provisions which protect individual dealing with land, subject to the provisions of the Act, which is inconsistent with the concept of nationalisation. One cannot go through the provisions of the Land Use Act without coming to the conclusion that to vest all land in the territory of a State on the Governor, give him powers of control and management of same, concede to individuals or groups nothing more than a certificate of occupancy - whether statutory or customary - and insist on all dealings with land being subject to his consent, is to give to the Governor almost all the incidents of ownership, or at the very least radical title. It is my view that a readier acceptance of this obvious meaning of the Act does not preclude the wider question of whether such a legislation ought to continue to remain on our statute book. It is the refusal to accept this revolutionary import of the Act that has led to the varied interpretations of its provisions as well as the many controversies that so often come to the Court for resolution. One suspects that some interpreters of the provisions of the Act do so as if they were anxious to wish away what I have just referred to as the import of the Act and the objective of the legislature in promulgating it.

 

It is also clear to me, as indeed Dr. Kusamotu submitted to this Court, that one other major objective of the Act is to harmonise the land tenurial system in both North and South Nigeria. It is clear that for some time the North had had the system whereby control and management of land were in the hands of the Local Authority or the Governor as the case may be. Control was by means of certificates of occupancy. What the Land Use Act has in fact done is to bring control and management of land along the same line - by the use of Certificates of Occupancy. This was indeed a marked change from the types of tenure which I had underlined earlier in this judgment.

 

One other general matter that one ought to deal with before coming to grips with the sections of the Act to which I earlier made reference, is the general principles which must be observed in the interpretation of this Act as indeed all Statutes. One of the important principles in the interpretation of statutes is that the clauses or sections of the Act or statute should be construed together. It was stated in Canada Sugar Refining Company v. R. (1898) A.C. 735 at 741 per Lord Davey that:

 

       Every clause of a statute is to be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute."

 

See also Case of Lincoln College (1895) 3 Co. Rep. 586 at 596; Turquand V. Board of Trade (1886)1 App. Cas. 286; Attorney-General V. Brown (1920)1 K.B. 773. This principle has been adopted by this Court in the interpretation of our Constitution which is itself a Statute. See Adesanya V. President (1981) 5 S.C. 112, 134. See also Reid V. Covert 354, U.S. 177 Sct. 1222; IL. Ed. 2d H4 1148. One other principle of construction of Statutes is what is usually referred to as beneficial construction. This is the tendency of the Courts, when faced with a choice between a wide meaning which carries out what appears to have been the object of the legislature more fully and a narrow meaning which carries it out less fully or not at all to choose the former. See Re Wingham (1949) P.187. This is also the attitude which our courts have adopted in the interpretation of our Constitution. One recalls the memorable words of Udoma, J.S.C. in Rabiu V. State (1980) ~11 S.C. 130 at 148-149. The learned Justice said:

 

       In my view, this Court should whenever possible, and in response to the demands of justice, lean to the broader interpretation; unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution I do not conceive it to be the duty of this Court to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.

 

A similar attitude was evolved in relation to the Constitution of the United States for construction cannot defeat its obvious ends but rather must accord the words sense and thus enforce and protect it. See Prigg v. Pennsylvania 10 L.Ed 1060.

 

Relating all this to the matter in hand which is the interpretation of the Land Use Act, one cannot arrive at the proper meaning of Section 34(2), and much less the true intendment in enacting it, by construing it narrowly and in isolation from the other provisions of the Act. The true meaning is more likely to be arrived at by looking at that Section of the Act together with Sections 1, 2,5,9,34(3) and 39 at least. Such an examination shows whether there was any intention to exclude the holder under Section 34(2) of the Act from the total scheme of the Act as can be discerned from Sections 1-33 - control and management by the Governor through the issue of certificates of statutory rights of occupancy and the general intendment to vest the land on him in trust for all Nigerians. Further, the section in issue has to be so construed as not to defeat the object of the legislation. Was it the intention of the legislation to create two separate and distinct land holding systems? The answer is clearly in the negative. Again, could the legislature in enacting Section 34(2) have intended to defeat its purpose which is essentially to put all land in the control and management of the Governor albeit for the benefit of all? Again the answer must be in the negative.

 

Having thus set the background to the Land Use Act including what I perceive to be the objectives of the legislation, it seems to me fairly obvious what the true meaning of Section 34(2) must be. Although I had set it down earlier. I think for emphasis I should refer to it once more. It provides that, "(2) where land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of statutory right of occupancy issued by the military Governor under this Decree". ( Italics mine)

 

Section 5 of the Decree (now Act) empowers the Governor of a State to issue in respect of land whether or not in an urban area (italic mine) (a) a grant of rights of occupancy to any person for all purposes. It is not dispute that a statutory right of occupancy granted by the Governor under this section of the Decree will be subject to all the implications of such a grant which must include the conditions of the grant such as are in section 5(b)(c) and (d) as well as in sections 22 and 26 of the Act etc. It has to be remembered that the grant of Section 5 can be in respect of land in Urban area. It is now being contended that because of the provision of Section 34(2) of the Act., a holder of developed land in an urban area will hold such land as if it were outside the Act, outside the implications of a grant of statutory right of occupancy . In my view the use of the words "as if" in Section 34(2) denotes nothing more than that that person is taken as if he is already holding a statutory right of occupancy. What is particularly significant is that if he is taken as if he is holding statutory right of occupancy. it must mean that his holding, whatever it was prior to the commencement of the Act is one which is within the contemplation of a grant of statutory right of occupancy. The only difference is that while a person who holds undeveloped land in or outside an urban area have to apply and obtain a certificate of statutory right of occupancy, the person who had developed land was taken as already holding one . That this is the obvious interpretation is shown by the provisions of section 34(3) which in respect to land to which subsection 2 applies. the Military Governor can, on application. Issue a certificate of occupancy in the prescribed form. Such a certificate is no s sense different from the certificate of occupancy he would have issued in cases in which Section 5 of the Act applies. Indeed in practice, persons holding land under Section 34(2) of the Act have had to apply for such certificates of occupancy for purposes of loans from banks and other commercial transaction. See also Section 34(4) of the Act.

 

One other matter worth noting is that the holder under Section 34(2) holds the statutory right of occupancy as if he is holder of right of occupancy issued by the Governor under this Decree. It follows from my reasoning that if he is in the same position as a person who applied and obtained his statutory right of occupancy, his holding must be subject to whatever conditions attach to a statutory right of occupancy. If there was further need for clarification in this matter, it seems to me to have been provided by Section 39( I )( a ), as if there was need to clear whatever ambiguity may have created, proceedings referred to in that section are "proceedings in respect of any land the subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted by him under this Decree." No difference appears between these two grants by the Military Governor. It is essential in resolving this matter to look at the structure of the Act itself. Sections 1-33 deal with the scheme. Sections 34-38 deal with TRANSITIONAL and other Related Provisions. The first point worth noting is that there is nothing specifically excluding the operation of the other parts of the Act to this part. A perusal of the Sections in this part will show that they were intended to deal with purely transitional matters, particularly reconciling the provisions of the Act with the realities of what is already on the ground. One cannot closely examine the provisions of this part of the Act without appreciating that, having regard to its obvious revolutionary provisions, and the radical and sudden transformation of land interest it was making. at least in the South of the Country, it was intended to some extent to ameliorate the rigors of the Act. This is why Section 34(5), against the pervasive nature of Section 1 of the Act, dealt with the amount of land which a previous holder of undeveloped land could still hold and the amount of land a holder of several portions of land in parts of an urban area could still hold. Section 35 dealt with land which had been laid out as plots by a family or group of persons and compensation payable if the Military Governor wished to take it over. On the other hand, Section 36 dealt with land held by persons in the Local Government area before the commencement of the Act and Section 36(2) is in similar terms as Section 34(2) and was intended to preserve land which was being used for agricultural purposes - it certainly was intended to save families which had held their farming land for centuries from rushing to the Local Government Headquarters for the issue of a certificate of occupancy. By the same token such families were saved from unnecessary harassment. Section 36(2) accorded specific recognition to the customary practice of shifting cultivation and included land left to lie fallow under that system within agricultural land in respect of which a grant of customary right of occupancy is presumed.

 

It is against this background that Section 34(2) must be viewed. It did nothing more than save the holders of developed land before the commencement of the Act from the inconvenience of rushing to the Governor's Office to obtain a certificate of statutory right of occupancy. A holder of developed land which was held freehold before the commencement of the Act. although he would on the coming into effect of the Act hold as if he was already holding a statutory right of occupancy. might never have contact with the Military Governor's Office if he never had to make any transfers or assignment to any other person or never needed to borrow money etc.

 

Chief Williams, S.A.N. in contending for the special status of the deemed holder of a statutory right of occupancy under Section 34(2) of the Act raised two issues. First, he referred to Section 1 of the Act which starts with the words "Subject to the provisions of the Decree." This is used to buttress his contention that the words of Section 34(2) were intended to give the holders of the deemed statutory right of occupancy (i.e. holders of developed land before March, 1978) a different holding not subject to the conditions attached to statutory rights of occupancy such as are in Sections 22 and 26 of the Act. I am afraid I cannot give those words such a restrictive interpretation. There were several other matters in the Act which necessitated the use of those words in Section 1 which vested all land on the Military Governor. Section 49 of the Act for instance excluded land held by the Federal Government. Perhaps more important, is the fact that the holding by the Military Governor is subject to all the control and management procedures mentioned in Sections 2(2) 5, 9, etc. Secondly, Chief Williams pointed out that while it is said that Section 22 deals with the whole land vested in the Governor, Section 34 had saved some land held by persons before the commencement of the Act and 34(7) also states that no land to which Sections 5(a) and (b) and 6 apply shall be transferred to anybody without the consent of the Military Governor. Section 34(8) makes any instrument of transfer in contravention of 34(7) void. He relied on the legal maxim Generalibus Non Specialibus Derogant. In other words why would one argue that the general provisions in Section 22 would derogate from the special provisions in Section 34(7). He also argued that since the same provisions appear in Sections 22 and 34(7) there was a case of tautology which is usually not attributed to a legislature. He referred to Hill v. Hill (Park Lane) Ltd. (1949) A.C. 530, at 546 & 547 and Nasr v. Bouari(i969) I A.N.L.R. 35, at 41.

 

I had previously made reference to subsections 5(a), (b) and 6 of Section 34 which dealt with the land which a holder of undeveloped land in an urban area can now hold on the coming into effect of the Act. This was set at one plot of not more than half hectare. The balance of undeveloped land went to the Military Governor. By subsection 6, out of the aggregate of all undeveloped land held prior to the Act, only one plot of hectare size could now be held, the balance going to the Military Governor. It was in respect of the portion left to the holder that he is deemed to be the holder of a statutory right of occupancy granted by the Military Governor. It cannot be disputed that land which falls to the Military Governor under subsections 5(a) and 6 would be treated as other undeveloped land under the Act and so subject to Sections 22 and 26. It was indeed to make assurance doubly sure, particularly as those subsections had specifically left one hectare and hectare to a previous holder of land, that subsections 7 and 8 of Section 34 were inserted. Such holders of land may well think, in respect of land left to them, that they were free to deal with it without restrictions. Subsections 7 and 8 far from being tautologous, were indeed to state the status of such land beyond any pale of doubt.

 

The result of all my interpretation is that the deemed right granted by Section 34(2) falls within the contemplation of the conditions attaching to statutory right of occupancy under the Act. I do accept the submission made by both Dr, Kusamotu and Professor Kasunmu that the "holder of a statutory right of occupancy granted by the Military Governor" contained in Section 22 of the Act, includes the implied grant in Sections 34(2) and 36(2) of the Act. It is my view too that any failure by a holder under Sections 34(2) or 36(2) of the Act to comply with the provisions of Section 22, would attract the full vigour of Section 26 of the Act and render a transaction or an instrument arising therefrom null and void. In the circumstances of this case, I would, as the two lower courts did, hold that the deed of mortgage dated 5th September, 1980 (marked Exhibit A in these proceedings) executed by the 1st plaintiff in favour of the 1st Defendant bank to secure money owed it by the 2nd plaintiff company (Respondents herein) is null and void, the consent of Military Governor of Lagos State having not been obtained before the execution of the Deed.

In the final result, this Appeal is dismissed. I abide by all the orders made by my learned brother, OBASEKI, J.S.C. including the order for costs.

 

 

 

Judgment delivered by

Adolphus Godwin Karibi-Whyte. J.S.C.

 

 

This is an appeal from the judgment of the Court of Appeal, Lagos Division, dismissing the appeal against the judgment of Hotonu, J. of the High Court of Lagos State. The facts of this case, though simple and straight-forward, the legal implications call for the construction of some of the provisions of the Land Tenure Act which have been the subject-matter of criticism since its enactment.

 

No.1 Oyekanmi Street (off Itire Road), Mushin, Lagos was by a deed of conveyance dated 23/12/65 vested in fee simple in the 1st plaintiff, then known as Abraham Oladotaun Samuel. The land was registered as No.31 page 31 volume 896 of the Land Registry in Ibadan (now Lagos). By a deed of mortgage dated the 5th September, 1980, all the rights, title and interest in the said land was mortgaged to the 1st Defendant Bank by the 1st plaintiff to secure credit facilities and advances made by the 1st Defendant to the 2nd plaintiff. By notice of auction dated 24th May, 1985, the 2nd Defendant as Agent of and on the instruction of the 1st Defendant/Bank in exercise of a power of sale in the said mortgage deed advertised for the sale of the property mortgaged to the 1st Defendant/Bank, by public auction on Friday, 14th June, 1985. On the 12th June, 1985, 1st plaintiff issued a writ of summons seeking the following declarations: -

 

       A DECLARATION that the Public Notice entitled "AUCTION NOTICE" dated 24th May, 1985, whereby the 2nd Defendant as agent of the 1st Defendant advertised that the Mortgage property shall be sold by public auction on Friday 14th June, 1985 on the instruction of the 1st Defendant in exercise or purported exercise of a power of sale of the 1st Defendant under the Mortgage Deed aforesaid, is invalid, null and void because no power of sale under that Mortgage Deed can be exercised or 1st exercisable on 14th June, 1985 without the prior written consent of the Governor of Lagos State under section 22 of the Land Use Act, 1978 and no such consent had been sought or obtained by the 1st Defendant or at all.

       AN ORDER OF PERPETUAL INJUNCTION restraining the 1st Defend-ant by itself, its servants or agents (including the 2nd Defendant) or otherwise however, from auctioning, selling disposing or otherwise dealing with any rights, title or interest of the 1st plaintiff in the Mortgaged Property in exercise or purported exercise of a power of sale under the said Mortgage Deed.

 

In the statement of claim filed, paragraphs 7, 8 and 9 averred as follows:-

 

7.   The plaintiffs further aver that by and under section 22 of the Land Use Act, 1978, the purported mortgage/transfer of the mortgaged property to the 1st Defendant by the 1st plaintiff is ineffectual without the prior written consent of the Governor of Lagos State, and at all material times no such consent has been sought or obtained by the 1st Defendant.

 

8.   By and under Section 22 of the Land Use Act, 1978, the Statutory Power of Sale contained in the said Mortgage Deed is not exercisable without the prior written consent of the Governor of Lagos State, and at all material times no such consent has been sought or obtained by the Defendants or at all.

 

9.   The plaintiffs aver that in breach of the requirements of Section 22 of the Land Use Act, 1978, the 1st and the 2nd Defendant are planning and are taking steps to sell, auction, assign or dispose of the rights, title and interest of the 1st plaintiff in the Mortgaged Property and would do so unless restrained by this Honourable Court.

 

In the statement of defence, having admitted all the averments in paragraphs 1~ of the statement of claim, the Defendants averred in paragraphs 3 and 4 as follows:-

 

3.   (a) the property at No.1 Oyekanmi Street, mentioned in paragraph 5 of the Statement of Claim was vested in the 1st plaintiff for an Estate in fee simple under and by virtue of a Deed of Conveyance dated the 23rd of December, 1965 and registered as No.31 at page 31 in Volume 396 of the Lands Registry in Ibadan (now in Lagos);

 

      (b) by the operation of the provision of Section 34(2) of the Land Use Act, 1978 No.6, the said property continued to be held by the said 1st plain tiff as if he was the holder of a statutory right of occupancy issued by the Military Governor of Lagos State with effect from 29/3/78.

 

4.    The Defendants will contend at the trial of this action that the provisions of Section 22 of the Land Use Act apply only to rights of occupancy granted by the Military Governor and the said provisions do not apply to rights of occupancy deemed to be granted by the Military Governor.

 

The parties therefore joined issues in the averments in paragraphs 4 of the statement of defence, i.e. whether the provisions of section 22 of the Land Use Act apply only to rights of occupancy granted by the Military Governor, and that they did not apply to rights of occupancy deemed to be granted by the Military Governor. The question before the learned trial Judge was whether the plaintiff's right of occupancy fell within what is contemplated in section 22 of the Land Use Act.

 

Parties at the trial agreed to tender by consent, the deed of legal mortgage as Exhibit A and the document of title i.e. the Conveyance as Exhibit B. There was no oral evidence at the trial. The crux of plaintiff's case founded on section 22of the Land Use Act, was that the Defendant having not obtained the consent of the Governor could not exercise the power of sale under the deed of mortgage. Secondly the deed of mortgage having not been executed with the prior consent of the Governor was void and of no effect.

 

Chief Williams, S.A.N. for the Defendants conceded that by virtue of section 34(2) of the Land Use Act, the plaintiff is a person who is deemed to be the holder of a statutory right of occupancy, having held the land immediately before the Land Use Act came into force. It was also conceded that the holder of a right of occupancy by virtue of section 34(2) is in the same position as a person granted a Certificate of occupancy under section 5. Learned Senior Counsel however submitted that the phrase "granted by the Military Governor" was capable of including or excluding the phrase '~deemed to be granted by the Military Governor".

 

Referring to section 39(1)(a), learned Senior Counsel submitted that the expression was not intended to include "deemed to be granted." For this view counsel relied on Maxwell on interpretation of Statutes p. 293, and Dr. Omotola, Essays on Land Use Act pages 27-28. It was contended that section 22 will not apply in cases where there is a deemed grant. Accordingly the consent of the Military Governor was not required in respect of lands granted under section 34(2). It was submitted that the Land Use Act was not intended to protect holders under section 34.

 

The contention of counsel for the plaintiffs on the other hand was that on a broad construction of section 22, the consent required in that section applied to holders of land whether granted under section 5 or deemed to have been granted under section 34(2). The section has not created any dichotomy between holders of land under the Act. Learned Counsel referred to sections 1,2, 34(2), 36(4) and 40 of the Act and submitted that the policy of the Act was to convert existing titles into rights of occupancy. The effect of the sections 1, 2, 34(2) 36(4) 4() is to create uniformity in land holding. Learned Counsel dealt at length with the policy of the legislation. He pointed out that the general intention of the Act is to ensure Governmental control of alienation of land and the reduction of litigation and speculation in land. It was submitted that the Mortgage transaction in Exhibit A was not only a nullity but also by virtue of sections 22 and 26 illegal.

 

Learned Counsel for the Defendants submitted that since it was the plaintiff who should obtain consent and had failed to do so he could not set up his own fault to avoid his obligations. He cited and relied on Solanke v. Abed (1962) N.R.N.L.R. 92.

 

In a well considered judgment the learned Judge held that the requirement of obtaining consent under section 22 of the Land Use Act applied both to holders of statutory right of occupancy actually granted by the Military Governor and deemed holders of statutory rights of occupancy by operation of law. It was also held that the phrase "granted by the Military Governor" in section 39(1)(a) of the Act includes "deemed to be granted" by him. The learned Judge held that failure to obtain the required consent of the Military Governor under section 22 of the Act rendered the deed of Mortgage Exhibit A null and void ab Initio and the transaction illegal. All the declarations and injunction sought were granted.

 

The Defendants appealed to the Court of Appeal. Only two grounds of appeal were filed. They are as follows:

 

(1)  The learned trial Judge erred in law in holding as follows:-

        "I am of the opinion that failure to obtain the required consent of the Military Governor under section 22 of the Act rendered the deed of mortgage null and void ab initio and the mortgage transaction illegal.

 

(2)  The learned trial Judge erred in law in failing to observe that statutory provisions are not to be construed as displacing or abolishing vested rights save only to the extent to which their provisions clearly displace or abolish such rights."

 

The question for determination arisin2 from the grounds of appeal is as follows: -

 

Whether a person who is deemed to be a holder of a right of occupancy pursuant to Section 34 or 35 of the Land Use Act, requires solely by virtue of that fact. the consent of the Military Governor before he can transfer, mortgage. or otherwise dispose of his interest in the right of occupancy. More specifically. do the provisions of Section 22 or 21 of the Land Use Act apply to a person who is deemed to be the holder of a right of occupancy pursuant to Section 34 of the Act solely by virtue of his being deemed to be such a holder.

 

Stricto sensu, this is the only issue for determination in this matter. The arguments presented in the Court of Appeal were in essence those presented before the trial Judge. The Court of Appeal dismissed the appeal and affirmed the judgment of Hotonu, J. of the High Court of Lagos State.

 

Against the judgment of the Court of Appeal, appellant has filed the following grounds of appeal:-

 

1.   The Court of Appeal erred in law in holding that the failure to obtain the consent of the Military Governor under Section 22 of the Act rendered the deed of mortgage null and void and the mortgage transaction illegal.

 

2.   The Court of Appeal erred in law in failing to observe that statutory provisions are not to be construed as displacing or abolishing vested rights save only to the extent to which their provisions clearly displace or abolish such rights. Accordingly deemed grants of statutory right of occupancy under Section 34 of the Land Use Act do not require the consent of the Military Governor.

 

Briefs of argument were filed by both counsel and were relied upon in oral argument before us. There appears to me no difference in the substance of the question for determination as formulated by counsel in their briefs of argument. I however prefer and will adopt the more accurate and terse formulation of the issue by Chief F. R. A. Williams, S.A.N. counsel to the appellants. The issue as formulated is as follows:-

 

      Whether a person who is deemed to be the holder of a right of occupancy pursuant to section 34 of the Land Use Act, requires solely by virtue of that fact, the consent of the Military Governor before he can transfer, mortgage or otherwise dispose of his interest in the right of occupancy. More specifically, do the provisions of section 22 of the Land Use Act apply to a person who is deemed to be the holder of a right of occupancy pursuant to section 34 of the Act solely by virtue of his being deemed to be such holder.

 

Chief Williams, S.A.N. opened his submissions with a criticism of the approach adopted by both the trial Judge and the Court of Appeal. He observed that both courts were influenced in their decisions by their conception of the powers and interests conferred or vested in the Military Governor under the Land Use Act. The view is that the Land Use Act vested all land, private or state, developed or undeveloped in the Military Governor of a State to hold in trust and to manage, control and administer for the use and benefit of all Nigerians. Counsel submitted that it was wrong to hold that the above being the object of the Act, Section 22 thereof applied to both holders of statutory right of occupancy actually granted by the Military Governor, and those deemed granted by the Military Governor. Counsel referred to section 2 of the Act and observed that the distinction therein between the management and control of land on the one hand, and the right of ownership of interest in land on the other, was not made in any of the Courts below. He described the former as "administrative" or "managerial" powers, a necessary incident of trustee powers, whilst the latter is described as proprietary or beneficial interest which trustees or other fiduciaries may not have, but which beneficiaries may have. Pardoe V. Pardoe 82 L.T.R. 547 was cited in illustration.

 

Chief Williams submitted that the administrative or managerial powers vested in the Military Governor is circumscribed by section 1 which has vested all land in the State in the Military Governor, to be "held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act."

 

Learned Senior Counsel submitted that although Section 1 of the Act vests all land in the territory of each State in the Military Governor in trust for all Nigerians, there is no suggestion that the Military Governor thereby became the beneficial owner or absolute owner under that section even though all rights to land in the State are held directly or ultimately from the Military Governor. It was conceded that the Military Governor is clearly a trustee with administrative powers including powers of granting rights of occupancy to any person under section 5 of the Act.

 

Counsel submitted that the trust imposed on the Military Governor by section 1 of the Act is in the nature of a public or charitable trust. As trustee the Military Governor is only a nominal owner with statutory powers of management and control. The Act having used express words to declare the abrogation of certain existing rights in sections 34(5)(b) and 34(6)(b), the court should be slow in implying the abrogation of proprietary rights of interests in the absence of express words. Reliance was placed on Crajes on Statute Law 7th Ed. p.118, Halsbury's Laws of England 4th Ed. Vol.44 para. 906 and Dzungwe V. Gbishe (1985) 2 N.W.L.R. (Pt.8) 528 at 540-541 for this submission.

 

The submission of counsel to the Respondents is that the Land Use Act has made a revolutionary change to the land holding system by virtue of the RIGHTS and POWERS bestowed on the Military Governor. It was submitted that section 1 of the Act is a recognition that hitherto land was owned by individuals, families and communities in several parts of the country. It also epitomises the general concept that the Military Governor's holding is in trust and impersonal. The Act has made the vesting right of the Military Governor subject to the title to land of the Federal Government and its agencies.

 

Counsel to the Respondent rejects the submission by appellant's counsel that the Land Use Act did not create a "Private Trust" since there are no identifiable beneficiaries who can sue. It was submitted that the statutory powers of management and control by itself has created a trusteeship quite distinct from an ordinary trusteeship. The Military Governor's powers to manage and control goes beyond an ordinary trustee's powers to control. This includes the powers to control transactions relating to land - Sections 34(2), 34(4) and 36 (2).

 

Counsel adopted the Dictionary meanings of the word "control" and "Management" and submitted that both words have different meanings, although the word "control" has a wider meaning and appears to include management. Referring to the Trust concept, counsel submitted that the word "trust" used in section 1, was not used in its technical sense, but in a political sense to declare the policy that land is for the "use and common benefit of all Nigerians."

 

Professor A. B. Kasunmu appeared as amicus cuTiae and in his submission supported the contention of the Respondents that consent of the Military Governor was a sine qua non to validity of the mortgage. So much for the submissions of the general purpose of the Land Use Act. There is no doubt that before the enactment of the Act two different tenurial systems applied in the country. The Land Tenure Law applied in the Northern part of the country, whereas there was no general law relating to land holding in the South. The individual, family or community held land absolutely or for term of years as the case may be. There is no doubt however that before the Land Tenure Law introduced in 1962, the Land and Native Rights Proclamation of 1910 which was repealed by and re-enacted as the Land and Native Rights Ordinance of 1916 was in operation. The principles behind the Legislation was to bring land under the control of the government as against control by traditional rulers; to make the government the allocating authority, and to subject transfers of interest in land subject to the consent of the governor. Despite the vehemence of opposition to the law, the policy was defended by the colonial administration as an effective attempt at protecting land rights and to secure for the community in perpetuity, the continual use of their land and the fruits of development. It was also felt necessary to prevent the exploitation of many by a few. This policy was the result of the Report of the Northern Nigeria Lands Committee (1908). It was therefore restricted in the application of the laws based on it to the Northern Region.

 

The Military administration of the mid-1970s was not satisfied with the duality in the tenurial system. It was not a true reflection of the political aspirations of the Nigerian people who wanted a sense of national unity, purpose and well-being. The land policy of the administration must therefore be compatible both with the social, economic and political objectives, and not only support but also facilitate the government's programmes of urban and rural development. The administration found the answer in a law which will vest both the control and management of land throughout the country in the Government, neutralise the influence in respect of the holding and allocation of land of the traditional authorities, make Government the allocating authority, and make dealings with respect to land subject to control by the Government. The Military administration set up the Land Use Decree panel in 1977. The Land Use Act which is the result of the report of that panel was the answer. The paramount objectives of the terms of reference of the panel were to consider the implications of the implementation of a uniform land policy for the country, and the steps necessary for controlling future land use. These objectives are clearly stated in the preamble and implemented sections 1 and 2 of the Land Use Act, 1978, which came into force on the 29th March, 1978.

 

I have already stated the facts of this case. The facts essential to the application of the Land Use Act, 1978 and essential to the interpretation of the relevant provisions are:-

 

1. That the property in issue was vested in the Respondent on the 23rd December, 1965.

 

2. That it was a developed property.

 

3. It was still vested in the Respondent on the 29th March, 1978 immediately before the Land Use Act came into force.

 

4. The Mortgage on the property was created on the 5th September,1980.

 

5. The prior consent of the Military Governor was not obtained before the creation of the Mortgage.

 

The main contention of the appellants in this appeal as has been clearly stated in the question to be determined concisely is that the consent of the Military Governor required in respect of transactions relating to land granted by him is not necessary where the land was not granted by him but deemed to have been granted by him. A proper answer to this involves a construction of several of the provisions of the Land Use Act, 1978.1 have already given a very short historical background of the purpose of the legislation which I consider invaluable for the construction of its provisions. The principal sections involved are sections 1,2,5,22, 34(1)(2)(3)(4), 30(4), 39,49. For the purposes of this judgment I produce verbatim sections 5(1)(a), 22, 34(4) of the Land Use Act.

 

5(1) It shall be lawful for the Military Governor in respect of land, whether or not in an urban area:-

 

(a)   to grant statutory rights of occupancy to any person for all purposes.

 

22.  It shall not be lawful for the holder of a statutory right of occupancy granted by the Military 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 Military Governor first had and obtained.

 

34.-(4) Where the land to which subsection (2) of this section applies was subject to any mortgage, legal or equitable, or any encumbrance or interest valid in law such land shall continue to be so subject and the certificate of occupancy issued, shall indicate that the land is so subject, unless the continued operation of the encumbrance or interest would in the opinion of the Military Governor be inconsistent with the provisions, or general intendment of this Decree."

 

Section 22 has already been reproduced. The relevant part provides:-

 

It shall not be lawful for the holder of a statutory right of occupancy granted by the Military 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 Military Governor first had and obtained.

 

Respondents have relied on this section in their contention that the validity of the mortgage of the property being put up by the appellants for sale by auction dependent on the prior consent of the Military Governor before its creation. Since such consent was not obtained the mortgage was illegal, null and void, and there was nothing to sell. Appellant's contention is that since the property in issue was not acquired by grant of the Military Governor, but was to be regarded as if it was granted by him, section 22 which prescribes the requirement of prior consent to alienation was not applicable.

 

It is therefore necessary for a proper understanding to analyse the sections of the Land Use Act which deal with the holder of the statutory right of occupancy.

 

The general policy of the Act as declared both in its preamble and sections 1 and 2 is to vest all land in the territory of each State in the Military Governor of each State to be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act.

Section 1 states:-

 

      Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation is hereby vested in the Military Governor of that State. . . ." The expression italicised in the section is significant. The only exceptions made to this all inclusive provision is in section 49(1) to which section 1 is subject which excludes "any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Act ," and accordingly any such land shall continue to vest in the Federal Government or the agency concerned.

 

The same policy has been adopted in respect of the control and management of all land so held by the Military Governor. Section 2(1) of the Act provides as follows:-

 

 

(1) As from the commencement of this Act:

 

(a) all land in urban areas shall be under the control and management of the Military Governor of each State; and

 

(b) all other land shall, subject to this Act, be under the control and management of the Local Government, within the area of jurisdiction in which the land is situated.

 

It is important to stress for emphasis the only exceptions to the vesting in the Military Governor and of control and management by him are those lands excluded under sections 22 and 49(1) of the Act See Omonfoman V. Okoeguale (1986)5 N.W.L.R. (Pt.40) 179.

 

Chief Williams has submitted and I agree with him that the Land Use Act has vested all land in each State in the Military Governor, not as beneficial owner but in trust for the use and common benefit of all Nigerians. In this sense, though not a beneficial or absolute owner the ultimate ownership of interest in land, in other words, dominium or the radical title is vested in him. Hence, all rights to land in the State are held directly or ultimately from the Military Governor. This is consistent with the new concept of ownership of interests in land, which is the objective of the uniformity of tenure North and South of the Niger and Benue Rivers.

 

In Dzungwe V. Gbishe (1985)2 N.W.L.R. (Pt.8) at p.541, Aniagolu, J.S.C. discussing the issue of customary holders under the Land Use Act said:-

 

       In the instant appeal, two courts had declared that the land in dispute was vested in the Respondents as customary holders, and has always been so vested in them under customary tenancy. Subject to the radical title (The seisin) being vested in the Governor by operation of law, all other incidents of ownership belong to the customary holder.

 

This is an accurate statement of the incidents of customary holding under section 36. The incidents are not different for a holder under section 34(2). A section 5 holder is different being determined entirely by the certificate of occupancy. The portion underlined clearly accentuates the nature of the vesting of the title in the Governor. The amplitude and plenitude of the holder of land is affected by the vesting of the radical title in the Governor; and the express and implied incidents of the grant as stipulated under the Act. Sections 5(1)(a)(2), 6(1 )(a)(b), 34(2), 36(1) of the Land Use Act state the categories of title which can be granted under the Act.

 

The Military Governor can

 

(i) grant statutory rights of occupancy to any person for all purposes -section 5(1)(a)

 

The Local Government can:-

 

(ii) grant customary rights of occupancy to any person or organization for the use of the land in the Local Government area for

 

(a) agricultural, residential and other purposes - section 6(1)(a)

 

(b) grazing purposes - section 6(1)(b)

 

(iii) (a) Developed land in an urban area vested in any person immediately before the commencement of the Act, shall continue to be held by the person in whom it was so vested, as if he is the holder of a statutory right of occupancy issued by the Military Governor under the Act. The holder is deemed to have been granted a statutory right of occupancy under the Act. - S.34(2)

 

(b) In respect of undeveloped land in an urban area the holder is deemed to have been granted a statutory right of occupancy in respect of one plot not exceeding half hectare

 

Section 36 which deals with land not in urban areas is not directly relevant. It seems from the provisions of section 34(4) that the fact that the holder of the land is now regarded as the holder of a statutory right of occupancy does not affect the existing encumbrances or interests which are valid in law because it provides that where the land is subject to any mortgage, legal or equitable, or any encumbrance or interest valid in law such land shall continue to be so subject and the certificate of occupancy issued, shall so indicate. It is otherwise where the encumbrance or interest are inconsistent with the provisions or intendment of the Act. The two types of rights of occupancy are-:

 

(1) Statutory rights of occupancy

 

(a) made by the Military Governor after the Act came into force

 

(b) "As if" or "Deemed" Statutory rights of occupancy, existing holdings not created by the Military Governor, but resulting from operation of law.

 

(2) Customary rights of occupancy.

 

We are not concerned with customary rights of occupancy in this appeal.

 

I now turn to the contention by counsel to the appellants that the application of section 22 of the Act should be confined to grants of statutory rights of occupancy made by the Military Governor. It was submitted to us that the legislature is presumed not to interfere with or abrogate vested rights; and any person construing a statute should so construe it as to preserve such vested rights. The cases of Amachree v. Kallio 2 N.L.R. 108; Briade v. Adoki 10 N.L.R. 15, and Adeshina v. Lemonii (1965)1 All N.L.R. 233 were cited in support of the submission. Counsel conceded that the provisions of section 22 could be construed to include the "deemed holder." It was however submitted that if section 22 was applied to deemed holders then part of s.34(7) would be tautologous.

 

I do not agree with the submission that section 34(7) is in the circumstances tautologous. Where a statute is divided into parts, the ideal is to construe the sections in the part in relation to other sections in that part. Thus although the general rule is to construe the statute as a whole clarity is better attained where the words so indicate, by construing the sections in their related parts. I think Dr. Kusamotu's submission that section 34(7) which relates to urban areas and in Part IV the transitional provisions~ should be construed within that part makes a lot of sense. This explains why a similar but stronger provision which prohibits transfers appears in section 36(5)(6) which refer to land not in urban areas. This also explains the provisions of a penalty in this Part - See S.36(6), S.37. There is therefore no question of regarding the words used in section 34(7) as tautologous since they deal with different considerations. It seems to me that section 22 is designed to deal with all interests created on the coming into force of the Act, whereas section 34(7)(8) are concerned with the interests resulting from the property in existence before the coming into force of the Act and contravening its provisions. The provision of section 34(8) prohibits further sub-dividing or laying out in plots any undeveloped land in existence at the commencement of the Act without the prior consent in writing of the Military Governor. Any instrument in contravention of section 34(7) shall be void and of no effect and any party to such instrument shall be guilty of an offence and liable on conviction to imprisonment for one year or a fine of N5,000 Section 33 which preserves the powers of the Military Governor or the Local Government as the case may be to revoke rights of occupancy in Part IV of the Act applies to both statutory and customary rights of occupancy without discrimination.

 

The contention by Chief Williams that to construe section 22 as including statutory rights of occupancy granted by virtue of section 34(4) will lead to the abrogation of vested rights ignores the express provision of section 34(4) which preserves the continuance of any mortgage, legal or equitable, or any encumbrance valid in law, unless the continued operation of the encumbrance would in the opinion of the Military Governor be inconsistent with the provisions or the general intendment of the Act.

 

It is a fundamental rule of our law that no statute shall be construed to affect vested rights unless the language of the statute and the subject-matter clearly points towards that effect. - See Okokoloho v. Alamu (1987) 3 N.W.L.R. (Pt.61) 377. There is no doubt that the general intendment of the Land Use Act, the express words vesting title, management and control of the use of land in the Military Governor, the curtailment of the interest of land holder prescribing consent to alienation in all cases, whether the land concerned was absolutely owned, are clear expressions of intention to abrogate vested rights.

 

The cases of Amachiree v. Kallio (supra). Braide v. Adoki (supra) and Adeshina v. Letnonu (supra) cited by Chief Williams, are all cases where the intention to abrogate vested rights were neither expressly provided nor could it be gathered from the general intendment of the legislation, In Adeshina v. Lemonu where the two other cases were discussed, the facts were that the plaintiff 5 nets were seized whilst fishing in the stretch of tidal water near Apapa. The trial Judge granted him an injunction to restrain the Defendant from molesting him in his fishing in that stretch. The Defendant claimed that by section 3(1) of the Minerals Act, public rights of fishing had been taken away. The Supreme Court dismissing the appeal held that the common right of fishing in tidal waters had been recognised by the full Court in Amachree v. KalIio. The Defendant did not show that there were any words in the Minerals Act evincing the intention to affect existing rights of fishing by the vesting of the rivers, streams and water-courses in the crown, that right was not affected by the Act. The position in the instant case is different. As I have already shown, the vesting of all land in the Military Governor was coupled with powers of management and control and various exercise of powers restricting alienation without consent. The cases cited are therefore not applicable.

 

In considering whether section 22 of the Act applies to section 34(2) it is relevant to construe the statute as a whole. This is because section 34(7)(8) apply to section 34(5)(a) or (6) relating to land in urban areas. Section 34(2) in respect of which the holder of the land was as if the holder of a statutory right of occupancy, issued by the Military Governor acquires a statutory right of occupancy by operation of law. Although section 34(3) makes it mandatory on the Military Governor to issue a certificate of occupancy on the application in the prescribed form, it seems tome that the Military Governor is bound to grant to the holder such terms existing in the holding before the date of the acquisition of the statutory right of occupancy, which are not inconsistent with the provisions of the Act. See s.34(4). I do not think indefinite duration of tenure is inconsistent. But undoubtedly freedom to alienate will be inconsistent with section 22.

 

The dominant expression in section 34(4) is the phrase "as if" which has been construed. In East End Dwellings Co. v. Finshury Borough Council (1952) A.C. 109 at p.132. Asquith L.N. said to an 'as if" clause.

 

       If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine the real consequences and incidents which, if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it.

 

I consider the dictum of Lord Simonds in the recent case of Barclays Bank Ltd. v. Inland Revenue Commissioners (1961) A.C. 509 at 523 is most appropriate. He said,

 

       I bear in mind what Lord Radcliffe said in St. Aubyn's case (supra) about the word "deem" but nevertheless regard its primary function as to bring in something which would otherwise be excluded.

 

In ordinary language which is reflected in legislation, when a thing is deemed to be something it is not meant to be the thing it is deemed to be. It is an admission that it is not that other thing but should be regarded as that thing. I think it is correct to say that the word 'deem" or phrase "as if" are used to extend the meaning of a subject matter which they do not properly designate.

 

In the instant case statutory right of occupancy by operation of law which is a different thing is regarded as if it is a statutory right of occupancy granted by the act of the Military Governor. Hence in section 34(2) the Act says that "where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act, as if, the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor under this Act." The land so regarded was not created by the Act. This provision equates a statutory right of occupancy by operation of law under 5.34(2) with one under section 5 granted by Military Governor. It is well settled that the object of all interpretation is to discover the intention of the legislature from the language used in the statute and to give effect to it. One of the most useful guides to interpretation is the mischief rule which considers the state of the law before the enactment, the defect which the legislation sets Out to remedy or/and prevent, the remedy adopted by the legislature to cure the mischief and the true reason of the remedy. The duty of the court therefore is to adopt such interpretation that will enable the suppression of the mischief and to promote the remedy within the true intent of the legislation. - See Ifezue V. Mbadugha & anor. (1984) 5 S.C. 79.

 

The purpose of the provision of section 34(2) is to bring land holding in existence before the creation of the Land Use Act in line with that Act for uniform control and management, hence the holders of such title are to be deemed to be holders of statutory right of occupancy issued by the Military Governor. Thus the contention that the Act envisaged two categories of rights holders, one granted by the Military Governor and subject to all the provisions of the Act, the other by operation of law not within the control and management of the Military Governor is clearly wrong and inconsistent with the express words of the Act, and the mischief intended to prevent.

 

Both Professors Omotola and James, acknowledged authorities on Nigerian Land Law whose opinion Chief Williams, S.A.N. adopted are of the view that the holder under S.34(2) is not subject to the provisions of section 21 and 22 of the Act. - See Omotola; Essays on the Land Use Act pp.27-28; and James: Nigerian Land Use Act; Policy and Principles (1987) p.104. It seems clear from analysis of the sections i.e. sections 22 and 34(2) that the learned professors did not consider that section 34(2) read together with section 5 of the Act are not restricted to undeveloped land. Again it is not allowable to adopt a construction (which they have done) that will result in the defeat of the purpose of the legislation. It is a useful maxim of interpretation of statutes to interpret a statute to save rather than to destroy its real purpose - ut ma gis valeatquampereat, - See Nafiu Rabiu v. Kano State (1980) 8-11 S.C. 130. The direct result of adopting the views of the learned professors to the interpretation of the sections as Chief Williams has done, will result in the existence of two systems of land holding under the Act, the duality the legislation was designed to prevent.

 

Like Professor Omotola, Chief F. R. A. Williams has also dwelt on the distinction between actual and presumed grant in section 39. This ignores the fact that the phrase ~~as if', used in S.34(2), 34(5)(a), 34(6)(a) of the Act, brings those grants within the meaning of section 5. Again the expression used in section 22 is grant. The word actual is an importation of the learned professor. The section speaks of statutory right of occupancy granted by the Governor and not actually granted by the Governor. It cannot therefore be seriously contested that a statutory right of occupancy created by operation of law and deemed to have been issued by the Military Governor is not equivalent to grant under sections 5 & 22 - See Akeredolu v. Akinremi (1986) 2 N.W.L.R. (Pt.25) 710.

 

As I have stated before, this is the category to which section 34(2) belongs. When the holder even if in fee simple becomes the holder of a statutory right of occupancy he becomes subject to the express and implied terms of the grant. The term relating to prior consent in writing by the Governor to alienation is a statutory requirement which will be inconsistent with any contrary provision. I therefore will answer the question to be determined in this case in the affirmative. - See K. Akpene V. Barclays Bank Ltd. & anor. (1977)1 S.C. 47.

 

I think the Court of Appeal was right to hold that every holder of a right of occupancy whether statutory or otherwise is regarded as having been granted the right by the Military Governor or Local Government as the case may be, for the purpose of control and management of all land comprised in the State. Accordingly every such holder, whether under sections 5, 34 or 36 of the Land Use Act requires the prior consent of the Military Governor before he can transfer, mortgage or otherwise dispose of his interest in the right of occupancy. This means that section 22 is of general application to every rights holder under the Act pursuant to sections, 5, 34 or 36 thereof.

 

The observation by Chief Williams that the requirement of consent in every transaction is a veritable clog in the progress of the commercial life of the Nation and requires urgent review is a point well taken. It is hoped that in the review the true spirit of the legislation will take into consideration the fundamental basis of the exercise by a holder of the plenitude of his powers and rights vested in him by the nature of his holding with minimal restrictions to ensure uniform control, but to enable uninhibited commercial transactions.

 

For the above reasons and the reasons given by my learned brother Obaseki,J.S.C.. in his judgment, I hereby dismiss this appeal and affirm the judgment of the Court of Appeal with costs assessed at N500 to Respondents.

 

 

Judgment delivered by

Saidu Kawu , J.S.C.:

 

 

In this appeal it is not in dispute that the 1st Respondent, having held the land in question before the Land Use Act came into force, is a person who is deemed to be the holder of a statutory right of occupancy by virtue of the provisions of Section 34(2) of the Act. The question is whether the provisions of S.22 of the Act apply to him. Now, Section 22 of the Act reads as follows:

 

       It shall not be lawful for the holder of a statutory right of occupancy granted by the Military 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 Military Governor first had and obtained.

 

I have the advantage of reading in draft the lead judgment of my learned brother, Obaseki, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and his conclusion that this appeal should be dismissed. Reading the Act as a whole, I am left in no doubt that the provisions of S.22 of the Act do apply to land deemed to have been granted by the Governor. In my view if the provisions of the Section do not apply to such land, it will be almost impossible for the Governor to implement the general policy of the Act which is set out in its preamble and also in Sections 1 and 2. It is for this reason and for the fuller reasons contained in the lead judgment of my learned brother, Obaseki, J.S.C. that I have come to the conclusion that the Court of Appeal was right in its decision affirming that of the trial Court. I too will dismiss the appeal with N500.00 costs awarded to the Respondents.

 

 

Judgment delivered by

Salihu Modigbo Alfa Belgore. J.S.C.

 

 

The appellant bank entered into a deed of conveyance with the Respondent whereby the Respondent mortgaged his interest in a piece of developed land situate at Oyekanmi Street, Itire, Lagos, to the appellant. Prior to the Land Use Act of 1978, the Respondent held the land in fee simple, a tenure abrogated by that Act. The deed was executed and registered in the Deeds Registry. The Respondents defaulted in redeeming the mortgage and in an attempt to foreclose, the Respondents as plaintiffs went to Court and claimed a number of reliefs based on the ground that the deed of mortgage was null and void. The trial Lagos High Court, granted the reliefs by affirming that the deed of mortgage was null and void in that prior to entering into the mortgage, the consent of the Military Governor so to do, was not obtained, a failure fatal to the agreement in view of S.22 Land Use Act 1978, which reads:

 

       22. It shall not be lawful for the holder of a statutory right of occupancy granted by the Military 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 Military Governor first had and obtained.

 

The Court of Appeal upheld the High Court's decision giving rise to this appeal before this court. There are only two grounds of appeal which read:

 

1.   Court of Appeal erred in Law in holding that the failure to obtain consent of the Military Governor under S.22 of the Act (Land Use Act, 1978) rendered the deed of mortgage null and void and the mortgage transaction illegal

 

 

Particulars

 

       (a) The provisions of S.22 of the Act do not apply to land such as the one involved in this case where the holder is a deemed holder of a statutory right of occupancy under 5.34 of the Act.

 

       (b) In the premises, the deed of mortgage in this case is not null and void.

 

2.   The Court of Appeal erred in law in failing to observe that statutory provisions are not to be construed as displacing or abolishing vested rights save only to the extent to which their provisions clearly displace or abolish such rights. Accordingly, deemed grants of statutory right of occupancy under 5.34 of the Land Use Act do not require the consent of the Military Governor."

 

The appeal is therefore based, in essence, on misapplication of law and wrong interpretation of law. The Land Use Act, 1978 is a revolutionary law in that it swept aside all known tenures known in customary law in the entire Federation and replaced them with statutory provisions. Thus, the Act left no ambiguity as to its purport when it states:

 

Section 1

      Subject to the provisions of this Act, all land comprised in the territory of each state in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.

 

2 (1)       As from the commencement of this Act:

    (a) all land in urban areas shall, subject to this Act, be under the control and management of the Military Governor of each State; and

 

    (b) all other land shall, subject to this Act, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated.

 

 

There has been no statute like this before. It took away the land from every "landed gentry" and vested it for administration in the Military Governor of the State in which the land is situated for management and control for the benefit of all Nigerians. The Military Governor has not got the land vested in him as beneficial owner, far from it. The vesting in this instance is for administrative and management purpose, in trust, for all Nigerians. If the Land Tenure Law of Northern Nigeria, 1962 (Cap 59 Laws of Northern Nigeria, 1963) was revolutionary for its time, in a Region tagged, I believe mischievously if not dishonestly, feudalist, this Act is all embracing for it replaced "indigenes of a State" for "all Nigerians." The whole land in each State is thus vested in trust in the Military Governor to be administered for the benefit of all Nigerians irrespective of where they may be. The management and control is in the Governor for land in urban areas and other land (in rural areas to be so designated in accordance with the Act) shall be under the management of the Local Government within which the lands arc situated. It is in this wise that the Act should be construed in its peculiar circumstance and by giving each word, each phrase, each expression its natural, ordinary and grammatical meaning. Considering the grounds of appeal and the issue formulated for determination, to wit,

 

      Whether a person who is deemed to be a holder of a right of occupancy pursuant to section 34 of the Land Use Act, requires solely by virtue of that fact, the consent of the Military Governor before he can transfer, mortgage, or otherwise dispose of his interest in the right of occupancy. More specifically, do the provisions of the S.22 of the Land Use Act apply to a person who is deemed to be the holder of a right of occupancy pursuant to S.34 of the Act solely by virtue of his being deemed to be such a holder.

 

It is pertinent to set out the relevant subsection of 5.34 of the Act reading as follows:

 

      34. (1) The following provisions of this section shall have effect in respect of land in an vurban area vested in any person immediately before the commencement of this Act.

 

             (2) Where land is developed the Land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor under the Act."

 

Chief Williams, S.A.N., submitted that a distinction ought to be drawn between right of management and control of land on one hand and right of management and interest on the other hand and cited the English case Pardoe V. Fardoe 82 C.T.R. 547 where meaning of control was explained in respect of a testator's bequest. It is to be observed that the phrase used in that case is "full and absolute control" and it was interpreted to mean no more than 'superintendence and power of management" in the context of that will. The meaning of "vested" in section 1 of the Act, in its context, does not imply personal interest to the Military Governor, but merely gives the Governor power of superintendence in the sense of management and control, as provided in S.2(1) thereof, in trust for all Nigerians. The Military Governor by the intendment of the Act is not made a beneficial owner but a manager or controller of the use of the land within the State he administers for the benefit of all Nigerians. Chief Williams, S.A.N., obviously does not favour assertion of Kolawole, J.C.A.

 

      The mischief aimed at by the Land Use Act was the abrogation of absolute ownership or freehold interest (in land) by the community, the family .,the individual. That was a complete revolution of the land tenure system in Southern Nigeria. S.i and S.2 of the Act clearly spelt out the purpose of the legislation.

 

But that is the correct statement of law. All other interests in land are abrogated and the only interests are those in urban areas governed by the granting of right of occupancy granted by the Military Governor and other interests in rural areas governed by the right of occupancy granted by the Local Government. Vested rights before the commencement of the Act are even not saved. The transitional provisions in section 34 thereof deemed previous interest to be either of the two mentioned above. This certainly is not evolution, for it set aside age-long tenures and replaced them with statutory rights traceable to the grant by the Governor or the Local Government.

 

The question now is, to my mind, as follows:

 

      What right was in the first Respondent when on 5th September, 1980 he mortgaged his property at No.1 Oyekanmi Street to the appellant?

 

The Respondent prior to 1978 had developed a building on the land, having purchased earlier what amounted to an absolute interest or freehold as it was called. By the operation of S.34(2) (supra), that interest was vitiated. The Respondent on 29th March, 1978, the commencement date of the Act, had his interest automatically converted to statutory right of occupancy granted by the Military Governor of Lagos State. The right is immediately deemed to exist and the first Respondent could apply at any time he so wishes to the Military Governor for a certificate of occupancy - S.34(3). To all intent and purposes, the first Respondent is a holder of statutory right of occupancy over the land on which the property mortgaged stands. The words used in S.34(2) are:

 

     as if the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor.

 

This means as if the Military Governor issued the right of occupancy. It is true the draftsman exercised little discretion in choice of words: in practical terms, the word '~granted" would be more appropriate in this context than the word '~issued." Normally the Military Governor grants a right of occupancy and as evidence thereof a certificate of occupancy is issued. See Land Tenure Law, 1962 (Northern Nigeria Laws, 1963 Cap. 59, supra) and also S.22 Land Use Act. It is thus very clear that serious injustice will be done to the interpretation of S.22 of the Act if it is read into it words extrinsic to it. It is unlawful, says the section, for the holder of a statutory right of occupancy granted by the Military Governor to alienate such a right of occupation in any manner whatsoever whether by assignment, mortgage, transfer of possession or subleases without the consent of the Military Governor first had and obtained. Any right of occupancy granted by the Military Governor is covered. To attempt to read into the section exceptions outside the provisos contained in (a), (b) and (c) following the section will not only do serious mischief to the Act in its entirety but will diametrically go against all known canons of construction, in that words will be imported into the section that is clear and unambiguous. The answer, to my mind, to the issue formulated for determination is that the title in the Respondent being that of a statutory right of occupancy granted by the Military Governor, it is caught squarely by section 22 of the Act. It makes no difference whether the Military Governor actually in the sense of physical act granted the statutory right of occupancy or is deemed to have been so granted or is to be regarded as if granted by the Military Governor. All say the same thing; any alienation etc. must be made with prior consent of the Military Governor. The clear meaning manifests the intention of the legislature and it is unnecessary to resort to canon of ut res magis valeat quam percat. The statute as a whole has one clear mission, which is to narrow down the tenure by telescoping all grants to the discretion of the Military Governor, who is the trustee of all lands within the State he governs. There is no more communal land, freehold, fee simple and all other tenures based on customary laws. To succumb to the proposition that there are two rights of occupancy, one granted by the Military Governor and another as if granted (or deemed granted) by him will lead to an absurdity of construction of statute as there is nothing in the Act to indicate such a division. Once a statute is clear, the Courts will have no difficulty in its interpretation and any attempt to add words to its provisions will create not only injustice and inconvenience, but also clear absurdity as it will result in assault on the statute itself which is not the function of the Courts. I find no substance in this appeal and it is for the above reasons and fuller reasons in the lead judgment of Obaseki, J.S.C., that I dismiss it and hereby make the same consequential orders as he has done in dismissing the appeal.

 

The feature of this appeal is that the issue based on the grounds of appeal has been confined within narrow limits of interpretation of S.34 and S.22 of the Act. This is unfortunate as this Court must confine its decision to the argument of the parties. To do otherwise will amount to raising issues, suo motu for the parties. Otherwise, all the equities were not canvassed. Decisions in such cases as Esi V. Moruku XV N.L.R. 116, based on Public Lands Acquisition Ordinance 1903, the Uganda case of Singh V. Kulubya (1961)33 P.C. 67, the Nigerian case of Solanke V. Abed (1962) N.R.N.L.R. 92, or Orjiako V. Orjiako (unreported 1D127/1966 a High Court, JOs, case), Mamiso V. Pate (1971) N.N.L.R. 62 (also a High Court, Kaduna case) would have been canvassed. Perhaps counsel will one day move further than this narrow confine this Court has been placed in this case.

 

 

Judgment delivered by

Abdul Ganiyu Olatunji Agbaje. J.S.C.

 

 

I have had the opportunity of reading in draft the lead judgment of my learned brother Obaseki, J.S.C. My Lord Obaseki, J .S.C. has in his judgment meticulously considered the facts and the law relating to the main issue raised in this appeal namely:-

 

       Whether a person who is deemed to be a holder of a right of occupancy pursuant to Section 34 of the Land Use Act, requires, solely by virtue of that fact, the consent of the Military Governor before he can transfer, mortgage, or otherwise dispose of his interest in the right of occupancy. More specifically, do the provisions of Section 22 of the Land Use Act apply to a person who is deemed to be the holder of a right of occupancy pursuant to Section 34 of the Act solely by virtue of his being deemed to be such a holder.

 

My learned brother has also taken great pains to review the provisions of the Land Use Act 1978 and of the other statutes relevant to the point of issue. He also spared no pains to consider virtually all the relevant decisions both local and foreign on the point. Having done all this, my Lord Obaseki, J.S.C. answered the question for determination in this appeal in the affirmative. I entirely agree with him. I cannot usefully add anything to what he has said in coming to his conclusion.

 

In the result I too dismiss the appellants' appeal with costs assessed at N500.00 to the Respondent.

 

 

Judgment delivered by

Ebenezer Babasaanya Graig. J.S.C.

 

I have had the pleasure of reading in draft the judgment just delivered by my learned brother, Obaseki, J.S.C., and I agree entirely with his statement of the facts, his analysis of the issues involved and his conclusions.

 

For the reasons given in the said judgment and which reasons I adopt as mine, I too would dismiss the appeal and it is hereby dismissed with N500.00 costs to the Respondent.

 

 

 

Counsel

 

 

Chief F.R.A. Williams. SAN

with him

B.O. Aluko

Mrs. O.M. Ayeni

B.O. Ogundipe

T.E. Willaims

FRA Williams Jnr

.......

For the Appellant

     
Dr H.O. Kusamotu
with him
Tunde Olojo
P.O. Ige
Ahmed Raji
....... For the Respondents
     
Professor A.B. Kasumu. SAN ....... As Amicus Curiae