ALHAJI TSOHO DAN AMALE V SOKOTO LOCAL GOVERNMENT AND OTHERS

The first of the cases delivered by the Supreme Court, Alhaji Tsoho Dan Amale v Sokoto Local Government and Others (Amale),Footnote ⁶ centred in part on when Nigerian courts will not intervene in the compulsory acquisition of private property by government. The appellant applied to the trial court by an ex parte motion for leave to enforce his fundamental rights. He believed his rights had been breached when the then military governor of Sokoto State compulsorily acquired his movable and immovable properties situated at a market in Sokoto. The trial court granted leave to the appellant to enforce his fundamental rights, following which he filed a motion on notice praying the court for the following reliefs:

The court of first instance granted all the reliefs claimed by the appellant. The respondent appealed against that decision, whereupon the Court of Appeal asked the appellant (then respondent) to address it on whether or not the action, as constituted, could properly be brought under the Fundamental Rights (Enforcement Procedure) Rules 1979 (the Rules). This was done and the Court of Appeal set aside the trial court decision on the ground that the action, which was in essence a claim in respect of title to land and compulsory acquisition, was improperly commenced under the Rules. The appellant appealed to the Supreme Court against the Court of Appeal decision.

One of the issues for determination at the Supreme Court was whether the Court of Appeal was right to dismiss the appellant's action at the trial court on the ground that he could not challenge the compulsory acquisition of his landed property by Sokoto State Government through the Rules. The Supreme Court held:

It is the emphasized remark of his lordship that is somewhat confusing. According to the court, it is the law that the appellant's claim should determine the nature of the suit. If his claim discloses a breach of his fundamental right, he is entitled to have his grievance adjudicated under the Rules. This is correct. However, having correctly stated the principle, the court would appear to have misapplied it. It seems to the author, with due respect, that his lordship may have rewritten the appellant's claims in this case. None of the seven claims reproduced above indicates expressly or impliedly that the appellant was asking the court for a declaration of title or indeed compensation for unexhausted improvements. It is rather awkward, as the court held, that a claim for a declaration that the purported acquisition of both immovable and movable properties of the appellant situate at Kofar Kade, Kara Market, Sokoto by the respondents was illegal, unconstitutional, null and void and a gross contravention of section 40 of Nigeria's 1979 Constitution is a claim for a declaration of title to land. It is similarly awkward that an order for the award against the respondents jointly and severally of N25 m in special, general, aggravated and exemplary damages, for violation of the appellant's rights, is a claim for compensation for unexhausted improvements. The author fails to see the rationale in this interpretation by the court and respectfully submits that the appellant's claims clearly disclose a breach of his fundamental right to a fair hearing and that his lordship's remark was merely an aside to the court's verdict. What, then, were the precise grounds on which the case was decided? It was held that:

Could this be the principle on which Amale was decided? The records of proceedings show that the appellant did little to challenge the court's findings that the acquisition of his property by the respondents was in line with the enabling law. The unchallenged facts indicate that: the appellant's property was acquired for a public purpose, namely the expansion of a public market; he was duly notified of the acquisition; and he was offered compensation for his unexhausted improvements which he refused to accept. These are the prescriptions for the compulsory acquisition of private land under the Act. This was not a case in which the reason for the revocation was not covered by the enabling lawFootnote ¹⁰ or for which the purpose was not stated in the notice of revocation.Footnote ¹¹ It was not a case of robbing the appellant of his property only to give it to another person,Footnote ¹² neither was it a case of revoking the appellant's right of occupancy in order to aid the commercial transaction of a company or a group of people for their financial purposes.Footnote ¹³ It was not a case of acquiring the property for no reason or for a reason that has failed.Footnote ¹⁴ Rather, it was a case of a revocation for a public purpose as defined by the enabling law, with the acquiring authority complying with the procedure laid down by law. Again, the appellant did not protest that he was denied access to a competent court to have his complaints properly adjudicated. Besides, it must be remembered that the Constitution does not forbid the acquisition of property in line with an enabling law that prescribes payment of compensation and allows access to a competent court. It seems obvious that the Supreme Court's decision would probably have been different if the appellant had laid emphasis on his averments that the acquisition was unconstitutional and if he had succeeded in challenging the court's findings on the illegality or unconstitutionality of the procedure adopted by the acquiring authority.

In summary, the value of Amale lies in the principle that Nigerian courts will not intervene where an acquiring authority complies strictly with the enabling law and the Constitution on the revocation of occupancy rights or the compulsory acquisition of land.

GOLDMARK V IBAFON COMPANY

On the other side of the coin is the case of Goldmark Nigeria Limited and Others v Ibafon Company Limited and Others (Goldmark)Footnote ¹⁵ where the Supreme Court had an opportunity to pronounce on the meaning of certain provisions of a lawFootnote ¹⁶ concerning the grounds upon which the Federal Government or its agency can compulsorily acquire land. In that case, the plaintiff / respondent landowners succeeded at the Supreme Court because the provisions of the enabling law were not strictly followed by the acquiring authority in compulsorily acquiring the land and because the purpose for which the land was acquired failed. Through its agency, the Federal Government had acquired a large expanse of land in Lagos for the use of the Nigerian Ports Authority. However, parts of the land acquired were later transferred to private concerns. One of the statements by their lordships in the case read:

Odili JSC in her concurring judgment also remarked:

As alleged by the respondents, the court found that, through its agent, the government had breached the Public Land Acquisition Law (particularly sections 5 and 9) in acquiring the respondents' properties. It found that the landowners did not receive notice of the acquisition of their land and that the acquisition was not for public purposes as required by law, but for the private benefit of other people.

Stripped of all the other issues of law canvassed by the parties at the Supreme Court, Goldmark epitomizes the attitude of Nigerian courts to the interpretation of laws governing the compulsory acquisition of land. Private landowners should be happy to learn that Nigerian courts are always ready to strike down any compulsory acquisition of land that does not conform strictly to the provisions of the enabling law. The compulsory acquisition of private land or property that is not for the purpose prescribed by law or that is not duly communicated to the landowner either as holder or occupier (so that he will know the grounds upon which the acquiring authority is making the acquisition and whether or not to object) or that does not offer the landowner appropriate compensation, is bound to fail. It will not matter that the enabling law is silent on these issues. This is because any provision of the law which gives or governs the compulsory acquisition of a person's property must be construed by the court strongly against the party seeking to apply that law (contra preferentes). Such a statute should therefore be construed by the court strictly against the acquiring authority and sympathetically in favour of the complainant or the owner or possessor of the property against any irregularity in the procedure for acquisition as laid down by the enabling statute.Footnote ¹⁹

OHOCHUKWU V AG

A different factual situation was presented in the case of Ohochukwu v Attorney General of Rivers State & Others (Ohochukwu). Footnote ²⁰ The plaintiff / appellant's claim was principally for a declaration that the certificate of occupancy registered as no 76 at page 76 in volume 93 in the Port Harcourt lands office in respect of the plaintiff's property at plot A27, government reservation area (GRA), phase I, Port Harcourt was correct, valid and subsisting. The facts of the case are briefly that the plaintiff / appellant applied to the Rivers State Government for allocation of the plot in question, but was allocated two plots via letters of allocation, including the land in dispute. He complied with the conditions of allocation, ie payment, and was issued with certificates of occupancy. The plaintiff / appellant erected a building on the disputed plot, and paid ground rent in respect of the property. The Rivers State Government set up the Sanomi Commission to look into the sale of landed properties in the state, based on the government's policy of one man - one plot. The plaintiff / appellant was invited to participate and was told by the commission to choose one of the two properties he held in the GRA. He chose the one which was then his residence. In the commission's report the property in dispute was listed among plots that had reverted to the Rivers State Government. The plaintiff / appellant protested. He also attempted to have the disputed land assigned to his common law wife to enable him raise money to defray the bank loan used in erecting the building on it. Consequently, a deed of assignment was prepared and executed, and forwarded to the secretary to the government requesting the military governor's consent. The commissioner of lands advised the plaintiff / appellant that the property had reverted to the Rivers State Government; the application for assignment could therefore not be processed. By a notice published in the official gazette, the disputed property was compulsorily acquired by the government. The plaintiff / appellant pleaded that the Rivers State Government was estopped from “revoking” the right of occupancy after he had expended so much money erecting a building on it, and that any such revocation would be ultra vires, null and void.

On these facts, the court of first instance gave judgment in favour of the plaintiff / appellant because the acquiring authority did not comply with the enabling law in revoking the plaintiff / appellant's right of occupancy. In particular, the plaintiff / appellant was not informed of the purpose of the revocation, as required by section 28(6) of the Act. Accordingly, the trial judge granted all the reliefs sought by the plaintiff / appellant. Dissatisfied with the judgment, the defendants / respondents appealed and the appeal was allowed.

The pertinent question raised at the Supreme Court was whether the plaintiff / appellant was entitled to judgment after surrendering the land in dispute to the government and in view of the subsequent revocation of his right of occupancy by the government. Four of the five justices who heard the case at the Supreme Court pronounced as follows:

This article will now examine in some detail the twin questions of whether the plaintiff / appellant surrendered his property to the government having regard to the facts of the case and the law and whether the subsequent revocation of the plaintiff / appellant's right of occupancy by the government was in order. The law governing the surrender of a right of occupancy encapsulated in section 27 of the Act is most unhelpful. The section simply provides that a governor may accept, on such terms and conditions as he may think proper, the surrender of any statutory right of occupancy granted under the Act. First, the provision only relates to statutory rights of occupancy and does not apply to customary rights of occupancy. Secondly, the provision does not define what really amounts to the surrender of a right of occupancy. Thirdly, there is no indication of what the governor is expected to do to extinguish the interest of the holder of the statutory right of occupancy being surrendered. Consequently, reference must be made to other sources of law in this regard.

In the lead judgment delivered by Mukhtar JSC, the Supreme Court adopted the following principle of the law on surrender:

The following questions would seem to arise from this principle of the law on surrender: Did the plaintiff / appellant surrender his property voluntarily? Was there a mutual agreement between the government and the plaintiff / appellant on the issue? Assuming that there was surrender, what is the effect of the surrender of the property by the plaintiff / appellant? The plaintiff / appellant testified as follows in his evidence in chief:

It is clear from this that the plaintiff / appellant was faced with a fait accompli before the commission. He had no choice. That this is so is reinforced by the fact that, immediately after he left the commission, he protested to the government about the commission's decision. Could it be said that the plaintiff / appellant voluntarily surrendered his property under these circumstances? The author does not believe so. However, the Supreme Court justices unanimously held that this was a case of surrender and they supported their decision with the fact that the plaintiff / appellant chose one of the properties and subsequently attempted to assign the property in dispute to his wife by applying for the governor's consent as required by law. Is it not obvious that the attempt to assign the property in dispute was in fact an indication that the plaintiff / appellant never intended to surrender his property to the government? If indeed he had surrendered the property, would he have had any interest in it to assign to his wife? Even more appalling, with due respect, was the remark of Ariwoola JSC to the effect that “once there is a surrender of a right the giving of notice by the authority accepting the surrender will be unnecessary, hence the issue of notice was very far-fetched. It did not relate to the salient point which was in fact the crux of the whole matter, that is, that the Plaintiff / Respondent had surrendered his Right of occupancy over the property in dispute, albeit reluctantly”.Footnote ²⁷

On the question of whether the subsequent revocation of the plaintiff / appellant's right of occupancy was in order, it should be stated immediately that it was unnecessary in the first place for the government to have taken that course of action. It is submitted that, if indeed the plaintiff / appellant surrendered his property as alleged, his interest in the property would have automatically reverted to the government by operation of law, such that no further action would be required under section 28 of the Act. That would not be a case of compulsory acquisition, but one of acquisition by consent of the parties. Be that as it may, if the government is required to revoke the plaintiff / appellant's right of occupancy as claimed by the court, would it have been sufficient for the government simply to publish the notice of revocation in the official gazette? The answer is obviously in the negative. The government would still have had to comply with the provisions of the enabling law, particularly those concerning notice to the plaintiff / appellant and payment of prompt compensation.

Why then, did the plaintiff / appellant fail on the issue of revocation of his right of occupancy, having regard to the irregularity involved? The plaintiff / appellant failed because the Supreme Court chose to apply technical procedural rules in reaching a conclusion. Mukhtar JSC made this apparent when he proclaimed: “I will repeat here again, that the plaintiff did not complain of lack of notice in compliance with the provision of Section 28 of the Land Use Act, in making his case in the court of first instance, and so he couldn't have been allowed to do so on appeal, for it was like attempting to improve his case at a higher level, which is unfair on his opponents.”Footnote ²⁸ Similarly, Galadima JSC in his concurring judgment, added: “[o]n the issue of not serving the Appellant a notice under subsection (6) of Section 28 of the Land Use Act, he did not make this an issue in his pleadings. It was neither made an issue at the trial court, nor was any leave sought to raise same as fresh issue in the court of Appeal. The issue not having been raised by the appellant in the Court below, it is plain that it cannot now be canvassed in this Court without leave”.Footnote ²⁹ It is therefore apparent that, but for the technical procedural rule, the plaintiff / appellant would probably have succeeded on this ground.