The Sapele Okpe Land Trust Association has won a major legal battle against the government of Delta State in a case that places the ownership of lands in Sapele to the Okpes.
Justice G. E. Gbemre released a landmark ruling that a lease is for a term of years which the lessee must give back at the expiration of the leasehold.
The ruling emphasized that if the defendants are still desirous of retaining same, they can initiate the process of compulsorily acquiring same or seek a renewal but not to rely on the Land Use Act to renege from an agreement or forcefully acquire same.
According to Gbemre, the spirit of the Land Use Act is not for the Government to forcefully or without more acquire all lands in the State, rather for them to exercise a supervisory role in the control and management of land:
‘ This is why a certificate of Occupancy duly issued by Government can still be set aside by a court of law : and that is why there are still valid land transactions that do not involve the Government except a party wishes to formalize such a transaction. The Governor’s position has been correctly identified as that of Trustee of all lands and not owners” he said.
IN THE HIGH COURT OF JUSTICE
DELTA STSTE OF NIGERIA
IN THE SAPELE JUDICIAL DIVISION
HOLDEN AT SAPELE
BEFORE HIS LORDSHIP HONOURABLE JUSTICE G.E. GBEMRE – JUDGE ON THURSDAY THE 2ND DAY OF FEBRUARY, 2012
BETWEEN: SUIT NO. S/M/59/2010
1. CHIEF JOSEPH ONOMO
2. CHIEF JOSEPH ITOTO OGODO
3. MR. MICHAEL EGBEJULE
4. CHIEF SUNDAY TEMIAGIN
(For themselves and on behalf of members of
The Sapele Okpe Community – Sapele)
5. SAPELE OKPE COMMUNITY LAND TRUST ASSOCIATION
1. THE GOVERNOR OF DELTA STATE
2. THE HON. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, DELTA STATE
This is an originating summons in which the Claimants posed three questions for determination and they are:
a) Who in law, is the Reversionary as between the Claimants and the defendants who, is entitled to the Reversionary interest in the Deed of Lease dated 3/12/1908 and registered as No. 2/08 in volume 18 of the Lands Registry in the office at Warri but now kept at the Lands Registry, Asaba made between Chief Dore Numa of Benin River acting for and on behalf of the Chiefs and people of Sapele of the one part and James Jamieson Thorburn, Acting Governor and Commander-in-Chief of the Colony of Southern Nigeria of the other part?
b)Whether Claimants have in law, been divested of their reversionary interest in the Deed of Lease dated 3/12/1908 and registered as No. 2/08 in Volume 18 of the Lands Registry in the office at Warri but now kept at the Land Registry, Asaba by S.34(2) of the Land Use Act, 1978?
c) Whether S.34(2) of the Land Use Act has in any way vested in the defendants, the reversionary right and interest as the Lessees in the Deed of Lease dated 3/12/1908 and registered as No. 2/08 in volume 18 of the Lands Registry in the office at Warri but now kept at the Lands Registry, Asaba?
The Claimants also seek the following reliefs if the questions are answered in their favour.
i. A declaration that S.34 (2) of the Land Use Act did not divert the claimants of their reversionary interest in the Deed of Lease dated 3/12/1908 and registered as No. 2/08 in Volume 18 of the Lands Registry in the office at Warri but now kept at the Lands Registry, Asaba or in any way entitle the defendants to deprive and or deny claimants of their reversionary interest in the said lease.
ii. A declaration that the land demised by the said Deed dated 3/12/1908 has since reverted to the claimants as Reversioners under the said lease.
iii. An order of injuction restraining the defendants, their agents, privies or assigns in any way from denying claimants of their reversionary interest and or rights in the said land covered by the Deed of Lease dated 3/12/1908.
iv. An order of injunction restraining the defendants from derogating from the claimants’ rights as Reversioners in the lease dated 3/12/1908 and registered as No. 2/08 in Volume 18 of the Lands Registry in the office at Warri but now kept at the Lands registry, Asaba or doing any act or taking any action that may derogate from claimants’ right as Reversioners under the said lease.
The Claimants supported the summons with a 10 paragraph affidavit and attached Exhibits A, B, C & D. The Claimants also filed a further affidavit of 5 paragraphs and attached Exhibit E. The Defendants on the other hand filed 3 paragraphs Counter Affidavit. Both Counsel filed written addresses in support of their respective positions.
I have painstakingly read the affidavits, the Counter Affidavit as well as the written addresses of both learned Counsel.
For a better appreciation of this case, I shall state hereunder some of the Exhibits and they are:
Exhibit ‘A’ is a deed of lease dated 3rd day of December 1908 between the Chiefs and people of Sapele and James Jamieson Thorburn (Acting Governor and Commander-in-Chief of Southern Nigeria). It was for a term of 99 years.
Exhibit ‘B’ is an assignment of the said lease between the Governor of Western Region Sir. John Rankine and the Okpe Communal Lands (Trustees) wherein the land in Exhibit ‘A’ was assigned to the trustees and all the rights vested in the Governor in the said lease excepting the lands described in the schedule in the Exhibit ‘B’ to hold in trust for the Governor for the remainder of the lease.
Exhibit ‘D’ is a power of Attorney donated by the Sapele Okpe Community to the Sapele Land trust Association.
Having stated the above, it is worthwhile at this stage, to give a summary of the claim, and the highlight can be found in the following paragraphs of Claimants affidavit.
Paragraph 5: By a Deed of Lease dated 3/12/1908, Chief Dore Numa of Benin River acting for and on behalf of Chiefs and people of Sapele (i.e., claimants) granted to James Jamieson Thorburn, Acting Governor and Commander in Chief of the colony of Southern Nigeria a lease of the Land therein described for a term of 99 years commencing from the date thereof at the yearly rent of £100.
Paragraph 6: The said Deed of Lease was duly registered as No. 2/08 in Volume 1B of the Lands Registry at the office at Warri but now kept at the Lands Registry in the office at Asaba, Delta State. Annexed hereto and marked as Exhibit ‘A’ is the True Copy of the said Deed of Lease.
Paragraph 9: By a Deed of Assignment dated 15\ 3 \1960 and registered as No.60 at page 60 in volume 313 of the Lands Registry, Ibadan but now kept at the Lands Registry in the office at Asaba, Delta State, the Land comprised in the lease was assigned by the Governor of Western Region of Nigeria to Sapele Okpe Communal Lands Trustees for the remainder of the term of the said lease save and except the State Government property described in the schedule therein. Annexed hereto and marked as Exhibit ‘B’ is the said Deed of Assignment.
Paragraph 11: The said lease exhibit ‘A’ under which the properties described in the scheduled in
Exhibit ‘B’ were held has since expired and the Delta State Government has not made any effort to obtain a new lease from the Claimant.
The Defendant opposition on the other hand can be found in paragraph 3(f) and (g) of the Counter Affidavit which are hereunder reproduced:-
Paragraph 3 (f): That by virtue of the said deed of Assignment, there has been a surrender of the lease to the original lessors through the Okpe Communal Land Trustees, a body incorporated under the communal land (vesting in Trustees ) law 1958,
Paragraph 3(g): That the existence of any right, interest duties and obligation in respect of my piece or parcel of land in Delta State and indeed the Federation is now governed mainly by the Land Use Act Cap L.5 Laws of the Federation.
Issues for determination
The Defendant submitted two issues for determination and they are:
a) Whether there was a reversionary interest left in the deed of lease (Exhibit A) in view of the deed of Assignment Exhibit ‘B’.
b)Assuming without conceding that there was a reversionary interest left in the lease would such interest subsist in view of S. 34(2) of the Land Use Act Cap 15 Laws of Federation of Nigeria 2004.
These issues can sufficiently dispose of the dispute between the parties.
Exhibit B and 2nd page states:-
“NOW THIS DEED WITNESSETH THAT IN PURSUANCE OF THE SAID Agreement and for the consideration aforesaid the Governor hereby assigns unto the trustees all his rights, title and interest in the land comprised in the herein before recited indenture of lease dated 3rd day of December, 1908, excepting the land described in the schedule herein trust for Her Majesty by virtue of the provisions of the apportionments of Assets and liabilities, Regulations 1954 to hold the same unto the Trustees for all the residue now unexpired of the term of years granted by the said lease.”
My Understanding of the above is that the Governor of Western Nigeria at the time assigned his interest to the Trustees of Exhibits A& B to the Okpe Communal Land Trust in trust for Her Majesty which is now the Delta State Government. Was there therefore a subsisting lease ? The answer to my mind is yes because they were to hold same for the unexpired term. Another question flows immediately , what happens at the expiration of the term? Let me state here that a lease agreement put one in possession for a specified duration or term and at the expiration, there is clearly a reverionary interest in favor of the owners or lessors. As the name suggest, reversionary interest means to go back to the original owner or lessor, whose possession or interest in the property has been in abeyance for the term or duration of the lease.
The lease in Exhibit ‘B’ expired since 2007, and I dare say in law, the reversion ought and should be in favour of the party that gave out the property for the period. This is because at the time of acquisition in 1908, the Governor- General acquired a lease hold interest and not a fee simple interest.
Assuming this was a transaction between two individuals, or two communities or two corporate entities, this would be the result. The fact that in this case, a Government is involved does not derogate from the legal principles as stated.
Without further belaboring the point, I resolve this issue in favor of the Claimant as the argument by learned state Counsel for the Attorney General that there was a surrender of the lease by Exhibit ‘B’ cannot hold water, if indeed there was a surrender, a deed of surrender ought to have been made, and not a deed of assignment.
On issue 2 i.e. whether upon the coming into effect of the Use Act Cap L.5 Laws of Federation 2004 the rights interest and title of the Claimant had become subject to that of the Defendants. The spirit of the Land Use Act is not for the Government to forcefully or without more acquire all lands in the State, rather for them to exercise a supervisory role in the control and management of land: This is why a certificate of Occupancy duly issued by Government can still be set aside by a court of law : and that is why there are still valid land transactions that do not involve the Government except a party wishes to formalize such a transaction. The Governor’s position has been correctly indentified as that of Trustee of all lands and not owners. Section 34 (2) of the land Use Act states:
“Where the land is developed, the land shall continue to be held by the person in whom it was vested immediately before the commencement of this decree as if the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor under this decree”
My simple understanding of this is that by virtue of the said section and applied to the case in hand, the Government acquired the claimants land for 99 years and a Certificate of Occupancy was duly obtained however subject to the condition and covenants in the Exhibit ‘B’’. I had stated earlier that a lease is for a term of years Which the lessee must give back at the expiration of the leasehold. I also hold the view that if the Defendants are still desirous of retaining same, they can initiate the process of compulsorily acquiring same, or seek a renewal but not to rely on the Land Use Act to renege from an agreement or forcefully acquire same.
I resole issues 2 in favour of the Claimants and this shows that the Claimants question have been answered in their favour and they are deserving of the reliefs claimed. Accordingly reliefs 1-4 earlier reproduced are hereby granted.
I make no order as to cost
HONOURABLE JUSTICE G. E. GBEMRE
J. A. Omonose for the Claiimants
B. E. Evru ( Chief State Counsel) for the Defendants