Should Title To Land Be Proven By An Occupant Before An Action For Fundamental Rights Enforcement?

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CASE TITLE:  GOVERNMENT OF ENUGU STATE OF
NIGERIA & ORS v. SUNDAY ONYA & ORS (2021) LPELR -52688(CA)

JUDGMENT DATE:     28th
JANUARY, 2021

JUSTICES:                      
        AHMAD OLAREWAJU BELGORE
JCA

ITA GEORGE MBABA JCA

JOSEPH OLUBUNMI KAYODE OYEWOLE JCA

COURT
DIVISION:       
         ENUGU

PRACTICE
AREA:         
         Constitutional Law
– Enforcement of Fundamental Human Rights.

FACTS:

​The Respondents, were allocated spaces to build stalls at what
later became ENSEPA Mini Shops by the Enugu State Environmental
Protection Agency (ENSEPA), an Agency of the Government of Enugu
State. The Respondents paid the necessary approved fees, as
demanded by the Appellants for the stalls/shop and were put in
possession of their respective allocated spaces, following which
they developed the stalls according to the prototype and
specifications from ENSEPA.

The Appellants later issued notices to the Respondents to vacate
their stalls in the park claiming compulsory acquisition of the
stalls by the government. Subsequently, they demolished the stalls
built by Respondents and which the Respondents occupied. The
Respondents sought the services of Estate Surveyors and Valuers to
value their demolished property and the firm valued the property at
N850,000.00 each and issued certificates to each of the
Respondents.

The Respondents as Applicants then filed a representative action
at Enugu State High Court seeking to enforce their fundamental
human rights and for compensation from the Appellants for the
compulsory acquisition and demolition of their stalls. The High
Court found the Appellants liable for breach of the Respondents
Fundamental Rights and granted their reliefs, including the award
of N850,000.00 to each of them and also exemplary damages and cost
against the Appellants.

Dissatisfied, with the decision of the trial High Court, the
Appellants appealed.

ISSUES:

The appeal was determined upon consideration of the following
issues:

(1) Whether the suit was properly instituted by the Applicants
(Respondents), jointly.

(2) Whether the trial Court was right to hold the Appellants
liable for breach of fundamental rights of Respondents, in the
circumstances of the case.

DECISION/HELD:

On the whole, the Court found no merit in the appeal and
accordingly dismissed same.

RATIOS: CONSTITUTIONAL LAW- ENFORCEMENT OF FUNDAMENTAL
HUMAN RIGHTS: Whether an applicant needs to establish
the title of the land he occupies before he can take out a case to
enforce his fundamental rights against whoever violates his right
of occupation of the land/property

“…I start by observing that the Appellants in this Appeal appear
to have completely misconceived, and changed the tenor of the suit
at the Lower Court, when they belaboured over the issue of
establishment of title to the land, as a condition for entitling
the Respondents to assert right over the property, they were
claiming the right to seek redress (compensation) for violation of
their fundamental rights, under the Sections 43 and 44 of the 1999
Constitution of the Federal Republic of Nigeria… As earlier
observed in this judgment, I think all the arguments of Appellants
and cases cited about the need to establish title to the land on
which Respondents claim breach of fundamental rights, were,
completely, misconceived and misplaced, as an applicant does not
need to establish title of the land he occupies, before he can take
out a case to enforce his fundamental rights against whoever
violates his right of occupation of the land/property, pursuant to
Sections 43 and 44 of the Constitution; as an occupier or one in
possession he can apply for enforcement of his fundamental rights
under the Fundamental Rights (Enforcement Procedure) Rules, 2009.
This is because, one who is in rightful occupation or possession of
property, being an allottee of the property, and who built the
store/stall demolished by the assailant; or one who is a tenant,
chased out, unlawfully, in a manner that deprives him of his right
of peaceable enjoyment of the use of the property he is entitled
to, can bring an action to enforce his fundamental right, thereto,
where his fundamental rights are violated, in my opinion, as long
as his unexhausted rights in the property, lasts… In the case of
Master Vs Mansur & Ors (2014) LPELR – 23440 CA, it was held that:
“… compulsorily taking possession of is not limited to cases of
compulsory acquisition under the Public Lands Acquisition Decree.
The word “compulsory” simply means, “having the force of
compulsion” or “to compel”. The word “compulsory” in the first part
of Section 40(1) of the 1979 Constitution, aforesaid, simply refers
to situations where a citizens’ land is forcefully taken possession
of…” (Section 40(1) of the 1979 Constitution is equivalent of
Section 44(1) of the 1999 Constitution). See also Adeyemi -Bero Vs
Lagos State Development Property Corporation & Anor (2012) LPELR –
20615 SC. Appellants did not deny the compulsory acquisition and
demolition of the Respondents stores/stalls, but claimed that their
(Appellants) Agent, ENSEPA, which allocated the spaces to build
stalls to the Respondents, acted ultra vires, when it allocated the
property spaces to the Respondents to build the stalls/stores. They
also argued that the Respondents lacked statutory right to the
property; that the Respondents were illegal occupiers of property
at Murtala Mohammed Park, Works Road, Enugu; that the Government of
Enugu State needed to restore the Park(s). . . I think the argument
that the Agency of Appellants (ENSEPA) acted ultra vires their
powers, when it allocated the property to Respondents to build
stalls/stores, rather sounds self-defeating, strange and unhelpful
to Appellants, in my view, especially as Appellants tried to disown
responsibility for the said acts of their Agent, which they
(Appellants) unleashed on the public, including Respondents, to
relate with, in contractual relationships in the name of the
Government, and they collected monies from Respondents and located
them on the land, caused them to develop same (building the
stalls/stores), only for Appellants to demolish, with impunity, and
try to deny the obvious relationship! That was sad denial of
responsibility and very wrong. The said use of force against the
Respondents was a clear violation and breach of Respondents’
fundamental rights, in my opinion, just as the trial court held.
There is no doubt that, under the Land Use Act, 1978, the Governor
of Enugu State has the right of control and Custody of the entire
lands in the State in trust for the people. The Governor can grant
or revoke the right of occupancy on any portion, but the law also
spells out how that can be done, lawfully. And where it has to do
with revocation of the right of occupancy (which must be for
overriding public interest), the law stipulates the need for
notification of the landholder and for compensation. See Section
44(1) of the 1999 Constitution; Nkwocha VS Gov. of Anambra State &
Ors (1984) LPELR – 2052 (SC). In the case of Adegunle VS The
Governor of Lagos State & Ors (2019) LPELR – 48013 CA, my Lord,
Garba J.C.A. (as he then was – now J.S.C.) said: “… Section 28 of
the Land Use Act, empowers the Governor of a State to revoke rights
of occupancy over land situate in a State for overriding public
interest. It is expedient to call in the provisions of the Section
for full appreciation of the powers provided therein… The exercise
of the powers by the Governor to revoke a right of occupancy over a
piece or parcel of land, personal or communal, is what has become
known as the compulsory acquisition of land by the Government.
Because the exercise of the power and authority to compulsorily
acquire land by way of revocation involves, affects and expropriate
personal or communal rights of person(s) or communities in
question, guaranteed by the provisions of Section 44(1) of the
Constitution, the attitude of the Courts over the years, has been
to interpret the relevant statutory provisions under which the
powers are exercised in order to ensure that the procedure
stipulated therein are strictly complied with in the acquisition…
Tobi J.S.C., in C.S.S. Bookshop Ltd Vs Reg. Trustees of Muslim
Comm. In Rivers State (2006) 11 NWLR (Pt.992) 530, stated the
position, thus: “The case law is in great proliferation. Any
provision of the law which gives or governs the compulsory
acquisition of a person’s property must be construed by the Court
“fortissimo contra preferentes”. Such a statute should be construed
by the Court, strictly, against the acquiring authority and
sympathetically in favour of the complainant or the owner of the
property against any irregularity in the procedure for acquisition
as laid down by the enabling statute… These judicial authorities
are unanimous that for compulsory acquisition of land by the
Governor /Government to be valid and legally effective to
extinguish the existing right over a piece or parcel of land, the
provisions of the Land Use Act and as the case may be, other
enabling statutes on the procedure provided for the acquisition,
must be strictly followed and observed in the process of
acquisition…” I, therefore, agree completely with the learned trial
Judge when he held: “The finding of this Court, therefore, is that
no matter the limited nature of the applicants’ interests of the
various stalls, in this case, they had an interest or right in the
stalls by virtue of the allocations given them and which is
protected in a Court of law. The right in the applicant is “an
interest” in immovable property, which by Section 44 of the
Constitution, is to be compensated upon a compulsory acquisition
for unexhausted improvements, in line with the Land Use Act 1978…”
Per MBABA, J.C.A.

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FIRST TO KNOW here.^[1]

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CASE TITLE:  GOVERNMENT OF ENUGU STATE OF
NIGERIA & ORS v. SUNDAY ONYA & ORS (2021) LPELR -52688(CA)

JUDGMENT DATE:     28th
JANUARY, 2021

JUSTICES:                      
        AHMAD OLAREWAJU BELGORE
JCA

ITA GEORGE MBABA JCA

JOSEPH OLUBUNMI KAYODE OYEWOLE JCA

COURT
DIVISION:       
         ENUGU

PRACTICE
AREA:         
         Constitutional Law
– Enforcement of Fundamental Human Rights.

FACTS:

​The Respondents, were allocated spaces to build stalls at what
later became ENSEPA Mini Shops by the Enugu State Environmental
Protection Agency (ENSEPA), an Agency of the Government of Enugu
State. The Respondents paid the necessary approved fees, as
demanded by the Appellants for the stalls/shop and were put in
possession of their respective allocated spaces, following which
they developed the stalls according to the prototype and
specifications from ENSEPA.

The Appellants later issued notices to the Respondents to vacate
their stalls in the park claiming compulsory acquisition of the
stalls by the government. Subsequently, they demolished the stalls
built by Respondents and which the Respondents occupied. The
Respondents sought the services of Estate Surveyors and Valuers to
value their demolished property and the firm valued the property at
N850,000.00 each and issued certificates to each of the
Respondents.

The Respondents as Applicants then filed a representative action
at Enugu State High Court seeking to enforce their fundamental
human rights and for compensation from the Appellants for the
compulsory acquisition and demolition of their stalls. The High
Court found the Appellants liable for breach of the Respondents
Fundamental Rights and granted their reliefs, including the award
of N850,000.00 to each of them and also exemplary damages and cost
against the Appellants.

Dissatisfied, with the decision of the trial High Court, the
Appellants appealed.

ISSUES:

The appeal was determined upon consideration of the following
issues:

(1) Whether the suit was properly instituted by the Applicants
(Respondents), jointly.

(2) Whether the trial Court was right to hold the Appellants
liable for breach of fundamental rights of Respondents, in the
circumstances of the case.

DECISION/HELD:

On the whole, the Court found no merit in the appeal and
accordingly dismissed same.

RATIOS: CONSTITUTIONAL LAW- ENFORCEMENT OF FUNDAMENTAL
HUMAN RIGHTS: Whether an applicant needs to establish
the title of the land he occupies before he can take out a case to
enforce his fundamental rights against whoever violates his right
of occupation of the land/property

“…I start by observing that the Appellants in this Appeal appear
to have completely misconceived, and changed the tenor of the suit
at the Lower Court, when they belaboured over the issue of
establishment of title to the land, as a condition for entitling
the Respondents to assert right over the property, they were
claiming the right to seek redress (compensation) for violation of
their fundamental rights, under the Sections 43 and 44 of the 1999
Constitution of the Federal Republic of Nigeria… As earlier
observed in this judgment, I think all the arguments of Appellants
and cases cited about the need to establish title to the land on
which Respondents claim breach of fundamental rights, were,
completely, misconceived and misplaced, as an applicant does not
need to establish title of the land he occupies, before he can take
out a case to enforce his fundamental rights against whoever
violates his right of occupation of the land/property, pursuant to
Sections 43 and 44 of the Constitution; as an occupier or one in
possession he can apply for enforcement of his fundamental rights
under the Fundamental Rights (Enforcement Procedure) Rules, 2009.
This is because, one who is in rightful occupation or possession of
property, being an allottee of the property, and who built the
store/stall demolished by the assailant; or one who is a tenant,
chased out, unlawfully, in a manner that deprives him of his right
of peaceable enjoyment of the use of the property he is entitled
to, can bring an action to enforce his fundamental right, thereto,
where his fundamental rights are violated, in my opinion, as long
as his unexhausted rights in the property, lasts… In the case of
Master Vs Mansur & Ors (2014) LPELR – 23440 CA, it was held that:
“… compulsorily taking possession of is not limited to cases of
compulsory acquisition under the Public Lands Acquisition Decree.
The word “compulsory” simply means, “having the force of
compulsion” or “to compel”. The word “compulsory” in the first part
of Section 40(1) of the 1979 Constitution, aforesaid, simply refers
to situations where a citizens’ land is forcefully taken possession
of…” (Section 40(1) of the 1979 Constitution is equivalent of
Section 44(1) of the 1999 Constitution). See also Adeyemi -Bero Vs
Lagos State Development Property Corporation & Anor (2012) LPELR –
20615 SC. Appellants did not deny the compulsory acquisition and
demolition of the Respondents stores/stalls, but claimed that their
(Appellants) Agent, ENSEPA, which allocated the spaces to build
stalls to the Respondents, acted ultra vires, when it allocated the
property spaces to the Respondents to build the stalls/stores. They
also argued that the Respondents lacked statutory right to the
property; that the Respondents were illegal occupiers of property
at Murtala Mohammed Park, Works Road, Enugu; that the Government of
Enugu State needed to restore the Park(s). . . I think the argument
that the Agency of Appellants (ENSEPA) acted ultra vires their
powers, when it allocated the property to Respondents to build
stalls/stores, rather sounds self-defeating, strange and unhelpful
to Appellants, in my view, especially as Appellants tried to disown
responsibility for the said acts of their Agent, which they
(Appellants) unleashed on the public, including Respondents, to
relate with, in contractual relationships in the name of the
Government, and they collected monies from Respondents and located
them on the land, caused them to develop same (building the
stalls/stores), only for Appellants to demolish, with impunity, and
try to deny the obvious relationship! That was sad denial of
responsibility and very wrong. The said use of force against the
Respondents was a clear violation and breach of Respondents’
fundamental rights, in my opinion, just as the trial court held.
There is no doubt that, under the Land Use Act, 1978, the Governor
of Enugu State has the right of control and Custody of the entire
lands in the State in trust for the people. The Governor can grant
or revoke the right of occupancy on any portion, but the law also
spells out how that can be done, lawfully. And where it has to do
with revocation of the right of occupancy (which must be for
overriding public interest), the law stipulates the need for
notification of the landholder and for compensation. See Section
44(1) of the 1999 Constitution; Nkwocha VS Gov. of Anambra State &
Ors (1984) LPELR – 2052 (SC). In the case of Adegunle VS The
Governor of Lagos State & Ors (2019) LPELR – 48013 CA, my Lord,
Garba J.C.A. (as he then was – now J.S.C.) said: “… Section 28 of
the Land Use Act, empowers the Governor of a State to revoke rights
of occupancy over land situate in a State for overriding public
interest. It is expedient to call in the provisions of the Section
for full appreciation of the powers provided therein… The exercise
of the powers by the Governor to revoke a right of occupancy over a
piece or parcel of land, personal or communal, is what has become
known as the compulsory acquisition of land by the Government.
Because the exercise of the power and authority to compulsorily
acquire land by way of revocation involves, affects and expropriate
personal or communal rights of person(s) or communities in
question, guaranteed by the provisions of Section 44(1) of the
Constitution, the attitude of the Courts over the years, has been
to interpret the relevant statutory provisions under which the
powers are exercised in order to ensure that the procedure
stipulated therein are strictly complied with in the acquisition…
Tobi J.S.C., in C.S.S. Bookshop Ltd Vs Reg. Trustees of Muslim
Comm. In Rivers State (2006) 11 NWLR (Pt.992) 530, stated the
position, thus: “The case law is in great proliferation. Any
provision of the law which gives or governs the compulsory
acquisition of a person’s property must be construed by the Court
“fortissimo contra preferentes”. Such a statute should be construed
by the Court, strictly, against the acquiring authority and
sympathetically in favour of the complainant or the owner of the
property against any irregularity in the procedure for acquisition
as laid down by the enabling statute… These judicial authorities
are unanimous that for compulsory acquisition of land by the
Governor /Government to be valid and legally effective to
extinguish the existing right over a piece or parcel of land, the
provisions of the Land Use Act and as the case may be, other
enabling statutes on the procedure provided for the acquisition,
must be strictly followed and observed in the process of
acquisition…” I, therefore, agree completely with the learned trial
Judge when he held: “The finding of this Court, therefore, is that
no matter the limited nature of the applicants’ interests of the
various stalls, in this case, they had an interest or right in the
stalls by virtue of the allocations given them and which is
protected in a Court of law. The right in the applicant is “an
interest” in immovable property, which by Section 44 of the
Constitution, is to be compensated upon a compulsory acquisition
for unexhausted improvements, in line with the Land Use Act 1978…”
Per MBABA, J.C.A.

Read more Latest Judgments on BE THE FIRST TO KNOW
here.^[1]