CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & ORS V. EKPO (2008)

Background

This appeal concerned the validity of a purported conveyance of the respondent’s property at No. 3C, Enebong Avenue, Calabar, to the first appellant. The respondent had been employed by the first appellant and rose to the position of senior travelling secretary. In 1987, he was suspended after allegations that he had defrauded the society. He was subsequently arrested several times by the police at the appellants’ instance. According to the respondent, during his detention he was shown police cells occupied by hardened criminals and threatened with incarceration unless he signed a document transferring his property to the first appellant in settlement of an alleged debt of N80,000.

The respondent signed exhibit A, described in the proceedings as a deed of mortgage or conveyance, and handed over the original property documents. He later commenced proceedings by originating summons, seeking a declaration that the conveyance was null and void, an order requiring the appellants to vacate the property and return the documents, and general damages. The appellants maintained that the respondent had voluntarily transferred the property to settle money he had fraudulently obtained from the society and to avoid criminal prosecution.

The High Court of Cross River State granted the respondent’s principal reliefs and awarded N100,000 in general damages. The Court of Appeal dismissed the appellants’ appeal. The appellants then appealed to the Supreme Court.

Issues

1. Whether exhibit A was null and void under sections 22 and 26 of the Land Use Act, 1978, because the Governor’s consent was not obtained before the conveyance was executed.
2. Whether the appellants’ challenge to the finding that no genuine indebtedness or fraud had been established was competent without leave to appeal against findings of fact.
3. Whether the appellants’ further ground concerning a consequential order for refund of money was competent and arose from the decision of the Court of Appeal.

Ratio Decidendi

The Supreme Court dismissed the appeal. It held that section 22(1) of the Land Use Act makes the Governor’s prior consent a mandatory precondition to the alienation of a statutory right of occupancy by assignment, mortgage, transfer of possession, sublease or otherwise. Section 26 reinforces that requirement by declaring any transaction or instrument purporting to confer an interest in land otherwise than in accordance with the Act to be null and void.

The Court rejected the argument that the transaction was merely inchoate or capable of becoming valid through later consent. Exhibit A was a completed conveyance, and there was neither pleading nor evidence that it was intended to operate only as an agreement subject to the Governor’s consent. Since no consent was ever sought or obtained, the instrument could not confer a valid interest in the property.

The Court also held that a ground of appeal is not transformed into a ground of law merely because counsel labels it as such. Its substance and particulars must be examined. Complaints concerning the evaluation of evidence, the existence of a debt, the weight of evidence or alleged contradictions are generally grounds of fact or mixed law and fact and require leave where appropriate. The appellants had obtained no such leave. Furthermore, the concurrent finding that the alleged fraud and indebtedness had not been proved, and that no appeal had been brought against the relevant trial-court finding, was binding on the appellants.

Court Findings

The Supreme Court divided its reasoning across the judgments. Onnoghen JSC, delivering the lead judgment, held that the words of sections 22 and 26 were clear and unambiguous and had to be applied according to their ordinary meaning. The statutory use of “shall” made the consequence mandatory rather than discretionary. An alienation without the Governor’s prior consent was therefore void for all purposes under the Act.

The Court further reaffirmed that parties and courts are bound by pleadings. Because the appellants had not pleaded or proved that exhibit A was an incomplete transaction or was made subject to the Governor’s consent, counsel’s argument that it was inchoate could not substitute for evidence. The Court also stated that counsel’s submissions, however persuasive, cannot replace pleadings and proof.

The Justices differed in their observations concerning duress. Some judgments considered that the respondent had not sufficiently proved coercion, while others accepted or upheld the lower courts’ findings on that issue. That difference did not affect the outcome because the conveyance was independently void for non-compliance with the Land Use Act. The Court also declined to order repayment of any alleged consideration because the appellants had not sought such relief. A court does not grant relief that has not been claimed, although the appellants were left at liberty to pursue any recoverable monetary claim in a separate action.

Conclusion

The Supreme Court unanimously dismissed the appeal and affirmed the judgments of the lower courts. Exhibit A was declared null and void, the first appellant was required to vacate the property, and the respondent was entitled to the return of the relevant documents. Costs of N10,000 were awarded against the appellants in favour of the respondent.

Significance

The decision is important in Nigerian land law because it gives strict effect to the Governor’s consent requirement under the Land Use Act. It confirms that consent must be obtained before an alienation of a statutory right of occupancy can validly transfer an interest to the intended recipient. The case also illustrates the procedural discipline required in appellate litigation: factual findings cannot generally be challenged without leave, unappealed findings are treated as accepted, and grounds of appeal must genuinely arise from the judgment under challenge. Finally, the decision demonstrates that equitable appeals to fairness cannot authorise a court to disregard clear and mandatory statutory language.