Holden at Abuja
On Friday, the 7th day of February, 2020
Before Their Lordships
Mary Ukaego Peter-Odili
John Inyang Okoro
Amina Adamu Augie
Paul Adamu Galinje
JIMMY KING (NIG.) LIMITED APPELLANT And UNITED BANK FOR AFRICA PLC RESPONDENT
(Lead Judgement delivered by Honourable Olukayode Ariwoola, JSC)
The Appellant, as Plaintiff/Judgement Creditor, got judgement at the High Court of the Federal Capital Territory, Abuja, for the sum of N87,655,000.00 with post-judgement interest. Thereafter, the Appellant applied to the High Court of Anambra State for leave to levy execution on the Judgement Debtor’s property at Anambra State International Market, Oba. Leave was granted, and Writ of Execution and Notice of Execution were issued by the court. Consequently, the market stalls were sealed, and notice of sale of the stalls was published.
Subsequent to the foregoing, the Respondent, who was not a party to the Appellant’s action at the High Court of the Federal Capital Territory, filed an Interpleader Summons at the High Court of Anambra State, claiming ownership of the market and the structures therein. To prove its claim, the Respondent exhibited a copy of the registered Deed of Assignment (Exhibit A) executed by the Judgement Debtor in its favour, in respect of the subject land. In the recital to the Deed, reference was made to a Sub-lease Agreement between the Anambra State Ministry of Commerce, Tourism and Technology (“Ministry”) and the Judgement Debtor, through which a Sub-lease of 15 years was granted to the Respondent on the land. By the Deed of Assignment (Exhibit A), the entire 15 years term under the sub-lease was assigned to the Respondent.
In its Counter-Affidavit, the Appellant denied the Respondent’s claim, but through its counsel’s submission in court, it admitted that the Ministry is the holder of the Certificate of Occupancy over the land and that the Ministry granted a sub-lease of its interest to the Judgement Debtor for 15 years, which the Judgment Debtor in turn, assigned to the Respondent.
The Respondent’s claim was dismissed by the trial court. Dissatisfied, the Respondent appealed to the Court of Appeal. The appeal was allowed and the reliefs sought were granted. This decision informed the appeal filed by the Appellant at the Supreme Court.
Issues for Determination
The issues posed for determination of the court are:
1. Whether the Court of Appeal was right, when it admitted and acted upon a purported sub-lease allegedly granted by the holder of the Certificate of Occupancy (the Ministry) to the Judgement Debtor when the alleged Sub-lease Agreement was neither before the trial court nor before the Court of Appeal, either on admission by the parties or otherwise.
2. Whether the maxim quic quid plantatur solo solo cedit is applicable to a lease of 15 years in the face of Section 10 of the Anambra State Lands Protection Law and the proviso thereto, and whether the Court of Appeal was right when it held that the Respondent proved that it has exclusive ownership of the Anambra State International Market, Oba.
3. Whether the Court of A ppeal was right, when it considered and acted upon issues arising from suits in which the Respondent was not a party.
On the 1st issue, counsel for the Appellant contended that there was no admission by the Appellant of the existence of the alleged sub-lease between the Judgement Debtor and the Ministry, and the Respondent who had alleged the existence of the same, failed to prove it. Counsel for the Respondent on his part, argued that the parties at the trial court admitted the right of the Ministry as holder of the Statutory Right of Occupancy over the land upon which the market was built, to grant a sublease of its interest to the Judgement Debtor, which in turn assigned the unexpired term of the sub-lease to the Respondent vide a Deed of Assignment duly registered and produced in evidence. He submitted that, this admission relieved the Respondent of the duty of proving the sub-lease, based on the principle of law that what is admitted needs no further proof.
On the 2nd issue, counsel for the Appellant submitted that, the maxim “quic quid plantatur solo solo cedit” is not available to a lease of less than 30 years; hence, it did not apply to the alleged lease of the Respondent which was for a period less than 30 years. He argued that, since the maxim does not apply in this case, the Judgement Debtor owns the improvements in the market i.e. the stalls that were taken in execution of the judgement against it, and the Court of Appeal was wrong to have held otherwise. He cited UDEH v NWARA (1993) 2 SCNJ 47 at 49. He contended further that, the Mortgage Agreement (Exhibit A) upon which the Respondent hinged its claim has no life of its own in the absence of proof of the alleged sub-lease between the Judgement Debtor and the holder of the Certificate of Occupancy, and there was nothing in the said agreement to show that the improvements in the market were ever transferred to the Respondent.
On the other hand, counsel for the Respondent argued that the legal maxim of “Quic quid plantatur solo solo cedit”, has been long recognised in Nigeria to apply to lands subject of Statutory Right of Occupancy; hence it applies in the instant case to make the Respondent the owner of the market stalls, during the subsistence of the 15 years term granted to it under the Deed of Assignment executed in her favour by the Judgement Debtor as the sub-lessee of the Ministry. He submitted that, from the totality of the evidence on record, the Court of Appeal rightly concluded that the Respondent proved its exclusive ownership of the market for the term of 15 years assigned to it by the Judgement Debtor.
On the 3rd issue, counsel for the Appellant submitted that it is not the business of the Respondent as a third party claimant, to question issues arising from applications and execution procedure to which it was not a party. He argued that the proceedings complained about was between the Judgement Debtor and the Appellant, and not part of the Interpleader Proceedings which the Respondent commenced. He posited that the Court of Appeal erred, when it delved into issues which were outside those presented for determination in the Interpleader Summons. Countering this submission, Counsel for the Respondent argued that the Court of Appeal rightly commented on the complaint of the Respondent in its Brief of Argument, against the irregularities which attended the execution of the judgement against the property, and the comment was a mere observation which cannot form the basis of an appeal.
Court’s Judgement and Rationale
On the 1st issue, the Supreme Court held that, where a trial court fails to properly evaluate evidence on record or erroneously does so, or the conclusion reached is not supported by evidence on record, then the Court of Appeal, in the interest of justice, must exercise its own powers of reviewing those facts and drawing the appropriate inference from the proved facts. The court relied on AYANRU v MANDILAS LTD (2007) All FWLR (Pt. 382) 1847 at 1861.
The court below was right when it held that, by the admissions of the parties, the sub-lease was proved having been admitted, as what is admitted needs no proof. What was required to be proved are – the existence, due execution and regularity of the Deed of Assignment, and the Respondent discharged this burden by producing the said Deed of Assignment in evidence. The fact that the Sub-lease Agreement was not produced did not whittle down the probative value of the Deed of Assignment, especially as the Deed was duly registered and received the Governor’s Consent in compliance with the law. In the face of the apparent contradiction and failure by the trial court to properly ascribe probative value to the Respondent’s evidence (Exhibit A), the Court of Appeal rightly intervened to make a proper evaluation of the evidence on record and ascribe probative value to it.
On the 2nd issue, the Apex Court held that, the maxim “Quic quid plantatur solo solo cedit” which translates to “who owns the land, owns what is above it”, applies in Nigeria to land subject of Statutory Right of Occupancy – FRANCIS v IBITOYE (1936) 13 NLR 11. Further, where a holder of a Statutory Right of Occupancy, with the prior consent of the Governor, alienates its interest in that land by way of a sub-lease for a definite term, the sub-lessee becomes the owner of the improvements or developments on the land during the subsistence of the term granted, so long as the improvement or development was done with the consent or approval of the holder of the Right of Occupancy.
By virtue of the Deed of Assignment, the Judgement Debtor had divested itself of the interest in the property in favour of the Respondent, and therefore, the Respondent became the owner of the market and all the improvements thereon for the period of 15 years granted to it under the Deed. Section 10 of the State Lands Law, Revised Laws of Anambra State, 1991 and its proviso which absolved the State at the expiration of any grant of State land, payment of compensation to the grantee for any improvements he may have effected on the land, and gave the grantee the opportunity to remove the improvements within a certain period, did not apply in the instant case.
On the 3rd issue, the court held that, the Court of Appeal is at liberty to make remarks in the wake of the flow of its judgement. The Court of Appeal was not wrong to comment over the earlier trial to which the Respondent was not a party, as the said comment was clearly an obiter dictum and incapable of being appealed against.
Dr. S.S. Ameh, SAN with Aminu Suleiman for the Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)