MICHAEL V ODU’A INVESTMENT COMPANY LIMITED

MICHAEL V ODU’A INVESTMENT COMPANY LIMITED


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON MONDAY, 15TH MAY, 2017


APPEAL NO: CA/IB/523/ 014

CITATION:

Before Their Lordships:

Modupe Fasanmi, JCA.

Haruna Simon Tsammani, JCA.

Nonyerem Okoronkwo, JCA.


BETWEEN

OLANIPEKUN OLAYINKA MICHAEL
(APPELLANT)
AND
ODU’A INVESTMENT COMPANY LIMITED
(RESPONDENT)


PRONOUNCEMENT


A. LAND LAW
1. Possession of Land – The provision of the law on how mere possession cannot avail a party where the basis of title sought is the grant by a legal instrument
Whether Possession Alone Can Avail A Party Where The Basis Of Title Sought Is Grant By A Legal Instrument

Given the failure of the main issue, Issue No.2 resting on mere possession by the Respondent cannot avail as possession alone will not avail where the basis of title sought is the grant by a legal instrument. Per OKORONKWO, JCA. read in context

B. LATIN MAXIMS
2. “Expressum Facit Cessare Tacitum” – Meaning Of “Expressum Facit Cessare Tacitum”

… “Expressio unius personae rel rei est exclusio alterius” the express mention of one thing or person is the exclusion of another or put differently “expressium facit cessare tacitum” i.e that which is expressed makes that which is excluded. See further exposition of terms by Akintan JSC in Agbareh vs. Mimra (2008) 2 NWLR (pt. 7071) 378 at 437. See also Ogbunyinya vs. Oludo (1979) 6 – 9 or (1979) ALL NLR 105 at 118 Military Administrator Of Ondo State vs. Adewunmi (1988) 3 Nwlr (Pt. 82) 280 Attorney General Of Bendel State vs. Aideyan (1989) 9 SC 127; (1989) 4 NWLR (Pt. 118) 646 (1989) 9 SCNJ 80. Per OKORONKWO, JCA. read in context

C. WORDS AND PHRASES
3. “Occupy” “Occupier” “Premises” – Meaning Of “Occupy” “Occupier” And “Premises”

I think the key word there is the word “occupy”. In ordinary parlance, the word is used to mean inter alia, “to fill or use a space area or an amount of time .. ” See Oxford Advance Learner’s Dictionary (International Student’s Edition) At page 1008. The Black’s Law Dictionary (9th Edition) By Bryan A. Garner does not define the word occupy but defines “occupant” to mean:

“(i) One who has possessory rights in, or control over, certain property or premises. 2) one who acquires title by occupancy”

In the case of Odua V. Federal Republic Of Nigeria (2002) 5 NWLR (Pt. 761) P.615, Chukwuma – Eneh, JCA (as he then was) said:

“The decree has thereby, laid some emphasis on the words “occupier” and premises”. And it seems to me that these words have to be further examined in context of the said provision and the act itself for their proper application in this matter. “Occupier” has its ordinary dictionary meaning, as a person living in a (building, whereas, “premises” means land and building owned by someone.”

In my view, “occupation” or “to occupy” is not synonymous with “ownership” of the same land. See Raphael Udeze & Ors V. Paul Chidebe & Ors (1990) 1 NWLR (Pt.125) P. 141 And Nandom Miri Dashe & Ors V. Nanyak Sallah Jatan & Ors (2016) LPELR – 40180(CA). Per TSAMMANI, JCA. read in context


LEAD JUDGEMENT DELIVERED BY OKORONKWO, JCA.


This Appeal arose from the judgment of The Oyo State High Court as given by Hon. Justice M.O. Ishola on 26th September, 2014 in Suit No. 1/1238/2014 in which the Trial Court granted the Reliefs of (1) Declaration to Ownership of Quarters 785 Jericho Ibadan, (2) N20,000.00 nominal damages and (3) perpetual injunction against the Defendant in favour of the claimant therein.

The Defendant, being dissatisfied, as Appellant lodged this Appeal through the Notice of Appeal filed 29th September, 2014 At Pages 206 – 207 of the Record wherein the sole Ground Of Appeal (before an amendment) was thus:

Ground 1:

The learned Trial Judge erred in Law when he declared the Respondent as the lawful owner of the property known as Quarter 785, Jericho Gra, Ibadan Via Oyo State Gazette Number 9, Volume 15 Of 22nd February, 1990 – Part II Under The States (Creation And Transitional Provisions) Decree 1997 No. 17 and Commodities Board Decree No. 29 as Instrument No. 4 and in Particular Item Number 32 At Page B20.

Particulars:

I. The State of the pleadings and evidence of the Claimant’s/Respondent’s witnesses at the Trial Court do not support the assertion of the Claimant that Quarter 785, Jericho Gra, Ibadan belong to it by virtue of item No. 32 Of Part II of the Schedule Decree No. 17 Of 1977;

II. Item No. 32 Of Part II Of The Schedule To Decree No. 17 Of 1977 Published In Oyo State Gazette No. 9 Volume 15 Of 22nd February, 1990 Is Vague, Imprecise And Fails To Identify Quarter 785, Jericho Gra, Ibadan As The Property Vested In The Claimant/Respondent.

The background of the case can be rendered summarily as follows:

Before the creation of the states Of Ogun, Oyo, Osun, Ondo And Ekiti, these states were comprised in the Former Western State, Nigeria which succeeded the Former Western Region of Nigeria.

The defunct Western State owned several property across the entire region and indulged in various enterprises and ventures.

Before the creation of those component states alluded to, and apparently in order to avoid some of the problems of succession inherent in split of an entity and to ensure that their common heritage is preserved for the good of their people, the company Odu’a Investment Company Limited was incorporated in 1976. This company is the Respondent in this Appeal.

The Respondent Company claimed that the property in dispute Plot 785 Jericho Ibadan was allocated in 1964 to Western Hotels Limited even before the incorporation of the Respondent and that the Western Hotels Limited assigned the said property to Premier Hotel. Subsequently, several property of the Defunct Western State Industrial Investment and Credit Corporation, Former Western Nigeria Housing Corporation And Western Nigeria Marketing Board and certain properties belonging to the Former Western State Of Nigeria including the property in dispute as the Respondent pleaded, were transferred to the Respondent.

The instrument of transfer is as gazetted and published as Oyo State Gazette No.9 Volume 15 of 22nd February, 1990 Part II under the States Creation and Transitional Provisions Decree 1977 No.17 and the Commodities Board Decree No. 29, Instrument No. 32 At Page B.20. In particular, Item No. 32 at Page B.20 of the instrument tendered in the trial as Exhibit 1 is directly in point.

The Oyo State Government purporting to be owner of the property in issue, i.e, plot 785 Jericho ejected the occupants of the premises and subsequently sold the property to the Appellant after an auction in which the Appellant was the highest bidder and had performed the conditions of sale. The Appellant’s Contention was that plot 785 Jericho Ibadan was not one of the properties ceded to the Respondent company Odu’a Investment Company Limited and that the property remained the property of Oyo State Government which for valuable consideration was transferred to him (Appellant).

At The Trial, the main issue resolved on the interpretation of instrument No.4 and in particular Item No.32at B.20 of Exhibit 1. The Schedule to The Oyo State Legal Notice No.5 Of 1990 at page B.19 and 20 is herewith reproduced:

Schedule

Part I

(A) All the immovable properties situated in Oyo, Ondo And Ogun States which before the commencement of the States Creation Decrees vested in the Former Western State Industrial Investment and Credit Corporation which shall, without prejudice to the generality of the foregoing, include these specifically mentioned in Part II of this Schedule.

(B) All the immovable properties which before the commencement of the States Creation Decrees vested in the former government and are specifically mentioned in Part II of this Schedule.

Part II

Item description and location of properties particulars

No.1. Jr. 1, Akinola Maja Avenue, Jericho, Ibadan

2. Jr. 2, Akinola Maja Avenue, Jericho, Ibadan

3. Jr. 4, Akinola Maja Avenue, Jericho, Ibadan W.S.I.I.C.C. Lease registered as 30/30/129 of 26th July, 1957 in the Ibadan Land Registry.

4. Jr. 5, Akinola Maja Avenue, Jericho, Ibadan

5. Jr, 6, Akinola Maja Avenue, Jericho, Ibadan W.S.I.I.C.C. Lease registered as 19/19/379 of 18th July, 1960 in the Ibadan Land Registry.

6. Jr. 7, Akinola Maja Avenue, Jericho, Ibadan

7. Jr. 12, Akinola Maja Avenue, Jericho, Ibadan

8. Jr. 13, Akinola Maja Avenue, Jericho, Ibadan

9. Jr. 14, Akinola Maja Avenue, Jericho, Ibadan

10. Jr. 17, Bale Akintayo Road, Jericho, Ibadan

11. Jr. 18, Bale Akintayo Road, Jericho, Ibadan

12. Jr. 19, Bale Akintayo Road, Jericho,Ibadan W.S.I.I.C.C. lease registered as 43/43/129 Of 23rd July, 1957 in the Ibadan Land Registry.

13. Jr. 20, Bale Akintayo Road, Jericho, Ibadan W.S.I.I.C.C. lease registered as 2/2/220 Of 6th August, 1957 in the Ibadan Land Registry.

14. Lr. 22, Are Oluyedun Road, Links Reservation, Ibadan.

15. Lr. 24, Are Oluyedun Road, Links Reservation, Ibadan.

16. Lr. 22, Are Oluyedun Road, Links Reservation, Ibadan. W.S.I.I.C.C. lease registered as 18/ 18/93 Of 6th August, 1957 in the Ibadan Land Registry.

17. Cr. 26, Kudeti Avenue, Commercial Reservation, Ibadan. W.S.I.I.C.C. lease registered as 50/50/93 11th January, 1985 in the Ibadan Land Registry.

18. Nr, 28 Olumuyiwa Jibowu Crescent, Iyaganku, Ibadan. W. S.I.I.C.C. lease registered as 22/22/537 Of 22nd June, 1962 In The Ibadan Land Registry.

19. Ar. 34, Akere Close, Agodi Reservation, Ibadan. W.S.I.I.C.C. lease registered as 20/20/220 Of 8th October,

20. Lh. 37, Lafia House, Moor Plantation, Ibadan.

21. Lh. 38, Lafia House, Moor Plantation, Ibadan. 22. LH. 39, Lafia House, Moor Plantation, Ibadan. 23. LH. 40, Lafia House, Moor Plantation, Ibadan.

22. LH. 41, Lafia House, Moor Plantation, Ibadan.

23. LH. 42, Lafia House, Moor Plantation, Ibadan.

24. No. 2, Bolaji Close, Apata, Ibadan.

25. Pepsi-Cola Factory, Ibadan.

26. Lafia Hotel (Land And Buildings) Ibadan.

27. Nipol Limited Factory Site, Petrol Station and Mechanical Workshop, Ibadan.
W.S.I.I.C.C. lease registered as 6/6/61 Of 6th April, 1953 in the Ibadan Land Registry. The whole area known as BCGA comprise Pepsi- Cola Project, Lafia Hotel, Lafia Canning Factory Nipol and land of the petrol station and mechanical workshop and the Bolaji Close Quarters all covered by single deed of lease.

28. Finance Corporation Building, at Nat. Akinyemi Way, Gbagi, Ibadan.
Lease registered as 31/31/379 Of 24th October, 1960 in the Ibadan Land Register.

29. Quarters 816, 824 And 1013 Agodi, Ibadan, Quarter 833, New Reservation, Ibadan.
Government Quarters Given In Exchange For Quarters Ar.29, 31, 33 And Jr.15 Respectively Formerly Owned By W.S.I.I.C.C But Taken Over By The Government Of Oyo State.

30. Land And Buildings Occupied By Premier Hotel Ibadan.property of the former government.

31. Land and buildings occupied by Former Western Nigeria Printing Corporation at Eleiyele, Ibadan.
Lease Granted by the former government to government to the Former Western Nigeria Printing Corporation, Ibadan Dated 3rd November, 1955 and registered as 37/37/297 at the Ibadan Land Registry.

32. Land Used As Cattle Ranch By The Western Live-Stock Company Limited At Upper Ogun,Oyo State, 10,170 Hectares.

33. Land Used As Cattle Ranch By The Stock Company Limited At Ogboro, Oyo State, 8, 094 Hecatares. Property Of The Former Government.

34. Land Used As Cattle Rach By The Western Live-Stock Company Limited At Oke Ado, Ondo State. 10,622 Hectatres.

35. Land Used As Cattle Ranch By The Western Live-Stock Company Limited At Akunnu, Ondo State, 8,094 Hectares.

36. Land used as cattle ranch by the Western Live-Stock Company Limited At Meko, Ogun State, 4,000 Hectares. The public seals of our respective governments having been hereunto affixed this Twelfth Day of June, One Thousand, Nine Hundred and Seventy-Nine.

The properties listed in the Schedule are the property specifically vested in the Odu’a Investment Company Limited and in Item 32, it says “Land And Buildings Occupied By Premier Hotel Ibadan”. No particulars of this property were given other than the comment “Property Of The Former Government”. Note that particulars of description and registration of other property affected particularly at Jericho Ibadan were duly given as shown above.

In attempting to construe Item 32 Of Exhibit 1, The Learned Trial Judge considered the evidence led by the parties especially those of the Respondent that it had through its subsidiary Western Hotels Ltd which owns Premier Hotel Ibadan occupied the building Plot 785 Jericho for decades and the contention of the Appellant that Quarter 785 Jericho Ibadan was not specifically listed in the Schedule and that Item 32 could only refer to the land and buildings actually occupied by the Premier Hotel itself which is at Mokola Hills. The Trial Judge basing his interpretation on factual evidence of occupation of the Quarter 785 Held Thus:-

In the light of the foregoing, I find as a fact and so hold that the property in dispute, that is, Quarter 785 is a “land and Buildings occupied By Premier Hotel, Ibadan” as therefore it is a property that falls within Item 32 of Exhibit 1. The effect of this finding is that there is no basis for the assumption or claim of ownership of Quarter 785 By Oyo State Government. The principle of law which is expressed in the legal maxim “nemo dat quod non habet” is applicable. See Okelola Vs. Adeleke (1999) 1 NWLR (Pt. 585) 55 At 63.

In The End Result, The Claim Of The Claimant Succeeds In Its Entirety. Accordingly, It Is Hereby:
(I) Declared that the claimant is the bonafide owner of Quarter 785, Jericho, Ibadan.
(II) The sum of n20,000.00 is hereby awarded as nominal damages against the defendant.
(III) Perpetual injunction is hereby issued against the defendant, his agents, privies, vendor or any other person aiding him.

In the amended Notice of Appeal, Appellant Filed more grounds of Appeal reproduced below:

Ground 1

The learned trial judge erred in law when he declared the Respondent as the lawful owner of the property known as Quarter 785, Jericho Gra, Ibadan Via Oyo State Gazette Number 9, Volume 15 Of 22nd February, 1990 – Part II under the States (Creation And Transitional Provisions) Decree 1997 No. 17 and commodities Board Decree No. 29 As Instrument No. 4 and in particular Item Number 32 At Page B 20.

Ground 2

The learned trial judge erred on the facts when he found from the onset in his evaluation or analysis of the evidence as follows:

“In the light of the documentary and oral evidence before the Court, it (Sic) incontrovertible that the parties are agreed that the land in dispute is Quarter No. 785 otherwise also described or referred to as Item 32 (Land And Buildings Occupied By Premier Hotel , Ibadan on Page B20 Of Exhibit 1 and 1 (sic) hold.”

Ground 3

The learned trial judge erred in law when he held thus:

“In the light of the foregoing, I find as a fact and so hold that the property in dispute, that is, Quarter 85 is a “Land And Buildings Occupied By Premier Hotel , Ibadan” as therefore it is a property that falls within Item 32 of Exhibit 32 Of Exhibit 1. The effect of this finding is that there is no basis for the assumption of or claim of ownership of Quarter 785 by Oyo State Government.”

Ground 4

The Trial Court erred in law when it used a vague, imprecise and highly nebulous provision of Item 32 Of Exhibit 1 To Wit “Land And Buildings Occupied By Premier Hotel , Ibadan” to confer title the disputed property on the Respondent.

Ground 5

The trial judge erred in law in the interpretation he placed on Item 32 Of Exhibit 1 and thereby occasioned a miscarriage of justice.

Ground 6

The Learned Trial Judge Erred In Law When He Held As Follows:

“…the evidence adduced by the claimant’s witnesses are more credible and preponderates in favour of the claimant and thus titled (sic) the imaginary scale of justice to the side of the claimant and that is reason why I prefer the claimant’s evidence to that of the defendant.”

Ground 7

The trial Court erred in law when it found that the Respondent was in occupation/possession of the property in dispute until the time Exhibit 8 was issued on 18th June, 2010.

Ground 8

The judgment is against the weight of evidence. From those grounds, the Appellant formulated the following three issues:-

1. Whether the learned trial judge was right in adjudging the Respondent the lawful owner of the property known as Quarter 785, Jericho Gra, Ibadan Based On Item Number 32 at Page B20 of statutory instrument No. 4 made pursuant to the States (Creation And Transitional Provisions) Decree 1997 No. 17 and Commodities Board Decree No. 29 as contained in the Oyo State Gazette Number 9, Volume 15 Of 22nd February, 1990. (Distilled from Grounds 1 and 4 of the amended Notice of Appeal).

2. Whether the trial Court Rightly found that the property in dispute falls within “Land And Buildings Occupied By Premier Hotel , Ibadan” as stated in Item 32 Of Exhibit 1. (Distilled from Grounds 2, 3 And 5 of the amended Notice Of Appeal).

3. Whether the Respondent proved its case to warrant the learned trial judge entering judgment in its favour. (Distilled from Grounds 6, 7 And 8 of the amended Notice of Appeal).

Appellant’s Case

Appellant’s solicitor in his brief filed 9/10/15 argued Issues 1 & 2 together covering Grounds 1, 2, 3, 4, & 5 of the Appellant’s brief.

Referring to Oyo State Statutory Instrument No. 5 vesting properties belonging to the former Western State of Nigeria and some of its defunct Corporations in Odu’a Investment Company Limited and Oyo State Instrument No. 6 vesting property of some statutory corporation in the Respondent company and argued that by Instrument No.5, those properties in Jericho were listed as follows:

1. Jr. 1, Akinola Maja Avenue, Jericho, Ibadan.

2. Jr. 2, Akinola Maja Avenue, Jericho, Ibadan.

3. Jr. 4, Akinola Maja Avenue, Jericho, Ibadan.

4. Jr. 5, Akinola Maja Avenue, Jericho, Ibadan.

5. Jr. 6, Akinola Maja Avenue, Jericho, Ibadan.

6. Jr. 7, Akinola Maja Avenue, Jericho, Ibadan.

7. Jr. 12, Akinola Maja Avenue, Jericho, Ibadan.

8. Jr. 13, Akinola Maja Avenue, Jericho, Ibadan.

9. Jr. 14, Akinola Maja Avenue, Hericho, Ibadan

10. Jr. 17, Bale Akintayo Road, Jericho, Ibadan.

11. Jr. 18, Bale Akintayo Road, Jericho, Ibadan.

12. Jr. 19, Bale Akintayo Road, Jericho, Ibadan.

13. Jr. 20, Bale Akintayo Road, Jericho, Ibadan.

Against this list, learned counsel submitted that the legal instrument having expressly listed the affected properties vested in the Respondent, what is not included therein is excluded therefrom as in the latin maxim expression unus, est exclusio alterius citing the cases of Abacha Vs. Federal Republic Of Nigeria (2006) 4 NWLR (Pt. 970) 239 309 – 310. David Osuagwu Vs. A.G Anambra State (1993) 4 NWLR (Pt. 285)13. Ojukwu Vs. Yar’adua (2008) 4 NWLR (Pt. 1078) 435. Omoworare Vs. Omisore (2010) 3 NWLR (Pt. 1180) 58 At 114.

Learned Counsel Offers Two Possibilities Of The Meaning Of “Lands and buildings occupied by Premier Hotel, Ibadan”

As counsel argued in Para 4.1.11 and .1.12 thus:-

Firstly, it means the land and buildings at Mokola Hill, Ibadan where the hotel carries on its business. Secondly, it may mean any land or buildings in Ibadan, which the hotel uses for one purpose or the other. However, submit with humility, that in view of our earlier submissions on the Jericho Location of the property in dispute and the fact that properties located in Jericho Location of the property in dispute and the fact that properties located in Jericho Area of Ibadan specifically vested in the Respondent and its subsidiaries have been expressly listed, the second interpretation is not applicable here. After all, The provision relating to properties situate at Jericho Area of Ibadan, i.e Items 1-13 Of Part 11 of the said Schedule is a special provision, while Item 32, when interpreted in the second sense as apparently wrong done by the learned trial judge, is a general provision. The law is settled that such special provision prevails over the general provision. This canon of statutory construction is encapsulated in the latin maxim “generalia specialibus non derogant” that specific provisions prevail over general ones. See AG Federation Vs. Abubakar (2007) 10 NWLR (Pt. 1041) 1 At Pp. 2 – 93, Paras. H-C, 148-149, Paras H-B; Governor Of Kaduna State Vs. Kagoma (1982) 6 SC 87 At Pp. 107-108. See Also Ibori Vs. Ogboru (2004) 15 NWLR (Pt.895) 154 At Pp. 194-195, Paras G-D.

In other words, counsel argues that the specific words of the instrument is a guide over the general words and that the general words “Lands and buildings occupied by Premier Hotel” unless strictly confined to the Premises Of Premier Hotel Ibadan At Mokola Hill Ibadan, would lead to absurdity otherwise, any premises or property or land anywhere occupied by Premier Hotel whether rented or otherwise acquired would come under Item No.32 which could not be the intendment of the instrument citing Tukur Vs. Govt. Gongola State (1988) 1 NWLR (Pt.68) 39, Onyeanusi Vs. Miscellaneous Offences Tribunal (2002) 12 NWLR (Pt.. 781) 227 at 250 and the English Case Of Stork Vs. Rank Jones (Tripton) (1978) 1 WLR 231. Counsel submit that a Court ought not read into an instrument words not found in the enactment in order to give the instrument the effect it desires.

Counsel further argues as follows on the proper interpretation of Item 32 in contention. He submits thus:-Moreover, it is submitted that any instrument or document granting title to or ownership of land to any person must do so in clear, unambiguous, precise and full terms.

As we have shown, Item 32 is ambiguous and nebulous. It is therefore imprecise to confer title on the Respondent or Premier Hotel outside the particular land and building where Premier Hotel carries on business, i.e. Mokola Hill, Ibadan, outside that, nothing more. Neither the property in dispute, i.e. Quarter 785 Jericho Gra, Ibadan nor any interest therein can be granted by such vague and imprecise description as contained in Item 32.

Importantly too, any statute or instrument purporting to deprive or divest The Oyo State Government or its predecessor of title in the disputed property and vest same in the Respondent as claimed by the Respondent must be construed contra proferentem, i.e. strictly against the person claiming such divestment.

Submit that strict construction of the wordings of Item 32 Of Statutory Instrument in Exhibit 1 shows that the only interpretation capable of being placed on the item is in the first sense stated above, i.e. that Mokola Hill, Ibadan Land and Buildings wherein Premier Hotel carries on business was vested in the Respondent under that Item. No other property can pass or be transferred thereby or thereunder. It could not have been the intendment of the makers of the Statutory Instrument No. 6 that the Respondent be given a blanket instrument to takeover any property in Ibadan so long as it claims that or it appears to the Respondent that Premier Hotel Occupies The Property. It would be absurd and contrary to common sense, we submit, to construe Item 32 As Such.

All Courts have a duty to avoid construing statutory provisions in a manner that would be contrary to common sense or result in absurdity. In other words, in construction of statutes, it is trite law that Court should lean in favour of interpretation which accords with common sense. See Barnes Vs. Jarvis (1953) 1 WLR 649 At P. 652, Per Lord Goddard, CJ.

Another argument proffered by the Appellants counsel relate to the pleading of the Respondent at Paragraph 6 of the statement of claim thus:

“The property and land in dispute has been allocated by the government of the Defunct Western Region of Nigeria Since 1964 to the Western Hotel Limited, that is, even before the claimant was incorporated in 1976”

Counsel thus argue that if the property in issue was so vested in Western Hotel Ltd in 1964, it could not have been available to be subsequently vested in Respondent having earlier been vested in Western Hotels Ltd and that this is also a pointer to the proper interpretation of the enactment or instrument.

Counsel concludes thus on this last point based on the assumption contained in Paragraph 6 of the statement of claim as follows:

It is therefore submitted that by the pleadings of the Respondent, Quarter 785, Jericho, Ibadan was no longer vested in the government of the Defunct Western Region Of Nigeria as at the date of the Promulgation Of Decree No. 17 Of 1977 as, accordingly to the Respondent, same had been transferred to Western Hotel Limited which was an entity of its own capable of owing properties. The maxim, nemo da quod non habet (literally) translated to mean “no man can give what he does not have”), we submit applies here. See Okelola Vs. Adekeke (1999) 1 NWLR (Pt.585) 55 At P. 63, cited by the Trial Court at Page 204 of the record, though, we submit, on a wrong occasion.

It is therefore submitted that Quarter 785, Jericho, Ibadan not being the property of the Defunct Western Region Of Nigeria or of any of the aforesaid corporations or board at the time the Decree was promulgated, the Government of the Defunct Western Region and or the Corporations or Marketing Board, could not have transferred the same to the Respondent via the same Decree or any Statutory Instrument made thereunder or pursuant thereto.

Hence, it was therefore not surprising that by Exhibit 8, i.e Oyo State Government’s letter of 18th June 2010, the government clearly informed the Respondent that on examination of the records and the relevant laws, the property in dispute was never part of the properties ceded to the Respondent.

Therefore, whichever way this honourable Court looks at this matter, the Trial Court was absolutely wrong in holding that Item 32 of the aforesaid Statutory Instrument made pursuant to the said Decree No. 17 Of 1977 vested the property in dispute on the Respondent.

Regarding Issue No. 3 On Proof Of Title, Appellants Counsel Argue That Of The Five Ways Of Proving Title To Land Which Was Set Out As Follows:

(A) By traditional evidence (Adedibu Vs. Adewoyin 13 WACA 191);

(B) By production of document of grant or title, such as in this case (Johnsown Vs. Lawanson (1971) 1 ALL
NLR 56);

(C) By proving acts of possession and ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the plaintiff is an exclusive owner (Ekpo Vs. Ita 11 NLR 68);

(D) By proving act of long possession and enjoyment of the land; but this only raises a presumption of ownership (Da Costa Vs. Ikomi (1968) 1 ALL NLR 394, At P. 398);

(E) By proof of possession of connected or adjacent land in circumstances, which make it probable that, the owner of such adjacent or connected land is probably the owner of the land in dispute (Okechukwu Vs. Okafor (1961) 1 ALL NLR 685). See The Locus Classicus On The Mater, D.O.Idundun & Ors. Vs. Daniel Okumagba & Ors. (1976)9 -10 S.C 227 at Pp. 246 – 250.

It is obvious that Respondent rely on proof by Legal Instruments No.5 Of Oyo State Exhibit I particularly Item 32 thereof but submit that title cannot pass to the Respondent under Item 32 thereof as discussed in the previous issues analyzed above.

It was also further contended by Learned Counsel that contrary to the pleading of the Respondent that the property in issue i.e. Quarter 785, was assigned to Western Hotel Limited In 1964, no document or instrument of assignment or transfer was pleaded or tendered in proof that there was such a transfer to Western Hotel Ltd in 1964.

On possession by the Respondent, counsel argue that possession here cannot ripen into title and that the law is that a party who relies on a known root of title must prove that root and cannot rely on act of possession where that known root fails citing Chief Oyelakin Balogun Vs. Oladosun Akanji (1988) I NWLR (Pt. 70) 301. Ngene Vs. Igbo (2000) 4 NWLR (Pt. 651) 131.

For the Appellant, learned counsel submits that title to the property resides or remain in the government of Oyo State and that the government has leased the property to the Appellant in due form of law and that the trial court ought to have accepted the evidence of the Appellant and not of the Respondent.

Respondent’s Case

The Respondent’s counsel raised two issues for determination in Paragraph 7.1 and 7.2 of the Respondent’s Brief herewith reproduced

Whether the learned trial judge was right in the meaning and effect given to Oyo State Gazette No. 9 Volume 15 Of 22nd February, 1990 Part II under the States (Creation And Transitional Provision) Decree 1977, No.17 and the Commodities Board Decree No. 29 as Instrument No. 4 and in particular Item No. 32 at Page B20 thereof in view of the facts and evidence before the lower court thus entitling the Respondent to the reliefs sought and granted by the Trial Court.

Whether the Appellant has shown a better title by tendering Exhibits 8 To 12 which were issued by an interested party during the pendency of this suit and whether the documents are such that can dispossess the Respondent of the property in dispute known as Land And Buildings Occupied By Premier Hotel Ibadan (Property of the Former Government) otherwise known as Quarter 785, Jericho Road, Ibadan.

In arguing Issue One, learned Respondents counsel submits thus:

A good starting point is to look at the pleading and evidence of the parties before the Court and to relate the evidence and the pleading to Exhibit 1 To see whether the interpretation given to same as held by the learned trial judge can be ascribed to it and we humbly invite your Lordships’ Attention to the salient facts in the Statement Of Claim (See Pages 3-5 Of The Record For The Statement Of Claim And Pages 6-7 of the record for the written depositions of Cw2 Mrs. Aderonke Odutola and Pages 216 to 219 of the additional record for the written depositions of Cw 1, Olofinkinle Abiodun.

In other words, Respondents Learned Counsel’s argument is that the interpretation to be placed on the Statutory Instruments i.e Oyo State Gazette No. 9 Volume 15 of 22nd February 1990 Part II under the States (Creation And Transitional Provision) Decree 1977 and the Commodities Board Decree No. 29 as Instrument No.4 and in particular Item No.32 at Page B20 thereof, is dependent on fact and evidence before the Trial Court or to put it more clearly counsel is saying that it is evidence of perceived fact e.g. occupation, that would determine the interpretation of the legal instrument counsel on the above premise submits as in Paragraph 8.6 And 8.7 thus:

We submit that from the pleadings and evidence of the parties the property in dispute is known to both parties and admitted to be in possession of the Respondent as tenant to Oyo State Government though called Quarter 785 Jericho G. R. A, Ibadan by the Appellant and described as Land And Buildings Occupied By Premier Hotel Property of the Former Government by the Respondent in the vesting instrument Exhibit 1. In Chukwuemeka Vs. Okonkwo (1999) 1 NWLR (Pt.587) 410 Pages 19-20 Paragraph E-A. The Supreme Court held that where parties by the evidence adduced are ad idem on the identity of the land in dispute the fact that different names are ascribed to the land or that the area where it is located is called different names is immaterial as long as the parties are referring to the same parcel of land. submit that as between the Appellant and the Respondent the identity of the property is not in dispute.

The vesting instrument which is the document of title relied upon by the Respondent among other things and admitted as Exhibit 1 See Pages 41 To 54 of the record and Pages 100 To 113 titled Instrument No.6 entitled “The State Creation And Transitional Provisions) Decree 1977 No.17 Published As Oyo State Legal Notice No.6 In The Supplement To Oyo State Gazette No. 9 Vol. 15 Of 22nd February, 1990. Item No. 32 On Page B20 Of The Gazette Is Of Particular Reference But Suffice To State That Page B20 Contains Items Numbering From Number 20 To 28 As Follows.

Item

No Description and Location of Properties Particulars

20. Lh, 27 Lafia House Moor Plantation, Ibadan 21. Lh, 28 Lafia

21. House Moor Plantation, Ibadan

22. Lh, 39 Lafia House Moor Plantation, Ibadan

23. Lh, 40 Lafia House Moor Plantation, Ibadan

24. Lh, 41 Lafia House Moor Plantation, Ibadan

25. Lh, 42 Lafia House Moor Plantation, Ibadan

26. No. 2 Bolaji Close, Apata, Ibadan, Ibadan

27. Pepsi Cola Factory, Ibadan

28. Lafia Hotel (Land And Buildings) Ibadan

29. Nipol Limited Factory Site, Petrol Station And Mechanical Workshop, Ibadan

30. Finance Corporation Building At Nat Akinyemi Way, Gbagi, Ibadan

31. Quarters 826, 824 And 1013 Agodi, Ibadan

32. Land And Buildings Occupied By Premier Hotel , Property of the Former Government

33. Land and Buildings Occupied by Former Western Nigeria Printing Corporation At Eleyele, Ibadan. Lease granted by the Former Western Nigeria Printing Corporation…

34. ………….. …………..

35. …………….. ………

36. ……………………….. Property of the Former….

37. ………………….. …………

38. Land used as Cattle Ranch by the Western Livestock Company Limited at Meko, Ogun State 4,000 Hectares. After a careful review of the evidence of the parties the details in Item No.32 in Exhibit 1 as highlighted above and stated herein was interpreted by the learned Trial Judge at Page 196 To 206 of the Record.

Respondents hinged their case of title or ownership on possession over the years either by Western Hotels Ltd or by Premier Hotel Ibadan which it was argued had used the property in dispute either for staff housing or training base.

It Was Argued For The Respondent That The Appellant Did Not Show Any Proof Of Title.

Of interest in this Appeal is the submission of the Respondent’s Learned Counsel at Paragraph 9.2 and 9.3 and 9.4 of his Brief reproduced hereunder:

We submit that the Golden Rule Of Interpretation is that where the wordings in an enactment are clear the words should be given its ordinary grammatical meaning; it is only when the words of an enactment are unclear and ambiguous that aids are sought in other books and legislations. The Learned Authors Of Halsbury’s Laws Of England 3rd Edition Volume 36 Page 388 Paragraph 580 put it as follows ‘If the words of a Statute are ambiguous, then the intention of parliament must be sought first in the Statute itself, then in other legislation and contemporaneous circumstances and finally in the general rules laid down long ago and often approved, namely by ascertaining what was the Common Law before the making of the Act, what was the mischief and defect for which the Common Law did not provide, what remedy Parliament hath resolved and appointment to cure the disease of the remedy’ Per Onu Jsc at Page 51 Paras G-D See A.G Ekiti & Ors Vs. Adegoke Adewunmi & Anor (2002) ISC 47.
The object of all interpretation is to discover the intention of the Law Makers which is deducible from the language used. The right and powers of the Court to interpret Statutes, agreements and other written document are undoubted. It is a cardinal rule of construction that in seeking to interpret a particular section of a statement or subsidiary legislation one does not take the section in isolation but one approaches the question of the interpretation on the footing that the section is part of a greater whole. See James Orubu Vs. INEC & 13 Ors (1988) 5 NWLR (Pt. 94) 323.

My Lords, We submit that from the pleadings, evidence and exhibits tendered in this case and as founded by the Learned Trial Judge at Page 196 of the record that the words used in Exhibit 1 are not ambiguous as to necessitate resorts to other forms of interpretation.

The only thing that is left for the Court In such situation is to give effect to their ordinary and literal meaning as held in the case of Akpan Vs. Umah (2002) 7 NWLR (767) 201 at 729 and this the Lower Court did when the Learned Trial Judge after a careful review of the evidence of the parties (See Pages 106 To 202 of the Record) came to the conclusion in the following terms.

“In the light of the foregoing, I find as a fact and so hold that the property in dispute that is Quarter 785 is a “Land And Buildings Occupied By Premier Hotel , Ibadan” as therefore it is a property that falls within item 32 Of Exhibit 1”. See Page 204 of the Record.

Learned Counsel for Respondent Denied that the maxims of statutory interpretation relied on by Appellant i.e. expressio unius est exclusio alterios and genaralia specialibus non derogant i.e. the express, mention of one thing implies the exclusion of the other and specific provision prevails over general provisions “ do not apply and instead submits thus: In Mobil Oil (Nig) Ltd V. Federal Board Of Inland Revenue (1977) 3SC 53 particularly at Page 77, Bello JSC (as he then was) re-stated the rule governing interpretation of statutory provision while considering Section 30A of the Companies Income Tax Act, as follows; “the general rule for constructing a statute has been stated by this Court in a number of cases, where the words of a statute are clear the Court shall give effect to their literal meaning. it is only when the literal meaning may result in ambiguity or injustice that the court may seek internal aid within the body of the Statute itself or external aid from Statute in parimateria in order to resolve the ambiguity or avoid doing injustice.

On the Respondents Issue No.2, Learned Counsel Argued that on the basis of the legal Instruments since under consideration and in particular Item 32 thereof and further in consideration of the very extensive possession of the Respondent of the property in dispute the Respondent proved its case against the Appellant whose case had no merit counsel argued.

Resolution of Issues

There are two main issues raised in this Appeal. The first deal with the interpretation of Oyo State Gazette No.9 Volume 15 of 22nd February 1990 Part II made pursuant to the States (Creation And Transitional Provisions) Decree 1977 and the Commodities Board Decree No.29 as Instrument No.4 and in particular Item No.32 At Page B20 Exhibit 1.

By virtue of this Instrument certain property listed on the first column of the Schedule And whose particulars are given in the Second Column of the same Schedule were vested in the First Respondent Odu’a Investment Company Limited. Of particular concern in his case is Item No.32 which described the property thus:

No. 32. Land And Buildings Occupied By Premier Hotel , Property of the Former Government Ibadan.

The description and location of the property is what is given in the First Column while the Second Column gave particulars of the ownership hitherto.

Now, it is noted in evidence and well known that Premier Hotel, Ibadan, is a business located at Mokola Hills at Ibadan where the hotel is run on its large premises comprising several buildings. The description in the First Column is given, not in terms of the ownership of the hotel e.g. Western Hotels Limited but rather in terms of the location of the business i.e. “Premier Hotel, Ibadan”. Premier Hotel Ibadan is not a person in law. the key to the interpretation is to be found in the Legal Instrument itself in column one thereof which gives The description and location of properties preceding. A contrast of Item 32 with e.g. Item 31 which describes Quarters 816, 824 and 1013 Agodi, Ibadan, Quarter 833, New Reservation, Ibadan, or even within Jericho Reservation itself Items 1-13 gave the description of the properties by their known names as; Part II

Item Description and Location Of Properties Particulars

No.1. Jr. 1, Akinola Maja Avenue, Jericho, Ibadan.

2. Jr. 2, Akinola Maja Avenue, Jericho, Ibadan

3. Jr. 4, Akinola Maja Avenue, Jericho, Ibadan W.S.I.I.C.C. Lease registered as 30/30/129 Of 26th July, 1957 In The Ibadan Land Registry.

4. Jr. 5, Akinola Maja Avenue, Jericho, Ibadan

5. Jr, 6, Akinola Maja Avenue, Jericho, Ibadan W.S.I.I.C.C. Lease registered as 19/1 /379 Of 18th July, 1960 in the Ibadan Land Registry.

6. Jr. 7, Akinola Maja Avenue, Jericho, Ibadan

7. Jr. 12, Akinola Maja Avenue, Jericho, Ibadan

8. Jr. 13, Akinola Maja Avenue, Jericho, Ibadan

9. Jr. 14, Akinola Maja Avenue, Jericho, Ibadan

10. Jr. 17, Bale Akintayo Road, Jericho, Ibadan

11. Jr. 18, Bale Akintayo Road, Jericho, Ibadan

12. Jr. 19, Bale Akintayo Road, Jericho, Ibadan W.S.I.I.C.C. lease registered as 43/43/129 Of 23rd July, 1957 in The Ibadan Land Registry.

The property in dispute is well known in jericho Reservation. It is Quarter 785 at Jericho. It is not included in The First Column of Part II of the Schedule as was the cases of other properties in Jericho See Items 1 – 3. The omission of Quarter 785 is not a mistake by the drafter of the Legal Instrument. It was simply not intended to be included and so must be taken as excluded. “Expressio unius personae rel rei est exclusio alterius the express mention of one thing or person is the exclusion of another or put differently “expressium facit cessare tacitum” i.e that which is expressed makes that which is excluded. See further exposition of terms by Akintan JSC In Agbareh Vs. Mimra (2008) 2 NWLR (Pt. 7071) 378 at 437. See also Ogbunyinya Vs. Oludo (1979) 6 – 9 or (1979) All Nlr 105 At 118 Military Administrator Of Ondo State Vs. Adewunmi (1988) 3 Nwlr (Pt. 82) 280 Attorney General of Bendel State Vs. Aideyan (1989) 9 SC 127; (1989) 4 NWLR (Pt. 118) 646 (1989) 9 SCNJ 80.

The enactment that vested properties in Odu’a Investment Company Limited (Respondent) clearly excluded Quarter 785 Jericho Ibadan.

Item No. 32 expressed as “Land And Buildings Occupied By Premier Hotel, Ibadan” is not synonymous with Quarter 785 Jericho which was excluded from the list of properties vested by the same Instrument on the Respondent as in Item 1-13 earlier stated. This means that Quarter 785 is clearly excluded.

Item No.32 “Land And Buildings Occupied By Premier Hotel, Ibadan” refers to the property occupied by the business or enterprise known as Premier Hotel, Ibadan. It does not mean more. Otherwise, any other premises “occupied” by the hotel either by rent or otherwise would be deemed vested in the Respondent which would lead to absurdity which no Legislature can intend. With deserving respect to the learned trial judge, it is in this matter of interpretation that his lordship missed the point and came to a wrong conclusion.

I hold in this Appeal that Item No.32 Land And Buildings Occupied By Premier Hotel, ibadan is not synonymous with Quarter 785 Jericho which is clearly excluded in the Schedule as I have shown herein.

That being the case, the main substratum of the Respondents case collapses and the case at the Lower Court ought to have immediately failed and be dismissed at that Court.

Given the failure of the main Issue, Issue No.2 resting on mere possession by the Respondent cannot avail as possession alone will not avail where the basis of title sought is the grant by a Legal Instrument.

In the final analysis, the Appeal succeeds. The judgment of the High Court of Oyo State in Suit No.1/1238/2010 delivered on 26th September, 2014 is hereby set aside. In its place, the suit of the Respondent therein is hereby dismissed with cost to the Appellant assessed at N100, 000.00.

FASANMI, JCA.

The facts and the Issues for determination in this Appeal have been set out in the lead judgment of my learned brother Nonyerem Okoronkwo JCA.

The issues raised therein were fully dealt with. I have nothing more to add. Accordingly, I also allow the appeal and thus abide by all the consequential order contained therein.

TSAMMANI, JCA.

I read in advance the judgment just delivered by my learned brother, Okoronkwo, JCA. I agree with the reasoning and conclusion of my learned brother that the Appeal be allowed.

It is my view that the dispute in this case centres mainly on the construction to be given to the words “Land And Buildings Occupied By Premier Hotel, Ibadan,” used in Item No: 32 of Exhibit 1. I think the key word there is the word “occupy”. In ordinary parlance, the word is used to mean inter alia, “to fill or use a space area or an amount of time.” See Oxford Advance Learner’s Dictionary (International Student’s Edition) at Page 1008. The Black’s Law Dictionary (9th Edition) by Bryan A. Garner does not define the word “occupy” but defines “occupant” to mean:
“(I) One who has possessory rights in, or control over, certain property or premises. (2) One who acquires title by occupancy”
In the case of Odua V. Federal Republic of Nigeria (2002) 5 NWLR (Pt. 761) P.615, Chukwuma – Eneh, JCA (as he then was) said:

“The Decree has thereby, laid some emphasis on the words “occupier” and premises”. and it seems to me that these words have to be further examined in context of the said provision and the Act itself for their proper application in this matter. “occupier” has its ordinary dictionary meaning, as a person living in a (building, whereas, “premises” means land and building owned by someone”. In my view, “occupation” or “to occupy” is not synonymous with “ownership” of the same land. See Raphael Udeze & Ors V. Paul Chidebe & Ors (1990) 1 NWLR (Pt.125) P. 141 and Nandom Miri Dashe & Ors V. Nanyak Sallah Jatan & Ors (2016) LPELR – 40180(CA). This distinction is clearly brought out by the said Item No. 32 of Exhibit 1 itself where it is stated that the said Item 32 Of Exhibit 1 Is The “Property Of The Former Government”. It is therefore my view that the said Item 32 is described as property being “occupied” by premier hotel only. By that, it does not concrete “ownership” of the said property by premier hotel.

It is for the above reasoning and the other reasons clearly stated in the lead judgment that I agree that this Appeal be allowed. The judgment of the Court below in Suit No: I/1238/2010 delivered on the 26/9/14 is hereby set aside. I abide by the order on costs.