AJOKU V. ATTORNEY-GENERAL, RIVERS STATE (2005)

Background

This appeal arose from a dispute concerning property known as No. 6 Ogbunike Street, Rumuomasi, Obio, Port Harcourt. Moses Nwafor Ajoku claimed that he acquired a lease over the land from Oliver C. Igwenyere for 40 years commencing on 25 January 1961. He developed the land by constructing approximately eighteen rooms and thereafter let the premises to tenants. Ajoku maintained that he remained in peaceful possession and that the property was native land rather than State land.

During the Nigerian Civil War, Ajoku left Port Harcourt for his hometown in Imo State. The property was occupied by the 2nd and 3rd Infantry Brigades between 1970 and 1977, and Ajoku asserted that rent was paid to him. He further relied on a de-requisition letter dated 27 February 1978, which he said showed that the property had been released to him. The Rivers State authorities nevertheless treated the property as “abandoned property” under the Abandoned Property Authority Edict No. 8 of 1969. The property was subsequently dealt with as government property and sold to Mrs. Charity C. Ihejirika in 1987.

Ajoku commenced proceedings in the High Court of Rivers State seeking declarations that the acquisition, sale, agreement of sale, change-of-ownership notice and related dealings were void. He also sought a declaration that his lease remained valid until 2001 and an injunction restraining further interference. The trial Chief Judge dismissed his claims, holding, among other things, that the property was abandoned, that Ajoku bore the burden of proving that it was not abandoned, and that the Rivers State Government had authority to deal with it.

Issues

1. Whether the property satisfied the statutory definition of abandoned property.
2. Whether the burden rested on Ajoku to disprove abandonment or on the respondents to establish it.
3. Whether the Abandoned Property Edict divested Ajoku of his title or leasehold interest.
4. Whether Ajoku proved his interest in the property.
5. Whether the land was State land or native land.
6. Whether the trial court was entitled to describe Ajoku’s dealings as illegal when criminality or illegality had not been pleaded and proved.
7. Whether the State respondents possessed an interest capable of being transferred to the purchaser.
8. Whether the sale to the fourth respondent was valid.

Ratio Decidendi

The Court of Appeal held that the respondents, having asserted that the property was abandoned, bore the burden of proving that assertion. In civil proceedings, the onus lies on the party who would fail if no evidence were called; accordingly, it was not Ajoku’s duty to prove a negative proposition.

The statutory definition required the coexistence of several conditions: the property had to belong to a person whose hometown or place of origin was outside Rivers State; it had to have been abandoned as a result of the Civil War or related disturbances; and, at the relevant time, it had to be outside the owner’s physical occupation, personal control or management. Crucially, there also had to be an opinion of the Military Governor or the Abandoned Property Authority that the property was abandoned. The record contained no documented opinion by either authority. Mere assumption or retrospective reasoning could not satisfy that requirement.

The court further held that section 2 of the Abandoned Property Authority Edict No. 8 of 1969 was void to the extent of its inconsistency with section 31 of the 1963 Republican Constitution. Section 31 protected movable and immovable property from compulsory acquisition except under a law requiring adequate compensation and providing access to the High Court for determination of the claimant’s interest and compensation. The Edict, insofar as it enabled property to be treated as abandoned by reference substantially to the owner’s origin and without the constitutional safeguards, unlawfully derogated from that protection.

The ouster provisions in section 6(6)(d) of the 1979 Constitution prevented courts from questioning the legislative competence of an authority or person to make a law, but did not prevent the courts from examining the validity of the law or determining whether it conflicted with the Constitution. Courts therefore retained a duty to safeguard the Constitution and to declare inconsistent legislation void to the extent of the inconsistency.

Court Findings

The court found that the pleadings substantially admitted that Ajoku was the bona fide owner or holder of the relevant interest before the dispute. It rejected the trial court’s conclusion that Ajoku had failed to establish title. The respondents had no legal or equitable interest in the property because the alleged statutory vesting had not been validly established. Applying the maxim nemo dat quod non habet, meaning that no person can transfer a better title than he possesses, the State respondents could not validly sell the property to Mrs. Ihejirika.

The appellate court also held that the trial court was wrong to characterize Ajoku’s acts as illegal. Illegality or criminality had not been pleaded, and no sufficient evidence had been led to support such a finding. The court emphasized that a party must be given fair notice of the case it has to meet.

However, the Court of Appeal recognized that Ajoku’s interest was a leasehold interest rather than an absolute ownership interest. It stated that a perpetual injunction is ordinarily inappropriate in favour of a limited owner where the holder of the reversionary or absolute interest has not been joined, because the property would revert to that owner when the lease expired. Despite this qualification, the formal orders included an injunction restraining the respondents and persons acting through them from further interfering with the property.

Conclusion

The appeal was allowed substantially in part, and the judgment of the High Court was set aside. The Court of Appeal declared the purported acquisition by Rivers State, the sale to the fourth respondent, the 19 August 1987 agreement, and the 6 November 1987 change-of-ownership letter null and void. It declared that Ajoku’s lease subsisted until 2001 and awarded him costs of N5,000 against the first to third respondents and N2,000 against the fourth respondent.

Significance

The decision is significant for constitutional property protection and judicial review of legislation made during Nigeria’s military era. It confirms that an ouster clause cannot be used to shield unconstitutional legislation from judicial scrutiny where the question is validity rather than legislative competence. It also establishes that government cannot convert private property into “abandoned property” without strict compliance with statutory requirements and constitutional safeguards. The judgment reinforces the presumption that a person alleging abandonment must prove it, and that acquisition of property must follow due process and provide adequate compensation. Finally, the application of nemo dat quod non habet demonstrates that a public authority cannot pass valid title to a purchaser where its own title or interest was never lawfully acquired.