3PLR – MRS. STELLA BOMA KENTEBE V. E.O. ISANGEDIGHI (OF KNIGHT FRANK & RUTLEY (NIG.)

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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MRS. STELLA BOMA KENTEBE

V.

E.O. ISANGEDIGHI (OF KNIGHT FRANK & RUTLEY (NIG.)

IN THE COURT OF APPEAL

[PORT HARCOURT]

3PLR/2001/191  (CA)

OTHER CITATIONS

8 NWLR (Pt. 768). 134

 

BEFORE THEIR LORDSHIPS:

JAMES OGENYI OGEBE, JCA (Presided)

MICHAEL EYARUOMA AKPIROROH, JCA

ABOYI JOHN IKONGBEH, JCA (Delivered the leading judgment)

 

REPRESENTATION

  1. J. Umah Esq., for the appellant.

Respondent not represented.

MAIN  ISSUES

LAND LAW – Abandoned Properties Act, Cap. 1 Laws of the Federation of Nigeria 1990, section 1(1) – sale of property effected by Director, Committee on Government Properties on behalf of Rivers State government and not by the Abandoned Property Implementation Committee established thereunder – whether enjoyed the protection afforded by section 1(1) aforementioned.

LAND LAW – Leases – sale of property subject to subsisting lease – whether a nullity.

LAND LAW – Government lease – purported cancellation of a subsisting lease

MAIN JUDGMENT

ABOYI JOHN IKONGBEH, JCA, (Delivered the following judgment):

This is an appeal from the decision of the Rivers State High Court (Niki Tobi, J., as he then was), sitting at Port Harcourt, entering judgment for the plaintiff. The appellant now before us is the daughter of the 2nd defendant before the trial court. She was substituted for her deceased father by order of this court. The 1st defendant before the trial court was the Attorney-General of Rivers State. The original plaintiff (Julius Okoye Eze) too has died. He too died during the pendency of this appeal and was substituted by order of this court, first, by Chukwuma Ezeanya and, later, the present respondent.

The original plaintiff took out a writ of summons against the defendants claming-

“1.     A declaration that the cancellation of the lease of plot ‘A’ block 37 otherwise known as No. 36 Aggrey Road, Port Harcourt executed in favour of the plaintiff, and registered as No. 48 at page 48 volume 433 of the Lands Registry in the office at Enugu now in the office at Port Harcourt and the said cancellation was published in the Rivers State of Nigeria Official Gazette No. 26 volume 5 of 26th June 1973 is null and void and of no effect.

  1. A declaration that the said lease assigned to the plaintiff is still subsisting
  2. A declaration that the purported sale of the said plot and property therein by the “Director, Committee on Government properties” on behalf of the Government of Rivers State to the 2nd defendant is null and void.
  3. A declaration that the purported agreement made on 7th day of September, 1979 between the Director, Committee on Government Properties (entered into on behalf of the Government of the River State) and the 2nd defendant in respect of the said plot and registered as No. 53 at page 53 volume 84 of the Lands Registry in Office at Port Harcourt is null and void and of no effect since the said plot was not granted for “Public Purposes” for which it was acquired by the Rivers State Government on 7th September, 1972.
  4. A declaration that the purported building lease granted to the 2nd defendant for 50 years which commenced on the 1st January, 1978 and expiring on the 31st December 2027 granted by the said Director, Committee on Government properties on behalf of the Rivers State Government is null and void and of no effect.”

The following facts are not in dispute. Some were stated by the plaintiff and admitted by the original 2nd defendant, now represented by the appellant. Others were pleaded and introduced in evidence by him.

By a deed of assignment made in favour of the original plaintiff in 1963 he acquired an interest in the property now in dispute, which interest, all things being equal, was to subsist until 2029. On the outbreak of the Nigerian civil war he fled Port Harcourt, abandoning the property. At the end of the civil war he returned and tried to repossess the property. It came to his attention that sometime in 1973 the Rivers State Government had published a notice to the effect that it had cancelled his lease on No. 36 Aggrey Road Port Harcourt. Exhibit E, put in evidence by the 2nd defendant, shows that on 31/07/77 one D.A Mark (Major) who described himself as President, APIC addressed a letter to the 2nd defendant informing him that he (2nd defendant) had won the ballot to buy the property covered by the plaintiff’s lease. The letter further informed him of the purchase price and other charges he was required to pay for the property. It went on to warn him to-

“………note where you fail to complete this payment before or on 20th August 77 you will forfeit the property and it will be allocated to another person.”

The exhibit also shows the following endorsement in green and judging from the signature under it, made by the same person who wrote the letter:

“Came on 14 October, 77. Allocation is nullified.”

Exhibits. F and F1, again tendered by the 2nd defendant, i.e., the bank tellers by which he paid the amounts as required, show that he did not pay the amounts required of him until 17th October, 1977, three days after his allocation had been nullified.

The same 2nd defendant put in evidence exhibit. G, which shows that in 1979 the Rivers State Government, without any reference whatsoever to the Abandoned Property Implementation Committee, granted the 2nd defendant a building lease for a term of 50 years. The grant was couched in the following language.

“The Military Administrator of Rivers State of Nigeria for and on behalf of the Government of said Rivers State of Nigeria under powers conferred by the State Lands Law demises the land comprised in the plot above specified subject, except as indicated herein, to the provisions of that law and the regulations thereunder.”

The two defendants filed statement of defence. I need not bother with the 1st defendant’s defence since he has not appealed against the judgment and has not participated in this appeal.

To the plaintiff’s complaint that the Rivers State had acted arbitrarily and without just cause in canceling his lease the 2nd defendant pleaded in paragraph 5, 6, 8, 10, 12 and 19 of his statement of claim that the Rivers State Government competently and validly cancelled the plaintiff’s lease because the plaintiff was in breach of his covenant to pay ground rent. It was his defence also that since the sale of the property to him had been effected by the Abandoned Property Implementation Committee the sale could not be challenged.

The plaintiff testified but called no witness. The 2nd defendant alone testified for himself. The 1st defendant called one witness. Documents were admitted in evidence from both sides.

After hearing addresses by counsel on behalf of the parties the learned trial Judge in a judgment he delivered on 2/10/86 found for the plaintiff and declared both the purported cancellation of his lease and the purported sale of the property covered by it to the 2nd defendant null and void and of no effect whatsoever. He concluded his judgment thus at pages 128 – 129 of the record.

“After a very careful consideration of issues in this matter and the submissions of counsel, I am left with no alternative than to declare null and void the State Lands (Cancellation of Leases) Edict, No. 15 of 1972 as amended by the State Lands (Cancellation of Leases) (Amendment) Edict, No. 17 of 1972, which purportedly cancelled the lease of plaintiff, that is to say, plot A, block 37, otherwise known as No. 36 Aggrey Road, Port Harcourt on the ground that the provisions of the said Edicts, particularly, section 3(1) Edict No. 15 of 1972 are inconsistent with section 31 of the 1963 Constitution and the general intendment of the Abandoned Property (Custody and Management) Edict, No. 8 of 1969, particularly, section 4 and 8 thereof. Accordingly, the purported cancellation of the said lease of the plaintiff which was published as government notice No. 265 in the Rivers State of Nigeria Official Gazette No. 26 volume 5 dated 25th June, 1973 is hereby declared null and void and of no effect whatsoever. I also declare null and void and of no effect whatsoever the purported sale of the property in dispute, that is to say, plot A, block 37, otherwise known as No. 36 Aggrey Road, Port Harcourt, to the second defendant, including the building lease, exhibit G.”

 

Only the 2nd defendant felt aggrieved and has appealed against the judgment on two original grounds and six additional grounds. Mr. E. B. Peter-Kio has formulated the following four issues for determination on his behalf:

 

“1.     Whether the sale of the property in dispute to the 2nd defendant was premised on the wrong assumption that the plaintiff’s lease was lawfully cancelled.

 

  1. Whether the sale of the property in dispute by the Abandoned Property Implementation Committee to the appellant is null and void just because the committee was not formally established.

 

  1. Whether the learned trial Judge had jurisdiction to try the question of the sale of the property in dispute to the appellant when it was clear that the sale was conducted by the Abandoned Properties Implementation Committee set up by the Federal Government.

 

  1. Whether Decree No. 90 of 1979 was meant to protect steps taken by the Abandoned Properties Implementation Committee before or after 28th September, 1979.”

 

The plaintiff/respondent has not filed any brief of argument. Consequently this appeal was, on the application of the appellant, heard on the appellant’s brief alone.

 

The first, second and fourth issues could have been better framed. As they stand they do not relate to any complaint against the manner in which the trial Judge had handled his judgment or against the conclusions he reached. They are mere hypothetical legal questions. Reading through counsel’s arguments, however, it can be seen that the appellant is complaining against the Judge’s conclusion that the sale of property to him was null and void. Counsel on his behalf appears to have dropped the complaint against the Judge’s conclusion that the purported cancellation of the plaintiff’s lease was null and void.

 

The pith of the appellant’s complaint’s as can be gathered from his counsel’s argument, is that the learned trial Judge was in serious error in daring to assume jurisdiction to entertain the suit challenging the sale done, according to him by the Abandoned Property Implementation Committee, talk less of actually declaring it null and void. The argument of Mr. Peter-Kio ran like this. The committee had been formally established by the Federal Government, although nobody testified to this effect. No evidence is required to establish it. To the learned Judge’s feeble argument that without evidence he could not come to the conclusion that the particular group of people who made the offer for sale complained of had been formally established as a committee, learned counsel thundered in the appellant’s brief that since the Federal Government had powers to establish such a committee it must be assumed that it had in fact so established it. Hear the audacious counsel at paragraph 2.2 of the appellant’s brief:

 

“It is our submission that whether the Abandoned Properties Implementation Committee was formally established by a Decree or not, it in fact existed and its existence and the work it did is put beyond question by section 1(1) of the Abandoned Properties Decree 1979 (No. 90 of 1970). This Decree clearly shows that the Abandoned Properties Implementation Committee was a creation of the Federal Military Government.”

 

To put a further nail in the coffin of the impertinent Judge counsel postulated at paragraph 2.3:

 

“………… by promulgating the Abandoned Property Decree 1979 (No. 90 of 1979) the Federal Military Government had shown that it established the Abandoned Property Implementation Committee. It is our submission that even if Decree No. 90 of 1979 was not promulgated, the abandoned properties issue was so notorious and the court can take judicial notice of the pronouncements of government functionaries and also facts of recent local history within knowledge.”

 

He then delivered the coup de grace at paragraph 2.4:

 

“Whether the Federal Military Government formally established the Abandoned Properties Implementation Committee or not cannot be inquired into since the Federal Military Government had the power to set up the committee to deal with the issue of abandoned properties. It is our submission that where a Military Government acts within its competence, the procedure adopted in performing its acts cannot be probed, the overriding question is whether it acted within its competence. With regards to the acts of the Military Administrators in Nigeria from15th January, 1966 to 30th September, 1979, the Supreme Court appears to hold the view that whether the Military Administrators followed proper procedure or not in coming to their decisions, the courts cannot question their acts by virtue of section 6(6) (d) of the Constitution of the Federal Republic of Nigeria 1979. See the case of Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539 at 533 E – H. Therefore since Decree 90 of 1979 has made it clear that the Abandoned Properties Implementation Committee was established by the Federal Military Government, whether it was established by a Decree or subsidiary legislation or mere announcement on radio, should not bother the courts. The court should accept the fact that the Abandoned Properties Implementation Committee was set up by the Federal Military Government.”

 

The sheer audacity in counsel’s pronouncements drove me timorously to peek into section 1(1) of the Abandoned Properties Decree, No. 90 of 1979 (Now Abandoned Properties Act Cap. 1, Laws of the Federation, 1990) whence counsel derived the clout to mortify the poor trial Judge so. It provides:

 

“1(1) Every sale or disposition of abandoned properties conducted by the Abandoned Properties Implementation Committee (hereafter in this Act referred to as “the   Committee”) set up by the Federal Government shall be deemed to have been lawful and properly made and any instrument issued by the committee which purports to convey any estate or interest in land, shall be deemed to have been validly issued and shall have effect according to its tenor or intendment.”

 

Speaking for myself, I see nothing in this provision indicating that any committee had in fact been set up under it. It does not set up any committee. It merely seeks to validate any sale done by a committee may be set up by the Federal Government, thereby indicating that the Federal Government has power to set up one. Having power to set up a committee is a matter of law to be gleaned from the provisions of the law. Whether that power has been exercised is clearly a matter of fact to be determined on evidence. If one accepts the learned counsel’s arguments one would be paving the way for anarchy. It would mean that any group of hoodlums can get together claiming to have been constituted by the Federal Government into the Abandoned Property Implementation Committee. They could then set about terrorizing the land since no court could even inquire into whether or not they had been constituted as they claimed.

 

With all due respect to learned counsel, I cannot accept his argument. For the appellant to cover the committee that purportedly offered the plaintiff’s property for sale to him with the protection afforded by section 1(1) of Cap. 1 of 1990, he must show by admissible evidence that that committee had in fact been set up by the Federal Government. As there had been no such showing, the learned trial Judge was justified in making the observation complained of in the second issue for determination.

 

On whether the trial court had no jurisdiction because of section 1(1) of Cap. 1 of 1990, the 2nd defendant himself proved beyond any shadow of doubt that the interest he purportedly acquired in the plaintiff’s property did not come to him from the Abandoned Properties Implementation Committee. As I showed earlier regarding exhibits. E, F and F1, the offer made to him by the committee lapsed because he did not meet its deadline given to him by the committee and the allocation was expressly nullified by the very president of the committee that made it. How can we close our eyes to this piece of evidence that the 2nd defendant himself placed before the court and accept his contention that the committee sold the property to him? In paragraph 2.7 of his brief learned counsel tried to make heavy weather of the observation by the Judge at page 87, 11.20-26 that-

 

“Learned counsel corrected the erroneous impression that the property in dispute was sold by the Government of Rivers State. He contended, and rightly in my view, that the property was sold by the Abandoned Properties Implementation Committee duly appointed by the Federal Government.”

 

Counsel contended that having made such finding the court was barred from entertaining the matter. With all due respect, counsel did not paint the full picture. The observation just set out did not represent the findings of fact by the Judge on the matter. It was just that; an observation. The findings regarding the transaction between him and the committee were made on pages 83, 11.3 – 4, 1.19 to page 1.1, where the Judge said, inter alia:

 

“From the state of the pleadings and evidence before me, the following facts are not in dispute…….following the cancellation of the lease, the plaintiff, by public notice in exhibit D indicated to the general public that the property in dispute belonged to him. The property was advertised for sale by the Abandoned Properties Implementation Committee, Port Harcourt. The second defendant applied to purchase it. There was an open ballot. The second defendant won the ballot and by exhibit E an offer was made by the committee to the second defendant for the purchase of the property. The second defendant made the initial payment vide F and F1. A building lease was entered between the second defendant and Suleiman Saidu, the Military Administrator of Rivers State. This was 7th September, 1979. The building agreement, as earlier indicated, is exhibit G.” (Italics supplied).

 

These were the findings. According to his finding, all that passed between the committee and the 2nd defendant was just an offer for sale, not any real sale. The real transfer of property was between the Military Administrator and the 2nd defendant.

 

Be that as it may, the real reason why the learned Judge declared the sale of property to the 2nd defendant a nullity was that although the property was at one point an abandoned property and fell into the hands of the Rivers State Military Governor to be dealt with as an abandoned property, the purported cancellation of the plaintiff’s lease over it was a nullity. The effect of that, according to his reasoning, was to re-vest it in the plaintiff, thus taking it away from the class of property that the committee could sell and be protected under section 1(1) Decree 90 of 1979. This is clearly discernable from the following passage on pages 126-127:

 

“The Decree does not provide for the definition of ‘abandoned property’ within the meaning of section 1……. There is no nexus between Decree 90 of 1979 and Edict 8 of 1969 or with any other Edict for that matter because the Decree does not specifically incorporate it or make reference to it. And finally on this point, Decree 90 of 1979 commenced on 28th September, 1979 and so cannot be interpreted retrospectively to cover acts done either under Edict No. 8 of 1969 or Edicts Nos. 15 and 17 of 1972 or any other Edict promulgated before Decree No. 90 of 1979.

In the light of the above position of Decree No. 90 of 1979, as I see it, I was rather surprised when learned state counsel for the first defendant and counsel for the second defendant did not only invite me but urged me to invoke the provisions of section 1 of the Decree to hold that the sale of the property in dispute to the second defendant is valid. I can never come to such decision. The Decree is not in any way related to the purported sale of the property to the second defendant. Learned counsel have my sympathy somehow. They could not place their hands on any law which authorizes the sale of abandoned property. They were therefore happy and excited when they saw Decree No. 90 of 1979. The sale of the property to the second defendant could have been lawful if I held that the cancellation of the plaintiff’s lease by Edict Nos. 15 and 17 was lawful. Unfortunately, I cannot so hold and so the sale which was premised on the wrong assumption that the plaintiff’s lease was lawfully cancelled cannot stand…… It is my opinion that if the purported cancellation of the plaintiff’s lease is declared null and void by the court, then the property reverts to its original position, and in this case, the property goes back to the plaintiff.” (Italics supplied).

 

As we saw, the appellant himself put evidence before the court establishing that the Rivers State Government was the body that disposed of the respondent’s property not the committee. He has offered no justification for the manifestly arbitrary act of selling it to him. As has been seen, the plaintiff’s lease still had up to 2029 to run. Although the appellant pleaded that the plaintiff lost his interest in the land because he was in breach of his obligations under it, he did not establish this. Indeed he made a volte face, conceding that there was no valid cancellation of the plaintiff’s lease. His counsel made this point clear in paragraphs 1.6 and 1.7 of his brief of argument where counsel wrote:

 

“1.6   Even though the 2nd defendant attempted to justify the Rivers State Government in cancelling the plaintiff’s lease as pleaded in paragraphs 5, 6, 8 and 10 of the statement of defence of the second defendant at page 41, lines 24 – 32, page 42, lines 1 – 11, and 14 – 28 of the record of proceedings, the second defendant’s main defence pleaded in paragraphs 12, 14 and 15 of his statement of defence at page 43, lines 11 27, 30 32; page 44, lines 1 – 10, and also in paragraph 20(c) (d) (e) and (f) of the same statement of defence at page 45, lines 25-32, and page 46, lines 1-29 of the record of proceedings is that the property in dispute was sold to him by the Abandoned Properties Implementation Committee. The second defendant gave evidence in support of his pleadings as DW1 at page 53, line 18-32, page 54, lines 1-33 and page 55, line 1-24 of the record of proceedings where he explained how the Abandoned Properties Implementation Committee sold the property to him. He tendered documents in support as exhibits E, F, and F1 and G, Nowhere has he claimed to have derived his title from the Rivers State Government.

 

1.7     Defence counsel conceded in their submission at page 60, lines 3-15, and page 61, lines 29-33 of the record of proceedings that the cancellation of Leases Edicts Nos. 15 and 17 of 1972 had been declared null and void in view of the Supreme Court decision in Peenock Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C 17 at 66 – 67.”

 

The question is, if as the appellant himself has conceded, the plaintiff’s lease on the property had not been validly cancelled and, therefore, still subsisted, how could any authority have validly sold the same property to the appellant. As the appellant has woefully failed to provide an answer to this question I must, and do, hold that the learned trial Judge, was right in his decision to declare the sale null and void and of no effect whatsoever.

 

In the result this appeal fails as it is totally lacking in merit. I affirm the decision of Niki Tobi, J., as he then was, in its totality.

 

I make no order as to costs as the respondent has taken no part in this appeal.

 

JAMES OGENYI OGEBE, JCA: I read before now the lead judgment of my learned brother Ikongbeh, JCA and I agree with his reasoning and conclusion that the appeal should be dismissed.

 

From the pleadings and evidence the sale was made by “Director, Committee on Government Properties” on behalf of Rivers State Government and not by any “Abandoned Properties Implementation Committee” set up by the Federal Government under Abandoned Properties Act 1990. It followed therefore that the sale did not receive any protection under section 1(1) thereof.

 

I dismiss the appeal and affirm the judgment of the lower court. I too make no order as to costs.

 

MICHAEL EYARUOMA AKPIROROH, JCA.: I read in advance the lead judgment of my learned brother Ikongbeh, JCA and I agree entirely with his reasoning and conclusion that the appeal should be dismissed. I dismiss the appeal and affirm the judgment of the lower court.

 

I too make no order as to costs.

 

Cases referred to in the judgment

Mustapha v. Gov., Lagos State (1987) 2 NWLR (Pt. 58) 539.

Peenock Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C 17.

Statutes referred to in the judgment

Abandoned Properties Act Cap. 1 Laws of the Federation of Nigeria 1990 s. 1(1).

Abandoned Property (Custody and Management) Edict No. 8 of 1969 Ss. 4 & 8(1).

Constitution of the Federal Republic of Nigeria, 1963 s.31.

Constitution of the Federal Republic of Nigeria, 1979 s. 6(6)(d).

State Lands (Cancellation of Leases) Edict No. 15 of 1972 s. 3(1).

 

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