Abba V. Abba Aji: On Power of Governor to Correct Anomaly in Grant of Right of Occupancy. An Insight into the Decision of the Supreme Court Therein.

Citation: (2022) 11 NWLR PT. 1842 AT 535.

PARTIES IN FULL:
DR. SHETTIMA ABBA
V.
1. ALHAJI MUSA ABBA AJI
2. MINISTRY OF LANDS AND SURVEY, BORNO STATE
3. GOVERNMENT OF BORNO STATE.

Courtesy: Moruff O. Balogun Esq.

Summary of facts:
The Borno State Government, the 3rd respondent, owned the property known as Government Quarters situated at No. 24 Benue Road, Old GRA, Maiduguri.

In 1983, it allocated the said government quarters to the 1st respondent who was a civil servant in the 3rd respondent and the 1st respondent continued to be in occupation and his rent was being deducted from his salary up to 2003.

In 2002, the 3rd respondent introduced a policy whereby civil servants occupying various government quarters in the GRA and other places in Maiduguri were given the right to apply for the purchase of the Government Quarters.

The policy was known as “owner-occupier”. It was strictly on owner-occupier basis. In other words, anyone who was not in occupation of government quarters was not eligible to benefit under the policy.

The policy was aimed at making them own the houses occupied by them. The policy was not formally introduced; rather, it was a sort of experiment and it was hijacked and abused by some influential citizens of the State.

Those influential citizens benefited from the policy even though they were not occupants of the quarters, thereby depriving those eligible to benefit in accordance with the policy.

The 1st respondent was one of those who happened to be victims of the policy that was hijacked as he was denied the opportunity to buy the quarters he was in occupation of, from 1983 to 2003.

In 2005 the government intervened and revoked the sale of the houses to those influential citizens and sold same to those legally to benefit in accordance with the owner-occupier policy.

The 1st respondent applied to the 3rd respondent for the purchase of the quarters on 20/5/2002.

Similarly, the appellant, who was the Secretary to the State Government, also applied on 10/9/2002 to the 3rd respondent for the purchase of the Government Quarters known as No. 24 Benue Road, old GRA, Maiduguri, in spite of the fact that the 1st respondent was in occupation of the house as a civil servant of the 3rd respondent at the time.

The appellant’s application was processed and approved a day after he applied by the State Governor and as such the said government quarter was sold to him.

Consequently a statutory right of occupancy No. BO/41496 was issued to him by the 3rd respondent. In spite of being earlier in time, the 1st respondent’s application was ignored and received no attention.

In order to get his application processed and approved, the appellant misrepresented facts that the house was vacant and that the 1st respondent did not apply for the purchase of the house.

The mistake of selling government quarters to non-occupants due to abuse of the policy which was hijacked by influential individuals in government affected not only the 1st respondent but many other civil servants occupying government quarters who were denied the right to buy the quarters being occupied by them.

Consequently, several complaints were made to the 3rd respondent from those who were denied the right to purchase the houses they were in occupation.

The government set up a committee known as Transition Committee and part of the committee’s mandate was to look into the complaints concerning the manner in which the government quarters were sold and to make appropriate recommendations to the 3rd respondent.

The committee discovered that the complaints were genuine and appropriate, and therefore recommended that the sale to those who benefited under the policy of the owner-occupier but were not entitled to, because they were not in occupation of the houses at the time the houses were sold, be revoked.

The 3rd respondent accepted the recommendation and revoked the sale of the property to the appellant, and sold same to the 1st respondent who was entitled to buy the house because he was the occupant of the house.

The appellant alleged that the revocation of his right of occupancy was not in accordance with the law or for just cause, and thus he filed an action at the High Court to challenge the revocation as being null and void for non-compliance with the law.

The 1st respondent joined issue with the appellant and also counter-claimed. At the conclusion of hearing, the trial court found in favour of the appellant and dismissed the counter-claim of the 1st respondent.

Dissatisfied, the 1st respondent appealed to the Court of Appeal which allowed the appeal, set aside the judgment of the trial court and granted the 1st respondent’s counter-claim.
Aggrieved, the appellant appealed to the Supreme Court.

Held: The Supreme Court dismissed the appeal.

The following issues were raised and determined by the Supreme Court:

On power of Governor to correct anomaly in grant of right of occupancy-

In the exercise of the statutory powers of the Governor to grant and issue a certificate of occupancy, occasions may arise where the Governor is misled into granting the right of occupancy and issuing a certificate of occupancy to a wrong person; or the Governor may discover that the issuance of the certificate of occupancy was carried out irregularly through inducement, fraud, concealment or misrepresentation.

In any such situations, the Governor cannot fold his arms and allow those vitiating vices to be perpetrated over the land he holds in trust for the benefit of all Nigerians and allow the certificate to stand.

Even though there is no specific provision in the Land Use Act for such, the Governor has the inherent power to revisit the grant and the issuance of the certificate of occupancy with a view to correcting the anomaly. That would include revocation or cancellation of the certificate of occupancy.

This is in line with the inherent powers of the Governor in keeping with the nature of the powers vested in him by sections 1(1), 5 (1) and 9 of the Land Use Act, for the purpose of sustaining the spirit and intendment of the Act.

It does not require an express provision of the law or act to give power to the Governor to correct errors made by him arising from a misunderstanding of the facts.

If a land meant for one person is mistakenly given to another by the Governor and the mistake is subsequently discovered, the law gives him inherent powers to rectify the grant.

On whether notice to revoke certificate of occupancy required in all instances of revocation-

Issuance of notice of intention to revoke a certificate of occupancy is not required in all instances of revocation. The notice is mandatory if the revocation is to be carried out for overriding public interest under section 28 of the Land Use Act, 1978.

However, no notice is required under section 9(1) (a) and (3) of the Land Use Act for the Governor to cancel or revoke a certificate of occupancy, since section 9(1) (a) and (3) is not subject to sections 28, 44, and 52(1) of the Act.

In the instant case, the appellant’s argument, that no notice of intention to revoke his statutory right of occupancy was issued and served on him before the notice of revocation of 7/7/2005, was not valid because exhibits ‘G’ and ‘F’ were not issued pursuant to sections 28, 44 and 51(1) of the Land Use Act.

On how Governor can revoke Certificate of Occupancy other than for overriding public purpose-

A revocation of a Certificate of Occupancy not based on overriding public interest needs not comply with conditions laid down for a valid revocation under section 28 of the Land Use Act, 1978.

In the instant case, exhibit “F” was a notice to the appellant of the decision of the Governor of Borno State to rescind the sale transaction over the house in dispute due to the fact that it was improperly sold to him and the decision to cancel or revoke the certificate of occupancy issued to him.

It was immaterial whether the word “revoked” or “cancelled” was used in the letter; the most important thing was that the decision of the Governor to rescind the contract of sale leading to the issuance of the certificate was effectively communicated to the appellant through exhibit ‘F’.

The case of the appellant was founded upon a misconception that exhibit ‘F’ was issued pursuant to the exercise of the power of revocation stipulated in section 28 of the Land Use Act.

That misconception led to the submission that exhibit ‘f’ did not comply with the conditions laid down for a valid revocation of land under section 28 of the Land Use Act, 1978.

The trial court was wrong to have agreed with him in that regard. The error of the trial court was in the fact that the Governor of Bornu State did not revoke the certificate of occupancy for overriding public interest under any of sections 28(1), 28(2) (a)-(c), 44, or 51(1) of the Land Use Act 1978 and was therefore not bound to comply with the strict conditions stipulated under those sections.

On onus on party alleging invalid revocation of right of occupancy-

For a party to successfully maintain an action against invalid revocation of his right of occupancy, he has the burden to prove a valid and subsisting right of occupancy leading to a valid issuance of a certificate of occupancy.

In the instant case, the Court of Appeal found, inter alia, that the appellant did not establish the validity of the certificate of occupancy since it was obtained by misrepresentation. The appellant failed to dislodge that finding.

The appellant needed to prove a valid and subsisting right of occupancy over the house in dispute before he could lawfully claim that he was a holder of a right of occupancy and that his interest in the land could not be legally revoked except and until section 28 of the Land Use Act was strictly complied with.

On meaning of holder of right of Occupancy-

By virtue of section 51(1) of the Land Use Act 1978, holder of a right of occupancy means a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned, or has validly passed on the death of a holder, but does not include any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgagee, sub-lessee or sub-underlessee.

In the instant case, the appellant did not have any vested interest in the property before it was irregularly sold to him in 2002. The house was only assigned to him pursuant to the sale of the house and thereafter a certificate of occupancy was issued to him.

Having shown that he obtained the house in dispute through misrepresentation, the result was that the deed of assignment was not validly executed in his favour and therefore he did not have any valid certificate of occupancy and would therefore not be regarded as a holder of a right of occupancy as contemplated by law.

On whether there can be two subsisting and conflicting rights of occupancy over same properly-

There cannot be two subsisting rights of occupancy over the same property.

In the instant case, whether what was granted to the 1st respondent was a right of occupancy or a deed of assignment, what was important was that the appellant’s certificate of occupancy was effectively revoked before the house was sold to the 1st respondent.

The appellant’s right of occupancy stood revoked and ceased to exist while the 1st respondent’s right took precedence.

On effect of misrepresentation on sale of land transaction –

The effect of misrepresentation on a sale of land transaction is to render it voidable at the election of the vendor or rightful owner of the land.

In the instant case, the transactions leading to the issuance of the certificate of occupancy were vitiated by misrepresentation on the deed of assignment executed over the land in dispute and the issuance of the certificate of occupancy to the appellant.

Thus, the 1st and 2nd respondents were entitled to rescind the sale agreement and terminate it forthwith.

On ingredients of misrepresentation and how proved –

Whether there is a misrepresentation is a question of fact and it can be proved in the following manner, viz: the representation must be a statement of existing fact; and
the representation must be material and unambiguous; and the person represented must have acted in reliance on the misrepresentation.

On meaning of misrepresentation-

Misrepresentation is the act of making a false or misleading assertion about something, usually with intent to deceive.

It denotes not just written or spoken words but also any other conduct that amounts to a false assertion; an assertion that does not accord with the facts which can be also termed as false or false representation.

In other words, a person is said to make a misrepresentation if he makes an assertion which is false or misleading about something.

In the instant case, there was a clear case of misrepresentation which induced the Governor of Borno State to grant the application in favour of the appellant and that was specified in exhibit ‘G’.

The Governor would not have granted the approval for the sale of the house in dispute to the appellant if he had known that the 1st respondent was in possession of the house and paying his rents as and when due and also had his application pending from 10th September, 2002 as the Court of Appeal found.

That fact informed the Borno State Government to issue exhibit F, the revocation notice, based on the recommendation of the transition committee on disposal of government quarters that government should with immediate effect revoke all houses sold to non-occupants under the owner occupier scheme.

About the Author
Moruff O. Balogun Esq.
Vice Chairman,NBA Ijebu Ode branch.
08052871414
09121207712 [WHATSAPP]

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