Land Law

• Pages: 1-957

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Abandoned property Paras. 1,2

LAND LAW

(1) ABANDONED PROPERTY

1. Application of the Abandoned Property (Custody and Management) Edict

No. 8 1966 Laws of Rivers State.

“There was evidence that the plaintiff hailed from Njikoka in Anambra. State and

that he had to flee Port-Harcourt during the war. He is therefore a non-indigene of

Rivers State. Now what about the defendant, what State does he come from? The

Deed of Conveyance Exhibit Q, tendered by him described him as….”Claudius

Daumoru Olali…..native (of Kulo town in Ogbia Local Government District of the

Brass Local Government Authority Area Rivers State of Nigeria (hereinafter called

purchaser ………………..” The defendant is therefore an indigene of Rivers State

and since he did not leave the State during the Civil war, nor abandon any property at

the relevant period, the Abandoned Property Edict 1969 would not apply to him. But

this does not mean that the defendant has no rights under the Edict, for under Section

13, he may claim ownership of any abandoned property and prevent the Abandoned

Property Authority from paying the accumulated rents it had collected to the sup-

posed owner.” – Per Craig, J.S.C. in Olale v. Ekwelendu Suit No. S.C. 54/1988;

(1989) 20 N.S.C.C. (Pt. III) 118 at 153; (1989) 4 N.W.L.R. (Pt. 115) 326 at 342.

2. Burden on party claiming abandoned property was sold to him.

“The sheer audacity in counsel’s pronouncements drove me timorously to peek into

Section 1(1) of the Abandoned Properties Decree, No. 90 of 1979 (Now Abandoned

Properties Act, Cap. 1 Laws of the Federation, 1990) whence counsel derived the

clout to mortify the poor trial Judge so. It provides: - “1(1) Every sale or disposition of

abandoned properties conducted by the Abandoned Properties Implementation Com-

mittee (hereafter in this Act referred to as “the Committee’) set up by the Federal

Government shall be deemed to have been lawful and properly made and any instru-

ment issued by the committee which purports to convey any estate or interest in land,

shall be deemed to have been validly issued and shall have effect accordingly to its

tenor or intendment.”

Speaking for myself, I see nothing in this provision indicating that any com-

mittee had in fact been set up under it. It does not set up any committee. It merely

seeks to validate any sale done by a committee that may be set up by the Federal

Government, thereby indicating that the Federal Government has power to set up

one. Having power to set up a committee is a matter of law to be gleaned from the

provisions of the law. Whether that power has been exercised is clearly a matter of

fact to be determined on evidence. If one accepts the learned counsel’s arguments,

Paras. 2-4 Vol. 14: LAND LAW 2

one would be paving the way for anarchy. It would mean that any group of hoodlums

could get together claiming to have been constituted by the Federal Government into

the Abandoned Property Implementation Committee. They could then set about

terrorising the land since no Court could even inquire into whether or not they had

been constituted as they claimed. With all due respect to learned counsel, I cannot

accept his argument. For the appellant to cover the committee that purportedly of-

fered the plaintiff’s property for sale to him with the protection afforded by Section

1(1) of Cap. 1 of 1990, he must show by admissible evidence that that Committee

had in fact been set up by the Federal Government.” - Per Ikongbeh, J.C.A. in

Icentebe v. Isangedighi Suit No. CA/PH/147/90; (2002) 8 N.W.L.R. (Pt. 768) 134

at 146-147.

3. Can a person desert his property without the intention to desert it?

“Another question which could be asked on this issue is – can a person desert his

property without the intention to desert it? Can I abandon my property without the

intention to abandon it? I concede that in the interpretation of statutes, a person’s

intention is immaterial. But intention could be of assistance in determining whether

there was a desertion or abandonment of the property. Two elements, in my view, are

necessary in act of desertion or abandonment. There must be animus desertendi

and the act of desertion. Both the intention and the act constitute desertion. Such

elements are not present in the present case.” – Per Ubaezomu, J.C.A. in

Chukwuogor v. A-G. Cross Rivers State Suit No. CA/E/30/93; (1998) 1. N.W.L.R.

(Pt. 534) 375 at 409 – 410.

4. Condition for validity of sale of abandoned property.

(1) “From the pleadings and evidence the sale was made by “Director, Committee on

Government Properties” on behalf of Rivers State Government and not by any “Aban-

doned Properties Implementation Committee” set up by the Federal Government

under Abandoned Properties Act, 1990. It followed therefore that the sale did not

receive any protection under Section 1(1) thereof.” - Per Ogebe, J.C.A. in Kentebe

v. Isangedighi Suit No. CA/PH/147/90; (2002) 8 N.W.L.R. (Pt. 768) 134 at 151.

(2) “On whether the trial Court had no jurisdiction because of Section 1(1) of Cap. 1

of 1990, the 2nd defendant himself proved beyond any shadow of doubt that the

interest he purportedly acquired in the plaintiff’s property did not come to him from

the Abandoned Properties Implementation Committee. As I showed earlier regard-

ing Exhs. E, F and F1, the offer made to him by the committee lapsed because he did

not meet its deadline given to him by the committee and the allocation was expressly

nullified by the very president of the committee that made it. How can we close our

eyes to this piece of evidence that the 2nd defendant himself placed before Court and

accept his contention that the committee sold the property to him?” - Per Ikongbeh,

J.C.A. in Icentebe v. Isangedighi Suit No. CA/PH/147/90; (2002) 8 N.W.L.R. (Pt.

768) 134 at 147-148.

3 Abandoned property Paras. 4-6

(3) “With all due respect to learned counsel, I cannot accept his argument. For the

appellant to cover the committee that purportedly offered the plaintiff’s property for

sale to him with the protection afforded by Section 1(1) of Cap. 1 of 1990, he must

show by admissible evidence that that committee had in fact been set up by the

Federal Government. As there had been no such showing, the learned trial Judge

was justified in making the observation complained of in the second issue for deter-

mination.” - Per Ikongbeh, J.C.A. in Kentebe v. Isangedighi Suit No. CA/PH/147/

90; (2002) 8 N.W.L.R. (Pt. 768) 134 at 147.

5. Does the nullification of the Rivers State Lands (Cancellation of Leases)

Edict No. 15 of 1972 by a Supreme Court apply ipso facto to every case?

“Indeed the learned trial Judge found as a fact that the plaintiff did not challenge the

validity of the Edict. At page 168 he said: - “It is to be noted that the plaintiff did not

challenge the cancellation Edict.” I must point out that there has been no appeal

against this finding. It will be seen that it is not correct to state that the validity of the

Edict was directly in issue in the instant case. It is also not correct to say that the

learned trial Judge held that the Edict was null and void. He did not. This case is on all

fours with the case of Abaye v. Ofili (supra). In the instant case, the plaintiff’s lease

of the land in question was cancelled by the Rivers State Land (Cancellation of

Leases) Edict, 1972 and the property was later sold and re-conveyed to the 1st

defendant by the 2nd defendant under and by virtue of a conveyance registered as

No. 18 at page 78 in Vol. 72 in the Lands Registry, Port-Harcourt. This Action was

taken before 3rd December 1982 when the decision in Peenok’s case was given. In

other words, the lease of the plaintiff was cancelled and the land was re-conveyed to

the 1st defendant, Sunday Abere while Edicts Nos. 15 and 17 of 1972 were still valid

and subsisting. The consequence of this is that the declaration by the Supreme Court

in 1982 that the Edict of 1972 was null, void and unConstitutional did not affect the

previous operation of the Edict or anything done or suffered under the Edict. That

declaration also did not affect any right, privilege, obligation or liability accrued or

incurred under the 1972 Edict. Put simply, the sale of the property in question under

the Edict of 1972 remains valid.” - Per Katsina-Alu, J.C.A. in P.N. Uddoh Trad.

Co. Ltd. v. Abere Suit No. CA/PH/115/93; (1996) 8 N.W.L.R. (Pt. 467) 479 at 494-

495.

6. Need for approval of transaction by the Military Governor under S. 15 of

the Abandoned Property (Custody and Management) Edict 1969.

Section 15 of the Abandoned Property (Custody and Management) Edict 1969 pro-

vides that: - Any transaction entered into after 27th day of May, 1997 relating to the

sale, lease, mortgage or disposal of any abandoned property or of any interest therein,

shall be null and void unless such transaction is approved by the Military Governor

within six months after the commencement of this Edict. The defendant admitted in