In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 14th day of June, 2024

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

Ibrahim Mohammed Musa Saulawa

Chioma Egondu Nwosu-Iheme

Jamilu Yammama Tukur

Sadiq Abubakar Umar

Justices, Supreme Court

SC/754/2017

Between

ODU’A  INVESTMENT COMPANY LIMITED                      APPELLANT

And

OLANIPEKUN OLAYINKA MICHAEL     RESPONDENT

(Lead Judgement delivered by Honourable Jamilu Yammama Tukur, JSC)

Facts

The Appellant filed an action against the Respondent at the High Court of Lagos State seeking the declaration of title to a property at Quarter 785, Jericho GRA, Ibadan, Oyo State; N20,000.00 as nominal damages against the Respondent, and an order of perpetual injunction against the Respondent with respect to the property. The Appellant claimed that it is the rightful owner of the property, and that it validly derived title in the property in 1976 through its predecessor-in-title which derived its own title from the defunct Western Region of Nigeria, and that it had since then, been in undisturbed possession of the property. The Appellant claimed that the subject Quarter 785 Jericho Ibadan was in fact, part of the properties ceded to it under the Oyo State Legal Notice No. 6 of 1990 titled “Instrument Vesting Properties Belonging to the Government of the Former Western State of Nigeria and its Statutory Agencies in Odu’a Investment Company Limited” by the provision of item 32 of the Legal Notice which vested lands and building occupied by Premier Hotel Limited in the Appellant.

The Respondent filed his statement of defence and other processes, in response to the Appellant’s claim. The Respondent’s case was that the Oyo State Government had allocated the property to him for valuable consideration, after a competitive bidding process. After the conclusion of trial, the trial court delivered its judgement in which it granted the Appellant’s claims. Dissatisfied, the Respondent appealed to the Court of Appeal, which allowed the appeal and set aside the judgement of the trial court.

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Aggrieved, the Appellant filed an appeal at the Supreme Court.

Issues for Determination

In its determination of the appeal, the Supreme Court adopted the following two issues formulated by the Respondent which it viewed as having encapsulated the four issues distilled by the Appellant:

  1. Whether the Court below rightly exercised jurisdiction over the Respondent’s appeal, irrespective of the conditions set by the Principal Registrar of the trial court in the process of compilation and transmission of the record of appeal.
  2. Whether upon the proper construction of item number 32 of Exhibit 1, the Court below rightly found for the Respondent, that the property in dispute is not part of the properties vested or granted to the Appellant. 

Arguments

On the 1st issue, Counsel for the Appellant argued that the Court of Appeal lacked jurisdiction and ought not to have entertained the Respondent’s appeal, because the conditions of appeal set out by the Principal Registrar of the trial court were not met by the Respondent.

On the 2nd issue, Counsel for the Appellant argued at the Court of Appeal erred when it held that the enactment that vested properties in the Appellant clearly excluded the subject property at Quarter 785, Jericho, Ibadan, and that item no. 32 (Land and Building occupied by Premier Hotel Ibadan) on Exhibit 1 is not synonymous with Quarter 785, Jericho, Ibadan. Counsel submitted that the Respondent failed to challenge the evidence at trial which established that the subject property was transferred to the Appellant in 1976 by the Government of the defunct Western Region; that the property in dispute had been allocated by the Government of the defunct Western Region since 1964 to the Western Hotel Limited which is the owner of Premier Hotel, Ibadan, and that the Appellant had been in undisturbed and unchallenged occupation of the said land for more than 39 years before 3rd November, 2010; thus, the Appellant’s position was established at trial. Counsel submitted that the Court of Appeal was wrong in holding that the main issue in the Appellant’s case rested on mere possession, and in holding that possession alone will not avail the Appellant where the basis of title sought is grant by a legal instrument.

Responding on the 1st issue, Counsel for the Respondent argued that that the Appellant’s argument attacking the Court of Appeal’s assumption of jurisdiction was unfounded, because the Appellant failed to provide the rules which permitted the Principal Registrar to set conditions for appeal, and that even if such rules exist, they were superseded by the rules of the Court of Appeal and the provisions of the Constitution. He argued further that, the fact that the Appellant had filed processes and submitted to the lower court’s jurisdiction meant that it had waived its right to complain about the irregular procedure. Counsel then pointed out that the Principal Registrar at page 209 of the Record of Appeal, did in fact, certify that the conditions were fulfilled.

On the 2nd issue, Counsel for the Respondent submitted that the legal instrument which the Appellant purported to have derived its title in the property in dispute from, did not list the property among the immovable properties transferred to the Appellant and its subsidiaries in Ibadan specifically mentioned in Part II of the Schedule to the instrument, and since the property in dispute was not mentioned, it was meant to be excluded, in line with the express mention rule. Counsel posited that the Appellant’s attempt to lay claim to the ownership of the property by relying on item 32 of Part II of the Schedule to Instrument No. 6 which states “Lands and Buildings occupied by Premier Hotel, Ibadan” would not avail the Appellant, as the provision is vague and ambiguous. He argued that items 1 – 13 of Part II of the Schedule is a special provision, while item 32 is a general provision which cannot override a special provision. He relied on GOVERNOR OF KADUNA STATE v KAGOMA (1982) 6 SC 87 AT PP. 194-195.

Court’s Judgement and Rationale

Resolving the 1st issue, the Supreme Court held there is no doubt that one of the determinants of a court’s jurisdiction over a case, is that the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction, and the effect of failure to comply with a condition precedent is that the court lacks jurisdiction. The Apex Court referred to its decisions in MADUKOLU v NKEMDILIM (1962) 2 SCNLR 341; UGWUANYI v NICON INSURANCE PLC (2013) LPELR – 20092(SC) and AGUMA v APC & ORS (2021) LPELR – 55927 (SC).

The Apex Court held further that while substantive jurisdiction of the court cannot be waived, a party may waive a matter relating to the procedural jurisdiction of the court. The Court referred to its decision in JULIUS BERGER (NIG) PLC v ALMIGHTY PROJECTS INNOVATIVE LTD & ANOR. (2021) LPELR – 56611 (SC) (PP 56 – 57 PARAS B – B). The Court held that although the Appellant’s position that parties cannot confer jurisdiction on a court that does not have jurisdiction is correct, however, this is not applicable to the instant appeal because (1) the records of appeal showed that the conditions of appeal were fulfilled, as the Certificate of the Registrar signed by the Principal Registrar indicated that the conditions had been perfected; (2) even if there was non-compliance, the non-compliance was only related to a procedural issue, and the Appellant having failed to raise the objection at the earliest opportunity must be taken to have waived such non-compliance.

On the 2nd issue, the Apex Court, relying on its earlier decision in A-G ABIA STATE v A-G OF THE FEDERATION, 2022 LPELR – 57010 (SC), held that it is a well settled principle of construction of statutes as espoused in the Expressio Unius  Est Exclusio Alterius rule, that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included. The rule is that, the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue.

The Court held that, the bone of contention on the second issue revolved around the interpretation of Oyo State Legal Notice No. 6 of 1990 titled “Instrument Vesting Properties Belonging to the Government of the Former Western State of Nigeria and its Statutory Agencies in Odu’a Investment Company Limited”, particularly Item 32 therein. His Lordship held that a dispassionate and holistic construction of the said notice shows clearly that the properties in the Schedule to the Legal Notice which were granted to the Appellant were specifically listed therein with their specific locations, and nowhere in the said Schedule was the subject property, that is, Quarter 785 Jericho, Ibadan, listed among the properties at Jericho vested in the Appellant. The Court agreed with the finding of the Court of Appeal, that the omission of Quarter 785 from the other properties at Jericho GRA vested in the Appellant was not a mistake by the drafter of the Legal Notice; it was simply not intended to be included. The Apex Court held that the express mention of all the properties vested in the Appellant with their descriptions and locations has clearly excluded any property, including Quarter 785 Jericho that was not specifically mentioned in the Schedule to the Legal Notice, from the properties vested in the Appellant. The Appellant could not therefore, rely on the said Legal Notice to claim ownership of the property.

Appeal Dismissed.

Representation 

Kolawole Esan for the Appellant.

M. Ogunsakin with Celestine A. Acheme for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)

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