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Rockonoh Property Co. Ltd. v. Nigerian Telecommunications Plc & Anor. (2001) – SC

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➥ CASE SUMMARY OF:
Rockonoh Property Co. Ltd. v. Nigerian Telecommunications Plc & Anor. (2001) – SC

by “PipAr” Branham-Paul C. Chima.

➥ COURT:
Supreme Court – SC.71/1995

➥ JUDGEMENT DELIVERED ON:
Friday, the 13th day of July, 2001

➥ AREA(S) OF LAW
Minister’s consent;
Damages;
Valuation report.

➥ PRINCIPLES OF LAW
⦿ TRESPASS TO LAND REPRESENT PAYMENT FOR TORT OF TRESPASS, NOT VALUE OF LAND
When general damages are sought on the basis of trespass to land, they would represent payment for the tort of trespass, not the value of the land; and the land remains at least under the possessory ownership or right of the plaintiff claimant. — Uwaifo, JSC.

⦿ ISSUE NOT RAISED AT COURT OF APPEAL CANNOT BE RAISED AT SUPREME COURT WITHOUT LEAVE
When an issue not raised in the court below is sought to be raised as a fresh point in this court, leave to do so must be sought and obtained in this court. The present issue is therefore not competent: see Uor v. Loko (1988) 2 NWLR (Pt.77) 430; Popoola v.  Adeyemo (1992) 8 NWLR (Pt.257) 1; Honika Sawmill (Nig.) Ltd. v. Hoff (1994) 2 NWLR (Pt,326) 252. Accordingly, I strike it out together with the cross-appeal. — Uwaifo, JSC.

⦿ REGISTRATION OF INSTRUMENT DOES NOT CURE INVALIDITY DUE TO LACK OF CONSENT
It must be accepted that the absence of the necessary ministerial approval or consent is a serious defect which affects the title sought to be conferred by the relevant instrument. It seems to me that if there is no evidence or ground upon which a presumption can be raised that such approval or consent had been obtained, the party whose reliance on the validity of a relevant transaction depends on that approval or consent has the burden to prove that it was obtained. It is not helpful to rely on the fact that the instrument evidencing the transaction was registered because registration does not cure the defect arising from the absence of the ministerial approval or consent, or indeed any defect in any instrument. — Uwaifo, JSC.

⦿ FOR AN EVIDENCE TO BE RELIED UPON, IT MUST HAVE COGENCY OR PROBATIVE VALUE
The law does not permit evidence which is of no probative value to be relied upon by a party, nor to be acted upon by the court, to support a claim. It is an important aspect of civil procedure that for evidence to be considered useful and which a court can act upon, there are certain basic qualities it must possess. The first consideration is usually the double requirement of relevancy and admissibility. But in essence they can be separated. The evidence must be relevant to a fact in issue, or to any fact which, though not in issue, is so connected with the fact in issue, or relevant to a fact which is inconsistent to any fact in issue or to a fact which by itself or in connection with any other fact makes the existence or non-existence of any fact in issue probable or improbable. S.7 & 12 Evidence Act. It must be admissible having regard to the facts pleaded and if no law or rule precludes its admission: see Emegokwue v. Okadigbo(1973) 4 SC 113; Onobruchere v. Esegine (1986) 1 NWLR (PU9) 799. It must have credibility or cogency thereby enabling the Judge to ascribe some probative value to it having regard to its nature and what it is intended to establish: Misr (Nig.) Ltd. v.Ibrahim (1974) 5 SC 55 at 62; Aikhionbare v. Omoregie (1976) 12 SC 11 at 27. I have had to state the above because Exhibit V neither has cogency nor any probative value which can be ascribed to it.

⦿ SPECIAL DAMAGES VS GENERAL DAMAGES
It is no longer a matter for contention that the principle in regard to the assessment and award of special damages is different from that of general damages: see Ijebu-Ode Local Govemment v.Adedeji Balogun & Co (1991) 1NWLR(Pt.166) 136 at p. 158; Eseigbe v.Agholor (1993) 9 NWLR (Pt.316) 128 at p. 145. In the former, damages are specially pleaded, strictly proved and accordingly awarded; in the latter, they are averred, if necessary under specific heads of claim, presumed in law to be the direct and natural consequence of the act complained of and awarded at large as a jury question. — Uwaifo, JSC.

⦿ PARTIES CAN START NEGOTIATION BEFORE GOVERNOR/MINISTER’S CAN BE APPLIED FOR
However, this does not mean that parties cannot start negotiation and settlement of the terms on which the transaction is to be hinged before applying for the Minister’s approval e.g. preparing a deed of assignment. Parties would not be expected to apply for the Minister’s approval without settling and agreeing on the terms related to the transaction; likewise the Minister would not be expected to give approval to a transaction the terms of which are not known to him. See Dickson v. The Solicitor-General of Plateau State (1974) 5 SC 21 (1974) NSCC (Vo19) 268; Labaran Nakyauta v. Ibrahim Maikima (1977) 6 SC 51 and Savanah Bank Ltd. v.A.O. Ajilo (1989) All NLR 26 (1989) 1 NWLR. — Wali, JSC.

⦿ ONUS IS ON PARTY TO PROOF CONSENT OF GOVERNOR WAS SOUGHT
In my view the learned trial Judge was in grave error when he presumed the validity of Exhibit J without evidence of prior Ministerial approval to it which, for that reason is a nullity. The 1st respondent had no duty to prove that Exhibit J was irregular and void when the appellant did not prove its regularity and validity. — Wali, JSC.

Available:  Archibong Ekpanya v. Grace S. Akpan & Ors. (1988)

➥ LEAD JUDGEMENT DELIVERED BY:
Uwaifo, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT
N. Anyamene SAN.

⦿ FOR THE RESPONDENT
Chief A.O. Mogboh, SAN.

➥ CASE FACT/HISTORY
A deed of assignment dated 19 December, 1983 between the 2nd respondent and the appellant in respect of No.13 Colliery Avenue/The deed was registered nine years later in 1992 as No.94 at page 94 in volume 1376 of the lands registry in the office at Enugu (exhibit J). The 1st respondent maintains that it paid the money asked for by the 2nd respondent for the property in question sometime in April, 1983, demanded for vacant possession in May, 1983 and having been so given, carried out the demolition of the existing buildings on the land in preparation for laying the foundation of the satellite station by President Shagari. The foundation could not be laid as planned owing to military intervention in Government at the close of 1983. It says it continued ever since to remain in possession of the land.

There is no dispute that it was at the instance of the 1st respondent with the concurrence of the 2nd respondent that the demolition in question was carried out between July and August, 1983. But the appellant claiming to have been given an assignment of the land by the 2nd respondent and also that it has been in lawful possession at all material times, brought this action in April, 1992 against the 1st respondent and claimed originally in the writ for N5,000,000.00 damages for the trespass and an injunction. The 2nd respondent was later joined as a co-defendant on the application of the 1st respondent. In spite of that joinder, the appellant in its amended statement of claim made it clear that the reliefs it sought were against the 1st respondent only. The reliefs finally claimed were for: “(a) N32,752,506 general damages for trespass to 13, Colliery Avenue; or in the alternative, (b) An injunction restraining the 1st defendant, its agents, servants and privies from remaining on and/or using the land except with the consent of the plaintiff on terms of tenancy acceptable to the plaintiff.”

The trial court held, “In view of the various positions I have taken in the course of this judgment, I have come to the conclusion that the plaintiffs have proved their case and are entitled to the amount of N32,752,506.00 against the 1st defendants as general damages for trespass on their property, 13 Colliery Avenue, G.R.A. Enugu.”

The 1st respondent appealed to the Court of Appeal. In the judgment given on 8 December, 1994, Tobi J.C.A. who read the leading judgment reached two vital conclusions, namely, (1) that the assignment which the appellant claimed to have acquired in respect of the land in question as evidenced by exhibit J requires the prior approval of the Minister and as this was not obtained, the assignment was null and void; (2) that there being no evidence that the appellant was ever in possession of the land, it cannot claim for damages for trespass against the 1st respondent.

The Plaintiff/Appellant has now appealed.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]

I. Whether failure to obtain prior ministerial approval as required by section 12(4) of the Nigerian Coal Corporation Act did not render exhibit J invalid, null and void?

RULING: IN RESPONDENT’S FAVOUR.
A. THAT THERE NEED TO BE ENDORSEMENT SHOWING CONSENT ON THE INSTRUMENT
“In the present case no prior or any approval of the Minister was obtained in compliance with s.12(4) of the Nigerian Coal Corporation Act. The said deed of assignment was registered nevertheless. Section 10 of the Land Instruments Registration Law, Cap. 72, Laws of Eastern Nigeria provides: “No instrument requiring the consent of the Governor or any public officer to the validity thereof shall be registered unless such consent be endorsed thereon or the Registrar is otherwise satisfied that such consent has been given.” In my view, it is expected that the need for the Registrar to be satisfied that the Governor’s consent had been obtained can only arise if there is no relevant endorsement suggestive of this on the instrument sought to be registered. It is that absence of such endorsement that will put him on inquiry. It follows that the issue that he was satisfied must be a matter of evidence which must be laid before the court. When consent or approval is endorsed on the instrument, it will raise the obvious presumption of the validity of the transaction or at any rate that that was what satisfied the Registrar that the necessary prior ministerial consent was given before he registered the instrument. The mere fact that an instrument which does not have the necessary consent endorsed on it was registered will not ipso facto, in my respectful opinion, raise the presumption that the registrar was satisfied that such consent had been given which led him to register the instrument. Nor is it right to accept that the mere registration of such instrument raises the presumption of regularity to the effect that the consent was given. There must be some evidence in support of any of such presumptions.”

B. THAT APPELLANT HAS NOT PROVED THAT MINISTER’S CONSENT WAS SOUGHT
“This court in Akpene v. Barclays Bank of Nigerian (1977) NSCC (Vol.11) 29 at 36, considered the said section 11 and referred to s.26 of that same law which provides that “Registration shall not cure any defect in any instrument or, subject to the provisions of this law confer upon it any effect or validity which it would not otherwise have had.” [Section 23 of the relevant Eastern Nigeria Laws, 1963, Cap. 72, contains a similar provision.] This court came to the conclusion that although the instrument in that case was registered, yet because the necessary ministerial consent was neither endorsed on it nor shown to have been obtained, the transaction of sale founded on it could not stand and that the instrument was null and void. See also Chidiak v. Coker (1954) 14 WACA 506 at 508 where the court expressed the view that it could not be presumed on the facts of that case that the Governor gave the necessary consent to a lease transaction, and that the onus was on the plaintiff relying on the instrument to prove the consent. The authorities discussed above represent, in my respectful view, the correct principles of law and I have no hesitation in reaching the conclusion that those principles apply to the present case. I hold that the lower court was right to declare exhibit J null and void. Consequently it conferred no title whatsoever to the land in question on the appellant.”
.
.
II. Whether the appellant proved its case and was entitled to judgment?

Available:  Bamaiyi V. The State (SC 292/2000, Supreme Court, 6th April 2001)

RULING: IN RESPONDENT’S FAVOUR.
A. THAT THERE IS NO EVIDENCE HOW THE VALUATION WAS DONE
“The lower court also found, quite rightly in my view, that there is no evidence at all that the appellant was ever in possession of the land. I need not go into that beyond what has been said. But I must come back to exhibit V, the so-called valuation report. I have shown that it was no valuation of an estate by an estate surveyor and valuer in any manner and by any stretch of the imagination. It was no more than a most ambitious attempt by an estate valuer to perform as a pseudo-actuary and investor to make a calculation of an investment of a given sum of money to arrive at what it would yield and cumulatively amount to over a number of years. It is also quite amateurish and incredible to testify that an interest of 27% per annum was used to calculate the investment of a sum of money in a commercial bank consistently over a period of some eleven years without as much as produce evidence that such regime of interest was ever recorded, and if so by which commercial bank, as none was mentioned, and for that length of time. Again, neither in the valuation report nor in evidence was it demonstrated how the initial amount of N2,370,000.00 worked out to be N32,854,125.00 from the alleged multiplier of 13.8625 and the interest rate of 27% for that number of years. It was nothing other than sheer mystery presented to the court as evidence. Surprisingly, the trial court accepted such evidence.”

B. THAT THE VALUATION REPORT IS FAULTY
“Even so, it is still important to say further that the premise upon which P.W4 made the calculation was intrinsically faulty. The amount of N2,370,000.00 upon which he based his calculation represents what was said to be the value of the structure on the land as at 1982 (i.e. N2.150m for the structure and N220,000.00 for disturbance). The deed of lease (exhibit J) which the appellant relied on was dated 19 December, 1983. There is clear evidence that between July and August, 1983 the building on the land had been demolished by the 1st respondent. Assuming therefore that the appellant acquired the land by virtue of exhibit J in December, 1983, the buildings already demolished could not form part of the land nor be regarded as appellant’s assets because they did not then exist. So all that amount arrived at in exhibit V upon a calculation based on the value of those buildings and the damages for alleged disturbance was a huge exercise in futility. All the foregoing I have touched upon in regard to the evidence on damages is not a criticism of the quantum of damages awarded in principle as to whether it is excessive. That is not in issue here in this appeal. What is in issue is whether the appellant proved its case by credible evidence and was entitled to judgment.”
.
.
.
✓ DECISION:
“I have come to the conclusion that in all the circumstances of this case, there is no merit in this appeal and I accordingly dismiss it. In consequence, I also dismiss the claim. I have already disposed of the cross-appeal by striking it out. I award costs of N10,000.00 to the 1st respondent against the appellant.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
✓ section 12(4) of the Nigerian Coal Corporation Act, 1950 (Cap. 299) Vol. 18 Laws of the Federation of Nigeria, 1990 which provides that: “The corporation shall not alienate, demise, mortgage or charge any land vested in the corporation under the provisions of this section without the prior approval of the minister.”

✓ sections 22 & 26 Land Use Act.

✓ section 10 of the Land Instruments Registration Law Cap. 72, Laws of Eastern Nigeria, 1963, applicable in Anambra State provides as follows:- “10.    No instrument requiring the consent of the Governor or any public officer to the validity thereof shall be registered unless such consent be endorsed thereon or the Registrar is satisfied that such consent has been given.”

Available:  Elesie Agbai and 5 others v. Samuel I. Okogbue (1991) - SC

➥ REFERENCED (CASE)
⦿ TWO CASES WHERE CONSENT BEFORE ALIENATION WAS NOT SOUGHT, AND TRANSACTION WAS DECLARED VOID
✓ In Dickson v. Solicitor-General, Plateau State (1974) 5 SC 21 (1974) NSCC (vol.9) 268, the respondent as plaintiff who was the Solicitor-General, brought an action against the appellants as defendants seeking the eviction of the appellants from some premises. The appellants were in those premises by virtue of a certificate of occupancy granted to a company whose statutory right of occupancy had been determined by the sale of the premises by the said company to the 2nd appellant. The trial Judge held that the sale or purported sale of the property and the power of attorney in respect thereof to the 2nd appellant through whom the 1st appellant occupied the property was illegal and ineffective not having been done with the prior ministerial consent, and gave judgment for the respondent. On appeal to this court, S.28(1) of the Land Tenure Law came up for consideration and Coker J.S.C. observed at pages 269-270 as follows: “The plaintiff’s case is that the consent of the Commissioner of Lands was not obtained as it should have been obtained to either of these transactions [i.e. the sale of the property and the power of attorney]. It is not disputed that the consent of the Commissioner of Lands was not obtained to these transactions and indeed the 1st defendant in the course of his evidence at the trial stated that to the best of his knowledge no consent of the commissioner of Lands was obtained to the purported agreement of sale. The section prescribes as a prerequisite to the legality of any of the transactions contemplated by it that the consent of the Commissioner of Lands should ‘first be had and obtained’. This means what the section says and unless such consent was first had and obtained before the occurrence of the relevant transactions, the consequence envisaged by the action must follow. We have come to the conclusion clearly in our minds that both transactions offend against the clear provisions of section 28(1) of the Land Tenure Law, Cap.59. Section 28(1) provides, inter alia, as follows: ’28(1)  It shall not be lawful for the holder of a statutory right of occupancy granted by the Military Governor or the Commissioner to alienate his right of occupancy or any part thereof by sale, assignment, mortgage, transfer of possession, sublease, bequest or otherwise howsoever without the consent of the Commissioner first had and obtained.’ The first clause in the power of attorney, … transfers to the donee of the power of attorney the right to the possession of the premises in question. As this is one of the matters contemplated by section 28(1), it is manifest that the power of attorney itself offends against that section. It is easy to see that the defendants had made out no case at all to entitle them to be in lawful possession or occupation of the property in question and that the learned trial Judge was right to conclude that they should be evicted. [parenthesis in square brackets supplied].”

✓ The case of Nakyauta v. Maikima (1977) 6 SC 1at 76 (1977) NSCC (vol. 11) 355 enunciates a similar principle. It is enough, without stating the facts of that case, to quote the observation of Udoma J.S.C. at pages 363-364, inter alia, as follows: ” …. It occurs to us that learned counsel for the second defendant would appear to have overlooked the covenant contained in the certificate of occupancy granted to the plaintiff by the Minister in 1961, and the provisions of section 42 of the Land Tenure Laws, Cap.59 both of which must be read together. In section 42 of the Land Tenure Law, it is provided as follows: ‘No right of occupancy granted under the provisions of this law or under the provisions of any written law replaced by this law which is subject to a covenant, whether expressed or implied, by the holder not to assign, or which under any law may not be alienated, without the consent or approval of the Military Governor or the Commissioner or a Native Authority or Local Authority shall be sold by or under the order of a court save to a purchaser approved in writing by the Commissioner and upon terms also so approved.’ Then covenant 13 of the Certificate of Occupancy, No.10466, granted to the plaintiff provides: ’13.Not to alienate the right of occupancy hereby or any part thereof by sale, mortgage, transfer of possession, sublease or bequest or otherwise however without the consent of the commissioner first hand and obtained’ We are, therefore, of the opinion and hold and declare that the purported sale of the said property on or about 4th October, 1969 by the first defendant, pursuant to a writ of attachment in satisfaction of the judgment/debt in Suit No.K/ 66/64 – Martin Gutman v. Northern Buying and Shipping Association Limited – was null and void ab inito. It was irregular, improper and invalid and of no legal effect whatsoever.”

➥ REFERENCED (OTHERS)

End

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