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In The Supreme Court
of
On Friday, the 15th day of
February 2008
Before Their
Lordships
S.C. 262/2002
Between
And
Judgement of the Court
Delivered by
Walter Samuel
Nkanu Onnoghen
J.S.C
This is on appeal against the
judgment of the Court of Appeal holden at
Calabar in appeal No CA/C/5/99 delivered
on the 24th day of April, 2007 in which the court dismissed the
appeal of the appellants against the judgment of the High Court of Cross
River State holden at
Calabar in suit No C/l 1/95 delivered on
the 20th day
of November, 1995
in which it entered judgment
for the present respondent who was the plaintiff in the suit.
The action was instituted by
respondent by way of originating summons for the determination of the
question:
"Whether, in accordance with the Land Use Decree 1978, valid title has been
passed from the plaintiff to the 1st defendant arising from the
agreement of 25th
January, 1987, over the
plaintiff's property situate at No 3C
In addition to the above
question, the plaintiff/respondent sought the following reliefs:-
"(A)
A declaration that the purported
conveyance is null, void and of no
effect whatsoever and is against the provisions of
the
Land Use Decree of 1978.
(B)
An order directing the 1st
defendant, its
agents, servants, privies, assigns
to vacate the property situate at No 3C
Enebong Avenue, Calabar.
(C)
An order directing that the original
documents of the survey and
building plans and the agreement originally conveying the plot/parcel of
land known as 3C Enebong
Avenue, Calabar to the plaintiff be returned to
the plaintiff.
(D)
The sum of
The facts leading to the action include the
following: The plaintiff/respondent was employed as a clerk by the 1st
defendant/appellant sometime in July, 1964 and rose to the position of
Senior Travelling Secretary by May, 1974. In June, 1987 the respondent was,
by a letter, exhibit B suspended from his employment by the 1st
appellant on the ground that the respondent perpetrated some fraudulent acts
which tarnished the image of the 1st appellant, pending the
result of an investigation into the matter. The suspension was with
immediate effect. The respondent was subsequently arrested by the police at
the instance of the appellants and detained for investigation and/or
interrogation. In all, the respondent was
arrested three times in the course of the investigation, the third of which
saw the respondent being taken by the police to the Police Headquarters at
Diamond Hill Calabar where he was shown round
the police cells occupied by hardened criminals (murderers and rapists) and
was told by the police to sign a deed of
"Mortgage" over his property situate at No
3C Enebong
Avenue, Calabar, to surrender his ownership of
the said property to the 1st appellant in exchange for or
discharge of an alleged debt of
On the other hand, it is the
case of the appellants that the respondent was suspended from duty on the
ground that the respondent, in the course of his employment with the 1st
appellant, defrauded the 1st appellant to the tune of
The learned trial judge, at
pages 41 to 42 of the record held thus:
"On
the whole, I hold the view that
fraud against the plaintiff has not been proved.
If so, the
plaintiff should have been charged
to court. The idea of converting what should have been a
criminal case into a civil one is
wrong. The purported exchange of a house for the sum of
Having regard to all the foregoing, I think I should accede to the reliefs
sought and do so accordingly by making the following
orders of
this court ....."
The court proceeded to grant
reliefs A - C as claimed and the sum of
It is very important to note
that though the learned counsel for the appellants identified seven issues
for determination in the lower court to wit,
"(a)
Whether or not the question of nullity/voidity of a document/instrument
particularly on ground of coercion/fraud (see basis of claims at p. 1 and
judgment at p.38 lines 10-11
of proceedings) is a question of interpretation of the document and
therefore fit to be taken vide the originating summons procedure or an issue
to be proved on hard facts by viva voce (sic) evidence allowing cross
examination of witnesses. Did this non receipt of viva voce evidence
by the learned trial judge occasion a miscarriage of justice to the
defendants/appellants
(b)
Whether the totality of the evidence supports the judgment.
(c)
Whether the learned trial Chief Judge was right at law when he held
that the transaction between the plaintiff/respondent was void because the
consent of the governor was not first sought and had.
(d)
Whether or not it is competent for a party to benefit from his own
omission to the detriment of another party to the same transaction.
(e)
In the unlikely turn that the learned trial Chief Judge was right in
his judgment, should he not have ensured restitution
intergrum by ordering the refund of the purchase money? Should
the plaintiff/respondent keep both the house and the money, particularly the
sums paid by the 1st defendant/appellant to the
plaintiff/respondent's creditors.
(f)
Whether or not the
2nd and 3rd
defendants/appellants are
personally liable jointly, the two of them along with the 1st
defendant/appellant or severally each of them, for any of the reliefs sought
in the lower court.
(g)
Whether or not in the circumstances of this case the Court of Appeal
is competent to enter a proper judgment herein."
The lower court, following the
success of preliminary objections to some of the grounds from which some of
the issues were formulated struck out grounds 1, 5 and 6 of the Amended
grounds of appeal and issues (a), (e), (f) and (g) formulated there from
thereby leaving issues (b) (c) and (d) for determination. It is also
important to note that in determining the appeal, the lower court preferred
the two issues formulated by learned counsel for the respondent, to wit:-
"1.
Whether on the evidence
before the
learned trial judge,
the respondent proved
his case and was
entitled to judgment in his
favour.
2.
Whether there is a binding and enforceable contract between the
appellants and the respondents"
And used
same to determine the appeal.
With regard to issue 1, the
lower court held, at pages 166
to 167, inter alia:
"Paragraphs 9, 10, 11, 12 and 13 of the respondent's main affidavit
considered by the learned trial judge are mere Ispi
dixit of the respondent and are admissible pieces of evidence resting on
the assertion of the respondent who made them. But having been seriously
challenged by the appellants in their counter affidavit, they are not enough
for deciding the issue of duress without calling for oral evidence from
witnesses. It was not the business of the judge to speculate on the issue of
duress. Therefore, I disagree with the learned trial judge, and I hold the
view that there is no
evidence to show that exhibit A
was procured by duress. Even though the circumstances of this case
leading to the signing of Exhibit
A, the deed of conveyance, by the respondent are not salutary I am however,
not prepared to accept the view that there was duress on the respondent to
sign Exhibit A. Indeed, I frown at the conduct of the appellants in
compromising with the respondent and the police the case of fraud and
embezzlement reported against the respondent and
their colluding with the
respondent to give away his
property by signing Exhibit A, without prosecuting the respondent for
the criminal allegations in a
court of law. Then after about eight years of signing Exhibit A, the
respondent
was aroused from his
complacency to challenge
in the court his
signature on Exhibit A, claiming
that it was procured
by duress or coercion on him.
It is apparent to me from the surrounding facts of
this case that the
parties were interested in settling the criminal allegations against the
respondent out of
court by agreeing with
the
respondent to sign Exhibit A and also make Exhibit
B (the statutory
declaration of house
ownership)
in discharge of the
purported debt of
From the above passage, it is
very clear that the lower court resolved the first issue against the
respondent and there is no appeal by the respondent on that score before
this court.
On the second issue, the lower
court held at pages 169 -170
inter alia as follows:
“In the instant case, there is the deed of conveyance (Exhibit A) which does
not bear the consent of
the military governor as provided
by
Section 22 of the Land Use
Act, 1978.
It is
therefore my firm view in the instant case that the deed of conveyance
Exhibit A is null and void and of no effect whatsoever.
Finally the question of the respondent being allowed to benefit from his own
fraud to take advantage of his own default is non
siquitur. The respondent cannot be said to have benefited from
the fraud and embezzlement alleged against him which
were not established in a court of law.
The learned trial judge was right in my view to hold in his ruling
that he was not satisfied that the allegation of fraud had been established
against the respondent and the question of his being allowed to benefit from
his fraud did not arise .... In the final result therefore, I hold that this
Appeal lacks merit and it is hereby dismissed.”
From the resolution of the two
issues it is very clear that the
appeal was dismissed based on the nullity of
exhibit A, the deed of conveyance on the
ground that the consent of the Military
Governor of Cross River State was not first had and
obtained contrary to
Section 22 of the Land Use Act, 1978.
The importance of the excursion into the
issues before the lower court and their
resolution will become apparent when one
looks at the issues now formulated for the determination of the
instant appeal which appeal is or ought to be
primarily on the single issue resolved by
the lower court against the appellants.
With the above backgrounds in mind, one then wonders how
learned counsel for the appellants could come by
three issues for the determination of the
instant appeal.
The issues as formulated in
the appellant's brief tiled on 25/10/02 and adopted in argument of the
appeal on 19/11/07 by Nta N.
Nta Esq, are as
follows:-
"(a)
Whether or
not the finding complained
against in ground of
appeal No 1
herein was erroneous having regard
to the evidence, and incongruous with an earlier holding in the same
judgment that the respondent was not coerced into signing away his property
to the appellants.
(b)
Whether or
not the deed of conveyance Exhibit "A" to the originating summons was null
and void and of no effect whatsoever under the Land Use Act for the
reason only that the consent of the Governor was not
first
sought and obtain before it was signed/executed.
(c)
Whether or not ground of appeal No 5 before the Court of
Appeal arose from the decision of the High Court that Exhibit A, the deed of
conveyance, was a nullity, and therefore a fit and proper ground of appeal."
On the other hand, learned
counsel for the respondent,
Charles E. Duke Esq,
in the respondent's brief of argument
submitted two issues for determination, namely:
1.
Whether on
the evidence before
the
learned justices of
the Court of Appeal, the appellants had proved their case that there was a
genuine case of indebtedness against the respondent.
2.
Whether Exhibit A confers a binding and enforceable contract between
the appellants and the respondent."
Before proceeding any further,
it is pertinent to note that learned counsel for the respondent has raised
preliminary objection with regard to the competence of grounds 1 and 3 of
the grounds of appeal.
It is the submission of
learned counsel for the respondent
that ground 1 of the grounds of appeal is based
on the concurrent findings of facts by the
lower courts to the effect that fraud
against the respondent has not been established but
that the appellants have not obtained the
leave of the Court of Appeal to appeal against
such findings contrary to Order 2 Rule 32 of
the
Supreme Court Rules and
Section 233(3) of the
Constitution of the Federal Republic of Nigeria,
1999 (herein after referred
to as the 1999 Constitution);
that it does not matter that
counsel for the appellants christened the ground an error in law whereas in actual fact it is a
complaint on facts; learned
counsel cited
and relied
on
the case of
Tibury
v Oguniyi (1988) 1 NSCC
531; Akwiwu v Songonuga
(1984) 5 S.C 184 at 186; Ojeme v
Momodu III (1983) S.C
173; Erisi v Idika
(1981) 4 NWLR 503 at 511.
Secondly, learned counsel for
the respondent submitted that ground 1 of the grounds of appeal contains
complaints against facts that are being challenged for the first time in
this court and therefore need the leave of the court; that since no leave
was obtained, the ground of appeal is incompetent
and should be struck out.
Turning to ground 3 of the
grounds of appeal, learned counsel submitted that it does not relate to the
judgment on appeal and consequently incompetent; that a similar
objection on a similar ground was raised in the
court below and sustained; referring to pages 125, 160 and 161 of the
record.
Secondly, learned counsel
submitted that the said ground 3 seeks to raise issues that were not
canvassed at the lower court, relying on
Federal Mortgage Bank of Nigeria v
Nigeria Deposit Insurance Corp. (1999) 2 NWLR (pt. 591) 333 at 359
-360.
On his part, learned Counsel
for the appellants, Nta A
Nta Esq, in the reply brief filed on
31/3/03 submitted that ground 1 is a ground of law, not facts; that ground I
was not being raised for the first time in this court as it was dealt with
under issue 1 before the Court of Appeal, which related to ground 2 of the
grounds before the said court.
In respect of ground 3 of the
grounds of appeal learned counsel submitted that the ground arose from the
judgment of the trial court as well as the lower court in that they failed
to make the appropriate consequential orders after holding that the
conveyance between the parties was null and void and thereby allowed the
respondent to benefit from the transaction to the detriment of the
appellants and urged the court to dismiss the preliminary objection.
However, grounds 1 and 3 of
the grounds of appeal
complain as follows:-
"1.
The learned Justice of the Court
of
Appeal erred in law when they
found and held thus:-
"In the absence of the appellants establishing that there is in reality a
genuine debt of
Particulars of error
(a)
Exhibits C -
C4 attached to the respondent's
counter affidavit mentioned at pages 7 (paragraph 15 of counter affidavit at
lines 8 -22) and 15 (paragraphs 9 &
10 of the further and better
counter affidavit at lines 12 - 29) of the record before the Court of Appeal
are receipts/vouchers issued by the respondent to the 1st
appellant to the
respondent on account of the property the subject of this appeal.
(b)
This finding is incongruous with the earlier holding that the
respondent was not coerced into signing away his property to the appellants.
3.
The Court of Appeal erred in law when it held that:
"....... It is my firm view that grounds 1,
5 and
6 thereof do not
relate to or arise from the decision of the judgment being challenged by the
appellants ...... They are hereby
struck out."
Particulars of error
(a)
The issue
raised in ground 5 in the Court of Appeal was a consequential order which
should ordinarily, without more, follow a finding of nullify of an agreement
for which consideration had passed. Failure to make the order
was
therefore a proper ground of appeal."
It is very clear that ground 1
together with the particulars thereof is simply a ground attacking a finding
of facts by the court below; it is not a ground of error of law at all. To
establish the existence of the debt of
That apart, there is the
second problem involving the said ground 1, which is that it is a complaint
against the concurrent findings of facts by the lower courts. In addition to
the above observation, the lower court specifically found as a fact that
appellants did not appeal against the finding of the High Court to the
effect that:
"On
the whole, I hold the view that
fraud against the plaintiff has not been proved. If so the plaintiff should
have been charged to court. The idea of converting what should have been a
criminal case into a civil
one is wrong. The purported exchange of a house for the sum of
By stating at page 170 of
the record as follows:-
"I agree with him. There
is no appeal against the above finding of the learned trial
Chief Judge and there is no basis for this court to disturb it."
Emphasis supplied by me.
I have to observe that the
appellants in this court have not challenged the above finding by the lower
court. They have not stated that the lower court was in error in
finding/holding that there was no appeal against the above finding by the
trial court. That being the case, it means simply that the lower court was
right in so holding with the effect that it is rather too late in the day
for the appellants to now turn round to appeal against that finding in this
court whereas their appeal before this court is supposed to be based on the
judgment of the lower court, not that of the trial court; it is settled law,
however, that a finding of a court or tribunal not appealed against is
deemed accepted by the party against whom the finding was made - in the
instant case, the appellants. However, if the appellants had sought and
obtained the leave of the courts to appeal against the findings of facts or
mixed law and facts or to raise fresh issues not raised in the court below,
it would have been sufficient to sustain ground 1 of the grounds of appeal.
Since no such leave was sought and obtained the affected ground is doomed to
be struck out for being incompetent. I therefore order accordingly.
On the competence of ground 3
of the grounds of appeal, I hold the view that the complaint therein is
against the judgment of the lower court and therefore valid. What is being
determined here is the competence of the ground not its merit, if
any. In fact, the ground quoted a portion of the
judgment of the lower court complained of. To that extent I hold that ground
3 is valid before this court and that the preliminary objection of the
respondent partially succeeds.
As I had earlier stated in
this judgment, the main decision of the lower court which was against the
appellants is the confirmation of the declaration of nullity of the deed of
conveyance, exhibit A, for non compliance with the provisions of
Section 22 of the Land Use Act, 1978.
That should, therefore, be the main focus of the appeal as the first issue
in the lower court was resolved in favour of the appellants, as earlier
demonstrated in this judgment.
That apart, having found that
ground 1 of the grounds of appeal before this court is incompetent, it
follows that appellants' issue (a) formulated there from is incompetent and
is hereby struck out, thereby leaving us with issues (b) and (c) as
formulated by the learned counsel for the appellants.
In respect of issue (b),
learned counsel for the appellants submitted that the
Land Use Act has no intention of
forbidding and rendering null and void any alienation of rights of occupancy
howsoever without requisite consent, hence the provisions in
Sections 28(2) and (3) (d) making
such an alienation without consent a ground for revocation of the right of
occupancy; that the word
"void"
should not be interpreted to mean void for all purposes
unless the statute so states,
relying on the case of
Bucknor-Maclean
v Inlaks Ltd (1980) 8-11 S.C 1; that it is
not the intention of Section 22 of
the
Land Use Act, 1978
to render every transaction by way of alienation without consent null and
void for all purposes as
parties clearly enter into transactions of alienation of rights of occupancy
before seeking the Governor's consent, which in any event can be obtained
even after the execution of the agreement or transaction such as Exhibit A
in the instant case;
that the court should do substantial justice between the parties in this
case by not declaring the document, exhibit A, null and void as the effect
of non obtaining of the Governor's consent renders the document, exhibit A
inchoate not null and void, relying on the
case of
Solanke
v Abed
(1962) 1 ANLR 130;
Ogbo v Adoga (1994) 3 NWLR (pt 333) 369
at 476;
that the case of
Savannah Bank Ltd v
Ajilo (1989) 1 SCNJ
169 which held that there can be no alienation without
Governor's consent does not apply to the facts of this case since the
transaction had not been duly registered but was at the agreement - exhibit
A - stage and therefore inchoate as against
Ajilo's case which was
duly completed and registered;
that a party cannot rely on his wrong to
avoid his obligation, relying on
Adedeji v NBN Ltd (1989) 1 NWLR
(pf. 96) 212;
Awojugbagbe v Chinukwe
(1995) 1 NWLR (pt. 270) 485;
that it is wrong for a party whose duty it is to
seek for and
obtain the Governor's consent, but failed to do so to turn
round and benefit from the default by contesting that the agreement without
the consent is null and void, relying on
Buswell
v Goodwin (1971) 1 All E.R 418 at 421; that the court should not adopt
the literally interpretation principle since to do so would result in the
respondent benefiting from his wrong arid urged the court to resolve the
issue against the respondent and allow 1he appeal.
I have to observe that learned
counsel for the appellants did not make any submission in relation to issue
No C as formulated by him in the brief of argument and is
consequently deemed to have been abandoned. The non presentation of
arguments in relation to issue No C supra confirms my earlier view
that only one issue actually calls for determination in this appeal arising
from the judgment of the lower court, that is, whether the failure to seek
and obtain the consent of the governor of Cross River State to the
alienation evidenced in exhibit A renders the transaction null and void and
of no effect whatsoever.
On his part, learned counsel
for the respondent treated the matter under his issue No 2.
Having regard to the fact that appellant's
issue (a) was struck out for being formulated from an incompetent ground of
appeal, the respondent's issue No 1 thereby becomes irrelevant and is
therefore discountenanced by me.
In respect of issue 2, learned
counsel for the respondent submitted that the lower court was right in
holding that there was non-compliance with the provisions of the
Land Use Act, 1978 in the
alienation of the respondent's right of occupancy in respect of the property
in issue and thereby declared the transaction null and void. Learned Counsel
referred the court to Sections 22 and
26 of the Land Use Act, 1978, the case of
Savannah Bank of Nig. Ltd v
Ajilo (1989) 1 NSCC
135; that no consent of the governor of Cross River State was sought or
obtained in respect of the transaction in issue thereby rendering the same
null and void; that the court is being called upon in the instant case, to
interpret the provisions of the Land
Use Act, 1978 not to consider equitable principles and as such the cases
cited by learned counsel for the
appellants on consideration of equitable principles do not apply to the
facts of this case; that exhibit A was completed, not inchoate as
contended by learned counsel for the appellants; that the transaction was
never in stages; that it is the appellants who are contending that exhibit A
is valid that have the duty or burden to seek the consent as decided in
Rockonoh
Property Co. Ltd v Nitel Plc. (2001) 14 NWLR
(pt. 733) 468. Learned counsel urged the court to resolve the issue in
favour of the respondent and dismiss the appeal.
Two provisions of the
Land Use Act, 1978 are relevant
for the determination of the issue under consideration. These are
Sections 22 and 26 of the Act.
Section 22
provides as follows:-
"22.
It shall not be lawful for the holder of a
statutory right of occupancy granted by the
governor to alienate his right of occupancy or any part thereof by
assignment, mortgage, transfer of possession, sublease or otherwise
howsoever without the consent of the Governor first had and obtained:
Provided that the consent of
the Governor –
(a)
(b)
(c)
(2)
The governor when giving his consent to an assignment, mortgage or
sublease may require the holder of a statutory right of occupancy to submit
an instrument executed in evidence of the assignment, mortgage or sub-lease
and the holder shall when so required deliver the said instrument to the
Governor in order that the consent given by the governor under subsection
(1) of this section may be signified by endorsement thereon."
On the other hand,
Section 26 of the Act provides
that:
"26.
Any transaction or any instrument which purports to confer on or rest
in any person any interest or right over land other than in accordance with
the provisions of this Act shall be null and void,"
It is not disputed that
exhibit A is a conveyance between the 1st appellant and the
respondent in respect of the respondent's property situate and lying at
No3C Enebong
Avenue, Calabar for an alleged consideration of
the sum of
The question that calls for
determination is what is the meaning of the provisions of
Sections 22 and 26 of the Land Use
Act, 1978 supra? To me, the provisions are very clear and unambiguous
and therefore ought to be given their literal interpretation or meaning. It
is settled law that where the words of a statute or Constitution are clear
and unambiguous, they call for no interpretation, the duty of the court in
such a circumstance being to apply the words as used by the legislature.
Section 22 (1) of the Act clearly
provides that it shall be unlawful for a holder of a right of occupancy to
alienate same or any part thereof by assignment, mortgage, transfer of
possession, sublease or otherwise without the consent of the Governor first
had and obtained. It is very clear that the said provision is by the tone
and tenor, mandatory; it makes the obtaining of the governor's consent a
precondition for the validity of any alienation of a right of occupancy,
under the Land Use Act, 1978.
Though there is no time limit to the obtaining of the said consent by the
provision it is very clear that before the alienation can be valid or be
said to confer the desired right on the party intended to benefit there
from, the consent of the governor of the state concerned must be “first
had
and obtained.” That
does not, by any means, make the transaction without the requisite consent
inchoate. It makes it invalid until consent is obtained. It should be noted
that it is not the case of the parties or any of them that exhibit A is an
agreement for sale of land but a conveyance of the land in question - a
completed act of the parties.
The consequence of the
unlawful act of alienating a right of occupancy without the requisite
consent of the governor is what is stated under
Section 26, also supra. It makes
the transaction, such as exhibit A expressly null
and void. Section 26, in
declaring such as act null and void used the word "shall" which, in the
instant case makes the provision mandatory, not directory or discretionary.
Learned counsel for the appellants wants the court to hold that
Section 26 of the Act does not
say that the alienation is void for all purposes but do not see how that
interpretation can be achieved. The provision, as earlier stated is clear
and unambiguous and therefore calls for no interpretation - it says that an
alienation made contrary to the provisions of the Act
"shall
be null and void" which to my mind, means
"null
and void" for all purposes under the sun; if it were
not so the law would expressly or by necessary implication have stated so.
I therefore have no option
than to come to the conclusion that the lower courts were right in coming to
the conclusion that exhibit A is void for non compliance with the provisions
of Section 22 of the Land Use Act,
1978 - see the case of Savannah
Bank of Nig. Ltd v Ajilo supra.
There is the argument that
appeals to the conscience of the court as to whether the respondent should
be allowed to benefit from his wrong e.t.c
particularly in view of the fact that appellants did expend money to settle
the indebtedness of the respondent in respect of the property which the
court failed to order to be refunded by way of consequential order. It
should be noted that I am not commenting on that submission because it is
validly raised before this court, as it is the law that the court does not
grant to a party what he does not request or ask. In the instant case the
appellants never made an alternative prayer to the lower courts to that
effect, hence it was never considered. However, the purpose for my
commenting on the point is to advise the appellants to take up an action
before the appropriate court to recover whatever money(s) they consider
legitimately due to them in respect of the property. This court is not a
Father Christmas. The original respondent is now late, as disclosed in the
brief of argument of the appellants in an action to recover whatever sum
deemed recoverable can be maintained against his estate. All is therefore
not lost, as the appellants would want us to believe.
In conclusion I resolve the
only issue for consideration in this appeal against the appellants and
consequently find no merit whatsoever in the appeal which is hereby
dismissed with costs, which I assess and fix at
Appeal dismissed.
Judgment delivered by
Niki
Tobi, J.S.C.
The property in dispute is
situate at No3C,
In an originating summons, the
plaintiff/respondent asked for the following
reliefs:
"(a)
A declaration that the purported
conveyance is null, void and of no
effect whatsoever and is against the provisions of
the Land Use Decree of 1978.
(b)
An order directing the 1st
defendant, its
agents, servants, privies, assigns
to vacate the property situate at No 3C
Enebong Avenue, Calabar.
(c)
An order directing that the original
documents of the survey and
building plans and the agreement originally conveying the plot/parcel of
land known as 3C Enebong
Avenue, Calabar to the plaintiff be returned to
the plaintiff.
(d)
The sum of
The defendants/appellants
contested the action. After hearing evidence and submission of counsel, the
learned trial Judge granted all the reliefs sought and awarded
The respondent has raised a
preliminary objection and it is on the competence of Grounds 1 and 3. I do
no think I will take any time on the objection. It has no merit. It
therefore fails.
The parties by their affidavit
in support, counter affidavit, further and better affidavit and further and
better counter affidavit joined issues on the matter, which necessitate
proof. The law is elementary that the burden of proof is on the party who
alleges the affirmative. Whoever desires any court to give judgment as to
any legal right or liability dependent on the existence of facts which he
asserts must prove that those facts exist. (Section
135(1) of the
Evidence Act) The burden of proof in a suit or proceeding
lies on that person who would fail if no evidence at all were given on
either side. (Section
136 of the Evidence Act). In civil cases the burden of first
proving the existence or non-existence of a fact lies on the party against
whom the judgment of the court would be given if no evidence were produced
on either side, regard being had to any presumption that may arise on the
pleadings. (Section 137(1) of the
Evidence Act)
In paragraph 7 of the further
and better affidavit in support of the originating summons, the respondent
on record deposed as follows:
“That in answer to the
aforementioned paragraphs, I depose that I was actually coerced into the
purported conveyance (Exhibit A in paragraph 4 of the Affidavit) and that my
real consent was never given. Proof of this situation is contained in
paragraph 10 of the counter-affidavit where the defendants only reported the
matter to the police, and the usual sworn declaration (Exhibit B) in
paragraph 13 of the counter-affidavit) ‘by plaintiff expressing his desire
to sell the building to the 1st defendant’ as he 'was likely to
face multiplicity of criminal prosecution and civil suits from 1st
defendant.’”
The burden is on the
respondent to prove paragraph 4 of the affidavit in support and paragraph 7
of the further and better affidavit in support. Coercion has an element of
force or threat and the deponent was under a duty to prove the coercion. It
is not enough to depose that he was coerced into signing Exhibit A. The
respondent ought to have deposed to the instrument or words used in the
course of the coercion. There should be evidence of brutalization or a
threat of brutalization of the person of the deponent, however slight that
may be. Ebong Ekpo
ought to have deposed that as a result of the coercion, he was not able to
give his consent.
Ebong
Ekpo made reference to paragraph 10 of the
counter affidavit as "proof of this situation1'. I take it that
it refers to the deposition in paragraph 7. What is the deposition in
paragraph 10 of the counter affidavit? It reads.
"That Paragraph 9 of the
Affidavit is denied but in answer thereto defendants' counsel tells me and I
verily believe him that plaintiff was suspended only after he had admitted
at a management committee meeting, his role in the fraud. The defendants
only reported the matter to the police. A photocopy of the report on the
committee meeting is attached hereto and marked Exhibit A."
I do not see any coercion in
the above deposition. It should have been a different one if
Ebong Ekpo was
suspended before he admitted the fraud at a Management Committee Meeting.
That should have given rise to some force or duress. I should also say here
that reporting a matter to the police ipso facto does not involve the
act of coercion. Although the police station, by its very nature, conveys
some sort of coercion, it is not such that will make a person sign a
document under duress, without any unfriendly conduct emitting from the
police.
Learned counsel for the
appellants quoted the following passage of the record. The Court of Appeal
said at page 166;
"I have carefully perused the
documentary Exhibits annexed to the affidavits of both parties and I am not
convinced that duress can be discerned or ascertained from them. By no
stretch of the imagination can one find any evidence of duress in the
documents especially in Exhibits 'A', which is said to have been procured by
duress or coercion on the respondent. ... Therefore, I disagree with the
learned trial judge, and I hold the view that there is no evidence to show
that Exhibit A was procured by duress."
Learned counsel thereafter
submitted that "having held that Exhibit A was not obtained by duress or
coercion, the natural conclusion which flows is that Exhibit A was good. How
then did the Court of Appeal come to doubt the genuineness of the debt of
By the
above, learned counsel gives the impression that the Court of Appeal
contradicted itself.
I do not think so. There was no contradiction. This is clear when the
judgment is read further down at pages 166 and 167 of the record. I will
quote the portion in some detail:
"Then after about eight years
of signing Exhibit A, the respondent was aroused from his complacency to
challenge in the court his signature on Exhibit A, claiming that it was
procured by duress or coercion on him. It is apparent to me from the
surrounding facts of this case, that the parties were interested in settling
the criminal allegations against the respondent out of court by agreeing
with the respondent to sign Exhibit A and also make Exhibit B (the Statutory
declaration of house ownership) in discharge of the purported debt of
The above is an adequate
answer to the submission of learned counsel for the appellants. In my view,
the Court of Appeal did not contradict itself on Exhibit A. No.
The next issue is whether
Exhibit A was null and void and of no effect under the
Land Use Act on the ground that
the Governor's consent was not first sought and obtained before it was
signed or executed. Section 22
provides in part:
"It shall not be lawful for
the holder of a statutory right of occupancy granted by the governor to
alienate his right of occupancy or any part thereof by assignment, mortgage,
transfer of possession, sublease, or otherwise
however without the consent of the Governor first had and obtained."
Section 26 provides as
follows:
"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 Act
shall be null and void."
As it is, Section 22 requires the consent of the Governor of a State before the alienation of a right of occupancy and Section 26 provides that any transaction or instrument which confers or vests interest or right over land not in accordance with the Act is null and void. Section 22 comes within Section 26 and therefore alienation of land without the consent of a Governor of a State is null and void. In my view, the provision of Section 22 is consistent with the status of the Governor who holds the land in the State in trust for the use and common benefit of all Nigerians in accordance with the provision of the Act. The case law is in great proliferation. See Savannah Bank Ltd, v Ajilo (1989) 1 NWLR (Pt. 97) 305; Jacobson Engineering Co. v UBA Ltd. (1993) 3 NWLR (Pt. 283) 586; Ogbo v Adoga (1994) 3 NWLR (Pt. 333) 469; Mainagge |